The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-12

which they cannot incumber by grants conflicting with
tho general purposes for which the streets held
regulate the by the companies o the franchises
given them Is OF course, retained by the Common
Council In the interest OF the people ofthe city, Rcgu-
laloEs securing that the franchises used such
way TO subserve the and comfort OF the
travelling public are within the intentions OF the
reservations With this object in view the Common
Council have from time 10 time required the railroad
companies 20 run an Increased number Of cars and
this mode OF regulating in the interest Of the travelling
public, the use II the franchise by the railroad COM
panes undoubtedly IN every respect legal Whether
The power 70 regulate be carried TO the extent
every passenger shall be given seat, no col
lected Is an entirely new question: and with regard
siderable doubt They can DO made 'I 70 run cars as
often as the public convenience may require. which
would seem to accomplish the object that de-
sired 70 DO accomplished BY your resolution But II
person gets into and is carried by the railroad
company IL is questionable whether the company
would not have, under the agreements and the laws,
q right 10 the fare which they have been authorized
10 collect Under the various agreements they
are authorized 10 charge certain rate Of fare for
carrying passenger. and the various acts Of tho
Legislature Tor the construction OF these street rail
authorize the several companies charge rate
specified IN the act or to charge the rate
charged by other city railroads at the time OF the pas
OF the acts Under these acts OF the Legs
lature and the agreements, think the companies
have acquired vested right 10 charge the pre-
scrbcd, which the Common Council cannot take
away. There were no reservations in the acts in
the agreements authorizing any change OF the rates,
and inaslnuch as that mus, no supposed to
have been tho for the outlay on the part
Of the railroad companies, question whether 1t Is
within the power Of the Common Council. at this time,
TO alter tho conditions prescribed for the collection
OF fares; and uasmuch the carriage the passen
ger the only condition annexed in the agreements
and the acts III the Legislature the collection OF
fares, think the power 10 regulate the running Of the
road must be exercised in some other way than by for
feiting the fare.
The Common Council has undoubtedly, the right to
make any reasonable regulations 10 the number Of
cars to be rum and impose pecuniary penalty for
noncompliance thercwith and. whatever action ia
taken, should advise that this method be adopted,
the companies might successfully claim that they have
vested right 10 collect fares from every passenger
carried, OF which they could not be deprived by an
ordinance OF the Common Council.
have como TO this CONCLUSION after considerable
doubt and hesitation, and must advise your honorable
body that upon novel question of this character,
courts, lawyers and judges will undoubtedly differ in
opinion
AS have above mentioned when the question first
arose AS 10 the power Of the Common Council to au-
previous sanction OF the Legislature, many of the
ablcst lawyers and judges in this city clearly of
the opinion that possessed such power but after
years OF litigation, IL finally decided that such
course impossible for say that the view by
me OF the powers OF tho Common Council upon tho
point In question will be certainly sustained by tho
courts
Tho third point upon which my opinion is asked is
whether the Common Council compel the railroad
companies to reduce their rate OF fare from five to
three cents during certain hours of tho day As the
have been liked by the agreements acts of the
companies have acquired vested rights and that the
Common Council cannot change the rates from
those prescribed by the laws under which they act
ing and the agreements heretofore entered into am,
gentlemen, yours respectfully
WILLIAM G. WHITNEY,
Counsel to the Corporation.