The New York herald., 1863-04-23

and the Law OS the Case.
There was intense excitement yesterday in
railroad circles, and among the community gene
rally, growing out of the action of the Com
mon Council on Tuesday evening authorizing
the Harlem Railroad Company to construct .
railroad in Broadway. The movement was re-
garded with universal favor on three grounds
by some as supplying what they believe to be
great public necessity, by others as annihilst-
ing and bringing to nought all the corrupt
practices and maneuvres which jobbing
politicians have been carrying on in Albany
ON the same subject during this and the
last two or three sessions of the Legisla-
ture, and by still third class as pro-
tecting SO literally and eficaciously the inte-
rests of the city. This excitement eliminated
in Wall street, where the stock of the Harlem
Railroad Company was in great demand at ad-
vances Of 10, Is and 20 per cent.
Every one will want to know, however, how
it happens that the Common Council Of New
York attempts to exercise this right Of permit
ting railroad to be constructed in broadway.
in face of the notorious fact that that body has
been by express law peremptorily prohibited
from exercising any such right The two sec
tons of the laws for and against may enable
our readers to understand the matter thorough
ly and to Judge how far the action of the Com
mon Council on Tuesday evening is legal, and
what probability there is of its being sustained
or reversed by the courts.
Here is the section of the act of April 6.
1882, under which the authority of the Com
mon Council TO authorize the Harlem Railroad
Company to lay their rails in Broadway is
claimed:--
Section l. Tho Prcsidept and Directors Of ~ New
York and Harlem Railroad Company are hereby autho-
rized and empowered with the permission Of the Mayor
Aldermen and CommOnalty Of the city Of New York 70
extend thor railroad along the Fourth avenue TO four
the said city the Mayor Aldermen
monaty Of said city may from time 70 ume permit
II is on the authority contained in that SEQ
ton that the grant of the Broadway Railroad 70
the Harlem company is based. There would be
little doubt Of its legality if the Legislature
had not thought proper on the SOth of January,
1860, to enact the following law
Section l. II shall not be lawful hereafter to lay cos
any railroad upon along either
Of the streets avenues OF the city Of New wherever
authority aud subject to the regulations and restrictions
which the Legislature may hereafter grant and provide
sHAii uot % 0eeHltu W hueCt Opefat0
AS far as iad any railroad now constructed and duly
authorized. Nor shall II be held 70 impair any
any valid grant for relating TO any railroad in said
city existing on the lst day Of January, 1850
Sec. 2. All acts aud parts OF acts aconsisseM with
this act arc hereby repealed.
1t would appear, therefore, that the right
claimed by the Common Couacil is annulled in
one Of two ways The source Of power being
transferred from the municipality to the Legis-
Iature, the right to grant extensions either fol
lows that transfer, or, If not, then the right
would be inconsistent with the provisions OF
the act of January 80, 1860, and is therefore re
pealed. II is hard to see how both these legal
dilemmas can be avoided, unless it be held that
there is some secret virtue in this last sen
tence =" Nor shall 1t be held to impair in any
manner any valid grant for or relating to any
railroad in said city existing on the LIST day Of
January, 1860"
There is no doubt that the terms of the muni-
cipal grant highly favorable to the interests
of the city, while no such consideration enters
into the scope of the acts pending at Albany on
the same subject and If the action Of the Com
mon Council possesses a sufficient degree Of
legality it will be upheld by the courts and
sustained by popular sentiment in preference
to the Albany schemes, which are generally
regarded as most bareiaced swindles.