New-York tribune., 1909-05-29
TOCORNERN.Y.CENTRAL
MUST FIGHT FOR TRICKS.
Borough President VII Order Re
moral from EIeJenth 4renue,

Acting on an opinion of Corporation Counsel Pen
dIeton, the Board of Estimate and Apportionmen'
instructed Borough President Ahearn YESTERDAY 10
order the New York Central Hudson River RAi.-
road Company to its tracks from Ele' enth
avenue and other streets on the West Side MS
action was taken the validity of the franchises
claimed by the railroad in that part Of the CITY
might he brought before and passed upon pE INC
highest courts as soon possible.
The railroad will he informed that II II does Ho'
comply with the order of removal within thrty
DAYS the city will proceed to tear up the TRACKS
and charge the cost to the company
This may be done by forcing the company to get
injunction restraining the city from carrying out
announced intention.
Ira A. Place. vce-president and general counsel
OF the New York Central said last night that the
company's officials glad the mucn dlspuleN
right of the Central the tracks on the West Side
was TO come before the courts IN a way to decloe
the question beyond oavil.
We know right" he said and believe
will win
Mr Place intimated that his company might not
be willing offer such liberal terms In settle
ment of the grade question as were offered IN the
Grady bill. which recently vetoed by the
Mayor in the courts decided they had an abso-
lutte right to the tracks on the West Side.
We offered many advantages to the city in that
BILL he said. 1T should have been accepted as
settlement Of the question"
Referring 10 the citation by Corporation Counsel
Pendleton of the remarks OF Justice Day. of the
United States Supreme Court, in Blair against the
city of Chicago Mr. Place said:
Justice Day enunCiated the well known doctrine
that the sovereign should have the advantage in
dealing with subjects. But the question here Is
Who Is the sovereign? land there was a twinkle in
his eye.I The corporation OF the city Of New York
as well corporation. is the subject of the
sovereign state of New York-and We get our fran
chise from the state
Although he has not decided on the course he
will pursue. Mr.. Place said he thought 1t would
not be necessary to notice order from Borough
President Ahearn 10 remove tracks which the New
York Central held IL had n right retain. As TO
whether he would have TO wait until the city
actually started tear up the tracks before get
ting injunction Mr. Place not prepared to
say
Il not saying that Will. but suppose We
should let the city rip those tracks. he said.
with a smile. What would happen? There would
be war, Think OF the large amount OF food prod
ucts that in those tracks every day.
Forty per cent of 1t is consumed the day It
arrives. We have room 10 keep supply Of
food this island Then this question affects
shippers What would they say II New York
should remove the tracks which their prod
ucts have entrance to the city,?
Mr.. Place said his course would depend the
way in which the case was presented. but #
doubtful If it could get through the Court of APP
peals in less than year To take it to the
United States Supreme Court, he thought. would
take. probably, another year.
The Corporation Counsel presented exhaustive
study Of the situation, and quoted number OF de-
Cisions bearing the question.
While II appears that much may be said in favor
tho contention made by the company that II pos
scsses a perpetual franchise in the streets Of the
city. n franchise for i've hundred years, which
amounts to the same thing" said the Corporation
Counsel 1T is not entirely clear that such a right
exists. l Will DO all that lies in my power facn-
tate the speedy hearing and final determination Of
this important question. satisfied. IN view
OF all that has taken place. that satisfactory
luton by municipal action legislative relief
be arrived at until II IS first determined beyond all
cavn dispute that the New York Central lIud
River Railroad Company has has valid
and sIbsstinC franchise maintain its tracks and
operate its railroad in the streets under the resou
Jion ordinance Of 1S47. and those subsequently
adopted granting the municipal consent for the
Of the 10 the Hudson River Railroad Com
pany.'
Mr PendIeton's argument is based largely on the
question to whether the prolonRation Of the life
of the Hudson River Railroad Company five
hundred years after its consolidation with the New
York Central in 1863 by special Of the Legis-
lature also prolonged the legal grants the
former by the city authorities. The Hudson River
company incorporated for nifty years in 1916.
and in Is47 the municipal council granted 1t
privileges in the streets on the West Side.
The extension Of the consent from fifty years
the life of the old company. five hundred years
the life OF the COMPANY" says the opinion.
was clearly without the municipal consent. and
deprived the city Of the right exercise con-
tro 1t was intended to possess. Applying the well
recognized rule that franchises are construed most
strongly in favor Of the public as against the
grantee I am Of the opinion that il be sue
cessfuy maintained that the Of 1859 contains
a clear expression OF the legislative intention TO
extend the franchise Of the Hudson River Railroad
Company to the streets without the assent Of
the city for the long period Of five hundred years
in perpetuity.'