New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1886-12-25
,JTDGE PECKHAM'S INGENUIIY

Mr. Justice Peckham's decision in the Broad
way Surface Railway case is clever. 1t may not
be learned or profound, hut it is clever. 1t
SHOWS that the bench of the Court Of Appeals is
to be reinforced with man who is capable of
mental subtiities, and of placing himself III
position which, however weak it may seem, is
really almost impregnable. If this decision,
which concerns an issue of property rights of
very grave impor lance, both in its immediate
and in it's after effects, is a sample of rdgo
Peckham's judicial acumen, it will have to be
conceded he lacks neither wit nor force.
After few years experience on the bench,
Judge becomes exceedingly wary how he in
terferes with the rights of property or impairs
the proper operation of contract. Cases in
which this is demanded of the court may be
presented in auy one of hundred DISCUSSES,
but the judge is exceedingly apt to tear away
the cloak and bring the parties to such an appl-
cation back again to first principles The cloak
under which the Legislature sought to aDnul
the Broadway franchise and preserve the con-
sents was very thin one. While the consents
bill was still pending we felt obliged to express
a doubt IT. in the shape Mr. Conkling gave it,
it could sury i've an attack in court But we did
not contemplate judicial thrust at once so
delicate and so deadly as that administered by
Mr.. Justice Peckham.
Apparently none Of the lawyers in the case
looked for it either. The counsel for those
persons IN whose favor the decision operates
did not suggest it, and the counsel for those
WHO were endeavoring to sustain the legisla-
ton did not meet it. The lawyers on both
sides submitted long and ponderOus arguments
upon the constitutional question, evidently
surprising that this was the great phase OF
the dispute which must be fully canvassed.
Each side had apparently cornered the judge.
And yet, avoiding her argument and without
upsetting any established principle OF law,
evading the question as to whether or not the
franchise is property within the constitutional
protection, Judge Peckham maintains the judi
ciary's prejudice against any attack on property
rights. and affords convenient way of hold
ing all kinds of acts imperative which affect
these rights.
He says that it was the intention of the Leg
islaturc that the franchises of corporations
created under the Act of 1884 shall continue
although the corporation itself might become
extinct. This is a simple proposition, and the
judge supports it with an argument both ingen-
ious and powerful. 1t introduces an entirely
new issue into the case, and no one can tell
what the Court of Appeals will do with it. 1t
is, of course, success for the bondholders
and the Broadway and Seventh Avenue
people. Financially, the City of New-York is
not much hurt. The lessees of the road must
carry out their contract, which is by no means
so tad as it might be. The parties most seri-
Ously affected are those composing the political
ring " hich seemed to be endeavoring to gobble
up the remains of the Sharp combination.
Judge Peckham completely ignores the Messrs.
OBrien. The receiver. as one consequence of
the decision, will not hereafter receive the
rental which he is now chaI ging the lessees
and must pay back what he has already taken.