The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1877-04-30
RAPID TRANSIT.
CONTINUATION OF THE ARGUMENTS IN THE
COURT OF APPEALS FOR AND AGAINST THE


the appeal from the decision orthe supreme Court
General Term. IN favor of the Gilbert Elevated Rail-
road Company, which appeared in Saturdays HERALD,
there followed tho arguments Of Mr. Aigernon 5.
sullivan in favor OF the appeal aud Mr.. Samuel Hand
opposed The Gilbert Elevated Railway Company, Mr.
SULLIVAN said, incapable of receiving any bene-
u from of exercising any privilege predicatod
upon the action OF the commissioners appointed
under tho act OF the Legislature passed June
Is, 1874. By the act OF Its Incorporation
the petitioner Incorporated, not ordinary terms
TO construct and operate railway by steam, &c, but
10 construct and maintain an elevated railway, to be
operated by the plan known "Gilbcrt's improved
elevated railway" Tho Kind OF railway specific
"a tubular way and railway"-end further specific
designation to the grant required that the railway
should be substantially supported above the middle Of
the streets ana avenues by iron arches, which shall
span from curb to curb, tho bases of which
shall not, when practicable, be than
sixty feet apart" The object the subject
the mode or calculating either both
welded into ooe grant OF authority, making ono
franchise The company was born with this composite
character. TO eliminate either element would change
the franchise as completely as brass would be changed
were the copper extracted IRON IL and the alone
left The shows that the company, asking take
this land ADMITS that IL IS not seeking carry the
above expressed charter limitations Substantially 1t
4
ter co0, Laws lsi5by virtue OF which right could be-
aud. IN TACT, has been acquired abandon
HE construction oil railway described IN terms
III the petitioners charter, and yet 10 retain the ben
eh oil the original charter raIchisc thus curtaca
with tho full powers to acquire iand originally granted
with the new privileges and regulations coded and
posed by commissioners provided for in the last named
act II the notifications IN the nature OF the structure
OF the railway by The commissioners ana
the petitioner were PROVIDED for IN separate aud
special act oil the Legislature, dated alter the amend
mens IN 1915 oil the consituton In section Is article
3. The net would DO Ineffective Alter 1874 special
act could be constiiutionay passed creating corpora
ton the object oi which TO Jay down tracks
An act amcndatory OF such charter would, II passed
| after 1874 DO ineffective The inhibition Covers tho
unit act and ali It's fractions aud all attempts TO patch
| It, That which the Legislature lacked power to
complsh IN direct way they could 10 by indrec-
ton, us by deputng to commission power 10 make
new powers aud privileges or corporation already
mouaed IN lis original character. Even If the changes
| in the Original plan OF the Gilbert Railway, con-
coded by the commissioners under the Rapid Transit
act were sucn as the Legislature would have right TO
make after the yet utng
70 commission 10 exercise thus power would
authorized under the constitution. The change itself
being legislative In character demands the express
touch OF the oniy legislative hand the Legislature Of
the State Tho petitioner was, IN tho oct by which II
was created framed Tor certain use OF the streets of
New York. Nothing that respect was left indefinite
and each OF the features OF that essential to
tho very existence OF tho grant as a whole and there
fore, BY SO much the more is the agreement strength
ened, that only by the appropriate legislation could
any change DO made. Tho Legislature may not divest
themselves OF their responsibility by referring
TO u vote OF tho entire people, Legislative power
is by the constitution committed 10 one body and
void for tho reason that the fact OF It's becoming law
is made TO depend upon tho resulLof popular vote,
assuredly the Legislature cannot make the TACT OF
amendment TO charter OF railway depend upon tho
judgment OF five citizens la this case the Legislature
DO not even enact certain changes IN the railway char
ter to the OF the streets and make them opera
tive upon the happening OF certain event, but II is
claimed that the commissioners having proposed the
changes In question and the railway company having
nsscntcd thereto that these changes become u part
oil the law or charter OF the company. The opinion
OF the majority the honorable the Justices OF tho
General Term from which TINS appeal IS taken, rests
Ia hsrs paaw uos
right 10 adopt the mode prescribed by the commits
sioners TO be appointed, and upon iulnlmcnt OF the
requirements and conditions imposed by them IL was
not right gwen TO create construct road rail-
way for that had already been granted and secured by
the charter OF the company but TO exercise the right
in manner, other and different It might be IN mode,
from that required by its charter. IL authorized
change IN engineering and In tho mechanical details OF
tho supersructure After some further from
tho decision OF the General Tcrm already published.
Mr.. Sullivan continued Now, when the commits
sioners remove the position Of the pillar supports
from the curb into tho roadway, compelling every
pedestrian or driver OF vehicle TO change his limo
or motion tho street, by taking INTO account
these pillars occurring every hity feet. can Il ba
changer the rapid transit on tho supcrs.ructure
would by tho effect OF these highway pillars, be So
surface Tno use Of the street would be-
oughiy altered The petitioner comedies that IL
not complied with any OF the provisions OF article 8,
section 49, OF the constitution AZ amended. That
tcle Is that no law shall authorize the construction
or operation OF street railroad except upon the
value OF the property bounded on and the consent also
OF The local authorities having tho control OF tnat por
ton OF tho street or highway shall DO first obtained.
The Rapid Transit act imposes tho same prob bition,
and Il all other objections asde the petitioner
could not proceed 10 construct us road or take private
property until should have complied with these pro-
visions, The order appealed from should be reversed
Mr. Samuel Hand followed on behalf OF the company,
Concluding the discussion by long and iorciblc argu
ment IN favor OF rapid transit and OF the right OF tho
Gilbert Company to construct such road Is pro-
posed. Besides eaboruting many points already dis
cusscd by Mossrs Anderson and Porter he presented
number OF new and strong ones He maintained
that tho RAPID Transit act valid In
conflict with tho constitution; that the geo.
graphical position Of the CITY. with IT'S pres.
ent population, makes rapid transit essential
not only 10 provide homes other than tenement
houses Tor the families OF those moderate clrcum-
stances, aud TO meet the daily demands OF the indus
trial Glasses, but also to promote the facilities gen
eral commercial intercourse and tho convenience Of
the millions In the interior who tho vf
year VISIT the city and to advance the wealth. pros
pcriiy and material interests Of the state at large.
The necessity he said, had been recognized by the
l., gisature from year year by authorizing the use
OF steam various forms in different parts of tho
State as was evidenced by nearly forty acts on that
subject since 1851 SO necdiu the RAPID Transit
act Of 1873 to the general interests OF The STATE
lust complete and satisfactory In ITS provlsions 80
PLAINLY harmony with the terms OF the constitution,
and 50 acceptable III It's equitable adjustment OF all jar
ring rights ana 'onilictng claims that II adopted
IN both branches OF the Legislature, alter iu dis
cuasion. with unanmlty Tor which, on question
OF such general interest, there was
Ia the history OF the government. The concurrence
OF both branches OF the Legislature, through long
series OF years, and OF all the successive Governors
cdcH OF. tue POLITICAL creates
strong aud controlling presumption favor OF tho
series OF laws, on the faith Of which immense
have already been invested BY the respondents in a
pubic enterprise OF clear and acknowledge necessity
The GILBERT Elevated Railway Company author.
zed under IT'S charter and prior to tho constitutional
amendment construct and operate Il street railway
on the route IN question, not tuDcway Tor The
atmosphere transportation OF passengers but open
elevated railway IN which passengers could be
ported by steam. and with tubeways for the
ssOn Of signals and packages. The right a street
railway had neither been forfeited nor revoked. Too
changes IN the supports, dispensing with arches,
diminishing the extent OF Lne structure the
am reducing the sizc Of the supporting columns
within the reserved power OF the Legislature alter
or amend the charter The alterations DO not Affect
the franchise the title OF the grantees.
CONSTITUTIONAL amendment Impair their rights
Tie thirty-sixth section OF the Rapid Tra0slt
act does not require consent Of and does