CABLE RAILWAYS vs. HORSE RAILROADS 
 
 FOR INTRAMURAL TRANSIT 
 
 IN THE 
 
 CITY OF NEW YORK. 
 
 CONCLUDING ARGUMENT 
 
 BY 
 
 CHARLES P. SHAW, Esq., 
 
 In Support of Cable Railways, before the Commissioners 
 of the Supreme Court— General Term. 
 
 Hon. GUY R. PELTON, \ 
 
 Hon. W. C. TRAPHAGEN, V Commissioners. 
 
 Hon. LEROY B. CRANE, ) 
 
 Mr. CHARLES P. SHAW, 
 
 For the New York Cable Railway Company. 
 
 Mbjwbs. FREDERIC R. COUDERT, THOMAS P. WICKES, 
 
 WILLIAM C. TRULL, CHARLES PUTZEL, 
 
 Hon. ALFRED WAGSTAFF, D WIGHT COLLIER, 
 
 Hon. LUKE M. COZANS, F. W. ADEE, 
 
 CLIFFORD A. HAND, C. W. SEYMOUR, 
 
 JOHN M. SCRIBNER, VALENTINE MARSH, 
 
 JOSEPH ECCLESINE, EDWARD LAUTERBACH, 
 
 Hon. ABRAM WAKEMAN, WHEELER H. PECKHAM, 
 Hon. JAMES M. VARNUM, 
 
 For Fifteen Horse Railroads and for other oljectors. 
 
 New York : 
 
 MARTIN B. BROWN, PRINTER AND STATIONER, 
 Nos. 49 and 51 Park Place. 
 
 1 885. 
 
lEx ICtbrts 
 
 SEYMOUR DURST 
 
 Avery Architectural and Fine Arts Library 
 Gift of Seymour B. Durst Old York Library 
 
May it please this Honorable Commission : 
 
 The magnitude of the inquiry that has so long been 
 before you, its far reaching effect upon the mental, the moral and 
 the material interests of the people of this great metropolis, for 
 whom you are really practically legislating on a matter of the 
 gravest concern to them, deserves at my hands a swelling pro- 
 logue as to an imperial theme ; but I shall not indulge in any 
 prologue except by quotation from Lord Macaulay's History of 
 England, where he says " of all inventions, the alphabet and the 
 printing press alone excepted, those inventions which abridge 
 distance have done the most for the civilization of our species. 
 Every improvement of the means of locomotion benefits mankind 
 morally and intellectually as ivell om materially. v 
 
 That proposition is not only true respecting means of com- 
 munication between city and city, state and state, and across con- 
 tinents from sea to sea, but it is also more intensely true as to 
 furnishing means of communication within the metropolis where 
 the ganglia of human life and thought and enterprise are 
 clustered. 
 
 Aud thus it is that Mr. Holmes, the President of the Chicago 
 Cable Road, in his affidavit says, " since this improvement in 
 means of locomotion has been adopted in Chicago, we find that 
 our car conductors have become superior men, mentally and 
 morally." 
 
 Compare a car conductor on the elevated railroads of this city 
 with a car conductor on a horse railroad. Behold how one is clothed 
 as it were, with a sort of official dignity and importance. Look 
 at the uninviting appearance of the other. That illustrates the 
 situation as to the difference between employees who conduct the 
 traffic of our city. But what is the effect upon the health and man- 
 ners and morals of the passengers ? All of you have visited Lon- 
 don where the cab system prevails. Would you there take a shabbv 
 
2 
 
 hansom ? ]STo ; You demand the brightest and cleanest. If, as 
 so frequently is the case here, you get, by accident or necessity, 
 into a nasty and broken down cab you don't put your head out of 
 the door, you don't want to see any passers-by, you hide yourself. 
 But give you a stylish vehicle and you appreciate your own 
 dignity and you assert your sense of your own personal worthi- 
 ness by a complacent, self-possessed and exposed glance at every 
 passer-by. 
 
 This may seem to be a trivial matter, but if our whole city, 
 including its rich and poor, could be lifted up to an appreciation 
 of a system of intramural transit, which would be the common 
 right of all, and which would furnish means of transit, at once 
 elegant, commodious, adequate, cheap, noiseless, cleanly and 
 every way pleasant, and at the same time so comprehensive and 
 adaptative as to carry for a single fare of five cents up town and 
 down town, on both sides of the city, and across the city at con- 
 venient intervals, so as to connect with all our established ferries 
 upon the two glorious rivers that cincture our metropolitan island, 
 in commodious and elegant cars, propelled by the noiseless and 
 perfectly subjected power of steam, exerting its energy from an 
 unseen and distant station, under this mysterious cable railway grip 
 which, like the human hand, plays, if I may use the expression, 
 the symphony of locomotion — and all this without the noisome 
 products of combustion and the noise incident to the lumbering, 
 vibratory energy of the locomotive, and without the faecident 
 voidings incident to the use of animal power, the perils of which 
 to the health of the city have been so powerfully and graphically 
 described before you by Professor Doremus and other sanitary 
 authorities. — I say, if all this be so, what power for weal or 
 woe to this city is held in your hands, gentlemen of the Com- 
 mission. 
 
 I cannot allow you to think that I exaggerate this matter. 
 Several years ago I heard the late eloquent Dr. Cbapin deliver his 
 lecture on " The Origin of Social Forces." I remember, in a 
 general way, that he ascribed their origin, so far as concerned 
 classic Rome, to a sunbeam that melted frozen water on the pin- 
 nacles of the Alps. It was a small effort of the sunbeams, he 
 argued, upon each Alpine crystal of frost-woven water, but 
 
3 
 
 crystal after crystal of the icy diamonds melted and united their 
 products into the cataract that leaped from their mountain-home, 
 now in cascade, now in torrent, and finally reached the glowing 
 Lombard champaign, on whose smiling bosom flow the Po and 
 the Tiber. Thus, from a sunbeam kissing his frosty mistress of the 
 ice, came the majestic river whose yellow tide made the majesty of 
 Rome and lent buoyancy to the boat that bore Caesar and his 
 sceptre of universal empire. 
 
 Brought by this illustration of a sunbeam's power into the 
 presence of imperial Rome, its tribunes, its consuls, its conscript 
 fathers, I present to you this proud question, and you must 
 answer it, not to coming generations, but to the living, throb- 
 bing throng of to-day. It was the great Roman question. 
 That question is this : What have you done to adorn the 
 capital of your country ? If this cable system of railways, with 
 its transfer tickets, will cheapen, enhance, perfect a system of 
 intramural transit for our city, you cannot deny if you refuse it, 
 that you found it within your power to promote its prevalence" 
 If the system prevails by your approval — and it can prevail 
 only by your approval — you, when asked, as the Roman 
 official was accustomed to be asked, "What have you done 
 to adorn the capital of your country?" may answer, "We have 
 aided to give a system of intramural transit, vast and compre- 
 hensive, for the benefit of the rich and poor of the metropolis and 
 the stranger within its gates, and which we verily believe, with 
 Lord Macaulay, will ' benefit mankind morally and intellectually, 
 as well as materially.' " 
 
 I just spoke of this cable railway grip. Without it, all that I 
 for five long months have contended for before you would be a 
 vain folly. With it, we are made to conceive how the grasp of 
 the iron but flexible fingers of a metallic hand can work the 
 chords of the harp of human progress in this matter of intramural 
 transit, as perfectly as Orpheus could have done it. 
 
 The advent of this grip, as a practical realization, seems to 
 have been a providential marvel to our city, appearing at the 
 time and under the circumstances that it did. Its efficiency and 
 perfection had received the test of ten years' practical operation 
 in the City of San Francisco ; five years in Melbourne Australia, 
 
4 
 
 and three years in Chicago ; cities illustrating all the topograph- 
 ical peculiarities of our metropolis, and also all variations in the 
 width, business and activity of its thoroughfares. The Constitu- 
 tional Amendment of 1875, forbade the further construction of 
 horse surface railroads, until the Legislature should declare by 
 some general act that additional roads of that description might 
 be built. Up to May 6, 1884, no such act * had been passed, 
 although the horse-railroad franchise hunters had besieged the 
 Legislature annually and frantically for eight previous years with 
 their venal appliances and their greedy love of plunder. But 
 there was on the statute-book, and has been on the statute-book 
 in unimpaired vigor ever since June 18, 1875, an act known as 
 the Rapid Transit Act, under which our elevated railroads have 
 been built, and under which surface roads of the cable descrip- 
 tion or any other description, except roads to be operated by 
 animal power, could and can be built. 
 
 During these eight years of struggle to plant more horse rail- 
 roads in this city, the need of additional and improved transit 
 had grown and grown until it had exceeded the enormous pro- 
 portions described by Mr. Bergh, General Yiele, Mr. Shinn, Mr. 
 Church, Mr. Fuller and others, whose testimony is before you. 
 
 During these eight years the city's need for additional transit 
 had astonishingly multiplied. Our sister city of Brooklyn had 
 almost doubled her population, and the other cities and villages 
 within the radius of our municipal activity grew like Jonah's 
 gourd. Of course, under such a condition of things as this, no one 
 knew when the oft besieged and oft resisting Legislature would 
 offer further facilities. It was at this time when the necessity, as all 
 admit, for increased transit facilities existed, and when there was 
 no power to obtain them, except under the Rapid Transit Act of 
 1875, that this wonderful cable railway grip, so successful in 
 sister cities, was presented to the attention of the constituted 
 authorities, charged with the duty of dealing with this question. 
 
 The symphony of the Tenth Muse — the Muse of Invention — 
 brought that cable railway grip to us. 
 
 A word here as to the practical operation of the system. It 
 is general Viele's system. There is to be no disguise about that,, 
 I hold his testimony in my hand. From it I read. He says : 
 
5 
 
 " So far as this system is concerned, I can give a detailed 
 statement of it ; I insert below in this affidavit an extract from a 
 newspaper, giving a description of the condition of things in the 
 City of Chicago, where the cable system is a fact, and not an 
 experiment, but a fact as fixed as the existence of the horse or 
 male motive power of the horse-railway system ; the article 
 describes the condition in the City of Chicago at this moment, 
 and I know it is correct, because I have observed the fact stated 
 in it. 
 
 The article is as follows : 
 
 CHICAGO CITY RAILROAD COMPANY. 
 
 {From Chicago Inter-Ocean, January 1, 1885.) 
 
 Of all the new methods for shortening time and space in great cities the 
 most perfect hitherto is that of the cable-car system. If one horse can supply 
 the place of a dozen, and still more, if a stationary engine two miles away can 
 eliminate horses almost entirely, and furnish more and more rapid accommo- 
 dation, the gain directly in comfort and indirectly in the spread of the popula 
 tion is incalculable. That the cable system presents the highest degree of 
 excellence yet attained for city travel needs no demonstration. A short experi- 
 ence was Decessary to habituate the public to the cable-cars. But, now that 
 we are all familiar with them, every one knows precisely how to deal with 
 them. The Cable Company have clone a work that thinking people will not 
 fail to recognize. Abused and vilified as all good things are, denounced as 
 every step of progress has been, every man, woman and child in Chicago now 
 points to the cable-cars as one of the most valuable and progressive enterprises 
 of Chicago. The citizen enjoys a quiet chuckle as he does homage to his own 
 superior knowledge at the expense of the mystified looks and questions of his 
 country cousin. We all feel ourselves on a higher plane of intelligence from 
 our being pare of the city with its cable railroad, as well as the other institu- 
 tions that constiute the pride of Chicago. No wonder this system has been a 
 great success. Over 100 grip-cars and more than 300 box-cars constantly pass- 
 ing, always occupied, and in the morning and evenings crowded, an army of 
 workmen, and a finance system away up in the millions, present the idea of 
 great public usefulness. There is not one man of us who would not be proud 
 to own a slice, notwithstanding all the detraction of the 'early days.' It is 
 well known not only that the cable road has immensely increased the value of 
 all real property along the route, but everywhere within convenient access of 
 that route. The extension of the same system through those portions of our 
 chief thoroughfares, not yet occupied, would be hailed with delight by every 
 man owning a fifty-foot lot. 
 
 No man can contend that the Cable Company has not provided locomotion 
 good, cheap and effective. They deserve their success. The rate of speed is 
 far greater than that attained from a motive power of horses, while the condi- 
 
6 
 
 tion of the track is infinitely superior. The cable-car system constitutes the 
 finest method of locomotion ever introduced here or elsewhere. A description 
 of the system is hardly needed. The cable is of iron wire and runs on pulleys 
 through a long tunnel under the centre of the street. The grip car is provided 
 with a long, strong, combined lever that grips the cable by means of a jaw 
 under the cable and sustaining it and another jaw that is drawn down and 
 presses the cable between itself and the lower ones. The grip, being thus 
 attached to the moving cable, is necessarily drawn along with its train of cars. 
 The rate of speed is about eight miles an hour. The cars usually stop at each 
 cross-street. The driver withdraws the pressure of the lever on the cable and 
 applies, by means of a lever, a brake to every wheel in the train, stopping it 
 quickly. The shops and office are situated on Twentieth street, where every 
 inquiring person is welcome to observe the system as there on view." 
 
 General Yiele continued : 
 
 " Chicago claims to be the centre of civilization, and if she 
 continues to progress in advance of Kew York as she has in this 
 matter of city transit, her boast will very soon be verified. Every 
 word of that paragraph is true to my knowledge, and it is the 
 system that is prevailing in Chicago and San Francisco. There 
 is no reason why steam unobserved, unseen, and noiseless, should 
 not be applied to move a car as well as a horse or a mule." 
 
 Thus saveth General Yiele. Observe this as the foundation of 
 my argument on the physical and economical questions ! Those 
 eminent engineers who have been before you — Shinn, Boiler, Halli- 
 die, North and Endres — confirm General Yiele. And could I speak 
 of any opposing testimony except as the shadow of a shade, com- 
 pared with such names as these ? The world is full of engineers. 
 I could lay my hand upon a score of them who would come to 
 give expert testimony. My resources for the employment of 
 expert talent are notoriously not small. The resources of the 
 city to get such testimony are adequate to the purchase of expert 
 stultification. But such a patent fact as I am arguing here 
 couldn't purchase any man who had a remaining sentiment of 
 respect for himself. 
 
 Compare any expert engineers on the question of the mechani- 
 cal feasiblility of our cable system with any other unshown head 
 that is against us. Affidavits sneak in upon us. I can't cross- 
 examine the affiant. He don't come here. Why has not the 
 Corporation Counsel brought his experts here ? It is evident 
 I am meeting only his experts here. Why, if I had his experts 
 
7 
 
 here, what do you suppose would happen % I would tear them 
 limb from limb. How do you suppose Mackay would fare 
 in my hand in the frame of mind I am ? Where would be 
 Crowley ? if I had that boarding-house bilker under my thumb ! 
 What would I do with Birdsall, the man who lied, and knows he 
 lied ? and probably lied because the Corporation Counsel told 
 him he must he ? 
 
 Compare such experts — and no other appear here against 
 us — with my array of experts ! 
 
 More than five months ago, on the opening of your investiga- 
 tion, I proposed to prove to you the utility, the desirability and the 
 necessity of the Cable scheme of intramural transit which has 
 been already commended to you by the report of Commissioners 
 appointed by the then Mayor of this city. 
 
 The notice was conspicuous. It advertised my purpose to all 
 possible objectors. No child in the land would have misunder- 
 stood that I meant to challenge expert testimony on the subject 
 of cable roads as a feasable means of intramural transit for this city. 
 It is for you to say whether or not I have vanquished all oppo- 
 nents who have dared to respond to my challenge. 
 
 The Mayor appointed his Commission on the 30th day of 
 November, 1883, on the petition of one hundred and sixteen 
 proper ty-owners of the city. I cannot now detain you to say, 
 nor is it needful, because you know, as well as I do, how the 
 record reads, who those property-owners were, but I may say 
 generally that they represented the mercantile and the real estate 
 interests of the city, as appears from the record. It is said that 
 these petitioners, headed by Horace B. Clanin, undoubtedly the 
 largest and most conspicuous merchant of the Western Hemis- 
 phere, represented upwards of $300,000,000 of the real and per- 
 sonal estates of the city. Gentlemen of the Commission, those 
 petitioners demanded from the then Mayor of the City, Mayor 
 Edson, a Commission under the Rapid Transit Act of 1875, to 
 do and determine such matters and things as that act provided 
 they might do and perform in the matter of cable roads, and in 
 that demand they stated as follows : 
 
8 
 
 To t/ie Hon. Franklin Edson, 
 
 Mayor of the City of New York : 
 
 The undersigned applicants, residents, householders and taxpayers of the 
 City, County and State of New York, would respectfully show : 
 
 First. That the act, chapter 606 of the Laws of the State of New York, 
 passed June 18, 1875, commonly known as the Rapid Transit Act, and entitled 
 "An act to further provide for the construction and operation of a steam rail- 
 way, or railways in counties of the State," remains, as your applicants are 
 advised and believe, substantially in full force and effect, as originally applica- 
 ble to the City of New York, and is available, as its title implies, to " further 
 provide " for rapid transit whenever required by the growth and business of the 
 city. 
 
 Second. That under said act corporations may be formed with power to con- 
 struct, operate and maintain cable-traction street or surface railways in the City 
 of New York, in accordance with the system thoroughly and successfully 
 tested in the cities of San Francisco and Chicago, for the conveyance of pas- 
 sengers and property. 
 
 The advantages claimed for the cable system may be summarized as fol- 
 lows : 
 
 1. The steepest grades are as easily worked as levels. 
 
 2. The cars may be stopped instantly or slowed gently at any point on the 
 line, and started with promptness, ease and gentleness. 
 
 3. The speed can be established at any rate desired, and varied on any por- 
 tion of the road to accommodate it to obstructions in the way. 
 
 4. The method of working is noiseless and even, and unaccompanied by any 
 annoyance whatever. 
 
 5. Perfect cleanliness of track is secured, an important sanitary element in 
 the system. 
 
 6. An unlimited capacity of increase at any time an increase may be 
 required. 
 
 7. Perfect freedom from snow blockade, as the power Is sufficient at all 
 times to remove the snow as fast as it falls. 
 
 Third. That there is urgent need of this form of rapid transit in the City of 
 New York on many convenient routes legally open to its introduction, 
 especially as its economies of construction, operation and maintenance would 
 enable it to carry passengers at any desirable rate of speed over long or short 
 distances (stopping like the horse-cars at all street crossings to take on and let 
 off passengers) for a five-cent fare. 
 
 Fourth. That the capacity of the elevated roads of the city is notoriously 
 inadequate to the demands of the passenger traffic during the ' ' commission " 
 hours, and is swiftly growing inadequate to the demand for the other hours of 
 the day. 
 
9 
 
 Fifth. That each of your applicants, as householders and taxpayers of the 
 City, County and State of New York, does severally depose and say that there 
 is need in said city and county for a steam railway or railways for the trans- 
 portation of passengers, mails or freight, and that such need exists beyond the 
 facilities afforded by the steam, surface or elevated railroads now in operation 
 in said city and county. 
 
 Wherefore your applicants respectfully apply to you for the appointment of 
 five commissioners for the purposes and subject to the duties that are provided 
 in and by the said Rapid Transit Act. 
 
 All of which is respectfully submitted. 
 
 In response to this demand, Major Edson appointed Commis- 
 sioners. The Commission proceeded to the performance of their 
 duties. That Commision was not the first one that had been 
 appointed under the Hapid Transit act of 1875. Under the first 
 Commission the elevated railways of the city were built. Five 
 other Commissions followed, and then came, as the last and final 
 one, the Commission from which the petitioner before you, The 
 New York Cable Railway Company, derives its origin. This last 
 Commission to which you Commissioners are a sequel, was appoint- 
 ed November 30, 1883. Now, Honorable Commissioners, you see 
 where we are in point of genealogical succession. It is not neces- 
 sary for me to tell you how and when, in minutia, the petitioner I 
 represent before you became a corporation. That we are a corpora- 
 tion is known of all men, and there is nobody here as objector, nor 
 can there be any legal objector, to question the validity of our cor- 
 poration, until the Attorney- General shall appear or some author- 
 ity of the Legislature shall be exhibited. The objectors before 
 you, who raise law questions on the integrity of our corporate 
 capacity are as children that play their baby palms against the 
 inertia of matter vast and immovable as the globe. 
 
 Now, this question whether cable roads ought to be built as a 
 feasible fact on the routes designated and fixed by Mayor Edson's 
 Rapid Transit Commission is my question to argue and yours to 
 decide. It is, in fact, the only question before you. ' You, as 
 Commissioners, sitting in review of Mayor Edson's Commis- 
 sioners, ought to attach importance to their decision. 
 
 But the Mayor's Commissioners, after all the proofs before 
 them — and they were as voluminous and pertinent as the proofs 
 that have been laid before you — were conscious that all the work 
 
10 
 
 of their hands would be unavailing unless approved by you and by 
 the Board of Aldermen. It has happened, therefore, that the 
 petitioner laid its case before the last Board of 'Aldermen. 
 
 It is a matter of public history that that Board was restrained 
 by judicial injunctions from taking action on the application of 
 my petitioner for permission to construct its roads. The pro- 
 ceedings were craftily delayed, but finally dismissed. Too late, 
 however, in the expiring hours of the Board came the dismissal 
 to enable petitioner to urge its claims upon its consideration. 
 
 But it is well, and I thought it well on the opening of this 
 investigation, that I should communicate to you the report of 
 the appropriate committee of the Board of Aldermen on our 
 application. Five months ago, on the opening of your investiga- 
 tion, I read that report ; I read it to you now, to show you, in the 
 light of the proofs we have produced, that if injunctions of the 
 Courts had not intervened, the Board of - Aldermen ought to, and 
 probably would, have approved our system for intramural transit. 
 I have the report in my hand, and I will read it as a part of my 
 argument. I read it because it should be known of all men that 
 that Board of Aldermen would in all likelihood have supported 
 its chosen Committee, had it not been for a judicial injunction. 
 
 Here is the report : 
 
 Your Committee, to whom was referred the message of his Honor the 
 Mayor of June 30, 1884, transmitting for the consideration of the Board the 
 report of the Commissioners appointed by his Honor, November 30, 1883, 
 pursuant to chapter 606 of the Laws of 1875, has carefully considered the 
 same. 
 
 The matter of that message, as disclosed in the documents accompanying it, 
 seems to your Committee of paramount importance on the subject of city 
 transit. It seems a scheme of intramural transit involving a system of rail- 
 ways longitudinally on the east and west sides of the city, from the Harlem 
 river to the Battery, partly elevated and partly surface, with convenient cross- 
 town lines between the Harlem river and the Battery to connect with these 
 longitudinal or axial lines on the east and west sides sides of the city, so as to 
 reach all the important ferries and connect with the present elevated 
 lines. This system embraces about seventy miles of road, which, if completed, 
 would furnish ample and desirable facilities for our uptown residents 
 on the east and west sides as well as all persons needing such facilities 
 in the middle and lower parts of the city. This system gives for a 
 single five-cent fare a passage over all these seventy miles in a con- 
 tinuous ride. Such a scheme of city transit should not be rejected if 
 
11 
 
 its pretentions can be found practicable. And coming to your Com- 
 mittee, as it does, with the recommendation of the Mayor's Commission, con- 
 sisting of Edwin R. Livermore, Thomas E. Stewart (the former Park Com- 
 missioner), Edmund D. Randolph, Joseph X. DeVeau and Edward L. Hedden, 
 the latter three being presidents of the leading banks of the city, and presided 
 over by Edwin R. Livermore, a wealthy merchant, eminent for his services in 
 freeing the Erie Canal from tolls, and admittedly sagacious in all questions 
 involving the commercial needs in the way of transportation in this metropolis, 
 your Committee could not fail to carefully consider the merits of that scheme. 
 The advocates of it have been before us frequently, attended by representatives 
 of the largest property-owners of the city ; and from them and many other 
 sources we have become informed as to the merits of the cable plan of operat- 
 ing street surface and elevated railways. It is common fame that Peter 
 Cooper, of honored memory, for several years before his death urged the cable 
 plan as the only proper plan of city transit, whether for surface, elevated or 
 underground railways. But your Committee has not felt that it ought to 
 recommend the comprehensive scheme of transit proposed by the Mayor's Com- 
 missioners without a most careful scrutiny. A majority of the Committee have 
 visited Chicago since the recommendations of the Commissioners were laid before 
 us by the Mayor ; and we found in that city a cable road in operation. It was 
 the most important surface street railroad in Chicago, and second to none for 
 extent of traffic and public accommodation in any city of the world. It carries 
 daily an average of over 120,000 passengers, or nearly 43,000,000 yearly. It goes 
 into and passes through the parts of the city most thronged by vehicles and 
 pedestrians. It turns sharp corners with facility. It slacks and hastens speed 
 at the will of the driver. It pleases the people of all classes, and is everywhere 
 and by everybody referred to as one of the chief attractions and benefits of the 
 city. A part of Chicago through which this road is operated is crowded and 
 choked with traffic as is our city at Ann and Fulton streets at Broadway. 
 
 Your Committee, being confirmed as to these facts, has made it a matter of 
 careful inquiry to ascertain all the merits of the cable system. The details of 
 information in our possession are too many to particularize ; but they may be 
 summarized briefly as follows : 
 
 It gives speed without danger. 
 
 It gives a constant service irrespective of snow and ice. 
 It gives unlimited supply of transit facilities on any given route, and a seat 
 for all — there is no standing room needful to occupy. 
 
 It fails neither in summer heat or winter frost. Storms of snow, wind or 
 rain cannot retard or prevail against its uniform and steady service. The 
 sanitary considerations involved in its substitution for animal power (wherever 
 animal power may not be prudently dispensed with) distinguish health from 
 pestilence. These are but some of the advantages of the cable system, and 
 when presented to the city with the scheme of the Mayor's Commissioners, 
 involving, as it does, transit up-town, down-town, cross-town for a single fare 
 of five cents, on a line of seventy miles of road, which proposes such immense 
 facilities for rich and poor, we can but recommend its adoption because we find 
 that it is practicable. 
 
12 
 
 Your Committee therefore recommends the adoption of the following 
 resolution : 
 
 Resolved, That this Board, on behalf of the corporate authorities of the City 
 of New York, hereby gives consent to the routes, parts of routes and branches 
 adopted by the Commissioners appointed by the Mayor, November 30, 1883, as 
 contained, described and set forth in the Articles of Association of the New 
 York Cable Railway Company, transmitted to this Board as part of the report 
 of said Commissioners, by the Mayor, June 30, 1884, which Articles of Asso- 
 ciation are a component part of the Charter of said company, and as such w r ere 
 filed in the office of the Secretary of State, and in the office of the Clerk of the 
 County of New York, April 22, 1884 ; and further, that this Board, on behalf 
 of the corporate authorities of the City of New York, hereby gives consent to 
 the construction, maintenance and operation by the New York Cable Railway 
 Company of the several railways mentioned and described in said Articles of 
 Association, upon the several routes, parts of routes and branches of routes 
 fixed and determined by said Commissioners, and in the forms, manner, and 
 under the terrns and conditions fixed and described by said Commissioners and set 
 forth in said Articles of Association, and also gives consent on behalf of the corpo- 
 rate authorities of the City of New York to the said company to remove pavements 
 and crosswalks on said routes, parts of routes and branches, and do thereon 
 the necessary digging and excavating for constructing, maintaining, operating 
 and using steam railways for public use in the conveyance of persons and 
 property in cars for compensation in the City of New York, and for building 
 and laying tracks for said steam railways and for all the necessary appurte- 
 nances thereto, and for maintaining and operating and using said steam railways 
 on said routes, parts of routes and branches for the purposes aforesaid, pursuant 
 to the terms and conditions prescribed and fixed by the said Commissioners in 
 said Articles of Association of said New York Cable Railway Company ; 
 provided, however, that said The New York Cable Railway Company pay 
 annually on or before the 31st of January in each and every year, to the 
 Comptroller of the City of New York, for the use of said City, two and one- 
 half per centum of its net earnings for and during the preceding calendar year, 
 as a compensation for the franchises acquired by said company pursuant to 
 chapter 606 of the Laws of 1875, and the amendments thereof, such compensa- 
 tion to be in addition to all taxes said company may be liable for, or which may 
 be imposed thereon pursuant to law. 
 
 C. B. Waite, 
 Robert E. De Lacy, 
 Charles Dempsey, 
 Wm. H. Miller, 
 
 Committee 
 
 on 
 
 Railroads. 
 
 Now, I ask, why should the courts have granted injunctions 
 to restrain the Board of Aldermen from consenting to such a 
 system of intramural transit as the Report of their Railroad 
 Committee describes ? Who obtained those injunctions % It is 
 my duty to tell you. Who perpetrated the judicial interference ? 
 
13 
 
 You have experienced that interference in this investigation. 
 You know that for five weeks jour powers were held in abeyance 
 by the same interfering hand. Xow I ask you to consider whose 
 hand that is, or was. If you are troubled to identify that hand, 
 let me remind you that in the foreground of the opposition that 
 I am contending against stand fifteen horse-railroad corporations. 
 
 First, the Broadway, Lexington and Fifth Avenue Railroad. 
 2d. The Central Park, North and East River Railroad. 3d. The 
 Chambers Street and Grand Street. 1th. The Christopher Street 
 and Tenth Street Railroad, oth. The Dry Dock, East Broadway 
 and Battery Railroad. 6th. The Forty-second Street and Grand 
 Street Ferry Railroad. 7th. The Forty-second Street and 
 Manhattan ville. 8 th. The Houston, West Street and Pavonia 
 Ferry. 9th. The One Hundred and Twenty-fifth Street Railroad 
 Co. 10th. The Second Avenue Railroad Co. 11th. The South 
 Ferrv Railroad Co. 12th. The Third Avenue Railroad Co. 13th. 
 The Twenty-third Street Railroad Co. llth, The Thirty-fourth 
 Street Railroad Company. 15th, The Broadway and Seventh 
 Avenue Railroad Company. 
 
 I include in this list all those horse railroads that are born and 
 in being and in operation, and those which are sought to be built. 
 
 I want the fact known that these opponents are opponents 
 representing existing horse-railroad companies, and horse-railroad 
 companies that wish to exist, mere franchise hunters; which 
 latter are very much in the condition of the infant maid that 
 William Wilberforce met on the streets of London, and on whose 
 baby brow the great philanthropist read the reeking word, 
 " wanton," and to whom he said " I hope, my child, you .are not 
 a bad girl ? " and she answered, " Xo, but I 'opes to be.'' 
 
 I want to show here that the only strenuous objection arises 
 from horse-railroad corporations that exist, and from franchise 
 hunters who want franchises that are assigned to our cable system 
 and which they hope to get for horse railroads. I call these 
 latter u franchise-jumpers," for they seek the ground the law has 
 given us to occupy. Later on I shall show their fraud and their 
 folly. 
 
 Such are our opponents ; outside of them I see but little 
 opposition of consequence. In William street, for instance, there 
 
14 
 
 is an opposition on the part of the property- owners which extends 
 from Wall street to the Brooklyn Bridge — a distance of 2,800 feet 
 in the decayed or decaying portion of that unthrifty street. There, 
 the opposition may be said to be unanimous. But the gentlemen 
 representing that opposition have frankly told you that they have 
 visited those property-owners and solicited them to allow them to 
 come before you and make opposition. I gather this from the 
 counsel's own lips on his argument, and he won't deny it. 
 
 Now, I know that it is a very common matter for bustling attor- 
 neys, not over absorbed in general practice, to visit property-owners 
 on a particular street and say to them a variety of things that 
 would induce them to join in opposition to a scheme of transit 
 like the one proposed by the petitioner, provided alivays, attor- 
 neys and counsel shall charge little or nothing for services in 
 making opposition. It is not a case of audi alteram partem ; 
 it is a case of one-sided misrepresentation. They say to a 
 property-owner, " If you will refuse — and this road is built — 
 we will have a right of action, a la Story against the Elevated 
 Railroad ; or if you refuse and make opposition, why probably 
 the railroad company will give you some of its stock, as Mr. 
 Gebhardt, the father of Freddy, the illustrious jeunesse doree of 
 the bewitching Langtry demanded, whose demand appears in the 
 affidavits which our adversaries have presented, wherein he says : 
 "If I could have compensation for signing on Lexington avenue 
 on my property, I would sign. " The case these attorneys 
 present to the property-owner is generally stated so as to 
 appeal to his cupidity or his vanity by making him of 
 importance as a qualified obstructionist — qualified by his 
 loud proclaimed ownership of property; or, by appeal to 
 his timidity arising from the apprehension that public improve- 
 ment affecting his property may possibly depreciate it. I could 
 enumerate a score of other reasons of most unworthy character 
 which induces property owners to make objections. All these 
 invitations to opposition are artfully addressed to the property- 
 owner so that his mind is left in no condition to consider the 
 merit of the proposed improvement, or to listen to the arguments 
 of its promoters ; such an objector (assuming that he has not been 
 "worked" knowingly or unknowingly by the horse railroad inter- 
 
15 
 
 est as is the case with nearly all that class of objectors who have 
 appeared before this Commission), especially as his opposition is 
 inexpensive, is not inclined to consider the advantages of the 
 proposed improvement to his own or the public interest, and is 
 little likely to say to the canvassing attorney, " I will consult the 
 projectors of the improvement before granting my authority to 
 oppose it —I will hear their arguments." No ! Such an objector 
 is not suffered to be left by the canvassing attorney in that con- 
 dition of mind. So people may be stimulated upon industrious 
 application of active attorneys or agents to withhold the consents 
 we need, or even unite in opposition, if it don't cost much, for the 
 purpose of having claims for damages or getting our stock free. 
 There are some other objectors, all of whom I now enumerate: 
 
 First. — The objectors who oppose our main axial line because 
 it must pass tlirough Gramercy Park ; as if a main artery of 
 traffic, on the east side of the city, from the Harlem river to the 
 Battery, and a distributor of traffic from river to river, should 
 be tourniquetted at that Park, and its flow arrested and destroyed 
 because of that private park, owned by the householders around 
 it, in a region of the city that for the last twenty years has been 
 known as " Boarding -House Square"! The clamor of these 
 people induced me to invoke the taste and judgment of Calvert 
 Yaux as to whether or not such changes in that Park could be 
 made, and yet allow the cable road through it, as would result in 
 beautifying it. The suggestion that induced me to do this came 
 from one of our most distinguished citizens — a citizen whose 
 incorruptible integrity in the administration of the fiscal affairs 
 of this city makes us think of Aristides. I acted on his sugges- 
 tion. I communicated with Mr. Yaux, who is known as the fore- 
 most landscape artist (as well as a great architect) on this continent. 
 
 I stated the case. He at once said to me : u The Park is now 
 as fiat and uninteresting as any such plot of ground can be, un- 
 adorned and unimproved by art. I will present you three draw- 
 ings, one showing how the Park now is, one showing how the 
 Park could well be and accommodate your cable road, and another 
 showing how, with Koman gateways, and arches and labyrinths 
 and staircases for exits and entrances, it might be a thing of 
 beauty and interest." 
 
16 
 
 These drawings have been laid before yon as a part of onr 
 proofs. I know, from the open satisfaction yon expressed at the 
 time they were offered that yon conld see how Gramercy Park 
 conld be an ornament to the city, and more useful, more valuable, 
 more beautiful, if Mr. Yaux's plans should be adopted. Mr. 
 Yaux's affidavit accompanies his plans. To conciliate our oppon- 
 ents, I struck off one hundred photo-lithograph copies of them and 
 sent them to each householder, and challenged their attorney, Mr* 
 Yarnum, to say whether or not if we would make the necessary 
 changes, in conformity with these plans, at our own expense, he 
 would not withdraw this opposition. What answer did he make ? 
 You heard it. 
 
 This answer was substantially : " We are not on the art of 
 the question nor the beautification of the grounds, but, if this 
 road must go through the Park, we want to sell to this company 
 the space of two city lots on each side of it." 
 
 That ended, of course, the sesthetical question. We offered 
 before you to make the adornments suggested by Mr. Yaux, 
 which would make the Park, not what it is now — a dreary 
 uniformity — but an undulating, classically-fashioned, umbrageous, 
 path-adorned, flower-bedded and in all aesthetic ways diversified 
 by fountains and by trees and plants, if they would permit our 
 road to pass through it. This they declined. There is urged 
 before you in support of that declination the affidavit of Ex- 
 Governor Tilden, the sage of Grey stone, who, by the ordinances 
 of nature, on account of the infirmities of age, may never visit 
 Gramercy Park again. This affidavit is made to do duty here. 
 In it it is stated : that no more transit facilities are needed in 
 this city, and that Route No. 1, our great east-side axial route, 
 is especially unnecessary ; that such axial line spoils his lot and 
 premises fronting the Park. He protests against it as an act of 
 vandalism. 
 
 It will readily occur to you how selfishness grows with age and 
 feebleness, when you remember that he promoted our elevated 
 lines and thundered his locomotives close by the windows of the 
 residential portion of our city, and destroyed, as the Courts have 
 declared, millions of property used for residential and business 
 purposes. Like an enormous Juggernaut, all private properties 
 
17 
 
 had to submit to the nuisance and noisome operation of elevated 
 roads — I may say his elevated roads, out of which he more than 
 doubled his then enormous fortune, and has thereby made himself 
 one of the richest men of America. Like a ruthless Goth he 
 plundered, pillaged, encroached upon private rights, the peaceful- 
 ness of firesides ; and now he cries out like a sick girl against the 
 public necessity that demands a transit through a park which Mr. 
 Yaux shows will be enhanced in beauty by our transit, for the 
 reason that he apprehends that it may hurt his " city lot." 
 
 The same may be said of the statements in Abram S. Hewitt's 
 affidavit, who made like money on the elevated railways in a like 
 way, and who likewise lives on Gramercy Park. This looks to 
 me like selfish hypocrisy. 
 
 Second. — Jacob Sharp's objection about Twenty-second 
 street : 
 
 All the proofs offered on this subject were gotten up two 
 years' ago to be used by him before the Legislature. I met them 
 there before committees in his hands, where they were based on 
 the same Crowley affidavit now before you, to the effect that the 
 cable roads in Chicago were but another name for calamity and 
 scorn in that city. All this is now stale matter — not then under- 
 stood as we now understand it in the sunlight of publicity. It 
 cuts no figure here, knowing what you know, from the proofs 
 before you. You may exclaim with Ophelia, on this evidence, 
 "To have seen what I have seen, see what I see." 
 
 Third. — The objections to our Broome Street Route all came 
 from Jacob Sharp, and are based on the Crowley variety of 
 expert testimony — that, and nothing more. It is presented and 
 indorsed by his counsel here. The school-house suggestion on 
 Fourth street, and the wanton-house suggestion on Thirteenth 
 street, alike seem to have been managed by Mr. Jacob Sharp — 
 all under fear that we would parallel his horse-railroads on 
 Twenty-second street, Thirteenth street, Fourteenth street and 
 Broome street. 
 
 That is the sum and substance of all the noticeable objections 
 that we have had here from any quarter whatever, except on Lex- 
 ington avenue, where the majority of the citizens, as we have shown 
 2 
 
18 
 
 in the proofs laid before you, favor our cable road. I ought, 
 also, to except Mr. Wheeler H. Peckham's objections on behalf 
 of some property owners on Madison avenue ; they are, however, 
 almost too trivial to remember, in the light of the industrious 
 attorney business I have exposed. I know but one man who 
 seemed to have thrown the earnestness of his soul into the 
 business of opposition. He is Mr. Ross, and the Commission 
 may have observed that I have not concealed my desire to conciliate 
 Mr. Ross and make him feel that there wonld be no injury to 
 him if the road should be constructed. He may be perfectly 
 sincere in his opposition. He is a builder and a business man, and 
 has been for many years, and these builders are not children in the 
 matter of personal advantage and an eye to their own interests, 
 and he probably may have some object in view, as Freddy Geb- 
 hardt's father has, distinct from the public interest, to promote his 
 own advantage aside from the special object of protecting, as 
 he says, that particular piece of property he owns on William 
 street. I am not at liberty to forget that one of these build- 
 ers, Buddensiek, was only yesterday sentenced to the State 
 prison for ten years. As a class they are not altogether worthy. 
 
 This is the opposition, substantially. How has that opposition 
 worked? Our adversaries, after a five-months' investiga- 
 tion, have disclosed their purposes by filing an application 
 in the office of the Secretary of State, claiming that the 
 routes which we have apjilied for are needful and desira- 
 ble for horse railroads. I have here their articles of association, 
 filed in the office of the Secretary of State only a day or two since, 
 for roads over Liberty street, and Cortland street, and Maiden 
 Lane and in William street, and down Wall street. These articles 
 contain the name of Daniel D. Conover, who is president of the 
 Forty-second street, Manhattanville and St. Nicholas Avenue 
 Railroad, represented by Mr. Trull and by the brilliant talents of 
 Mr. Coudert, and also by Colonel Wagstaff, Vice-President, or 
 Treasurer, as he says, of the same railroad. 
 
 I have also here, officially certified, articles of association of 
 another company, filed only yesterday in the office of the Sec- 
 retary of State, which seeks to appropriate some forty other miles 
 of our routes in the cen+ral and upper part of the city, includ- 
 
19 
 
 ing all of Lexington avenue, to the use of proposed horse railroads. 
 The names subscribed to these articles indicate unmistakably that 
 the Secretary of the Navy, William C. Whitney, late Corporation 
 Counsel of the City of New York, Jacob Sharp, and a combination 
 of Philadelphia capitalists, among whom is " Bill " Kemble, of 
 " addition, division and silence " notoriety, are the projectors. 
 The Sharp ear-mark appears in these articles by two of his 
 well-known henchmen, one of whom is the Superintendent of his 
 Twenty-third Street Railroad. Secretary Whitney and Kemble 
 appear in the articles by their notorious colleagues and partners 
 Elkins and Widner of Standard oil and Philadelphia horse 
 railroad fame. 
 
 Here is richness — I promised to show you the fraudulent 
 character of this opposition. Behold it ! I cannot contemplate 
 with patience what is proven by these articles of incorporation. 
 They show that you have been detained here weeks and weeks to 
 listen to a shamefully fraudulent opposition, made with every 
 profession of good faith as in the public interest against the 
 cable railways proposed by the petitioner, on the ground that 
 public convenience did not require railroads of any sort, cable or 
 horse, on the surface lines laid out bv Mavor Edson's Commis- 
 sioners. 
 
 But these articles disclose a darker and deeper stain of fraud 
 and venality, which are known to be common attributes of 
 horse-railroad managers and projectors when pursuing schemes to 
 protect, gain or enlarge their franchises. To them the covert lie — 
 the venal gift — the flagrant bribe or falsehood — are notoriously 
 trivial and common matters. But when we find a public officer 
 contributing to their nefarious work out of the public Treasury, 
 at the expense of the taxpayers of the city, as the Counsel 
 to the Corporation is doing here, a more serious aspect 
 is presented. Again and again I have challenged the right 
 and propriety of the Counsel to the Corporation to appear 
 here in the name of the Mavor, Aldermen and Commonaltv of 
 the City of New York, but with unabashed face he has persisted 
 in that appearance, and this Commission knows that nine-tenths 
 of the expense and proofs of the opposition in this inquiry has 
 been borne out of the city treasury by direction and on the mere 
 
20 
 
 motion of the Counsel to the Corporation, who is represented 
 here by his brilliant assistant, Mr. Wickes, without any warrant 
 whatever from the competent corporate authorities of the city, the 
 Common Council, which is charged specially by statute with the 
 duty and responsibility of deciding whether or not the cable 
 railways of the petitioner should be built. 
 
 Not only has the Corporation Counsel's office incurred this un- 
 warranted expense and made this unwarranted appearance, but 
 the evidence collected by its much indorsed Sterling and its 
 other agents has been demonstrated to be perjured and false, 
 I characterized it before you, shortly after the taking of proofs was 
 closed and before the summing up on either side began, as the 
 product of perjury and subornation of perjury, and I was per- 
 mitted to make overwhelming proof of my charge by the intro- 
 duction of the affidavits of Mr. Holmes and the stenographer 
 Edwards. I have placed that office upon an eminence of infamy 
 beyond the reach of rescue or explanation. My associate, Mr. 
 Wheeler, unites with me, as I feel that you must do, in pro- 
 nouncing Sterling's evidence a perjurious suppression and mis- 
 statement of the matters about which he testilied, and the 
 evidence collected by him, to which others made oath, as 
 perjuriously suborned. The proof I presented of these charges 
 was not only by the mouths of two or more unimpeachable wit- 
 nesses, but by incontestible documentary evidence. 
 
 By appearing here to oppose the necessary consent of abutting 
 owners, whose consent you are to give if the Court approve, the 
 Corporation Counsel is attempting to make ineffectual the equally 
 necessary consent of the city, should the city decide to give it. 
 So that I see that he is exerting himself here to make the citv's 
 consent ineffectual should it give it or wish to give it. Thus he 
 seeks to deprive it of its autonomy and participation in, and 
 absolutely cut it off from, its right or duty to participate. What 
 sort of a position is that for a lawyer to sustain to his client 1 If 
 the city want our cable roads, and shall, after a proper inquiry, 
 decide it wants them, through its Common Council, the Corpora- 
 tion Counsel is here endeavoring to pre vent its ever having them. 
 Is that a proper position for counsel to be in ? Is he here hedg- 
 ing under a bargain and contract with some outsider, that the city 
 
21 
 
 shall never have an opportunity to say whether it will consent or 
 not ? For of what possible use oonld the city's consent be with- 
 out the abutting owners' consent ? These two consents must go 
 together, to complete authority. 
 
 Now, the Corporation Counsel is here trying to prevent abut- 
 ting owners from consenting. Don't he know that if he succeeds 
 the city's consent would be a vain thing ? Of course, he does ! 
 Though the Mayor, Aldermen and all the city officials, hat in 
 hand, should appear before you and demand cable roads and 
 should vote, ordain and declare them useful, needful and neces- 
 sary — should they come here in this plight, are you to tell them 
 that the Corporation Counsel has been here, and is here, to tie 
 you up and to show that you can't have these roads because he has 
 convinced you that the abutting owners ought not to consent to 
 have them ? What sort of a situation is this for counsel to be in ? 
 There was a counsel in Israel ; he was a sort of lord chancellor to 
 King David, and had an intrigue on both sides of the court. He 
 advised many villainous things and gained confidence out of his 
 supposed wisdom and the integrity of his counsels. " And the 
 counsel of Ahithophel, which he counseled in those days, was as 
 if a man had inquired at the oracle of God ; so was all the counsel 
 of Ahithophel both with David and with Absalom." 
 
 This story is an interesting one and may be found II. Samuel, 
 xvi. and xvii. 
 
 The Corporation Counsel may find it a precedent which 
 describes the difference here between him and me. 
 
 Now, I ask, why is the office of the Counsel to the Corpora- 
 tion here in this strained, compromised and degraded attitude ? 
 It is my duty to name the reason why. William C. Whitney, 
 the former Counsel to the Corporation, the present Secretary of 
 the Navy and an influential leader in our municipal politics, 
 retains a surviving influence such as might be expected to inure 
 to one who has named his own successor over the Corporation 
 Counsel's office, and in association with the Philadelphia parties 
 I have named, becomes a partner in the horse-railroad schemes of 
 Jacob Sharp. He uses that influence to constrain the present 
 Corporation Counsel to lend him and Jacob Sharp the power and 
 influence and resources of that office, involving, as they do, large 
 
22 
 
 expenditures from the City Treasury, to oppose the petitioner's 
 system of cable railways, to the end that Jacob Sharp and the 
 Philadelphia combination may acquire horse-railroad franchises 
 on the routes designated for our cable railways. 
 
 The law abhors busy-bodies. Fifteen horse railroads come 
 here and shout, with the Corporation Counsel, " This Cable 
 Company can't be made to hand over the pound of 
 flesh provided in the bond due to the city in case of 
 defeasance in any particular." This solicitude is too silly to 
 discuss, Every one of those roads have notoriously defaulted 
 for years in the payment of their inadequate licenses to the city, 
 and there is a popular suspicion afloat* that they get immunity 
 from the payment of those licenses by corrupting the law officers 
 of the city. I mean, and may bluntly say, Ahitophel. What 
 are we to do with such a situation as I have exposed here ? 
 
 There is Sterling ! I have put the brand of gross, bold per- 
 jury on him. He was the city's deputy. I am sorry that this 
 was our necessity. It may have been his necessity to do the per- 
 jury, like the poor apothecary in the play. He was the city's 
 deputy. He was sent forth by the Counsel to the Corporation. 
 "Was he instructed and paid to play a trick ? Did he lend him- 
 self to a dishonorable employment ? 
 
 Well ! well ! well ! 
 
 But Sterling is an unsterling trifle in this discussion. I return 
 to the office of the Counsel to the Corporation of the City of 
 New York. In the interlocutory discussions before you about 
 Steeling, I had a notion, and unfolded it, that there was the 
 stimulation of " Peruvian bark " within him. I meant the Mayor 
 of the city, and you know it. I am now satisfied that the Sec. 
 retary of the Navy — a cabinet officer of President Cleveland — 
 has brought the opposition of the Corporation Counsel here. I 
 welcome it. I know it. I feel a timid, but audacious, hand 
 upon my sleeve as I speak. Its touch carries suggestion of 
 corruption in every branch of the municipal administration of 
 the city. It carries it into State and National politics. The 
 world is wide enough for that man and me. The wide, wide sea 
 has got enough boat-room, JohnEoach's "Dolphin" included, for 
 him and me ! Our poetical Commissioner of Public Works might 
 
23 
 
 turn all this into sonorous and exquisite verse. If he plies his 
 " prentiss hand " to the work, let him tell us about Mackey's and 
 Birdsell's testimony — the testimony of two of his subordinates. 
 
 Let him say whether it comes by " Grace" as has been face- 
 tiously suggested, or by the Secretary of Uncle Sam's " Navee." 
 
 Let us now look into the propriety and right of the Counsel 
 to the Corporation appearing here. Let him justify his appear- 
 ance. Can he say that the Constitutional Amendment of 1875, or 
 the Rapid Transit Act of 1875, or the Surface Railroad Act of 
 1884, or any clause in the ancient or modern charters of the city 
 brought him here? No. Emphatically No. Why, then, is he 
 here, playing busy-body ? — bothering you and using the city's 
 money to make opposition to me. 
 
 Who has paid for the large maps hanging on your walls ? 
 Who has furnished the printed volumes of evidence that convict 
 its author at a single shot of both hate and impotence ? From 
 what source springs this astonishing energy ? The Counsel to the 
 Corporation has no right to be here. Why does he come with all 
 this expensive array, paid from the city treasury ? 
 
 I speak for the petitioner. Why is he here to speak against 
 me? The advocates of the horse railroads have no arguments and 
 supply no opposition except from him. Has it come to this, that 
 I am to make proof of a long-suspected fact, that the horse rail- 
 roads own the Corporation Counsel ? I take no delight in this 
 line of argument. The Commissioners may apprehend the neces- 
 sity that drives me to it. I say, in dismissing the subject, the 
 Corporation Counsel has no right to be here. He is not an admin- 
 istrative officer. He can't originate, prosecute, appear or decide, 
 of his own motion. He should be cold and frigid, immovable 
 and motionless, indifferent and out of sight, while we are address- 
 ing the Common Council on this question for its consent. The 
 Common Council will tell him if they need him. He has no 
 right to speak until it asks him for advice. Administrative con- 
 sent lies in that body. He is not to busy himself about the matter 
 until they do ask him. He has no right to forecast their con- 
 clusion — to influence their administrative determination about 
 consents we seek. If the Common Council should con- 
 sent to our scheme, he can't oppose it. If it refuses consent 
 
24 
 
 lie has no occasion to oppose it, for without that consent our 
 scheme is dead. The Mayor has not a right to send him here ; 
 the Commissioner of Public Works can't send him here ; the 
 Dock, Park, Police or Excise Board can't send him. Why 
 then is he here % Dare he say 1 He has been unmercifully 
 prodded on the question — Why is he here ? Why does he 
 attend on this inquiry with costly maps and an expensive array of 
 documents for the benefit of horse railways, out of the City 
 Treasury. I know why I am here ; I pay, as required by statute, 
 for all the cost of promoting this proceeding. But I want to 
 know if there is any warrant granted to the Corporation Counsel 
 for making the tax-payers of the city pay for opposition to me in 
 this inquiry — an opposition in the interest of horse railroads. No 
 child can misunderstand that there is a matter here to be ex- 
 plained. Where is the Sphynx ? It is the hand of Whitney, but 
 his Esau has the voice of Jacob — Sharp. 
 
 I don't think, as the line of my remarks courses, that I shall 
 have further occasion to speak of Secretary Whitney or the Coun- 
 sel to the Corporation, but I may ; for I cannot be responsible for 
 the restraint of my indignation. I shall endeavor to avoid further 
 allusion to them. You know the nature of the ineffaceable brand 
 I have put on them. The whole city knows it. It is known in 
 Philadelphia. I speak of it because all the world should know it. 
 
 This brings me to the presentation of the proofs I have laid 
 before you as to the merits of the cable system, about which, under 
 the guiding hand of the office of the Counsel to the Corporation, 
 Sterling, Bird sail, Mackay and Crowley, adverse testimony has 
 been borne. I believe these include all the mechanical engineers 
 or expert pretenders of any description that the Corporation 
 Counsel or Jacob Sharp or any other objector has brought before 
 you to show the infeasibility of cable roads. 
 
 For the moment I ought not to speak of the testimony on 
 the sanitary question. But, lest I forget it, the interesting and 
 instructive testimony of Professor Doremus, by which we know 
 to pounds and ounces the feeculent voidings of horses employed 
 to operate the horse railroad traffic which strew our streets and 
 breed diseases in the throat, eye, nose and ear, and offend and. 
 disease every organ of sense, must not be overlooked by the Com- 
 
25 
 
 missioners. The enormous quantity of these voiding3, amounting 
 to hundreds of tons daily, and tens of thousands of tons yearly, 
 cut an appalling figure in our statistics of vitality. The health 
 of our citizens is exposed to such jeopardy from them, that we 
 are left to conceive from the powerful presentation of Professor 
 Doremus and the other medical and scientific gentlemen who 
 support his testimony, that the hand of the destroying angel 
 gains its chief vigor from this source. 
 
 Compared with this presentation, what can be said of the 
 ridiculous mass of evidence introduced against us on sanitary 
 grounds by the Counsel to the Corporation. His testimony 
 is evidently officered by a prominent physician of the city, 
 who, we have been told by counsel making the arguments to 
 which I am replying, was conspicuous as a passenger on the 
 early morning car in which Jacob Sharp celebrated the opening 
 of his railroad on Broadway. This early morning inauguration 
 will not be considered to be without significance as to his testi- 
 mony. 
 
 Perhaps I may not recur again to this sanitary question 
 in the swift propulsions that crowd on my argument. And 
 it may be appropriate here for me to make all the criticisms 
 that I care to make upon the sanitary evidence produced by the 
 opposition. First, I say, all the testimony produced on that ques- 
 tion was testimony notoriously gotten up by Cyrus Field and 
 Jay G-ould in the interest of preventing excavations to under- 
 ground their telegraph wires. The whole city knows that to pre- 
 vent undergrounding those wires every approachable source of 
 medical authority to prove it sanitarily dangerous was invoked, 
 and, curiously enough, the family physician of Cyrus Field and 
 Jacob Sharp, the physician who rode on Mr. Sharp's inauguration 
 train down Broadway, Dr. Loomis, was the very physician who has 
 made himself conspicuous in supplying testimony to show the 
 sanitary calamities that would happen to the city, provided our 
 cable railroads should be built ! 
 
 I have read that testimony carefully. It is the same testimony, 
 mutatis mutandis, given against undergrounding the telegraph 
 wires. I leave that question here, and my opponents may rejoice 
 over all the inferences they may derive from it. I see in it only 
 
26 
 
 Jay Gould's telegraph testimony revamped to suit the situation im- 
 pugning our scheme. Is it possible that the Counsel to the Cor- 
 poration has a muddle with Jay Gould? This conundrum I leave 
 to those whom it may concern. I have business enough of my own 
 outside of such questions. Children should not play with fire. I 
 am in no humor to have the Corporation Counsel here. He 
 ought to go away. I know a thing or two about his being here 
 that is not to his advantage. I say, get out, if the office wants 
 to save Mr. Whitney. 
 
 On the remaining portion of our lines, my friend, Counsellor 
 Scribner, appears and exalts his horn. Of course, Jacob Sharp 
 sent him here. Of course, he has no other mission or motive 
 than to do and say things which Jacob Sharp wishes him to do 
 and say. My friend Trull, speaks for Conover. My friend 
 Lauterbach, speaks for Henry Hart, of the Third Avenue Rail- 
 road. These three advocates of horse railroads really and truly, 
 as your Honorable Commission know, represent all the noticeable 
 objections to the petitioner's scheme of cable transit. Whoever 
 has spoken against it outside of them has had his stimulation from 
 them or the interests represented by them. The Commission may 
 therefore consider that the contention before them is, purely and 
 simply, a contention between the horse-railroad companies and 
 the petitioner's company for the introduction of cable roads. 
 
 This contention admits of no compromise. The cable road 
 advocates comprehend the magnitude of the struggle. They 
 knew from the outset that they had to fight, tooth and nail, the 
 horse railroads, to gain a footing. The horse railroads knew 
 that a costly battle must be fought to defeat the cable railway. 
 In the Legislature that battle was fought last year, and the Cable 
 Railway Company lives to say that the Legislature has confirmed 
 its right so far as the State can confirm it, to the routes granted 
 it by Mayor Edson's Commissioners. 
 
 Now, where do we stand ? The routes are acknowledged to 
 be necessary routes of railroad transit. There is a cognovit on 
 that cjuestion. The Mayors Rapid Transit Commission was 
 justified in so declaring, and you will be justified in indorsing 
 their declaration. They are necessary, not merely on the northern 
 end of Manhattan Island, but necessary at the ferries south of 
 
27 
 
 Chambers street and across the lower end of the island ; necessary, 
 in the judgment of the opposition, at that part, more than at the 
 upper part, as is evidenced by the fact that, as I have just 
 shown, they have tiled on Cortlandt, Liberty, William and Wall 
 street for horse railroadi. So I beg the Commission to dismiss 
 the idea, that it is seriously contended that there are any 
 objectors to railroads in that part of the city upon the ground 
 that they are not needed, or that they are impracticable, for we 
 are all agreed, petitioner and objectors, that they are needed, and 
 we are all agreed that they are practicable. 
 
 Xow, what is the next question ? The next question is as to 
 whether there shall be a cable road or a horse railroad on these 
 down-town streets. We say they should be cable railroads. The 
 horse railroad objectors say it shall be horse railroads ; their 
 articles are filed for horse railroads, and I hand those articles to 
 the Commission. 
 
 Mr. Collier — I object to counsel arguing here on matters 
 not in evidence before the Commission. 
 
 Mr. Shaw — I claim the right to draw my proofs from any 
 official quarter. If I choose to consult the Secretary of State's 
 office and lay before this Commissien documents, whether 
 formally placed in evidence or not, I have a right to do so. 
 You cannot deny me access to the archives of State, and if you 
 choose to put into those archives matter that gives your case 
 away, that is my fortune and your infirmity. Don't imagine for 
 a moment that you can make a lying opposition here and at the 
 same time press for an advantage elsewhere. I intend to let these 
 Commissioners see your stultification. You may not enjoy it, but 
 the Commissioners cannot ignore it. We closed our proof some 
 weeks ago. Since then, by filing these articles, you have given 
 the lie to all the opposition you made in those proofs. Take your 
 little bed and lie down in it. Now the question arises shall we 
 build our cable roads or shall the opposition build their horse roads. 
 That is all there is of this contention. If we build them, we build 
 them as a part of a system, and they will be cable roads, and passen- 
 ger transportation on them will practically be free, because we do 
 not charge fare on transfers across them. If the opposition build 
 them, they will be several distinct horse railroads, and there will 
 
28 
 
 be a separate five-cent fare exacted from passengers on each of 
 those roads. 
 
 At this point are raised questions of law ; and it is with these 
 questions that I am now going to principally deal. When 
 I interrupted in his argument, my friend, Mr. Trull, to 
 observe that the elevated railway litigations had furnished 
 a precedent, he did not say, " Precedent be hanged!" but he did 
 say he did not care for precedent ; he said he relied upon the 
 statute and the law. Now we do care for precedent, and that is 
 the only way we know the meaning of the statute ; that is, the 
 only way we understand the law, is by the special interpretation 
 of it by the courts of last resort. 
 
 Now, what have the courts of last resort done under this Ele- 
 vated Kailroad A ct or Rapid Transit Act ? They have passed upon 
 all the legal questions that the objectors here have raised. Those 
 objections have been through the courts over and over again. 
 They have been presented to the Court by these same objectors 
 with all their force, not one point excepted, though my friend 
 Mr. Trull, said there were some points that he presented yester- 
 day that had not been presented to the General Term, but he 
 failed to point to one. Yet the very truth is, every point was 
 presented, and that Court has remitted that old question back 
 to you to make a report upon, whether or not public interest, 
 public convenience and public accommodation would be pro- 
 moted if our cable railroads should be built. 
 
 And that is your question. You are to say whether, as a 
 physical and mechanical fact, cable roads are practicable, preferable 
 and desirable as a means of city transit upon the routes proposed to 
 be built upon by the petitioner. You are to say whether public 
 policy and convenience demand these cable roads. You are to 
 say whether the public services contemplated by their construc- 
 tion are desirable. You are not to bother your brains with legal 
 finesse and split hairs between the northwest and the southwest 
 side respecting the construction of statutes. You are not here to 
 draw fine legal lines as to our corporate powers, our corporate 
 capacity, our corporate entity ; nor are you to do or deal with 
 finespun theories about the law of this case ; but you are 
 to do and deal with the question as to the utility, necessity and 
 
 • 
 
29 
 
 desirability of the cable roads the petitioner proposes to build. 
 That is what the General Term, whose commission you hold to 
 investigate this matter, expects from you. The General Term of 
 the Supreme Court will take care of the law questions and you 
 are to take care of the physical, mechanical, economic and utili- 
 tarian questions involved in this inquiry. 
 
 Chairman Pelton — You need not argue this proposition any 
 further. We conceive it to be our duty to pass simply upon the 
 desirability of the system. The law questions may be raised at 
 the General Term. That is the Commissioners' understanding, 
 derived from the intimation of the recent opinion of the General 
 Term of the Supreme Court in this matter. 
 
 Mr. Shaw — This being an economical question, a practical 
 question, in the economical affairs of this city, and not a question of 
 law, you may well close your eyes to all law books and all suggestions 
 of difficulties in the law part of this case, and tell us whether or 
 not the public convenience would be subserved if those roads 
 were built. That seems to me to be your duty. But I can see that 
 possibly, in making up your mind, you may try .to determine whether 
 or not you are doing a vain thing, and thus indirectly and most 
 potently consider the law questions that have been raised by these 
 objectors ; you migrht think these roads ought to be built, every 
 one of them, and yet you might be impressed with the argu- 
 ments that have been uttered here, and the objections that have 
 been put forth, that there was some defect in the charter of our 
 company, some difficulty, something by which, even if you desire 
 that this company should accomplish the purpose of its being, 
 this company never could accomplish that purpose for the want 
 of legal capacity, power, legitimacy and authority. 
 
 JSTow, Commissioners charged as you are with the gravest 
 duties to the public on a question of gravest public concern, who 
 ought to view the outcome as well as the beginning of your 
 labors, who should work upon the old Baconian philosophy, 
 "The fruit is the result for the public," you should know precisely 
 whether or not this corporation is competent to take what it petitions 
 for, and execute lawfully what it asks to be intrusted to execute. 
 Your functions as Commissioners charged with this important 
 matter of public services will end in dust and ashes unless our 
 
30 
 
 corporation has legal capacity. Yon are all lawyers. You cannot 
 and you will not shut your eyes to this fact. If the Divine mind 
 had exhausted itself in perfecting the physical conditions and felici- 
 ties of our system and we were without legal capacity, your work 
 would be vain, fruitless. You may well, therefore, inquire, as our 
 opponents demand that you shall do, whether when the objections 
 that are urged here shall reach the General Term, there will be 
 found legal embarrassment or difficulty in confirming your report, 
 if you make it in favor of the petitioner. I think it fair, considering 
 the great need and pressure for these public facilities and services 
 we propose to offer, that you should look into the probabilities of 
 that matter. I know that if you were not fixed in your opinion, or 
 were doubtful, or hesitating, or halting as to whether or not there 
 were defects in our charter, you would not take this deep interest 
 in this inquiry, because you would not know but that it might 
 be abortive and unavailing. And it is for this reason that I 
 argue questions of law with you : not because I think you have 
 the right to listen to the suggestion of opposing counsel criticising 
 the determination of the General Term in sending this matter for 
 you to look at as a physical fact with your eyes, and not to 
 decide by captious, legal quibbles suggested as matter of law by 
 objectors' counsel. 
 
 IsTow in that view, I wish to say, that the Cable Railway Com- 
 pany is organized under chapter 606 of the Laws of 1875, known 
 as the Rapid Transit Act, although the words "rapid transit" do 
 not occur in the act, nor is there any suggestion of speed and 
 dispatch in the whole act. Under that act the elevated railroads 
 of our city were built, and all the questions that have been raised 
 here were raised before the Courts that decided upon the 
 constitutionality of that act, and upon the regularity and legal- 
 ity of the work of the Commissioners who wrought under it. And 
 it is upon that precedent that we rely to show you incontrovertibly 
 that in no respect, in the slightest, technically or substantially, is 
 there one particle of irregularity or fault in our articles of associa- 
 tion. The Court of Appeals having passed upon the law, the method 
 of procedure being known to us all, the precedents were numer- 
 ous enough to enable counsel of ordinary ability to know pre- 
 cisely what to do — or a commission of ordinary ability to deter- 
 
31 
 
 mine precisely what to do about laying out routes under this Rapid 
 Transit Act. The Cable Company's Commission was the seventh 
 Commission appointed under that act. The bar were familiar 
 with all the proceedings necessary to be taken. The path was 
 well trodden ; all the questions had been well considered. 
 
 It was under these circumstances that the Rapid Transit Com- 
 mission which gave the Cable Company its charter was created. 
 I have here a book of the proceedings of the Commissioners that 
 gave us the elevated railways in 1875 ; I will call it " Elevated 
 Railways." I have here, also, a book of the proceedings of the 
 Commissioners that organized the Cable Company ; I will call it 
 " Cable Railways." Look at these two books, wliich I hold in 
 my right hand and in my left. They are of about equal size. 
 Weigh them in the balance and you will find that their avoir- 
 dupois is about the same. Don't mistake me. I want these two 
 books, like Siamese twins, to walk hand in hand, flesh in flesh, 
 before you. Look at them. As to their contents, I can truthfully 
 say that all the clauses in one and all the clauses in the other, 
 upon which objections have been made, as to the legality and 
 propriety of the proceedings that resulted in the elevated railways 
 and in the cable railways are strictly similar, except in the par- 
 ticular that the Cable Company was not bound to build its proposed 
 roads until it had obtained legal authority to do so after the exer- 
 cise of due diligence. That exception, and that alone, is the 
 only departure from the precedent afforded us by the Rapid 
 Transit Commission that gave us the elevated railroads. I pro- 
 pose in the progress of my argument to deal with that exception. 
 I am prepared to defend that departure, on the authority of ele- 
 mentary writers and the precedents the jurists of England and 
 this country have furnished. If you will take the proceed- 
 ings of the Elevated Railway Commissioners and the proceedings 
 of the Cable Railway Commissioners, you will discover from 
 comparison with what slavish servility, if I may use the expres- 
 sion, the Commissioners of the Cable Company followed the 
 proceedings of the Commissioners of the Elevated Railway 
 Company. Not in the slightest particular, in no place, nowhere, 
 was there any departure at all from those proceedings, except in 
 the particular I have stated. And the opinions of counsel 
 
32 
 
 recorded in the proceedings of the Commissioners that 
 gave ns the elevated railways were the opinions that the 
 Cable Railway Commissioners followed in their proceed- 
 ings. All the questions of location, and prohibited streets, 
 and provisos, and stations, and plans and structures 
 on the surface so much dwelt upon by the seventeen lawyers that 
 have addressed you on behalf of the objectors, were raised in the 
 original Elevated Railway Commission, as they are here, and have 
 been overruled by every court of competent jurisdiction in the 
 land, and have been ignored as they ought to be ignored in the 
 proceedings of the Cable Commission. 
 
 And yet, tnat being the case, these objectors come here with 
 what ? Well, we with slavish servility followed the precedent of 
 the Elevated Railway Commission, while they weakly and servilely 
 followed the objectors to the work of the Elevated Railway Com- 
 mission. They have done nothing but retail into our ears and into 
 the ears of the public, and through the press, the very objections 
 that were made and answered in the Elevated Railway cases. I 
 can give you five pages of their objections, copied verbatim et 
 literatim et punctuatim from Mr. Parsons' brief. The objection 
 they dwelt upon, the only new one, is the objection made by Mr. 
 Wickes about the Supervisors. 
 
 All this matter has been gone over, and now why have they 
 done it ? It is to plant in your minds the idea that if you give 
 these routes to my petitioner the courts will upset your deter- 
 mination. That is one idea : thev think to deter vou from look- 
 ing into the solemnities of the great work before you by saying 
 it will peter out in some sort of way, and fall by the force of 
 these objections. They have another motive ; they think to 
 scare our syndicate and our promotors from furnishing the 
 necessary capital to carry out our enterprise, and combat, as 
 they sa} 7 , our nefarious schemes — and that is another pur- 
 pose. The busy avenues of the press are kept at work, and the 
 entire claque of fifteen horse railroads that are, and hope to be, are 
 kept at work circulating through every possible means in the 
 city, squatting in every alley, whispering in every avenue of 
 approach, the terrible suggested difficulties of our legal situation, 
 and that the Cable Company will never come to anything on 
 
33 
 
 account of legal corporate incapacity or something of that sort. 
 Some of our opponents believe it. They went to the General 
 Term of the Supreme Court the other day about it, and immedi- 
 ately this Commission had to stop its session, and five weeks were 
 spent to get the solemn judgment of that Court as to what there 
 was in those objections. The Court has sent them back here 
 and directed you to proceed. The Court declared its intention to 
 take care of those objections. It had taken care of them when 
 it appointed you, for all the questions had been discussed before 
 the Court in solemn argument by Mr. Evarts, Mr. Sewell and 
 myself, and they knew every one of those objections when this 
 Commission was created, and yet they created you. 
 
 Would the Court do a vain thing ? Are you at liberty to 
 suppose that the Court, with full knowledge of all these objections, 
 would grant you the commission it has given, to sit and to hear 
 and determine this momentous question of intramural transit, if it 
 had doubt of its ability to constitute you a Commission to pass 
 upon the question and inquiry it has confided to your judgment \ 
 
 Of course not. Now I have addressed myself particularly to 
 this consideration, not because I care whether you propose to con- 
 sider the law questions or not, but because I do not intend 
 
 Mr. Wagstaff — I am utterly opposed to cable, street or sur- 
 face roads running in Wall street affecting my client's interest, 
 and I am not interested in any way in any corporation. 
 
 Mr. Shaw — I have stated that you were an officer of Mr. 
 Conover's Forty-second Street and Manhattanville horse railroad. 
 I do not withdraw that statement. You may not be vice-president 
 now, as you once were, of that company, but you are, to day, an 
 officer of that corporation. The friend at my side tells me that 
 you are secretary. I challenge you to deny that you are secretary 
 or treasurer of that corporation. I observe no denial comes, and 
 it will not come, for the fact is a fact. 
 
 Now, Gentlemen of the Commission, while, as I said, I might 
 not care what may be your views about the law of the case, I 
 want to remove from the mind of the Commission any lingering 
 doubt they may have that their work will prove abortive by 
 reason of any supposed defect in the Articles of Association or 
 of any defect in proceedings of the Rapid Transit Commission. 
 3 
 
34 
 
 JSTow I propose to take up these criticisms upon the proceed- 
 ings of the Mayor's Cable Railway Commissioners seriatim, 
 
 Mr. Hand charged, that with undue and indecent haste that 
 Commission had passed our routes. I answer: Let any man 
 on earth dispute me if he dare ! The Commissioners were sworn 
 into office on the 1st day of December, 1883, they took thirteen 
 days to organize ; on the 14th day of December, after wide adver- 
 tisement in the newspapers, they met in the largest and most 
 commodious rooms in the Fifth Avenue Hotel, and I think per- 
 haps five hundred millions of property were represented in those 
 parlors. The Commission was addressed by William P. Shinn, 
 Gen. Yiele, the Hon. ¥m. Dorsheimer, Robert Sewell, Simeon 
 E. Church, and several others. There is a report of their speeches 
 extant ; I have handed to these Commissioners a printed copy of 
 those speeches. I wish them to be regarded as a part of my argu- 
 ment. These speeches were utterances of men of prominence, not 
 unacquainted with the whole question of our intramural transit. 
 You will find Gov. Dorsheimer' s speech very instructive. After 
 the speeches were made, the Chairman made this very sensible 
 observation : " The question of necessity may perhaps to some 
 extent at least be governed by the locality in which it is proposed 
 that additional facilities should be furnished." Gen. Yiele, on 
 request, then stated that at some future time he would furnish 
 additional information as to the routes upon which cable roads 
 ought to be constructed, whenever the Commissioners should be 
 ready to hear his views on the subject. " We shall be glad to hear 
 them," said the Commissioners. Gen. Yiele said he would be 
 ready at any time. The Chairman of the Commission then said : 
 " We shall be ready to hear you, but the question of necessity 
 will be governed by locality." 
 
 The National Cable Railway Company then presented their 
 plans and invited the Commissioners to go to Chicago to 
 examine the Cable Road in operation there. The invitation 
 embraced fifty citizens, public men, to go and make an exam, 
 ination of that system, and the trip was made, and they had 
 an investigation. Within sixty days after organization they laid 
 out the system now before you. It may be called Gen. Yiele's 
 system. Within ninety days, and not an hour before the mid- 
 
35 
 
 night clock struck the hand of those ninety days, did they furnish 
 their plans. Then, within one hundred and twenty days their 
 Articles of Association, as required by statute, were ready, just 
 at the expiration of that one hundred and twenty days ; not a 
 day sooner, not a day later. Then arose the statutory period 
 within which advertisements for subscriptions should be made, 
 and the last day named in the Statute was the day upon which 
 the subscription books were opened, and opened in a conspicuous 
 bank, in a public thoroughfare, at the corner of Wall and 
 Broad streets, the Mills Building. There, following precisely the 
 form — our minutes read alike — our subscriptions were taken as 
 they were taken in the Elevated railway proceeding. We 
 followed the method of organization adopted by the Ele- 
 vated Railway corporators, which required a ratification 
 of ten days, and the whole ten days were occupied in 
 that one thing, and then they were organized. Then came the 
 final day to file the affidavit that these things had been 
 done, which could be in five days, and on the fifth day, which 
 was on the 21st day of April, 1884, that thing was done> 
 and on the 22d day of April, and not a day sooner, and not a day 
 later than the statute authorized, the articles were filed in the 
 office of the Secretary of State, and in the office of the clerk of 
 this county, and thereupon, by statute, the Cable Railway Com- 
 pany became a corporation. 
 
 Who shall say there was indecent haste ? Where is this slan- 
 derer that dares say this thing ? This is the sort of thing that has 
 been said ; this is the sort of falsehood that has been uttered 
 against our corporation from the very beginning. We attempted 
 to secure franchises for the cable system with indecent haste ! 
 It began during the sessions of the Rapid Transit Commission. 
 These horse railroad people have furnished the views for the 
 objectors, but there is the culprit (pointing to Assistant Corpora- 
 tion Counsel Wickes), who from the City Treasury has fur- 
 nished all the sinews for the purposes of the objectors before this 
 Commission. 
 
 Now let us see who can attack us, who has a right to speak 
 upon this subject anyway, whether we are a corporation or whether 
 we are not. In the elevated railway cases objectors raised the 
 
36 
 
 same objections that we are confronting here. They said there 
 is a spot in the heel of Achilles where the fatal poison that 
 destroys you may be injected, and we plant our barb there. This 
 same question arose in the elevated railroad case. Judge Earl 
 disposes of it in his opinion, which -has been so frequently re- 
 ferred to by the seventeen horse-railroad lawyers who have 
 appeared* here before you against me. The petitioner has com- 
 plied with every condition required by the statute. All the 
 kings' horses and all the kings men can't change the determina- 
 tion made everlastingly and finally by the Court of Appeals as 
 fixed and determined by the opinion of Judge Earl. 
 
 So that we may say that there is a fixed, irreversible, unquali- 
 fied decision upon this question, and these objectors will not be 
 allowed to speak on this question at General Term if your report 
 gets there, nor in the Court of Appeals. These objectors to 
 our corporate capacity are busy-bodies. Whom can they speak 
 to \ Where is the tribunal to give them audience ? You can't. 
 This Commission can't. The General Term of the Supreme 
 -Court from whom yon derive your existence can't. The Court of 
 Appeals can't hear their contention without absolute stultification. 
 The utter feebleness of their power of contention is disclosed in 
 the opinion of Judge Earl, and it is the childishness of foolish- 
 ness to contend against me on this question of our corporate 
 capacity. Where can they go with their story, if they have one ? 
 There are but two places, one is the Legislature ; the other is the 
 Attorney-General. To those two places alone can they pour out 
 their eloquent and industrious defamations against the corporate 
 capacity of the petitioner. And when they get these as their con- 
 duit, then we may be obliged to hear their feeble piping, but not 
 till then. 
 
 Xow, who incorporated us ? My friend, Mr. Trull, told you 
 yesterday that he would make a startling proposition. This propo- 
 sition was one of annihilation, said he, arising from the fact that 
 the men who made us, the Commissioners, did not proceed rightly. 
 Now, my proposition is that we were made by the Legislature. 
 Such was the power of the Cable Rapid Transit Commis- 
 sioners, that when they gave us those articles of incorpo- 
 ration, they were given to us as though they had then and 
 
37 
 
 there been the Act of the Legislature itself. I would a» 
 lief have the Company's charter in its present form, as if 
 I had it from the Legislature, endowed with all competence to 
 give it, and found archived in the office of the Secretary of 
 State. Now let us see if that is so. In this much quoted 
 decision of Judge Earl, the objection was raised that these Rapid 
 Transit Commissioners were accredited with legislative powers 
 which, under the Constitution could not be deputed ; to that objec- 
 tion, the Court of Appeals in this opinion of the Court, made this 
 answer : " Corporations organized under the act derive their 
 franchises from the Legislature, and in no proper sense from the 
 Commissioners." I think that settles our statics as a corporation 
 as emanating directly from the will of the people as represented 
 in Senate and Assembly. Now against this majestic corporation, 
 clothed with all the grand and beneficent powers we claim for it, 
 what is urged? Why, they urge that our corporation can't 
 undertake, as a legal personality, the construction of the railways 
 we seek for, for the reason that there are statutory objections in 
 the way. 
 
 This decision is to be found in the TOth New York 
 Reports. It covers and conveys the deliberate resolution of the 
 last Court on earth that can pass on this question. It is a great 
 and overwhelming and indisputable thing. 
 
 Chairman Pelton — Would you state where the passage is to 
 which you refer, in the opinion of Justice Earl? 
 
 Mr. Shaw — Yes, sir ; readily. I have it here. I read it to 
 you. Take the book. In 70th N. Y., p. 338, you will find this : 
 
 u But a cause of forfeiture cannot be taken advantage of or 
 " enforced against a corporation collaterally or incidentally, or in 
 " any other mode than by a direct proceeding for that purpose 
 " against the corporation ; and the government creating the cor- 
 " poration can alone institute the proceeding ; and it can waive 
 " a forfeiture, and this it can do expressly or by legislative acts 
 " recognizing the continued existence of the corporation." 
 
 A corporation, which is an artificial person, cannot vocally say 
 "Jam." A living, actual, natural person can say, "I am — I know 
 I exist ; " and all the philosophy of all the ages can't dispute that. 
 
38 
 
 But lawyers may come into court and get the judgment of judges 
 about the existence of a corporation. In this decision of the last 
 court that can pronounce on such a question, our corporate entity 
 is declared. It is almost a metaphysical question whether a 
 fellow finds whether he is himself or another fellow, whether he 
 exists or whether he don't exist. This question of our corporate 
 capacity is one of that sort of questions presented here. 
 
 Well, we say, the Attorney General or the Legislature are 
 alone accredited with the right to make an inquiry of this sort. 
 Our seventeen horse railroad objectors may conclude their chase 
 right here. The decision of the Court of Appeals ends their 
 objection. Where are we then? We are a valid corporation) 
 sure. ~No power of defamation, no force of calumny can dispute 
 this. 
 
 Now, what are these statutory objections urged against us? 
 Let us consider every one of them, one by one. This is not 
 the first forum in which they have been stated. They have 
 been stated at the Special Term of the Supreme Court. They 
 have been four times stated at the General Term of the Supreme 
 Court, That same General Term from which you derive your 
 authority to sit as Commissioners on this inquiry. And from 
 none of these Courts, to be Websterian, I may say, have they 
 received the " cold respect of a passing glance." 
 
 Well, now, let us look at the objections. The present move- 
 ment of my argument relates to this. Let us have all the 
 arrows of their quiver of objections. 
 
 Well, my friend Trull, sticks his first straw, which he thinks 
 is an arrow, but which is no arrow at all, on this : I read from 
 Section Four of the Rapid Transit Act. This Section reads that 
 the Commissioners shall " fix and determine the route or routes 
 " for such steam railway or railways, and the said Commissioners 
 " shall have the exclusive power to locate the route or routes of 
 " such railway or railways, over, under, through or across the 
 " streets, avenues, places or lands in such county." 
 
 My friend Trull, and all his sixteen horse-railroad coadjutors, 
 stand behind this straw to exhaust the power of his great catapult, 
 and give effect to it. Well, it's only a straw after all. Let us 
 see what it is. My friend, Mr. Trull, sticks his first straw into 
 
39 
 
 our heel with the word " location," which he says means whether 
 our road is to be located above the street, or located beneath 
 
 the street. ]^ow he says the word "location*' refers to the 
 
 t/ 
 
 altitude or depression of the structure, its relative position with 
 reference to the surface of the street, while " route " means the 
 line proposed, and " location " means the places on that line in 
 which the route is to be built. The collocation of the words in 
 the statute is so clear, and the use of the words — thev are 
 phrases so familiar to the ear that I do not wonder that the 
 Chairman of the Committee said, as Mr. Trull was speaking, 
 " It may be that you are right, Mr. Trull, but hitherto I had 
 not thought so." 
 
 Xow, let us see what the Mayor's Elevated Railroad Com- 
 missioners thought on that subject. The question came up on 
 the opinions of Mr. Lowrey, Mr. Stephen P. Xash, and Mr. 
 Harris, and that most careful and astute lawyer, George TV. Van 
 Sicleu, and in those opinions occurs this expression : " I am 
 of opinion that the phrases 'fixed or determined the route or 
 routes f and ' locating the route or routes' are one and the same 
 thing ; that the Legislature first say that they have sixty days 
 after the organization to fix and determine the route or routes, 
 and then, that no possible question may arise, the Legislature 
 simply added that you shall have the exclusive power to locate 
 the route or routes." 
 
 It is on that exclusive power that my question with my friend 
 Trull occurs. I hold his railroad corporation's bond, I mean the 
 Forty-second Street and Manhattanville Company's bond, that 
 they will get out of Forty-second street, when our right accrues, 
 by legal process, for they got there when the exclusive right to 
 apply for and obtain it was ours, and we brought an injunction 
 suit to restrain them, based upon that right ; but proceedings 
 were had and amicable arrangements made by which we took 
 his corporation's bond that will give us damage when the king 
 gets ready to ask for his own. 
 
 Mr. Trull — I beg to inform the Commission that in those 
 litigations the Court decided you had no right there. 
 
 Mr. Shaw — What Court do vou refer to ? 
 
40 
 
 s 
 
 Mr. Trull — The Court of Common Pleas, at Special Term. 
 Judge Joseph F. Daly decided substantially that your corpora- 
 tion was invalid, and afterwards, upon solemn argument the Gen- 
 eral Term of that Court sustained his decision. 
 
 Mr. Shaw — Yes ; I know it. Judge Joseph F. Daly, of that 
 Court, did give an opinion quite decidedly to that effect, and 
 the General Term of that Court did indorse it. What else could 
 I expect from a notoriously horse-railroad Court, with John M. 
 Scribner, Nelson J. Waterbury, and my delightful friend, Mr. 
 Trull, against me? The resolution of the Court could have 
 been anticipated. It was the childishness of foolishness to have 
 had any other anticipation. But where did the decision leave 
 the Court? There stands the decision in the 70th of New York, 
 which I have quoted. It was put upon our brief before the Court 
 of Common Pleas. It was argued with all the strenuous force 
 of counsel. It was never lost sight of. Pressed, urged, con- 
 tended for. No one can deny this. I have the briefs here in 
 print. If the Court or the counsel takes any delight in such a 
 decision as that, let them enjoy the ugly felicity. 
 
 Mr. Trull — Mr. Shaw, you are likely to be committed for 
 contempt, in speaking in the manner you do, of the Court of 
 Common Pleas. 
 
 Mr. Shaw — In view of that danger, it may be prudent to 
 qualify my remarks. I spoke of the Court as a "horse-railroad 
 Court." To be precisely accurate, and to make sure of the partic- 
 ular situation, I ought to have said, in view of the fact that you 
 are running bob-tail cars on one of our routes — the Forty-second 
 street route — I ought to have said that the Court was a o?z-e-horse- 
 railroad Court. You can't commit me on that, because it is an 
 absolute verity. 
 
 I also notice that my astute friend, Mr. Trull," did not make any 
 point on those Common Pleas decisions in his argument, for I know 
 his need of the authority in 70th 1ST. Y. Reports to carry on 
 some of his outside operations ; he has furtively put 
 those opinions of the Court of Common Pleas before you 
 without presenting them to me to be challenged. I rejoice that 
 
41 
 
 the substance of them is now before you. I intended to 
 challenge them when they came, as I expected they would. 
 Now, those opinions were laid before the General Term of the 
 Supreme Court that appointed you ; they were there cited, dis- 
 cussed and dismissed, and following immediately thereafter with 
 all that discussion before the Court, and that opinion beiug 
 forced upon its attention, it was held that the situation was 
 complete to ask for a commission to review the proceedings of 
 the Cable Rapid Transit Commissioners. And you, gentlemen 
 of this Commission, were appointed to that end. 
 
 Now, Mr. Cozans, in his argument yesterday, laid much stress 
 upon the proviso in our Articles of Association attached to each one 
 of our routes — a proviso in form, precisely the same that was 
 attached by the Elevated Railroad Commissioners to all of their 
 routes. Mr. Cozans will not complain that I do him injustice if 
 I say that the substance of his argument lay in his criticism upon 
 our corporate capacity on account of that proviso. Here it is as it 
 stands upon our Articles (page 129), and as it stands in the articles 
 of the Elevated Roads (page 332). And yet, as Mr. Cozans con- 
 tends, with that much vaunted fatal proviso in it — with its nulli- 
 fying force and effect, so dwelt upon by Mr. Cozans, the Court of 
 Appeals did not think enough of it, in deciding the Elevated 
 Railroad case, to speak of it in then- opinion. The proviso 
 provides for crossing streets prohibited by statute. The Mayors 
 Elevated Railway Commissioners took the same view of their 
 duty that the Mayor's Cable Commissioners have taken of theirs. 
 Both Commissions laid out routes to complete a system that 
 crossed prohibited streets. The Elevated Commissioners laid a 
 surface railroad that crossed another street steam-railroad at 
 grade just as we have done — the Hudson River Railroad — and 
 everlasting changes were rung in the Supreme Court and in the 
 Court of Appeals upon this rape upon the law, as it was called ; 
 and yet, the Court of Appeals permitted the ravishment 
 and did not notice it. It may strike our opponents as a re- 
 markable coincidence that the Mavor's Cable Commissioners did 
 always, except in a single instance, just what the Mayor s Elevated 
 Commissioners had done and which the Court of Appeals had 
 approved. But to one who values judicial precedents — stare 
 
i 
 
 42 
 
 decisis, there can't be any wonder about it. The path had been 
 trodden before — was well worn, and was religiously followed. 
 
 But finally, Mr. Wickes, who says he represents the Mayor, 
 Aldermen, and Commonality of the City of New York (but 
 who fails to present his credentials and Mr. Cozans, Mr. 
 Trull, Mr. Coudert, and the w T hole array you have had before you, 
 declare that we are going to destroy their clients on the subject 
 of stations. " Where are you going to put your stations ? " 
 say they. u You have not fixed them. How," say they, " do 
 61 the people know how they are going to approach your railroad, 
 " whether they want to use it or not, if the stations are not located 
 " precisely with respect to their houses ? Why," say they, " this 
 " power of locating stations has been left to the volition of this 
 ft gigantic, remorseless, insatiable and irresponsible cable corpo- 
 " ration." 
 
 They speak of this as a great crime. Yery well ; the elevated 
 railroad people took their charter under precisely similar conditions. 
 I give the clause of granting power of the Elevated Railroad 
 Company. I read from page 341 of the Proceedings of the 
 Elevated Railway Commissioners : " Authority is given for the 
 construction of such supports," * * * " stations," * * * 
 "in the locations determined by the Commisioners as shall be 
 proper for the purpose of rapid transit railways and as shall be 
 necessary to meet the requirements of the traveling public." 
 That is all there is in it, and we have prescribed in the same 
 verbiage, and the Court of Appeals did not call that an invalid 
 corporation, neither will they call ours an invalid corporation on 
 that account. 
 
 We have but very little to do with the question of stations 
 so far as our surface line is concerned, except the terminal 
 stations. The argument cannot apply to us so far as our 
 surface line is concerned. But as to the elevated lines, the 
 language applies precisely as the language is adopted by the old 
 Elevated Rapid Transit Commission. 
 
 But my friend, Mr. Trull, tells us there has been an adjudi- 
 cation of that matter in the case of Mattlage against the New 
 York Elevated Railroad Company, which has made it res adjudi- 
 cata, and fatally destructive to us. He exerted all his dynamitic 
 
43 
 
 earnestness to say this. There was his uplifted arm. There was 
 his emphatic forefinger. I see them now. I looked up the 
 case, and I found that the fact was that the New York Elevated 
 Railroad Company, which is now mansarded in common with 
 the Metropolitan Company by the Manhattan Railway Company, 
 had a charter that had been in operation under a law passed — a 
 special act — long prior to the Act of 1875, which allowed it to put 
 its stations within the street upon which its line wjas located by 
 statute, and not elsewhere, but that at the corner of Warren and 
 Greenwich streets they threw a station out into Warren, in viola- 
 tion of the powers created by statutory charter, and when the 
 attention of the Court was called to the subject, that ruling was 
 made, but it was not made against the Manhattan Railway Com- 
 pany — it could not have been made against it ; it was not in 
 existence when the wrong transpired ; but it was made against 
 the New York Elevated Railroad Company for acts that it did 
 independently of its being a part of the Manhattan Railway sys- 
 tem, which made no provision in the matter and never professed 
 to have the right to to take anything more than the statute had 
 given the New York Elevated Railroad Company. So much for 
 that res adjudicata. How does my friend Trull feel over this 
 exposition ! He quoted the Mattlage case as though I could. not 
 answer it. Is there any doubt about his discomfiture % Let us 
 pass on. 
 
 Bat Mr. Wickes comes here with the authority, and by direc- 
 tion, as he says, of the Corporation Counsel, and he says, " I have 
 got an objection that no man can answer." An objection that will 
 estop and conclude our Cable Company forever. He, of course, has 
 no right here. I deny it utterly, absolutely. But what is his ob- 
 jection ? For we must know if there is any spot of attack in our 
 corporate rights. What does he say ? Why he says this : The clause 
 in the Rapid Transit Act that requires a forfeiture to the Board 
 of Supervisors has not been complied with, for the reason that we 
 are to forfeit only that portion of our line that we fail to construct 
 within the time limited for its construction. This clause reads 
 as follows : " Section 7. The said commissioners shall prepare 
 appropriate articles of association," which " 
 
 * * " shall provide for the release and forfeiture, to 
 
44 
 
 # 
 
 the Supervisors of the county, of all rights and franchises 
 acquired by such corporation in case such railway or railways 
 shall not be completed within the time and upon the conditions 
 therein provided." * * * 
 
 Well, this provision was put into an act, passed in the year 1875. 
 In the year 1870 the Board of Supervisors was abolished (chapter 
 190, Laws of 1870). So, therefore, you see that the elevated 
 railroads, built under the Act of 1875, which contains this clause, 
 were subjected to this scheme of forfeiture. Were they for- 
 feited ? They didn't build all the roads they were authorized to 
 build. They built only two, and they were authorized to build 
 twenty-five. Does anybody appear here to say that because they 
 built only two instead of twenty -five — because they builded only 
 elevated and omitted the construction of surface lines, that the 
 whole elevated system of the city can be destroyed on a sham 
 objection of the character presented here 1 We followed in that 
 clause precisely as had been done before in the elevated railways 
 I have alluded to — the precise language of the old Rapid Transit 
 Commission. But what Mr. Wickes meant, and how he came to 
 throw out a dark insinuation that there was something mysterious 
 about that provision, I could not at once, when lie made 
 his objection, well determine, and I have been looking up 
 that subject. This is his suggestion. There was not any Board of 
 Supervisors in 1875 when this Rapid Transit Act was passed. The 
 Board, it seems, had been abolished in 1870 (chapter 190 of the 
 Laws of 1870). Well, what is the effect of that? That we are 
 to forfeit to a nonentity, to a nothing that cannot take — why, 
 it is a vain clause and amounts to nothing, and you might as well 
 have written in that statute that the forfeit should be to the Khan 
 of Harlem as to the Supervisors of ]STew York, or written it on 
 water. This, I cannot doubt, is a complete answer. Forfeitures 
 being odious in the law, are contemptuously kicked out of 
 every court of justice where there is any attempt to enforce 
 them unless there is the most stable and necessary ground for 
 them. A brand of shame is put upon their brow, and they are 
 accounted odious. The Court of Appeals had that question 
 before them, and they paid no attention to it. 
 
 But supposing that it should be said, although it has not 
 
45 
 
 been said or suggested, that by the doctrine of ci-pres, the Board 
 of Aldermen, acting as a Board of Supervisors, might take it. 
 Well, to that we say the provision is statutory, and the statute will 
 exert its own enforcement. We took our charter subject to that 
 clause, whether it is in our Articles of Association or not ; what- 
 ever it may be, it can be enforced against us by whoever has the 
 right and wherever there is the right. The statute is a part of 
 our charter. I suppose you are looking solely to gain for the 
 public the services we propose. I suppose you don't care whether 
 those services are furnished by our corporation, and are as willing 
 they should be furnished by the supervisors of this county. If 
 that be your state of mind, the statute, on which I am com- 
 menting, provides for that precise contingency. 
 
 Mr. Trull — You don't contend that the statute does not 
 require you to provide in your Articles of Association for that? 
 
 Mr. Shaw — I do not contend about it at all. But I do know 
 that whether or not they contain provisions for the protection of 
 the city, the statute will protect it, irrespective of any stipulation 
 or matter in our Articles. The statutory clause is there. Our cor- 
 poration must abide by it whatever it be. Its presence or absence 
 in our Articles of Association neither makes nor breaks us. You 
 can't assail our corporate life on any such ground as that. It's 
 our corporate life you are after. You expect to take it if you 
 can find verbal or technical inaccuracies or omissions in our 
 Articles of Association. There is nothing of the sort either 
 omitted or' included, as I will presently show you, in those 
 Articles. But you must yield up the illusion that you and all 
 with you — all the seventeen orators to whom I am replying, can 
 even meddle with that life — Whet your daggers. Distill your 
 poisons. Load your pistols. Against you all, ours is a charmed 
 life. You have not legal capacity to harm us. 
 
 Now, again, Mr. Trull says, " but if all these objections fail, 
 we have got you for a defect in plans." Well, our plans are a 
 precise copy of the elevated railroad plans, except in one partic- 
 ular, and in that particular only the slightest u flexibility," sanc- 
 tioned in the Elevated Railroad matter by the General Term of 
 the Supreme Court, was indulged in. My friends, the enemy, 
 
46 
 
 have made one fatal blunder in the whole line of their opposition. 
 It is thi6 : They have regarded the constitutional amendment of 
 1875 as giving property rights to abutting owners and to muni- 
 cipal authorities on streets for railroad services. Hence they say : 
 A railroad grant involves private property rights, and therefore 
 statutory proceedings under the Rapid Transit Act must be 
 strictly pursued. Nothing of the sort. ~No proprietary right 
 was created by the amendment. All was merely administrative to 
 promote public services. Wherever this occurs in a public statute 
 all the King's horses and all the King's men are powerless 
 to help technical irregularity and omissions. JSTo statute was ever 
 drawn on such a question that left the Court without discretion 
 and power to protect society. The Legislature expects it. The 
 Court exercises it. It is a singular fact that the questions of the 
 alternatives allowed to us by our Articles of Association were 
 quoted from the Articles of Association of the Elevated Com- 
 pany. It had the same alternative to build surface or elevated 
 railroads that we are allowed by our articles. Has the Court of 
 Appeals ever found that the elevated corporations were void 
 because they contained a provision to that effect ? I will leave 
 this discussion here for to-day, and to-morrow I will take up the 
 plans for the surface road and finish with such expedition as I can. 
 
 The Commission then adjourned to eleven o'clock on Thurs- 
 day, July 2, 1885. 
 
 The Commission convened at 11 o'clock on the 2d of July, 
 1885, when Mr. Shaw continued : 
 
 If the Commission please, I concluded our presentation 
 yesterday by a consideration of some criticisms of our op- 
 ponents, or the objectors, upon our Articles of Association which 
 they said were defective, and being defective, destroyed our cor- 
 porate entity, because, among other things, our plans are not 
 specified. I showed you, on the authority of the Court of last 
 resort, that these objectors could not question our corporate ca- 
 pacity. Whatever may be in doubt, that is an indisputable verity. 
 Well, then, our corporate capacity must be conceded. But, say 
 our opponents, though we have the clearest corporate capacity, 
 
47 
 
 still, as a corporation, we are not legally qualified to build these 
 roads, by reason of the defect in plans prescribed by onr charter 
 amounting to an inhibition to our construction of these roads. 
 Let us see about this. We have to build two sorts of railroads, 
 one elevated and the other surface. I showed you that the 
 plans for our elevated road were precisely in conformity with the 
 plans adopted by the Rapid Transit Commissioners that gave to 
 the city our elevated roads, and that they had been approved by 
 the Courts. 
 
 I now come to the subject of plans for the surface portion of 
 our route, which is the main part of our system. The objectors 
 say you have not made and described definite plans for these sur- 
 face railroads. They have said it to you, they have said it to the 
 General Term, and we have answered them there, and the Gen- 
 eral Term felt it was your duty to go on, and have in substance 
 said the answer is complete. I will answer it to you, and the 
 best way to answer it is to read you the answer we made to the 
 General Term when that complaint was made. I give you that 
 answer from our printed brief. So far as the indefiniteness 
 of the specifications is concerned, the plans are quite as specific 
 as those of the Elevated Railroads, which were approved 
 by the Court. There must be some flexibility in these respects. 
 It is not to be expected that working drawings should be pre- 
 scribed by the Rapid Transit Commissioners Mayor Edson gave 
 us. This the Court declared when passing upon the plans of 
 the Elevated Railways. My associate, Mr. Wheeler, who was 
 one of those Commissioners, has taken great pains to lay before you 
 the precise text of the opinion of the Court on this subject of 
 plans. This opinion, as he explained to you, may be found in an 
 abbreviated and imperfect form in the 7th of Hun, page 241. 
 
 There is a limit to your patience and a limit to my endurance ; 
 and I can't go over this matter again ; but you will not fail to 
 note what Mr. Wheeler so thoroughly emphasized, using the lan- 
 guage of the Court, that " flexibility " must be an incident in this 
 matter of plans, which should govern unforeseen considerations 
 of physical necessity that might arise in the construction of the 
 railways. 
 
 Now, as to the surface roads, there can be no more definite 
 
48 
 
 description of a surface cable road than that given in our Articles 
 of Association, namely, " according to the most approved plan of 
 cable traction as operated in San Francisco and Chicago." The 
 cable roads of those cities are of world-wide repute, and may be 
 considered as a conspicuous working model. This method of 
 description has been sanctioned by the Legislatures in 
 the charters of nearly all of our horse railroads, 
 which uniformly, by the acts of the Legislature, 
 are required to be built " according to the most approved plan of 
 horse street railroads." Charter after charter of these horse-rail- 
 road objectors who are making clamor about our plans, contain 
 this very phrase. Now what more can they want ? If I had a 
 model in this room and could exhibit the mechanical contrivances 
 of how we could work practically a surface road by cable pro- 
 cess, why that would answer the statute according to their 
 notion ; but there is the City of Chicago, notwithstanding our 
 city's expert, Mr. McKay, who in his affidavit describes it as a 
 deserted village with the grass growing in its streets and no en 
 terprise ; no industry and no business, for which my friend, Mr. 
 Wickes, apologized and said Mr. McKay did mistake himself a 
 little at that point. 
 
 Mr. Wickes— When did I say that ? 
 
 Mr. Shaw — In your argument. Dare you say you didn't ? 
 You don't deny it. The stenographer's minutes can be r ef erred to. 
 Of course Mr. McKay mistook himself, just as Mr. Crowley did, 
 just as Mr. Birdsall and Mrs. Twitchell and the rest of the city 
 experts have done; this veracious looseness, or rather the loose 
 veraciousness, of all the city experts, and there are no other 
 experts here, seems to characterize all these statements ; our 
 working model is in the City of Chicago, the very centre of the 
 business activity of two-thirds of this country (looking at the 
 map on the wall hung there by Mr. Wickes). 
 
 The Chairman — Do you refer to that as an exhibit ? 
 
 Mr. Shaw — I am glancing on the map that all the newspapers 
 have seen and commented upon, and which Mr. Wickes has placed 
 upon your walls. Forty railroads center in Chicago. It stands 
 
49 
 
 audaciously rivaling in its pretentions our own great imperial 
 city ; and yet McKay says that grass is growing there. I have 
 read his testimony carefully. He is Mr.Wickes' principal expert 
 witness. I derive from his testimony that there is no such city 
 on earth as the City of Chicago. That such a city once existed, 
 but was destroyed by a cable railroad. That after this calamity 
 historians have uniformly spoken of Chicago as Atlantis. That 
 before the advent of cable railroads Chicago was looked upon as- 
 an important provincial town, but cable roads destroyed it. 
 Troja fuit. 
 
 Now, what am I to do with such testimony as this ! There is 
 Chicago. Look at the queen of cities ! Don't crowd me to give 
 you epithets to compliment her ! She stands there. She 
 stretches her jeweled fingers to the North, to the South, to the 
 East and to the Wect — not to beckon, but to acknowledge com- 
 pliments to her consequence. Into her lap the resources of this 
 hemisphere are poured in gems of sparkling showers that rival 
 all our dreams of the exhaustless Inde. A cable road has been 
 built there and there are twenty miles of it, ten of double track, 
 and it is on the south side of the city, and it is a part of eighty- 
 seven miles of railway. The rolling prairie is on the west and 
 north of the Chicago river. The vast acres of Cook County are 
 put upon this sheet on the wall to show where Chicago is ; 
 and everybody knows that on the south side of that river lies 
 Chicago ; and there where that cable railroad is is its custom- 
 house, its post-office, its great hotels, the very centre of its energy, 
 the very heart and core of its life ; the rest is suburban. Is this 
 map put before us and to be argued about as a fraud and cheat 
 in aid of this Sterling testimony to which we have been treated ? 
 The most considerable of the city with all its activity is there. 
 What does that railroad do ? It carries 150,000 passengers daily 
 or 55,000,000 or more a year. Look at this great fact, and keep 
 looking at it. It carries the largest number of passengers of any 
 street surface railroad beneath the sun ; that is the model upon 
 which our road is based. Look at it. That map reminds me of 
 a map I saw once in Norway. There I saw a map of the United 
 States and the British Dominions of North America, and in the 
 lower corner of it a little bit, a fragment of the map represented 
 4 
 
50 
 
 the United States ; and Canada was put in glaring colors, and 
 large almost as the globe itself. That was to invite 
 immigration to her colonial dependency by the policy of 
 the British government. And on that map our own great Repub- 
 lic, with its 55,000,000 population, looked like an insignificant 
 speck, and Canada looked as though it was the regal domain of a 
 Sesostris. I regret I have not at my hand a map of the City 
 of San Francisco ; but they have some ten or twelve railways in 
 that city, seven of which are operated by the cable, five of which 
 have been converted from horse tramways to a cable railway. 
 (Here Mr. Shaw's assistant handed him a map of San Francisco.) 
 Look at that map (handing map to Commissioners), exaggerate 
 its proportions in your mind's eye, so as to relatively correspond 
 to that map on the wall (pointing to the large Chicago map in- 
 troduced by the Corporation Counsel). San Francisco would show 
 a railroad system almost as small and insignificant as it is on that 
 Chicago map. 
 
 Now it turns out that in San Francisco, according to the 
 statistics put upon this map, the seven cable roads they have there 
 cover the most important part of the whole city ; and it also turns 
 out that the property along the line of each cable route has increased 
 in value by reason of these cable roads. That there has been an im- 
 mense increment of value, while the property along the lines of the 
 roads that are not cable, has depreciated. It is shown in our proofs 
 that the conversion of the horse railroads to cable roads has made 
 nnpaying horse railways profitable, because when cabled they have 
 attracted traffic, and thereby given values to property. Their cable 
 roads are paying and stand like gas stock in this city, the first and 
 foremost property investment. Property along the lines of the horse 
 roads, which do not pay, has depreciated. That lithograph (point- 
 ing to large sheet on the wall) is the return from the municipal 
 authorities of the City of San Francisco. It is authenticated by 
 the Mayor and the City Assessor of San Francisco, and shows the 
 beneficial effects of this cable system. This system has been in 
 operation there ten or eleven years, and the world has known 
 of it and the citizens have been proud of it, as the citizens 
 of Chicago are proud of their cable roads ; it is doing the 
 immense work I have spoken of, and it was perfectly proper 
 
51 
 
 for our Mayor's Rapid Transit Commissioners to refer, in 
 their Articles of Association as they did, to a working, acting and 
 practical model for a system of cable roads. Well, that disposes 
 of the criticisms upon the Articles of Association, so far as plans for 
 cable surface roads are concerned. 
 
 But Mr. Cozans argued that a cable road was not possible, 
 within the meaning of the statute, as not being a steam railroad. 
 What authority has he for that '( 
 
 Mr. Cozans— The 84 K Y. 
 
 Mr. Shaw — I do not need to be coached on that case, for I know 
 it well. Now, the fortieth section of this Rapid Transit Act, 
 which in the running fire that has taken place before the Commis- 
 sion,in discussing the question, illustrates what interpretation ought 
 to be put upon it, provides that this Rapid Transit Act should 
 be known and distinguished from all other acts as a separate 
 system of legislation or of railroad services for cities. That act 
 may or may not be at once its monument and its tomb ; but, 
 whatever it is, it is an act all by itself ; it is sui generis. Con- 
 template it as unassailable by analogy or by precedent ! When 
 these gentlemen who are opposing me can realize this great fact, 
 they may be able to distinguish law propositions which favor 
 them and assail me. Until then, let them keep all their arrows 
 in their quiver. Such provision for railroad services was to be 
 disconnected from all railroad services under the Act of 1850 ; all 
 railroad services to the public under any private or special charter. 
 It is to stand by itself, to be its own completed self, sui generis, 
 without any other connection or contention with any other statute 
 or thing. But in the very belly of the Act, in section 36, the 
 Act did take in two separate corporations which were there as 
 exceptions from the general operation of the Act, and those were 
 the New York Elevated and the Gilbert Elevated Roads. These 
 exceptions were as conspicuous as a lofty mountain on an immense 
 plain, and are distinguished because they stand alone. There 
 they are, dominating figures in this great system of legislation 
 for intramural transit. Thev have been sanctioned bv the author- 
 ity of all our courts, and are therefore judicially hallowed. 
 
 They rise like some tall cliff whose awful form 
 Swells from the vale and midway leaves the storm. 
 
52 
 
 But, there is Section 40 of this Rapid Transit Act. Look at 
 it ! Contemplate it ! Don't it tell you that it dominates the 
 entire situation contemplated by the Act, and that Section 3 6 is 
 but an incident in the general scenery — or field of legislation 
 intended to be created and covered by that Act ? 
 
 Outside of that this Rapid Transit Act was to stand, and to 
 inaugurate, and be precursor, the foundation of a separate, inde- 
 pendent system of legislation for these public services in cities. 
 The Fortieth Section, to which I have alluded — if vour Honors 
 will look at it you will see that the result and purpose of that 
 section is that no steam railway company, under the Act of 1850 
 or any of its amendments, nor any other railroad company by any 
 special legislation, anyway or anyhow, except those railroads that 
 might come in under the Thirty-sixth Section of the Act, should 
 have any consideration or recognition under this act. That, I think, 
 you will find is clear. I say you will find it clear. Well, it is clear. 
 But that Act of 1875 was a General Act. It provided for precise 
 conditions. Through its narrow gateway a well-advised, decorous 
 corporate procession like ours might pass, and enter into the enjoy- 
 ment of the powers and privileges it confers. Our corporation 
 has passed through that gateway. That you now understand. 
 
 That Rapid Transit Act is popularly supposed to have been drawn, 
 probably was drawn by the master hand of Governor Tilden ; at all 
 events it is known that his private secretary bore it to the Speaker 
 of the House, who left his seat and went upon the floor of the 
 House of Assembly to introduce it, and it was passed under the 
 auspices of Mr. Tilden, who was then Governor ; there is no 
 doubt of this ; and it was universally said he drew the Act. He 
 drew it, as has been charged in the briefs quoted by our adversa- 
 ries in the Court of Appeals, as a shrewd and crafty measure to 
 save the Gilbert Elevated and the New York Elevated Compa- 
 nies' charters, and hence section 36. All the rest of the Act was 
 a public act, and belongs of right to any competent combination 
 of citizens who may publicly and openly invoke its powers. We 
 draw the veil here. We don't know, or profess to know what 
 Governor Tilden did ; but we do know that that Act is a general 
 Act, and that our method of procedure has adequate vigor under 
 it. 
 
58 
 
 Now, we stand on this Rapid Transit Act, cut loose from all 
 other Acts. Mr. Cozans seems to misconceive, and I noticed my 
 friend Mr. Trull, and Mr. Coudert and Mr. Hand also miscon- 
 ceive the effect of that section 40 of the Rapid Transit Act. But 
 we are indubitably within the narrow limit of that Act, and all 
 decisions and all authorities under other Acts are inapplicable to 
 this Act. Counselor Cozans cites the case from the 84th N. Y., 
 which was a case which arose under the General Railwav Laws of 
 the State, and not under the Rapid Transit Act. That answers 
 him, and answers him fully. 
 
 Mr. Cozans — That decision was rendered under a Special 
 Act. 
 
 Mr. Shaw — General Act, or Special Act, it does not make 
 any difference. It was not the Rapid Transit Act. This Rapid 
 Transit Act under which our rights accrue, says, subdivision 4, 
 section 26, that we may have any motor other than animal power. 
 I give you the subdivision, and ever after let there be no question 
 about it. 
 
 " Sec. 26, Sub. 4. To take and convey persons and property on their rail- 
 " road by the power or force of steam, or by any motor other than animal 
 *' power, and to receive compensation therefor." 
 
 I cannot inquire what the Courts may say about some other 
 cases under some separate and independent system of railroad 
 legislation, but under this system of railroad legislation they have 
 said in that subdivision, section 26, that our motive power may 
 be any motive power other than animal. 
 
 (Recess taken for twenty minutes.) 
 
 Mr. Shaw, resuming, said : 
 
 The most formidable criticism made upon our Articles of Asso- 
 ciation goes to our corporate capacity to lay out surface railroads 
 across town. Mr. Trull and Mr. Cozans have been very careful to 
 call your attention to the fact that the act provides that we shall 
 not cross steam railways at grade, and they charged the Mayor's 
 Commissioners that gave us our charter with a deliberate viola- 
 tion of th3 law because we had crossed the Hudson River Rail- 
 
54 
 
 road at grade. In the charge, and in the allusion to section 4 of 
 the Rapid Transit Statute, they settled once and forever any 
 doubt that should be upon your mind as to the meaning of the 
 words " over," " through," " under," " across." In the opinions 
 of counsel, which are the opinions that 'the Rapid Transit Commis- 
 sioners who gave us these Articles of Association solicited and 
 obtained, this matter is unfolded with conspicuous definiteness. 
 
 Among those opinions which I have laid before you, you will 
 find the opinion of Mr. Develin. That opinion calls attention to 
 that very point, and is made the basis, with several comments in 
 undoubted confidence that the statute authorizes a surface cable 
 railroad. Mr. Wheeler H. Peckham also gives us an opinion on 
 that question. 
 
 The Chairman — Upon that question ? 
 
 Mr. Shaw — Yes, sir ; and on that question alone. Ex-Judge 
 Leonard has an opinion on that question of law ; Mr. Evarts has 
 an opinion on that question ; Mr. Loomis elaborately considers it ; 
 and I had the honor to offer an opinion on that subject. I was 
 the counsel to the Cable Commission, on whose work you are 
 sitting in review. It was not without fear and trembling that I 
 considered almost every question that Commission had to pass 
 upon, but this question was the least embarrassing of all ; for I 
 knew, a mere child could know, who had capacity to consult a 
 dictionary, that cable surface roads could be built under the act. 
 The Elevated Railway Commissioners, whose action has been 
 approved by every court, had no doubt about that right. They 
 laid out routes on the surface. The act being a public act, and 
 applicable to all the State, and, as was with great force stated by 
 Mr. Church yesterday, not available, to any other city except 
 Brooklyn and Xew York, unless it could furnish surface rail- 
 roads. Brooklyn might have an elevated or an underground rail- 
 way, New York might have an elevated or underground railway, 
 but no city, except these cities, within the whole State, could prac- 
 tically avail themselves of this act which is to provide steam transit 
 facilities for counties of the State unless surface roads could be 
 built. Let there be no mistake about this. I say that unless 
 surface roads can be built under that act anywhere in 
 
55 
 
 the State, it is not a general act, and that it is a fraud and 
 a scandal to our Legislature and to our courts. Such a thought 
 would horrify civilization. You have been to Albany, you 
 have clambered that steep hill — and you know it is so painful to 
 reach the Capitol from the depot — to see those horses struggling, 
 that you prefer always to walk. They are about cabling those 
 cars ; they have contracts to cable them with our corporation. 
 The Rapid Transit Act is available to do that. It is just so in 
 Ithaca ; it is so in Kingston ; it is so in Newburgh ; it is so in 
 Poughkeepsie. All over the spirit of cabling is going on, and if 
 the system could not be applied to the surface, why the act would 
 not be available to any city except the two cities of New York 
 and Brooklyn. 
 
 Mr. Trull — Is it not a fact that the Act of 1884 provides for 
 a cable road % 
 
 Mr. Shaw — But it is also a fact that the Act of 18S4 was not 
 in being when the Act of 1875 was passed, nor was it in being 
 when these Cable Rapid Transit Commissioners laid out these 
 routes. As to the Act of 1884, I may say to Mr. Trull that pro- 
 vision was put into it for the purpose of destroying our corpora- 
 tion by men who controlled legislation. 
 
 Now, it is not necessary for me to argue that proposition 
 further, but you now know how cautiously and carefully the 
 Cable Rapid Transit Commissioners proceeded in laying out this 
 system of routes ; what care they took to get the opinions of 
 counsel and have the Statute searched for precedents. They 
 knew what the previous Commission had done in laying out ele- 
 vated and surface roads ; the very form that was laid before 
 that Commission by me was a bond — a mortgage bond of the 
 Metropolitan Elevated Railway Company — that provided on its 
 very face that the security was upon the elevated and surfacelmes 
 of that corporation. Those bonds are traded in by the millions on 
 the street ; they are securities for fortunes. That bond was prepared 
 before the railroad was built, and in anticipation of the construc- 
 tion of surface roads. The bond was drawn upon the Article 
 that allowed the building of surface roads. The validity of that 
 bond has never been questioned. 
 
56 
 
 i" hold, that if there is one clear truth, indisputable, unques- 
 tionable in this whole business, it is the right under the Act of 
 1875 to build surface roads of any variety exce/>t those to be 
 operated by animal power, and this Act of 1884 recognizes it. 
 By the very section 16 of that act, which our opponents rely 
 upon to destroy us, it is recognized ; for they say that no more 
 surface roads shall be built under chapter 606 of the Laws of 1875, 
 under authority of Commissioners to be appointed under that act. 
 (Here Mr. Shaw read the section.) ]STo more surface roads — no 
 surface roads. There is a very clear recognition in the Statute 
 itself. Now, if the Commission please, we had great debate on 
 this question in Albany before committees of the Legislature, and 
 uniformly in every committee they reported upon our rights, and 
 our right to have surface roads under this Bapid Transit Act of 
 1 875. While with the blare of the bugle and with their provender 
 and their boodle they went to oppose me, they never could defeat 
 or get it out of the head of any committee under the presenta- 
 tions I made, that the power is complete. And when they 
 made their makeshifts and reversed reports of committees, and 
 passed this sixteenth section, they had to recognize this right to 
 surface roads as the Court of Appeals had so recognized in the 
 elevated railway cases. There can be no question about it. But 
 in section eighteen they provide for existing street surface rail- 
 road corporations, and they divide them into roads or companies 
 that have a right to build roads that are horse railroads and other 
 roads that are not horse railroads, and what other road is not a 
 horse railroad but our cable road 1 I clinch the argument there. 
 
 I omitted to notice in its proper place the following item : 
 that Boute No. 1, when it was located, was merely located with- 
 out respect to plan. The Commissioners thought that there ought 
 to be a road on Boute No. 1 and they adopted the route irrespec- 
 tive of the plan or the way of operating it, and afterwards the 
 plan was fitted to it. It was passed as a desirable route for a 
 railway, irrespective of the method of its operation. 
 
 The next criticism that is made on these Articles of Associa- 
 tion is, that they do not fix the time with sufficient definiteness 
 within which the railways should be constructed. We claim that 
 the correct interpretation of that article is this, that the time 
 
57 
 
 begins to rim from the time we had legal ability to commence 
 the work ; the time of constructing the road is from the time of 
 lifting the first spadeful of earth until we drive the last spike, 
 provided we lift our first spadeful of earth at the moment after 
 we get legal ability to do so. That question was argued by Mr. 
 Trull, on behalf of his railroad company, against myself in the 
 Common Pleas before Mr. Justice Daly, and Justice Daly adopted 
 the view that the time was too fluctuating and that it must neces- 
 sarily impair the validity of the corporation. His attention called 
 to that sentence or paragraph, of Judge Earl's opinion, which I 
 read to the Commission yesterday, that our corporate capacity 
 could not be attacked, incidentally or collaterally, was ignored. 
 He may afford it, but no competent judge could afford it. In a 
 case that this corporation brought in the Supreme Court and 
 argued before the General Tenn, Mr. Justice Daly's opinion was 
 used for all it was worth. Its full force and effect was poured by 
 counsel upon the Court, and under the pressure of the argu- 
 ment that Mr. Evarts made, no respect was paid to it whatever. 
 
 By the Chairman — Was Judge Daly's decision before the 
 General Term of the Supreme Court — the Court that appointed 
 ns ? 
 
 Mr. Shaw — Yes, sir ; and immediately upon the conclusion of 
 the argument, or rather after appropriate advisement, this 
 Commission was appointed with all these objections before the 
 • Court. 
 
 My friend, Mr. Wickes, the Deputy here of the Counsel to 
 the Corporation, requests me to be particular and tell him 
 what was the outcome of the proceeding which he called the 
 Second Avenue case, a proceeding instituted by my corporation 
 against the Second Avenue R. R. Co. There shall be no want 
 ■of frankness in my disclosures about that. The outcome of this, 
 Mr. Wickes, was, that after Mr. Justice Daly's opinion was fully 
 and at large urged before the Court, this Commission was 
 appointed. With all these objections, that is the definite out- 
 come, but I will be more particular with you. 
 
 The Chairman — Was this Commission appointed on an ex 
 parte application ? 
 
58 
 
 Mr. Shaw — Yes, sir. 
 
 Mr. Wickes — I referred in my remark to the litigation with 
 the Second Avenue Railroad Co. 
 
 Mr. Shaw — I am going to deal with that, yon will have it 
 life-size and twice as natural. 
 
 Now, I informed the Commission yesterday that the object of 
 the discussion of all these criticisms upon us was not to advise you 
 or argue with you about what your duties are in the premises, 
 whether you are to consider these questions ; but to fix in your 
 minds that if you make this report in favor of the petitioner 
 your work will not be a vain one ; but there is not a scintilla of 
 doubt but what you will be sustained by precedent, by authority 
 in every court. A gentleman who was present yesterday, with 
 whom I happened to speak about this aspect of the case, said to me r 
 " why the elevated railroads were not built until they went to the 
 Court of Appeals, because these horse railroads raised these ques- 
 tions of the constitutionality of the act and the irregularity of 
 the proceedings of the Rapid Transit Commissioners and of 
 the Court's Commissoners so that capital could not be found to 
 build them," and that Cyrus W. Field stepped in under the 
 advice of his brother, David Dudley, shouldered all the 
 questions and put it through, and had to do it alone, 
 single-handed. The object of this attack is manifestly to 
 work out a dissatisfaction among the promoters of our - 
 enterprise so as to induce them to withhold their funds ; and 
 fifteen horse railroads with their claque, big ones and little ones, 
 worthy ones and unworthy ones, and all the crew, all those who 
 want railroads, franchise hunters, are working and speaking into 
 everybody's ear the notion and the idea that here is a Commission 
 going on and doing things which are entirely illegal. Why, they 
 hope to frighten capital out of its boots and they hope to frighten 
 you, they hope to frighten the Court out of its propriety almost ; 
 and the object of putting these criticisms before you and before 
 the public, is no other and no worthier than a malicious slander 
 of our title. 
 
 Do you suppose that I do not know that Mr. Trull knows — and 
 Mr. Trull speaks for all horse railroads in being and all that hope 
 
59 
 
 to be in being — that he cannot incidentally or collaterally attack 
 this corporation ? He is too good a lawyer not to know that. 
 Does Mr. Wickes know it ? There is not a lawyer that has appeared 
 in this case of so feeble capacity that does not know it. JSTow I 
 want to clinch the nail beyond all peradventnre. We have 
 had this subject considered before the General Term of the 
 Supreme Court recently. It went there on a motion of the 
 horse railroads. For five weeks your work has been suspended 
 and delayed by an injunction order, until the General Term 
 coifid decide. It is not proper for me to say what the Court have 
 decided, or how I regard that decision. But it is entirely 
 decorous for me to say that the Court dissolved the injunction, 
 and left you to proceed with your business. If I interpret that 
 decision rightly, it is to this effect : You are to complete your 
 work on the basis of deciding upon the physical and economical 
 advantges of our cable system. If there are any law questions 
 involved, that may prove insurmountable to the achievement of 
 that system, the Court will determine regarding them. This seems 
 to be the sense of the decision. If it be so, you are to go on and 
 decide on the questions of physical and economical advantages 
 about our system. I may say farther, the Court is a great one. 
 No human tongue or pen — no human thought has ever questioned 
 its ability or its integrity, nor its sagacity, nor its careful apprecia- 
 tion of any suitor that was ever before it. Do you suppose for 
 one instant that such a court would allow a grave and expensive 
 proceeding like this to go on, if it had serious doubt about its 
 legality ? 
 
 It is proper that I should state to you that every conceivable 
 objection urged here was urged before that Court. The Court 
 knows those objections and has measured them. If they have con- 
 spicuous force, would not the Court have detected it ; and would 
 not that great Court have consigned us to a final rest ? Some 
 graveyard where one little tomb would bear this inscription : 
 
 " If I was so soon done for, 
 What was I begun for V " 
 
 The cry is to stop us. That's the horse railroad cry. They 
 wanted to stop the Mayor's Rapid Transit Commission who begun 
 
60 
 
 us ; they did interfere and they worked it up to such certain 
 extent, that they got new Commissioners. They wanted 
 to stop us at the door of the Legislature. Hence section 16 of 
 the Act of 1884. They have tried to stop us in the courts, and 
 they dread nothing so much as they do to have this thing pro- 
 ceeded with. They know the inevitable doom of the horse rail 
 road interest if we do succeed. This is confirmed by the facts 
 before you. They know they must be brought to the transfer 
 system, to the cable system, to a surrender of these independent 
 short routes for a five-cent fare, and to the merging of the wl^ole 
 of their interests into a grand system for only a five-cent fare. 
 They want it stopped. They want to stop you, and tried to stop 
 you the other day in the General Term, and the General Term 
 did not stop you, and the General Term never will stop you. 
 
 Now, they have had all their questions before the Court. Yes, 
 five times it has been before the General Term of the Supreme 
 Court, from which you get your appointments. The fullest and 
 ablest exposition of all objections, including Mr. Justice Daly's 
 objections, and every other objection that could be urged were 
 presented on a brief prepared by John M. Scribner and undoubt- 
 edly revised by Mr. Trull. They were heard at the General 
 Term, and thereupon this Commission was appointed. Now 
 they want it stopped — stopped here. 
 
 Permit me to say : 
 
 " No rogue e'er felt the halter draw 
 With good opinion of the law." 
 
 They submit these questions to you for confusion. They 
 expect to confuse you so that you will not submit these law ques- 
 tions to the General Term. If they can huggermugger so far as 
 the report of this Commission is concerned with the blandish- 
 ments of my delightful friend Mr. Trull, they may be saved ; but 
 when you have made your report, if favorable, they will not be 
 at the General Term with these stale objections to oppose, but 
 they will take their' boodle men and hie them to the Aldermanic 
 Chamber and there they will " paint an inch thick." " Stop 
 it, gentlemen of the Board of Aldermen," they will say. 
 " Here is our money. Stop it some way and never let it 
 
61 
 
 get into court" — that is their argument. Now, to show you 
 if we do get into court what will be the outcome. If there is 
 anything fundamental in this Rapid Transit Act that may be 
 called its operative and necessary clauses, it is those clauses that 
 fix the period of time within which certain things should be done. 
 Within fifteen days, as the act provides, Commissioners must 
 organize ; within thirty days from organization they must declare 
 the necessity for the routes ; within sixty days they must lay out 
 routes ; within ninety days they must decide upon their plans ; 
 within one hundred and twenty days they must make their 
 articles of association. The words are mandatory to do those 
 things. But the Elevated Railroad Commission did not do 
 the sixty-day thing. The sixty days elapsed without certain 
 necessary applications, and Mr. Parsons in arguing that objec- 
 tion, was met with this decisive reply from the General 
 Term. In the opinion of Mr. Justice Daniels occur these 
 words: "The Act of 1875 does not require that the 
 " consent rendered essential by the statute, or the report of 
 " the commissioners appointed by the General Term, and con- 
 " firmed by the court should be secured within sixty days. 
 " The statute requires simply that the commissioners should, 
 " within sixty days after their organization, fix and deter- 
 " mine the route or routes for such steam railway or rail- 
 " ways " (Laws of 1875, chap. 606, sections 4 and 38). " In 
 " any event" said the learned Judge, " the time within which a 
 " public act is required to be performed is not mandatory, but 
 " directory, a literal observance of the direction as to time is not 
 " indispensable to the validity of the act.'' 
 
 The Chairman — What authority do you refer to ? 
 
 Mr. Shaw — I refer to 7th Hun, p. 241. By a public statute 
 which the Rapid Transit Act was, and is, unless there are special 
 clauses that are of the very essence of the act, and which direct 
 its movement and which are declared to be by the statute itself 
 the very essence of the statute, all those incidents and conditions 
 are called directory. I one day carefully enumerated all the 
 things that should be done under the Rapid Transit Act and J 
 found that there were one hundred and eleven stated, specific 
 
62 
 
 things to be done under that act. According to the interpreta- 
 tion of our friends here, if every one of those one hundred and 
 eleven things were not done in the precise manner indicated and 
 prescribed by the statute, according to the most strict construc- 
 tion, that would, on any view the Court might take of the statute, 
 vitiate the whole proceedings. Now that thing in the Elevated 
 Railroad case was not done within the sixty days, as prescribed by 
 the statute, and this authority of the 7th Hun there shows it. 
 
 The provision in Section 4 of the Rapid Transit Act, that a 
 certain thing should be done within sixty days, the Court treats 
 as not having been done. I don't know whether it was done or 
 not. I do know that we did that same thing within sixty 
 days. We felt, if we had not done it, that there might be a 
 defect in our corporate capacity, but we did do it. We never 
 ventured upon any such departure as- this opinion condones. 
 
 Now consider this. The Statute said that a thing should be 
 done within sixty days. This decision of Judge Daniels deals 
 with the question as though it were not done within sixty days. 
 Yet, Mr. Justice Daniels, speaking for the General Term, said 
 that this sixty-day matter was merely directory. 
 
 If your Honors care to pursue the inquiry, you can read 
 from page 368 to 381 of Sedgwick on Cons, and Stat. Law. 
 There you will find the whole law declared. But it goes so far, 
 and so much further in this State as to excite even the comment 
 of this great elementary writer. On page 377 he says "I may 
 " here notice that this same principle has been applied to the 
 " interpretation of constitutions. The Constitution of New York 
 " provides in regard to all laws that the question upon their final 
 " passage shall be taken immediately upon the last reading and 
 " the ayes and noes entered in the journal (Cons. Article III., 
 " sect. 15,) it has been held in regard to this provision with what, 
 " I say it in all deference, appears to me an extreme laxness, that 
 " it is merely directory and that the disregard of it would have 
 " no effect upon the lawP 
 
 The cases of departure in England from mandates upon 
 municipal bodies — positive mandates of Parliament — are com- 
 mented on in this work, and it is shown that where a public 
 statute is administered by public officers for a public service the 
 
63 
 
 end in view is the principal matter, and that any departure, even 
 from mandatory features in the statute is to be disregarded. The 
 object and purpose of the statute which is to remedy a public 
 mischief or promote a public service must be effectuated, if it 
 takes all the king's horses and all the king's men to force the 
 judiciary to do it. That disposes of the law and all legal embar- 
 rassment about our questions here. 
 
 Now that disposes of the question of time, and this argument 
 I have just addressed to you was the argument addressed to the 
 General Term of the Supreme Court on the only serious question 
 our opponents can make, in answer to the decision and opinion 
 of Mr. Justice Daniels. 
 
 Mr. Trull — If I understand your contention you had more 
 than sixty days, and if that be so, how did you happen to advise 
 Mr. Randolph, Mr. Devoe and Mr. Hedden, that they could not 
 change the route after the time had expired. 
 
 Mr. Shaw — For the reason that when your horse-railroad 
 people changed the Commission I ceased to be their adviser ; I 
 retired. 
 
 The Chairman — Is there not a better answer ? 
 
 Mr. Shaw — Yes ; there is a far better answer. I might well 
 make it, but I choose to state here that I did not advise the 
 reconstructed Commission. " It is long to state but not hard to 
 tell." I did not advise them, so much for the question of time. 
 
 Now, a word further on this subject of plans, somehow or 
 other it escaped my attention at the time I was commenting upon 
 that criticism. They cited Mr. Justice Daniels' opinion that 
 came down the other day on the motion about the Boulevard Route. 
 That there was a defect for the want of plans. That same Jus- 
 tice who wrote that opinion on the Elevated Railway case, has 
 recently said that the " irregularities and omissions " in following 
 the statutes — I speak of the application of Mr. Sharp's Broad- 
 way railroad — could be very well disregarded ; and there were 
 two fundamental irregularities and omissions in Mr. Sharp's 
 matter. They were these : A notice to the property-owners was 
 prescribed definitely by the Statute, that they desired their con- 
 
64 
 
 sent or refusal for the road, Mr. Sharp, failed to give notice. 
 This was an irregularity, an omission touching the very life of 
 Jacob Sharp's railroad, and will, undoubtedly, unless some legis- 
 lation can cure it, destroy his franchise, as a report from your 
 Commission will destroy Mr. Conover's. We mean war. We 
 mean that these people shall know that their securities have got 
 the taint, the seed of death in them. Mr. Conover has no right 
 to be selling his bonds and distributing his stock to widows and 
 orphans, nor has Jacob Sharp to be distributing his to widows 
 and orphans with this taint upon them, and this danger of their 
 destruction, utter worthlessness staring them in the face. Bom- 
 bard my finances as these objectors may, I bombard theirs, and 
 with such righteous reason and such indisputable law that I can say 
 that I would not give that (snapping his fingers) for the intrinsic 
 value of a dollar of Conover security, because we have a right in 
 that road. 
 
 Another, and the second irregularity, relates to an omission to 
 protect the City. It is, in substance, Mr. Wickes' objection 
 against us here, that the City has not been adequately provided 
 for. The Court quieted its conscience on that question by accept- 
 ing a stipulation between the Counsel to the Corporation and 
 Jacob Sharp. That stipulation reconciled the Court to an 
 approval of Mr. Sharp's scheme, on the broad principle that 
 technical irregularities and omissions in a matter relating to 
 public services, ought to have no weight with the Court. 
 
 But what are we to infer from the fact that such a stipulation 
 was made between the Corporation Counsel and Jacob Sharp ? 
 Don't it help us to know that the Corporation Counsel is here in 
 the interest of Jacob Sharp ? 
 
 Now, these are all the criticisms made upon us. I have 
 reviewed them one by one, and I have incidentally argued all in 
 this case that rests upon them. The whole claque against us is 
 an organized claque. It is as thoroughly Frenchy in its methods 
 of operation as anything that occurs in a Parisian theatre. 
 They are in the Fifth avenue Hotel, in the Hoffman House, in the 
 Brunswick, in all the bar-rooms, around the courts, nursing this 
 doubt about the validity of our charter, and it reminds me, 
 when I hear some of the lawyers that are engaged in disseminat- 
 
65 
 
 ing this opinion, of what I used to encounter in my early days 
 when I was called a politician. I was an abolitionist ; I was an 
 anti-slavery man. I would meet some red -mouthed Irishman who 
 would tell me that this whole abolition business was entirely 
 unconstitutional ; that it was against the principles of Democracy. 
 The lowest gamin that aped democracy thought it was all uncon- 
 stitutional, and this claque has spread throughout the town that 
 our cable road charter is unconstitutional, illegal, null and void. 
 
 Mr. Wheeler dealt with the questions as to the necessity of 
 railways on all our routes. He showed you the feasibility of 
 cable roads for such routes. He was disputed. Our routes were 
 denounced as unnecessary and useless, and destructive to prop- 
 erty. Our overwhelming testimony was to the effect that where- 
 ever a horse railroad might be useful a cable road would be far 
 . more useful. When these horse-railroad objectors, right in the 
 heat of this debate, went and tiled on all our routes, the William 
 Street Route, the Wall Street Route, the Broad Street Route, 
 the Cortlandt Street Route, the Liberty Street Route, the Lex- 
 ington Avenue Route, they entered a cognovit. There they are, 
 stripped and powerless to make objection. They admit the desira- 
 blity and feasibility of horse roads on these streets. You know 
 that cable roads would be far preferable. 
 
 I want to leave this as a controlling lodgment in your minds, and, 
 for I see many reporters here I want to throw, as far as the press 
 can carry it, the challenge that such objections as have been made 
 against us are objections that were raised against the Elevated 
 Railroad Companies, and which were overruled by the Courts. 
 They have been rehabilitated and taken from their graves. These 
 objections were disposed of and consigned to their tombs 
 eternally, and yet they have been brought here and renewed 
 against us in order to produce a distrust in the public mind that 
 some how or other there was an illegality of some sort some- 
 where that made our charter invalid. 
 
 Mr. Wickes — May I ask a question ; have you omitted or do 
 you intend further on to give us the history of the Second Ave- 
 nue Railroad case ? 
 
 Mr. Shaw — This is my brief, and you may read it yourself. 
 5 
 
66 
 
 I am speaking from it (handing brief to Mr. Wickes). Mr. Wickes, 
 requested to know what was the outcome of the suit that this 
 company brought against the Second Avenue Railroad. 
 
 The Chairman — Is it reported ? 
 
 Mr. Shaw — No, sir ; the Second Avenue Railroad Company 
 obtained the consent of property-owners on First avenue for an 
 extension of their line on First avenue under this act of 1884, a route 
 of ours, and they also obtained the consent of the local authorities, 
 the Board of Aldermen, that they might build them. That hap- 
 pened to be one of the lines that the Cable Rapid Transit Commis- 
 sioners had assigned to us first. We claimed we had exclusive 
 authority to build on that line, and we having paid the expenses of 
 that Commission held proprietary rights. That was our position, 
 and f to prevent that corporation from building on our lines we com- 
 menced an action, and applied for an injunction in the Supreme 
 Court, which Vas granted to us by Mr. Justice Donohue. That 
 case was argued before Mr. Justice Donohue by Mr. Evarts and 
 Mr. Sewell on our behalf. Mr. Scribner — I do not know whether 
 Mr. Trull considered himself in the case — took an active part in it ? 
 in conjunction with Mr. Hutchins, and generally the horse- 
 railroad array of both Sharp and Conover. General Wingate, I 
 know, did a good deal of talking with the Justice, who after- 
 wards heard that case. The whole case was discussed. Mr. 
 Evarts' argument lasted some three hours and a half ; the discus- 
 sion went through two days ; and you will find the question of 
 "time" — the question made by Judge Daly in the Court of 
 Common Pleas was argued ; and after considerable deliberation, 
 Mr. Justice Donohue upheld the injunction; but he compelled us 
 to go to the General Term, and to take a short notice, so that if the 
 Second Avenue Railroad Company felt aggrieved they could 
 have an early hearing at the General Term on appeal. 
 
 I may say that the condition of the Second Avenue Company 
 at the time the injunction was granted was this : they had about 
 twenty blocks torn up ; they had three or four thousand Italians 
 employed ; they were under very large obligations ; we assisted 
 them to a speedy hearing ; this was given and the case was 
 argued at the General Term with all the expedition that I could 
 
67 
 
 aid in giving. Mr. Evarts argued it for us and Mr. Hutching, 
 reinforced by Judge Joseph F. Daly's opinion, which he quoted 
 and presented, argued against us ; I had taken like proceedings 
 in the Common Pleas against my friend Mr. Trull's Conover 
 railroad on the ground that we had the exclusive right to Forty- 
 second street ; and Mr. Trull made quick work, so quick work 
 that he was able to have the opinion of Judge Daly before the 
 General Term of the Supreme Court, from which you derive your 
 appointment when Mr. Hutchins and Mr. Scribner argued all 
 these questions there. Our corporate capacity was challenged ; 
 our plans were challenged ; our time for constructing roads was 
 challenged — everything was challenged that has been exhibited 
 here, except that single question presented by Mr. Wickes about 
 our liability to forfeiture to the city in case we were not required 
 by our Articles of Association to do every act and thing to the 
 very letter. Ridicule is no name for the answer that was made to 
 this objection. 
 
 There, again, the General Term heard all this story of objec- 
 tions. Fully a whole day it was argued pro and con and we were 
 looking with great expectancy for an opinion to be handed down 
 when the Court should meet. I could get no intimation of what 
 the decision was to be, and one morning I was visited by 
 Mr. Hutchins, the counsel for the Second Avenue Railroad Com- 
 pany, who said, " I would like to withdraw that appeal from 
 Judge Donohue's decision before the opinion of the General 
 Term is handed down.'' I said to him, " What will you give ? 
 He said, " I will pay all the expenses and your costs, amounting 
 to some thousands of dollars ; " and he paid it, I wrote a letter 
 for him to the Chief Justice to ask to have the appeal dismissed. 
 He further gave me a stipulation that the injunction of Judge 
 Donohue might stand, with the modification that I put that he 
 might use the street that he had torn up and that his work might 
 remain until such time as the king came to claim his own. That 
 is the history and that is the way that appeal was withdrawn. 
 I moved then for the appointment of this Commission and to sav 
 that our application was fraud on the Court is the height of impu- 
 dence. 
 
68 
 
 The Chairman — Did Judge Donohue give you an order 
 upholding the injunction as modified ? 
 
 Mr. Shaw — Yes, sir ; of course he did ; how could he do 
 otherwise when the General Term omitted to say, on application 
 of my adversary, it had no views opposed to his '( I suspect the 
 truth to be that Mr. Hutchins then knew what the opinion of the 
 General Term was ; indeed, I think he saw it ; he knew it was 
 his destruction. 
 
 The Chairman — Is there any dispute between you gentlemen 
 
 .as to the facts? 
 
 Mr. Shaw — Mr. Trull and the other gentlemen are thoroughly 
 informed about it. 
 
 Mr. Wickes — I never heard there was any opinion written by 
 the General Term. 
 
 The Chairman — We have no right to consider that in any 
 way ; I want to know if there is any question of fact between 
 you gentlemen. , 
 
 Mr Wickes — The Second Avenue Railroad Company, in 
 spite of the injunction, are running their cars to-day over that 
 route. 
 
 Mr. Shaw — Over the districts and the routes allowed them ; if 
 they have gone one foot beyond what I allowed them I will bring 
 them up for contempt of court. 
 
 Mr. Trull — That includes the whole route. 
 
 Mr. Shaw — No ; it does not. 
 
 Mr. Trull— Mr. Shaw has got his stipulation ; but Mr. 
 Hutchins does not make so favorable a statement as Mr. Shaw 
 does for himself. 
 
 Mr. Shaw — Mr Hutchins withdrew his appeal, and he paid 
 me thousands of dollars to modify Judge Donohue's injunction, 
 so that the work he had done might be saved ; for he suggested 
 to me, " after all, you may not get it, and we want to save," said 
 he, " what we have done ; we want it if you can't have it." Mr. 
 Sharp and others were asking for the same route at that time. 
 
69 
 
 Mr. Wickes — 1 should like to see very much the modifica- 
 tion of the injunction to which Mr. Shaw consented. 
 
 The Chairman — It is safe to assume that he did not consent 
 to very much. 
 
 Mr. Shaw — Now, I am going, in order to give complete 
 illustration of this whole business, to read the complaint in that 
 case. The complaint is as follows : 
 
 (Here Mr. Shaw read the complaint.) 
 
 I want to show that, in our complaint, we brought home all 
 these questions, all these acts and doings that have been introduced 
 to confuse counsel here ; and the Court was asked to make a full 
 disposition of the matters stated in our complaint. 
 
 Now, after we had gotten all those rights which were consum- 
 mated by our Articles of Association, on the 22d day of April, 
 1884, the the Act of 1884 was passed ; as of the date — and no 
 other date — of May 6, 1884. We claim, that having paid for this 
 exclusive right to our location, it was not competent for the local 
 authorities, or anybody, to allow somebody to slip in and compete 
 with us for any of those routes, and get consents from local authori- 
 ties or property-owners to take them. We had the first right to 
 ask for consents, and until that right was exhausted, and until we 
 were refused them, that right must be held in abeyance ; and the 
 result of that was that we had our injunction. It is subsisting 
 now in a modified form by stipulations between us which are 
 perfectly satisfactory to me, as spokesman for our corporation. 
 The case I made was sustained by Judge Donohue ; it was 
 argued elaborately, and then appealed to the General Term of the 
 Supreme Court, and after it was submitted the counsel for the 
 Second Avenue Railroad Company came to me and asked to 
 withdraw his appeal, and I permitted him to do so on payment 
 of money, and on stipulations which allowed him to save the 
 work he had done, and a little more. I got that money and 
 turned it over to our corporation. Our corporation knew where 
 it came from, and, by my advice, took it and has used it for cor- 
 porate purposes. 
 
 Mr. V. Maksh — The General Term since then has decided 
 the Boulevard case. 
 
70 
 
 Mr. Shaw — I am glad you called my attention to that. Under 
 the rules of this Commission, we were to close our proofs within 
 a limited time. We appeared before the General Term and 
 made no objection to Mr. Deering's motion as to the Boulevard- 
 Let the Boulevardists go on, but I must say this : Mr. Sewell made 
 the intimation before the General Term on that motion, that it 
 would be proper to suspend argument and decision in this matter 
 until after the report of your Commission. Mr. Sewell under- 
 stood the Court to assent to that proposition. There was no 
 brief, nothing, and I was much surprised at the decision con- 
 fronting us from that Court. Mr. Deering pursued the matter 
 while Mr. Sewell was resting in confidence upon the disposition 
 of the case in the way that he had suggested. We did not pay 
 any more attention to it. While we are seeking to have the 
 Boulevard route, we do not care much about it. 
 
 The Chairman — Who gave the prevailing opinion in the 
 Boulevard case ? 
 
 Mr. Shaw — Mr. Justice Daniels wrote the opinion and he put 
 it upon two grounds : One ground was that our plans were in- 
 definite. On this ground the other justices did not concur. So 
 you see that the Court was not against us on the matter of plans. 
 
 Respecting plans, I have exhibited the Cable Railways of 
 San Francisco and Chicago as a practical model. The Court did 
 not have this fact before it. The Court had no fact before it. 
 Mr. Sewell must have been tremendously deceived about the 
 intimations of the Court. Had he not been so deceived, do you 
 suppose we would not have had a brief there — a brief that would 
 have met all this question ? Why, let me give you the brief we 
 made when subsequently the matter was brought before the Gen- 
 eral Term. I give it to you from the brief made to correct this 
 thing. I have the brief in my hand. From it I read as follows : 
 
 " Additional Point by Messrs. Sewell & Shaw. 
 
 ' ' The decision in the Boulevard motion in this matter is no precedent. 
 That motion was not contested. It was simply submitted with an affidavit 
 showing that the Court's Commissioners were about closing the hearing before 
 them, and the suggestion was made by petitioners' counsel that it lay over and 
 be considered when the Commissioners' report should be presented to the Court. 
 
71 
 
 There was no argument, no brief, no opposition, no submission of any question 
 on the part of the petitioner, except the suggestion and application supported by 
 an affidavit drawn pointedly for the purpose, that the motion lay over to be 
 considered later on when the Commissioners' report should be laid before the 
 Court. The proofs that would accompany that report were relied upon to meet 
 the questions raised on that motion. If the petitioners' counsel (the undersigned) 
 erred in supposing that this was the natural and proper disposition of the 
 motion, the motion must be considered as taken by default and the opinions 
 handed down, as given in the absence of a contention, although petitioner 
 intended and expected to make a contention at a time that its counsel supposed 
 was especially suitable and agreeable to the Court. It can hardly be questioned 
 that the motion might, at the time and under the circumstances shown by affi- 
 davit, be fairly regarded as premature, and that was all petitioners' counsel 
 sought to submit for the consideration of the Court. It is respectfully submitted 
 that the present motions are in the same category. It is further submitted that 
 the argument on these motions should be regarded as a rehearing, if not the 
 original and only hearing of the Boulevard motion. 
 
 "The opinions of the Court on that motion should, under the circum- 
 stances, be tabula rasa. Until the present term of the Court expires, the Boule- 
 vard motion may be reheard on a proper application. Such application will be 
 made and a resettlement of the order entered will be prayed. 
 
 ' ' Robert Sewell, 
 " Ch. P. Shaw. " 
 
 Other questions are considered in our brief we made, respon- 
 sive to this recent application of our opponents to the Court. 
 Among those questions are questions concerning our plans. This 
 is what we replied : 
 
 "So far as the alleged indefiniteness of the specification is concerned, the 
 plans are quite as specific as those of the New York Elevated Railroad, which 
 were approved by the Court. There must, as the General Term said in that 
 case, be ' some flexibility ' in these respects. It is not to be expected that work- 
 ing drawings should be made by the Commissioners. 
 
 "There can be no more definite description of a surface cable road than that 
 given in our Articles of Association, namely, according to the most approved 
 plan of cable traction as operated in San Francisco and Chicago. The cable 
 roads of those cities are of world-wide reputation and may be considered as a 
 conspicuous working model for this company. This method of description 
 has been sanctioned by the Legislature in the charters of nearly all our Horse 
 railroads, which are required to be built ' according to the most approved plan 
 * of Horse street railroads.' " 
 
 Ex pede Herculem. If such a question as this was discussed 
 before the General Term, from whom you derive your authority, 
 have you any suspicion that all the other questions that are 
 
brought here were not discussed ? I challenge this whole array of 
 opposition to say if they have any new question — any question 
 that they have not already carried to the Court. I know they 
 have no question, and they know they have no question that has 
 not already been considered. 
 
 The Chairman — You just now stated that Mr. Justice Daniels 
 based his opinion in the Boulevard case on two grounds, one of 
 which related to plans. What was the other ground ? 
 
 Mr. Shaw — That we had not given sufficient evidence that 
 we had statutory refusals of the property-owners, so that it was 
 not competent for the Court to grant the appointment of com- 
 missioners. 
 
 On this ground we were not heard. If a great Court like the 
 General Term of the Supreme Court can lay us by the heels 
 without hearing us, why, what can we say ? We can only say 
 that if we misunderstood the Court about a hearing, which we 
 supposed was to be postponed, we ought not to be pierced to 
 destruction and death in an interlocutory way. That Court, or 
 any other Court, ought not to call stare decisis on us, so long as 
 the questions before it may be ultimately reviewed by it. The 
 Court is too great a one to say that it will rush to decision with- 
 out a hearing. ~No hearing was had. The Court knows now that 
 we expected that all questions would be deferred until the report 
 of your Commission came in. We did not expect snap judgment 
 without debate on what we regarded as a frivolous, interlocutory 
 motion should be had. It is idle to suppose that we, Mr. Sewell 
 representing us, would allow decision on all our questions without 
 discussion. Who can say — who ought to say — that such a little 
 motion as Mr. Deering made about the Boulevard, decided with- 
 out debate, when we all supposed that it would be deferred for 
 argument until your report should be presented, should work the 
 destruction of our whole system. The moment we heard of it, the 
 thoughts of our counsel were turned to the great question, Is it 
 possible that this beneficent scheme of intramural transit is to be 
 ruined by a bit of practice ? Is it to be taken by default ? Is it 
 to be lost because our counselor misunderstood the Court on a 
 trivial matter ? It seems to me improbable. Mr. Sewell under- 
 
73 
 
 stood the Court to say, on an affidavit presented by him, that the 
 Court would suspend judgment until your report came in. But 
 judgment distanced his expectations while we were in the midst 
 of our labors with you. Is such a pitfall to attend every public 
 enterprise? If this be law, and I suppose it may be, think of it 
 and mourn over it. I can afford to go down. Can the public's 
 downfall be so easily atoned ( It's a horrible thought. 
 
 Well, let us fall. If the judiciary want to destroy us, we must 
 accept the situation. ~No thought must be entertained as to the 
 purity of the motive. I think I see all the motives that made 
 our Code of Procedure in the light it was made. If ancient nuis- 
 ances which codifiers have tried to destrov still exist, and such 
 public services as we propose must be destroyed by them, I must 
 accept the situation, though I know, as absolutely as human per- 
 ception can know, that the Code was not intended to permit it, 
 and the law never contemplated it. My span of life is brief, but 
 any attempt to reintroduce into our jurisprudence effete things 
 that we had fondly hoped had gone and gone forever, amazes me. 
 How grand was Mansfield, by whom slavery was abolished in 
 England forever ! He had no Code of Practice to restrain him 
 from making that great judgment. He did it on law — pure law- 
 Are there not a thousand precedents in our own great Supreme 
 Court that tread upon feeble technicalities ? What Judge has 
 done more in this very matter of our city transit to stamp upon 
 and disregard irregularities in proceedings relating to such public 
 services as we propose than our most approved and judicious 
 Judge Daniels. The precedents of his making are numerous and 
 too conspicuous to invite question. 
 
 So, therefore, when Mr. Coudert, leading the array of opposi- 
 tion, tells you that the opinion of Judge Daniels on this Boule- 
 vard notion is a plain, clear, irreversible declaration of the Gen- 
 eral Term that the Court intends to destroy us on technicalities, 
 omissions and irregularities, that this plain purpose appears in 
 Judge Daniels' opinion on a motion we never argued, which we 
 understood never was to be argued until your final report came 
 in, and which was taken by default, I say, Mr. Coudert says a 
 preposterous thing and casts a stigma upon the consistency and 
 learning of the great Judge that he has harnessed like a donkey 
 to the jaunting-car of his argument. Absurd ! 
 
74 
 
 Now, Mr. Conover, represented by my friend Mr. Trull, was 
 in the same category as the Second Avenue Company ; he had 
 slipped in where we had a statutory right to be. He slipped in 
 and got consents from the local authorities and commenced, to 
 build his road, and we stopped him by injunction. The result of 
 that application was, that Mr. Justice Daly delivered that opinion 
 in which he substantially declared our charter invalid for the 
 reason that a definite time had not been specified, as he stated. It 
 was too fluctuating for the building of our road. But you see 
 how much attention the General Term of the Supreme Court 
 has paid to that. And how, under the general authorities, how 
 foolish and childish that objection was. But we came to some 
 agreement before getting this opinion, and Conover's corporation 
 gave us bonds for twenty -five thousand dollars that it would pay 
 ns any damage we might suffer, provided the Court should ulti- 
 mately give us the right to it. Of course we shall tear up their 
 tracks and put them into bankruptcy. 
 
 I have here my argument in print on that discussion before 
 the Common Pleas. I was under the impression that I ought to 
 read it, but I wont ; I will submit it. 
 
 The Chairman — I suppose you ought not to submit it to us 
 unless you do read it. 
 
 Mr. Shaw — I suppose the Commission won't care to have the 
 whole argument read. Why, it took me a whole day to make it. 
 But there are some pertinent parts of it which I should like to 
 have read — the parts that show that all these more pronounced 
 questions we have been discussing here were discussed before the 
 Court. That will assist the movement of the argument I am now 
 making, as well as supply evidence. 
 
 Chairman Pelton — We do not intend to compel you to read 
 that whole argument. But, of course, we want to know the per- 
 tinent parts of it. 
 
 Mr. Shaw — Grant me a moment to mark such portions as 1 
 propose to have read. 
 
 (Here portions of the argument were read, as follows, by Mr. 
 Shaw's associate). 
 
75 
 
 "Now our case is this : Prior to 1875 the people of the State of 
 New York claimed, held and reserved in full proprietorship, .a 
 title to all the streets of this city. They could dispose of such 
 streets for purposes of public transit, absolutely and unqualifiedly 
 to any party whether person or corporation, they might 
 choose by act of the Legislature. I will not elaborate this 
 proposition. I only wish to notify the respondents' counsel that 
 we rely upon this proposition as settled law, so that he may 
 not be unadvised as to one of the main grounds of our conten- 
 tion, and answer it as best he may. I therefore say to him, prior 
 to 1875, there existed in the Legislature an unqualified, exclusive 
 and absolute power, without let or hindrance from the local 
 authorities or abutting owners, to authorize railroads to be built 
 in any street of this city. This is the doctrine of the case of The 
 People vs. Kerr, 27 IS". Y. P., 188. That doctrine stood unques- 
 tioned, clear and plain, within the knowledge of everybody who 
 had or has any interest in the horse railroad corporations in 
 this city until January 1, 1875, when the Constitutional Amend- 
 ment relating to the subject went into effect. Without throwing 
 any particular reflections upon anybody, it is proper to say, that a 
 condition of things arose by which the people of the State 
 thought that their Legislature was endowed with too wide a 
 power over the subject of city transit. In fact, some scandal arose 
 about the Legislature at Albany granting railroad franchises to 
 individuals and corporations in the City of New York ; and hence, 
 as we all know, the Constitutional Amendment of 1875 was passed. 
 Bv that Amendment it was provided that if anv further transit 
 franchises should be granted by the Legislature for the City of 
 New York, or any other city or village of the State, such grants 
 should be made under general laws, with the approval of the local 
 authorities and of the abutting owners ; but in case the abutting 
 owners should not approve, the General Term of the Supreme 
 Court might deal with and dispose of the question in its absolute 
 discretion, after proper inquiry, so far as the abutting owners 
 might be concerned. Your Honors will observe that there was 
 no proprietary right of the people remitted or released by this 
 Constitutional Amendment. Nothing was. granted, given up, or 
 in any way waived in the nature of a proprietary right, to the 
 
76 
 
 abutting owners or to the local authorities. The whole motive 
 o£ the amendment was, as we all know, to deprive the Legislature 
 of the unqualified power of making grants of these franchises, 
 except by requiring some condition of assent on the part of the 
 abutting owners, or in lieu thereof the determination of the Gen- 
 eral Term of the Supreme Court, and also of the local authorities. 
 These assents were required only to prevent improvident grants 
 by the Legislature. They were not required, because it was 
 thought that the abutting oivners or the local authorities had 
 any proprietary right in the premises. The Constitutional 
 Amendment never disturbed, and never was intended to disturb, 
 the proprietary right of the people of the State. The consent of 
 the abutting owners, or in lieu thereof the determination of the 
 Supreme Court and the consent of the local authorities were 
 merely consents required in the course of administration, and 
 may be called merely administrative consents — that is to say, it 
 was thought that such parties might be a safe resort through 
 which to ascertain, as the Legislature could not well do, whether 
 or not a particular railroad should be built. But, as I have said 
 before, no proprietary right was granted or intended to be 
 granted to the abutting owners or to the Supreme Court, or to 
 the local authorities ; that right belonged, as it did before the 
 Constitutional Amendment, in the people of the State of New 
 York. It was a right which the people reserved, and which the 
 Legislature could grant away, subject to the consent of the local 
 authorities and abutting owners, just as unqualifiedly subject to 
 such consents, as it could do before the Constitutional Amend- 
 ment was adopted. But it rested with the Legislature to say 
 in what manner, and on what considerations, terms and conditions, 
 and by what processes such consents might be asked for, and 
 who might ask for them. The power was left with the Legisla- 
 ture to say that nobody should ask for them except, in a certain 
 way, and by doing certain things, and after certain steps had 
 been taken ; and it had a right to say that after certain proceed- 
 ings had been taken that a c'ertain party should have the exclu- 
 sive right to ask for, and obtain the consents of the local authori- 
 ties and the abutting oivners, or the determination of the General 
 Term of the Supreme Court ; and it had a bight to say that 
 
77 
 
 NO OTHER PARTIES SHOULD HAVE ANY RIGHT TO ASK FOR SUCH 
 
 consents. It also had a right to say that inducements might be 
 offered to parties on expedient terms and conditions, whereby 
 such parties might alone be clothed with the right to ask for and 
 obtain such consents, and "thus complete a right to transit fran- 
 chises in this or any other city of the State. All this power the 
 Legislature exercised in the Rapid Transit Act (chap. 606, Laws 
 1875). Mr. Tilden was then Governor of this State. The Con- 
 stitutional Amendment, and all the motives to be worked out by 
 it, were then fresh and familiar. 
 
 " Under this act the New York Cable Railway Company de- 
 rives its right — its sole and exclusive right — to ask for and obtain 
 the consent of the local authorities and the abutting owners, or 
 in lieu of such owners' consent, the determination of the General 
 Term of the Supreme Court. 
 
 " Now, on the threshhold of this contention, I notify my friend 
 — the enemy — that he never had the right to ask for or obtain 
 the consent of the local authorities or abutting owners to the 
 locus in quo for a railroad as against our corporation, for the 
 reason that we took the offer of the State to give us, on terms 
 and conditions for which we paid, the sole and exclusive right to 
 apply for and obtain such consents. And that whatever he may 
 claim or has acquired in that direction is as though he had bar- 
 gained with the idle wind. 
 
 " Before proceeding further with this branch of my opening, 
 I wish to throw out another suggestion for my friend to meet ; it 
 is this : we have the PROPRIETARY right of the people of the 
 State in reversion and remainder, if we choose to accept it, after 
 having obtained the consents of the abutting owners and local 
 authorities. And it so happens that there is another party inter- 
 ested in our endeavors and concerned very materially in our suc- 
 cess ; that party is the City and County of New York. That 
 interest arises under § 7 of this Eapid Transit Act of 1875. By 
 that section it will be perceived if we do get the consents of the 
 local authorities and property owners and fail to build all the 
 roads our system calls for, the city may own the franchise for 
 any unbuilt portion assigned to us as property in perpetuity — 
 that is, the proprietary right of the State and all other rights 
 
78 
 
 gained by these administrative consents, if not availed of, revert 
 to the Supervisors of the County of New York. The Supervisors 
 of the County of New York being the Board of Aldermen of the 
 city. (Counsel here quoted in full § 7 of the Rapid Transit Act.) 
 In this view of the case there might well be another party at my 
 side here to-day — the Counsel to the Corporation of the City of 
 New York might well be here. We have not invited him. He 
 has no notice of the broad question so deeply concerning the city's 
 rights. But, he might well be here, because the rights we own,, 
 if w r e do not fulfill under them, and perform every condition, as 
 our charter requires, revert to the city as remainderman as to the 
 unfilled part ; in that relation the authorities are not few nor 
 conflicting. If it be as we claim, that we alone or rather we first, 
 have a right to seek and obtain consents to build a road, the City 
 and County of New York as remainderman may well watch with 
 deep interest our proceedings. The great equity rule that protects 
 prospective or remotely contingent rights of a child in the womb, 
 or any conditional interest of the remainderman to an estate, is a 
 very important matter to the City of New York ; for it involves 
 an absolute proprietary right to our rights in case we fail to avail 
 ourselves of them or any portion of them. In short, we have the 
 State's proprietary right now, the Mayor's Commissioners gave 
 us that, and when we get the consents of the local authorities 
 and property-owners, we have every right, and if we do not avail 
 ourselves of such right, the city owns as remainderman. 
 
 " This condition of things was thoroughly apprehended by the 
 Rapid Transit Commissioners appointed by Mayor Edson last 
 November, and in granting to the plaintiff corporation the rights 
 now claimed by them, they well understood the nature of the 
 powers they were exercising ; they knew that they had a right to 
 grant the proprietary right of the State, subject to the consent of the 
 local authorities and abutting property-owners, to the routes fixed 
 and determined by them. They knew, that subject to such con- 
 sents, their power gave them authority to authorize a railway or 
 railways, or a system of railways, to be operated by steam power 
 or any other power, except animal (§ 26, sub. 4, chap. 606 Laws 
 1875), " over, under, through, or across " any street or avenue of 
 the city except such as were prohibited by the Rapid Transit 
 
79 
 
 Act. Their attention bad been called to tbe great modern im- 
 provement in city transit known as tbe cable railway — its suc- 
 cess in San Francisco and Chicago had demonstrated that animal 
 power must go ; that all convenient routes adapted to the cable 
 plan ought to be availed of immediately. They entered upon 
 their duties impressed with the fact that there was then no law on 
 the statute book which would authorize a street railroad of any 
 description in this city or any city or village of this State except 
 under the Rapid Transit Act ; that act was passed June 18, 1875, 
 and it was the only act on the statute book whereby any street 
 railroad could be authorized for any city or village of this State. 
 Eight years had elapsed from the Constitutional Amendment 
 of 1875, and from the passage of that act, and though the Legis- 
 lature had been importuned, as we all know, at each annual ses- 
 sion, for some act that would grant away by some other than 
 the Rapid Transit Act, the proprietary right of the State, subject 
 to the consents of the local authorities and abutting owners, 
 still the Legislature refused such an act. All this matter 
 of intramural transit, except under the Rapid Transit Act, 
 was at a standstill. Our city was growing — our neighboring 
 cities were growing. No man could say when the Legislature, so 
 persistently importuned and so persistently refusing, would grant 
 an act to give any authority for street railroad transit except by 
 the Rapid Transit Act. In this condition of things it was found 
 that that act, already upon the statute book, was adequate to all 
 the needs of intramural transit in this city. Invention, since 
 that act was passed, fulfilling its great office as the tenth muse 
 —had demonstrated that cable roads could best afford intramural 
 transit in this city. This act was therefore invoked to do the 
 duty and meet the requirements of the public service in this 
 matter of transit for this city. The man who knows anything 
 valuable to know of the matter does not exist, who is bold enough 
 to say that the cable system is not in every respect superior to 
 the animal power system. It gives speed without danger. It 
 gives a constant service irrespective of snow and ice. It gives 
 unlimited supply of transit facilities on any given route. It fails 
 neither in summer heat nor winter frost. Storms of snow, wind, 
 or rain cannot retard or prevail against its uniform and steady 
 
80 
 
 service. The sanitary considerations involved in its substitution 
 for animal power, distinguish health from pestilence. These are 
 but few of its immense advantages. To be brief, I am justified 
 in saying that the invention of cable roads is an invention of 
 enormous public beneficence. This is enough to say here and 
 now of the merits of that system of city transit. Of course, it 
 commended itself to those of our citizens who were interested in 
 the subject. Meetings of property-owners were held. Lawyers 
 were consulted. The subject was examined and it was found 
 that the Rapid Transit Act of 1875 was adequate to give full 
 authority to build cable roads, whether elevated, surface or under- 
 ground, or partly of each of these kinds of roads in combination, 
 on many convenient streets and avenues of the city, and to provide 
 sl comprehensive system of such roads in this city. Property- 
 owners and capitalists were quick to take advantage of the cable 
 invention, and of the statute which could provide franchises for 
 its introduction. Out of their appreciation of the subject has 
 grown The New York Cable Railway Company. As a result of 
 this appreciation, city taxpayers presented a petition, duly sworn 
 before a Justice of the Supreme Court of this judicial district, 
 to Mayor Edson in November, 1883, asking for the appointment 
 of Commissioners to do and perform the services required under 
 the Rapid Transit Act. The petition was signed by 116 property- 
 owners, representing as is said upwards of 300 millions of taxable 
 property in the city. It was a strong appeal — an appeal by our 
 most prominent and wealthy citizens, for a system of surface 
 cable roads under the Rapid Transit Act. In that petition was 
 set forth the merits of the cable railroad. The petitioners indi- 
 cated in their petition that a system of cable roads was requisite 
 — a system that involved transfer tickets, so that for a five-cent 
 fare a passenger could ride all over it, whatever might be its 
 extent, and wherever it might go, up-town, down-town, or across 
 town. This was the controling thought of the petition. Of 
 course, if the fare was limited to five cents, the extension of the 
 system to thirty, forty, fifty, sixty or eighty miles means a 
 dilution of the monopoly in the ratio of its extension. That 
 was the theory of the Commissioners, and this is the nature 
 of the beneficent monopoly we are contending for. But whether 
 
81 
 
 our mileage be great or little cuts no figure here, as a matter of 
 law. Yet, when presented, as it has been presented, in the news- 
 papers and elsewhere, and may be flourished by counsel before 
 your Honors, I wish to submit against all that ad captandum 
 this one suggestion : Should the extent of our mileage unfriendly 
 govern the notion to be entertained of our monopoly, provided 
 we are compelled to carry passengers over all our system for a- 
 five-cent fare ? Would not our monopoly be really larger and 
 more burdensome to the public, if for that fare we had only one 
 mile, or five miles of road ? Manifestly, extension is synonymous 
 with dilution, as long as our fare is fixed at five cents. In other 
 words, the larger our mileage the less is our monopoly. This 
 must answer all that is flourished and flouted in our faces by 
 zealous advocates as to our overshadowing monopoly of routes. 
 
 ■ ' But this matter of the extent and number of our routes is a 
 matter with which the Court is not called upon to deal. I speak 
 of it because so much has been said and printed about it to our 
 disparagement. It is said we have twenty-nine routes ; that the 
 mileage of these routes covers anywhere from seventy to one 
 hundred miles of street. If that be so it must not be forgotten 
 that a five-cent fare can command a ride over all of it. Our 
 critics are horse railroad people who do not give, and never have 
 proposed to give, and will never give, any approach to such a 
 mileage for such a fare. The system of transfer tickets, so that 
 at convenient points passengers without additional fare may go 
 up, down, and across the city, never can be a feature of the present 
 horse railroad system of the city. Our system is set forth in this 
 map I hold in my hand. It is drawn on a large scale ; I will hand 
 it up for the inspection of the court. (Mr. Shaw handed up the 
 map.) On this map your Honors will find what our system em- 
 braces ; you will from it see the grasp taken of the subject by 
 the Rapid Transit Commissioners; you will see the mileage 
 they give for a five-cent fare. The conception of the commis- 
 sioners as shown by this map is a grand one — I will say a bene- 
 ficent one. Now this is the system we are contending for. 
 This appeal has been taken because it had to be taken, nolens 
 volens, to save that system. This contention is solely to save 
 that system. Our client is but a corporation. It is not supposed 
 6 
 
82 
 
 to have reasoning capacity, conscience or soul. The good and 
 honest people who embarked in it found its corporate powers 
 launched. They are not responsible for the magnitude of the 
 system. Its magnitude is a burden upon the franchise. Less 
 ♦extent of road for the same fare would have been a more profitable 
 franchise. The Rapid Transit Commissioners created it, and 
 launched the corporation to bring it into operation. They created 
 that corporation in the exercise of lawful powers and invited the 
 public to take stock in it, to take 'advantage of its franchises, 
 to assume its burdens, and to realize from it all the legitimate 
 profits it could afford. We think, and I trust the court may be 
 convinced, that the commissioners build ed wisely, grandly, and 
 beneficently in the interest of a public use, but whatever may be 
 the view of the court as to the merits of the scheme of the 
 commissioners no man or set of men, no corporation or combin- 
 ation of corporate interests, can be allowed to infringe with 
 impunity upon the franchises bought and paid for by our cor- 
 porators. Yes, the solid cash was paid. 
 
 " 1 now come to another proposition which I wish my learned 
 adversary to note, for on it rests the superstructure of our right. 
 If this proposition fails, all we contend for falls ; but if it be 
 sound, then nothing can prevail against us. That proposition is 
 this : The corporation the Mayor's Commissioners gave us was 
 a franchise, granted as by an immediate and direct act of the 
 Legislature itself. It was a franchise as direct from the Legis- 
 lature as though in the exercise of all the sovereign power of 
 the people of this State, the Legislature had competently and 
 within strict constitutional limits presently and perfectly conferred 
 it and it had been enrolled as statute law in the statute book, 
 passed as of the day when the Commissioners took our money and 
 pledged to us without reservation, qualification or quibble, all we 
 bought and paid for. We stand on that proposition. It is not 
 original ; nor is it new. The Court of Appeals propounded and 
 declared it several years ago. The Commissioners comprehended 
 this situation. The subscriptions to the capital stock of the 
 corporation they created were based upon it. The occasion for 
 the determination of the Court of Appeals arose on the construc- 
 tion of the powers of Rapid Transit Commissioners when the 
 
83 
 
 validity of the charter similar Commissioners gave our elevated 
 railroads, was questioned, as they are being questioned here : 
 The Court said : " Corporations organized under the act derive 
 " their franchise from the Legislature, and in no proper sense 
 " from the Commissioners. The Commissioners perform no 
 "legislative acts; they enact no laws; they simply perform 
 " administrative acts in carrying the law into effect and apply- 
 " ing it." (3 Abb. new cases, page 414.) This settles the nature 
 of our charter. Whoever attacks it must attack the sovereign 
 power of the State of New York. They must attack more. 
 They must attack the sovereign power of the whole people of 
 the United States — for it is of the nature of our constitution of 
 government that National authority shall hold every State Gov- 
 ernment to such an observance of its contracts that they cannot 
 be impaired. 
 
 "Now let us see what was this power of these Commissioners. 
 Here is the Rapid Transit Act and all amendments (counsel 
 handed to the Court copies of the document). This is how the 
 original act opens as to the powers of the Commissioners. You 
 will find it in the first section (Chapter 606, Laws 1875) : "Five 
 Commissioners who shall have full power and authority to 
 do and provide all that they are hereinafter directed to 
 do and provide.'' This is the exordium of the act. It is the 
 swelling prologue to the imperial theme. What immediately 
 follows in the act I pass by, to call attention to section five. 
 Your Honors will there fine! a direct bid, placed by the people of 
 the State in the hands of the Commissioners, to give inducements 
 for investors to come into our scheme of transit (counsel read 
 the section). What can such a statute be called but a statute of 
 powers and duties on the part of the Commissioners and a statute 
 of inducements to those who might rely on what the Commis- 
 sioners, in the name of, and as the sovereign power of the people 
 of the State, might offer? The Commissioners made an offer. 
 It is formulated in our articles of association, which are the 
 charter of the plaintiff corporation. Now let us stop here. Above 
 and beyond all debate we accepted the inducements and paid 
 for and took the charter tendered us by the Commissioners. 
 That is clear. This appeal is brought to decide what we got by 
 
84 
 
 that charter. It is brought to decide the principle of the thing. 
 In this light I am offering all I have said and all I shall have 
 to say. It seems by the opinion of the Hon. Judge in the Court 
 below, who dissolved the injunction order from which this appeal 
 is taken, that we have not a right to our injunction, because, 
 among other things, the Commissioners failed to give us a valid 
 charter. This appeal would probably never have been taken 
 but for that judicial expression. It is taken chiefly to correct 
 such a view. I must deal with it. Here is, as against the 
 respondent, our chief contention ; but being brought into it, we 
 must and do claim an exclusive right to the Locus in quo, as our 
 sole and exclusive right for street surface transit. Our stipu- 
 lations in the papers waive nothing as to ultimate right on the 
 route in question. We took Mr. Trull's client's bond and let it 
 go on ; but we intend to enforce its exclusion from the route in 
 question unless convenient arrangements for common use of the 
 street can be made with it for the accommodation of our system 
 of intramural transit. This is notice enough on that subject to 
 my learned friend. 
 
 " What I have said, I think, fairly generalizes for the purposes 
 of an opening our main propositions, so that our adversary in 
 his reply may not claim that he was unadvised of the scope of our 
 views. 
 
 " I wish now to be more particular : 
 
 " First — I again call the Court's attention to the controling fact 
 that at the time the New York Cable Railway Company obtained 
 its charter there was no other law on the statute book by which 
 street surface transit conld be acquired. The Commissioners 
 entered upon their duties November 30, 1883. They steadily 
 pursued their work and completed their labors, and completed 
 our charter April 22, 1884. This was not a day sooner nor a 
 day later than they were called upon to perform their duties by 
 the act Within ten days after their appointment, the Com- 
 missioners were to take oath of office, and give bonds to the 
 people of the State for faithful performance of duties ; within 
 fifteeii days after appointment, they were to organize as a Board, 
 with appropriate officers ; within tliirty days after organization 
 
85 
 
 they were to determine if there was necessity for further 
 railways ; within sixty days thereafter they were to fix and 
 determine the route or routes of such railways as should be 
 built ; within ninety days after organization they were to propose 
 " inducements " such as to them might " seem most expedient " 
 by such public notices as they might " deem most proper and 
 effective " to induce the public to come into an adventure to buy 
 a charter for the construction of cable railways on the routes 
 " located, fixed, and determined " by them, which adventure 
 was to be formulated into a scheme involving the incorporation 
 of a company with a definite capital stock based upon the right 
 to construct cable roads on certain terms and conditions on these 
 located, fixed, and determined routes, as and for franchises. 
 
 " Within one hundred and twenty days after organization the 
 Commissioners were to open books of subscription to the capital 
 stock pursuant to due public notice, and within ten days there- 
 after they were to call the subscribers together for organization 
 as corporators to choose directors and officers ; within ten days 
 after election of directors and officers they were to grant such 
 a certificate to the directors and officers as would enable them to 
 assert corporate powers and rights, and thus command a right to 
 the franchises intended to be conferred by the Commissioners, 
 provided the directors should file such certificate, with an 
 affidavit prescribed by the statute, in the office of the Secretary 
 of State and the office of the County Clerk of this county. 
 There is no question but that such certificate and affidavit were 
 duly filed. A certified copy of the certificate and affidavit from 
 the Secretary of State must, under section 9 of the act, be held 
 " presumptive evidence of the incorporation of such company 
 and of the facts therein stated*' Such certified copy is in our 
 papers. No one disputes this. Well, then : We are a corporation, 
 and our charter exists in our articles of association, which, as the 
 act provides, the Commissioners were required to hand over to 
 us after paying them the money we have paid them. I think 
 that is enough to say about our being a valid corporation. We 
 present the certified copies from the Secretary of State. There is 
 a case of " presumptive evidence v presented here. What the 
 Court may make out of "presumptive evidence" in such a case 
 
86 
 
 as this, I cannot say ; but it seems to me that, as there is no other 
 evidence in the case we should stop here. If no other witness 
 comes in, " presumptive evidence " must settle our status. There 
 is and can be no other witness on this appeal. But we do not 
 rest our right on this as a mere technical ground. Technical 
 grounds are both grand and mean things. It is the office of a 
 Court possessing both law and equity powers to do the grand 
 thing, and eschew the mean — to always do the just and equitable 
 thing. The broad and liberal equity powers of the Court, 
 reinforced by its common law powers, can fulfill all the wisdom 
 and purpose of a public statute, framed in the general public 
 interest, as the Rapid Transit Act is, for the public service, in 
 spite of technical objections, if any exist. Hence, if it be per- 
 mitted, as the respondent claims, to go behind that certificate and 
 affidavit and look into the articles of association which the Com- 
 missioners gave us as our charter, the Court will say that any 
 defect found therein relating to mere matter of form, and time, 
 if not declared to be of the essence and life of the statute, and 
 which are not essential to the practical realization intended by it, 
 will be disregarded. But I shall speak of this later on. 
 
 " I wish now to call the Court's attention to a certain feature 
 of the Commissioners' proceedings. It will be observed, if the 
 times — days — within which the Commissioners were to perform 
 their work are counted up, that they neither hastened nor neglect- 
 ed their duties, but on the very last day allowed them by the 
 statute, they completed their labors. It cannot, therefore, be said 
 that they ran a race of diligence for an inning on these franchises 
 before they could be arrested by an act of the Legislature. For 
 it is too notorious to be ignored, that when, by the public pro- 
 ceedings of the Commissioners, and the clear power they had 
 over the subject of street surface railroad transit, the horse rail- 
 road companies of the city and every franchise-hunter that 
 hungered for such franchises, saw the cable system in the field 
 and, exclusively commanding it under the Rapid Transit Act they 
 betook themselves to the Albany lobby and besieged the Legis- 
 lature to repeal that act and bring to naught the great work of 
 the Commissioners. What scandals grew out of their frantic 
 attempts in this direction need not be referred to. The guise 
 
87 
 
 under which they pushed their schemes against this cable system 
 resulted in what is known as the General Street Surface Railroad 
 Act, under which respondent claims, which is chapter 252, Laws 
 of 1884. The crowning fact about that act, so far as our case is 
 concerned, is, that it teas not passed until May 6, 1884. 
 
 " Whatever right we had was acquired and paid for on April 22, 
 1884. Now let it stand as a memorial stone in this case that the 
 respon dent here claims one of the routes acquired and paid for by 
 us, April 22, 1884, under this horse railroad lobby act of May 6, 
 1884. There we stand face to face with dates ! It does not lie 
 even within the power of Omnipotence to make April 22d come 
 after May 6th. This fixes our vested rights. Our brief abounds 
 in authorities and gives sufficient details to cover all excuse for 
 not pursuing further argument on this question. But my learned 
 friend will contend that this horse railroad lobby act did not fail of 
 its mark. He will admit that it came a little too late for all uses, 
 but that when it did come, it was strong enough and brought with 
 it an energy that can double discount time and principle. He 
 will speak of section 16, providing that " No street surface railroad 
 " shall be constructed to run in whole or in part upon the surface 
 " of any street or highway, under the authority of any com- 
 " mission appointed under the provisions of chapter 606 of the 
 " Laws of 1875." Of course that provision cannot be held to 
 relate to any commission which had already acted — had done its 
 appointed work and vested rights in pursuance of its authority. 
 This section could not have meant us ; we were clear and out of 
 the way of all its intendments when it passed. But supposing 
 we were meant, ice ivere not hit. I propose to be bold about 
 this matter. I say the Legislature could not strike us down by a 
 retroactive measure. Nothing short of an amendment to the Con- 
 stitution of the State of New York, and the Constitution of the 
 United States could bring us to suffer a pang from this provision, 
 or make it other than a joy to us, for as it must relate to hereafter 
 commissions, it makes a monopoly of whatever the commission 
 that had gone before, has given us. We accept the Bapid 
 Transit Act of 1875, as modified and curtailed bv our friends' 
 horse railroad act of 1884. We rejoice that it has been so modi- 
 fied. We are glad that no more commissions may be created 
 
88 
 
 under it to grant surface roads to compete with ns. Onr brief 
 clears this point so conclusively that we have only gratifica- 
 tion to express for this sixteenth section in the act of 1884. 
 The water that once grinds shall never pass the wheel again, 
 expresses not only the poetry, but the solemn prose of our rela- 
 tion to both the Act of 1875 and 1884. Lock your stables, 
 gentlemen, but I admonish you the horse is gone with his legiti- 
 mate rider — not stolen. So much for the Albany horse railroad 
 lobby. But I cannot part with it yet. I must detain it just a 
 moment longer. There is a section 18, in this great act of 1884, 
 I find in this section this provision : " Nothing in this act shall 
 " * * * interfere with or repeal or invalidate any rights 
 " heretofore acquired under the laws of this State, by any horse 
 " railroad company, or affect or repeal any right of any existing 
 " street surface railroad company to construct, extend, operate or 
 " maintain its road in acccordance with the terms and provisions 
 " of its charter." This provision brings me into a great apprecia- 
 tion of the Legislature. It is a Daniel come to judgment. Here 
 we have it set down as statute law, that there are horse railroad 
 companies for street surface service, and other street surface rail- 
 road companies which are not horse railroad companies. All are 
 to be saved and excepted from the operation of the statute of 1884, 
 just as if it had never passed. Where, then, are we ? Look at 
 us. We are the only thing that is not a street surface horse 
 railroad company, and yet we are a street surface railroad com- 
 pany. Don't we come within this saving clause % Don't it 
 look just as if the Legislature intended that the great rights we 
 are here contending for should be saved ? On the face of the 
 statute, this purpose cannot be doubted. There we must rest 
 our argument. Who or what moved the Legislature to make 
 such a provision, we would not question. All I can say, there 
 it is, and we come within the category of surface railroad com- 
 panies which are not horse railroad companies. Judicial know- 
 ledge may or may not know absolute verity. But I venture 
 the suggestion, from a careful reading of the section, that the 
 provision was intended to save all vested rights, and to save 
 them in such manner and form as would protect the franchises of 
 the New York Cable Railway Company. 
 
V 
 
 89 
 
 "If this rendering be approved, we are not harmed, but pro- 
 tected, by the Act of 1884. Nothing more need be urged on this 
 subject ; but I beg permission to hand up to the Court opinions 
 on the point which have been given my client by those eminent 
 and accomplished lawyers of our bar, Mr. Evarts and Mr. Loomis. 
 (Mr. Shaw handed up the opinions.) On these opinions, and the 
 elucidation of the question presented in our brief, I rely with 
 confidence. 
 
 " How, then, do we stand ? Manifestly, the proprietary right 
 of the State to the routes assigned by the Commissioners to the 
 Cable Company had passed out of the State to that company, or 
 was held in abeyance for it at the time the Act of 1884 was 
 passed. 
 
 " Those routes, therefore, could not have been included in and 
 did not come under the operation of the Act of 1884. Hence, any 
 consents given by the local authorities or property-owners — 
 consents which I have called administrative, as they imply no pro- 
 prietary right — are as null and void as if those routes, like the city 
 parks, had been by express provision excluded from the operation 
 of the act, or as if the act had never passed. If this be so, we have 
 a right to the injunction we ask, because the pretenses of the res- 
 pondent company are a slander of our title, and a pretense of 
 title in itself to the proprietary right of the State as against us. 
 They obstruct us in getting the administrative consents. They 
 are a declaration of a right to build on our routes another railroad, 
 and as abutting owners do not want two railroads in front of their 
 premises, we are hindered and delayed. 
 
 " The hardship of such a situation, which scheming trespassers 
 of the horse railroad variety are inflicting on us, can be readily 
 apprehended by the Court. 
 
 " This matter of our exclusive right, we do not deny, largely 
 depends upon physical and, I may say, social conditions, as well 
 as upon our contract with the State for our routes. We have 
 the first right to ask the administrative consents to build a road 
 of our variety on the street. There must be silence for a space 
 of time until we succeed or fail to get such consents. All 
 other voices or supplications must be hushed until our appeal is 
 answered or denied, if we pray for and pursue with diligence 
 
90 
 
 such consents. If the consents be given us, then it would be 
 fairly open to anybody else to ask for similar consents, subject 
 to our first choice of location, for another road on the same street. 
 For example, if our streets were adequate for several separate lines 
 of road, and the local authorities or abutting owners, whose con- 
 sents we must obtain, entertained no prejudice against a multi- 
 plicity of railroad tracks in the streets, then perhaps we could not 
 under our charter claim an exclusive right. Then, the Court might 
 say, perhaps, that there is room enough for all — room for us under 
 the Act of 1875, and room for the respondent under the Act of 
 1884 — build both roads and run them in generous rivalrv and fair 
 competition. I know well enough that the Court will not exert its 
 power to give us an exclusive right expressly to save us from com- 
 petition. We have not, nor do we make, any such claim under 
 our contract with the State. The State has never yet granted any 
 such right, and if it had, or should, the Courts would laugh it to 
 scorn. Our demand for an injunction is not put on any such 
 ground as that. Our ground is this : The streets upon which our 
 routes are located are manifestly too narrow for more than our 
 tracks — other tracks would encumber the streets and inconveni- 
 ence the use of them. Perhaps our case made here might well 
 have set forth the fact that the local authorities and abutting 
 owners object to more than one railroad on the streets in ques- 
 tion, and that they will not give consents for both our road and 
 respondents'. 
 
 " But this is so obvious that judicial knowledge will readily 
 apprehend it. At all events, we rely on judicial discernment in 
 this aspect of our case. We have averred in our complaint this 
 aspect of the injury to us from the respondent seeking and 
 obtaining these consents when we had the first right to seek and 
 obtain them. We paid for this first right. We bought and paid 
 for the proprietary right of the State, on the condition that we 
 had a clear and exclusive field to seek for and obtain these consents, 
 if we proceeded with diligence. That was our contract. 
 
 " The Act of 1884 was not then passed. Nowit is claimed that 
 the Act of 1884 put the respondent in such a position as to give 
 it a free and absolute donation of the proprietary right of the 
 State, for which we paid large money, and enabled it to slip in 
 
• 
 
 91 
 
 ahead of us and get those consents, and to then turn around and 
 say, " Why, there is room but for one road here," and thus 
 intrigue against us and prevent us from obtaining the necessary 
 consents to complete our franchises. In other words, cut and 
 carve as we will, the respondent gets what we bought and paid 
 for. 
 
 " Xow, against this we take our stand. "We say that the State 
 was in honor bound, after we had paid money for our charter, 
 and acquired by purchase its proprietary right to the routes in 
 question, with a right to build our railway on it, provided we, 
 acting with diligence, should obtain these administrative consents, 
 not to put any other party in a way, by a gift or otherwise, to 
 obstruct us in obtaining such consents, and thus to obtain the 
 same thing. This is what we protest against. The transaction 
 of the corporators of our company in purchasing their charter 
 was a transaction between business men and the State in its sov- 
 ereign capacity. We are here to ask the Court to uphold it* 
 All the circumstances surrounding the transaction should be 
 • regarded. The fact that at the time the State could not have 
 dealt with us or the subject, except under the Rapid Transit 
 Act, is a controlling one. The barrier to any other authority 
 dealing with the matter was a constitutional one. We therefore 
 claim that whatever we took bv our contract we took as though 
 no other statute would be passed to our prejudice, so far as con- 
 cerned getting the administrative consents. There was no under- 
 standing imported into our contract that the Sfcate might by some 
 subsequent legislation give the same right to another which it 
 had given us, or make our enterprise the subject of common spoil 
 to a herd of franchise hunters, or rather franchise jumpers, who 
 might covet what we had acquired. We were not to take 
 chances of that Rob Roy legislation, which allowed us to keep 
 if we had the power, and which suffered anybody to strip us who 
 could. One thing is certain : we were placed fairly in a position 
 to exclusively ask for and obtain the administrative consents. 
 That right was ours as long as, in the judgment of the Courts, we 
 should diligently and wisely pursue it. When we got it our 
 franchise was complete. The State should not, and has not, 
 mocked us by putting anybody else in a position to obstruct our 
 
92 
 
 getting those consents. The facility of procuring those consents 
 is jnst as important as any other of our rights, and hence the 
 unobstructed right to procure them is just as inviolate as any other 
 feature of our charter. The State sold us the proprietary right 
 under a contract expressed in our charter, that if within a reason- 
 able time — " due diligence " is the phrase used — we should secure 
 the administrative consents, our right to build the road would be 
 complete. This facility of obtaining these consents is just as 
 much a part of our franchises as any other. It is just as much of 
 a vested right as any other ; and all we say in our brief on vested 
 rights is applicable to it. This facility is protected under sec- 
 tion 18 of the Act of 1884, fully. Of course if the State, by 
 contract, has given us the right to build our road on Forty- 
 second street it cannot afterwards give the same right to another 
 any more than a man can sell a piece of land to one person, and 
 pending a subsisting executory contract sell it to another. Nor 
 can it, with honor or the approval of the judiciary of the State, 
 contrive ways and obstructions to make the performance of that 
 contract inconvenient to us for the benefit of another. The State, • 
 our sovereign, the fountain of honor and law, acting by its legis- 
 lature, should not be suspected of such a thing, or any unworthy 
 .thing. The Legislature should not be suspected of trifling, or 
 charged with trickeries or juggleries of this sort to defraud 
 citizens, or of doing any act which would disgrace and dishonor 
 an honorable citizen to do (Mr. Shaw here quoted from Potter's 
 Dwarris on Statutes, 61, note 7 ; People v. Draper, 15 N. Y. 
 P., 545.) What sort of a thing is this ? The sovereign puts out 
 a decoy in the form of a right, to bait or entrap a citizen into 
 the payment of money for advancing a public enterprise. It says : 
 "Take all my right, which is the main thing, but you must 
 " also get certain consents which can be had only by you, if you 
 " go about it with diligence, and then you can command the 
 *' enterprise and its profits and emoluments." 
 
 u The citizen seizes upon the offer, puts up his money, but when 
 he reaches out for the consents, he finds his sovereign in front of 
 him, parrying all his efforts and making it impossible for him to 
 get them, by placing the same proprietary right and the same 
 consents within the reach of another. Can I take money from 
 
93 
 
 your Honors on an executory contract lawfully entered into, in 
 which I have made conditions, and then do acts to make the 
 performance of those conditions impossible to you, and then claim 
 a forfeiture against you and keep the money you gave me ? This 
 is not the law. I will not mock justice by gravely contending 
 against such a proposition, even as between citizens. But when 
 such a proposition is stated as between the sovereign and a 
 citizen, it takes on monstrous proportions. The great and funda- 
 mental maxim of the Institutes, " Non potest rex gratiam facere 
 cum injuria et damno aliorum^ thunders against such perfidy — 
 such Punic faith. Broom, commenting on this maxim, puts it in 
 this form : "It is an ancient and common rule of law, that the 
 " King's grants are invalid when they destroy or derogate from 
 " rights, privileges, or immunities previously vested in another 
 " subject." (Broom's Maxims, p. 63, and notes, eighth edition.) 
 This is the law — Roman law — English common law. Equity, 
 honor, sovereign dignity, demand that it should be immutable 
 and catholic law. We place our right to ■ an injunction here. 
 If it cannot be sustained here, we are free to say that it exists 
 nowhere. What are the sovereign people's judges to do with 
 such committals as the sovereign people have made to us ? Are 
 we to appeal to the Federal power of the nation to drive this 
 abjured, juggling, joking, humbugging thing we call the Empire 
 State into a sense of decent respect for its contracts ? We entered 
 into the contract by inducements from this sovereign Empire 
 State. 
 
 " Where is its sovereign honor here ? Its invitation through 
 the Commissioners implied and expressed an obligation to protect 
 our corporators. Our corporators responded. Were they invited 
 to this feast to be betrayed ? Was it a Borgia banquet to which 
 the guests should have brought their coffins ? Is this sovereign 
 authority a joker, a juggler, a three-card monte player, that says, 
 " Now you see it, and now you don't ? " Or are we to take, act 
 upon, and believe in the solemn word of this sovereign's statute 
 and its officers, and rely upon them, as a great verity ? Yea, as 
 the verity of verities, direct from the fountain of honor — the 
 verity of sovereign dignity — the verity that flames before this 
 Court high and bright above all other -legal verities, because the 
 
94 
 
 sovereign's faith illuminates it with the Lamp of Honor ! Civil- 
 ized society could not be kept together in any respectable or 
 stable form without such verity. 
 
 " I remember, when a boy, a question arose similar to this I am 
 arguing, about the Broad Seal of New Jersey. I didn't then 
 know anything about that seal or the question. But there was a 
 great public excitement about the matter, and I got so impressed 
 about that seal that I could not sleep o' nights. In those days I 
 was full of the shield of Achilles, and that sort of thing. The 
 splendor of the shield of that fitful and sulky contingent of 
 Agamemnon was an immense matter with me. I was for 
 Achilles. I believed in his shield and him. I likened it unto 
 the Broad Seal of New Jersey. I cannot exaggerate the appre- 
 ciation I then entertained of that Broad Seal. Forty million 
 electric lights on a surface a thousand times vaster than this 
 court-house could not have illustrated its splendor to my fancy. 
 "Well, I have arrived to manhood's estate. My boyish fancy was 
 ridiculous. Ridiculous only in the form of it. But vaster far 
 as to substance is now my conception from manhood's standpoint 
 of the Broad Seal of New Jersey. • That, as are all other sover- 
 eign seals, is an insignificant physical fact. Such seals are but 
 mere perfunctory official things. They are not as large as the 
 setting sun, and scarcely larger than a twinkling star, but they 
 carry the faith, the honor, the inviolate promise of civilized 
 society with them, which are as wide as the universe. The 
 Broad Seal of New Jersey brought the Federal power of our 
 republic to a realization of this immense fact. This fact was 
 warmly, eagerly, welcomed by the Supreme Court of the United 
 States. That Court ruled for it with decorous ardor in the 
 Dartmouth College case, and it has always upheld it whenever 
 cases have arisen that have given occasion to do so. 
 
 " This is enough on the subject of our exclusive right. I now 
 ask your Honors to consider an aspect of this case with respect 
 to which much I have said is applicable The Judge in the Court 
 below, whose opinion is in the papers — I have alluded to it 
 before — expresses a view that our charter is defective in a single 
 particular. I do not think it lay with him, or lies with you, to call 
 our charter in question tfn this appeal, but I must deal with his 
 
95 
 
 question. I shall have to deal with it as an advocate; and in 
 doing so, I feel that some certain restraint ought to govern me. 
 It is best to begin right. I therefore say I have the most un- 
 doubted confidence that the Judge below expressed his views in 
 this case. From Ms views we are forced to dissent. There is 
 much clamor about these railroad grants. Much or little may 
 be known about them by the Judges of this Court. I assume and 
 believe that no Judge of this Court knows anvthing about them 
 except what is exhibited in proof before him. As to the Judge 
 below, and his decision, from which this appeal is taken, I wish 
 to say I never honor him too little, because I cannot honor him 
 too much as a conscientious magistrate ; but I am forced 
 to speak right out against his conception of the law of this case. 
 His view of our charter does not broadly embrace the conception 
 that it comes from the State, that it is in no sense a private 
 grant, that it involves matters of public service, that State officers 
 gave it to us, that we paid for it on invitation and by induce- 
 ments which those officers put forth by direction and authority. 
 He failed to consider that we stand in a relation close to the 
 sovereign dignity of the State and to all the people of 
 the State. Suppose that an "i" was not dotted or a "t" 
 crossed, as he thinks it might well be. Admit that his view 
 of the precise form of such a charter as we have, is not 
 quite according 'to the form of a charter he would have drawn, 
 had he been a commissioner. Admit these, or all other technical 
 objections the crankiest objector could make. What is the force 
 of them ? They are nothing. It is too late to stand on ceremony 
 or technicalities about the Rapid Transit Act of 1875. It has 
 been declared by the whole judicial authority of this State to be a 
 public act and valid. Now this appeal is taken because the 
 judge below has decided that some matter of time has not been 
 fixed in the charter of our company for the construction of our 
 roads with absolute definiteness — in accordance with his con- 
 ception of the literal directions of the statute — hence it is 
 insinuated that our charter is void, and that we have no rights to 
 enforce under it. This we submit is not the rule of judicial 
 interpretation. Look at 7 Hun, p. 2±1, where the General Term 
 of the Supreme Court declared in the elevated railroad cases 
 
96 
 
 nnder that act where such questions were raised : " In any event 
 the time ivithin which a public act is to be performed is not man- 
 datory but directory, and a literal observance of the direction as 
 to time is not indispensable to the validity of the act." Go 
 further, consult any elementary authority which deals with 
 such a question. The best authority I know of is " Sedgwick 
 on Statutory and Constitutional Law." At page 368, and in the 
 next twenty-five consecutive pages, will be found the law on 
 this subject. I will read but a paragraph from page 368 (Mr. 
 Shaw here read) : u When public statutes direct certain proceed- 
 ings to be done in a certain way, or at a certain time, and a strict 
 compliance ivith these provisions of time and form does not 
 appear essential to the judicial mind, the proceedings are held 
 valid, though the command of the statute is disregarded or 
 disobeyed." This authority from which I read, deals with the 
 question as to how the " judicial mind " should view such a 
 charter as we hold from officers delegated by the State to grant it. 
 
 " Now, the original .Rapid Transit Act contains forty-two sec- 
 tions, and there are many more sections by way of amendment, and 
 prescribes more than 100 provisions as to the certain way and 
 certain time by and within which things should be done. We 
 claim that all these hundred and more things have been literally 
 done and provided for precisely in the certain way and certain 
 time required by the act. But suppose they had not ? Time and 
 method of procedure are not of the essence of a public statute, 
 unless so declared in the statute. On the contrary, the largest 
 indulgence is given to miscarriages as to form and time, which 
 do not affect the main purpose of the statute. The purpose of 
 the statute was to give speedy and needed city transit. That 
 transit could not be had without the administrative consents. Iso 
 man could say when those consents could be obtained. The Com- 
 missioners saw that and were not disposed to guess about it. 
 They said, " We know from engineering experts who have 
 " advised us about how long it will take to build the rail- 
 " way after permission to build it is given, but we don't know 
 " how long the Board of Aldermen, the abutting owners, or the 
 " General Term of the Supreme Court may deliberate about 
 a giving the permission. We, therefore, fix the time for the con- 
 
97 
 
 " struction after permission is given. We also require, so that no 
 " delays may be possible, that the administrative consents shall be 
 " sought for with all dne diligence." That requirement left the 
 question of diligence in pursuing the consents with the courts. 
 Could it be left in a better place ? Does anybody complain that 
 we have not been diligent ? Do we not aver diligence ? Does 
 any one deny it ? Is not our diligence the chief grievance of our 
 adversary ? Would he not rejoice if we had not been so dili- 
 gent ? Is it not his trouble that we are too diligent ? I think 
 the Court understands this. Now, who makes this complaint? 
 It is a horse railroad party who claims under the General Surface 
 Kailroad Act of 1884. Section 10 of that act provides for the 
 completion of roads to be constructed under that act " within three 
 " years after obtaining such consents" and if legal proceedings 
 delay, the time may be further extended for construction. Is not 
 this a fair and full legislative exposition of our Commissioners' 
 views on this matter of time ? What more can be needed ? I would 
 ask your honors to consult Sedgwick on Statutory and Constitu- 
 tional Law, p. 252, under the heading " Legislative Exposition," 
 where all I could or would say on this subject is luminously ex- 
 pressed. I will read but a paragraph from the Yermont case referred 
 to (Mr. Shaw read) : This is the law everywhere. There is no 
 doubt about it. The act of 1875 and the act of 1884 are identical in 
 their aim. They are both public acts. They both mean city 
 transit. They are in pari materia. The latter act refers to the 
 former — see § 16 — and both deal with the public question of 
 intramural transit. Both acts contemplate, as does the constitu- 
 tional amendment of 1875, that no construction of railroads can 
 be undertaken until after the administrative consents are obtained. 
 The time to obtain those consents is recognized in the act of 1884 
 (as it ought to be) as an unknown quantity. Our Commissioners, 
 under the act of 1875, dealt with it in the same way, but they 
 added, to carefully guard against any possibility of abuse of our 
 corporate powers, that we must pursue those consents " with all 
 due diligence," and thus placed us within the reach of the Courts. 
 There we are. Who shall say that the check-rein of judicial 
 power can't or won't control us and end us on the complaint of 
 some competent objector ? Is this Court to say, as the Judge 
 
 7 
 
98 
 
 below says, that this Court of Common Pleas can't trust the Board 
 of Aldermen ? That it can't trust the General Term of the 
 Supreme Court ? I leave the consent of the abutting owners out 
 of the question. They are not factors here. If they were here in 
 a body and assenting to our scheme of transit, and the Aldermen 
 were also here and assenting, the Court below would still say, " It 
 " is all wrong to let this Cable Company live, because its charter 
 " as drawn was 1 too fluctuating ' in the matter of time allowed 
 " for constructing their roads. No matter if the indefinite time 
 " of the charter had been followed by prompt or instantaneous 
 " consents, still that would not cure the defect in the charter.'' 
 If the abutting owners were here to say that they never would 
 consent and the Aldermen were here consenting, then we would 
 i only have the General Term of the Supreme Court to consult, but 
 the Judge below would rule " this is too fluctuating — we can't 
 trust the General Term of the Supreme Court doing business in 
 time." In short the opinion of the Judge below means that this 
 Cable Company shall not survive; because its charter does not 
 conform to the provisions of section 6 of the Act of 1875 as he 
 reads it. He attaches no importance to the requirement of the 
 " due diligence " clause. He expresses no appreciation of the 
 power of any competent objector, or of the Attorney-General, 
 before the courts, to end all " fluctuations " of time in case we 
 fail in diligence. The logic of his position is this : The time 
 was not fixed properly by the Commissioners, consequently the 
 charter they gave our Cable Company is absolutely invalid and 
 void ab initio. It means that, if on the very day our charter was 
 granted, the Aldermen and abutting owners had given us their 
 administrative consents, such consents would have been vain and 
 ineffectual, because the TIME for the construction of the Cable 
 Company's roads was not fixed to run from a date which should 
 include the time of obtaining the administrative consents on the 
 same day. That is what the Judge below meant. Is it a wonder 
 that we are here on appeal ? Would it be a wonder, if we would 
 never rest so long as there is a Court in the land to hear our 
 outcry ? " 
 
 Now, in conclusion of this topic, I seriously ask if it will be 
 contended that any whipster who is sent here by horse railroads to 
 
99 
 
 goad and annoy me can get up gadfly-excitement which shall so 
 result that a grand structure like ours is to be crumbled ; I think 
 not. Gibralter can't be taken by Tom Thumb with a pocket 
 pistol, and our outworks even don't contemplate any greater fire. 
 His catapult is feebler than impotence. I have no name for its 
 infinite weakness. We are not a card-house, to be destroyed by 
 straws or sham spears of any sort." 
 
 Mr. Shaw (speaking to his associate) — This is enough of that 
 argument. Mr. Shaw (addressing the Commissioners) — What 
 has been read conveys all that I wanted to convey to assist the 
 presentation I have in hand. I think the Commissioners under- 
 stand this. 
 
 Chairman Pelton — We understand you perfectly, Mr. Shaw 
 you may resume your argument. 
 
 Mr. Shaw — Now our case is this : Prior to 1875 the people of 
 the State claimed and held in full proprietorship the title to all 
 the streets in this city. They could dispose of such streets for 
 the purpose of transit absolutely and unqualifiedly to any parties, 
 whether persons or corporations. They might do this by the act 
 of Legislature. Now all this array of opposition from these 
 horse-railroad camps that I am contending against, these 
 railroad men who are bombarding us, derive their rights from the 
 act of May 6, 1884. They attempted to file upon our routes, 
 while we were diligently trying to get the consents which we 
 have bargained for with the Legislature of this State — for it is 
 the decision of the Court of Appeals, that the Rapid Transit 
 Commissioners dealt with us in the capacity as a Legislature 
 and they gave us the consent of the people. We are bound by 
 those Articles of Association to proceed with due diligence to 
 get the consent of the local authorities and property-owners and 
 as long as we are actively engaged in that, no person has the 
 right to file upon our route under the Act of 1884. 
 
 Now, I beg to say, that all this argument I made before Mr. 
 Justice Daly's Court of Common Pleas, was made before the 
 General Term of the Supreme Court that appointed you. His 
 decision on that argument had been twice before that same Gen- 
 eral Term weeks before you were appointed. The strain of my 
 
100 
 
 argument was caught by the master-hand of Mr. Evarts, and all 
 questions were presented and driven home. 
 
 To be exactly just, I ought to say the strain is all his own. 
 Its vital power was derived from his own interpretation, and 
 without which all we are, and all we hope to be, would have 
 been buried beneath the avalanche of opposition that I so 
 easily contend against here. When his commanding juridical 
 conceptions of the intrinsic rights of our corporation were 
 unfolded to our corporators in the situation they were exposed 
 after furnishing hundreds of thousands of dollars in our enter- 
 prise, they no longer inquired about the authorship of " Beauti- 
 ful Snow," but we felt in our veins such milk as Komulus fed on, 
 and which made memorial the retreat of Justinius, near which, 
 against the foremost power and the foremost lawyers of the 
 world, and before the foremost jurists of the world, our Geneva 
 award was argued for and won. 
 
 I tender to all these horse railroads a Scotch thistle. 
 Touch me if you dare. 
 
 The appointment of Commissioners by the General Term 
 is the result of Mr. Evarts' argument. Hence you are sitting 
 here as Commissioners. Mr. Evarts' opinions I have laid 
 before you. They cover every question except the question of 
 notice to property-owners, about which no hearing was had, 
 and which he and all of us supposed, from intimations of the 
 Court, was to be held in abeyance until this Commission's 
 report should be submitted to it. If we erred in this, it was 
 a misunderstanding which we have corrected on nunc pro tunc 
 papers. To show that this is so, I have read a point on our 
 brief to the Court to correct the error, and all the error haa 
 been corrected. It is the additional point by Messrs. Sewell 
 & Shaw, which I have read. 
 
 Chairman Pelton — We recall it. 
 
 I wish the Commissioners to understand that on the 22d day 
 April, we had a grant from the People of the State of New York 
 in its sovereign capacity, clothing us with full, and complete and 
 absolute proprietary rights in the streets for our railroad, subject 
 to our obtaining the consent of the abutting owners and the local 
 
101 
 
 authorities, and that no one under any subsequent act or by any 
 subsequent legislation should be allowed to come in and try to 
 get consents and slip in ahead of us. What mockery it would be 
 for a great sovereign people, to hold out an inducement for honest 
 investors, challenged by inducements and advertisements to 
 come in and carry out a system of public service, and tell them 
 if they do they shall have the exclusive right of the enjoyment 
 of those privileges and then turn around and pass legislation that 
 allows a stranger, an interloper, a franchise jumper to take the 
 franchise secured by them from the people. What sort of a 
 sovereign is that ? How does it comport with the dignity of a great 
 sovereign people to break with its own faith and cheat and de- 
 fraud subjects and citizens by passing an act like this act of 1884, 
 after we have paid for our charter rights and our privileges ! And 
 therefore it was when these people attempted to avail themselves 
 of the provisions of that act and slip into our shoes and get the 
 consent of the Common Council and strip us out of one route and 
 another and tear the whole system to pieces, we arose and de- 
 manded these injunctions and fought with all our desperation. 
 We knew what our right was. We obtained our injunction 
 against the Second Avenue Railroad which the Assistant Corpora- 
 tion Counsel, Mr Wickes, is so anxious to know about, in the 
 Supreme Court, and we argued it at the General Term and we un- 
 folded all this question. I have heard Mr. Evarts make great 
 arguments, but I never heard him on any great occasion surpass 
 the effort that he made in discussing our absolute charter rights, 
 and the duty of the sovereign and the sovereign's justices to come 
 in and protect us on this contract made with us. 
 
 ]S"ow, after that argument was heard and the appeal with- 
 drawn, the Court, fully possessed of all these questions, appointed 
 this Commission. 
 
 I had something further that I wanted to say, to illustrate and 
 elucidate our great right. They talk of us as adventurers. We are 
 not adventurers. These (Mayor's) Commissioners put forth their 
 subscription paper and invited the people of all the world to come 
 in and subscribe in a corporation created with certain powers to ren- 
 der public services ; we came in ; we got a right by it ; after we 
 got our right, the horse-railroad people and the franchise-hunters 
 
102 
 
 obtained the act of 1884 in its present form, so that they might 
 get what we had contracted for and paid for and had a right to ; 
 and I say to my friend Trull who comes here to talk about his 
 client's right to their railroads on Forty-second street and else- 
 where over our routes, that he got his rights under the act of 
 1884 subsequent to the accruement of our right over those 
 routes, and that his right 
 
 " Compared with mine 
 Is as moonlight unto sunlight, 
 And as water unto wine." 
 
 You and all the world must look at us as having a crowning 
 claim on your confidence and conscience ; you must not look 
 upon us as adventurers ; and when these opposing parties come 
 before you to secure, by our discomfiture here, a franchise 
 to which we have at least the first right, you must look upon 
 us as holding that right clothed with the sovereign's recom- 
 mendation ; clothed with the indorsement of the Court that 
 had heard our whole case before they appointed you. And the 
 Court has shown sympathy with us in keeping off from our 
 routes these people, these horse-railroad and franchise- jumping 
 vendetti that are trying to get what is ours. Such people to come 
 here and try to commend themselves to your consideration as 
 against us, by an assault upon our right, are too intolerable to 
 endure ! I want you to know who we are, Messrs. Honorable 
 Commissioners, and understand our right and claim. I under- 
 stand these horse railroads and franchise jumpers are opposing us 
 and trying to get what we already have from the State. They are 
 trying to get it through Boards of Aldermen, and through traffic, 
 and trickery, and to keep up the war on us until we shall be 
 exhausted. But we are bound to due diligence and we must 
 always be diligent ; and we have always been. 
 
 Now to clear up the only remaining question that I care to 
 discuss on the subject of our origin, I will allude to the personnel 
 of the Mayor's Commission. I yesterday showed your Honors 
 there was no undue haste ; no improvident action on the part of the 
 Commissioners ; that they did not hasten their work, but accom- 
 plished it on time and did as prescribed by the statute. Bern ark 
 has been made here that really you should not give a very great 
 
103 
 
 deal of weight to the determination of those Commissioners, 
 for the reason, they say, that only three out of eight Commission- 
 ers have approved of this system of roads. Now, when these 
 horse-railroad people discovered the powers that, lay in that Papid 
 Transit Act, that the Mayor's Commission really had power to 
 lay out routes and fix that exclusive power, they manifested 
 frantic rage. The newspapers commenced to howl ; the music 
 ran along the whole line ; public opinion was invoked ; the Legis- 
 lature was besieged ; every effort was made to stop that Commis- 
 sion and its work, and it involved the Mayor who appointed it, 
 as he supposed, politically, and Mayor Edson desired, at a very 
 late stage in the proceedings of the Commission to reconstitute it 
 of gentlemen who were his personal friends, whose reputation 
 among his friends would be an assurance that there had been no 
 wrong or improper working — a mere matter for his own pro- 
 tection. He suggested three gentlemen. One is the present 
 Collector of the Port, Mr. Hedden, another was Mr. Randolph, 
 the President of the Continental Bank, and the other was Mr. 
 Devoe, President of the Mount Morris Bank. All strong men. 
 They were appointed on the 31st day of March, 1884, and took 
 office on the 2d day of April. At that time these periods of 
 statutory performance to which I have referred, 30, 60, 90, 120 
 days had elapsed. At that time Articles of Association had 
 been unanimously passed, and were a part of the fixed proceed- 
 ings of the Commissioners. On the 4th day of April, that is 
 two days after their appointment, they were called upon to recon- 
 sider those articles and re- vote on them, so that they would have 
 an opportunity to comply with the requests of the Mayor. 
 
 Now, what could three fresh gentlemen put upon a Commis- 
 sion do in two days % Here were questions in which were involved 
 the talent of engiueers, statistical information, visits to Chicago, 
 thousands of dollars expenses, a transfer system, and all these great 
 questions, not one of which they probably understood, but it looked 
 to them very large that there should be twenty-nine routes given 
 to one corporation, and that seemed to be and was their main 
 doubt. They said they would not have given so large a number 
 of routes to any one corporation if they had been the original 
 Commissioners. That is their doubt. They would exclude some 
 
104 
 
 routes and they would give them to another corporation. You 
 know, after the discussions we have had, that the larger the num- 
 ber of routes in one corporation the less the monopoly by this trans- 
 fer system. You know the larger the mileage the less the monopoly 
 under this transfer system. You know it would be a great deal 
 better if all th# railroads in this city were under one corporate con- 
 trol ; then, instead of having ten or fifteen different lines, all 
 charging their five-cent fare, this transfer system would be doing 
 the public service required without charging additional fares. You 
 know it. These fresh Commissioners did not, and there was no 
 opportunity to tell them and make it plain in the closing moments 
 of the Commission. General Yiele was not before them ; they 
 were taken into a back room and the Articles of Association pre- 
 sented to them, and they said it looks quite large to us, and they 
 got their lawyer to draw them up a qualified letter which they put 
 upon record and then voted AYE. Their assent or dissent really 
 amounted to nothing. They thought the scheme looked large ; 
 they did not know the scheme of the system. They have never 
 pretended that they did, and it is impossible to suppose they 
 could. You've been five months in trying to get at it. You 
 were staggered at first blush by its magnitude. What could you 
 have done in two days on such a theme? The education of five 
 months has put you in a reasonable appreciation of it. 
 
 Two days were not sufficient for fresh men to grasp this whole 
 system. The work was perfunctory and nothing else. But yet 
 they saw enough of the system to know that it was too valuable 
 to be lost — that its great features ought to be preserved, but 
 they preferred two corporations instead of one for these vast 
 public services. And what would be the result of having 
 two corporations instead of one ? It would be just twice the 
 fares and double the collection from the pockets of the people 
 that one transfer system makes. That is the full history of this 
 branch of the case. 
 
 I meet these fresh Commissioners almost every day, and they 
 all express regrets that they did not see the system in the light 
 their associates and predecessors saw it, and in the light I think 
 you see it. 
 
 Now, the testimony in this case, if my friends are inclined to 
 
105 
 
 dispute this statement, will be found on the pages which I have 
 marked in this book I hold in my hand, and if jour Honors will 
 take down the citation from page 391, page 424, pages 492 and 
 497, you will find all my averments verities. 
 
 I read from these pages of the Cable Rapid Transit Commis- 
 sion. That is the report of the Commission in which these fresh 
 Commissioners joined. It was unanimous. That ends all this 
 stuff and nonsense about only three out of eight Commissioners, 
 so much dwelt on. 
 
 The fresh Commissioners thought there was too much power 
 in one corporation, not knowing that the larger the power in one 
 corporation the smaller it was as a monopoly, and the more bene- 
 ficent in its operation. If there had been three or four corpor- 
 ations the people would have to pay triple or quadruple fares. 
 But, notwithstanding, the advantages of the system were so over- 
 whelming that they indorsed it. 
 
 Now, I wish to make some observations upon Mr. Wickes' 
 testimony and position. As he is not here at this moment and 
 has notified me that he would be detained by other engagements 
 for the day, I will simply say that I cannot withdraw, on careful 
 reflection, any criticism, or mitigate the severity of any criticism 
 that I have made upon his testimony or upon his position. It is 
 painful for me to be obliged to say that every attempt at explan- 
 ation has only involved him deeper and deeper in the mire ; and 
 he put the crowning cap of infamy upon his official head when the 
 Chairman of this Commission asked him, the other day : " If 
 you had been instructed by the Mayor and the officers of the city 
 to come here and favor this road, would you have come ?" He 
 was silent, and then, again, the Chairman put the question to him 
 and he was silent. Then said the Chairman, " But Mr. Wickes, 
 I am asking you if you had been instructed by the City author- 
 ities to come here and favor this road, would you have done so 1 " 
 and he said " ~No. v His is a voluntary appearance, and he came 
 with the fell purpose to oppose this road and their counsel ; and 
 all this opposition have whipped out maps made at the Depart- 
 ment of Public Works, and the printed documents of their entire 
 case paid for out of the City Treasury. 
 
106 
 
 The Chairman— I think you have misquoted Mr. Wickes. 
 My recollection is not 
 
 Mr. Shaw — I should be glad to be corrected. 
 
 The Chairman — My language was, " Supposing the Mayor and 
 the other heads of Departments, at whose request he appeared 
 here, had requested him to go to Chicago to obtain testimony in 
 favor of the cable system, if he would have felt it in his line of 
 duty to do so ? " and he said he would. 
 
 Mr. Shaw — I distinctly understood him to be asked, if he had 
 been requested by the Mayor and the other heads of the depart- 
 ments to come here and favor this road, would he have done so,, 
 and after some hesitation he answered no. 
 
 The Chairman — It is not material. 
 
 Mr. Shaw — I think it is material. 
 
 The benefit of that testimony is the legacy, and I hope the 
 only legacy my friends in the opposition will have from the 
 Counsel to the Corporation. Now, we know all about that testi- 
 mony. I have commented on it already. We know what con- 
 fidence to place in Mr. Sterling. He said that he got on a cable 
 car in Chicago, and he was thrown violently forward and 
 backward. He staggered us a great deal more by that state- 
 ment than he could have been staggered by the motion of the 
 car. Anybody who rides on the cars on the Brooklyn Bridge 
 understands that. It is a delightful method of transit, and 
 Mr. McKay's testimony as to the deserted village of the plain 
 and a few characteristics of that sort settles the matter. 
 
 The Chairman — The Commissioners feel that they have got 
 a right in reaching a conclusion on this subject to be guided, to 
 some extent, by their own personal observations. I shall very 
 likely myself inspect this Chicago system very much more fully 
 than I have heretofore. But if I should do that, it would cer- 
 tainly appear in any report that I might make just what I have 
 done. It was objected early in the proceedings that the Commis- 
 sioners would have no right to go to Chicago. I think I have the 
 
107 
 
 right. If I err in that respect either the petitioners or the ob- 
 jectors will have the benefit of whatever I do. I state openly and 
 above board what I propose to do ; and whatever I do will not 
 be done in the dark or clandestinely. I must say in passing, I 
 am not stating the sentiments of my associates. I am speaking 
 for myself alone. 
 
 Mr. Shaw — The fact will further appear that Mr. Scribner, 
 who is either Achilles or Agamemnon of this opposition — I don't 
 know how Mr. Trull and himself divide the honors of the Epic 
 founded upon the romances of Mr. McKay's witnesses — expressed 
 a desire that the Commissioners should go to Chicago ; and I don't 
 think there is anybody to object ; and I hope that in any report 
 that the Commissioners write 
 
 The Chairman — That fact will appear of record whether 
 we have or have not. 
 
 Mr. Shaw — I pass by all Mr. Wickes' mass of testimony and 
 reach the remaining objections which are now made before this 
 Rapid Transit Commission. They say to us that the cable rail- 
 ways are an experiment. We know that they are in successful 
 operation in San Francisco and Chicago. I hold in my hand a 
 London newspaper containing an account of the opemng of the 
 Highgate Hill Tramway by the Lord Mayor of London and the 
 Aldermen. The day was very fine, and thousands of spectators 
 who saw the operation of the cars were quite enthusiastic. The 
 London Times devoted three or four columns to it, and the paper 
 that I have in my hand has seven columns in regard to it. This 
 paper is dated May 21, 1884. 
 
 The Chairman — "Was that the cable traction ? 
 
 Mr. Shaw — Yes, sir. It is about two and a half miles long, 
 and it is a very narrow street, and there is a very heavy grade. I 
 want to call your attention to the fact that the Lord Mayor and 
 Members of Parliament, and the city authorities, attended in 
 great state ; speeches were made, and it was a great day. 
 
 Mr. Teaphagen — The Lord Mayor here don't take so much 
 interest in the cable svstem. 
 
 (Extract from London newspaper read). 
 
108 
 
 Mr. Shaw — I don't know but I ought to acquit Mr. Wickes 
 of all blame in this matter, and saddle it upon that man who is 
 riding into a cheap and nasty fame on the back of the " Dolphin," 
 who seems to be still the master spirit of that Corporation 
 Counsel's office, notwithstanding he is managing the Navy 
 Department. I might as well be understood that this last grid- 
 iron arrangement which I have exposed, wherein Whitney, Wid- 
 ner, Kemble and Jacob Sharp are seeking to take forty 
 odd miles of our road, clearly shows the manipulator's 
 hand ; and I have no doubt that Mr. Wickes said "no," 
 and I have no doubt why he said "no." He did not care 
 about the order of the Mayor or the Commissioner of Public 
 Works, or the head of the Fire Department ; but the legacy 
 that William C. Whitney has left for his successors in that great 
 office of Corporation Counsel, is to do what he personally, for his 
 own private uses, requires to be done. 
 
 Now I have here an Australian paper — a Melbourne paper. 
 It is dated June 20, 1885. It shows that cable roads are in such 
 favor there that the corporate authorities indorse their bonds and 
 promote their construction. (Extract read). 
 
 Now, we have a cable road in successful operation in Phila- 
 delphia. 
 
 The Chairman — Is the road in Philadelphia constructed on 
 the same general plan as that in Chicago ? 
 
 Mr. Shaw — Yes, sir. They have changed their grip and have 
 now got ours, and it is working very finely. In Kansas City they 
 have built a cable road. They are operating it very successfully. 
 They have attempted to evade the Hallidie patents, and they got 
 into trouble. They are, however, running their cars very suc- 
 cessfully, and doing a tremendous business. You have seen the 
 cable road on the Bridge ; and they are building one on Tenth 
 avenue. 
 
 The Chairman — Is it claimed that it is built on the same plan 
 as the Chicago system ? 
 
 Mr. Shaw— It is built on our plan. The grip is ours. They 
 have infringed it, and we have sued them. 
 
109 
 
 The Chairman — Are they building it on the same plan as 
 relates to the slot % 
 
 Mr. Shaw — Yes, sir. 
 
 The Chairman" — They find the slot in Philadelphia to widen 
 from one to one and three-quarter inches. 
 
 Mr. Shaw — They are using what is called Bonzano's tube. In . 
 order to make cheaper work and shallower excavations, they 
 adopted in Philadelphia this Bonzano tube, and that is, of course, 
 not so substantial, and does compress, and that has been their dif- 
 ficulty in Philadelphia. 
 
 The Chairman — Is this road in Chicago built of cast-iron 
 yokes and masonry ? 
 
 Mr. Shaw — Yes, sir. 
 
 The Chairman — The question arose in my mind un£er this 
 system if the slots should be liable to open so wide, it would be 
 very defective. It seeems to me some mechanical arrangement 
 ought to overcome this difficulty. 
 
 Mr. Shaav — Any attempt thus Par made with tubes has been 
 a failure. We are to use trenches and they give a firm slot. 
 
 The Chairman — The affidavit of some party states that he 
 found on certain sections of the road in Chicago, which he men- 
 tions specifically, that the width of the slot is so wide that it would 
 undoubtedly be very dangerous. 
 
 Mr. Shaw — That is Crowley's evidence. It might occur that 
 the cable got out of gear. Horse cars often jump the track 
 and delays follow. I don't suppose that indicts the horse-rail- 
 road system. The situation of Chicago is very peculiar. It is 
 built on a swamp, and the masonry work may not have been 
 cemented or piled sufficiently. 
 
 Now, I have here an article from a Philadelphia paper, which 
 I will read. 
 
 (Extract read). 
 
110 
 
 Thus you see the cable road is in very successful operation in 
 Philadelphia, though they are using iron tubes there instead of 
 trenches. We do not, as you know, take much stock in these 
 iron tubes in place of trenches. I have also here a description in 
 the St Louis Republican of a cable road in St. Louis and in 
 Kansas City. I won't read it, but it shows the high appreciation 
 held for cable roads. They are building one in Cincinnati. I 
 have sent some copies of the Commercial Gazette, containing an 
 account of it, to the Commissioners. 
 
 I have also here a newspaper from Dunedin, the principal 
 city of ]STew Zealand, from which I read. 
 
 (Extract read). 
 
 Thus you see the New Zealander, Macaulay's New Zealander, 
 has put cable roads in successful operation in that quarter of the 
 globe. They seem to be going everywhere, circling the globe, 
 and greeting, if I may borrow inspiration from the famous 
 sentence of Daniel Webster, a the rising sun at every hour of 
 his course." 
 
 Now, after eleven years of successful operation in San Fran- 
 cisco, is it not preposterous to say that the cable road is an 
 experiment ? The cable road is now being introduced, as Mr. 
 Hallidie tells us, in Bristol, in Manchester, in Glasgow and in 
 Edinburgh. It was said when the cable road was built in San 
 Francisco, it is a very good road to go up hill, but it would never 
 do on a level. That was the objection urged against the cable 
 road — that it could be operated successfully only for going 
 up hills and hilly streets. The San Francisco horse-railroad com- 
 panies fought the cable system for years and years on that ground 
 alone ; and they argued that it could not be operated on an ap- 
 proximately level street, with just as much tenacity as does my 
 friend on the right ; that it is impracticable on narrow streets ; 
 that it would only do for the hilly and not for the level part 
 of the city. At last they got it on the level portion, and it 
 worked better on the level portion than on the hills. Then it 
 was taken to Chicago to be placed on its level reaches of streets, 
 and the objection followed it to Chicago ; and Mr. Holmes tells 
 us that the greatest difficulty that his corporation experienced was 
 
Ill 
 
 because it was asserted that a cable road on a level plain was an 
 experiment. Well, the experiment has proved an immense 
 success. 
 
 We now meet the objection here in New York, that it is a 
 very good thing for wide level streets, such as are characteristic 
 of Chicago, but not for the narrower ones of New York. Look 
 for a moment at this objection. Does it occupy any more space 
 than the horse-car system ? Are not cable tracks as inflexible and 
 rigid as horse-car tracks ? Is there more, as in case of horse-cars, 
 than fourteen feet seven inches when two cars are standing on the 
 track side by side, from the outer projection of one car to the 
 outer projection of the other ? No ! Is a cable-car as easily man- 
 aged as a horse-car ? All the proofs before you worth considering 
 declare it far easier. The wonderful mechanism of that grip is 
 like your hand. It can grasp and relax and is as sensitive to the 
 pressure of the hand as quicksilver. So that its movement can 
 be controlled more absolutely than the movement of the horse-cars. 
 The rest of the testimony, Mr. Cox, Mr. Holmes, Mr. Hallidie, 
 Mr. Shinn, Mr. Endres and General Yiele, show that wherever 
 a horse-car can go cable-cars can go. The narrowness of the 
 street is not a special objection to a cable road. The objection 
 of the narrowness of the street would be to any road whatever. 
 
 The Chairman — That is what they have urged. 
 
 Mr. Shaw — Then why have they filed for horse-roads on 
 our routes in narrow streets? They have said that the use of 
 cable-cars is attended with a great deal of danger. Mr. Holmes' 
 testimony is clear, and he says there are fewer accidents on the 
 ten miles of his cable-road in Chicago, which carries 
 three-quarters of his passengers, than on the other forty 
 miles of his road where horses are used. Cable-cars can be 
 glided through crowds because they are so easily managed. One 
 of the best illustrations was given to me by a gentleman whom I 
 asked to look at the road in Chicago. It was at the time of the 
 Democratic Convention that nominated President Cleveland. The 
 crowd extended over the track near the Palmer House. I asked 
 him, on his return, u What did you find out about the cable-road ? " 
 
112 
 
 " Wlvy" said he, u the car ivill go a mile in five hours ; yes, it 
 toill go a mile in ten hours if necessary" I asked him what he 
 meant. Then he explained that 50,000 people, densely packed,, 
 stood over and around the track of that road, and by the opera- 
 tion of that grip, that wonderful piece of mechanism, the 
 car moved so slowly on that the people fell aside unharmed. No 
 horse-car could have gone through that great crowd. Why the 
 cable-car was one of the crowd, it moved, as the Chairman, Mr. 
 Livermore, of the Mayor's Cable Commission said, in sympathy 
 with it. We can go into any street where a horse-car can go, and 
 we wil] occupy less space than a horse-car, for horses do no work 
 to carry passengers except to drag the car. But the grip-car not 
 only furnishes the locomotion, but it accommodates passengers ;, 
 and the grip-car and the car attached are hardly longer than a 
 horse-car with its horses. Now, supposing the cable road had been 
 built upon Broadway, where a majority of the property-owners 
 consented that it might go, and it were operating there to-day, 
 they would be carrying two and three cars in a train and doing 
 the business with perfect and decorous safety. The horse-cars at 
 present can hardly stop for a passenger because there is not time 
 enough to let passengers get on and off, because they cannot oper- 
 ate a brake on a horse-car to arrest even the speed or will of 
 horses ; but on the cable-cars they have in their grip-car a power- 
 ful brake which they can handle with the utmost expedition, and 
 with the greatest force when they want to, and obedient steam 
 has no will of its own like a horse, but instantly responds to the 
 touch of the engineer. 
 
 Now, Peter Cooper argued in favor of the cable roads before 
 the Mayor's Elevated Commission. You will find a note of it in 
 the report of their proceedings. It was fairly a craze of the great 
 philanthropist's life to have cable railways in Ken of horse rail- 
 ways ; and that act of 1866 alluded to by Mr. Cozans, is known 
 as Peter Cooper's act, and it was to enable the construction of 
 cable railways here. 
 
 I hold here in my hand the report of the convention of the 
 American Street Railway Association. It was held in Chicago in 
 1884, and the subject presented to the convention was the Report 
 of the Committee on Transportation, signed by A. S. Johnson and 
 
113 
 
 William Richardson. Mr. Richardson is the foremost horse-rail- 
 road man in this country and perhaps in the world. 
 
 (Extract read.) 
 
 The convention adopted that report that the cable system 
 ought to be substituted for the horse system. The horse-railroad 
 men say so themselves. Mr. Kichardson himself, no longer than 
 last year, read a paper before the Constitutional Club in Brooklyn, 
 in which he declares that the very thing of all others for street 
 railway transit was the cable system, and into that paper he 
 incorporates with pride the report from which I have just read. 
 He is probably the greatest living authority on street railroads 
 after Mr. Holmes — probably greater than Mr. Holmes, for he has 
 built railroads in this city and Brooklyn under a great variety 
 of conditions as to topography and varying width of streets. This 
 variety of conditions is not so great in Chicago. But there I give 
 you his indorsement of the system. 
 
 Now, what is Mr. Henry Hart, of the Third Avenue Rail- 
 road Company, the most important surface horse-road in this 
 city, doing with five miles of cable road as an experiment? 
 Is it not perfectly preposterous, the statement that Mr. 
 Henry Hart, with his notorious propensity to never risk anything, 
 to say that he is spending a million dollars as an experiment % 
 He has experimented in this way. He knows cable roads are a 
 success. He is the last man that would experiment. The fact 
 that he has put the money of his corporation into this system 
 sufficiently indicates that. They tell me, he counts the nickels 
 collected during the day every night, and spends half the night 
 doing it before he would spare one farthing to repair an old tie 
 or an old rail. For long after steel rails had become used he 
 kept his old iron rails on Third avenue ; and to-day it is largely 
 iron, and is the roughest and the most indecent, and the worst 
 appointed road there is in the city. His parsimony or for 
 euphemism, I say his economy, proves that cable roads are not an 
 experiment. Would such a man as that throw broadcast a million 
 dollars to build live miles of road in a sparsely settled portion of 
 the city, as an experiment % It is preposterous. 
 
 There is Henry Hart. I don't love him much, and I don't 
 8 
 
114 
 
 know who does, unless it be the great adversary of mankind. The 
 Jew of the Rialto. His counsel comes here and acknowledges his 
 intrinsic meanness. Old Shylock was a prince of liberality com- 
 pared with him. I incur no risk in denouncing him as thoroughly 
 and absolutely abominable. Shylock could hate and was ready 
 to pay for his hatred ; but Henry Hart loves money with such 
 miser-greed, that with his millions at command he won't resent, 
 if it costs him a penny, any expression, however much it could 
 or might offend any other mortal being's pride, fanaticism, religion, 
 superstition or fear. This is the man that is spending one million 
 dollars to build a cable road in the terra incognita portions of 
 our island S Do you think, now, that cable roads are an unfeasi- 
 ble and experimental thing % 
 
 Now Mr. Bergh has said that it would be an inestimable 
 boon to this city if this cable system could be adopted. He inti- 
 mates but one objection. He gives us some startling figures 
 as to its need. His statement will be foimd, if the Commis- 
 sioners please, in the affidavit of Professor Cox. He suggests 
 only one doubt, and he says he is afraid that the slot might inter- 
 fere with hoofs of horses. But Mr. Hallidie told us there was 
 nothing of that sort known in San Francisco. Mr. Holmes 
 says the objection is fanciful, and that is all we have to say about 
 it ; and there is no proof in any quarter, except such observations 
 as Sterling may have put into the mouths of witnesses in the 
 affidavits obtained by him. 
 
 Now, to say that such a system is an experiment is preposter- 
 ous. It is in Australia ; it is in England ; it is in New Zealand ; 
 it is in all the principal cities of our continent. The stars that 
 gem the Dipper and sentinel the North Pole, and the stars that 
 gem the Southern Cross and sentinel the South Pole have, dur- 
 ing the last decade, looked down upon cable roads in successful 
 operation, on both sides of the equator. And such a system is 
 called an experiment ! 
 
 Well, if it be an experiment, all the progress in the arts is 
 experiment ; all the inventions by which humanity has been 
 ameliorated or glorified are experiments, and will remain experi- 
 ments — 
 
 " Until the sun grows cold, 
 And the stars grow old, 
 
 And the leaves of the judgment-book unfold." 
 
115 
 
 Sterling says that he staggered and was violently thrown on 
 the Chicago Cable Road ! He absolutely lies, and this Commis- 
 sion knows he lies. All the world in onr city that have watched 
 the operation of the Brooklyn Bridge Cable Road, which is but 
 a cable road, knows he lies. And when Macaulay's New Zealander, 
 fresh from Dunedin, its capital city, takes his lonely stand on 
 that bridge to sketch the ruins of the Statue of Liberty Enlighten- 
 ing the World, now being erected in our harbor, he will say he 
 lies. 
 
 But objectors say it will interfere with the sewers. I am not 
 good at the blackboard, so often used here. Its chalk and its black 
 surface, so inviting to all who have addressed you, furnish me 
 with no matter for argument. I shall trust to verbal diagram 
 rather than one drawn with chalk on that board. Do you know 
 that the cable, which is the propelling power of cable roads, lies 
 close under the pavement, very near to the surface of the street ? 
 The grip attaches to that cable and lies as near the surface as the 
 rails on the road-bed of a surface horse road do. Just right under 
 the pavement, Now, that cable is operated on sheaves or pulleys ; 
 and those pulleys, in order to give the cable its proper slackness, 
 are placed at a distance of thirty-five or forty feet apart. They 
 do not want a perfect cable tension, so it is not necessary the trench 
 should be continuous. You use so much trench as is necessary, 
 and if you encounter an obstacle near the surface, why all that 
 you have to do is to let your cable pass over it. So, if a sewer 
 be fifteen feet across, all that you have got to do is to have your 
 trench terminate at each side of the sewer, and let your cable go 
 over. There is no sewer or pipe or drain that is of a greater 
 diameter than ten or twelve feet, or nearer the surface than three 
 feet, and these sheaves are placed at a distance of thirty-five feet 
 apart. That meets the question that Mr. Wheeler presented 
 without the necessity of any involved mechanical contrivance. 
 
 Now, on the subject of health, I will simply make this obser- 
 vation : all the evidence in the case against us would apply to the 
 excavation of the soil anywhere on earth. The very plowing 
 and subsoiling and tilling of our farmers would produce the 
 same consequences that are alleged to follow from the upturning 
 of this soil. So that when we say " they tickle mother earth and 
 
116 
 
 she smiles with her harvest," according to the testimony of these 
 doctors before us, she produces the noisome air of pestilence ! 
 Now, the whole argument on that question would apply to dig- 
 ging a hole anywhere. I do not think much of that testi- 
 mony or the argument. The testimony was gotten up by the 
 power of Jay Gould and the Western Union people to influence 
 the Legislature to repeal the law requiring them to put their tele- 
 graph wires under ground, and having been gotten up and ready 
 at hand it was brought here and mutatis mutandis, was made 
 applicable to this case. It was already prepared and fitted to 
 this situation when Mr. Wiekes' masters told him that he must 
 oppose this road. 
 
 I won't hint that Jay Gould and William C. Whitney are 
 working the same groove in this matter. Both are notoriously 
 inveterate speculators. Does this explain how the testimony in 
 one case and the other came from the office of the Counsel to the 
 Corporation ? I hope not. But men of both meaner and larger 
 perceptions than mine may think otherwise. Let that pass. I 
 have no warrant to make an insinuation on the sub ject, and I do 
 not. 
 
 Now, who has assailed this cable system ? Take the City of 
 New York, with all its resources, all its railroad combination, and 
 they have not been able to produce a respectable engineer to 
 belittle or disparage or criticise the cable railway system. The 
 only engineer they have produced with all their resources — the 
 only man they could induce to enter their service was this man 
 Crowley. In this city, full of capable engineers with full 
 means of examination, whom have they brought here but this 
 boarding-house bilker Crowley and McKay, detailed from the 
 office of Public Works. Mr. Bostwick and Mr. Webster are 
 not mechanical engineers, they only deal with the disturbance of 
 the sewers, and I have shown that we never shall have occasion 
 to disturb those sewers. So that all the expert evidence in this 
 case against the cable, or criticising it, declaring it is an experi- 
 ment or otherwise, is the testimony of that man Crowley and 
 this man McKay, while, on the other hand, we have produced 
 Hallidie, Holmes, Yiele, Shinn, Boiler, Endres and North. 
 What an array of engineering talent, probably the finest in the 
 world, versus Crowley impleaded with McKay ! 
 
117 
 
 Who wants these cables ? Mr. Earle's affidavits disclose to 
 you that the people want them. At the time he made his affida- 
 vit there were 60,000 signers ; I have a petition here, which 
 Mr. Earle refers to in his affidavit, signed by 70,000, signed 
 by their own hands, asking for the cable system as it is laid out 
 upon our maps, and as we are asking for it here. I admit we 
 paid five cents a name to the canvassers to get it. Can you 
 expect your business to be done without paying for it ? It was a 
 method we took for paying our canvassers and securing good 
 work. They were selected men and women, whose oath would 
 be taken in any court of justice any day, anywhere ; men and 
 women whom you know, or might not feel dishonored to know ; 
 men like Charles Gildersleeve ; men taken from medical colleges, 
 and students ; men recommended to us by good people who 
 knew them. Ladies from the formal College, and other women 
 good and true. They circulated this petition ; they went into 
 factories, and they obtained signatures, and they are in the hand- 
 writing of the persons who made them. The canvassers returned 
 their work, and swore that they saw the signature made by the 
 party who professed to own the name. In this appeal to the 
 Commissioners, we hear the tender voice of woman. They come 
 here and ask you to give them this system, as a transfer system, as 
 a means of economy, as an addition to their income and an 
 increment of wages to them. I regret that I cannot speak of all 
 the ladies that came to speak for their sex, but I, in common with 
 all who admire Hypatia, must lay, as you must lay, the homage 
 of your respect at the feet of Mrs. Dr. Lozier. Now, against all 
 that, what do we have ? We have for it Mrs. Dr. Lozier, Miss 
 Janness and Mrs. Cobb versus Mrs. Twitchell. That is the situa- 
 tion ; and the contrast between our list of engineers and Crowley ; 
 and the contrast between our lady petitioners for this system and 
 Mrs. Twitchell represents the merits of our case and the demerits 
 of our adversaries. I wish to say farther on this subject, that 
 the public invited this system and desired to have it. The 
 original rapid transit petition to the Mayor was signed by 116 of 
 our leading citizens. And the first on the list was that merchant 
 prince, H. B. Claflin. There were some three hundred million 
 dollars represented among those names. And of those people 
 
118 
 
 who petitioned for this cable system and took their oath that 
 they desired it, more than 60 of them, including Mr. Claflin, 
 have overlooked the work of the Mayor's Commission, and have 
 approved of it, and are now asking that it should be approved. 
 
 Now, the last topic that I care to discuss is this : We have 
 given you a system ; we ask you to return it to us with your 
 approval complete and unmangled. I speak with all the fervor 
 of him who wrote : 
 
 " Woodman spare that tree, 
 Touch not a single bough. " 
 
 We have given you a perfect system, as we think, as near as 
 it can be. Do not return to us a partial route, nor with any 
 part broken off or any limb lopped off. Let us have this most 
 perfect system in its completeness and entirety. A suggestion 
 has been made that we ought not to go below the Brooklyn 
 Bridge. Why should you refuse us a complete system to the 
 Battery? Don't people want to be delivered in Wall street? 
 There is some narrowness, I admit, in William street, but William 
 street is a dead street ; the owls and the bats are there now. It is 
 used for the storage of gross things ; there is an air of decay about 
 it. It is Rotten Row of the city. Such a Rotten Row is found in 
 all cities, for every city has its Rotten Row, and William street 
 is our Rotten Row. It has had its day of glory, but it is gone. 
 There is room for this road through that street. The narrowest 
 point is nineteen feet eight inches ; its average is about twenty- 
 two feet, and if you put two tracks there, and the cars should be 
 on them side by side, the distance from the outside of one 
 car to the outside of the other would be fourteen feet seven 
 inches ; but the coincidence of the meeting of two cars stopping 
 at the same time is not likely to happen very often. The im- 
 pediment to the traffic they have on the street now would be that 
 of one track and one car at a time. Then if you do that and 
 extend our facilities into Wall street, through Broad down to the 
 Battery, you will give us a route from the Harlem river to 
 the Battery ; and in that case William street will immediately 
 assume the character of an office street like Lombard street in 
 London, which is no wider, and which is one of the most com- 
 
119 
 
 pact and beautifully built streets in the City of London. But it 
 will be used for an office street, and I have no doubt the appre- 
 ciation of property will be enormous. I have no doubt it will 
 be the making and the saving of the street. 
 
 The same arguments may apply to Cortlandt street and Liberty 
 street. They lie between two rivers. Brooklyn, with a popu- 
 lation of 800,000 and Jersey City 200,000, with Newark's 
 250,000 population hard by, are incessantly pouring across the 
 lower part of the city. They go and pass, and pass and go, in 
 swift and multitudinous processions across the lower end of our 
 island, from ferry to ferry, like a weaver's shuttle. They need 
 these facilities. 
 
 Now, I am saving a great deal of argument by putting to you 
 the issues in this shape. If you do not give us this complete sys- 
 tem, some one else will have the portion of it you lop off. For 
 it is as certain as night follows the day, if you deprive us of 
 these down-town routes, you simply hand over that part of our 
 system to another — perhaps to several others. Those routes have 
 already been filed on by horse-railroad people ; the notices are 
 now being published in the papers. I have got to get out another 
 injunction to stop them from applying for consent from the local 
 authorities. It is a fore-doomed, fore-ordained, fore-fixed thing that 
 if we do not have it somebody else, several bodies, will. By tak- 
 ing it from us and giving it to somebody else, people will have 
 to pay extra fares ; if it is left to our system there is no extra 
 fare. Why will you make people pay additional fares by taking 
 this out of our system and allowing independent roads to fall 
 into other hands ? I think that sums up all that is to be said 
 on that subject. Whatever may have been the inclination of 
 the Commissioners heretofore on the subject of these down- 
 town routes, when they were filed on by Ed. Karney and Dan. 
 Conover's corporations with Col. Wagstaff following behind, to 
 defeat our application here and get those routes and cut them 
 off from our Main Route No. 1. I see a design in all this 
 work. They have made opposition to this route in order that 
 they might get other routes themselves. But they have unfolded 
 their hand too soon. 
 
 And whatever may have been the opiuion of the Commis- 
 
120 
 
 sioners on these down-town routes before, it is so clear and 
 patent that without a positive injury to the people, without 
 compelling them to pay an increased fare, with poorer facilities, 
 you cannot take them from our system. I say we give you in 
 Route No. 1, a perfect route from the Harlem river to the Bat- 
 tery. Do not return to us a mangled form ; do not hand over 
 to us a torso broken in any part. 
 
 And so it is with reference to all our cross-town 
 routes. It has been said that we maliciously paralleled 
 Twenty- third street, and did the same thing in Fourteenth and 
 Broome streets. It is the case of the snake's egg in the eagle's 
 nest. We did not maliciously parallel those routes. We pro- 
 posed a system on axial lines on the east and the west sides of 
 the city, with transfer tickets ; and in order to give free rides, 
 for that is practically what it means, we had to have cross-town 
 roads. It would never have done for us to drop our passengers at 
 Twenty-third street and transfer them to Mr. Sharp's horse cars 
 to pay him an additional fare. We were bound, in order to make 
 our system the beneficent thing that we claimed for it, that we 
 should have cross-town routes without additional charge. Lop 
 them off if you must, they are scarcely feeders to us ; they won't 
 put any revenue into our pockets ; but the system requires for its 
 completion that you should have facilities of cross-town traffic 
 from axial lines, and that they should be connected, and that a 
 single fare should carry a passenger to his destination over them. 
 We put a cross-town line in Forty-second street, because it is a 
 good street. It was needful for that street, and we intend to 
 keep it there if we can get the sanction and approval of this 
 Commission to the scheme in its entirety. Supposing you take 
 it out, what is the result ? You make our passengers, when they 
 get off from our axial lines east or west, pay an additional fare of 
 five cents to Mr. Conover's road. Is it a fair imposition to put 
 upon those passengers ? Certainly not. You are legislating against 
 the people, if in any way, shape or form, you require our passen- 
 gers to be transferred, to avail themselves of separate and inde- 
 pendent horse-railroad lines when you can give connection with 
 our system. The system that Gen. Yiele laid out, the very 
 beauty and harmony of the system, lies in that transfer facility, 
 
121 
 
 and to take it away from us and from the people is to make the 
 people pay additional fares. 
 
 Now, some criticism has been made upon the number of our 
 routes. That I care not further to answer. I may again and again 
 refer to it before I finish ; for I am proud of it. The laying out 
 of our routes and that we are crossing prohibited streets, I will just 
 notice in conclusion. Our system, consisting as it does of two 
 axial lines, with these cross-town lines, crosses a longitudinal line 
 of streets, which may be called prohibited streets; for example, 
 Broadway and Fifth avenue. Our system presents the appearance 
 of two combs, whose backs respectively are on the east side and 
 west side of the city and whose teeth, as representing cross : town 
 lines, approach to, but cannot cross, these prohibited streets. 
 
 Well, there are my combs, and there are their teeth. I think 
 the public will find it a matter of regret that these teeth cannot 
 be brought together — there is a legal lock-jaw that keeps them 
 apart — for if they could be brought together, why then the transit 
 across the island from river to river, from ferry to ferry, would 
 be complete. 
 
 If, however, this lockjaw can't be alleviated, the service will 
 be quite desirable and the facilities proposed without that allevia- 
 tion would be useful and desirable, for we then can deliver our 
 passengers from our axial lines to the central part of the city. 
 We could carry the people up to either side ; but of course it 
 would be a more desirable service if we could transfer them 
 across the line of these prohibited streets, but we should have to 
 stipulate that our passengers would have to walk across the street 
 and take the car on the other side. But the lines would be 
 quite completed if we could cross Fifth avenue and Broadway. 
 
 If the back of our combs, in consequence of legal impediments, 
 can't project their teeth across these prohibited streets, why then 
 we must wait till those impediments are removed and then we 
 can give a more thoroughly desirable service. The public need 
 will settle that with the Legislature in short order after the 
 people have walked a while. 
 
 Now, the Mayor's Commission knew very well that they could 
 give a desirable service by laying out the routes just as they did, 
 because they could carry their passengers from either side up to the 
 
122 
 
 prohibited streets, and if the Legislature should enable them to go 
 across the streets, then it would be an extremely desirable service. 
 But it is very desirable in the form in which they have left it. 
 Now they counted upon the Legislature to complete the system. 
 The Legislature has done so; that expectation is fulfilled. 
 Within ten or twelve days after the Articles of Association were 
 adopted, the Legislature passed an act which enabled them to 
 extend their roads and fill up these gaps and complete the sys- 
 tem, and our corporation have taken the necessary steps to com- 
 plete the system by going to the Common Council and asking 
 their assent to their crossing the roads. We have filed for that 
 extension. I have laid the proof of our application before you ; 
 and it is a part of your testimony, so that you suffer no embarrass 
 ment whatever. 
 
 The Chairman — What law do you refer to ? 
 
 Mr. Shaw— The Act of 1884 ; by proceeding to confirm this 
 thing in its present shape, because if the Board of Aldermen 
 confirm your proceeding they will also confirm these extensions, 
 so that it is certain that we will have them or we will have 
 nothing from the Board of Aldermen. You take no risk in doing 
 it, You are to consider the end in view, the performance of this 
 public service in the extremely desirable form we present here. 
 You need not stand on ceremony so long as statutes in pari materia 
 enable you to complete your work. Do you not think it is a 
 good thing to have these public services that we propose \ We 
 will take care of statutes in pari materia ; those are questions 
 which will be reached by the Court. You are to deal with the 
 physical and economic aspects of this matter, irrespective of such 
 legal technicalities or objections as have been offered. You are 
 to tell us whether or not it is a good thing, all considerations 
 taken into account, to have this system go into operation as a 
 physical fact. Now I don't care whether you report before the 
 Board of Aldermen reports or after. It makes no difference. 
 If the Board of Aldermen report in our favor, they will report 
 with these provisions in it. If the Board of Aldermen report 
 against us, all this work is vain, and no harm can come from it. 
 I don't think there is any further question to discuss on the 
 
123 
 
 merits or on the law of this case. I have nothing to do now but 
 to express my thanks to the Commissioners for their patient hear- 
 ing, and I hope that they will address themselves to a speedy 
 completion of the work before them, so that we shall understand 
 what their judgment is, and if it be in favor of the petitioner, 
 we shall want to make an early application to the Court for the 
 confirmation of the report. I hope the Commissioners will go 
 to Chicago and see whether Mr. Holmes or Mr. Sterling speaks 
 the truth, and I hope they will put in their bill of expenses, 
 items for the petitioner to pay on the same basis that all 
 expenses for this inquiry have to be paid. 
 
 Chairman Pelton — The Commissioners desire to express to the 
 Counsel of both sides their obligations for the kindness and 
 courtesy with which we have been personally treated and the 
 general kindness and respect which has been manifested towards 
 us. As we have previously intimated, the Commissioners will 
 go to Chicago before deciding the questions before us. 
 
 After advisement, and after the Commissioners had visited 
 Chicago to examine the merits of the cable system, they made 
 the following report on the petitioner's application : 
 
1