The sun. [volume] (New York [N.Y.]) 1833-1916, 1896-03-25

| IOltLO q ~ DnfhlH IN the mhtItT U lIt FNs NV
renee and. Adirondack Railroad Company. l3i3
New York, where Judge. Andrews cited with
approVaI ihe decision 81 the Suprene ! ourt ",
Colorado In the case NJ Davis VS.. san Lorenzo
Railroad COMPANY. 1873 New York.
Judge Andrews said. u. reference TO- the sec;
tiOn Of the railroad law Of 1890: Section 3,3iD
provides for compensation in. one event only,
that IL, In case the proceeding for condemnation
Is terminated. In favor of the company. IL makes
no provision for compensation In case OF n sue
cossful resistance ~ the proceeding by, the land
owner. IN that case his only remedy for any
injury to his land or any waste committed dur:
ing It's occupation by, The company Would
in hi. stats Is NOT n" COMPENSATION or
"a certain and adequate provision or
compensation required by the spirit OF the ION.
section 1850 fully satisfied the constitutional
obligation, but section 3,a7D only provides for
provision Is made for the return OF the property
to is owner or for reinvesting him once moro
with his tito In the event OF the failure or aban-
donment OF the condemnation proceedings
Ny eighth point IL chapter I52 Of the Laws
OF 1HD4. 1T IL unconstitutional and void be.
cause II violates Article Ill. section l. Of the
then Constitntlon OF the Statouf New ! ORR.
this. State shall be vested in a senate and As.
seinbly. The Rapid Transit act of 1888 takes
away from the LEGISLATURE It's con1tiiutional
IL TO n municipality.
First, it is true that the Legislature can del
egnte the power To make local regulations, and
that such power IL generally conferred hy char
tiers or by special or local acts; but IN this in
the people in what they call a general law.
Provision was made in the twelfth section OF
the act Of 1894 for a vote by the %qualined cleo
, ,AT.Iip'' ro. %Snjnis .5% GO sSh'iT r. ,Es t Of sspid
isHitH% Of ' the ' road. but but n ALSO I ths s sGs
upon the determination by the people Of
the question set forth in the ballots.
only on the question OF municipal construction
OF the rapid transit, road, their votes on that
the building OF the road, but = distinct question
upon which they never voted, the sale OF the
franchise. And whilo the power to incur dent
or to subscribe for stock can be delegated by
the Legislature to II city or other municipal
corporation. yet whenever II is evident that the
the electors. to be allowed or disallowcd by them
at their. option, then the entire scheme falls
within the constitutional inhibition as being an
attempt to delegate the Legislative power.
" II the act OF 1894 had merely referred TO
moneys should be Invested in the road or not
the act might have been constitutional in sp
far as this objection Is conccrneI; but
the Legislature. by express words, made
not only the building OF the road. but tho
T and "a of the act, the two iife-givinG pro-
visions OF the law, dependent solely and entirely
upon the vote of the people, or. in other words.
the qualified electors OF this city.
~ he words used in section IA. that this act
shall take effect immediately are OF no earthly
consequence IN SD far as the rapid transit scheme
Is concerned, because the building of the road
or the sale of the franchises is explicitly made
dependent upon the determination OF that ques-
ton by the vote of the people. In other words.
the law had no vitality. and WAS liieless until
the voting Of the electors gave the scheme life.
Second. the main Rapid Transit act OF 1894,
chapter 752. and the act of, 1898. chapter $40,
again violate the third article. section /. OF the
Constitution. which provides that the legisla-
tive power OF this State shall be vested in n
Senate and Assembly, because the legislative
power, MS to the plan actually adopted, is not
even delegated to the electors OF the city, but to
the rapid transit Commissioners.
- Eyan N the nlpgtinn nf tho N nafrpptinn al
the Rapid Transit railroad could be submitted
to the electors for their determination. the quos-
tIcular railroad must be submitted To the peo-
pi". and the question left to them must not be u
plan subsequently, abandoned.
ON May -, 1904, tho Legislature passed tho
act known as chapter I52 of the laws OF that
referendum TO rhe electors of the question OF
the construction OF the rapid transit railway.
The Board of Rapid Transit Railroad Commls-
sioners was required to submit to the vote OF
tho electors II certain question the clecturs
were to vote for or against municipal construc-
tion Of 4 rapid transit railroad but the question
could not bs submitted TO the vote until after
OF the detailed plans and specitica-
tions. as required By the act thereby amended.
July Il. 1894, some months after the passage
of the act OF 1894. the Board OF RAPID Transit
COMMISSIONER confirmed and adopted
the detailed plans and specifications which had
board OF Rapid Transit Railroad Commissi"a.
and these plans and specifications SO adopt |
ed and confirmed by the Board on July II. 1894.
were the plans ami specifications completed
~ " " NV Vh'i Ni''Ns'''' AZ "IlSI lIc WIZ
taken. II must. therefore, be assuined that
very elector in casting his ballot had in mind
the plans and specifications which Ind
been, prior to the time, adopted. His
vote was cast in favor of inc then
construction OF "a rapid transit road he voted Tor
construction OF the particular rapid
iransit road set forth or detailed in the plans
and specifications therctotore% adopted. He did
not vote for n rapid transit road to be con-
structed according to certain plans and spectii-
'ations then unborn. and which did not come
into being until May -, 1895. 4
The point therefore which | make is that
svon il the question OF the construction Of the
transit hallway could be delegated by
me legislature TO the electors of this city for
lpon the particular construction or upon par
ocular plans and specifications cannot, by any
OF law, be held 10 authorize the
building OF u different railroad. II is true that
lection IL OF chapter 30? gives the Board the
power to change and modify che routes. plans,
nine that any such railway or railways should
De constructed for and at the expense OF
! is inconsistent with this provisions of sections
-, -, and II. Section II speaks OF certain de-
must be in existence prior to the taking OF the
tote. Section - declares that II shall be the
iuty OF said Board within thirty days after the
'fticial declaration OF he said vote, - proceed To
the said railway, and this provision
refers to the construction OF tho
ailway according to the plans and specitica-
ions which had been adopted prior TO the cleo.
ION. Section II makes the building uf the road
II the sale OF the franchises dependent upon tho
Ietermilation or that question by the votes of
he people.
II claim that IL is beyond the power of the
legislature u delegate "a certain question to the
,eople and TO make the vote of the electors on
hat question their determination in favor OF
N entirely different plan.
The next point is that the act Of 1891 is I'M
institutional and voiu, because IL violates the
OF section =, Article ", Of the Con
OF 1916 In two respects: First. It,
Isurps the right of local self-government; ana
eCOnd. the Legislature, instead Of directing the
of appointment OF the RAPID Transit Rail
DAD commissioners, appoints them directly.
We find in Article y. OF the Constitution of 1916
hc strict rule of local control OF local offices
unning through the whole section. II WAS in
that every officer should be elected
y the electors OF the county, city, town. or vii
age, or that he should be- appointed by the au-
%huritics OF the county. cay, town, or village.
he right OF local sclf-ROvcrEmrnt is u vital
OF every free civ. and IL has been OH
Dyed heretofore more than ~ century. II WIS
ranted to us by u British colonial Governor
)ng prior to the American Revolution. shall
now be taken from us in the last days of the
century by tho action OF an ignorant
egislature2
Part Of the legislative and financial 20 Ser of
he corporation of the city of New YORK which
as vested In such corporation by tho act ~
$40, and which was subsequently rpCOguiEel