New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1911-05-22
URGES MAYOR TO SIGN
Samuel Untermyer Writes Letter
About Eleventh Avenue Bill.
CITES COURTS DECISION
Lawyer Says 1t Settles Question
of Constitutionality of Nc
Manus Boylan Measure.

A letter from Samuel Cntermyer, the
LAWYER. to Mayor Gayncr on the Eleventh
avenue bill recently passed By the Legis-
lature. was made public late last night.
In his letter 10 the Mayor Mr.. Tntermyer
urges him to sign the McManus- Boylan
bill. for the removal Of the New York Cen
trails tracks In Eleventh avenue The law
yer says the act Is exceptionally clear.
simple and direct in language and pur-
pose" and after explaining It's various
provisions Mr.. Cntermyer goes on 10 say
that prior to the announcement Of the
Court Of Appeals decision on Friday the
New York Central declared that the act
violated It's rights, both under the federal
and state constitutions
Mr.. Untermyer then SAYS he has exam
med the arguments submitted to the Mayor
by counsel for the Central. and that, in his
opinion. whatever doubt. u any. may have
existed at that time has been disposed Of
b. the courts decision. This decision. ac-
cording to Mr.. Untermyer leaves no ground
for questioning the constitutionalty Of the
law.
Mr.. Cntermyer says IL H. true tNat the
only question then directly before the court
vas the right OF the city to revoke an or
dinance which it had passed pursuant to
the act OF the Legislature. which required
It's concurrence, and that the court he'd
that the city had exhausted It's power
when il gave the necessary consent, and
that the Legislature alone could alter
amend or revoke the franchise thus Gre
ated.
MIR. Cntermyer continues:
The Chief Justice. In his concurring opin-
ion, adopting tho personal views expressed
by Justice Bartlett. went significantly out
OF his way to announce that the legis-
II has done by this bill. modify or regu-
late the franchise given 10y the state for
the location OF the plaintiffs railroad In
the city OF New York"
lin support Of his reasoning he calls at
tention to the fundamental distinction be
tween the OBrien case and what Is In
tended TO be done here:
There is no franchise In this case TO dc
the business Of a street railroad. and the
permission to occupy the streets was solely
az means for running from one terminus
of the road to the other; nor did the fran
chse to maintain the road include the I'M
qualified right to maintain II on the sur
face"
The particular thing accomplished by. this
act is precisely what the court pointed out
could be done. ard strongly intimated
should be done. 80 as to remove the con:
slant menace and danger to life occasioned
by It's uhc railroads. operation.
In the light Of the previous adjudications
Of our highest court on this subject and
Of the significant expressions In this last
case, practically pointing the way that mas
been adopted in this bill. | am unaoie u
discover any plausible argument against
the constitutionality of the law.
Permit me further to suggest that IN no
event Is the bill open to any such SUB
stantial objection as would entitle you to
refuse to the people the opportunity oil
tits much needed relief. having regard TO
the plain intimation that has come within
the last few hours from our court OF last
resort.
II by your action the bill falls the people
are deprived OF the opportunity OF "A hear
irg on its legality. IT, on the other hand:
YOU are content TO follow the dictum III
YOU choose to so regard III OF the Court
OF Appeals as TO the propriety and neces-
sity Of removing these tracks III the way
accomplished in this bill. II is still open to
the company to protect all It's legal rights
I'm the courts. 1t has lost nothing by your
approval EXCEPT the chance Ia DEPRIVE th'
people Of 4 hearing. which IT ought not he
given The people. on the other hand.
would lose much by the failure OF the la
through your action In taking the dues-
ton Of it's legality from the courts and de-
Gliding IL now In favor Of the railroad.
Why not allow the courts to pass upon
the question. especially In view OF the
plain limitations from the Court OF APP
leo