The New York herald., 1877-09-19

generally upon all companies In the same sitoatIon
| II general. II seems 10 be conceded by the learned
counsel Tor tho appellants that such a law would be
and .uch as would thereafter 30 '' formed;
but am unable TO perceive why a law applicable 70
existing and future companies should be general and
confined 10 existing companies not general Laws
would at the time oil their enactment apply TO pre-
csely the same existing subject and until future
com panes came into existence would have precisely
the operation; but II IS claimed that there
the time OF the passage of the act aud hence il
must DO deemed that tho Legislature had solo
reference to that. II well sand by Allan, Justice
in People vs. Aibcrson t55 n. Y, So) that mo mo-
tive, purpose intention be imputed to the Leg
isaturc in tho enactment Of law other than such as
are apparent upon the lace ana TO be gathered IRON
the terms OF the law ITSELF Another learned Judge
OF this Court has said:-'we are not made judges OF
the motives OF the Legislature aud the Court viii not
usurp the inqusitorial Office OF nquiring into the
bona hdes of tha, body ia dschargng IT'S duties. )"
People vs. Draper p5' T., Bog 545 and 555l
| DEFINITION OF sgcrIoY SO CONSTITUTION
II is not TO be presumed or inferred that the Lcgs;
laure Intended TO violate evade the constitutional
restraint The law not specify particular steam
railway in actual operation, bat in ITS terms applies to
any and all such railways anywhere In operation.
How are wo TO know that there but in opera
ton at mo time OF the passage Of the act? Can
valid and regular upon its face, to be unconstitutional
and does the validity OF law which
| IL required TO DO general and Is general In
| its terms. depend upon tho number Of sub
jects upon which can operate upon the
size Of class to which 1t applies These questions
must be answered IN the negative Wc do not know
and we cannot assume that the Legislature knew that
there was but one elevated steam railway in actual
operation in this state at the time OF the passage OF
the act There had been PASSED several acts undcr
which such railways could have been constructed
chapter 1853 Of the laws OF 1851 chapter 225 OF 1857,
chapter T94 OF 1869 chapter 1875 OF 1870, chapters 69
aud $40 OF 1871 chapters sos ana s53 oil 1872 chapters
215 4s3 55s and 5s5 ot 1874 Under these laws and prob
ably others AN elevated steam railway length
could have been constructed. We cannot assume or
know judicially that no railway under any OF these
acts was in operation. On tho contrary, We may as
sumo that the Legislature found there was Q6 Picker
upon which the argument for the appellants is largely
based is unauthorized Bet the argument need not be
rested here. Section 80 need not necessarily DO
treated as If ITS provisions were contained in
separate Independent act, and that
OF elevated and underground steam railways II pro
vidcs Tor The formation OF companies Tor their
construction, and where route designated by the
Commissioners Is concdeIt with a route upon which
an existing company Is autborizcd TO construct such
company may construct lis road under the act; and
any company being an elevated railway in actual OPP
Grafton may construct the connections specified. Tho
act is thus made applicable to companies to be formed
and 10 existing companies aud Is thus made as general
as it can be- In any case the constructing company
rs to comply with the plans prescribed by the Commits
sioners. BY what rule of construction are the pro-
visions applicable to existing companies Isolated from
tho rest OF tho act2 They appropriate part OF
| the general scheme, and II could make difference
whether there was one or many existing companies.
The existing companies have no exclusive privileges
or iuncous conferred They are simply placed on
footing OF equality with new companies which may
be formed under the act. Suppose general
and operation OF railroads. with four tracks. and
II should contain provision by which any existing
railroad with four tracks could come under the pro.
visions OF the act would rs to such existing railroad
even If were the only one be private act The whole
act would be general act applicable TO railroads WIN
four tracks, II Is true hN this act authorizes existing
railways TO lay down tracks, out this 1t does part Of
general scheme devised by the Legislature, and hence
II Is not unconstitutional.
1t may DO that no now railways will ever be con-
structed by companies formed under the act, and It
may be that the Legislature designed, alleged, to
benefit two elevated railway companies in existence
tho tho time of the passage OF the act but all this
make no difference here 80 the net Ia Its terms
aud possible application Is general Section 10, of
the 14Oth chapter OF tho Laws OF 1850 the General
Railroad Act, makes the provisions OF that act
generally applicable to existing railroad corporaors
twili hardly be claimed that that section, as to exist
ing corporations, Is private act. Its purpose and
cncct TO bring such corporations under mo general
scheme devised by general law II made the Law
more general than 1t otherwise would have been. 1t
may be that the construction which We
have thus gwen TO this act. and particularly
to section 80, may leave the way open 10
great abuses OF legislative power, illustrations
OF which werc given in the learned arguments
before Us. There may be ways Tor Legislature to
crcuinvont constitutional provision without voia-
ing II. History shows by many examples now the
spirit OF constitution may be disrcgarded aud yet
letter observed, but thero is vial difference bs
tween the abuse OF legislative power and It's exercise
in palpabio violation OF tho constitution. For tho
former tho remedy Is with the people alone IN the
choico OF faithful representatives, who VIII respect
ihcir viii For the latter alone the courts clothed
with power always TO be exercised with CAUTION can
give remedy
PROPERTY RIGHTs
But II Is further claimed that provision is mado
In the act Tor compensation TO the owners oil properly
bounded upon the streets IN the Guy Of New York
through which the New York Elevated Railroad Com
pany Is authorized 10 make It's connexions, and that
therefore section &c. 80 far as relates u this company
Is unconstitutional THIS CLAIM rests upou the as
sumption that the abutting owners upon such streets
have property rights therein winch they are TO DO
deprived and tor which they are entitled under
tho constitution, 10 compensation Whether they
have such property rights 1t VIII not be necessary TO
determine upon TINS appeal Tor the reason that prov
sion is mHde Tor compensation L. true that under
section 80 THIS company Is authorized to construct
missoners, but that authority only the pu pc con-
sent without which no railway can be built IN street
That section does not authorize interference with tho
rights OF private property. Under the constitution
before railway can bc constructed IN 4
street there must be the authority of the
Legislature, the consent OF tho local au horitcs, and
the consent Of the owners OF one-hai IN value OF the
property bounded tho street, lieu thereof the
determine alton OF the Supreme Court Comm ssioners;
all this is required whether there any private
rights OF property IN the streets not II there
such private rights which are TO be lakcn within the
meaning OF the constitution then such rists
taken IN pursuance Of law, upon making mpcns aton
The act 1856 chapter 69 makes the provision OF the
General Raroad act Of 1880 to acquiring real estate
by hostile proceedings applicable 10 The com pany To
be found under that act rnc act OF 1867 chapter 49,
rectcs that the West Side ana Yonkers Patent Ra,I-
road Company vas organized and existing unGer the
General Raroa act aud the several acts amendtory
thereto and supplementary thereof aud IN section II
provides that the company shall be subject 10 the
liability and enjoy the privileges mentioned in these
with the provisions OF that act and that any
private property used or acquired shall be compen.
sateu or ny sud company uuuer PROVISIONS OF exist
ing laws authorizing the formation OF railroad
panies and the acquisition OF rights OF way thereof.
The Act OF June II, 1875 recItcs that the New York
Elevated Railway Company was organ zed, incorpo-
rated and exists under tho General Railroad Act oi
1850 and the laws amenda,ory and IN addition thereto,
and that 1t had succeeded 10 all ihc rights,
powers, privileges aud fraIchiscs OF the West
Side and Yonkcrs Patent Railway Company under tho
acts OF 1867 1858 and IT confirms this company IN
the possession and enjoyment 0f all such rights,
powers, privileges and franchises, and authorizes II
to 60 and com pctc It's road. II is thus entirely
clear that tins company has ali the authority con
icrred N the General Railroad act to take acquire
rca estate for the purpose OF its road uy the spcca
proceedings provided, and section &c OF the Rnpic
Transit act provides that the Elevated Railroad Com
pauy may construct the connecting routes with all
rights and like effect AS though tho same had been !
part of tho original route OF such raway. Hence II
seems To me that there Is for doubt that
ample prov sion is made Tor compensation Tor H,y
property rights abutung owners may have tho
streets
CONSIDERING OBJECTIONS