Evening journal., 1897-06-10
AFFECTS RAILROADS
Judge O'Brien's Finding Is Wide
spread In It's Effect.
SAYS RIGHT RESTS WITH THE STATE.
City Authorities Have No Power TO Grant
the Right OF Franchise-LegisIa-
ture's Prerogative Is Also Linz
tied by the Constitution.

Albany. June 1O.-Judge OBrien, in
writing an opinion declaring the inva-
lidity of the franchise granted to the
Third Avenue Railroad company, lays
down important findings OF law, which
win affect every railroad and every
common council in the state. He says.
The authority to make use of the pub
lie streets of a city for railroad pur-
poses primarily reside in the state and
Is part OF the sovereign power and
the right or privilege of constructing
and operating railroads in the streets,
which for convenience is called a fran
chise, must always proceed from that
source, whatever may be the agencies
through which il is conferred. A use
or occupation Of the streets for such
purposes without the grant or per-
mission of the state through the legis
lature constitutes a nuisance which
may be restrained by individuals inju-
riously affected thereby
The city authorities have no power
10 grant the right except I'm so far as they
may he authorized by the legislature
and then only in the manner and upon
the conditions prescribed by the stat
ute. The power of the legislature to
authorize the grant Of such a franchise
| by local authority is limited by the
constitution and forbidden except in
cases where the consent of the owner
| of one-half in value Of the property
bounded on and the consent also Of the
| local authorities having the control Of
that portion of the street or highway
upon which it is proposed to construct
and operate such railroad be first OBJ
tanned.
May BE Regulated by the Legislature.
The legislature, however. in virtue Of
its general power over municipalities,
may regulate the mode and manner in
which such consent shall be given by
the authorities having control of the
street and may prescribe the conditions
upon which it may be given. and all
these matters have been regulated by
statute.
TN conferring the franchise upon the
defendant to operate a railroad i'm the
streets designated the common council
did not act on the exercise of any natu
raj or inherent power pertaining TO th'
city. but under delegated powers to b'
used and exercised for public purposes
and in order TO vest the defendant will
the right claimed 1t must appear tina
there was a substantial compliance will
the statute.
The power to consent was not con
fined upon the local authorities for tn
sole purpose of securing a pecuniqr
profit or bringing money to the treasu
ry. but was to be exercised with tn
regard to the interest and convenienc
OF the public. This is manifest fror
the provisions Of the statute, whc
requires that the consent for the con
struction of a branch or extension sha
be conditional upon the right of tn
public to use both the new and ol
! road.
The opinion therefore holds tha
these provisions of the railroad law
the state being violated in any one pal
q tlcular. makes void the grant of frar
chise of any local authority to any raj
way, such local authority being at a
times amenable to the general railroa
, law"