The New York herald., 1876-12-29
RAPID TRANSIT.
Hopeful Guarantee Of Speedy Up
town Travel.
THE SUPREME COURTS DECISION
Constitutionality Of the Rapid
Transit Act.
THE GILBERT PLAN INDORSED

Public hopes Of eventually obtaining rapid transit
in this city have received inspiration by do
cision rendered yesterday the Supreme Court Gcn-
eral Term upon the application TO this Court for the
appointment Of commissioners pursuant 10 the report
OF the Rapid Transit Commissioners. Judge Brady
wrote tho controlling opinion, which is concurrcd in
by Chief Justice Davis A dissenting opinion sub
mittcd by Judge Daniels. The following is Judge
Brady's opinion:-
OPINION or JUDGE BRADY.
Tho Gilbert Elevated Railroad Company by its
charter authorized to build elevated according
to the plans therein designated Tho charter passed
In 1872 amended by acts passed in 1873 and 1874
but the principle construction was not changed in
any respect II Is clear therefore, that until the
company constructed any road il would necessarily be
upon the plan known as the Gilbert Elevated Railroad
but tho franchise was secured and could be employed
in The manner designated. The company, in other
words, created with all necessary powers OF
which were warped or destroyed 1t was existing
company requiring further legislation 10 give It
either vitality or the necessary authority TO
carry out the purposes or It's Incorporation;
the Rapid Transit act recognized this indirectly II
provides that whenever the route or routes deter
mined upon by the commissioners 10 be appointed.
coincide with the route or routes covered by the
charter of existing corporation formed tor the pur
pose provided Tor by tho such corporation should
have the like power 10 construct and operate such
railway railways upon un.mcnt OF tho require
ments and conditions imposed ny SAID commissioners
n
vidcd such corporation had forfeited Its charter
failed to comply with the provisions thereby rcqulr
ing tho construction OF road or ROADS within tho
time prescribed by It's charter Tho evident de-
sign Of this provision was to prevent
any conflict between existing but unexe::
cuted charters und companies to bc formed
under tho act and a all events to the people
the advantages Of an elevated road over the routo
selected. Ii The chartered company chose to adopt
the they could do il by Of quasi prior
claim founded upon vested right and II not then
they abandoned the opportunity to avail themselves OF
aaAon tanrc nnl hncn Ihnu mot ho mar
mittcd by claim only to prevent the consummation
OF rapid transit which was tho chief object OF the ac
conferred the right to adopt the model prescribed
by the commissioners to be appointed, ana upon full
hment OF the requirements and conditions imposed by
road railway, Tor that had already been granted
and secured by the charter OF the company but TO
ercise the right in manner other and different, It
might be, Ia model from that required by its charter
1t authorized change in engineering and IL the
chancai details OF the supersructure II tho company
complied with the conditions lawfully imposed by the
act, and though magnifed into supposed fatal de-
parture from the original charter, because OF sup
posed conflict with the provisions OF the constitution
It Is In effect nothing moro than this
The act OF 1875 is not local act; we have SO de-
declared The charter OF tho Gilbert Elevated road
required to comply This general act, tho so-caled
rapid transit act recognized tho existence OF the COM
ial provision, protected 1t against the onsequences
which might II its existing authority legally and
or nterored w,h and 10 make lis exercise certain cx-
tended to It the right 10 accept the route established
by the commissioners in compliance with their re-
Quirements Tho effect not 10 change the entire
character Of the franchise II was to be elevated
road, though different perhaps in Its construction.
mode OF transit and propellDg power The Legislature
had reserved TO ITSELF Dy section 10 Of the
corporation the to alter amend or repeal tho
charter and had the undoubted right, therefore, to
make such notifications the structure as were
essential either TO the pubic safety tho better
preservation Of tne rights o. me property owner Or
view by the act Of incorporation. Tho question to
such power has bccn considered and passed upon
h.,1.op frnu Astlo
covered railway would be within this power. 1t would
affect the model 10 be employed and the mode in
which the franchise was to be contaminated, but
otherwise. Tho right to the benefit and advantage OF
the result would be preserved, and the franchise,
instances made substantial changes notifications Of
existing charters by which new elements were
introduced, new features engrafted upon them
without violating constitutional provisions pro-
hiuiting new creations OF kindred char
acter The provision under discussion
in tho act Of 1878 is not amendment Of the Gilbert
Elevated Railroad act. The effect OF Il. far IL
relates to the company, TO declare the route may
employ in the use Of It's franchises 1t neither changes
Its character enlarges its power franchise 1t
recognizes The rights OF the company as existing
one by general provision and protects lhcn, and by
SO doing prevents conflict which might Otherwise
arise from the exercise Of these rights secured sug
rested by the Of incorporation and those amend
meal Of she act Of incorporation IN terms or IN effect
1t Is recognition and not creation, in substance or
effect The body OF the franchise remains the same, al
though tho mode OF It's has bcen changed IN some
respects This change the Legislature reserved The
right 10 make and has made IT, II differs, there-
FORE essentially from the cases IN Iowa and Ohio, TO
which We were referred illustrations OF The PROPOSE
ton that tho Of 1875 relating to the company
repugnant to the constitution In Atkinson Tue
Mariet,a and CINCINNATI Railroad Company, Is Ohio
State Rep, 81, which Is Quo OF these cases.
the Court, under constitution which declares
that the General Assembly shall pass no special act
confcrring corporate power held that the charter
tho Marietta and Cincinnati Railroad Company Did
not authorize IL to mortgage or sell It's corpor
ATE franchises q judicial sale upon mortgage
executed by II would not invest the purchaser
with any corporate capacity whatever, anu tna'
give effect to the sale and authorizing the purchasers
to reorganize, create new stock and elect
another board of trustees, was IN substance and
effect an attempt create corporation and - confer
powers by o special act. The answer TO that case ID
inal an act OF Legislature, containing by amend
mept authority TO sell the franchise rights ana PRIV
cgcs OF railroad corporation and TO invest the pur
chAsers at once with them, was he'd NOS 10 be repug
nant 10 that provision OF constitution which do
clarcs that corporations might be formed under gen.
cra laws but should not be created by special act
that the act was continuation Of the nrs corporation
although by tho sale the company was organized anew
name. s In tho case OF the State Of Quo vs..
Cy of Cipoinnati, 20 Ono State Rep, Is, aud the
other cases referred 70, appeared that
assumed TO confer upon the corporation Of
Cincinnati additional powers On certain condtions
tho ACT purportcd TO confer the powers OF political
and Of Judicial jurisdiction and taxation aud
assessment over number Of outlying incorporated
suburban villages and other territory NOT before
within the limits OF the city, and II was declared re-
10 the OF tho constitution prohb
tng the passage OF special act concrrng corporate
power. the statement oil that case shows thas in
NO respect corresponds with this The act was Ma
grant violation Of thc constitution. In the case OF ex
psrtc Samuel rritz 9th iowa Rep, 80, appears that
nm act was passed acnatoy TO The act To incorporate
the city OF Davenport, by which the Office oi police
magistrate was abolished, and was held 10 DO Invalid
because special laws ior tie incorporation OF
cil,es and towns prohibited by the consti-
tulion Of the state. There are many suggestions
rs to the authority OF tnc Legislature 70 amend an ACT
IN uaesa eofw VIII
stIuslon prob but tho ACT so FAR us rcvcaed IN
tho case was an attempt to create or incorporate
one but TO change the judicial system Of one III exist
encc with vested right The Is an authority for
the state in which IL was decided. IL can have no
extra territorial force save in controversy presenting
Substantially the same elements.
10 must be bornc in mind that IN this case Is In inc
other, the original act was sought 10 be amended
Here there ~ no Amendments under CONSIDERATION ~
must also be kept In view that by well established
rule in this State an act OF the Legislature VIII
not declared unconstitutional unless u Is Clearly