New-York tribune., 1876-12-29
A RAPID TRANSIT VICTORY.
THE Gu,RERT ROAD SUSTAINED.

| UNFOLDING THE RIGHTS OF THE COMPANY
| CONFLICT win THE CONCLUSIONS OF JUDGE
| sEDGwICK.
The Supreme Court, General Term, has de-
cided that the Gilbert Elevated Railway Company Is ar-
thorzed to build road the route prescribed by the
Commissioners Of Rapid Transit and IN the manner ap-
proved by those commissioners, though this involves
serious change the original plans of the company
In this decision the direct conflict with
the decision OF Judge sedgwlck OF the Superior Court
point The opinion is given by Judge Brady Pre-
siding Judge Davis concnrrng while Judge Daniels dis
sents. taking substantially the same view as Judge
| sedgwick.
The question arose on n motion appoint commission
era 10 set value on portion South Fift-ave, for
mery Laurens-st TO be awarded 10 the owners OF the
property fronting IT, The law gives the company the
right to certain city streets but this portion OF
Laurenss has been acquired by the city, but like
a few other streets and portions of streets Ia dcd
Gated that is surre cred to the public without COM
pensation traffic. This is irrevOcabe surrender
but the adjacent retain their fun right OF prop
eTy the subject only 10 the use for which they
have surrendered it. On this motion there came mp all
the principal questions argued in the Superior Court
the right Of the Gilbert Railway Company 20 be con
sitiered company kind OF structure to built, the
effect on the company the Rapid Transit act and OF the
constitutional amendments OF 1879. The case was ar
ged by c. p. Lowry j. X Porter, and Charles f. stone
for the petitiOnng company, and William NJ EVarts ana
t.. Anderson
tion. 4
The following IA the substance of the prevailing opln
ion, delivered by Judge Brady:
rho Gubet charter Of 1872 Is not changed in rs con-
sgHsto IN es ny rSSi bsr 0 ' at anl 3h% passage
Rapid Transit act OF 1873, II the company GOhstruc'eu
t6e Gilbert Elevated Railway; but the Franchise was
secure and could be employed In the manner desSa'eT
The company, In other words, was cgeiueu Win az
nGcesejS n Was an existing company, requiring
fo
sary authority out the purposes OF us lheoo
ration. Tire 36Eh section Of the lRlu lrahslL C' ~
rognized tins Indirectly; It provided that whenever the
rone or routes determined upon by the commissioners
to he appointed undor IT cOncided with Inc route OF
roues covered by the charter OF az existing corpora
don formed for the purposes pIuNded or D) ,nc uV,
such corporation should have IKE p2Wef 70
and operate such railroad or railroads upoh the
fuldin,rrt OF the requirements ana condt3 condlt33hs
imposed by said commissioners ny hi COZ o not
specially formed under tic act lhN WIS hos y
right gwen q create construct road or ral"-Ior
that had already been grated ana FecIIeu, ~ uo
charter OF the company 10 tA.'Sla ,In " sron,
that required by its charter IL lutholiG.u uE ~
ruginccrng and IN the mechanical nctas 0I the 2upe
structure II the company compiled WIN lhc CDnuittoo .
i5viiy unused by the act and though magnitcd into
"A ,upuspd natal departure from the original charter D.
C0nsutrn Il Is in effect nothing more tAah lu7 me
act 1875 IA not local act We nave so
ctted ON general laws win winch u was Ietueu 70
comply This general act-ile sroalled Ramd transit
existence OT tae company ar already
suggested and by general Not spteih pIuSlroh pID
, a A. nyaIust the cOIs.q quenCes which might ensur,
eyisup author ty legally aud censutonaly con.
1900 re Vas by conflict endangered ntorfered
win Ind 1 mgKe IT, exercise certain, extended 10 1t bc
rvat o ,ecru r route established by tie commission
eT, In compliance with lhef requirements lho ChtCl
was moi TO change ut. entire character O the FRANCHISE
IL was 10 c an elevated road, though ih"fent PERHAPS
In ia constructions, mode oi transit and Pi3pek pow
cr The Legislature lad reserved {" hH'I hS Sse"u ~
og the OF Incorporation the power To- aT uI ivP'i
tr artcr anI had the uud"nbted right Therefore To
mako sUch notifications IN lhr slHeii,4' a. wei. oiD.u
c,rui al either tO the phnc raoiy tht blel Ptsth@
s,l arconplishmcn Of the end IN view. The question
a. to such power has brrn considered ana passed upon
Toe change from tubular To "a opear OF covered fll
,,ay yUgId d. within tlis pIwrr. IL would affect TIE
model 20 be employed, ana tht iu~e IN Which Iue
atseIEisc. alsblSi.aS Thc rgEt to the benefit aud
adj antAsr Of tho result would be pTser ell ana ne ir
,..sr, ..- made ChauCci or modurAilnht uI cAl1hy
charters by winch new elements were nlronucsd and
nv ,girs m.rsnod upon tAcm without violating CON
.uiliUual ErDyisl0ns prohibiting ~" cre"Iloaa Ga
,cnsirz large number this point,
Juige Brady continues; The provision uld,r lhei1,un
,ted ~, Railroad act the rfcci 1t, 1t relates
10 the cuiuU1ny, ~ that dtcftir. the rGut ~ "y ci-
& ~ I, us, of s franchise, n neither changes its
,rclcr nor cniTgrs IT. power or frnnrDfe II rcc"g'
.izss TIE ushtr ui iAn comhhl as aa cAst'As one
bH x neral ploYl-i9u, aud protects then,
D1d by 80 dUins prevents conflict which
might otherwise arise from thu eNcrce 81 tA0se figt
.crurcd suggested ny The acl oi u'oI i'rh,Ioh anu
.nosc uneudaur tnsr-oL II dos nos rufroF to bo AN
amendment II t.e act oi Incorporation "a ,,Iha l ~
effect. IL h Ieco-h'Ioh hhd h9' tl'iYi o. lI,.
e huis the frauchse rcna ~ he same although lc
made of ID, Use has Dy, iuy,ln sosUr respects iba
change "a, lcgsainie res-iNca tne Ilsn' 80 '"ne 1hn
La mad, H. IL daer, therefore cs't tiaLy Hom tne
I rztss.n
.irliiuus OF proposition tht tHr aci OF 1879 fc
au 10 company WAS Iepus suaAt io lhe Constitution
fl must also s kept IA yicW tnat pi "cI-csab-
t.EcI rae hIs s,e nu act o le Loslt tiurG Will NOT
h declared uucul,ti.utlUI unless /. is clearly rrpug
,g,f 10 snc provision uf tine Constitution The rude ~
,I. TOO we'll settled require tI. citation Uf S5ca
In Inn. cas-, clear violation UI ctEHututi9uH pro-
Vision is npt only not rHuTn but t must bc cithr upon
general prucpc- anu JuuE'd cases tiat mons has been
| committed.
Rad transit Il must De admitted, In c"ncuSon X one
al ne arcts VI our municipal C which our people rt-
,y M uf ~, nj IN plrHncc l. involves public I'M
,,r,y,ucut aud pnbic Improvements always involve
sacrifice The greatest good Of The greatest number l.
,iy the grand pugpO5r Of good government anu tue
rluygrltiyeiy few who are injured nre required
to submit the laws Ut Ter rutrs II
/. tu. consciousness tRRt tnrrc are some
"a our npppir vi by the construction ~ TIE Gilbert
IryIt,.d Railway contemplated, viii be injured IN
which InpErs the consideration OI this matter AN un-
I'I'I..u duIy and imprrssr, the conviction that n
me 'rs ,o award ample compensation 10 property
rt along ihc route nd Eccu provided Ouf nse ot
jngfrr vouid have bpun grathc. The law as u exists
noe not uIire L4Is thc company aui ths court
r,, neither .rgsltC undo legislation Which docs
MOI ,uitl WILI the provisions oil GAO CbhSdlHiIui aud
vb called anon Ne clare whether an ac o. th' Legs
f . or IN not valid must be governed ~ II Is Dy tdc
uriucIpl,, applicable and controlling. II follows nom
tt,se views that the application should be granted
Ordered accordingly
Three Coniuissioncrs OF Estimate and Assessment arc
TO be appointed on twoilays' notice.
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,pyn EJDE ~ PpD1DIFt Y