The sun., 1894-09-24


an additional million Of the stock and the city
Of BROOKLYN for two millions. and the control of
the management was given tn the two cities by
allowing the Mayor and Comptroller Of the tive
cities to name sixteen OF the twenty directors Of
the company.
In the next year the constitutional amends
ment in question was adopted. multiplying In
effect the act of 1874; and on the 14th Of May,
1878, an act was passed adapted to the funds-
mental change. providing for the construction
Of the bridge as a public work, for the dissolu-
tion Of the company. and "the completion and
management Of the said bridge by the ssid
cities" The question of the Constitutionality OF
this act arose and was carried to the Court Of
Appeals tT6 n. V, 4T5l, on the ground that the
work was aot for a city purpose, within the
meaning Of the recently adopted amendment 10
the Constitution.
The Court held. for reasons which Il seA
forth at length. that ITO bridge such wateA
separating two such cities must he city purs
pose for each city" The Court says: at h
impossible TO define in a general way with enc
tire accuracy what city purpose is, within the
meaning Of the Constitution. Each case must
largely depend on its own facts, and the mean
ing Of these words by process of inclusion and
exclusion in judicial construction. II would noe
be a city purpose for the city Of New York 10
build railroad from that city TO Philadelphia,
or to improve the navigation Of the Hudson
River generally between that city and Albany,
although incidental benefits might flow TO the
city. Such works have never been regarded -
within the legitimate scope Of municipal Cove
ernment."
The court lays stress on the facts that the
bridge was to be constructed and managed by the
two cities as tenants in common" But suppose
the law had provided that while the two citics
were TO expend all the money necessary TO
| acquire the nominal ownership, tho bridgewhen
thus finished at the cost of the two cities to
| be operated for the profit and benefit Of the
| private corporation that originated IL, will any
| one pretend that the court would have held that
to be constitutional1 I admit that II the
$50. 600. 900 here involved were TO be expended
| in obtaining the control Of the general city
transit business, and In extending IL, and the
| railroads were TO be operated for the profit and
| advantage Of the taxpayers, II would be q some-
what different question. The court says It Ia not
SUFFICIENT that incidental benefits I" may flow To
the city. 1t would be lamentable result of the
effort to protect the taxpayers Of a city or town,
| by prohibiting such cities and towns from bond
ing their resources, to subscribe for any part of
the capital stock OF railroad corporation, "and
yet 10 allow them to expend the whole amount
| required TO construct such a railroad and turn
II over In perpetuity. for the use and benefit Of
such corporation. Stress is laid on the fact
that the railroad In this Rapid Transit act when
constructed is to belong to the city. But the
ownership is merely nominal; and IL is only .
form Of comforting the advantages on the
grantees. The city would practically be no
worse of in the transaction II the act had pro-
vided that the road and property appertaining
TO IL should belong absolutely TO the grantees.
II II Is successful as paying investment. the
original grant and the renewals will carry It's
practical ownership in the possession Of the
grantees for length OF time which may be con-
1 - ~. q IA -
failure. the underground scheme adopted would
leave tunnel excavation which would have
| no available value, and probably be a public
nuisance In It's neglected and unoccuped condi-
; tion. Il Is very fruitful subject but cannos
now ask to pursue II further.
III.
This Rapid Transit act, pretending to he gem
eral law. authorizes Messrs. Starin. steinway,
and four named associates to "enter into q con.
tract with any person. firm, or corporation,
} which, In their opinion. shall be best qualified
; TO fulfil said contract for the construction OF
such road or roads" "Such contract shall also
! provide that the person, firm, or corporation
; shall equip. maintain. and operate such road
roads for term of years not less than thirty
live nor more than fifty years" This authority
Is without Limitation restriction as TO it's ex-
ercise. These gentlemen have the power arbi-
| trarily q matter Of untrammelled Will. I'd
{ confer the right TO operate the railroad on any
citizen they may select best qualified, for this
purpose. The legal effect OF the right thus "a
: be given by these gentlemen Is not defined In
this part of the act But In the seventh section.
D that which provides for the event of the popu-
: lar vote being against the city's moneys be-
e ing employed for the proposed railroad, and
e which requires, In that case, that the Cons
r missioners shall sell the right at public auc-
: tiOn 20 the highest bidder, It is designated
4 as the right, privilege, and franchise TO cons
e struct maintain, and operate such railway oE
= railways" Surely no one can pretend that the
{ Legislature, in view OF the express restriction
and prohibition OF the Constitution 50 often re-
e ferred 10. could themselves do this thing; that
: is select and name the party or parties TO lay
= down railroads, and 10 profit by the ownership
! OF the exclusive right, privilege, and franchise
n to maintain and operate railroad. How. then,
q can they delegate that authority to any citizen
or number OF citizens under the restriction. Ths
> gentlemen OF the Chamber OF Commerce, de
servedly eminent they are, are not entitled "a
any special privileges OF legislation. In the eye
of the law all men equal and the plainesl
v citizen, whether in natural endowment or alb
y sence OF assumption, Is in the same position oi
l. right with the most exalting exalted IL such
e legislation he sustained, what would prevent
l. the Legislature from passing an act broadly
% proydng for rapid transit In the several citiea
= of the State, and to authorize through appro
Is priately chosen agents the giving away OF suef
10 rights privileges and franchises ad libitumf Il
~ | the desire were TO invest John Smith with rail
n roads In or more cities his friend John bro"I
10 could he appointed as " Commissioner to con
D. fer the right. privilege, and franchise on tn
i person the latter should deem hest "qualifed
TO enjoy such important possessions. ] am con
rs sidering the principle involved in such legislA
70 tion. not intending 10 reflect in any manner Of
= the present Commissioner, and ] make tht
Of point a. = matter Of passing suggestion.
"a ".
,. Thus the Rapid Transit Commissioners hav
conferred upon them exclusive control Owe
o. the city Ciovernmsnt In the administration OF tn
40 various branches Of the work under their turta
o. diction, and can appropriate TO themselves Ion