The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-09-16

0The Nicoison pavement" say the sub.oommit-
payemente. For instance, its Comparative Noise
| lessness and freedom from dust, ana It's greaS
saving in the and tear Of horses and venicles.
Horses do require TO be Bhod often, and their
hoofs and legs are In better condition than those
which travel over stone pavements. The saving
for wagon or carriage bills for repair is very con,
| siderable. II can be more easily Kept clean, anu
Soa ess oSSi ob srSeS so1ses e Il enables them to
! draw loads with greater ease and speed, thereby
! Mr. Kneass' opinion is expressed in his afddavits
I'm this case III of opinion" says he, "that this
out noise that the wear and tear of rolling stock is
| very much reduced, and that It is almost wholly
free from DUST and that for these reasons it is
very desirable pavement for Broad street. between
| the points authorized"
III desire to say that ] found q highway in
Chicago so paved had not been repaired for seven
years, and the kind Of repair which had been done
in equalizng the surface which i'm some places
had worn unequally. In no case did learn that
the pavement required renewal, although laid
seven years and it was because of this that have
stated that sad pavement needed repair, which
OF course Is to be accepted with relation TO the
SUBJECT matter and comparatively with other
81 say there is no difficulty in access to gas ana
water pipes, and learned from the engineers of
Chicago that this paw ment was frequently re-
moved LOT TINS purpose and easily restored; and
although made an examination with references to
thls, found no imperte 3tion In the pavement"
After full, ,protracted, and careful consideration
of the whole subject the 9th June last the COM
mittee reported "an ordinance authorizing the
paving OF portion OF Broad street with the Nicol-
son pavement" which, with amendment in
Common Council, was passed unanimously by
both Councils on the Sd july and was approved by
the Mayor on the 5tn, and is the ordinance under
which the contract by the Department OF High
ways was entered into with Charles E. jenkins
and Jonatben Taylor, the terms OF which are con-
taned in the articles of agreement of 10Th July last
between the city and those gentlemen.
Mr.. Guillou, on behalf of his clients, protested
against the laying Of the pavement and informed
Councils his clients would contest the legality of
the ordinance and the consttuuonality Of the act
OF Assembly of the 23d March, 1866.
These are substantially the questions before me.
II Is easy to say an act of Assembly is unconstiu
tonal, but it requires very clear violation of the
fundamental law TO be made out to induce a Court
to take the responsibility of declaring it to be so,
9no, OF course, nulltyrg all proceedings under it,
Inc act itself was framed with the appreciation of
the property owners on Broad street, and of the
citizens at large. 1t was intended to secure the
freedom of great avenue, eleven and one half
miles in length, from all obstructions OF every
kind. 1t intended also to protect Broad street
from the Central Passenger way and all other
railways forever. Councils, with only nine dis
to pass it, which they did This act and its provi-
sions were hailed by ell as vice and beneficent
ana as securing the greatest street Of our city
public drive, carriage-Way or avenue for all time
to come.
If it be unconstitutional, then the railroads and
other distractions must remain, and any railway
which can procure the Legislative sanction may
lay its tracks over its whole length, and steam
in It's most Objectionable form. l have examined
the act carefully, and believe 1t to be clearly con-
1t is the settled law Of Pennsylvania that high
ways are universally the property of the State,
and are subject to It's absolute direction and con-
troll The State as the legitimate sovereign may
dispose of them by their Representatives, and at
their pleasure. Broad street is highway, and
there are upon portion OF railroad tracks which
can be taken by the exercise of the powers of emf
nent domain. Upon these acknowledged princi-
pies this act was framed.
The first section authorizes, empowers, and re-
qaares the city of Philadelphia "to occupy and ap-
propriate Broad street in said city for its entire
length as the same is now opened or may here
after be opened and from curb to curb thereof,
cept as hereinafter provided, for the uses and pur-
poses of a public drive, carriage way, street, or
avenue, and to improve the said street or portions
thereof from time to tine, and in whole in part
with such mode of pavement, paving, macadam-
lzing, gravelling, or other roadway, may in the
judgment of the Select and Common Councils OF
said city, be best adapted to and for the and
purposes aforesad and for that purpose the said
Councils shall have, and are hereby authorized to
enact such ordinances or resolutions, with such
conditions or stipulatioas may require the cost
OF said improvements to be paid for by the owners
of property abutting upon said street."
After the decision in the Commonwealth
ts Weeds Wright M III 49, hoW is II possible to argue
tionaR Under the second section of the act of
April 1890, the Common Council, then the legisla-
ture OF the city, authorized to pass ordinances
for levying of taxes for the purposes of "ghting,
watching, watering pitching paving and cleans.
ing Of the streets and alleys OF the said city," and
"regulatng the time, order and manner of estima.
ting assessing, levying and collecting OF the said
taxes, and of lighting, watching, watering, pitch
ing paving and cleansing the said streets, lanes
cal egisature taxes were levied and collected and
the city was lighted, watched, pitched, paved and
cleansed, and under the word watering water
works were erected to supply the city with water
magnificent works at Fairmount. These great
and extensive powers were to be exercised by the
Councils by means of claws, ordinances, regula-
tions and constitutions" enacted by them as
legislative body.
How much larger and more extensive were the
powers vested in the city seventy. years ago
than to be found in this much abused first Sec
ton?
The section first appropriates, through the
agency of the city, Broad street as public drive,
street or avenue, which being
proper use of a highway is clearly constitutional.
The next provision is the direction TO improve the
said street portions thereof with such mode OF
pavement, &c, as in the Judgment OF Couccils
may be best adapted to and for the uses and pur-
poses Aforesaid" To this see no objection. Ihen
the Councils are authorized TO enact such ordi-
naI ces or resolutions (Which is their usual ordt
nary and only mode Of proceedlng) "Wlth such
conditions or sttpulaltOns as may require the cost
Of said improvement TO be paid for by the owners of
property abutung upon said street," thus limiting |
the taxing power Of the city in this to those
who are directly, Immediately and largely bene.
nted by the Improvement There can be no doubt 4
mo-. ne rs provision * CONSTITUTIONAL and this dis
poses Of all that part Of the act which is material
to the question before me OF affects the present
plaintiffs.
There is, however, proviso "That so much OF !
81 DAD street as lies between Willow and Prime |
streets shall be subject to the operation of this
act for the period of three years from the passage
hereof" that is until the 23d May, 1860.
This portion Of the Sweet Of course must be freed
from the railroads laid in IL to make it public /
drive through the whole length OF the street. From
Market street TO Willow street, Broad street is /
practically not highway at all, as any one may |
ind by taking q carriage and driving over it, For
two squares at least the street is not only oosruc
ted by the railroad tracks and turnouts, but by |
loaded and empty freight cars, and coal cars stand
ing or moving on ali parts OF them. II is a dis
grace 10 city TO have so noble street rendered