The New York herald., 1877-09-19


the clause was violated by the Rapid Transit act No
exclusive night or franchise was granted to the re-
clause. Every substantial right existed before the
passage of the act The Legislature evidently felt
all questions in respect them by passing a
general act The act is general in form at
sought to be accomplished would permit
The objection that the consent OF majority of the
owners or tho certificate Of the Supreme Court
missioners DO obtained has application this
corporation, nor docs the Rapid Transit act require
that the act.of the commissioners designating the
routes Is void, because the route designated crossed
Broadway below Flty ninth street, which forbidden
by the Rapid Transit act and Tins point the Court
says-l do not think that such exclusion would in
validate all the routes designated. The commission
ers are authorized 10 designate tho route routes for
such railways and II rs not necessary that all the
routes should coincide The authority is coextensve
With the coincidence Of the route We think that
objection not fatal TO the rights Of respondents
TO order to appraise appellants damages property
In South Fifth avenue. The objection that the Rapid
Transit improperly delegates legislative power to
the commissioners is not tenable. The Legislature
had the power determine all the questions delegated
to the local authorities but there no rule which
orblds the Legislature referring such questions
subordinate tribunal The question of damages Is not
involved IN these cascs To determine what particu.
lar occupation OF the streets Is to deemed egiti-
mate public use involves important and delicate ques-
tons whether the STRUCTURE contemplated to DO
built and operated will be an invasion of the property
OF the building owners in any OF the
damages, whether 1t will be regarded as
legitimate use OF tho streets for tho benefit OF tho
private abutng ownership Is subject to, with
proprety be adjudicatea upon these appeals The
criticisms upon The terms OF the Ordor Is tonabe
The order TO be construed in connection with the
constitution and the statutes, and the appellants will
| constitutionally and lawfully entitled Tho order
must DO affirmed. All concur. F0LGER Justice.
THE ELEVATED RAILROAD
The Judgment In the OF the New York Elevated
Railroad Company having adjudicated the conslitu-
.,onalty OF the az! OF 1915 ~ all ITS parts, yield to
that judgment as the law Of the land, and therefore
concur in this Rappalo and Andrews, Justices,
cur on authority OF lhe same case:
In the matter OF the petition of tho New FORK Ele-
waited Railroad Company John l.. Parsons and George
T. Comstock for appellants; James Emott and a. J.
Vanderpocl Tor respondents Earl Justice. The
appealed from Is assaed upon many grounds, and he
magnitude OF the public ana private interests involved
in TINS matter require that each ground should be
carefully examined and cons,dorsd. In 1866 an
aot was passed supplementary 10 the act en-
Of railroad corporations and to regulate tho same
passed April 2 1861 provided that any number
OF persons not less than ten could 'form themselves
Into company for constructing, manl aiming and
operating railway for puolic use in tho conveyance
OF persons and property by OF propeling ropo
or cable attached 10 the stationary power and that
such company should have and enjoy all tho powers
and privileges and DO subject TO the liabilities men,
ana section rs of the General Railroad OF 1850.
Under that act and the General Railroad act,
as l infer the "Wcst Side and Yonkcrs Patent
Railway Company" was organized, aud thereafter
IN 1867 an act (chap 4Ss) was passed ITO provide Tor
IN the counties of New YORK and Westminster IL
provided that tho railway company just named could
construct an elevated railway along Greenwich street
and Ninth avenue, in the city Of New York, to the
Harlem River, to be operated exclusively by means Of
propeing cables attached 10 stationary engines
placed beneath or beyond the surface OF the
street. short experimental section first to
be constructed within one year and then
upon Iae approval OF the three Commiss oners pro-
vded for the act, the line could be EXTENDED to Har.
lem within five years thereafter IL was declared that
the use such railway IN the streets through which
1t authorized To extend It's line was public use
and consistent with the for which the Mayor,
Aldermen and Commonalty held the same. and the
an rnuI
estate 'unacr provisions OF existing laws author
izing the formation Of railroad companies and
the acquisition OF rights OF way therefor" In 1868
the Legislature passed. act, entitled IAN act sup
plemontarykto chapter 4S9 of the Laws OF 1867
IN the county OF New York certain caseRn 1t ex-
tended the time Tor the construction OF tho experiment
mens be made in different forms OF application OF
the propelng cable or other upon the railway,
ana ior INC constructing company TO ADOPT such form
or motor as lne CommIssohers should, after due cx
pertinent, recommend or approve, and 1t contained
other provisions all germsne to the principal ACT.
FKANcniSk. POWERS PRIviLEGKs.
The most Important provisions IN this act were
those authorizing tho company, which was by the
pror acts confined TO- the use of stationary engines for
motor power 10 use any nodo vi propulsion whcn
should be recommended or approved by the Commits
sioners Objection II made that this Is local act that
its subject not expressed ~ lis e and that hcre
fore 1t Is unconstitutional as IN violation OF section ID
appears to be well oun.ed People vs. Hills, 80 N. Y
449 People Briggs, 90 n. Y 553- -56LJ It not
important now to dcieruin whether II is or not or
any defect that act pSviated cured by the act
chapter sos Of the Laws OF 1875 Juno II of that
year, entitled "An act TO authorize anu require the
New York Elevated RailroSd Company to and
complete Its railroad in the city OF New York and to
regulate the construction, operation and arrangement
thereof" 1t docs not app ear how much or what
''rhe West Sdo and Yonknrs Patent Railway Com
pany" had done toward the construction of lis road
appears in the act of 1875 that it had
done something, and the New York Elevated Railroad
Company ha1 prior 10 that time been organized under
the General Railroad act section hrst ol the act OF
1873 recites the organization OF tho Elevated Railroad
Company under the General Railroad act; and the
purchase by 1t under mortgage foreclosure and sale
anu other transfer Of all the rights powers and priv
eges and franchises which were cSnierred upon the
West Side aud Yonkers Patent Railway Company
by the acts OF 1867 aud 1868 above re-
ierrod to, aud confirms 1t iAe possession
and enjoyment OF the said nights powers
privileges anu franchises fully and At large they
granted in aud tho acts aforesaid
company Section 2 authorizes the Elevated Rail.
road Company 10 construct and plett least
track oil IT'S road along over the streets and avenues
specified and permitted IN the aforementioned acts, in
the mode manner and form prescribed by said acts
except as Otherwise provided Section tho
commissioners provided for in the Of 1867 and
ion provides hat the company may make AID adopt
sucn alterations and improvements in the structure
rolling stock, water power and Its application as
the commissioners should authorize approve.
Section particularly PROVIDES that the act shall not
be construed as authorizing the construction OF the
road along or upon any streets or avenues exc''pt
those specified IN the act OF 1867. The effect OF his
act Wi to SECURE to the Elevated Railroad Company
all the rights powers privileges and franchises of the
West SIDE and Yohkers Patent Railroad Company
under the chase by and transfer H. and tho
right TO any water power tor prop sion of its
cars, which tho commissioners should authorize or
approve.
NO CONSTITUTIONAL OBJECTION
This act did not confer any now franchises upon tho
Elevated Railroad Company. 1t only confirmed and
regulated the franchises previously possessed by the
other company. 1t did not give any authority
lay down railroad tracks grant any exclusive prvi
lcges 1t only confirmed ana regulated authority and
privileges already granted TO Company to which the
Elevated Railroad Company had succeeded. by the
act oi 1867 the Railroad Company required to
sruct the experimental seclion within year legal
delays exccptcd and the extension thereof as
ized 20 far as comprised the limits OF tho city OF
New York within five years thereafter. Those provi-
sions were probably not compied with There
conditions iur non piance with which the soyc-
reign power could claim forfeiture OF tue company's
charter; but cause OF forfeiture cannot be
taken advantage OF or enforced against the cor
poration coateraly or incidentally or iu any other
mode than by direct proceeding lor that purpose
against the corporation and the government creating
tho corporation Can alone institute the proceed ngs
and can waivc forfeiture, and this II can DO ex-
pressly by slaive acts the co
IAnonu