The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-26
The exercise Of it, was, therefore,
md il was also the exercise of a

b.,
legislative power, and it was also the exercise of
legal discretion Judge Edwards then goes on
Rut IL neither assents refuses, and private
rights violated this court viii not be authorized to
interfere upon the application of private individual
and prevent what the corporation OF the city, which
alone has the right 70 act in the matter does not object
to- Whether the assent of the corporation has been
given IN the legal form not IL 10 sufficient as far as
this suit is concerned that il has not dssented and that
of the private rights of the plaintiffs VIII be violated
These were the views taken OF this subject at the
time that il was before this Court, and since that
time il has been in different forms before the Court
III other respects.
Mr.. VAN BURES-Does not your opinions take
different view Handing book TO the exChief
Justice.l viii you read those PASSAGES
Fx.Chief Justice JONES' am referred to the fol-
lowing passages in my opinion in the case OF Drake
vs. the Hudson River Railroad Company
by law a rule law of corporation for 1t govern
II is ac OF legislation and the soemnites and
sanction required by the charter for its passage must be
observed by law may be in the form OF resolution,
and require the solemnites 10 pass it; but
luton is not necessarily by law 1t may be the
Of the corporation to act of private citizen
operating upon its property or affecting It's corporate
rghs or ianenes or license 20 ca.sn 70 use pro
exercise within its limits rights powers privileges
conferred upon party by the Legislature condition OF
obtaining such assent of the city governmentY Can any
ch be in any just Of the expression termed
deemed laws acts of legislation Of equivalent cha
racerY corporate body whether specially vested with
10 make necessary rules for its government and opera
atoms and the right to assent to rghnu and ray or
whether favorably or unfavorably.
All this is predicated upon the exercise Of power
by the corporation as corporate body possessing
private rights and interests. They may dispose OF
their common lands, they may dispose OF any right
privileges that they possess as body, and they
may do it by resolution or bylaw, as they may see
fit. You may act by resolution or by bylaw IL you
act oy bylaw, it may be in the form OF resolution.
That is the whole that is contained i'll these passages
from beginning to end If the act that is now about
to be carried into efect-the use OF Broadway by this
railroad for the purpose Of trayel-n that can be
called private right of the Common Council or OF
the corporation rather, which they hold in their
character private corporation, then there IS an
end Of the argument. But has it any features OF
private right! Now, the about taking down one
market and erecting another was precisely OF that
character. That was dealing with the property OF
the corporation as private corporation, and had
nothing to do with the public. | have read, if the
Court please, the note OF Chancellor Kent, as being
the best argument to show that the regulation and
Of the streets Of the city is vested in the copo
ration, not as private right Of that body as a pr
vate corporation, but public right vested in them
by municipal body and 70 be exercised by the local
municipal legislature of the city. That is the dis
tincton. Subsequent to the decision to which
have just referred, there came before the Supreme
Court in another branch of it, another case, which
was Plant Vs. the Long Island Railroad Company,
which arose in this circuit In that case Judge Ed.
wards SAYS -
The primary object of street is to furnish free pas
sage to the public 1t that end chiefly that the
soil is appropriated public Such being the case
there to be no good reason why the use should be
confined to the natural surface Of the SOIL and why
surface may not be created for the same purpose,
either by tunnelling excavation
That was to meet, no doubt the objection taken to
interfering with the surface of the streettaking up
the pavement, if you please.
If such surface be created 1t must follow that
1t can be used in any in which the original surface
could be legally used And it has been decided by this
court, in the case Of Drake the Hudson River Rail
road Company q abour $685. that the laying Of rail-
road track upon street in city is not such exclu-
the right passage passage and in reference
the convenience 81 the public, is legal
There, again, is reiteraton Of the decision given
in the case of Drake Vs. the Hudson River Railroad
Company, that the laying Of such track upon the
street not exclusive appropriation of the street
This has no reference to any legislative authority
It is not an exclusive appropriation in ITSELF OF the
street. 1t does not come within the description Of a
monopoly. 1t goes on
Although o highway in the country is, as general
rule needed for no other purpose than place of
and passage yet the Is different to street
in populous commercial city There are many uses to
which streets in large cities usually appropriated for
public convenience such the construction Of drains
and and the laying OF water and pipes These
no way injurious private right of lnvdu.
els They do not interfere with the surface Of the street.
ansy no Nsber the nt
adjoining property On the contrary they either d.
recty or Indirectly advantageous. There be doubt
but railroad in city is calculated to promote trade
and commerce. and 1t il equally clear that the public
convenience promoted by its being constructed in such
a that it in way interfere with the ordi-
nary modes Of conveyance. such be the case We can
see good reason why it is incorporation Of the
street to allow it to be tunneed for railroad any more
than 1t Is to allow it TO be excavaed for water
gas pipes 1t is not denied that to certain extent,
the Common Council of the city Of Brooklyn have the
legislative control over its public streets.
And tie Common Council of Brooklyn have not
higher powers than the Common Council of the city
Of New York. yet the position is that it is not denied
that to certain extent, they had Legislative con-
troll over the public streets. And they expressly
authorized Ito make and establish all such ordinances
bylaws and public regulations, not contrary to the
constitution and laws Of the State, as may be proper
for the good government and order Of the said city,
This is almost verbatim the powers that given to
the corporation Of the city of New York to make
bylaws for themselves. The next part of the opinion
applies again to the objection that taken; that the
land which this railroad occupies was not taken and
paid for under the exercise of the right of eminent
domain. That question, in another stage Of this con
sideration came before the court and that part Of
the opinion will appropriately apply to it. In the
same book occurs another authority in case which
| Is that of Chapman w. the Albany and Schenec
| tady Railway Company In this case the opinion
delivered by Judge Harris, of the judges OF
the third circuit, and lie says-"In the Lexington
and Ohio Railroad vs.. Applegate, Is Dana, 2s90
city government Of Louisville had right to authorize
thelocation construction and use of railroad through
street OF the city" Chief Justice Robertson, in
delivering the judgment Of the Court Of Appeals,
on every other street. took their respective lots sub
ect to all the contingencies that might arise to it, and
to the use of it, from all the uses which might ever
be made Of the street as public way, consistent
ly with the objects Of its original dedication. They
purchased their property and must hold it, others
purchase and hold town lots, subject to any conse-
quences that may result, whether advantageously
disadyantageously, from any public and authorized
use Of the streets, in any mode promotve Of, and
consistent with the purposes OF establishing them
highways in towns, and compatible with the
reasonable enjoyment OF them by al others entitled
thereto" He refers here again to the Of Drake
VS.. the Hudson River Railroad Company, decided by
this court, and he says-" The same views have
been expressed and maintained at very great length
by very distinguished jurist in our own court y
"rhe streets wherein the tracks OF the railroad are
laid says he, " still continue streets for the use
benefit and accommodation, Of the plaintiffs and
their fellow citizens, and the public at large. A
leading and purpose Of public street is for ira
! velers and others TO pass and repass on and
| over the same, with horses, carriages, and