The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-04-27
AN ALL DAY DEBATE.
Claims That the Rapid Transit Act Is
Unconstitutional and Special.
JUDGE EMOTT IN ITS DEFENCE.
Judge Comstock and Mr. Parsons Attack
It-Mr vapderpoel Replies


matter OF the Elevated Railway took place In the
Cours OF Appeals, before the full Court
Judge Church announced that the Court after con-
sultaton had decided sit six hours to-day and four
hours tomorrow, thereby giving ten hours 70 the
case, which long time AS seemed to DO practi-
cable to the Court the counsel must arrange
TO divide IT between them.
Hon. William NJ Evarls said upon consultation with
his associates and also the counsel opposed 10 him
they that the best method OF argument in
respect their disposal would be that the
should argued separately and as he was coun-
sci in both he had expected to make only one
argument, and that in the last disposed Of and
therefore he would not speak on tho first case
ARGUMENT MR.. PARSONS.
Mr.. John 4. Parsons opened the Elevated Railroad
Tor the opponents. lie supposed the facts would
be the Same 10 considerable extent, and the Same
questions in great measure would arise In the Gil
bert Elevated Railroad The appeal IS by Ruther
lord Stuyvcsan, Jesse A. Marshall and certain otner
property holders IRON order made OH the 10Th OF
April last year. by the General Term OF the Supreme
Court, confirming the report OF the Supreme Court
Commissioners appointed under the provisions OF the
ACT OF 1875 Counsel stated briefly the history Of the
sction In 1879 there was incorporated into the
State constitution a provision to tins cncct:-"rhe
Legislature shall not pass private local bill grant
Ing to any corporation, association or individual the
right to lay down railroad track Again. ''Grantng
~ any private corporaton association individual
any exclusive privilege, immunity franchise what
and then 1t provides that law shall thorIzo
the construction or operation OF street railroad
except upon the condition that the consent of the
owners OF oneLalf value OF the property bounded
upon 1t Is Obtained, or i'll the OF such
properly owners cannot be obtained the General
Term the supreme Court the may appoint
com IN shall determine. after o.
all parties Interested whether such railroads ought to
be constructed or operated, anu their determination
confirmed by the court may be- taken in lieu OF the
consent OF the property owners The appeal
Is from tho decision OF the General Term
confirming the report OF the three comms-
souers claiming to be appointed under this provision
OF the constitution Counsel alluded the passage of
what is known the "Rapid Transit act" the 18th
Of June 1872 six months after the constitution
adopted, and claimed that its provisions were
clearly violation of the constitutional restriction
quoted, in that IT, though by its terms general was
actually applicable the Elevated Railroad Company,
aud the Gil Der, Elevated Railroad Company solely
granted 10 those corporations enormous power and
most valuable franchises
DAMAGES PROPERTY OWNERS.
Alter citing the action OF the commissioners fixing
The route and plan Of the proposed road said
that IL is operated upon of columns elevated
some eighteen twenty feet above the sidewalk and
passing almost contiguous to windows on onc or
thc other oi the streets forming the
line OF the road The selected the elevated
road is the valuable in the whole city OF
.>ew YORK. It embraces the longest line OF
improved property and The bcs, improved prop
erty, which is almost exclusively occupied by
stores persons in business and he did not hest
late to 1t he most valuable property the
Battery TO the Harlem River. The testimony OF those
most competent to give 1t that value Of
the property occupied by tho road some
$4,000, 600, and would be average dcprecia.
uou OF twenty-five per cent, varying from that
10 thirty or forty Der cent, according to whether
IL was tho rover end OF the city
where there would be possible benefit, or at the
upper end there wouid be possible benefit
arise by bringing In connection with the lower por-
tion oil the CITY. The route taken by this road was
along the most improved portion, anu II was be
that persons would occupy front rooms Tor
their families III building beside which THIS railroad
passes
The question raised TINS point would be that the
commissioners had acted enormously the principle
they applied 10 their oil tue route
the steps which they took 10 arrive that
decision. After reviewing ut some length the pro-
ceedlnes on The err pdrte applications to the supreme
Court Tor the appointment OF commissioners, Mr..
Parsons continued that the commissioner were
bound To consider the rights OF property owners
equally with the rights OF this company; but
III place OF giving them all due hearing ana taking
testimony they SIMPLY receive aildavts Instead OF
nounciug what inc plans were to be, in order that
the property owners might direct their opposition
10 them, they waited until tho taking or testi-
mony was practically closed, ana then wont
to the officers oil The company and examined
the plan, taxing statements ana aflidavits par
ties Interested IN the company without giving
their opponents chance TO prepare counter aidavs.
Notwithstanding the TACT that there three
thousand different pieces OF property Affected belong
ing 10 over one thousand different PERSONS when the
proceedings commenced, III January, there
practice prescribed, and the property owners were
never informed wnat they had 10 direct their
10 AT all. They claim that there such due
hearing rs The constitution and the act OF 1875
CURED.
RIGHT TO THE STREETS
Neither tho Legislature nor the Corporation OF the
city Of New York has the right 10 appropriate tho
CITY streets for the use oil an eevated railway Adult.
ting owners have an interest easement to compel
the streets 10 be used Tor ordinary street purposes
which they cannot be Invested without Just compen
ION lie alluded the different casses OF streets
and The legal steps by which they have been
dedicated 10 their rs streets ony and proceeded
CONSIDER the next point on winch the petitioners ulcge
IN their petition That under the terms provIsions
OF the rapid transit act they entitled to the prIv
cgcs which they seek to confirm by proceedings
So FAR that act undertook To confer any priv
eges the appellants maintained that Is direct vio
a,on OF the constitution, under the OF gen.
cral act privileges oil mort valuable character
gwen specially 10 the Elevated Railway, although IL
Was mentioned by name.
JUDGE EMorrs ARGUMENT.
Judge Emott SAID II the Court look at tho first
sectivn OF act known hc Rapid Transit act they
would observe that provides Tor the appointment by
the Mayor o the city oil New York any other CITY
uf i've commissioners upon Application These COM
miss,oncrs arc prevented locating any rslroad upon
certain portions Of territory, and In certain
parts OF cities the State and In certain portions OF
The city of New York. The act provides that suid
Commissioners may hx and determine the
routes through winch an elevated steam railway or
railways now IN actual operation may connect with
other steam railways or the dcpos theeof, with
steam ferries upon the funlment OF The conditions
and requirements oil the constitution which
were that the consent Of tho property owners
along the line thereof should be obtained and II re-
fused COMMISSIONERS should be appointed, and they
should determine, Notwithstanding the refusal
Of The consent, whether not tDe roads
should be operated, winch done In this
case and from which the appeal was taken.
Tue act did authorize the company TO take prop
erty without compensation ana therefore all the argu
mcnt about property owners owning the street Was
entirely beside the case.
GROUNDS or OBJECTION.
The order made ny the General Term Of the Supreme