The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-01-30

and ordinances a. It shall from b. TO time deem
necessary and proper to ngula.. cackney coaches
carriages, and their rates OF fare Or carriage re
curing the owners Of such hackney coaches or car
rsges TO have license from the Mayor Of the city for
the tine being, under the directions OF the Common
Council" Il r. g. 446, sec. 272) 1t seems 70 have
the terms Of the resolution the defendants were al-
thorixed to run upon the Broadway Rsilroad would
be +" carriages within the meaning Of the term ~
used in the statute. Accordingly, it is stipulated
date Of opening their railroad, the annual license
fee for cash car now allowed by law and shall havea
license accordingly" lSee opinion o. Duer j.. above
cited; also, Drake vs.. Hudson Railroad Co, Bari,
538) Assuming that the cars TO be employed by the
defendants in operating their railroad would be
carriages, and a. such would require license from
the Mayor Of the city, 1t Is extremely questionable
sae mao .ne poSer % sr
years at least such carriages or cars should be Il.
censed The license is TO be given by the Mayor Of
the city for the time being. The execution Of this
provision in the resolution would require the Mayor
Of the city, whoever be might be, and without any
reference to his own judgment discretion in the
case, to issue license for all the defendants cars.
In STIMULATING for this think the corporation has
transcribed its authority. But, without insisting
further upon this point think the more fatal 0bec-
tlon upon this branch of the il that the copo
ration has undertaken to deprive itself Of the power
conferred upon it BY the Legislature in the section
Of the statute above cited ITO regulate rates OF fare or
carriage" The associates Of the Broadway Railroad
are by provision in their contract with the cOrpO
ration authorized to demand and receive from every
ther five cents Although the Legislature has declared
that the corporation shall have che power and author
ity, from time to tlme to regulate the rates OF fare
to be charged for the carriage opersons the corpor
alton has said by this resolution, that in respect
to tie carriages which may be employed by the de
fenCants in operating their railroad, that power
sball never be exercised This 1t could not do. The
members of the Common Council by which this re.
Init al ~ tl.,,at 10
invade the legislative power OF their successors.
Ibis objection, in q practical view, at least, derives
great force from the excusveDese, which is char
scteIhtlc feature of the grant. Whether Il was in
tended not il is obvious that If the grant takes e.
feet ct all it must operate as perpetual monopoly
Its privileges are perpetual, or IL not, OILY be
extDRuished on the refusal of the grantees 20 pay
such license fee for their cars the corporation shall
exact, and then only upon full indemnity on the
part Of the corporation. Practically at least, they
aIeexclusve too; no one will seriously contend that
the corporation would have the power to authorize
the use OF the defendants track by any person
against their will. And although the abstra Il right
to lay another track might exist yet in fact the thing
would be impracticable; so that the defendants, If
they can secure the benefit Of their grant,
have secured perpetual monopoly Of the privilege
OF carrying passengers by railroad in Broadway.
What If the corporation, for consideration deemed
adequate-as, for the sake OF the comparison, the
sweeping and cleansing OF the steethad granted to
the prcprietors OF single omnibus line the privilege
OF running their carriages forever in Broadway, with
the right 70 charge specified sum as fare, without
reservir the right to regulate such fare-w0uld any
ole hesitate to say that the corporation had
cended its power in making such contract7 Sup
pose. further, that the fare which the corporation
bad thus authorized the omnibus propretors to exact
had been ten cents for ca ,h passenger, when it
form the same vice for six cents would it not be
insisted that besides going beyond s authority, the
corporation had been guilty Of wanton breach Of
duty And then, If the feature of excusveness
IN fhn Int tho NO
might enjoy perpetual monopoly of the carriage OF
passengers upon Broadway BY omnibus, could any
tribunal fail to declare the grant illegal and void
The impiopristy Of such grant might be more
glarlpg, but, upon principle, cannot sse that it
would be more Objectionable than that under consid
GRAFTON. An attempt was made to give perpetuity
to the association to be formed under the provisions
OF the resolution by declaring that, in any as
socate should die do any act whereby his interest
in the association should vest in another the assocs
ton should not be deemed to he thereby dissolved
but that successor in interest should sand in the
plae OF the associate to whose interest he had sue
| ceeded. l do not think the object Of the parties
could be effected in this way. am not aware Of any
rule Of law which would bind the legal representa-
uSes Of an associate III case OF death, the assg
ME in case OF insolvency. TO become ssockholder
saDdif IL the place OF the associate to whose inter
ct lie bad succeeded. In such case suppose he
would have the legal right, as in any other unncor
pora,s association, have the business closed up
end to receive his share Of the assets But whether
this is or not cannot that this provision can
vate the graft itself 1t is in no respect necessary
| 10 support the othsr provisions in the resolution.
Though imperative. as think it wonld be, the other
| provisions i'll the resolution might very well stand
| without IT, II otherwise unobjectonable. Nor do l
tain the resolution violation Of the provision in
the charter which requires that contracts for york
to be done shall b made by the appropriate head of
the executive department. This provision, as I
understand it, only relates to contracts which would
involve liability to pay for the work to be done.
Al agreement as in this case to sweep and cleanse
street. not for compensation 10 be paid, but a.
the condition upon which the privileges specified in
the G. ntiact are granted may az 1t seems to me,
very well be made by the Common Council itself,
without the Intervention of any Of the heads Of de-
partmebts. Having come to the conclusion that
the resolution in question is not within the powers
conferred upon toe Common Council, and is, there.
fore, void, have not felt myself called upon 10
examine the questions OF fact presented by the
peadDgs, and TO which the evidence presented upon
the trial WAS directed, with the care which their
importance would otherwise require. As to the
effect CT the proposed railway, great diversity Of
opinion evidently exists among the citizens Of New
| York. large lumber OF witnesses, among whom
are gentlemen In whose judgment on such q subject
should have great confidence, are Of opinion tina.
II would be great public benefit, and in respect
iDjurious;. while quite as many more, upon whose
opinions should quite as willingly rely, think the
proposed railway would prove nuisance not to be
endured Under these circumstances should not
feel myself justified In declaring that the sonstruc-
ton OF the raad would create what in legal effect
would amount to public nuisance yet may b.
permitted to aSd, am not without strong sppre-
beDsion that 1t would prove greatly injurious to the
owners OF property especially in the lower portions
OF the street am inclined to think the weight of
the evidence tends to this conclusion. In respect to
the circumstances under which the resolution was
adopted, do not think the evidence would warrant
the conclusion that the members Of the Common
Council who voted for the resolution were governed
by corrupt motives OF acted in bad faith. And yet
the pertiDacity with which they persisted in con.
ierring upon these defendants privileges extra
ordinary in their character, and which are sup
posed at least to be Of very great value, is cacu
lated, it must be conceded, TO excite hvely
suspicion. . O'h her propositions. apparently much
NOE favorable both TO the corporation aud the public
in their terms, were before them That
they shluld reject thee, and adopt the PROPOSE.
ticn OF the defendants, only he accounted
for u the members OF the Common Council
who v0rod for the resolution are TO be acquitted Of
dishonesty upon the theory assumed by the counsel
fer the defendants upon the argu nent that they had
no confidence in the good faith Of those who made