Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1893-01-20
Additional Letter from Judge shea

New York. Jan. IT, 1893.
Hon. y. n. Harris:-
M Dedr Sir have yours of the 18th.
enclosing slips from our Brattleboro news
papers, containing my letter to you on the
proposition for street railway in our vii
lage | am much pleased by the respectful
,nsideration given to my opinion by the
editorial comments, and by the kind man
ner in which | am personally and profess
sionally mentioned: and this feeling of re-
gard is not diminished, but rather increased,
by those civil comments coming from those
who dissent from the conclusions to which
my own knowledge and judgment have
conducted me. But find nothing to change
my opinion on the subject The decisions
to which those comments refer are mostly
familiar to me, especially the Kerr case,
for, until ] undertook judicial service.
was the chief counsel Of the Sixth Avenue
then the GilberD elevated railroad. 1t
was out of that enterprise that that litiga-
ton afterwards arose.
The Kerr case would seem TO offer great
encouragement to street railways TO usurp
and occupy the highways of streets; but
the issues of fact and of law in that litiga-
ton are neither of them probable to recur
Yet the court of appeals of New York, with
the good intent to previse and cover the
whole ground of controversy on new ques-
tions, likely to occasion prolific law suits,
did, in its published opinions, exploit cog
nate themes far beyond the range of the
issue itself. A not unusual result followed
that benevolent intention: The railway
companies, in their free interences went
on with invasions of private rights in the
public streets, and the courts found it i'm
perative, at length to abridge the seeming
purport of that and like judicial utterances.
SO. later decisions adiudging such acts of
the companies to be without support of
law, the elevated railways in New York
and in Brooklyn have been paying dear for
their ventures. As said to you in my for
mer letter, the ancient rule is resettled; and,
] now add, is resettled firmly apparently.
The legal proposition may he thus stat
ed: The paramount power to acquire pr-
vate property-that is the use of it's in
the supreme authority of the state. The
state itself, even, cannot take it but by due
course of law, and with adequate conpen-
sation. The state can certainly commit an
authority, known as the right of eminent
domain, to a private corporation so far as
is necessary and convenient to serve its
corporate objects, and so as to enable it to
use--mark the words, to enable it to dc-
quire the use--of land: but, as in the case
of the state itself, only upon paying proper
compensation. The superior authority
cannot commit to its own creation greater
power than its own. The law administra-
tive has, in all civilized countries, held this
principle in most sacred esteem. and has
guarded its exercise with scrupulOus fidelity
and strctness.
| shall not engage in an irregular discus
sion in the press upon this most important
subject, though one sentence in your letter
seems to wish it. Erratic discussions, be-
fore tribunals without jurisdiction TO de-
termine, are simply beating the air. In
deed, | would not have written this addi-
tional matter to you, We're it not that a
reciprocal respect for the polite editorial
comments demands the Acknowledgement.
| have have had some familiarity in more
than 40 years of juridical and judicial la
bors with trials by jury; am not without
some acquaintance with trials of issues of
law before the bench, but | must confess
my indispostion and inability for the trial
by newspaper of questions of law. And
even if its determination approved my ar
gument, | would not know where to find
the proper prothonotary office to enter the
record of the triumph.
believe, my dear sir, that the subject
for its true practical and business interests,
will find no better tribunal than that which
the common-sense of our own townfolk
| offers; and if the people and ''solid men
of Brattleboro think the necessity exists.
and that the proper time is come, to yield
up our streets to a greater occupation fol-
public convenience, and especially for bust.
ness requirements, shall not be found
among factious Instructors. But cannot
perceive that the necessity exists, nor that
the time is come as yet. am a sincere
and obedient observer of the rule--one as
moral as it is judicial-that we all should
enjoy that which is ours so as to do no un,
necessary injury to the rights or privileges
of others. Yours very faithfully,
GEO. SHEA.