New-York tribune., 1877-09-19
ans CoNSTITrTIONAL QUESTION.

ON which the decisions are based are summarized
below:
THE CONSTITUTIONAL QUESTION.
TIE RAPID Transit ACT OF 1873 NOT REPUGNANT
TO THE NEW CoNsTTUuON-TnE MODIFICATION
OF rus GILBERT CHARTER NOT GRANT OF
NEW POWERS.
ALBANY, y. Y, Sept. 1S.--The following are
the decisions OF the Court oi Appeals to-day;
The Cub IT Elevated Railroad Company, Respondent
vs. Catherine NJ. Koobe, appellant The same vs. Ander
son ct al Church, CDof Justice.
The Rapid Transit Act authorized comprehensive and
independent system Of rapid transit by elevated rail-
roads through The city. II authorized the appointment
of commissioners by the Mayor, to determine the neces
sty for such railways ocate routes, fix upon tno plan
of construction, orgnze and put III operation -
ton with powers d. fined by the act, aud heh Dy tIo
FIRST clause Of the TAiry-sxth Section, which rs IN cor
toveIsy here, il provides that whenever the route
roales determined upon by said c0mns,iohSiS &c com m
eide with the routes covered ny tle c"tI ., m m
existing corporation formed The purpose lIOvlctD ny
tins act provided that SAID corporation mas not
its charter or failed TO comply with the provisions there
o. requiring the construction of road or ROADS Wthn
the time prescribed by its charter suGh & % %
have the Ike power To construct am Vpeil'o ;n,
way or railways upon tulhnent Oi the requilenen1'
and conditions ia}osS' fo,3gcs ' under tins act Tic
commissioners appointed for that purpose auoleu te
i CHANGES i, he form of the structure in portion OF
tne streets from an arch covering the seeis sHPIo 20
d d - yye,con OF fare and the running
UoSHiifion All of which has been assened to Dy the
conpiny" A point also mIde thai the cOnhls-
sones made more radical changes OF the structure IRON
tubular railway, be operated in whole or
railway, but in the case OF tne sixth AyenGe RaiI-
road Company against % thG OSef ars into
tie papers In OF these cases 1t Is fOund tdt 'hc
charter contemplated an open railway TO be operated oy
sir.m power ana such Is. Think the proper inference
from the act itself and the acts proved so tha' ths
OF tIe eSse ~ - ulio6 Tycry nr~snmnIon Is in
tf.1ffp pfo
An adverse, dcuOtul construction IS not suhcie 10
ooudeuu an act 1t is onb III eases OF clear ann au-
stsntal departure from the provisions OF the fundan u
mvaii! C55 N Y; $3.50 NY; 55S-ll Mass; SiO17
this respect bet"cciC the state ana teael",
GSsemby su50a ali iqsa1Vs iGi power not iohSle gy
tue LATER or excepted bS the laS'run,n % m nnIi. oi
hence the exercise OF a legislative power by the ae
legislature "il be PRESUMED coiS'i' u.iu'i ulSrI I w@ w@ '
< neral srant OF power, aud VIII b. su.t"lhed ucbs
brought CLEARLY within some of the exceptions, whhe
tIHeI by an ali NATIVE traut embracing the specific
power exercised hssuoins thaJ ,le e9rp'fa9n @ nav
sxtA Section O RAPID Transit Act, Nds descriptive OF
t fl question is ia view Of tne facts ani rale Of con
structon Ieclrco 10, whether The ,sisdtuTe oid by
TIA act grant Glib rt Company nc night TO lay
down rain Dad tacas wunn the meaning OF tns clause
The right existed prior to tne pissa-e OF ihe 9ei, ana
taat rgnt me LeZsl ure ihtehdel 10 protect lAe &,t
recognized IN tc thai the corporation was formed Tor
tuc puIsose provided hy the ac,' wMen PuIIiO.c
in aud through the streets Of the city. The leg atuTe
cd taGut To tiir tW cor iph' 'i1iN 70 ~
/, create bui IA. company unad, = ssrssins tlt
nghi, wnosc route routes were Satisfactory 10 t,e
powers c0ndt a. ine changes required were festfcted
IL character By tie c.t-ter the "hoa street was 40
covered by tuc suu cur. ~ lA6 en- uiuus imposed
OiIly p0ruOn OF some reefs cO"ld pe occUlle %
cXun Trims at half iase were clearly re iriculns
o existing isntS. cannot ace de TO the proposition
thst an, cnaugc in the structure and m the manner II
Occup iug srDe,s, however restrictive Gn tlc 'ciI
pauy ben icil tnc pablo ID tr use oi me streets
Constitute iIcsh gran OF tuc ll-hi 10 '"' uoMn Ia
ro,d track. ~ 5 missioner to c'l sUch restrictions
rest Icn- and e ulatn-'an exstlns i-t 20 lay down
r4ilo'd t3cAs Is NOT sr rmt Of tn@t ID ID, %tnlH tae
ease, Ior within the e'h' at ""cA 'he provision Was
NOT An EXCLUSIVE PRIVILEGE.
Tie next question is whether the tmd Transit Act
Especially the Thrtysxth SectiOn," violates the other
provision quoted prohibiting the Legislature by pr
yate o. loc bill from granting % any corporation, s.
sociatJn individual, any exclusive privilege, inmu
lit, on franchise whatever" IL is rot easy TO understand
precisely intended by this clause. IL s diiicu
20 cOnsuue this CLAUSE as Inrallug anything less
tnan an absolute mohOpo}i but II II hot deemed
necessary define lis pr'c se signidcance IL - sum
cicnt say tD has not been made clear that The
violated by he Rapid Transit Act No eGclu
right tauchise was slUntcd TO The IVs poMdet
suosahti r1n eISI % - oaT 1nT Nv es e mo- e'
Visions aud emptcd avod all que tiou In respect 10
them by passing general ~lct The act is general III
iSs iSs" oisc.s 'o SO to b; Accomplished would permit
The objection that tie consent Oi majority or the
owners the certificate OF the SUI RENE Co IT Comnis
sOucIs be- obtained has no appliciti 10 lls cor
marathon do the Rapid IrIuSit Act require such
consents or certificates O tcIlOn made that the
act OF tie commissioners 10 designating the routes Is
void because designated crusscd Broad be-
low fityluihsf which l. FORBIDDEN by the RAPID Tran
s Act and this point the Court says 81 do not Cnnk
that such exclusion would inYaCac ali the routes desl,
nue he comm ssloners authorized To designate the
route or routes such railways, and II is not necessary
tu al the routes sOuld cOiucidc. The authority
extensive with the coincidence OF tie ROME. We think
that TINS objection is not iaal 10 the rights OF the re-
epond order u alprse api eIants damages 10
The OH that Rapid
Transit Aci improperly delegates legislative pOwerto tie
comi-s Ouers not ieuHDlc. The Legislature had tue
power 10 determine all the questions dceeated 10 the
local authorities but there no rule winch iOfds the
LEGISLATURE ref r1ug such Qucs Ions 10 subordinate
trihunal Toe question OF dlmdges is not involved IN
these cases To determine WHdt particular occupation
OF fne streets be deemed legitimate pubic use,
involves important and delicate qu-sti nS whether
lie structure contemplated to be built ana Oper-
owners i'm any the streets, emitting them To some
remedy for dlmtges whether IT viii be regarded as
legitimate streets for tire benefit OF the public,
tile Inconvenience and annoyance of which private
be adudicat upon these appeals the criticisms up
on the terms Of the order is not enGDe Tue OTdeI 10 De
con tred IN connection viii the Constitution and the
81 tues and appe ants viii De a; liberty 10 claim
damages to which they cOns.ltutlOuay ani lawfully
entitled. The order must be affirmed. ALI concur
IOLGEE Justice.-Ihc Judgment IN Ihe case OF the
NeW-York Elevated Railroad Company, having adiudi-
cared tho coust tuOnality of Act of 1875 in ali Its
parts yield 10 tndt Judgment as the law VI tIe Lana,
and therefore cOncar in THIS.
RappalO and Andrews Justices concur on authority OF
III, same Case.
VARIOUS OBJECTIONS ANSWERED.
NO NEW FRANCHISE CONFERRED BY THE GENERAL
RAILROAD ACI-THE ACT NOT A PRIVATE BILL
CovpFNsATION To PROPERTY OWNERS-ACTs OF