New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1886-12-05
THE BROADWAY ROAD SUIT.
ARGUMENT OF THE ATTORNEY G ENERAL

JUDGE PECKHAM ADJoURNs COURT AND WILL REM
DER DECISION on DECEMBER %.
ALBANY. Dec. 4-The battle between giants Of the
legal profession the franchise of the Broadway
Surface Railroad Company, which has been progress
ing before justice Peckham in the adjourned October
circuit since Wednesday morning. was brought to
conclusion at noon to-day. The concluding argument
was made by Attorney General O'Br:en. who con-
tended that the city had 10 power to convey any
interest in the Broadway franchise to any corpora
ton or individual and that that right vested in
the sovereign power which conferred the right to
grant such franchises upon the city. right that was
revocable at the pleasure of the Legislature. The
Broadway Surface road was created by the
sovereign power. which gave it 1000 years
TO live or such shorter time as the Legis-
lature might decide, and when the Broadway
Surface road expired corporation the franchise
also expired He granted that the company could
mortgage what 1t had but when it lost its life
its anchlse ceased tc exist "a comps.ey as though
rever created The franchise conferred he rieht to col
matter Of bargain and sale He further contended tnat
tue repeating act and the franchise disposal acts were
OF tnat view.
The Attorney General said that he conceived his
position In the case to be not that of partisan advocate
He considered that his duty would be performed If he
presented ful'v such considerations upon the law as
would assist tie Court arrive decision OF the ques-
uohS many OI lle QutSuouS oHcc ue'Hcu
vital In the case he sad have dropped out of it The
right Of the people maintain the action stands con-
ceded and the regularity Of the appointment OF the re-
ceiver now seems to be admitted. The claim OF the
directors to be entitled wind up the affairs Of the com
pany, as trustees in liquidation under the revised
statutes, does not to have much force.
The main question in the is that OF the
constitutionalty Of chapter 271 OF the laws
of 1886, commonly known the Franchise Disposal
act We affirm and insist that that act is
constitutional The franchise to railroad on Broad
way came from the Legislature and not from the Guy.
and the Legislature had the power 10 take away thao
franchise Prior 10 the amendment OF 1874 the Legsa
ture might have Incorporated street railroad companies
by special act Is there any doubt that II might also
have repealed such special act thereby wpng out an he
rghs mt upon d street tree railroad t anT anS
less the of street surface railroads than was
cden bsore 3 e se e o he has
paramount control OF all the highways OF the state, ana
ne from
been claimed here that the right to run railroad on
Broadway Is property not TO be taken away save by que
process Of law Well so is life estate in land property
that may be leased or mortgaged or alenaed put
the death Of the life tenant So ali property interest in
the Broadway Surface Railroad franchise or easement
ceased with the repeal OF the charterhe destruction Of
Act not only authorized the formation or the street sur
only source of power 10 such corporation to the
streets The consent OF the Board OF Aldermen ana te
order Of the General Term the OF such
power All that such consent and order accomplished
was merely to select the persons who might the pow
conferred by the Legislature The right thus conferred
BY the Legislature to Broadway for railroad purposes
not iIrevOcabe asst enable right. IL was
reyOcable license IL taken away and destroyed by
the repeating act The Greenwood case, 1O5 United
States expressly holds that the right to run street rail
road perishes with the repeal of the charter OF tue rail-
road. A., -.,
OF the Broadway charter, would i'll the case OF the Legs
lature making different disposition OF IT, have reverted
to the state The Legislature, however, saw tit TO pre-
that franchise for the benefit OF the city OF New
York. perfectly valid exercise of legislative power Of
every intendment is In favor OF the constitution
aty OF the legislation Ii is insisted on the part OF the
people that and mortgages made by the Broadway
Surface Railroad Company entered into by the
parties in the full contemplation OF the possibility OF inc
exercise by the state of its power OF repeal ana that
ynnd me life of the corporation We also affirm that the
leases with the Broadway and Seventh Avenue ana
Twentyhird Street Railroad Companies were invalid
from their Inception the lease of the former upon the
ground of the roads and both leases be-
neither OF said companies authorized by law
to railroad upon Broadway"
At tue conclusion OF the Attorney Generals argument
he closed aud briefs were handed up Oy every
o. the dozen lawyers present, except Judge carrier
VINO ID his would bs forwarded as soon as possible
Justice Peckham remarked 1t will bo to your interest
them here as possible. After discus,
sion among counsels as To when an adOurnment snouu
be bad, Justice Peokham said:
really have but next week in which TO give proper
consideration OF the next saturday nave 10 20
down In the wihis OF sullivan County 10 open circuit
there the Monday following and probably may moi ne
back until the tnrl from D0w The case mere Is
only 1ghtng for position. Ii Ia lot so much what we
those views, infer that the Will be taken 10 te
Court Appeals and possibly to the supreme Court OF tne
UniIed states. There are no questions q" TACT nVoVeu'
only questions OF law, and they are all capaDle OF review
will doutn court until Thursday December 20, AT ~
IN. when will announce my decision Then VIII
allow days for the respective counsel TO submit tn"
Will permit OF their Deng signed aud nlei Deiote JAnu
ary1