The daily morning journal and courier., 1896-01-08
VICTORY FOR THE RAILROAD
ccortinued from second Pagel


 ton and construction authorized by section 9 must be deemed to be limited to those legitimately affected, one or more of the particulars which the stat ute requires to be specified in the plan,
 To modify la ordinarily to change ths mode in which a suoject is dealt with rather than to change the subject it. self. No change can properly be deemed model one which deprlVes that which is changed of any of its es- sential qualities, or adds anything which is wholly foreign.
 The plan which the law requires the company to submit for the approval of the city was to specify the street over which the tracks were to be laid, the particular location and grade of the tracks, their kind and quality and how they were to be laid, the changes, if any, to be made in the streets, the mo- tive power to be used and the method and manner of applying it, The loea- ton of railway upon Q highway is . different thing from the right to make such a location, and presupposes 8 prior grant of that right, The location definitely appropriates particular por- ton of the highway for railroad use, 0 are to be laid upon it, and may make extensive changes in the course, char aeter or use Of the remaining portion. And to any of these matters the city has power of modification. It had like power as to the kind and quality of the tracks. over the method of laying them, the motive power to be used, and the method and manner of it's applica- 1~ cNr, f,N-t ,,ota ,s4lS modal change to vary a plan for ap- plying electric power by means Of an overhead trolley, by requiring the sub stitution of an underground circuit or of a storage battery upon the car. The essential feature of the plan would be the use of electric power The method and manner of its application, whether by rows of high poles with 8 net work of connecting wires or in ways that affect the ordinary uses of the highway less directly, are left to the regulation of the local authorities.
 So far as the conditions imposed i'll the order of the mayor and common council were within their authority as thus defined, they were valid, and no further, except as they may be justi- fed by sections 3, and Il of the statute in question or other provisions of law or charter. These latter sec tions may be the basis of separate or ders, after the approval of the plans of location and construction; but they may also support the introduction of appropriate conditions to limit such an approval
 The rules by which the legislature intended that the exercise of the au- thority thus granted should be govern cd is indicated by the terms of sec ton 1 of the act of 1885 under which the appeal to Judge Fenn was taken. It is the rule of equity. If a plan sub Hitted under the act of 1893 should not be acted upon within 50 days and so, under the second section of that act, may be deemed in law to be wholly rejected, this first section of the act Of 1895 gives the company a right of ap- peal and provides that the court or judge upon such an appeal shall have the same powers with reference to said plans and the acceptance or moditlca- ton therefore that said municipal au- thorities would have had under the provision of the cat of 1892; and may make all such orders with, reference thereto that may be deemed equitable 7 An appeal from the acceptance of the plan with modification is evidently meant to place the appellate tribunal in the same position, It fulflls as re- spects the plan in question, the func- tions of the mayor and common council of the city. It has the discretion with which they were originally entrusted The town of Fairfleld's appeal from railroad commissioners, o7 Conn, 167 The provision that it may make such orders in reference to the matters ap- pcaled from as may be deemed equitable in the premises necessarily implies that if it appears that the orig inaI order of the municipal authorities was equitable in the premises it should be affirmed
 The basis of the judgment appealed from was not that the existence of @, right to lay tracks on the streets in question could be regarded as de pendent on the consent of the munici- pal authorities, but that exercise of the right in a particular way was so dcfendent.
 Of the eight conditions imposed by the city validity of only four is directly challenged by the reasons of appeal These are those relating to the annual payment of a percentage Of the entire gross receipts of the company the use of lenders satisfactory to the street commissioners and the continued operation of cars on the tracks al ready laid to South Stanley and Pleas ant streets
 The first Of these conditions was ex- pressed as follows: Before this ap- proval shall take effect and before any work shall be begun under this process the said railway and electric company shall execute and deliver to the mayor an agreement with the city of New Britain to pay into the treasury Of said city the sum of l per cent. of it's gross receipts for the third year after the company completed said lines to the points before mentioned, and two per cent for the fourth ana each fol- lowing year, so lohs as the company or it's successors shall use the public streets of this city or any Of them for street railway purposes. The payment thus provided for shall be made annual ly on or before the first day of March in each year The said agreement shall also contain an undertaking on the part Of the railway company to save the city harmless from all loss and damage by reason If the ust, of elec-