The sun. [volume] (New York [N.Y.]) 1833-1916, 1905-04-03

Only 70 safeguard the public interests OF the
municipality or community. and nowhere else
in the Consultation Is there any abridgment
OF tho legislative mower over the subject OUT
sue OF the matters particularly enumerated
ln mat section. Except ~ thus restrained Ny
the Constitution, the legislative power re-
mains untrammellcd and supreme, because
nothing II subtraCted from the sum OF legis-
lat,Ne power except that which rs expressly
Of by necessary implication Withdrawn.
ms constitutional provision, Ia an elhlcal
Bcubc, does not stand on the same footing AS
those securities to life and property embodied
% the Dnl OF rights, and there was nOthlng IN
| h"r"nuy wrong IN the omission OF such Pro
VISION m the COnStitutOn OF 1876, IL was auue
m 1874 a. a safeguard TO and for the pubic
interests In each locality, the necessity lOr
which guaranty had been developed by lhe
history o. the legislative grant OF IrHhchlseS
IN the state.
In the grant ng Of franchises the state Is
supreme and che Legislature Ia omnipotent,
sav We a. restrained by this constitutional pro,
vision. for u is fundamental that municipal
corporation holds lts public streets ana places
in trust for the public. and that the power 70
regulate those uses is vested IN the Legislature
Although under the ooustitutonal provision
the local authorities" OF city, or town oI
4 village have a negative or veto power WhlCh
can forbid the construction OF operation OF
street railroad. sttl il must be borne in mind
that unless authorized 80 90 do by its charter
or other act OF the Lc gisature, no munlclpal
corporation can grant franchise, because the
municipality Is mere agency In the machlh,
cry Of the state. possessing no inherent anu
independent authority to create rights m olh-
ers which AFFECT the public interests;
The comprehension Of this underlying ana
we'll settlei principle Is necessary ia order 10
divest ones mind from any false sympathy
with or even liberation for the contInuahCe OF
misplaced power In any particular branch OF
the city government What the trainers OF
the amendment OF 1874 and the revisers ana
makers Of the Constitution OF 1894 lnteh9tu
was merely. "a We have seen. 20 protect the
public interests OF the municipality against
hostile legislation and to prevent the appTo-
prations Of streets to railroad uses by the
Of the locality: and 80 Il was provided that the
consent OF the local authorities should be nee,
essarv-not that the consent OF the Municlpal
Assem- by should be essential; not that the con-
sent or permission Of the Board OF Aldermen
should be first obtained, but merely that the
consent OF the local authority that is TO say
the local authority In which the power "a vested
by law, should be required, IN order that the
Interests OF the Tbe
selection OF the particular local authority Is
the province OF the Legislature. ,-,-
The legislation which We advocate violates
no principle OF home rule. for Il in no way
usurps the right Of LOCAL sell government
which has been enjoyed IN TINS country ioI
nearly two centuries. dating far back TO the
time of the British Colonial Government, ana
one which / conceive 10 be Nltal pIlNheke
Of every free city am hTa oeeye ri ~ s inS
question is here involved hou ar hot aske1
to make officers appointed by the STATE or
the Government local authorities. you are
not asked TO delegate TO private CitiLehs Inu-
niCpal authority. II is not sought 10 substl-
tute appolntive officers Tor those elec'eu oy 'he
noticed the other day in a newspaper
paragraph a statement that the ElsbeTR rem
edy strikes at the root OF t ,rood
before your committee that the power 70 RANT
a franchise or consent Ia one OF lhe leBIsiaIj
five movers permanently vested m me boMu
OF Aldermen by virtue Of Section OF Article
Of the Constitution. ..
This criticism Of the bills before your com
mittee arises from fundamental nlsconGgps
ton Of the meaning OF the words home rue.
and local self government training lhAt
the sentence In Section ?, Article Y was
framed with reference 10 the then existing
local governments OF cities, towns anu VI
lagos, and that Il was intehdeu 70 ~
the right 10 local sel'-government; when lhe
neonie at that time possessed, and that local
Fovernment is matter Of absolute rlRht NnlVn
the state should not t9Ec away; 81 tbat The
Government OF the municipality shOuld re-
main in local hands, and that local agents
should carry on the local government anu
that municipal officers should discharge mu-
nicipal functions and This right ~ JuHI as
thoroughly secured by the amehdmehts now
pronosed "a by the existing law. No attempt
Il made TO place the improvements OF we
CITY in the hands of agents chosen by the
legislature no enGTt Is naGb 70 20 pselsct IN ar
own local officers The guarantee OF ioeAl
selr-governmeut remains InNiolate ana uhim-
What then is done? The power Of control OF
tho mower to consent TO the construction ara
operation Of street rarGad IL ltt ,o ysno1bsr
ioni oisctiyS hoJv and This is clearly within
The proper discretion Of the Legislature rot,
ns Judge Cooley said in the case y the Ftople
ogainst Iurlbut. THE state may mould local
institutions according 10 it, view OF policy or
evnedi"nsy The persons 70 msoln wv md are
responsible to the people OF the city OF New
York 49, ..,. a,o,.i
autboritiesr ne used I'M the Constitutions
For our guidance on this point We turn 70
the opision Of the Court OF AnprhIN Ien nSi,
Inv Judge GRAY in October, 1890. in the MaIttI
of the Application OF the Rochester Ee'Urlc
Railway Company. .,- ...i.tr.
While il is true that this opinion eNPii,dilns
the meaning OF the words local Authoin55es,
~ used bv the legislature In Chapter ~ OF
the Laws of 1881 vet II the words local Au-
tiIoritirs" have been used in gwen sense ny
a." Tegislat,lre in the framing OF our laws
aud suoh meaning has been saholohed DE Ky
Court Of Appeals IL u sale 20 hSSvinr ,Iu, imy
hg. uraci1slv the same meaning a. lhHl Mul,h
has becn adopted by the Legislature ana the
that the act had provided that any
CITY the Common Council acting subJect 70 me
power now possessed by ihe Mayor 70 NeIV
ordinances and in any villas" we boeIu OF
trustees shall be the local authorities 70 RlNe
sU the consents required under ms hCt w
respect Of such city or NineSt be Local am.
thorities in a town, and the apntlaht hsa
argued that, the statute being hltht a. ~
n,irnose of consentlnR ia towns, such cohseni
might proceed from the authority III aStudh
control such AS a turnplke tOl,pdiilt n,.a
extensively operated and Coniroueu cTIlHln
highway In answer 90 this argument JuuGe
Gray said 49,, .,.,,,.
me local authorities" 10 whom ihe slatule
,.ters a. the source Of the consent 10 be given arc
Inc anccrs OF the city, town or village whose dults
And powers relate 10 the SUPERVISION care eng
maintenance NJ he streets or highways anH " Nouu
~ a misuse Of language to attach any DINER sense
~ tbasr words IL Is very evident BY Teterence
IN Inc connection 10 which We LeElSattuio IT.
ouentIy uses the term local AUTHORITIES, iheI hue'
a. mean is th0s- Officers on whom tie humlhhIh,
In - me Government OF the particular pOuucal
,isinp OF Inc state. by virtue OF Their once,
deyoiycs In relation 20 the subject mal'eI OF 'ne
legislative provision. .
What then is the nature OF the power 70
Grant a franchise or consent for the constTuc-
tion sn nd oparatiOn Of a street railway IL ~
royrsr as We have seen. which can De eNeT-
aIaed nv n Common Council in ciues; ny
hoard Of trustees IN Villages and by hlgh-
M, comm issioncr in towns. While the source
~ The mower il undoubtedly Legislative, as
being derived solely from the Legislature,
and mot being inherent IN any municipality,
IL would seem from the above citation, II not
tom reason Itself that the delegated power
when exercised nv the officers OF muhl-
Cinaiitv h In essence Administrative ana not
legislative In character. ht.L
A power which can be exercised by hlkn-
WV commissioned In a town cannot, IN its
rat,tre he leg slatiVP for such officer can only
exercise powers which are administrative I
or executive In character. In repuDuc no
mower which can be granted TO one man can
iopically be a legislative power
hut whether the power 70 grant lIaahicntilse