The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-25
THE BROADWAY RAILROAD CASE.
SupreIne Court.

OF THE GRANTEES.
BEFORE Judges Edwards, Morris and Strong.
FKB 2S.-.JohH Aithdu aud Others rS. Jacob Shd'f
and others.
Es Chief Justice Jones said If the Court please.
AFTER the able and astute argument OF the couirei
who opened this case on the part OF the Defendants
seems hardly necessary that any addition can &c
made instructive to the Court, useful 10 the par
ties. It, however, becomes my duty 20 MAKE SUN
remarks upon the topics that nave oeeh o1
fore the Court as shall occur 70 me TO be material.
The brief history the Court please, OF TINS contro-
versy which has been brought 10 the position IL now
assumes NAV be stated in few words. The city OF
New York lntd a comparatively recent period, has
stood in no need OF that complex system, If may
40 call it. of transportation from part OF the city
10 the other which is found to exist and in those
simple times no question relative TO the use OF streets
for the purpose OF travel could or did exist The
system Of hackney coaches was the only one that
was then in USE As the city progressed, however,
IN population and in business il was found that nom
the formation of the island upon which II was built,
necessity would require the establishment OF some
means of INSTRUMENTATION between the upper
parts of the city which were becoming rapidly resi-
dences, and the lower parts OF IL, which were as
rapidly converging into business operations; anu vac
Argt scheme that was devised for TINS purpose was
that usually called omnibuses and stages, winch sl-
perseded the former arrangement, and TOOK the
place Of the very imperfect communications
hat had subsisted for years between the western
suburbs and the business part of the city by means of
the Greenwich stage, and with the eastern part by
means of the stage which drove up the Third avenue
10 about Thirty-fourth street. These omnlbuses at
FIRST answered all purposes. By degrees, however it
was found that they were so multiplied, for the ac
commedation OF the upper parts OF the city, which
were beginning to become 80 very popuous that III
our day we all know they have become to be public
nuisance. Broadway, the great artery OF the city,
and which must ever be the great thoroughfare,
Meeting the upper parts of the city with the lower
has become thronged with these omnbuses to such
degree, that between Canal street, may say, and
Wall street. and especially between Fulton street and
Wall where all the omnbuses from all quarters OF the
city concentrate it dangerous to attempt to pass the
street in business hours and 1t almost denial OF ac
eommodation to those who 1--we out OF the business part
of the city OF any accommodation Whatever In any OF
the times when is most needed that is in the times
OF storm or difficult travelling upon foot. The omni
buses are so crowded thatit sometimes occupies near
~ half an hour before person residing as high up
as Blocker street can possibly obtain q passage.
These inconvenience pressed so strongly and SO
heavily upon the public, that for some two years or
past there have been continual speculations for
the relief, as it Is called, OF Broadway Numerous
projects have been started, opening new avenues in
streets but until recently, however, the idea which
has all along been occasionally suggested, at
different quarters namely, that of railroad in Broad
way has not been seriously before the people, Well,
company organized itselffor this purpose and made
IN application to the Common Council-the legiti-
mate source from whence licenses must be obtained,
lat all, for such project-otfering to construct
railroad in the centre of Broadway, upon terms which
we're deemed very advantageous to the public, and
not little onerous to themselves. Unexpectedly,
however to the friends OF that not
withdrawing all that is said, that measure had many
friends among the most respectable citizens of the
cty-unexpectedly to them an opposition, vlrulent,
Perseverng and untiring, grew up against the mea-
sure, chiefly from the owners of property fronting
apOn Br0adway-not the business men doing bust
ness upon Broadway-not the men to feel the actual
pressure If it be an inconvenience-but those who
hold property upon it, and who believe, which is an
entirely mistaken apprehension that it is, if adopted,
TO be not only injurious, but as some Of them repre-
sent, ruinous to them, depreciating their property
nearly one halt, and becoming, as they would have
us believe, public nuisance. Well, If the Court
please, these gentlemen demonstrated when the
whole subject was before the legitimate tribunal that
dermen to which this proposition was addressed,
thought favorably Of it, Notwithstanding the re-
nonstrances against it, and passed the resolu-
ton granting the license. Up to this time,
If l understand the case-and if | am in
error ! shall, no doubt, be corrected in the
reply Of the learned counsel on the other side-no
thing was heard of but stern and determined oppo-
G6on to the whole measure, as being one that ought
not to be adopted, well because they deemed it to
be impracticable and well because it would be in
furious to their interests but seeing that the public
sentiment at least so far as expressed by the public
representatives in the local Legislature of the city,
thought otherwise recourse was had to other expe-
dents to defeat the measure, and those expedents
were offers to undertake the enterprise of construct
ing the railroad upon better terms than those whose
application was then before the Board aud who had
!
sGers were before the Board: they had them in con-
sideration and the report of the committee, which
hos been read TO this Court shows substantially the
grounds upon which they went in preferrng the APP
plcation then before them and among those reasons
not the least paramount was that of the subsidiary
measure 20 be connected with the principal one, and
which, conceive, was one OF its best advantages,
namely, that of transverse collateral communca-
tons by means Of the omnibus system. The resolu-
ton, however, went 10 the other Board, and there
fresh offers were made; and, as ] understand, the
emily one which seems to look like taking the bull
BY the horns, and meeting the objections fairiy,
by saying we will undertake this precise measure
not mere general offer to build the road, without
specifying terms and conditions, but we will do it
II | am correctly informed, never came before the
Common Council at all But the measure was before
the Assistant Aldermen. 1t was the last hope, the
last effort to defeat measure which they saw the
public had called for, and which few individuals
opposed The Assistants adopted II, and the resolu-
ton was presented to the Mayor. The Mayor, now
ever, differed in opinion from the two Boards OF the
Common Council, difference no doubt honestly
entertained by him. and be sent back the resolutions
with his objections to them and in these objections ne
does lay stress upon these offers. II was right, II the
Mayor thought the Common Council had not given
II full consideration for him TO send it back, in order
that they might have further time to deliberate more
fully upon its adoption. They persevered, howeyer
but in the meantime before the final action Is had
application is made to coordinate tribunal OF the
judiciary for injunction; and in terms this injunc
ton, which was granted by the Judge TO whom the
application was made, is what? Why air, forbiddng
the Mayor, Aldermen and Commonalty-the corpo-
ration--not the two Boards not the Aldermen aud
Assistant Aldermen, not the individuals who were
to act in those two Boards, but the corporation
from making the grant, the injunction calls
it, Of this railroad to Jacob Sharp and others, and
against in any way authorizing the construction of
such railroad in Broadway, or digging mp the soil ,
&c. Now, 1.-THE Court please, in this connection
will observe Nat it struck the advisers Of the Assist
ant Aldermen and the corporation TO whom these
questions were submitted that that injunction never
was, and never could be, intended 70 forbid and
strain those Aldermen from casting their votes upon
the question before them, that being in their iudg-
ment most emphaticaly legislative act, and which
we did bold, and until fully advised by a judgment
Of last resort in this case, and for never shall
fore upon any pretext whatever with the local legis
iation OF the city Of New York properly consider
ed. That question being put TO me, and exercising
my feeble judgment upon the subject, said-"This
cannot be intended 70 restrain the legislative action
of the Common Council. but, if means anything il