New-York tribune., 1906-01-04
ALDERMEN LOSE ALL.
OPINIONS OF. COURT.
Division of Franchise Granting
Poocer Upheld at Every Point.

The Appellate Division handed down opinions
Yesterday in the cases which were decided form
ally last Saturday regarding the constitution
ality of the laws which took the franchise grant
ing power from the Board Of Aldermen and
transferred 1t to the Board of Estimate The
two actions were brought by taxpayers in the in
terests of the Board Of Aldermen. In one case
the plaintiff was Franklin Petit, and in the
other, C1ermont H. Wilcox.
They both complained that the Board Of Est
mate had received applications for franchises
from certain corporations, and had ordered hear
ings on them. They asked for injunction
preventing the board from taking any steps
toward granting the franchises.
Justice Laughlin, who wrote the opinion in the
Wilcox case which was unanimous, said in part:
Eirst-That the plaintiff is duly qualified to main
tain this action as a taxpayer. Second-That the
ThiGh they were elected constitute the Board & of
members of the Board Of Aldermen were elected
at the same time and for the same period as the
1885, CHAPTERS s $50 and 81 6 esx q Of
9rG @ ~, to take eesf @ lat t 9a4
of Estimate the authority heretofore vested In
the public streets by certain corporations authorized
by the legislature to use the streets upon obtain
ing the consent of the local authorities of the city
Ftfth-That the Board Of Estimate has received an
ROAD for Consent T Po the cons1 @
m of underground railways and fixed time and
6g grant their fhe f59 psT 5 ed
contemplated action
this State has not been to limit the authority of the
legislature in transferring the duties of one officer
The power of the Legislature to abolish or change
the term Of Office of the incumbent has been fre.
quently declared in unqualified terms, and neither
aldermen nor the Board of Aldermen form
is. some limitation the power of the legislature
stitutional office, TO another but 1t is not
courts OF this State will adopt the doctrine Of the
Michigan Park Commissioners case In the full ex-
ton can be sustained
Justice Laughlin then went into the history
of the Board of Estimate and Apportlonment
1t was formed. he said. in 1883 primarily TO
protect 'the city's property rights and interests
having reference to its finances end revenues"
The legislature has from time to time Increased
It's powers and functions. The commission TO
draft the Greater New-York charter decided to
curtail the powers of the Board Of Aldermen and
increase those of the Board Of Estimate and the
legislature. following this advice. granted such
increase. Continuing, Justice Laughlin says:
The courts have always recognized that the Iegis-
ature, through the exercise Of its authority to des
the streets. has the power 70 designate the local
authorities
of the streets other than for street railroad, the
make an unqualifed grant or require the consent
Of any local official or body, as It may deem expe-
The Board OF Aldermen has no, constitutional
for the purposes of this constitutional provision
The exclusive authority TO acquire, improve, regu-
asn1es ave a9 ef has often been Vested
in board Of park commissioners and other boards
and Is to-day in many If not almost every city
Of the state. and such legislation has often been
Of transferring duties from ore officer to another
not germane to the duties of the incumbent Of
where considered it Is clear that the legislature
may vest control Of the streets in any local body
The second opinion in the case Of Franklin
Petit against Mayor Mcclellan and others was
also written by Justice Laughlin. An the JUS
tices concurred. Justice I4aughin says:
This is also taxpayers action: and it is brought
enjoin action upon the petitions Of the Atlantic
Telephone Company for consent TO the use of GER
undeTgroynd i telep6one line and by the New-York
and Port Chester Railroad Company, the NASSAU
road Company and the Union Railway company Of
ton of certain public streets Of the city for the con
structon of street surface railways The questions
WeeR RFfee'ag sgt Mccsiian as Mayor ETC. argued
and af 3 n6F b has ereso nave
bearing on the application upon which action is
pGoghi ppoSsons 4 Of saofon Article III Of the Con-
stitution with respect to the consent Of the local
authorities to the construction and operation of
street railways have direct application to the
petition of the telephone company.
Neither, however, claims any distinction in prin-
ciple or that the be upheld in part and
both unite in asking decision on the broad ground
as to the Jurisdiction of the legislature TO vest
those powers in the Board Of Estimate and APP
portonment TO the exclusion OF the Board Of
Transit act. ,CCh. es1, l. 1900, should be void on
account Of the provision concerning the vote on
the application By which a minority might grant
the consent, yet since the provision on that sub
ject contained in the amendments to the city
charter CChaps. go and $50. L 1868. would in all
cases require at least majority vote. still power
would exist in the Board Of Estimate and Ap-
portonrnent to grant these applications. The de
cison in the wilcox adverse to the plaintiff
is decisive Of the questions presented by this ap-
peal
II follows that the judgment should be affirmed
with costs to the respondents, and the order,
far appealed from, should be affirmed with 80
costs and disbursements to the respondents.