The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-02-15

regard 10 the opinions Of the severs' .,. rro
tbs bsss consideration thai - aepSnenss AT rs0
them am sassnsS u. a,.s vS nae, ossa 20. so' "-
e.ed seoing Of the defendants there 4 no violst
OF the charter o. 1851 there no provsoa requiring
orSddDs sas Of them Gssy
sale IN The latter mode would be highly preudca 70 4
zee which would bring fairly within The Srasp ~
ees NV. ought not to interfere for Il is 10 be o,
sep LEX IL made ., thai as corporate
thorities Of New foft are sm.. '''.Sa o. rus. ::
wards their constituents and therefore, WV s,ound 70
esise other PEI standing IN Aaosssy relation
doing some act 70 the prejudice Of tho parties Hnom
Immediately represents. Il nS', sSere 1Ss ~
S ss ss'', Of 1 kA.S vs. sharp, a. ana esS S
parallel cases. Tho ground, therefore, ny. waio
40 Injunction must rest, must either be that the a.
Giants are guilty Of violation Of the law, Of
abuse OF corporate privileges obligations, OF some
breach otuss which they to the general public repre-
sented BY the people, and which courts are bount
value OF the properly and the magnitude OF the Interests
involved, win, in degree, affect competition at the sale
But that is incident 70 the very nature Of the business
and must give way to superior considerations such there
be. From the facts developed in these afRdavits
Il Is highly probable that some OF the ferries,
At the present fare and vet that thew are
emipeny conducive, not absolutely Indispensable 10
.ne pubic convenience and accommodation. ] can well
conceive Also that they may possibly be better managed
With yex 10 the accommodation aud safety OF
ana passengers II under the dire con Of single concern
with uniform rates Of ferrisge, than If attempts were
made by rival interests in the possession Of the different
ferries TO attract travel to their several localities
by diminished rates Of ferrase 1t quite possible that
sufficiently remuneratiye returns for capital fnvested
would be realized 70 the essees at charge Of one and
han cents, or even one cent for foot passengers and
this view OF the case strengthened by the sat which
sufficiently appears that competent and responsible nev
soDs are willing 10 take lease VI the ferries at that price
TINS circumstance Is one which, made apparent to the
Defendants ought to have bad and ought have great
weight with them N iSiDg the maximum Of ferriage
which the lessees should be permitted to charge But
can this Court in the exercise OF its legmate functions
control the action Of the Common Council in that respect?
This involves an inquiry into the extent OF
lhe tights OF the defendants in the ferries IN question
and how FAR at all, they subject 10 judicial superv
sion and control propose into extended
enumeration or examination OF provisions of the Dongan
them all, and have been presented by counsel with
sufficiently copous abstra OF them statement them
Also contained IN the opinion Of Mr. JUSTICE Ssrcao in
no Barb. 223) The validity OF these charters
is not denied by the counsel for the plaintiffs, nor
so far as they confer rights Of property, If the
defendants, municipal cor poratioD, may lawfully
take grants Of property is claimed that these rights Of
property be invaded tits very properly conceded
that rights Of this character are nvioabe ana tey rest
Tor their security not merely upon the constitutional pro
visions that 10 statute shall pass any law mparng the
obligation OF contracts but upon the immuable pripci
pies Of justice equity which require rights OF pr
waite property 10 be respected, when governments
fer rights OF property they are to
legislative judicial interference excep, La some of tho
forms well recognized by law cannot assent 10 the
proposition that municipal corporation s incapable of
taking real estate by grant, right of prop
erty In the thing granted suppose that under these
charters the defendants have rights ia the MARY
cts the City Hall, the lots Of ground and public lands
the docks and the ferries mentioned therein They hold
them as grantees. az owners-by contract-by title
dividuas Or Corporations. They hold them it is
true in trust for their constituents and answerabs
in proper way to them for breach Of trust But
know Of way in which their grantors, or the sue
OF their AQtofS, lawfully invade
rights. They may bold them certain Of them also
only for certain purposes In such case the right Of
external interference with their administration of them
depends upon the question whether those purposes have
been violated or dieearded But is to be observed,
vae PERSONS the right Of property strictly absolute
and intangible Property is subject be taken under
the paSo au,hors anna Mnr p 70 sy
for public purposes, the right Of the property holder
must yield TO the paramount right of the public Title
property always held upon the implied dtion that
Il must be surrendered 10 the government, either
n whole or IN part when 9 the public n a
Of law, demand. In regard to ferries, am
Of opinion that there Is still farther right
which the public may exercise TO wit the right Of rcgua
ting the rates Of ferrage and Of controlling ferry fran
ches and privileges In the hands Of grantees essees
that they shall not be abused TO the serious or
inconvenience Of the public. II seems TO me that the
grantees Of ferries ferry rights must be deemed TO
cep them subject to these implied conditions The people,
NAV be- own these rights and hold them for the benefit
Of the Of citizens Of which the public is composed
their Representative, OF Iuelf
must 20 administer them as that the rights Of the people
must be preserved. They cannot be conveyed away or
The waters err sns s
ton Of the subjects constituents Of the government
and they cannot be transferred, even the usuiruc
ment Of that control over them which is essen
tial to protect and preserve the fnteres@ OF the
Se ps are and accepted
Will such qualifications II Is possible that different
question might arise, it was established that as between
rtswu rfha axahl
was actually paid for the transfer convey
ance Of ferry righnot only present but prospective
When such state Of facts presents itself II wiz RAISE the
away s! Or 'R relieve itself from sb0ss rights and
(Which belong :.s s due 70 the
and well being (Town Of East Hartford Hartford
Bridge Co.. 10 How. U s. Rep Sill Gozzer vs. Corpora
Warren Bridge, II Peters U. 8. Rep, 42l. Lansing vs
Of New York, cowen $751; People vs. Morris. Is wsnd
36 am therefore Of opinion that whenthese ferries
ferry rights Qhe distinction between which shall
men and Commohalty Of New York. by the colonial
governors Dongan, Cornbury and Montgomerie, they
oh the .n same sSe 20 which hsys
that this right passed the change OF government
from coory to State, to the supreme power In the
by the legislature acting for the people In their sovereign
Capacity II 10 in strong confirmation OF these views that
both the colonial and the STATE legislatures
ing these apparently unqualified grants, have repeatedly
enacted laws regulating the rates OF ferrage over these
very waters, as well as over other tide waters the
rsb 10 establish ferries which has been conferred
BY acts apparently unqualified In their terms. The
statute books both Of the colony and Of the State are fun
Of instances which this right has been asserted ana
do not deem il necessary cite them in detail II s also
worthy Of observation that the Cornbury charter W not
the others granting leave TO the Corporation OF New
establish ferries for transportation under such rates
as has been usually paid adds or which At any time here
after shall be by them established by and with the consent
and appreciation Of Governor and Council OF our said
province for the time being" 1t seems to me- therefore,
lint Notwithstanding the defendants should under the
sale which they notified, convey 70 the purchaser
lease these ferries unqualified OF silent az TO tne prices
which should be charged except maximum rate speci
ed Ia the notice. that these rates would still be subject TO
legislative supervision and control and that he sssces
would take the came subject TO such Qualification may
be ead that the legislature under pretence OF regulating
the rt might practically destroy it, by reducing the
rates Of errnge 70 n-remunerative standard This
is possible. Like all other powers Of similar charac
ter--ke the taxing power--it 10 susceptible OF abuse
IL not 10 be presumed that the Legislature will do inus
ice II they prove recreant to their duty, the remedy