The Mount Holly news. [volume] (Mount Holly, Burlington Co., N.J.) 1891-1942, 1897-11-23
No More Tracks In Burlineton.


being compelled to remove the temporary
track covering about two blocks which
was laid last summer and which was the
cause of beginning the litigation.
The Vice Chancellor declares uncon.
stltutional an act of the Legislature passed
ID 1896, authorizing all cities except of the
hrst-class, which prior to April 9th, 1896,
had located within their boundaries rail
road routes, to enter into contracts with
such railroads granting them the right to
lay their road and construct their tracks
In, through, along or upon any of the
roads or streets of such cities.
In relation to the removal of the track
which has been on the street for nearly
sixty years, the Vice Chancellor does not
deem 1T the province of the Court of
Chancery to remove it by a mandatory in
junction.
1T Is true" he says, 'that time will not
legalize the presence of an obstruction in
street, but when application is made to
court of equity to remove the tracks of a
railroad company which have existed for
oyer half century with the acquiescence
OF the public authorities and the approba-
ton of the citizens, with no marked
changes of population in the city, as in
this case, the compulsory removal of it
will be RENTED to the legal tribunals
which have complete control over the
matter and can afford complete relief"
The original single track through Broad
street was laid by the Camden and Am
boy Railroad Company in 1882 and 1888,
the mayor, recorders, aldermen and com
monality of Burlington giving their con-
sent.
The query" says the opinion, sis
whether this municipal consent is sufi-
cient to legalize the existing and proposed
structure within the street. 1t is entirely
settled that without statutory authority
expressly given or arising from necessary
implication, railroad placed Longitude
nally on street is a nuisance
"a railroad so placed is regarded as
practically an exclusive appropriation of
that part of the street which 1t occupies
to use inconsistent with the legitimate
use of the street by the public. Its pres
ence In the street is as repugnant to the
rights OF the public as would be church
or market house.
1T is true, of course, that the public
right, so far as it is concerned, is subject
to the legislative control over streets. AS
to the public, the Legislature can author
ize the abandonment of street in toto
or turn it over to private enterprise. 1t
may therefore legalize the operation of a
steam railroad transversely or Longitude
nally or along a highway. The grant of
power may be made directly by the Leg.
lslature, or it may be delegated to the
government of municipality. 1t may be
contained in the charter of city, in the
charter of railroad or in a general stat
ute.''
The Vice Chancellor finds that no such
power existed, either in the charter of
the city or in that of the railroad. The
only legislative authority which he finds
is the act of 1896, cited above. He saws it
is perceived that the statute confers DOW
ers upon certain cities to grant powers to
certain railroads to lay their tracks in the
public streets of such cities.
Counsel for Burlington questioned
whether the act was not one regulating
the internal affairs of cities, and, if SO
whether it conformed to the constitution
al requirements of generality in its opera
tions. That the act regulates the internal
affairs Of Cities the Vice Chancellor saws,
is too obvious for argument, and he gives
his attention to determining whether or
not the legislation is special. He holds
that the exclusion of cities of the first
class may be indicated on the ground
nat population, having regard to the pur-
pose of legislation, may be proper basis
OF classification. 1t may be assumed. he
continues, that the presence of a railroad
within their limits would be more likely
to interfere with traffic and endanger life
than if such a roaG were placed in the
streets of a city of less population. He
therefore holds that the criticism of the
act on this ground is untenable.
But the Vice Chancellor fluids that the
other grounds upon which the act is at
tackled possess more substance, for the
power conferred is limited by the statute
to cities within which railroads were
already constructed or route already To-
Gated at the time of it's passage. The
effect of the legislation is to exclude from
participation In the power conferred any
city IN which a railroad route shall be To-
Gated after the passage of the act. The
Vice Chancellor finds it impossible to per-
ceive how city in which a route may
have been filed after April 9th differs from
city in which route was filed before
April 9th, in respect to the condition
which called for the legislation. He holds
that in this regard the statute Is special
legislation within the constitutional prohi-
bition, because of its varied effects upon
cities and inasmuch as it grants exclusive
privileges to certain corporations.
The Vice Chancellor says his conclu-
sion, therefore, 10 that there is no legisla-
tive authority to legalize the presence of
the railroad track within Broad street.
The case was argued for the city of
Burlington by Howard Flanders and
Samuel W. Beldon, while Judge Joseph
Gaskill and Attornav GenaroI Conral
Fl. Grey appeared for the railroad.
Hedding.