The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-08-27
The Sixth Avenue Railroad Suit Against the
Gilbert Elevated Railway Company.
Judge Sedgwick Decides in Favor
of the Horse Railroad.
A BLOW AT RAPID TRANSIT,
Litigation Extraordinary
and Expensive.

Having taken several weeks to answer the evidence
and investigate the questions OF law involved Judge
Sedgwick yesterday gave his decision IN the suit re-
Gently tried at Special Term Of the Superior Court
brought by the Sixth Avenue Railroad Company,
strain the Gilbert Elevated Railroad Company from
building the line of the Sixth Avenue Rail-
road, Sixth avenue between West Third and Fifty
ninth streets This decision ana his opinion embodyng
his decision lengthy, and, will be from the
epitome OF It, given below, though based upon the Same
stae OF facts included the suit brought by the Ninth
Avenue Company against the Greenwich street
Elevated Railway Company, arrives al precisely the
opposite result granting tie injunction which
denied IN the latter suit
Judge Sedgwck begins by stating that the counsel
for the defendant maintain that they denied
their power build elevated railway
from the act OF Juno II, 1872 and tho
amendatory acts passed before the constitutional
amendments of 1875; that they gained no new fran
chise to build n railway under the so-callcd Rapid
Transit OF June Is 1875 but that this last left
ihe defendants right construct road untouched and
resulted only in imposing upon defendants the duty OF
altering tho structure in certain mechanical and cngi.
neering details. which did not alter or impair the sub
stance of the franchise under the first grant He
says that IL this be true the forty -irst section OF
the Rapid Transit act has important bearing upon
this section aud perhaps decides It. This de-
clarcs that at shall not be lawful for any company
ganized under the provisions OF this act any other
act heretofore passed construct a railway, &C.
and every such company shall be bound by the rcsric
lions and limitations as TO its route and to
Its mode OF construction, which shall be estab
lshed by the commissioner appointed under the
ACT from which its powers derived far such
restrictions and limitations are consistent with tho
provisions Of this act" lie then holds that the de.
PENDANTS were organized and derived their powers
construct and operate the railway under other acts
than the Rapid Transit act they bound by the re-
Sricons and limitations the mode OF construction
stated in those acts unless, FIRST such restrictions and
limitations consistent with the provisions OF
the Rapid Transit act or, second, unless the restrc
tons and limitations only such had been spcci
lied by commissioners appointed under previous acts
and be imposed this case inasmuch as the
restrictions Of the mode OF construction contained
IN the very body OF the original act and not esab
lshed by commissioners under such acts. As TO The
first he says there Is no provision the Rapid Transit
act which Inconsistent with tha, part statutes
which restrict tho defendants 10 particular
modo OF structure The section no doubt moant
TO preserve to some extent tho restrictions to
structure Of tho former. How could that bc done II
tho Commissioners. under tho RAPID Transit act, had
power to annul all rcstrcIiOns why attempt
expedeut within the objects Of the
Legislature that the Commissioners, under the Rapid
Transit act should finally determine the form OF
lure OF existing corporations The Commissioners
have at least power mako requirements and condi.
lions that would be consistent us TO the which
IN maiera. The gives the existing corporation
new power only when tho route chosen tor the
corporations the that Of old corporation
The important thing Is That the restrictions have been
made by the law; II IL net admissible 10 suppose that
m Intricate form OF words was adopted 10 lead citizens
10 think that the section was to be understood and
obeyed when II was intentionally puzzle with
ticulu,e meaning. From the gwen tho
forty first section 1t would follow that unnwu
to use the middle of the street Tor the purpose Of the
defendants railway and that such use was an ncum
brancc OF the highway and public NUISANCE which
might be restrained by action.
A. considerable length Judge Sedgwick examined
the constitution IN relation to defendants claim The
amendment o 1879 gives power, he TO tho Lcgis
aturc to pass general laws providing for granting The
right to lay down railroad tracks BY the very limited
words, right To lag down railroad tracks, the
sthution refers 10 their Tor the transportation OF
passengers but the gran. must come IRON the general
law The constitution meant to prevent IN the future
the wen known evils that had arisen IN the past BY
the sovereign power o. the state cannot be parcelcd
out TO individuals private corporations by the Legis-
ature ana hence the Legislature cannot gvo special
privileges iavors reward In the present the
right lay down railroad tracks not political iran
ehsc TO be granted only from the State Other powers
must be gwen connection with the building OF the
railroad to constitute franchises. Tho questions
arc, Did the Rapid Transit ACT II intended 10 give
power to the defendants 10 build their railway
present form OF structure upon Sixth avenue grant
another and different right 10 lay railroad tracks,
within The mcapug OF the constitution, from the right
given the which originally incorporated It,
such other grant made by general law, or was 1t
gwen by private bly he holds that the amended
Constitution 1879 did repeal the original charter
Of the defendants The Legislature could not violate
OF the amendments, ana could by any altcra-
non, modification or repeal OF special charter, or
vi IT, grant 10 The corporation right lay
down railway tracks which they did have before
II the laying OF track any kind OF structure and
She working OF railroad thereon, does not
Ask franchise from the state, and franchise Is
connected with these matters until They ask the right
10 use particular plan Tor the stas OF their railroad
VIZ, public street, which must be GOT from the
5 ate Then the test is--Do the changes which Tho
RAPID Transit aot have required from The defendants,
anu which they have accepted, involve the right
use the street. which different from the right IL
the street gwen by the Original charter In case
like this OF right TO The street the Legislature
had clear reason TO limit The use OF the street to
particular kind OF structure The general project
untricd. and there need for abundant caution
where, only providing adequate means tor carrying
but, far possible preserving those
uses OF the street which by experience had been gen.
orally sciviceabie The tuird section OF the Of
June IL, 1872, authorized the defendants 10
construct an elevated railway, to be oper-
Elevated Improved Railway. After
Ing the evidence showing tho pecuarit,es Of
public and iudiyiduaIs had sslniie rights N
the street Tree from their particular use. The de-
iendan, under tho RAPID transit act WAS confined to
the middle of The sHeeL Having cnlaeed upon TINS
point he discusses the question whether graa
claimed under RAPID transit gwen by general law
aud whether there violation oi the constitution IN
that respect Ito did not propose TO decide whether
the Rapid Transit act violates The constitution requr
ing general railroad law, but would take gran ted
that la RESPECTS Is general law. The pro-
vides Tor the appointment OF commissioners in each
county on "A petIlIon OF the cilizens TO determine
wtlin thirty days whether there necessity Tor the
railroad lx the route &c. The enforcement oil these
PROVISIONS could never result investing tue de-
fcndants with the right :hcy clam under tue Rapid
Transit act and they must rest their claim the
thirty section, taken with the rest,
us structure
Ii 1t may be ruled that a general law should provide
for existing corporations and others such law must
give them and olncrs equal gnts and terms. II
true construction OF the law determines that right
given to Others to become grantees the equality
rs destroyed IN invor OF existing corporations,
and tho law would be specially framed In
iavor OF sensing corporations, 10 the exclu-
OF others. Is there not, he asks to be found
in such law al The objections which rest upon ike
hhood OF The State suffering from those miscbiefs
which tho constitution ui.d Ia ,xtrpsto The ia,i is
ihe RAPID Trrnsit act framed that superior
right might De given to another corporation to work
railroad the route dcieLuant claims upon the
ungency OF coincidence happening and the existing
corporation fulfilling the conditions II Is certain that
the ensuing yisions which would result In giving
tho route Ia a ,orporaton TO be formed arc IL they