The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-12
N07SEAT NO FARE.
Formal Opinion Given by the
Corporation Counsel.
THE LEGAL ASPECTS OF THE CASE
The Powers Of the Board Of
Aldermen Defined.


relation TO the powers Of the Common Council over tho
horse railroad companies II will be seen that Mr..
Whitney holds the view thar the Aldermen havo an
udoubtcd right make any reasonable regulations as
TO tho number OF carsto DO by each company and
10 impose penalties for noncompliance. As II now
appears that the city authorities compel the rail-
roads give proper accommodations for the travelling
public II is TO be hoped that some definite action will
be taken without delay
OYrIcx or rHE COUNSEL TO TIKI CoRroRArIoS,}
Nxw YORK, May Q, 1876
FnK HONORABLE THE CoxMoS COUNCIL
GExTLEMEx-0n the 10th or February, ult, tho
following resolution was adopted by your honorable
body
Resolved Tina. the Counsel the Corporation DO, and
his earliest Convenience how far II all. the
sss bee cay s s s
State whether legally In tho power Of tho
.y
ss a M IN as
rate q Fare from i've 70 three cent? from sx 70 eight A. NJ
o. the class Working people whS are com
and returning in the evening
AS some OF the questions thus submitted for my con-
sideration were of considerable difficulty my answer
has been necessarily delayed The first inquiry con-
tanned In said resolution Is how far at ALL the agree
made between the city the several city rail-
State laws Prior 10 the year 1854 the Common coun
CHI authorized tho construction and by different
companies OF horse in the Second Third Fourth,
Sixth, Eighth and Ninth avenues aud also IN Broad
way Such railroads were accordingly constructed and
are now IN operation, either wholly or partially under
the authority gwen by the grants OF the Common
Council ali SAID avenues Soon the ma king OF
ncsc grants the question raised whether the Com
mon Council was authorized by law TO make the same
aud protracted litigation ensued in reference to the
grant Tor railroad in Broadway, lasting during
period OF nearly ten years II was held by quite num-
Der Of the judges OF the highest in this city that
the Common Council had such authority, but u was
finally settled by the Court Of Appeals that such view
Council could not authorize the Of street
railroad without the previous sanction OF the Legsla
lure DAVIS vs. Mayer Duer AL ID, 5la; puer
i Barb 1893; II Barb, 4as; Abb, 22o ~ New York.
GILL
The final decision OF tho Court of Appeals in the case
OF Mhau w. Sharp was not rendered until tho year
1865, but pending this litigation, the Legislature,
the 4th OF April 1854 passed nm act providing that the
Common Council Of the several cities in this State
should not thereafter permit to BIO constructed in
either OF the streets avenues OF said cesa railroad
for tho transportation OF passengers which should CON-
n,cnce and end in said cities without the consent
thereto OF majority In interest OF the owners Of prop
erty upon me streets which sad railroad Is 70 be
OF the Laws OF 1884, The third section of this act,
however, confirmed all grants licenses and resolutions
adopted by the Common Council Of any city prior to
tho passage OF the act authorizing the construction
tension or use OF any railroad which had already been
The courts have uniformly held that this statute rem
dcred valid the various grants by the Common Council
tmadc prior 70 the passage OF SAID act which author
avenues above mentioned in all where the road
in such avenues had been wholly partially con-
struccd at the time OF the passage II tho act Cole
man VS. sixth Avenue Railroad Company, IS n. Y,
Dol; Sixth Avenue Railroad Company W.. Kerr, As
Barb, 1851
The Legislature mas also at various times passed laws
authorizing tho companies owning the roads in such
to extend tho same or to discontinue portions
of che already constructed Such acts have been
passed IN relation TO the road in Second avenue laws
OF 1857 vol 2, p l77 Laws OF 1871, VOL l. p
GALL; in reference to the Third Avenue claws OF 1867,
n
claws OF 1872, l,954); in reference TO tho Eighth
Avenue road Laws Of 1874, p. 616); also confirming
the grant OF tho Ninth Avenue road, and extending
flaws OF 1860, p us, and Laws Of 1866, vol 2, p.
200Sl The act above mentioned, authorizing the OK
tension Of the Fourth Avenue Railroad. recognized
and probably sanctioned right OF that company TO
demand and receive not than eight cents each
Tor any ana no. more than SIX cents
Of 1874 extending the Eighth Avenue road also author
lied the company owning that rond to charge and re-
ccve he same arcs charged by IL for the conveyance
passengers at the time Of the passage OF tho
Neither the other laws above mentioned nor any
Others. far as am aware, have affected the agree
road companies except in the particular above men,
toned and the act OF 1854 above mentioned, having
rendered valid tho vprious grants by the Common
Council tho agreements entered into in pursuance Of
such grants. except where modified as above stated,
remain in full force
The second question in regard to which my opinion Is
requested IL whether Is not legally in the power Of
the city authorities 10 compel sucn companies to pro-
for all whom they permit TO enter their cars,
forfeit the right TO collect fare AS your honorable
body is undoubtedly aware, the Legislature IN 1860
passed Law declaring that no street raroad should be
constructed the city OF New York unless authorized
BY act Of the Legislature claws OF 1850, p S16),
and since the passage OF that act the Legislature has
passed laws authorizing the construction OF quito
number OF street railroads In this city.
II first contcndcd that the Legislature could
not authorize the construction OF such road without
the OF tho Common Council, but the Court of
Appeals finally decided that the OF the CON-
mon Council not necessary and that the Legis-
lature had full control over tho matter and could
authorize the construction of such street railroads In
this CITY as It saw it rhe People vs. Kerr, q n. "
1851
presume that tho second inquiry above men
toned, with regard 70 which my opinion Is requested
by your resolution Is Intended to cover not only the
roads constructed under the original grants from this
Common Council, but also those which have been
directly authorized BY acts Of the Legislatures and II
will think, be quite apparent, from inspection OF
the agreements made with the different companies
pursuant such grants and the various acts of the
Legislature above referred to- that the question Is not
free from difficulty.
Tho provisions Of these agreements with the differ
companies bearing upon the question under consd
Grafton substantially the same though not equally
full and explicit in every case, and they are, Ia sub
stance, oilowng:-That the various companies will
run cars every day often the public convenience
may require under such prudential regulations the
Common Council and the Street Commissioner may,
from time 10 time. prescribe; also that the various
companies shall in all respects comply with tho dircc-
tons OF tho Common Council IN the building OF the
roads, aud IN any other manner connected with the
regulation Of tho same also that they will
tam number OF cara every day, both ways, between
certain hours, and much otcner as the public
ycuIcuCc
Common Council may from time to time, prescribe
A number OF acts authorizing the construction OF
street railroads were passed by the Legislature In The
year 1860 They arc nearly Identical In form, and in
esch provide that the companies shall run cars as
often as the convenience OF the public may require and
shall 90 subject reasonable rules and regulations
respect thereto the Common Council OF the CITY
OF New York may, from time 10 tme BY ordinance
prescribe.
similar provision Is, believe, found IN each OF the
street railroads In thus CITY, passed by
the Legislature the year 1850 The question pre-
scncd therefore, is whether the right 10 regulate tho
running OF cars the grants made by the
Common Council Itself aud given In express terms IN
said acts OF the Legislature rs sufficient to authorize
tho passage of ordinance OF the Common Council
declaring that such companies shall provide seats Tor
oil whom they their or forfeit tho
right % collect farcs have been unable to discover
that this precise question has been passed upon
BY any Court and IN the absence OF judicial DECISIONS
have been IN considerable doubt TO the true con
struction Of the grants or tho Common Council and
acts oil the Legislature. Il decided number OF
wears since that under the power regulate the run
ming Of cars, the Common Councilof the City OF Buff
-. st.