The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-01
TIE BROADWAY RAILROAD CASE.
Supreme Court.
AR0UMskT or Ex-0HIEF JUSTICE JONES on Bah ALE

| or TIN GRANTEES.
Before Judges Edwards, Morris and Strong.
! FEB. ss-Joas DIilaau and others Us. Jacob
! Sharp and others.
II seems TO me, therefore, that that argument if it
Is to have any force proves too much. But this Is
great thorOughfare, thronged with business with car
iiages OF all descriptions. destined to commercial
operations. and In which the dwelling houses have
| almost entirely disappeared, and what remains are
last leaving IT, How does that interfere with the use
Of the railroad2 Ia q railroad or will it be- of less
Inconvenience to the business operations of those
who occupy dwelling houses upon Broadway, or
stores upon Broadway, than the omnibuses! Will 1t
I'LL up that street. or occupy it in the tenth part as
much as this crowd OF omnibuses, which is daily in
creasng. and necessarily does. and necessarily must
increase! But again, this question of nuisance, so
far as understand it, injunction is concerned.
! must depend upon facts that exist nuisance must
exist before the court will undertake TO enoin, or
there must be such proof of its actual existence
actual expectancy and necessary existence, as will
justify this Court to say beyond all question, and
| carried out must, and will produce nuisance. You
cannot restrain useful improvement useful use
or occupation of the street, upon the specula
tive ground that it may become nuisance. Lot it
be remembered that upon the subject OF the and
convenience Of railroads there is but one opinion
prevailing throughout the community; and venture
to say, even with the parties themselves that aside
from their immediate present feeling upon the subject
and supposed interest in this question, they would
not hesitate to join in the general and universal
sentiment OF ALL that railroads are OF great public
convenience. and thft later they must take
place, and pervade almost every part Of this metro
polls IL we to maintain our standing. and keep
the two parts of the city together must have
railroads. This great public measure, then-this
great public improvements il TO be suErreased-is
it to be stopped IN The very commencement or
rather not allowed to be commenced, nor the expert
ment tried, because il may. peradventure, become
nuisance aplrehend that the Court will never
carry its jurisdiction III respect to the injunction for
nuisance TO that extent suffice il to say, upon that
ground, that il This railroad should become
nuisance, it will b. at once suppressed, and
that not only By the power and influence of the
parties who are now opposing it not only by the
aim OF the state but by the corporation ITSELF The
corporation say. will unite in putting il down.
They will be compelled to do by the popular voice
OF the city, H. in point Of fact it should be found to
produce the consequences of nuisance either public
or private That some Inconvenience, temporarily,
may be sustained by these gentlemen. as they aver
in the construction of this railroad, is probable.
We cannot build railroad in an hour. They say it
will occupy four months. Upon side it is repre-
scented that it may occupy about two; but whatever
time necessarily is required to build railroad, that
authority have shown to the Court, all parties
bound to submit to. 1t is an inconvenience that
cannot stand for moment in the way of the
public accommodation. .H
SECOND DAY.--PEB. 81.
II the Court please, unwilling to trespass or in
fringe upon the time OF the counsel who IL to reply,
shall avoid all questions which had in consideration
and which should il time had permitted, have added
to what lbaye already said, and conine myselftothe
conclusion made by the opposite party, which Isl
that the resolution IN naming the grantees WAS an
executive act, or il law, was improvdent, unreason
able, palpably injurious, breach Of trust and o
fraud, on the ground that it gave TO Jacob Sharp and
his associates privilege, for tring consideration
with right TO charge five cents passenger, when
Others had offered, and were ready to make the un
dertaking and offering therefor million Of dollars,
and to carriage at three cents passenger. In
answer to the first part OF these objections say,
that the resolution is not the less law from naming
IN 1tccfnp
any sense becomes thereby contracts that the State
Legislature In the constant habit of passing laws
comforting rights, or giving privileges to persons
named in the acts and that these have always been
held equally laws with the acts Of that Legislature
which concern greater number of persons or are
for more general objects; that every act Of the Legs
ature creating corporation necessarily names the
corporators the persons to be bound by it. (and the
books are full Of acts of that descrptOn) aud in the
city legislation the instances of the Harlem Railway
and Hudson River Railway. and those of the Sixth,
Eighth, and Third avenues, are all Of the same cha
racter and in every OF them the persons to whom
the permission is given are named in the resolutions
We cannot helieve, nor for o moment entertain the
dea, that this Court will hold this resolution to be
hat the resolution Is unreasonable and improydent.
that il is breach Of trust and fraud we an
swer that these were matters for the consideration
OF the Common Council and that they have decided
upon them in good faith and according to their best
Judgment and that that decision ought to be conclu
sve. 1t IS not denied, nor in any manner cOntr0-
verted that this company to whom the permission is
given, honestly means and certainly win. if permit
ed, construct the railroad, and carry passengers at
five cents and that this is the lowest rate at which
any Of the existing companies have offered to
TINT this PHI na Be-
upon that ground; but to repel the insinuaton-for
no direct charge IS made of corruption in obtaining
the passage Of the resolution in the first place, the
Mayor, Aldermen. and Assistant Aldermen, have de-
MED, in a deposition which is before this Court, and
in the strongest manner negative the idea that the
corporation have been offered received or arc to
receive, any compensation or have any interest d.
recty or indirectly or have received any gratuity,
any money, income, otherwise for their act in the
passage OF this resolution. And il the Court please,
let it be remembered that the two BoArds of Common
Councilwere almost unanimous each them in pass.
ing the resolution. They had it for months before
them committee of the Board of Aldermen
fully investigated the merits Of the application
They heard the opposers to it ut length, and they
then, finally, came to the conclusion and, in their
report to the Common Council, unanimously recon-
mended its adoption That report is before this
Court, and shows The reasons upon which that COM
nItee acted; ana upon ale tnal passage " the
luton OF the forty Aldermen and Assistants, OF
which the Common Council consists, thirty voted in
favor Of the grant What higher evidence could this
Court desire Of the sincerity Of the Common Council
in their belief and conviction Of the utility Of the
road, and for the mperious cali Of the public interest
for its establishment? Now, ID the conditions an
nexed to the resolution they have taken the greatest
and caution to obviate all possible objections to
the location and the operation Of the road and to
render it the most cOmmodous and useful to those
who use it, and the least mconyenent to others.
What ground is there then b. fore this Court for any
imputation Of mproyidence, fraud eorruption2
Higher and more advantageous offers were made for
it by Others it is sad but Of the good faith of these
offers, and their comparative yane to the city and
The public the Common Council we're TO judge. Can
this Court say, rs they have decided upon it, that
they have acted from impure motives or that they
have erred in their Judgment The time when these
offers were made, and the quarters from which
they came. we submit were well calculated toreuder
the sincerity and bona tdes OF them suspicious,
and that the subsequent avowas Of several OF them
| have tended to confirm those suspicious. 1t was
| not until every effort and every energy had been
exerted and exhausted and until it was ascertain
cd that the committee would report in favor Of the
resolution, that the first offer made to the Com
| mon Council in opposition. These offers then came
| from whence2 Why, from the opposition-from
those who, up to that time, had been strenuous in
i hasr ,,x ci&u