The New York herald., 1877-09-19
RAPID TRANSIT.
Great Victory for New
York City.
ITEAM RAILROADS ASSURED
Decisions in the Court Of Ap-
peals Yesterday.
SIXTH AVENUE ROAD
In Elevated Road on the East Side
TO FOrty-Second Street.
GREENWICH STREET LINE
An Extension to the Har-
lem River.
kTATENENTS nv RAITROAn OFHjCTlTS
In Elevated Road on the East Side
TO FOrty-Second Street.
GREENWICH STREET LINE
An Extension to the Har-
lem River.
sTATEMENTS BY RAILROAD OFFICIALS.


The decisions In the Court of Appeals in favor of
the Gilbert and Elevated Railroad companies to
tto tho questions law and provide tor tho longed
or system OF rapid transit in New York city. There
las been q great deal OF pickering and maneuvring
over the contest among the horse railroad men, but
he following documents leave no longer doubt that
he horse companies have suffered most sign,d-
ant defeat. Tho Gilbert is folows:-
These appeals are from oraers appointing commits
Doners apprase damages In proceedings condemn
lands tor the purpose OF the respondents road. Tho
proposed route lies through South Fifth in The
her premises s in the appellants and not IN the city
Several points arc presented and have been exhaus-
some them not tree from ciniculty. Alter as
luli an examination as have been ablc
oon Ss pUss made wsS
lhal proceed to state, with the reasons therefor,
briefly, without attempting to elaborate the arguments
IN their support. Among the most material of these
points the proposition that tho thrtysixth section
pt the Rapid Transit ac socalled, chapter COG o the
Laws OF 1875, tho first clause OF which 1t is alleged
intended Tor the benefit OF the respondents cor
poratoD, is violation Of some OF the provisions OF
ihe last series OF amendments to the State constitu
tioD which effect 1st day OF January, 1876
before The passage OF the act These provisions
PROVISIONS OF THE STATE CONVENTION
The Legislature shall not pass private local bill
IN any of the following cases:-Gran!ing to any corpo-
railroad tracks, granting 10 any corporaton assocla
tion individual any exclusive privilege, immunity
pass general laws In these prohibited IRON
passing any law authorizing the construction oper
alton OF street railroad without the consent OF
half in value of The property the certificate
Of the commissioners appointed by the Supreme Court
Is important TO understand the status OF the Gilbert
Company at tho time Of the passage OF tue Rapid
Transit act has bearing upon the proper construc
tion 10 be given TO the act in its appcation TO this
company Prior the passage of this act aud before
tho ndments OF 1875 took effect, under the
eve acts o 1872, 1873 and 1874, the Gilbert Company
became Incorporated for the purpose OF the construc
ton and the operating OF an elevated steam railroad
Two sets OF com mmssionefs had ia pursuance Of said
acls designated tho routes over which the road was to
be constructsd and the corporation authorized
tho fullest manner 10 occupy the streets and avenues
designated for that purpose. Authority also
conferred condemn lands Under the power Of emi.
ncnt domain. The city authorities were prohibited
from giving PERMISSION TO any other person corpor-
to do uny OF the which authorized by
the act TO be done by this corporation. and were OK
out the purposes OF the laws. Thus It will be
that tho time Of the passage Of the Rapid Transit
act in 1875 the corporation was tho grantee the
right 10 lay down tracks upon tho elevated plan
described In the charter, and had all the incidental
powers necessary Tor that purpose The Charter had
not been forfeited. nor had there been failure to
comply with the conditions imposed IN respect 10 tho
time OF building the road.
WHAT THE RAPID TRANSIT ACT AUTHORIZES
The Rapid Transit act authorized comprehensive
and Independent system Of rapid by elevated
ment Of commissioners by the Mayor TO determine the
necessity for such railways, to locate routes, fix
upon tho plan OF construction, organize and put
In operation corporation with powers defined
by the act, ana then by the first clause
Of tho 36th section which In controversy here
provided that "whenevcr the route routes deter.
mined upon by said commissioners coincide with tho
routes covered by the charter OF existing
corporation formed for the purpose provided by
this act, provided that said corporation has not
forfeited It's charter failed to comply with the pro-
visions thereof recurring the construction of a road
roads within the time prescribed by it, charter,
such corporation shall have the like power to
construct and operate such railway or railways
upon iuGlmcnt OF the requirements aud condltio
imposed Ny said Commissioners corporation
specially formed under this act. Tho comm ssioncrs
t.,t tnr that fho
Gilbert Elevated Company, but required changes
in the form OF the structure in portion OF the streets
located ut the curbs. as provided in the charter
10 structure supported by nprigh; posts
ourea reane,,on Of fare aps Inc anu upn"s nc
o extra trains ut halt fare for the benefit of the aoo
ing population. all OF which has been asscnted to by
she company." point was aso made that the CO IN
mlssoners made more radical changes OF the
from tubular railway, TO DO operated in whole
part by pneumatic power, to an open steam railway
but IN the case OF the Sixth Avenue Railroad Com paiy
against the Gilbert Company, the eviuence findings
Incorporated into the papers In these cases
is found that The charter contemplated open rail.
way to be operated by steam power aud such
ana ns ps0pfs facts povsa ''sm % ,sa nG
shis point, whether important not may be regarded
as out Of The case It Is pertinent also to refer to tho
hon in favor OF the OF acts OF the
Legislature
GRANTS OF rHE LEGISLATURES.
An adverse doubtful construction is not sufficient to
condemn act 1t is only in Of clear and sub
mental law that Courts will declare of Legis-
,a'ure Invalid 100 ~ Y, o.; 80 n r., 553; IA
q distinction tins respect between the State and
Federal constitutions. Tho former grants to the
State and Assembly all legislative power not prohibited
by the latter, or excepted by the instrument ITSELF
Tho latter grants 10 Congress specific powers only,
henco tho exercise Of Legislative power by the State
Legislature Will be presumed institutional uLdcr tho
general grant OF power, and will be sustained unless
brought clearly within some OF the exceptions; while
similar exercise OF power by Congress can only be
in O
power exercised Assuming that ''the corporation
having coincdent route or routcs," specified tho
Both section Of the Rapid Transit Act, was do.
scripve OF and was intended TO apply only to Gill
bert Company, the first question is, in view OF the
facts and rule OF construction referred to- whether the
Legislature did ny that act grant 10 tho bert Com
pany the right TO lay down railroad tracks within
The moaning Of this clause. The right existed prior TO
the passage Of the act and that right the Legislature
Intended to protect. The recognized in
the corporation was formed for the purpose provided
by the ACT, which purpose was TO bud and operate an
elevated steam railway in and through the streets OF
the CITY. The Legislature sranted that right to the
now corporation authorized 10 DO created, but the
company already possessing that right. whose route
or routes were satisfactory 10 the commissioners was
intended 10 De recognized aud It's powers confirmed
The changes required wcro restricted IN character
Bv the charter the whole street to pe covered by
the structure. BY the conditions imposed only por-
ton OF some streets could DO occupied. ihc rcduc-
tion OF fares and the requirement for extra
Of existing rights cannot accodc TO the propositon
that any change the structure and III the OF
occupying the streets, however restrictive upon the
company beneficial TO the public In tue Of tho
streets constitute fresh grant OF the right TO lay
down railroad tracks. IL Is msnolner 10 call such
RESTRICTIONS grants OF any right whatever. In my
Judgment act restricting and regulating an existing
right TO lay down railroad tracks grant OF shat
righ within the meaning OF this clause. 1t Is not
within tho letter OF the clause nor within the evils at
which the provision was aimed.
DECISION IN THE GILBERT SUIT.
The next question Is whether The RAPID Transit act
stespcciaiy Tho thirtysixth scction violates the
other provision quoted prohibiting the Legislature, by
q private or local bi from granting to any corpora
ton association ipdivdna any exclusive privilege
immunity or franchise whatever" 1t is not easy to
gAderstand precisely what was intended ~ this