The New York herald., 1877-09-19

plioa'iGn Of MY householder: and taxpayers. show
The application II TO be made TO, and
She ,p1on%sn made BY the Board
proposed to construct raroad except when the pro-
posed railroad shall be wholly within the limits OF any
city, when the application 10 to be made 10 and the
appointments made bv the Mayor. Such commission
ers must within fifteen days after their appointment,
thirty days after such organization they must deter-
mine upon the necessity Of the proposed steam rail-
they must within sixty days after such or,
ganization Tx and determine the route routes
for such steam railway and they have the exclusive
power locate the route routes OF such railway
over. under through across any Streets avenues,
70 provide Tor the connection or junction with any
railway bridge, provided that the consent OF the
owners Of one ha In value OF the property bounded
and the consent also OF the local authorities having
control OF that portion OF the street highway upon
which Il Is proposed to construct operate such rail-
way be first obtained. Or, In case tho consent OF
property owners cannot be obtained, that the de-
termination OF these Commissioners, appointed by
the General Term Of the supreme Court, given
after duo hearing Of nil the parties interested,
and confirmed by the Court that such railway ought
be constructed or operated be taken in lieu OF the
OF such properly The five Com mission
crs also required, noimorc that ninety days alter
their organization decide upon tho plans tor the
constructions OF the proposed railway, 10 determine the
time within which II shall be constructed and ready
stock of the company be formed Tor purpose OF
constructing and operating such railroads. They are
also required TO prepare tho articles OF association OF
such company TO open book Of subscription TO its
capital stock, and to superintcnd the organization Of
the company.
Corporations thus formed have the right to acquire
and hold such real estate interest therein may
be necessary TO enable them to construct MAINTAIN
and operate their railways, and IN case they cannot
purchase the real provisions made acquire
under the special proceedings prescribed In the act
Section 20 Of the act provides. among other things,
that every corporation formed under the act shall
have power enter upon beneath the streets and
avenues designated by the five Commissioners and to
construct aud operate It's road upon the routes
designated by such Commissioners and that
such OF the streets and avenues shall be
considered pubic use consistent with the uses for
which the streets aud avenues are publicly held.
Section SO provides that whenever the route routes
determined upon by the said Commissioners coincide
with Tho covered by ihc charter of
existing corporation formed tho purpose provided
by this act provided that said corporation or
fecd It's charter or failed 10 comply with the nro-
Visions thereof requiring tho construction OF
roads within the time prescribed by IT'S charter such
corporation shall have the like powers 10 construct
ana operate such RAILWAY railways upon tho
fulhment Of the requirements and conditions imposed
by said Commissioners as corporation specially
may Tx and determine the route routes by which
any elevated steam railway or railways now IN actual
the depots thereof with steam ferries, upon the full
Ament by such elevated steam railroad company, so
lar az a. " relates 20 suoh connection OF such
posed by said Commissioners, under section
OF TINS act: as, as are, are necessary ,s to os
the constitution OF this state. and sucn connecting
Elevated Railroad shall in such possess all the
power conferred by section 20 of this acl, and when
any connecting route routes shall be also desig
mated such Elevated Railway Company may construct
such connections, with all the rights and like
effect though had been part OF original
route OF such railway.
STEAM ROUTES IN NEW YORK CITY.
proper application under this act, signed 0y fifty
qualified persons, presented 10 the Mayor OF New
York. praying Tor the appointment OF commissioners,
and he appointed the nve commissioners July 1875
They organized as required by the act aud subse-
quently determined that there was necessity in the
nf for
transportation OF passengers, malls and freight,
and they fixed the routes under section 36
waited Railroad Company might connect with
other steam railways the depos thereof with steam
section oil Greenwich street and Battery place and
tends through various streets and avenues to the
Harlem River, with connections 10 all the East River
ferries and with railroad depOts, with branches and
turn0uts. There was also liked another independent
route OF connections on the west side OF the city be-
ginning at the intersection OF Ninth avenue
and West Ninety-second street, and thence along
several streets and avenues 10 the depots OF
the spuyton Duyv ana Port Morris Railroad, on the
north side OF HHrlom River Inc commissioners sub
sequentiy adopted plan Tor the construction OF an
elevated rsilr aad ny winch hese connections
be made. The Common Council consented TO the
routes thus fixed, aud tho New York Eevoted Railroad
Company assented to the action oftbe
The New York Elevated Railroad Company, having
failed 10 obtain the consent Of the owners OF onehalf
avenues through which the proposed connections
to be inadc as required by section Is OF the id
1875, applied by petition to the General Term OF tho
Supreme Court for the appointment ol tho thrco
m'ssoners 70 determine whether tho proposed rail
road ought to be constructed, and The
were appointed They investigated tho matter
heard property owners and pares interested, and on
the 4th OF March, 1875, made a report, In which they
determined that the independent route above named
on the west side Of the city and connecting with tho
depots the north side Of the Harlem River ought
not to be constructed but that the other route tho
east side OF the city ought to be built AS liked by the
Mayors commis sioncrs. This report was confirmed
Drcm
Court March 49, 1876 ana 1t is this order which the
subject of this appeal.
AccEDING TO THE POPULAR DESIRE
There are several grave constitutional objections
raised to the Rapid Transit act which must first be
considered. In considering them we must nrst Keep
IN view the sausry rule often reiterated, that nothing
but clear violation OF The constitution will Justify
court in overrung the legislative WILL Every statute
is presumed to be constitutional and evcryi intend
ment Is In favor OF It's validity. When u statute is
challenged as IN conflict with the fundamental law a
clear and substantial conflict must be found to exist TO
justify It's condemnation but when found courts must
not hesitate ate. 70 condemn: the constitution
needed. Warner vs.. Beers, % wend, leo People vs.
Aibertson, So New York, 54L Mr. Justice Wash ton
in Ogden va Saunders IL Wheat, 30 said 80 it IL
but decent respect 10 tho WISDOM the integrity and
The patriotism ot the legislative body by which any
law ~ passed, 10 presume IN avor vi It's vaidlty uu
til It's violation OF the constitution Is approved beyond
ail reasonable doubt" 1t is objected that tie act is
power to the Mayors commissioners. Tho OBJECT
Of inc act was to provide ior me construc
1t coniers upon tho commissioners the power TO de-
termine upon tho nccossty OF suc railways to fix tho
route upon which they may be constructed, TO pro-
scribe the plan OF their construction and TO supern
tend the organization OF companies for heir construc
tion II provides Tor the personal liability OF the
stockholders IN such companies, AMI conicrs upon
'Ahem the right TO take and hold real estate. and
provides particularly how they may acquire
thc same. l. specifies the powers which
they shall possess aud the duties and blgaIons
WHICH shall rest upon them. The rests
upou the legislative VIII, aud IN no wuy depends Tor
Ia a he ecpulfu n utsq uerS
Corporations organized under the act derive their
franchises from tho Legislature, and In no proper
sense from tho commissioners. Tho commissioners
perform no legislative acts they enact no laws, They
simply perform administrative acts IN carrying tho
law into oHcct and applying Tho Legislature is
quired by thv constitution to pass general laws Tor
the formation of corporations AR 3, Sec. Is,
Art. 81 aLt 1t has passed general laws Tor
the formatonp all kinds OF corporations In such
1t does directly confer corporate franchises
It simply provides tho mode In which such iranch
may be acquired by those deserving them Ordinarily
INDIVIDUALS desiring to incorporate under general