New-York tribune., 1876-06-27
CLOSING THE MID TRANSIT CASES.

ARGUMENTS OF JAMES c. CARTER AND JOSEPH ii.
CHoATE IN REGARD TO THE GILBERT COMPANY.
The closing arguments of the case of the
Sixth Avenue Railroad Company against the Gilbert
Elevated Railway Company were begun yesterday be-
fore Judge Sedgwck in Superior Court Special Term,
James O. Carter leading with argument in behalf OF
the rapd-transit road He spoke chiefly on the legal
questions presented by william NJ Evarts in his opening
argument against the road leaving other points to Judge
Porter who il to speak to-day. He presented very
briefly the history Of the defendant company which, he
sad out of praseworhy effort to meet the public
demand for rapid transit He then examined the ohec-
tons to the acts under which the Company proposed to
build road in sixthaye. He assumed that tie
original incorporation not disputed but the
only questions whether not the Legislature had
the power modify that incorporating act and whether
or not had done sO All incorporating companies
subject to police regulation by the Legislature In
regard the Of carrying their business as
1t affected the health and safety Of the citizen But adj
mittng that the Dartmouth College case had estab-
sned the fact that incorporation contract, the
great strides of corporations which claimed to be
superior to law and to control legislation had so alarmed
the people that in almost every State constitutional
provision made part the contract the right OF the
Legislature to regulate and modify all charters This
power expressly reasserted in the general law OF
this State expressly reassered in the charter OF this
Company. and it was this power which was exercised
under the act Of 1875, in changing the form OF the
structure which this road might build
But it was claimed by the plaintiffs that the Legisa-
ture had exercised this power but had delegated 1t
by appointing commissioners to exercise It, Admitting
that the Legislature had right to delegate its legsa
tive Judgment il had been from immemoria the custom
to delegate under general local discretion to local
bodies to municipal bodies TO the extent OF passing ord
which involved fine and imprisonment, TO
boards TO commissioners OF railroads (who had In
one case cIously similar power TO that OF the commits
-oners in rapid transit acts to lay out routes 80 that
they would do the minimum injury property and to
other local boards II was not the couferring OF
discretion which unlawful delegation OF Legisla-
such delegated discretion That done In bank and
insurance charters and still more subject 10 local discle
toB were railroad charters under the general act.
Joseph III. ChOatc replied on the part OF the plain
tin company After speaking OF the vital Importance OF
the case the plaintiff II question that M n
aced the very OF the company he considered
the nature character of the rights in the casethe
pany and the rights OF the abuttng propertOwners on
Tie street 10 the highway and ITS use MI Cn0ate
claimed that the Elevated Railroad was an eneumbii,ce
which amounted 10 actual taking away OF q portion
OF the street and that there power in the Legs
afIire 10 grant any such right without payment for
the property taken and for the damage caused TO the
abutting property-Owners He then took up consider
tion o the proposed 10 be erected and tue na-
turc OF the damage which would result from its erection
Avenue Railroad Company was then dwet upon, ana
the special damage that would ensue to the company
was pointed ont At this pOlat Mr. Choate broke on Lis
argument until this morning.