The New York herald., 1876-12-29

conviction that n means TO award ample compensa-
ton to property owners along the road had been pro-
vided our sense oil Justice would have been graned
The law IL exists does not require this from the
company, and this Court can neither legslate nor
visions OF the constitution, and when called upon to
declare whether act OF the Legislature IL or IS not
Valid must be governed. as Is by the principles ap
pIicablc and controlling II follows from these views
that the application should be granted.
DISSENTING VIEWS OF JUDGE pASIELA
Judge Daniels, In an elaborate dissenting opinion,
holds that the companys power to acquire the lands
in question depends upon It's power to build the sruc
ture Tor the purposes for which xas Incorporated lit
s unable TO build that structure does not intend TO
do has right 10 take property without public
purpose The franchise granted to the company was
TO build tubular ways and railways according TO Gil
bcrt's improved elevated railway plan. HIS phrase
tubular railway through the Of 1872 and the
amenda,ory &C. OF 1873, and the mode Of exercising
the franchise Is tho moro essential, they not
building upon their own lands but upon the public
streets used by large population whose rights need
TO be guarded He discusses some length the ques
ton whether the State alone take advantage OF
such alteration and concludes that 1t has nothing
to DO with shc question: as the company has only the
right to take land for the specific purpose Tor which II
was Incorporated, and so far as any new power Is
granted by the act OF 1875 It Is nugaory unless IL COM
were new company. II is the grant Of new power 10
which the constitution directed aud to obtain such
sttutionai and obtain consent in ono OF
the two methods pointed out by the constitution.
The decision calls for the appointment OF commits
soncrs, who are To he appointed on two days notice.
N. GILBERT
Dr. Gilbert who has given many years OF unwcaried
excfon to the work OF securing rapid transit for this
city said TO HERALD reporter yesterday :-"The
Uustcd bill passed in tho session OF 1875 leaving tho
question OF rapid transit open as 10 admit OF build
ing q road on tho cheapest possible scale. My plan
the columns OF tho structure The curb
Of the avenues and streets and that would have
volved considerable expense but II would have been
exceedingly complete and even picturesque The
Hustled bill permitted the pillars 10 be planted IN the
middle OF tho street, and this was, OF course, temp
tation capitalists to invest tho enterprise,
II involved much less apparent expense
than constructing it aftcr the manner OF my
original design That design approved by the
best engineers In the country ana though to all ap
pcarances expensive, was really less So Ia one sense
than the present, which is being carried South
Fifth avenue The decision OF the Court gives .
prospect OF being able carry tho original plan
1t declares that the Rapid Transit Commission had
right alter Wcshall need additional legislation
Dr. Gilbert has strong faith that his scheme OF rapid
transit will be carried out fully and effectively and
method OF intramural superior 70 that
Of any city In the world