The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-04-28
Judge Porter DemOIisles the Logic Of
Street Car Companies.
RIGHTS OF PROPERTY OWNERS.
Hon. William M. Evarts Against
the Steam Roads.
WHAT ARE VESTED RIGHTS :?

ALBANY, April 81 1877
Tho argument in the o! the Gilbert Elevated
Railway Company relative to acquiring title to real
estate in the city OF New York was madc before the
Court OF Appeals this morning..
IL Mr.. AsDxnsoN's ADDRESS.
Ar 4. F.. Anderson in opening the case FOR the APP
pcilants said This Is an appeal from an order mndo
at the General Term, granting application by tho
commissioners condemn parcels OF property
alleged TO DO essential Tor the construction and ocrnt.
Ion OF their road, situated in South Fifth avenue,
between Amity street and Amity lane. Amlty lane
crosses South Fifth avenue, formerly known as I.au
rcus street, at point about l43 feet south OF Amity
street and the title to that portion Of laurens street,
which was continued between Amity hne and Amity
street, never h1 been acquired leo by the corpora
on OF the city OF New York. INC petition alleges tho
Incorporation OF the Gilbert Elevated Railway
BY commissioners appointed by and pursu-
ancc OF tho several acts Of The Legislature,
and that the petitioners were proceeding with
due diligence to avail themselves OF their SAID fran
chisc The petition further alleges the appointment OF
provided tur by chapter 900 of the
Laws OF 1875, ana Their determination upon the
sity oil steam railways In the county OF New York,
and alleges that the saiI ommissoncrs did INK and
determine certain routes for such railways among
others all respects coincdent with tho route
Of the petitioners, and that they intend construct
ana finish AN elevated railway over tho route SO dc.
sigDated, under tho modified plan OF construction
presented by the commissioners upon and along
the route aforesaid ana upon ana along South Fifth
ton sets forth that tho land described required
Tor tho purpose OF constructing maintaining and
ol property tho land; that tho petitioners have no,
been able to acquire title thereto and cannot agree
with the owners Tor the purchase or uso thereof aud
pray for tho appointment OF three commissioners 10
ascertain and npprajse tho compensation to BIO made
TO the owners OF The SAID land.
VOICE or PROPERTY OWNERS.
1t is admitted by The petitioners that the consen Of
the owners OF ono.half IN vauo Of the property
bounded the upon which 10 is proposed to
construct and operate such railroads has ROT been
tanned by them and that no Application las been
made TO tho General Torn oi the supreme court in
n S,ttQ e IN ho ctcd
for the appointment OF commissioners TO uetcrnltnc
whether such railroads ought to be constructed or
operated NO authority was conferred by chapter 606
OF Tho laws Of 1875 on any railroad companies re-
ferred 10 IN that act. whether such companies
originally created under TINS act, whether they
companies previously existing but grated on to me
act under the thirty-sixth section, construct
operate railroad except on The condition that they
have The assent OF majority OF the property owners,
or, IN lieu OF that have The determination OF com
mission appointed ny the Court to the proprey OF
The construction and operation 81 he rniiroad. The
thirty sixth section OF tho act provides that whenever
rnuie or routes is determined upon BY the commits.
sion, and coacdc, with the routes covered by
the charter Of an EXISTING corporation, such cor.
roralion stall nave legal power 10 Construct
and operate such railway or railways as
Corporation especially formed under tho The Ian
guasc OF that srction must be construed to mean
power dcnucal 10 qualify, quantity and condition with
the power winch. by The same act, granted
pora'iops 10 be specially formed under It. IL there
lore ioows that rs the corporation formed under tho
act ony acquired conditional power the power
granted !" The petitioners ana accepted by them must
be subject 10 tho same conditions On any other
WAS Clearly to afford protccuon 10 the owners of prop
erty alutiGs on the stree.
JUDGE roRTRR's ADDRESS.
Judge Porter then addressed the Court behalf OF
the respondents aud said:--rne appellants seek TO
reverse the order OF the General Term OF the Supreme
Couri IN Tho first department. made the 10Th OF
january 1871 appointing commissioners to ascertain
un0 Dpprai-c The compensation TO he made to the
pelants respectively Tor the lands claimed BIZ them
proposed TO taken by the her. Elevated Road
Company 10 tho extent required Tor he purposes OF the
proposed Improvement ON tho line oi South Fiith
fltn ~ \atr NM
Supreme Court al the General Term 10 make such
order IS uudispuied he petition was resisted by
counsel Tor the appellants ana for the horse railway
companies on the principal grounds
Frs--rhnt the respondent was not authorized under
the charter 10 construct ana operate this limo an
cicvacd steam railway.
secDnd--1hc notifications IN form OF tho structures
directed by the commission under the sad Transit net
were not within tho reserve power OF the Legislature
to alter amend or repeal the original act.
Nird--Thnt the Rapid Transit act urconstltu.
tionn, Tho ground that IL was not u general law,
and on the lurther ground that II dcrogatoa OF
the awmaking power to The Board OF Commissioners
Fourh-rhat il the apid Transit &C, were otnerwls.
valid the thrty.sNth section WAS unconstitutional,
IN elect grant oil special charters to the untcccdcnt
companies whose prior rights are recognized and pro-
tecicd.
RAPID TRANSIT i NECESSITY
In cases involving tho construction and validity OF
public laws tho nature and subject OF legislation is
material TO be considered IN giving fair effect the
language and presumed intent OF tho lawmakers in
harmony with tho known policy oil the state and the
general framework Of the constitution. This
especially so when statute framed os bcnenccnt and
puUlic ends IS sought be narrowed by construc-
ton TO defeat the very purpose TOR
acted. All tho successive acts now in question
were framed TO meet an mperious public necessity
rcal nd seabourd state cnrap ca in honorable
rivalry with ncighboring States and needing than
my of them the highest facilities Tor safe and rapid
communication Mere than onc-third Of our
cities, where tho hours OF the business day
are short, where the place OF occupation Is
usually far from the dwellings and where tho
occasions Tor mutual Intercourse are indefinitely
multiplied. This necessity has been peculiarly ict in
New York, especially By the Iaborng aud business
clagscs, whose WORK IS miles from their homes aud
who driven IN multudes INTO ncehborng States TO
save limo they cannot spare and household expcnh-
lures which they cannot afford Tho geographical
position OF the city with Its present population,
makes rIpid transit essential, not only TO pro-
vilc homes other tnan tenement houses Tor
families In moderate circumstances. and 10 meet
tho daily demands or the industrial classes but also
promote the facilities Tor general commercial inter-
course and tho convenience OF millions in the interior,
who IN tue course al each year VISIT the city, and TO al
vance the wealth, prospcrity;and material interests OF
the state at large Tie necessity has been recognized
by the various acts OF the Legislature from year TO
year authorizing The use oi steam IN va
rious forms on elevated and depressed rail
roads IN different parts o! the state and
approved by cacn OF the successive Governors from
1867 wacn the first experimental limo IN New York
city was authorized, down to the Rapid Transit OF
1919. The icasbilty OF rapid transit even less
eligible route and under circumstances much less
favorable than those which now exist has been demon
ftratcd by the practical for years the New
York Elevated Railroad with great advantage 70 the
pubic and with no serious dctrmcnt 10 private inter
css or the prosperity Of the horse railway travcrsing
q portion OF tho same line
WHY THE LAW PASSED.
After reviewing the patent aud invention OF Dr.
Gilbert and the action Of the Legislature thereon,
Juigo Parker continued:-Thc RAPID Transit OF
1879 so nccdiul TO the general interests oil the
State SO just, complete and satisfactory It's pro-
visions, so plainly IN harmony with the terms vi the
constitution and acceptable its feasible ADJUST
ment 81 all Earring rights and conflicting claims that II
was adopted IN both branches Of the Legislature
alter fu discussion, with Immunity for which,
question OF such general interest there scarcely
A MI a IN tyaa
approved by Governor Tilden. than whom perhaps no
New York statesman has been more conspicuous n
rigid constructonist on all questions OF consttut ona
law, and who exercised the power unsparins,y
when any section Of proposed bin OF doubt
fuI constitutionnlity. Ills approval o, the biIi
certainly lett doubt what his judg-
mont undcr the highest sense OF responsibility
upon tho unconstutionaliiy OF the Rapid Transit act
nd upon the necessity for such law, recognized as
IL was with unprecedented unanimty by tho cgisla.
tive representatives OF every county in the State THO
Commissioners appointed by the Mayor designated tho