New-York tribune., 1877-09-19

the city ought he built. liked by inc
missonets This report confirmed by al order oI re
General Term Of the Supreme Court, Naich lb, iolo,
and II Is this order which is the snp1ect OF 'lS alPu @
The arguments made 10 show tat the L'gisl! ure WIS
not competent 10 devOlve upon these commissioners h
power given them IN ths act II sound ana iosi'"6 W m
plen' wOulu huIhy every s,nel"i IT,. 80 e',r,.,
upon Statute books for the formation OF cIrl.s-
ranons; and thus nulfy the ConsntniiiOn 'sii', /,
wnicI commands tho passage O. such general Jaw go
II would not be fasibe to permit the formation OF seI
oTal corporations TO op rate railways III lhe Sdlnv
nor would II be wise 20 leave railway 10 ne coisi @
by the corporat which by accident was first IN time
nor would thr same plan Tor ibe construction anu i,c w.
Hence, it became the duty of the Legislature,
machinery, which should dternne inc eeeS-ity 1i M "a
railway. aud the streets ana IlIcfs Wheie u toau @ p
constructed the comr0uy OF orgiHa OF ti r.
which should construct it, and tle plan upon Whleh ~
should be constructed While uUon any lout5 tiV ~
chscs given 10 oorperauon, the 1"ilh .on ",
that corporation is open to Ill persons up,h , tne
Same terms. and m person Is SNciuiSSd SN,S,,d aip IN
this act seem 10 be well devised % attain end sogt
and il is quite certain that without some such metos
can entertain no doubt that this Is general act within
the meaning ottAe Constitution
THE ACT Nor A PRIVATE BILL
more serious objection made that Section TLrty-six
Of the act is in conflict with the Constitution Inc
act does not confer upon such railway company even
the exclusive right any street for the route OF its road
but the rigut would not be exclusive within tile meaning
Of the Constitution even If but one road could ne b "a
any aree so ons ep as pI ts aet nave not the
exclusive right TO carry Heigbt ana passfnE"els "
ration and am unable to see now lhis sC' d
upOn any ra lway company existing or 10 pc loImru
Hereunder. any exclusive privilege or ttancnse loo
than is conferred bv general Railroad Act or $500
upon corporations formed under II. Inc i0catY hiu
the necessities of The may be such Under tat act
well under this mat route may pe CA
cusiyey occupied by one railroad. nrt tnM na, is
six conflict with the Constitutions because t is
private local bill granting tne right TO lay down railroad
gen raj law, grant Dg TO specific corporation, the
night to lay down railroad tracks, might be as m9eh
nrcf
grant were in separate private Dill:
II not he presumed Inferred that the Iegsatnre
intended violate evade the constitution al restraint.
The does specify any particular steam railway IN
actual operation; but in its terms applies 20 any ana M
such railways, anywhere in operation How are we 10
M, M" t' h nge of inc oct3 can Court lake proof
for the PURPOSE showing statute, valid ana regular
upon its face to be uncons uona; and does tIe van
~ of law which IS required to be general Gnu rs
general in terms, depend upon the number oi SUD
iecst upon which IL can operate, or upon tGe
sz OF class to which it applies These questions nns
be ansW cred in the negative. We DO not Know ana we
that the Legislature knew tat mere was
hut one elevated steam railway In actual operation
There ad been passed several Acts under which such
railways coud have been constructed
DECISIONS OF THE COMMISSION.
It is further claimed that provision Is made in the
Act for compensation the OF property bounded
upcn the streets in tle City Of NewYork through which
the New-York Elevated Railway Company is authorized
TO make connections and that therefore, section 3d.
far relates to this company, uDconst utona Is
upon sucl streets nave proletiy rsi.s teIcun VI w
thev to be de rycd ana for which they are entitled
have such property rights II will not he necessary to de-
termIne upon tns appeal, Tor the reason thai
II is entirely clear that this company has III the author
y conferred in the Gene al RIlr0af Act, 10 take and
E ccal rIcccodngs IIoyI0td; aId section 3G 81
the Rapid Transit Act proyd that the Elevated Rail
road Company may construct the connecting rOnics
with an the UgHts and Ike effect as though The
same been part OF tine original route of such rail
doubt tUat ample provision made for c0mpc s1ton for
any property n Its abuttins owners may nave IN nc
ttona objections which call for he r"vcrsa Of The on
der appealed rom. and now proceed 70 tie examina-
Il OF the objections made 10 he proceedings under the
u IL. ti'.'D i,resent M, = .1i.,us iiGic1ltles
The Suurelne Court COInuissO n fheir detc nina
ton tnnt tie road ougut TO he constructed coincD ~
auf.orz,d by the Mayors Commissioners. IN
this II is olg.c'ed thar they exceeded Their
n ra.ua,n The Ts raad company Rad tie choice
Of several methods, aud il might possibly compain NJ
heinz confined by the Commissioners to one; but n
To ouIt Guesi on for the erntion of the Supreme
Court Conn siomers WIS., whether the road upon the
dcienaicd ought 10 be constructed and operated
ana his, IL view Of al circumstsnceS, they determined
matters not that they required perm. tied 10
detmue whether the particular roate selected was the
Tie route was 10 be determined by the MAYORS Com
mssOners, and even II that was not the ony feasible
route OF he best Iou'e. these Cmmnissloh'Is
wrre TO determine, IN view OF al he con,
side;arona whether it was TO be constructed
up1n that route. II anv better route left,
some other roid might be constructed upon that.
II no part OF thcr duty TO review the
determination OF the Mayors commissioners that
Ioute sci, ced the hest least. proper route
Whether hc netS 70 follow from the construction oi
the road such 10 cOuntebalancc the injury which
should he private Interests from is opera lon
was question properly before moth set OF commits sion
els and with their determination of it cannot. at
least ought not, upon this appeal. To interfere.
have thus given careful consideration to all the OBJ
iecuns TO which attention was called upon the ar-
euuent Of this case, d conclude that there
stitutiolI objections TO the Rapid Transit Act and
valid objections to the proceedings under the act and
taat the order appealed from must be affirmed.
Church. Ch. Judge, cuncurs.
Allen, j. concurs. (see memo by Allen, j.
FOlgci, j., dissents.
Andrews and Rapao, j. J.. dissent the ground
tha no provision made for compensation Of abutting
owners.
Order affirmed