The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-06-01

ers pas engers there' AND his o A1s bses oonns
enjcy~d and csad essentially up 10 the pres,mt 6ms
Under the nunscpil gsrsrv'aesa has "a v"kd III
cs snpevssssOm ana d ect.on Of he streets and hiyhwlys
Of The cay II has established and lA street., pro
scrbed their width and graie paved them with stone
wood or iron, allotted parts thereof Tor esaiks aud
oher for track Of vehicle enacted and eafo ced
ordn against eDcumberDg and obstrucing them be-
yond tue limit of the corpora xl con-tructed sewers
In them dug and inserted and water pipes aud In
short, ivey managed and controlled th.e nsruc
ton, amendment AMI individuals have had con
troll over or interest In them except nee RANT OF way
That there powers hnpe bern riehfh ererised by the Or
poroiios has MT been questioned d. think cod be-,
ioaether hollis The fee If the streets traa caIy>f
sgth dsfy resped 10 them r TIE public 81 long
those exercising the controlling power put nothing 10
them to create q public nuisance, there was no
breach Of trust or yiolAt on OF duty Anaorizins
nothing 10 hinder, obstruct, or Inconvenience the
public In the enjoyment Of their easement
there was no excess Of power the exerc-e
could direct Broadway 10 be paved with granite ioa
they could insert or permit the insertion of rats
or the making Of grooves In such provided the
free and common passage Of the public not thereby
essentially impaired. They could direct aud license the
running or vehicles n The street for the public
and this whether bio ks OF stone iron, iron rails
or IN ordinary Carriages In the modern and i'm
proved vehicle, rail carr they could designate part Of
the street for the track OF carriages and auoher for foot
passengers; amt also, under their power regulate
prescribe the track 10 which particular description OF
vehicles should Thew could con.ent permit
or number II individuals to thei improved vehicles
upon the provided that thereby the public
nconvenenced nuisance created. All that the
ration has assumed to do In the present case to yield Is
permission to an association Of persons UNDER ami oompy
ing 10 all respects with It's direction 70 inert roo rail.
and make grooves In the pavement " the street. aud
run their carriages thereon for the public tave
and convenience; they, as In the case OF proprie-
tors Of hacks and omnibuses, paying license
fee for each car. see why the Corporation might
not righuIly do this, usarpaaon
Of power call for the preventative OF the
court The Court has found that In the present the
railway would not be nuisance, or specially injurious t.
the plaintiff railroad In the streets Of city Is per
public nuisance or an invasion OF any private rign,
vested In the lot owners fronting such Streets and the
thereof for ra and rail cars, with the assent Of the
local body having by law the reguat OF high ways
neither pablo or private wrong the Lexington aud
iIton agt New York Harlem Railroad Co npany Paige,
Ill Drake against Hudson River Railroad Company,
Barbour 524 Baptist Church against Utica add S,heuec
dy Railroad Company, 8 Barbour 3l6 Chapman against
Albany aad Schenectady Railroad Company, 10 Barbour
Company Ii Bai bour 45o; Heutz against Long Island
Railroad Company, Barbour ESQ., 1t may DO conceded
that the corporation has no power TO authorize the
exclusive use Of q street by one or any associated
number OF persons but adapting is surface 10 pc
culiar mode Of Conveyance and running q there
than the running Of line Of omnbuses any other de
scrpuon OF carriages. Indeed. Il furnishes additional
facilities for passage and passage, and Is in proper
dver,ng the streets from the purposes for which
they designed, violating the right OF any person
1t is grant of franchise in any legal but
revocable permission adapt and modern improved
class Of Carriages upon the streets under the direction
the same body, having coufessedy the authority to regu
late the running Of other carriages for the public travel
yielded up to the exclusive enjoyment of pvae persons
think the corporate power undoubted grant psrms
sion to lay down rails In any Of the streets Of the city,
when public nuisance would be thereby created and
carriages thereon, aud that the consent sharp
Of illegal athory. This appears, also 70 be set ed
BY authority In the case OF the Lexington Railroad
vs.. Apologize, e Dana, 2ss) the Court Of Appeals
ton the genera principles of the Law how
far city corporation could authorize railroad company
tho public Streets and was held that the munich
pal government could authorize such A similar
view expressed and maintained In Hamilton against
Ssr and Harlem i. Rsd
q Barbour 5ts It Ia true that 10 the latter the State
Legs ature had expressly authorized application 10 tho
municipal body for ts But this Circumstance could
ha no bearing the question 10 where the authority
LOGGED The Leg did assume TO confer
and without the consent OF he oorUoraoo The .cs voa
have been invalid. Whatever Of right the railroad
panies bad 10 down rails u the streets wholly derv
ed from the consent Of the corporation.
Therefore, up To April 1854 (when An OF the Lngs-
ature passed With tue view Of queting the railroad
controversies which had arisen in the city of New
thorize permit the running Of rail- the
public streets, and this without the consent Of tho
Of = iesiss,,ve character Il was enclusivc,y With
the Common Council and with whose legislative discretion
no Court Vas authorized 70 interfere either on the com
interfere there had been abuse misuse OF tbs
porae franchise, and there had been II the act
planned Of authorised. Private persons could not
interfere, cxce the authorized tended 10 ne creation
Of public private nuisance specially njuio them
age nor could they interfere Il ali 70 prevent
consequential injuries growing out Of the BY
the municipal body Of lesal act Nor do ] think that
under circumstances could either the Attorney Gene
raj or dividuas invoke the extraordinary power OF Q
Court Of Equity TO restrain and control legislative dscre
sy 1 a. ss~ oomramg pcep Of eso.ee n ts1p o"s
hdnds, ought not b b. permed unicS Independence in TIE
d9utmet ef ecn municipal oorr,'men Z % BE- reea,ded
Empty hiNp b. snuoke ne pvncfton Of e judiciary
ooains oovrry iegiiation iegsdtors-in fleet 10
noi leqisiotiN dscreticn, and pvenee Ne enasracnf
Of ordinances Aa shall ~ conform 20 TIE judicial
discretion. Yet this done 10 this No case can
be found where court has attempted TO prohibit inter-
ere with the Legislative action OF municipal corporation
no, even where there want OF power 10 the body
has not been heretofore pretended that tue Corporation
has not the general controlling power the streets
der the direction 81 tho Common Council who, by the
several charters az the city, uuted the legislative
urged that the consent Of the Common Council e ay o~
rails and run thereon Il not embraced within tho gen
cra poser IN control and regulate tho public streets
Again, that the act In question: the streets public
property beld In trust the Corporation AMI payers
breach OF trust IN the Common Council, for the
con that consent sss given TO sharp and socaes,
when offers were made oy others Tor the pr ,lege much
advantageous pecunariiy 10 the city again nat
the resolution Is something more than consenths'
not ordinance, mere revocabIe permission or H.
ssnse, bat In i essential features contract which the
powers Of the Cor surrendered TO indivd ias
rrevocaby The viev taken In the present wS that
II not of legislation, but grant Of franchise
which, when accepted, became q contract rrevocabe by
The Corornucn ana because was thus trrevocaole, an
attempt restrain the legislative discretion OF the Con-
Council therefore VOID Toe Corporation vas
enoined, the ground that there q
threatened breach OF corporate trust and both the Cor
ration and indi vdual pcrpetualy enjoncd the
radically changed ground that the local governmen had,
BY Aiming 10 i certain conditions and p1latons
which accepted by sharp and his grantees,
rendered tied is legislative capacities for all tine
come have said that entertained doubt Of the
raj authority OF the Common Council 10 grant 10
assocaon OF persons 10 lay down rails aud
cars on thcm In tbs streets Of the city, and noe I'D that
do MOI think that the power illegally exercised In
this case, TO make legislative action VOID The
action has been but permssve In its nature The num-
cpa legislative body has entered into cours la
vested the named 10 the resolution any
vccable franchise OF pri riegys. The Common Counc
might The next day 90 the nert year have repcaei
abr Tsef the ordinance, and ~hdravn the perml sion
The esisauve power 81 the Common Council caanos Ne
barter ID away, and will remain whatever may do.
The oca legislative body has not expressly PROGRESSED
renquih but " the surrender had been formally
made, 10 you'd have been nedccsud and presented
impcdlmen IN the future else Of ~ Judges
havs construed vcsolufon al aruu