New-York tribune., 1879-01-07
4 BLOW AT STREt THE1IING SCHEMES.

CORPORATION COUNSEL WHITNEY DECIDES THE
ALpFRMEN's RESOLUTION OS TIE WEBB PLAN
INVALID.
Mayor Cooper has received an important
opinion from Corporation Counsel whitney in regard
TO the resolution Of the Board Of Aldermen granting
permission to william H. webb and others TO lay mains
and pipes in the streets avenues and public places ol
the city for the transmission OF hot water, hot air OF
steam public aud private Mr.. Whitney declares
that the Board has no power to grant the use oi the
streets for this purpose without act OF the legislature
This oplnion II sustained, will also nvalidate the
SpinOa heating scheme passed by the late Board OF
Aldermen. The opinion ia substance Is as lOIIOWs:
The Common Council cannot lawfully gran, the Use OF
the streets for purpose not mentoucd III the ciy
charter unless 10y act O the Legislature. The charter o"
any act of the Legislature does not empower he Council
permit the Of the 81 Gets or pubic places Tor he
purposes mentioned III the resolution ana II Is therefore
invalid.
taOn regard 10 the du alton Of the grant, nor any
reservation Of the right 10 annu IT, renders the resO
ton Invalid 1t is well settled that The Common Council
cannot tie up other officers of the city 10
tie up legislative powers by making contract Of this
character. ,
The resolution is invalid because IL grants franchise
to private individuals The power to grant trGnchSeS
OF tins character isnOw vested exclusively IN eLegs a
turc Neither the old charters OF ihc city nor any ac 0
the legislature erants tue priyleGes mentioned IA thi,
them. and the resolution Is therefore Vod ihehe ONCE
tions sustained In decisions OF COhIts OF Appeals
The resolution Is Invalid because II attempts Ia dele
gate to the Commissioners OF the sinking FUND egsla-
powers which, II they existed, would have To be ey-
.sCd the Common tOuDcll NsrH Inc ftsOillloh
declare that " permission gwen under such cund
and limitations the Commissioners OF the sinking
Fund may deem proper 10 protect the city from damage
ana insure prompt action on the part of the above
named parties in laying said mains under the direction
of the Commissioner Of Public Works" The doctrine
that the Common Council cannot delegate such powers
has been recently Tearmcd by the Court OF Appeals OF
tins state passing upon ordinance OF the Common
Council tnis CITY, which authorized the Commissioner
OF Pablo Works to do certain work upon street III such
manner he might deem for the interest Of the cty.
The Court held that II the work not done by
tract discretion TO determine hour should be done
must he exercised by the Common Council and
that IL could not delegate to tue COmmissiOrc or
OF Public Works the right TO exercise this dscretOn and
for that assessments made account OF tnat
work were vacated. If the Common Council had the
power pass resolution granting the permission in
question: II would be necessary that the conditions
and hmitati " mentioned be prescribed by the
Common Council itself. ! think therefore, that the
Common COnncil cannot lawfully any resolution
which will confer powers and privileges attempted to
be gwen by this resolution.
Mayor Cooper Yesterday handed 10 the old Board Of
Aldermen a veto Of the Webb scheme. Mr.. whitney
held on disputed question OF the Mayors right 10
take action On this matter, that upon veto the old
Board has not the necessary days Of
life. The Board cannot act because all unfinished
business OF The old Board dies with IT.