New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1885-12-05
NO RAILWAY FOR FIFTH AVE.
DECISION OF THE ATToRNEY-GE
TIE ACT or 1885 yALlD-No ACTION TO DE TAKEN
tBr TELEGRAPH TO THE TRIBUNE

ALBANY, Dec. 4.-Attorney- 6 General O'Brien, this
afternoon in the Of tho application OF Clarence
Seward for the vacation of the charter OF the rhth
Avenue Railroad and for injunction on the Board
of Aldermen gave the following decision:
"The Fifth Avenue Railway Company was incor-
porated the 9Th day of September 1885, by filing
the articles Of association prescribed by Chapter ZoZ
of the Laws of 1884 with the Secretary of State The
object Of the corporation specified in the charter is
TO construct and operate street railway in tle city OF
Ntw-Yorl commencing at the southerly end of South
Ffth-ave at Canast., and running thence northerly
with double tracks in through and along South Fifth
ave. and the public street through Washington Square
to Fiith-ave thence northery in, through and along
Fitth-ave. ia continuous line TO the Central Park
at or near Fifty ninth-st The Act of 1884 authorizes
the formation and organization Of this corporation
except so far that act is limited and modified by
Chapter 81 of the Laws of 1885. The three first
6ciions of this act make provision for paving Filth
ave. . The fourth section is in these words;
Except for the necessary crossing of railroads laid
to be laid upon Fifth at tho intersection OF
other streets, railroad shall be laid upon above or
along any part of Fifth-avc. the city of NewYork.
If this provision is valid it apparent that so long as
1t remains unrepealed no street railway can lawfully
be constructed upon Fifth-ave. 1t oontenc ed by
counsel ia behalf of the Fifth Avenue Railway Com
pany that this provision of the statute is void because
repugnant to that provision Of the constitution which
provides that no private or local bill which may De
passed by the Legislature shall embrace more than
one subject and it shall be expressed in the title and
also that it violates Section X of Article Ill. which
prov ides that the Legislature shall not pass private
local bill laying out opening altering or discontin-
uing roads highways, alleys. etc. or granting to any
corr Grafton association individual the right to lay
down railroad tracks. other provisions of this
section.
-" do not think that the restrictive clause in the Act
of 1885 prohibiting the construction of street rail
way in the Fhaye Is volative Of auy privilege of the
Constitution of this State and from the examination
that have been able to give the question, conclude
that this provision valid and operates to prohibit the
Fifth Avenue Railway Company from occupying the
street for railway purposes aud the Mayor ana Coln-
mon Council of the city OF NewYork from PaSsing any
resolution authorizing the street to be 40 used and
occupied The railway company has presented petit
ton to the Board OF Aldermen of the city OF New-iork
asking the consent of that body be given to the con
structon of its road upou and along tins street.
Notice OF this application has been published as re-
quircd by the Act of 1884, when all parties in interest
may be heard thereon. Except to present this peti-
ton to the Common Council and the uccessary
notice of the Application To be published the Flith
Avenue hallway Company has done no hlng ~ inrther-
aurc of the object Tor which incorporated cN-
cent as | understand. TO organize by the clrcuon Oh
officer, aud to procure subscriptions to rs c'Rtt'
stock. The Common Council 81 th' cry 81 NeW -iorN
IA. not vet considered acted upon the Application OF
the railway company. aud IL am right IN assuming
that tie restriction IN the Act OF loo3 is valid Ms con
.ont would not authorize tie construction oi railway
in Fiuhnyc because IL woud then be gwen IN viola
ton oi au act of the L. glsaiurr. 49,,
At this tagr of the proceedings on the part oi the
railway company and on the part OF the local autofi
rs Of the city of Ncw-lorE the Atturney' oucial Is
requested to begin in the name OF the people ia inc
State two actions one against the rum A'el'e nan
1s.rtfN 40 ~ sft
apnoint receiver Of it, effects upon the groun's that
n has forfeited its tranchi- in that It L. peri'rHIng
nets and exercising not authorlzcl by 10" ana
another AGAINST the Board OF Aldermen OF NeW-l"f".
c,.ioIniug and restraining it from considering ana
granting the application 81 the railway Company An
that can be acsct against the company so lar j l"'
il ha. filed article, Of ussociaton and become
incorporated and organized Tor the purporr' l con
structius a way in place where ny statute IL IL
dcclc,d that no railway shall be cot etrnctcd rs 10
"A portion OF the rOuto mentioned IN the articles oil
association beginning at the southcrly end oil Soih
Fith-ayc and Canals and running thence h'rtn'lS
with double tracks In ANA throGsh anu Wo"s o",m
Fiith-ayc aud the public street. through harrington
Square to the Fthayr, this torpoTtioh is not pro
hbitcd from occupying the street. or constructing IS
road. Ia my opinion. the grounds suggested a. tue
b,-is OF action to annnl and vacae the charter oil
the company. would be too mario" ana tccHh'.i "r
the Attorney General to proceed upon III behalf oil the
p6oplc 10 dissolve thi, corporation.
In the first place. the statute Is IN the way In the
second place the Common Council may not consent 10
the occupation Of the street and II the IN nhers oil
that bod should consent. their action Is sun rh'l'ci
should concur in dsre gardmg the statute "hch Il not
to bc prc,umou the company would still have TO make
An ~ pcatiun 30 the Supreme Colrt Tor the appn III
uru of commissioners uul's- the property owners on
the street should give them consent and II the ie,c
tom i'm the Act of 1850 Is valid. the court would De-
constrained To deny any application for the appoint
mcut of commissioners. In ItEhIH To- NV
action against the Board of Aldermen the same oblrc
tons arc applicable IN my Ju igment. am not VIKING
now To ASSUME hat this body VIII, IN tue lace q"
hitpry statute give It's consent 10 the Occupation "l
Fith-ayc by any railway company, nor can assume
that any local legislative body or the officers q" any
municipal government will. in the absence oil any
udIcia dei, rnnation decide for themselves thil me
Act Of $50 i. in violation of the constitution.
II the Common Council should pass the resolution now
pending before It, ! cannot assume that the mayor
could nor iut,fuo.r Li. veto II, however, the
Mayor and Common Council should concur IN lt' pas
SAGE il would still be absolutely void according 20 ns
view that have taken in regard to the validity 81 the
restrictive section in the Act of 1880.
"Whcne,e t / am satisfied that the public interests
are to ~ Her in consequence of any unlawful aruon 81
either and this interest cannot be sufficiently Proeoeu
by the vi laucr action Of private citizens an" Jay
payers will not hesitate 10 interfere lhl7 tihe' Al
my opinion has not yet rri'od, aud - not lih' I"
arrive very soon and therefore think the application
should be denied"