The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-28

10 the party thus applying license winch the parry
giving had right TO givei What il permission but
authorizing? What is license but permissionf Nov,
this body, this Common Council, which is the only
bodyw could do that act within the jurisdiction
OF thus city, in passing upon it, ask, do not they
act legisaiyey and do not they act in the exercise
of Discretionary power? Indeed is not every law 10
the extent to which that law goes, the exercise of
dscretionf Now, while the learned Judge admit
ted that you could not interfere with party
who had discretionary power to act or not +" to act"
lie said: :" and this must be taken under restrictions
and with exceptions" Why, if the Court please, let
me ask does not this destroy the discretion wholly?
Who is to Judge whether these exceptions apply or
not Who is to prescribe the limits OF this dscre-
ton or the due and proper exercise OF it? Is it not
in the very nature OF discretionary power, that the
party who is to exercise it must be the judge of its
expediency, its necessity and its proprety! 81 can
interfere says the Judge, if you have discretion
airy power ii you go out Of that discretion Is this
so lfit be- then i is the judging power that is to
him. He exercises that discretion and not the party
to whom it is ostensbly given. So with the case of
abuse. If another party is authorized to say when
and where and how that discretion is abused it Is not
that party who has this experimenting power, this
judgment upon the discretion OF the other that is
vested with discretion; and the man to whom it is
given is nothing more than mere agent, to exercise
that discretion, that power just as far as his supe
ror tells him he must do and just far as his supe
rior directs him, and to avoid Just whatever that
superior should adjudge to be abuse But, it is said
that this act of the corpoaton giving this license is
making grant. Now, what is grant? As far as
we have used the expression, the use Of it explains
it. 1t is the grant of license. 1t is the grant of
permission. Well, if the Court please the word
''grant" there has the same meaning with the word
J give" person applies to me for liberty to use
room in my house for particular purpose-to enter
tain friend, if you please, or anything else-and
give him permission, and in giving that say "
grant you leave lis that any more than permits
sion for him to use that room in my house
Now, if should choose to tell him that repent of
having given him the room, and say :. you shall no
use it, cannot revoke it just as well by using tn
word grant, as the word give?" If understand
the word grant" in the sense these gentlemen
would apply it, it must be the passing of some right
CT interest in the party to whom it is given for
and be irrevocabIe. Is there any such feature in
this act of the Corporation? Have they conferred
upon these parties grant which they cannot revoke?
Have they given them lease for term of years OF
Broadway for the purpose of running q railroad
Why, that corporation perfectly well understood that
they had no such power. They perfectly well under
stood that they had no such intention. They were
vested not wtha fee simple OF that street which they
could dispose of at pleasure, but they were trustees
as we say vested with the legal estate for the pur-
poses Of that trust, but still trustees, without any
power it than that Of regulating ordering, and
prescribing the uses which should be made of it, and
thus to be In conformity with the purposes for which
this street was originally seized or purchased. Now
them in connection generally, it will be to be consi
dered first whether this resolution which was passed.
conferred, or attempted to CONFER any such rights
and, secondly, what the powers of the corporation
were in respect to them, and in regard to the con.
tinuance or disconnuance of whateverthey may have
granted to these individuals Certainly the terms of the
resolution do not import grant Of any right interest
IN that street; it is simply to lay down rails upon 1t
for specific purposes. If those purposes were not
in conformity. with the uses for which that
has been uniformly used why, then, will it be
admitted that it is a void grant? They could not
make it, and nobody would be bound by it; but il
the purposes for which these rails were to be laid
IN
street originally devoted, then they are strictly
legal and no one can complain of them, or attempt
to revoke them. Now, in the first place, we say
that here has been no grant of anything save this
license, and that it cOnfers upon the grantee Of the
license nothing more than the privilege, the consent
Of the corporation, to lay down these rails in Broad
way, provided that in other respects the laying down
of those rails in that street would be consistent with
the use of the street for the purposes of travel In
that respect and to the extent that that use of them
is thus justified, and thus in conformity with the
uses and purposes OF the street. the license is valid
one, and so long as they like to continue it no one
interfere with the party to whom that license is
given: but remains in the breast OF the corporation
to revoke it whenever they please, and for any tu
ture corporation to do the like. The very object for
which the license was given on the face Of it shows
that II is for the purpose Of travel. 1t is for the
purpose of introducing and bringing into use new
mode OF using this street for the purposes for which
has been made on the part Of opponents is, that
this is new Of the street, and for that reason
the corporation has right to grant It. The cases
l am convinced, conclusive 1t is a new mode of
trave-it is new mode Of using the street-still it
IS mode of using it for those purposes and for
other. Shall we be told that these propretors,
whatever rights they may have, entitled to have
this street continued precisely as it was when
it was first laid out, and to be used by car
riages, and in the modes in which streets were
| then used, and no other! Are all improve
ments in the mode of travel to be excluded?
But originally the streets were pitched and paved,
and having but single gutter in the centre of the
street. Will it be contended for a moment that that
mode Of using the street should be forever continued?
In the first introduction of vehicles into the streets Of
the city, probably carriages OF different description
from those that were afterwards introduced were
ployed. Suppose coach or carriage upon new
principle or new plan, having broader wheels, il
you please, and moved by different power should
be introduced into the street. would that be reason
why license should not be given to those carriages
I to be used in that street? Where is the difference
except in single circumstance that the present use
oil the require that there should be some modii-
cations in the surface Of the street. to admit of the
laying down of the rails upon they are to mover
And as to hat has been proved over and over again,
that this change III the surface of the street. and the
mode Of propeng the cars, makes no difference and
does not prevent the exercise of the power Of the
Corporation to admit the use Of the street in that
way. My associate counsel refers to several acts
OF the Legislature, showing that in exercising their
legislative powers they are in the constant habit of
making grants lezslatvely, Of different privileges to
ulHeIeAt peIsOns, Us tuey Sndll uee1u proper ana ex
pedient, and right consistent with the interests of
the State. There is one, for instance authorizing
certain persons to carry out vaults in the Seventh
ward of the city of Brooklyn; and besides this there
are many of similar character. But, if the Court
please it hardly necessary to refer to that species
Of legislation because the statute books full Of
them. Legislative acts granting property and au
thorzng certain acts To be done perpetual
rences. 1t said however, another objection to
this resolution that if it competent for the Cor
poraton TO pass it, it was subject of proper refer
ence to one Of the departments II was contract
and therefore came under the provisions of the
amended charter, which refers the powers of making
contracts, rather the act Of making contracts TO
the Street Department. Now, if the Court please,
the same answer which has been given to several OF
the propositions upon the other side, apply to this
This resolution is not contract 1t has no form or
feature Of contract about it. The corporation &C.
private benefit. This license fee IL fee authorized