GREAT SPEECH 
 
 Hon. WILLIAM M. EVARTS 
 
 RAPID TRANSIT 
 
 N E W Y R K : 
 Evening Post Steam Presses, 208 Broadway, corner Fit.ton Street. 
 
 1876. 
 
 1 
 
i£x ICtfarts 
 
 SEYMOUR DURST 
 
 When you leave, please leave this book 
 
 Because it has been said 
 " Ever thing comes t' him who waits 
 
 Except a loaned book." 
 
 Avery Architectural and Fine Arts Library 
 Gift of Seymour B. Durst Old York Library 
 
GREAT SPEECH 
 
 HON. WILLIAM M. EVARTS 
 
 RAPID TRANSIT 
 
 NEW YORK: 
 Evening Post Steam Presses, '208 Broadway, corner Fuxton Street. 
 
 1876. 
 
72$ 
 
 Digitized by the Internet Archive 
 in 2013 
 
 http://archive.org/details/greatspeechofhonOOevar 
 
ARGUMENT 
 
 OF 
 
 Hon. WILLIAM M. EVARTS. 
 
 Mr. Evarts opened for the plaintiff as follows : 
 
 If your Honor please : 
 
 This action, an equitable one, is brought by the Sixth Ave- 
 nue Railroad Co., a corporation created, authorized and 
 emploj^ed for the transfer of passengers in this city, in accom- 
 modation of the public needs and in co-operation with the other 
 avenues by which the needs of the public are also served by 
 similar modes of transfer, to wit, a horse railroad company. 
 These rights are vested in it by an authentic contract between 
 the city of New York and this association, as it then was, now 
 corporation, confirmed by the Legislature of the State and now 
 unquestioned. The part of their route as the principal part of 
 their line, which is now brought in question by the interference 
 of the defendants, of which I am to speak, is the Sixth avenue ; 
 for there at the time and before the filing of this bill the 
 threatened invasion of their rights and interference with their 
 enjoyment of the street for the purpose of the transfer of pas- 
 sengers was interdicted. 
 
 The bill sets out with entire completeness the manner and 
 form through which this plaintiff became vested with its rights 
 in the street, and with its important faculties and powers, in 
 substance, and it is not necessary now, for the whole subject is 
 familiar to your Honor, and every day's observation shows 
 what the business is and how it is conducted. The business of 
 this company is substantially this, that the corporation of the 
 city of New York having such title in its streets as a matter of 
 proprietary ownership and of public trust and duty as grows 
 out of the condemnation or cession of this street property, the 
 
4 
 
 fee of the street, made to them under the laws of 1813, and in 
 subsequent changes of those laws granted the right to this asso- 
 ciation to construct and operate a certain railroad for cars 
 driven by horses and with tracks regulated by the Common 
 Council, and with time and frequency of the running of the cars, 
 in some degree at least, regulated by the Common Council. 
 And thereupon this association took upon itself a corporate 
 form, and bj T the Legislature of the State was confirmed in 
 these rights. All the elements of a definite and valid contract 
 between the city of New York and this corporation are dis- 
 closed in the documents relating to the subject, and whatever 
 there is of constitutional predicate of contract as between pri- 
 vate parties as against invasion by legislation of the State or 
 other action of State authority, is possessed by this corpora- 
 tion in respect to these rights and privileges and property 
 under the contract concerning the same with the city of New 
 York. So strong and important, so definite and efficient is 
 this right by contract from the city, that in an exploration of 
 the basis of it in the authority of the city, the highest court of 
 the State determined that it was, ever is, definite, and so dur- 
 able an operation of right in the streets of the city that it was 
 incompetent for the said authorities unaided by State legisla- 
 tion to confer it. That it gave a freehold interest in the streets 
 of the city for the purposes of the public trust and use of a 
 horse railroad, and that under the authorities then existing in 
 the government of the city of New York, it was incompetent 
 for them without an enabling act, although they had the 
 fee of the street, although they had the whole administration 
 of the use and employment of the street for traffic either of 
 persons or of merchandise ; yet they could not so interfere 
 with the general and vested right as to impress as definite and 
 durable authority upon the action of any selective creatures, 
 and thereupon authority of the Legislature was given with full 
 consideration of the consequences that would come from any 
 such confirmation of authority to this railroad company, and it 
 now possesses it. 
 
 What I have said of this railroad company is, I understand, 
 substantially, if not entirely, true of all the other horse railroads* 
 that in their collective agency are transferring now, day by 
 day and hour by hour, the public of this city as the calls of 
 business or pleasure invite from one part of it to another. It 
 will be seen, then, that no question, if doubt be thrown upon 
 
5 
 
 the tenure, the verity, and security of this property of this 
 road and of all these other roads, no question can affect 
 either older private interests or greater public convenience 
 and use than attends ? this very franchise now exercised and 
 now brought into defense of itself against invasion. 
 
 Following upon this confirmation of their rights, large ex- 
 penditures have been made by this railroad company of 
 amounts numbered by millions of dollars, and now, with the 
 acceptance and constantly increasing approval of the public of 
 this city within those limits that are imposed by the necessity 
 of keeping the streets open for the general use of the public, 
 and of having a railroad therefore that is incompatible with 
 the occupation of the abutting lots for the purposes of busi- 
 ness and residence, this railroad, these street railroads, are 
 now performing principal service in the conveyance of passen- 
 gers up and down this island. 
 
 I will ask your Honor's attention to the magnitude of the 
 service they perform, for it bears definitely both upon the 
 question of the value of the public service in respect to the 
 volume of it and to the convenience of the public, and directly 
 further upon the question how the interference of which we 
 complain, and which we bring definitely to your Honor's ap- 
 prehension, does operate in restriction of its public service and 
 in restriction of its corporate rights. The entire railroad 
 transfer of passengers in all the steam railroads of this State, 
 in combined length of 9,000 miles, is but 35,000,000 of persons 
 in a year. This Sixth Avenue Railroad moves 16,000,000 on its 
 own line in a year. The Third Avenue Railroad moves nearly 
 twice as many ; and the Eighth, and perhaps the Seventh, 
 transfer a larger number than the Sixth. Your honor sees, 
 therefore, the magnitude of any steam apparatus in respect of 
 track, or trains, or engines, that can undertake to compete with 
 this, with these modes of transfer in meeting the objects and 
 desires of our public. 
 
 It opens our observation also to the obvious requirements of 
 the structure and the equipment to be operated by steam, and 
 induces a comparison thereof, both in respect of the public 
 convenience that may be fairly hoped or imagined to be reaped 
 from it as compared with what is now served by these horse 
 railroads, and if that public convenience can be expected to 
 be subserved from the magnitude of the operation of this 
 enginery, and upon this structure, that must be all the while 
 
6 
 
 going on within the narrow limits of a street of the city of 
 New York. 
 
 Now, the defendant is also a corporation, deriving its power 
 from legislation of the State, created by a special charter, with 
 well defined and well circumscribed authority in respect of its 
 functions, its faculties, its structure and its appliances. The 
 legislative will has been, whether intelligently or not, with con- 
 siderable circumspection and fidelity, undertaken to protect 
 the streets of the city both in the rights and benefits of occu- 
 pation by the abutting proprietors, and in the needs of the 
 public for business and for passengers in the traffic on the 
 street itself against invasion and interference. When we come 
 to consider the power which the act incorporating this defend- 
 ant's corporation confers, if it were a practical question, your 
 Honor would be called upon to determine whether that was an 
 excuse of legislative authority, whether it did invade the rights 
 of property, whether of abutting proprietors or of this corpo- 
 ration, or the rights as cestui que trust in the right of this ave- 
 nue for traffic on the part of the public at large ; but that act 
 will now be considered by your Honor only sufficiently to de- 
 termine that in the construction of it, in its actual lorin and 
 proportions, an interference with private and public interests 
 in the streets is attempted by the corporation in the actual 
 movements towards the foundation and the superstructure of 
 this railroad track, only sufficiently show that there is in this 
 special act of incorporation no pretense of authority to go orr 
 with any such structure as is predicated at the moment. And 
 the answer of the defendant leaves us no doubt, by their dis- 
 tinct admission of the actual character of the structure, that 
 they are proposing, being, as we say in our bill is " threat- 
 ened," precisely that and nothing else, that this special incor- 
 porating act does not give them authority for. 
 
 When by an act passed in 1875, said to be, indeed, by the 
 amended Constitution, which went into effect prior to its pas- 
 sage, required to be general in its nature, it is supposed by these 
 defendants that there were acquired by them certain added 
 powers aud faculties, and choice in respect of their route, and 
 of their structure and its operation which were not included 
 in the statute by which they were incorporated, and that be- 
 tween the upper and the nether millstone of a special act of 
 incorporation passed before the amended Constitution pro- 
 hibited such legislation, and the subsequent Act of 1875 which 
 
7 
 
 they claim to be general, lodging in the commissioners power 
 to modify and repeal and reform that special act of incorpor- 
 ation, between the upper and nether millstone of these co- 
 operative legislations — the Constitution, and the rights and in- 
 terests ; that this clause of it was framed in the presence of a 
 great and immediate danger of these rights to protect are to 
 be ground to powder. 
 
 I will ask that a copy that we have had printed of the Gil- 
 bert Elevated Railroad Act, with the" various amendments, 
 shall be handed to his Honor. This was passed in 1872, and 
 we have printed the original act, and all the amendments and 
 extensions of time or authority since. 
 
 This is a corporation created by a special act. The title 
 of it is " An Act to incorporate the Gilbert Elevated Railway 
 Company, and to provide a feasible, safe and speedy system 
 of rapid transit through the city of New York." The third 
 section expressly defines the authority and powers conferred. 
 Certain authority under the general Railroad Act of 1850 is 
 conferred upon this corporation, and the special authority then 
 proceeds : " And the said corporation is hereby authorized and 
 empowered to make, construct and maintain an elevated railway, 
 to be operated by the plan known as the 1 Gilbert Improved 
 Elevated Railway,' over, through and along streets, avenues, 
 thoroughfares and places in and of the said city of New York, 
 and to construct, maintain and operate the said tubular ways 
 and railways by atmospheric power, compressed air or other 
 power, together with the necessary sidings, stations, switches, 
 turnouts, platforms, stairways, elevators, air reservoirs, and 
 connecting tubes for the transmission of power, telegraph and 
 signal devices, and other appliances requisite to convey pas- 
 sengers, mails and merchandise as contemplated by this act, 
 and in the said system of railways over the streets, roads, 
 squares and avenues herein mentioned." 
 
 Commissioners are to be appointed to determine what route 
 in the city may be accessible to this company for the purpose 
 of its construction and its operation, and then the provisions 
 in the fourth section show a complete adherence to the re- 
 strictions of the third. " For the purpose of making, con- 
 structing and operating said tubular ways and railways, said 
 corporation is hereby empowered to enter upon and across the 
 several streets, squares and avenues and land herein provided 
 for." 
 
8 
 
 It is a limit of their power to commence and enter upon the 
 locus in quo for the purpose of their corporate powers. 
 
 " Such railways to be constructed in the most thorough and 
 artistic manner, and of sufficient dimensions for the purposes 
 of said tubular ways and railways, and at such heights above 
 the streets, squares and avenues so designated and established 
 as will, when completed, insure the unimpeded traffic and travel 
 in the same." 
 
 Whatever power this corporation took was a power limited 
 by the requirements that it should not interfere at all with 
 existing rights of traffic and travel. 
 
 " The said tubular ways and railways the said corporation 
 is hereby authorized and empowered to construct, maintain 
 and operate shall be substantially supported above the middle 
 of the streets and avenues by iron arches, which shall span the 
 same from curb to curb, the bases of which shall not, when 
 practicable, be more than sixty feet apart, nor the arches less 
 than fifty feet from each other." 
 
 There is in the statute a requirement that their structure 
 must be of such a kind as will not take away an inch from the 
 traffic way of the streets, nor disturb by noise or jar, or other- 
 wise, the uses of the streets for general and common traffic ; 
 but not satisfied with that restriction which the courts of 
 justice might well have been left to protect to the full extent of 
 the public interests, as applied to their adjudication, if it had 
 been left thus, the statute proceeds to say that these condi- 
 tions of non-interference shall be preserved. 
 
 "Shall be substantially supported above the middle of the 
 streets and avenues by iron arches, which shall span the same 
 from curb to curb, the bases of which shall not, when practi- 
 cable, be more than sixty feet apart, nor the arches less than 
 fifty feet from each other." 
 
 That is to say, whenever it would be practicable for 
 the purpose of the public convenience, in the judgment of 
 these commissioners, to use public streets that were more 
 than sixty or only sixty feet between curb and curb, that 
 practicability, limiting the arches to sixty feet, should be, 
 as an element of choice, preferred by the commissioners 
 and that route selected ; and it happens to be, either by 
 casualty or good fortune (and no doubt that operated in 
 the minds of the commissioners), that the Sixth avenue is 
 precisely sixty feet from curb to curb; that other avenues may 
 
9 
 
 be wider, and might have been, but for that greater width, as 
 suitable, perhaps more suitable, for the route of the road ; but 
 this statute kept them within such limits as that it must be at 
 least sixty feet, and for considerations with regard to the ex- 
 pense and strength. Sixty feet being regarded, the other con- 
 dition from curb to curb "would not be insisted upon, which ad- 
 mitted of from curb to curb, and sixty feet concurring in the 
 dimensions. 
 
 Now, as to the lengthwise separations. If it be pleaded that 
 this limitation in regard to the sixty feet has no reference to 
 the dimensions across the streets, but that it has reference only 
 to the lengthwise separations of the arches and the bases, then 
 we have nothing bat the requirements of from curb to curb, 
 and for all purposes here — and I have only alluded to these 
 matters of sixty feet in order to show that this avenue did con- 
 cur with this arrangement — then you have the requirement 
 as to the proximity with which these crosswise partitions, so 
 to speak, shall be allowed, and that is that the extension of the 
 loases of the supports shall not be more than sixty feet apart? 
 nor the arches less than fifty feet from each other. The limit- 
 ations from curb to curb apply within the sixty feet, and then 
 the limitations as to the lengthwise arrangement that these 
 supports are to be not more than sixty feet when practicable, 
 nor the arches less than fifty feet from each other. That 
 means the arches in the clear, I suppose. 
 
 Now, whether an equal and definite attention to the degree 
 of even conjectural and dubitable interference with the traffic 
 and travel of the avenue or streets should be possible under 
 this act, separating it irorn judicial discretion to that extent, 
 requires an observation oi this measure of remoteness and in- 
 frequency between the arches. Although there could be no 
 bases, no supports, except what were in the line of the curbs, 
 yet even they were not allowed to be more frequent than the 
 interval of fifty feet between them. 
 
 Now, the fifth section gives to the corporation the right of 
 acquiring property to " enable it to construct, maintain and 
 operate the said tubular ways and railways, and the motive 
 power thereof." 
 
 The sixth makes it a railroad exclusively for the uses of the 
 corporation ; excludes everybody other than public officers 
 from going upon it at all in other connection, of course, than 
 with the approbation and for the purposes of the corporation 
 
10 
 
 and with their consent. " The municipal authorities of the 
 city of Xew York are hereby prohibited from giving any per- 
 mission to any other person, body, or corporation, to do any 
 of the acts or things hereby authorized, but shall at all times, 
 as far as practicable, aid the said corporation in carrying out 
 the provisions of this act." 
 
 The time limited for the execution of this work authorized 
 is fixed by this statute, and the subsequent acts seemed to my 
 observation to be entirely confined either to questions of right 
 or the extension of time for the performance of the work. 
 
 Xow, if your Honor will look at Schedule A, which follows 
 the bill, you will see the railroad known as Gilbert's proposed 
 City Elevated Railway, and which is referred to — I don't mean 
 this picture — but which is referred to. This Gilbert proposed 
 Elevated Railway is referred to distinctly in the act as a 
 known and fixed plan and method, and at all events for which 
 alone authority was asked from the Legislature ; for which 
 alone authority was given by them in respect of this structure 
 and its motive power, and which included in its provisions, in 
 observing the public and local interests of the avenue, those 
 conditions of absence of noise and absence of exposure of 
 private residences to the gaze of passengers, which to every 
 one's observation constituted a primary element in determining 
 whether or no such a use or employment of any of the avenues 
 of this city can possibly be permitted by the Legislature. 
 
 The bill shows this was the method, and the published 
 method, and the understood method, that was covered by the 
 brief phrases of law which adopted it as a measure, and the 
 limit and description and the kind of road for construction 
 and operation which was to be tolerated, compatible with the 
 interests of the public and the city, and the provisions of the 
 law show that. 
 
 Xow, some question may be made, for aught I know, in the 
 trial, as was indicated in some of the affidavits, as to whether 
 or no this was not a plan, a model, or publication made for 
 effect in this suit, and whether it was or not an adoption of an 
 earlier and different method, contrived and not insisted upon 
 and not proposed by the Legislature, and not acted upon by 
 them, and not described by the language of the law. 
 
 Now, 1 hold in my hand a sheet taken from the issue of the 
 Scientific American of April 13th, 1872. This bill was intro- 
 duced in the Legislature on the 17th of March, 1372, and was 
 
11 
 
 passed on the 17th of June ; and here on the 13th of April 
 we have the actual publication, presentation of the public in- 
 terests to be looked at by the citizens, to be judged of by the 
 Legislature, in order that it might be known and understood 
 what kind of a structure it was that was sought to be author- 
 ized ; that was described as the plan of Gilbert ; that citizens, 
 either in general as property holders, and having the use of 
 the streets at their service, or abutting proprietors upon the 
 projected line, could attend to, and be opposed to it if they 
 thought best. It is there described as " Gilbert's proposed 
 City .Elevated Railway," precisely what our reproduction of 
 it describes in this Schedule " A " to the bill, and this is the 
 introduction of it to the public in this Scientific American news- 
 paper : 
 
 " Among the recent projects for rapid transit in New York 
 is that of Mr. R. H. Gilbert for an elevated railway, on the 
 plan so tastefully represented in the accompanying engraving. 
 
 The plan is to place along the street, at distances of from 
 fifty to one hundred feet, compound gothic iron arches, which 
 shall span the street from curb to curb, at such an elevation as 
 shall not interfere with the ordinary uses of the street. On 
 these arches, a double line of atmospheric tubes, eight or nine 
 feet in diameter are to be secured. The arches are strongly 
 connected with each other by means of a vertical, latticed or 
 trussed girder running between the tubular ways, which are to 
 be firmly joined to it on either side by ties of suitable con- 
 struction. Through the tubes, supported as described, cars 
 carrying passengers are to be propelled by atmospheric power. 
 There is also provision in the same set of arches for two or 
 more sets of tubes for the transportation of mail and packages. 
 The stations will be situated at distances of about one mile 
 apart along the line, and will be provided with pneumatic 
 elevators to raise passengers to and from the place of transit 
 with perfect safety, thus obviating the necessity of going up 
 and down stairs for transit. 
 
 The movement of the cars or trains along the line, as well 
 as their arrival and departure from stations, is made known at 
 all points by a telegraphic device, which is automatically ope- 
 rated by the cars in passing. 
 
 A bill is now before the New York Legislature to authorize 
 the construction of this work, which, it is alleged, can be eco- 
 nomically and expeditiously executed. 
 
12 
 
 The bill has been favorably considered and reported by the 
 Senate Committee, and meets with no opposition except on the 
 part of the property owners and occupants of buildings on the 
 streets which are intended to be occupied b} T the works. These 
 people object to the erection of this ornamental structure or 
 big bridge, as they term it, in front of their doors, and claim 
 that the presence of the tubes would be equivalent to the roof- 
 ing over the street. 
 
 They will consent to nothing that cuts off their light and 
 air. 
 
 Everybody in New York wants rapid transit, but, strange to 
 say, the moment that anybody sets to work with a definite plan 
 for its realization, they are vigorously opposed and the work 
 prevented.' ' 
 
 Now, it will be a matter of proof that this was the plan, this 
 the subject, this the model, this the pretension, and this 
 scientific and intelligent exposition of the. limit of its inter- 
 ference with private property, that touched nothing but light 
 and air, and did not interfere with traffic, and had no terrors 
 of noise or rattle of steam, but was to be the silent transfer, as 
 by the magic of a pneumatic power through these air-tight 
 cylinders, obstructing only light and air. 
 
 Now, as the method upon which the corporation has entered 
 upon the streets and was proceeding to lay the foundation and 
 build the superstructure is wholly discordant both with respect 
 to the limitation " from curb to curb," separation longitudi- 
 nally of its posts and partitions, openness of their enginery, 
 and the adoption of the steam motive power, with all the force, 
 and so with all the terrors and the dangers that belong to that 
 agency in a crowded city, your Honor sees at once that there 
 must be some other power and authority to justify what is 
 proposed to be done, commenced to be done, admitted to be 
 proposed to be done, and admitted to be commenced to be 
 done by this corporation. 
 
 Intermediate between the passage of these acts relating to 
 the Gilbert Elevated Railroad, and the passage of the act of 
 1875, an amendment of the Constitution took place, in which 
 the fundamental and paramount law of the State undertook to 
 deal with the subject of railroads in the street. Among the 
 subjects of legislation prohibited to the Legislature, except in 
 public laws, the 18th section includes this " granting to any 
 corporation, association or individual, the right to lay down 
 
13 
 
 railroad tracks ; granting to any corporation, association or 
 individual, any exclusive privilege, immunity or franchise 
 whatever," and then this injunction: "the Legislature shall 
 pass general laws providing for cases enumerated in this sec- 
 tion, and for all other cases which, in its judgment, may be 
 provided for by general laws." 
 
 There was then operating, by these two clauses of prohib- 
 ition and authority, a confinement of the legislative power to 
 deal with the subject of railroad tracks of any kind, only by 
 general legislation ; and if it stood only there, I should, with- 
 out fear of your Honor's dissent on examination and reflection, 
 challenge this law as a violation of this clause of the Constitu- 
 tion in the passage of a private railroad law ; if not a passage 
 of a private law by the Legislature in terms, yet on its face not 
 a general railroad law, and in its terms failing to be expressly 
 and distinctly private legislation only by making a private 
 legislative function and service to be performed by a commis- 
 sion wholly intolerable to the constitutional power of the 
 Legislature outside of this question of restriction. But the 
 clause of the Constitution proceeds with greater explicitness, 
 and in a manner that no one can fail to understand : " but no laiv, 
 private or public, local or general, shall authorize the construc- 
 tion or creation of a street railroad except upon the condition 
 that the consent of the owners of one-half the value of the property 
 bounded upon, and the consent also of the local authorities 
 having the control of that portion of the street or highway on 
 which it is proposed to construct or to build such railroad, be 
 first obtained ; or in case the consent of such property owners 
 cannot be obtained, the General Term of the Supreme Court 
 in the district in which it is proposed to be constructed may, 
 upon application, appoint three commissioners, who shall de- 
 termine, after hearing all parties interested, whether such rail- 
 way ought to be constructed, and their determination may be 
 taken in lieu of the consent of the property owners." 
 
 All this operation of a quasi judicial court, your Honor ob- 
 serves, is limited entirely to the mayor and aldermen, unk >s 
 the consent of the property owners being withheld, the Su- 
 preme Court shall, in its judgment, appoint commissioners to 
 be substituted in lieu of and for that failing requirement. 
 
 At present I am only to ask your Honor's attention to the 
 kind of structure which is sought to be authorized under the 
 Act of 1875, and I do not at present call attention to any of 
 
11 
 
 the legal provisions of the act as questionable in a constitution- 
 al point of view, or in respect to the construction that is to be 
 put upon them if they are valid, but only to the contrivance of 
 the road, as alleged in the bill and admitted in the answer, that 
 this Gilbert Elevated Railroad Company is expected to con- 
 str uct. 
 
 In the 7th article of the bill is the allegation, which is ad- 
 mitted in the answer, that they have " undertaken and intend, 
 unless prevented from doing so, to construct and operate, along 
 said Sixth avenue, between Amity street and Fifty-ninth street, 
 directly over that part of the plaintiffs railroad which runs 
 along said avenue between those streets, an ordinary elevated 
 railroad, to be worked by means of steam locomotive engines 
 instead of an application of atmospheric power, and to be sup- 
 ported on straight transverse girders instead of arched ones rest- 
 ing on iron columns, which, instead of being placed at the curb- 
 stones of said avenue, and not less than fifty feet apart, longi- 
 tudinally, are to be set in the roadway of the said avenue close 
 along and on each side of the plaintiff's said railroad, about 
 twent}^-one feet apart transversely, and about thirty-five feet 
 apart longitudinally, and which girders, instead of spanning the 
 said avenue from curb to curb, are to span only the plaintiff's 
 said railroad ; and which elevated railroad, that the said de- 
 fendants have so undertaken and intend to construct and oper- 
 ate as aforesaid, instead of being from thirty to forty feet 
 above the level of the said avenue and enclosed in iron tubes, 
 which conceal from sight the movement of cars upon the same 
 and the action of its motive power, is to be only from twelve to 
 fourteen feet above the level of the said avenue, and is to be so 
 constructed that the movement of its cars and the action of its 
 locomotives are to be plainly in sight from each side of the said 
 avenue and from the plaintiff's railroad tracks ; and for the 
 purpose of constructing such a kind of elevated railroad as the 
 defendants have so undertaken and intend to construct and 
 operate as aforesaid, instead of such tubular railway, they have 
 unlawfully entered upon the said Sixth avenue at different 
 points," etc. — they have entered upon the street, and are pro- 
 ceeding upon the street. 
 
 Now, the 8th section sets out the injury to the buildings, and 
 the 9th the mode and form of injury and interference, both in 
 the general and in the special interests of this track, and of the 
 plaintiff as proprietor of a considerable area of property abut- 
 
15 
 
 ting upon the avenue, which this method of construction intro- 
 duces, and which could not operate, would not operate, under 
 the method authorized by the Gilbert Act. 
 
 To the eye it is very apparent how great a change in the 
 public and general use of this avenue will be made by this 
 structure. If it be lawful, and by paramount authority, then 
 like any other despotic legislation that crushes private inter- 
 ests, destroys private property, it has its course, like the car of 
 Juggernaut, over the prostrate rights and the liberties of the 
 people. 
 
 I am now only considering what, indisputably, are the inter- 
 ferences which this structure will produce with regard to the 
 common interests of the public use of the streets, and with 
 regard to the direct corporate rights and interests of these 
 plaintiffs' corporation, and the abutting proprietors. See how 
 carefully the Legislature, when it had power, within the func- 
 tions of legislation and the observance of the general guaranties 
 of property by the forms of the Constitution, to authorize an 
 elevated railroad — see how carefully it proceeded ; how it lim- 
 ited the possibility of the structure, and the motive power from 
 being extended by construction, and how, besides the definite 
 geometrical restrictions in measure that it gave, it gave the 
 further restriction that it should not interfere at all with pri- 
 vate traffic and general use. Whether or no this be a useful 
 structure which induces and justifies the destruction of this 
 avenue as a public street of this city, which destroys its sur- 
 face as a line upon which houses and stores are to be built and 
 occupied, that it makes the running of this road of these plain- 
 tiffs compatibly with their just emoluments and with the public 
 service which should be performed, there can be no doubt. 
 
 Your Honor sees at once upon this model, which is accurate, 
 precisely what the form and nature of this use of this avenue, 
 as compared with its existing uses, and with what are famil- 
 iar to us in all our experience and what a change in the nature 
 of things from what a public street is, " and of right ought to 
 be," by this invention, this corporation with its pretentions 
 will effect. Here is a street that the demands of travel re- 
 quired should be sixty feet wide in its carriage-way, and the 
 sidewalks unimpeded, and never has anybody suggested that 
 the constantly swelling tide of traffic and travel built up in 
 faith upon the permanent security and the adequacy of this 
 avenue for the increasing tide of its business should call for or 
 
16 
 
 tolerate any reduction of it : and yet by this structure confess- 
 edly posts only twenty-two feet apart in this way and only 
 thirty-five feet apart in (hat way, are to be concentrated upon 
 this open passage-way of the street. Thus, lengthwise, this 
 avenue is to be divided into three narrow lanes, one of which, 
 occupied by our railroad track upon the surface, is to be twenty- 
 three feet wide and at the sides there are to be lanes each 
 seventeen feet wide, and then for the purpose of transverse 
 passage over this track of ours kept by us if the service is to 
 be continued for public needs and our private rights to be by 
 possibility accommodated to this intrusion, there are, as it were 
 posts or partitions, numerous, frequent, near one another, sep- 
 arated only by thirty-five feet. In each block between the 
 streets there will be six pairs of these posts, making six com- 
 partments in the street as well as its division into lanes. No 
 reasoning, no imagination can get rid of the principal and con- 
 clusive fact these intrusions upon the roadway of the public 
 street are interferences with it as a public street. That it is 
 no longer the street that it was before ; that it is incapable of 
 the uses that it was capable of before, and that if the structure 
 had been allowed under a claim of right without authority of 
 law, or if they had been authorized by law as mere interfer- 
 ences with the use of the street as it had heretofore been used, 
 the efficient, the permanent and the constant consequences 
 would have been that the street would be no longer a public 
 street of its dimensions. 
 
 For the purposes of this interference I now only talk of the 
 elevation of these posts, supposing that there was no structure 
 over them, no railway to be put over them. That would be in- 
 finitely less interference with the public street than they are 
 when they are completed in their design by the superstructure 
 and the attendant use. But if the posts had been there, and 
 that alone realized, is there any doubt that any person injured 
 by them, if they were put there without authority of law, would 
 have had the summary remedy of leveling them to the ground 
 and a direct personal action against whoever was responsible for 
 putting them there and against the city of New York, that, know- 
 ing of their existence, permitted them to stand, obstructions 
 to the common way? 
 
 Is not that the law of the highway ? Is not that the law of 
 the public streets ? A.nd does it need any confirmation of the 
 necessary, of the universally approved personal right to overthrow 
 
17 
 
 the structure and to obtain damages for the injuries that may 
 have occurred from its presence ? The importance of this sug- 
 gestion will appear to your Honor when you come to consider, 
 in the progress of the case if not now, some of the objections 
 that are made to the redress of all these mischiefs, if they be 
 mischiefs, by the authority of the court. 
 
 Before undertaking to point out the operation of this final 
 structure and its employment as an infringement of the ces- 
 sion of the street and its rights to the inhabitant, I want to di- 
 rect your Honor's attention to what must be now considered, 
 to wit, the necessary attendants in regard to the motive power, 
 the length and frequency of trains, the speed, the immediate 
 start and immediate arrest of this train, to answer the needs of 
 rapid transit. 
 
 Everybody is in favor, of course, of rapid transit. Nothing 
 would be more satisfactory than that perfect system of rapid 
 transit which modern civilization has never been able to obtain, 
 to wit, the opening of a carpet, seating one's self upon it and 
 wishing to be transferred to Mecca, or perhaps somewhere 
 else. That is the rapid transit of imagination and of news- 
 paper discussions. Everybody is in favor of rapid transit. 
 The annihilation of time and space is necessarily popular 
 compared with the slow impediments and vexations of any 
 present actual use. But when the efforts and attendants of 
 rapid transit are compared with this brilliant imagination, 
 of course the railroad is nowhere in comparison. But the 
 problem of rapid transit cannot be answered by mere tables and 
 schemes, by mere contracts for structure and promises for 
 the making of motive power. 
 
 The inexorable condition of rapid transit, then, through a 
 crowded city, in order to meet public expectation and justify 
 the intervention of the State by its paramount power, are to be 
 taken into account in the consideration of this scheme. The 
 apparatus which is now sensibly before your Honor's eye repre- 
 sents the general nature and the form of this structure. Let us 
 see what the motive power must be expected to accomplish if 
 it meets the requirements of the transfer of our population that 
 is expected from it. It is not a train that is to run without 
 stopping from the city of New York to some terminus beyond the 
 city. It is not to have by any possibility the methods and the 
 trial, or the standard of success, that belongs, for instance, to 
 the wonderful effort and the completed effort by which a tran- 
 2 
 
IS 
 
 sit across the continent is effected from New York to San Fran- 
 cisco, at near fifty miles an hour, by which, with infrequent 
 stoppages, this immense span of the continent in three days 
 and a half is effected. The conditions are very frequent trains, 
 very capacious trains, very powerful engines, the most power- 
 ful that the experience of the manufacture and use of this 
 motive power has ever produced ; frequent stoppages, which 
 involve, of course, great capacity of suddenly attaining a con- 
 siderable speed, and suddenly retarding it for the safety of the 
 stoppage, and that shall induce a general rate of travel. These 
 hindrances and interruptions are to be considered in regard to 
 the rapid movement of the trains. Now. these inexorable con- 
 ditions by which rapid transit (not merely as an experiment, 
 but as something which is to meet the actual requirements of 
 our population) is to be accomplished cannot be avoided. 
 What do they require ? Why, the firmest possible structure, 
 greatest possible provision against accidents or dangers, and 
 the limitation of possible accident and danger thereby incurred 
 so far as the resources and invention of man and the nature of 
 matter will permit. The frequency of trains, and their weight, 
 cannot be dispensed with. Why, this elevated railroad which 
 has been now in operation for several years up Greenwich 
 street, transfers, I am told, only about 6,000 passengers a day, 
 and this railroad of the Sixth avenue company transfers 50,000 
 every day in the year, on an average — 55,000 or 60,000 
 per day. So your Honor frill see at once what an im- 
 mense reduction of the imaginary power of the steam railroad 
 is induced by this requirement. But thai is slow, that is feeble, 
 thai is not capable of carrying at great speed and with great 
 power heavy trains of passengers. It cannot meet the demands 
 of the transfer of thirty to fifty and sixty millions of passengers 
 a year. But, as I say, this rapid transit — if it is to meet pub- 
 lic expectation and public need, must have some competency 
 to perform the great services and labor that is to be imposed 
 upon it. Now, the experience of steam transit through the 
 great city of London — tried both by underground and upon 
 elevated tracks strongly supported by mason-work, with heavy 
 and frequent trains, with repeated stopping, and carrying in the 
 aggregate great numbers of people — is that they can be accom- 
 modated upon suitable structures ; but they are structures that 
 contain as a necessary and fundamental basis of their success, 
 the firmest beds and the absolute exclusions of all interrup- 
 
19 
 
 lions. And I am told that the immense demand of power in 
 the engines has been such as would have been adequately 
 served by no contrivance of a road-bed that was not of the 
 firmest kind, and that was not in the very rail itself of the 
 firmest texture that it is in the power of the art of working iron 
 to produce in the form of steel. That eugines of 30 tons are 
 necessary to combine the immense power that, on a sudden 
 start, shall attain rapid speed, and then after a sudden stop 
 shall admit of a resumption of speed ; and that the success 
 of underground railroads there is found in the firmness of the 
 road-bed and its seclusion, and in the use and employment of 
 these immense engines that, with stoppages at intervals of half 
 a mile, can attain an intermediate speed of 30 miles an hour. 
 They cannot make up that average because the slow accelera- 
 tion of speed at the start reduces it ; but they must get some- 
 where, during some part of their course, rapidity, or else these 
 conditions of stopping and starting will prevent its being a 
 rapid transit. Now, we are not to take a road as an imaginary 
 road, and discuss, before your Honor, the question whether the 
 road as operated for the purpose of rapid transit is or is not 
 compatible with* our use of the surface track — with the public 
 use of these side lanes, or with the occupancy of the houses on 
 the sides of the street which will be affected by the noise and 
 tremor that must attend the constant presence of this pow- 
 erful enginery in operation. But we are to judge of whether 
 it is or it is not compatible with the trust use of the streets of 
 the city of New York, as they are and have been and ought 
 to be used ; and the sole title of which is that vested 
 in the city. Now, these cars of our road (which are certain- 
 ly not too capacious and are not too numerous for the 
 public need, as your Honor knows) reach in their extension 
 just about from one post to another. The accurate measure- 
 ment, I am told, shows that the cars are 25 feet, and the horses 
 are 10 feet, which is 35 feet. The cars are accurate in 
 dimensions ; the horses, perhaps, are not, and the frequency 
 with which the cars run both ways your Honor has every day 
 observed. You can see, then, how much this middle track has 
 taken from the public use, not by our use, but by its beiug ex- 
 cluded from being traversed by the public, except at right lines 
 between these posts. Then your Honor can see how ordinary 
 vehicles, trucks, drays and heavy wagons, with heavy weights 
 for their loads, are to be impeded — unquestionably impeded in 
 
20 
 
 crossing this street. Your Honor will see how every cross 
 street is divided here by the posts — necessarily divided. The 
 requirement of the structure is that it shall be in the middle of 
 each road, and not otherwise ; and, then, here is an illustration 
 of what certainly is a very important subject of interest to the 
 people of this city, not only to those that live on this avenue, 
 but that live in sections where the Fire Department needs to 
 bring its apparatus rapidly and securely to their aid. Here is 
 a truck actually and properly measured, of the length of 50' 
 feet (which is the length of the ladders of a fire company, irre- 
 spective of the team of horses), and if anybody can contrive 
 how that fire apparatus going down this street could round and 
 go down that lane, he is wiser than the ingenious and com- 
 petent mathematicians who have made this calculation. Even 
 if the horses are as tractable and docile as our learned friends 
 would have us believe they are, I submit to your Honor that 
 it would scarcely be possible to get that truck clown that street 
 in that way. A direct crossing is impossible ; if there was a 
 fire on that side of the avenue and there was need for the fire 
 apparatus, the only way it could get round would be to go 
 down to the Battery and come up on the other side. If there 
 was a fire on this side the Fire Department could get along 
 possibly, if the horses were tractable and the apparatus was 
 not smashed before it got to the fire. And yet, in the most 
 soothing manner in the world, this structure is spoken of as 
 only an interruption while it is being completed, and that after- 
 wards all things will be as smooth and easy and open and man- 
 ageable and fnjoyable as they were before it was commenced. 
 Now, I come, if your Honor please, up to the silent and stub- 
 born interference of this apparatus with, — and — its — impres- 
 sion — upon, the proprietary occupation — of the side of the 
 streets, upon the use of the streets in these lanes on each side, 
 and upon the use of this horse railroad track of our company, 
 and on the passage of carriages and drays, and all the manifold 
 forms of traffic in this great community, while these trains are 
 moving. If they are to carry the travel that they promise, if 
 they are to relieve the distress about which so much complaint 
 is made, they are to have very frequent trains, and they are to 
 have very heavy trains — for both frequent trains and heavy 
 trains must combine to carry the mass of population. If they 
 make them less frequent they must be more heavy ; if they 
 make them more heavy, then they are not capable of rapid 
 
21 
 
 transit, because there is not power enough to move them or 
 power enough to stop them ; and, so, you must have a limit 
 reached both in respect to length of the trains and to their 
 speed. That is the best result from those two factors for the 
 most rapid possible transit of the largest number of people. 
 Now, if your Honor please, the engines that are to be capable 
 of this immense demand upon their strength must have open 
 throats ; they must have smoke and fire and noise constant as 
 ave the moments of the day. There is nothing can be devised 
 to do away with all the impressions made by steam trains of 
 -cars going at great speed through a great city. And when we 
 are considering whether or no injury is threatened or injury 
 is effected, and so determining whether it is within the use of 
 the street for the purpose that it has been used before, we are 
 not for a moment to limit ourselves to this dead structure, but 
 to this structure as a part of, and justifiably only as a_p«r£of, 
 and deemed only as a part of, this most active and most con- 
 stant enginery of motive power. Well, now, our bill has suffi- 
 ciently set forth what is at once visible to the eye, or what the 
 least reflection brings to the mind, that the population we ara 
 now accommodating by our cars cannot, with safety to them- 
 selves, seek this mode of transit ; if it be necessary to add to the 
 present methods — always inadequate, no matter what additions 
 shall be made to them, for the transfer of people up and 
 down this island — why add it in a way that will be an 
 addition, and not necessarily a greater subtraction from 
 the present useful and improved methods of traffic and 
 travel. These cars pass one another, being restricted 
 perhaps as to the distance between the tracks, so that 
 as a matter of rule passengers are not allowed to get off from 
 the cars when they stop, on the side of the car next to the 
 parallel track, on account of the danger and the exposure. 
 And if I am not mistaken, this court has held judicially in a 
 case seeking redress for injury, that it is carelessness on the 
 part of the passenger to get off from one of these cars on the 
 inner track, and that it is contributory negligence on his part 
 that prevents a recovery for injury from the collision or 
 wounds that attend his experiment. Now, if it is said that 
 we should not complain of haviug posts set on the outside of 
 our track that will make necessarily the same danger on the out- 
 side of our track that exists on the inside because we have that 
 danger on the inside, and therefore it is no harm for us to 
 
22 
 
 have it on the outside also. Well, that would be like saying- 
 that if the occupant of a house ran the risk of breaking his 
 neck by means of his back-door, and had been obliged to close 
 it up, that therefore he ought not to object to having a pitfall 
 dug in front of his front door, because he was always exposed 
 to the danger at the other escape. It is because of the nec- 
 essary limitation in our occupation of this street that brings 
 onr tracks so near together and that makes it dangerous by 
 the regular passage of our cars, to use that mode of exit from 
 the cars, that this obstruction, creating the same and greater 
 danger on this side of our track, becomes absolutely intoler- 
 able. It is closing up the use of our mode of traffic in pas- 
 sengers, both for our own emolument and for the public use, 
 by such a constriction of circumstances as makes it dangerous 
 of necessity. Now, that being so, you see at once that the 
 occupation of the sides of this street, for the purposes which 
 require the resort of customers for trade and of the enjoyment 
 of domestic homes, is all gone the moment that this enginery 
 is set at work. But, when I call your Honor's attention to 
 the other requirement of rapid transit, to wit, reasonable safety, 
 you will see that it is utterly incompatible with this structure. 
 Why, if your Honor please, no structure is firm that h not 
 supported by the solid earth, and no structure that is not sup- 
 ported by the solid earth and resting upon it, is at all com- 
 patible with the use of a powerful enginery and the jar of 
 constant traffic. They say there is a condition for the test 
 and for the measurement somewhere of the supporting power 
 of this track, which is to be 2,000 pounds to the foot. But, 
 what is the supporting power of the structure if the immense 
 weight is enhanced by the constant momentum of the rapid 
 hammering of the engine? How can these structures exist ? 
 I speak now not so definitely of the dangers to those that use 
 them, but of the danger to the people of the city in the midst 
 of whom they are used : and the danger to our cars : and the 
 danger to our horses : and the danger to the traffic in these 
 narrow lanes and on these sidewalks : and of the danger to 
 these buildings. Who is to give a guaranty against the 
 danger that is liable to arise from railroad traffic under 
 circumstances that make it impossible to observe the precau- 
 tions and moderations that always attend a temporary use of 
 the trestle work on a railroad ? Why, neither your Honor, nor 
 any of the rest of us, has ever traveled upon a steam railroad 
 
k 23 
 
 having, as a part of its structure, a trestle, that he did Lot find 
 that the engine in approaching the trestle work slackened its 
 speed, for the hammering of the engine would destroy the 
 framework over which it passed. And there never is a 
 moment from the time the passenger-car reaches the trestle 
 work until it leaves it, that every passenger does not consider 
 it a temporary danger, tolerable and tolerated only because it 
 is temporary, and only because those precautions are taken 
 that makes even an imagination of security possible. And, 
 are they to adopt that system ? Are they to go slow and sure 
 and quiet over this trestle work ? Why, then they lag behind 
 the street cars oeneath them : and rapid transit turns into as 
 great a caricature of what the public imagination has affixed 
 to its premises, as Dr. Franklin's description of a sleigh ride. 
 A nearer illustration of the power and service to be expected 
 lrom a steam railroad, to accomplish such a rapid transit 
 through the city, than any other, may be found in the ex- 
 perience of the railroad avenue, which brings the steam traffic 
 together of three important railroads. The whole passenger 
 traffic of the Hudson River, and New York Central Railroad, and 
 the Harlem Railroad, and the New Haven Railroad — the whole 
 transfer of passengers in a year, on these railroads, including all 
 kinds of passengers, way and through, is only about three mil- 
 lions and half. And with reference to the transportation of 
 passengers down that avenue this side of Harlem river, 
 why, there has been, perhaps, no strictly accurate 
 estimate made. Yet I am assured by competent authority that 
 an e timate of three millions would be a safe one, as the nom- 
 inal burden of the railroad passengers carried by the united 
 trains of those three railroads coming into the city through 
 Fourth avenue to Forty-second street — that that would repre- 
 sent the annual burden of the transfer of passengers down that 
 avenue. Your Honor will see that this is about 10,000 a day. 
 Now this road is to accomplish on trestle work and with a dou- 
 ble track — a transfer that is to approach somewhat at leas:, the 
 burden of one of these street railroads. Now, how much of an 
 interference with safety and with occupation did that steam 
 railroad work in the upper part of this island or such use of it 
 below Forty-second street as was tolerated down to Thirtieth 
 street. And what effect did that produce upon the occupation 
 of the abutting Jots ? Why, the population was driven away 
 from it, and kept away from it by these dangers and by these 
 
24 
 
 disturbances. Property, for occupation, was sacrificed, and the 
 region turned into a waste. And it was only when that road — 
 not up in the air, not on a trestle work, but confined in a deep 
 gully, was arched over, that people would live in the neighbor- 
 hood. And then they had to banish steam entirely from the 
 overarched tunnel, and when the excitement growing out of 
 the presence of these dangers arose, the population demanded 
 that this instrument of danger and terror should be disabled, 
 and the city was induced to contribute three millions as half of 
 the expenses of making steam transit tolerable on an avenue of 
 this city. And now, if in the case of this steam road, with the 
 advantage of a firm bed on the earth's surface, these dangers 
 were so great in the partially unpeopled and untraveled re- 
 gions traversed by these steam trains as to cause them to be 
 removed, simply to avoid collisions on the surface, your Honor 
 will see that there is not a single other danger to life, or a 
 single other disturbance of the comfort of life, that is not in- 
 tensified tenfold by mounting this enginery on stilts. The 
 danger and the solicitude about danger is increased tenfold 
 by this elevated traffic, and in all the indirect injuries to life 
 and the disturbance of its comfort. The comfort of passengers 
 both on that road and on our road, all the pleasure traffic, all 
 the stopping and all the resorts of comfort and of convenience 
 and profit, all that makes up the object of having a street and 
 having a city, is all sacrificed pro ianto to the convenience of 
 people that live out of the city, and want to get into it, or who 
 live in the city and want to get out of it. How would it be if 
 all the streets of this city and all the avenues of the city were 
 occupied by this trestle work and ravaged by the constant 
 operations of this enginery. 
 
 You would desolate the city in order to make it convenient 
 to its inhabitants. You would make it unsuitable to both for 
 resort and for occupation, in order that it might be easily ac- 
 cessible. Such is the monstrous and underlying contrivance 
 by which popular necessities and demands are set up and 
 made the means, not of public convenience, but of private 
 speculation. It will answer to make profit out of the imagina- 
 tions of men, and then leave the enjoyment of it to the benefit 
 of whom it may concern. Xow, I think I have said enough to 
 your Honor to make it quite apparent that unless some power 
 beyond the natural right of the citizen has authorized this in- 
 trusion, every citizen has a right to destroy it, and by strong 
 
25 
 
 reasons, to invoke judicial aid to suppress it. I have shown to 
 your Honor that under the Act of the Legislature of the State 
 of New York, that determines the conditions upon which it 
 should be possible to traverse these streets, there is accorded 
 to this corporation, and has been tolerated, nothing of this kind. 
 And now I proceed to consider and examine what is the imag- 
 inary support in point of law, and how it conveyed to this Gil- 
 bert Elevated Railway the authority to complete a structure of 
 this kind in the city. 
 
 It is quite apparent that if the Legislature of the State of 
 New York, after the passage of the amendment to the Constitu- 
 tion, had undertaken, under the guise of amending the charter 
 of this road, to change the structure, and the faculty of making 
 Sj sham road 14 feet high, and upon a support of this kind; by 
 posts in the middle of the street, and to permit that without 
 the consent of a majority of the property owners, or without 
 the substitute that the Constitution allowed in case of a failure 
 to obtain that consent ; that the act ivould have been void : be- 
 cause it would have been making an entirely new road from 
 the date of the new enactment and dispensing ivith the authority 
 f rom the residents which icas required. I think no court will 
 support that circumvention of a grave and well-considered con- 
 stitutional intervention to protect private rights and private 
 interests, allowing the mere shred of an existing statute to be 
 contrived, and all the powers and all the faculties and all the 
 inducements and all the conditions which rendered it possible 
 in the original enactment to be now exercised, notwithstanding 
 that Constitution. I have never found courts inclined to stick 
 at the letter of the Constitution and subvert — 1 do not say its 
 spirit, for I am not a stickler for the spirit of the Constitution, 
 as against its true meaning, or as against the meaning of its 
 language — but its plain construction and its obvious intent to 
 prevent this mischief, and its obvious purpose to stop this 
 encroachment upon the private rights of the people of this 
 city, at least where it stood when that clause of the Constitu- 
 tion was passed. I find no legislation that has undertaken to 
 amend the charter of this Gilbert Elevated Railway, and to 
 make that possible which was not possible before, and now I 
 find the sole authority in the alleged permissibility, by a con- 
 struction of a certain section of what is supposed to be a 
 general act, to accomplish what a general act could not ac- 
 complish, if it had been framed in that design. For it is 
 
26 
 
 admitted upon the pleadings that this railroad that proposes 
 to go into the Sixth avenue and erect this structure and operate 
 it, has never had the consent of a majority of the abbutting 
 proprietors, and has never had the action of the Supreme 
 Court in the substitute for that consent which is provided by 
 the statute. 
 
 Now, let us see first the act itself, and question it on its face, 
 on its constitutional^', and then on its construction as admit- 
 ting of this strange invasion, in derision of the Constitution,, 
 and of the rights of nil the owners of property, which is sought 
 to be practiced for private gain and private emolument, and is 
 to be sustained by all the learning and all the ingenuity which 
 our bar can furnish. What is it to do on its face ? It is 
 seeking to build this road without asking the consent of the 
 abutting proprietors or appealing to the Supreme Court for the 
 substitution for the consent of such owners, as is provided by 
 the statute. It is asking to do it under an act passed since 
 the constitutional clause was adopted and under an act that has 
 not undertaken in terms to do what it is here sought to be ac- 
 complished, and which would have been wholly repugnant to 
 the constitutional law. Let us see whether we are indeed such 
 sticklers for the phrases of the law. Now, my first challenge 
 of this act — and upon that theory this case is to be tried — is 
 that it is on its face non-constitutional because it does provide 
 for special charters. It is admitted, I suppose, that a law 
 creating a special charter for any set of people to lay railroad 
 tracks or have any special privileges would be unconstitutional, 
 irrespective now of the subordinate question of the conditions 
 of consent which I have spoken of. Now, your Honor will 
 need to look at this act to see what its nature is. The first 
 five sections are occupied with the system by which there may 
 come into being certain specially defined and described cor- 
 porations that may build certain specified and defined 
 railroads on certain specified and defined conditions, and 
 with the necessary powers. A greater part of the statute, 
 therefore, is occupied with what constitutes tiie statement 
 of all corporation acts that require the condemnation of 
 property, etc., and contain nothing of importance relative to 
 the question. I now have to consider the 36th section. This 
 is the section that will probably need to be considered in 
 discussing the construction of the act as supporting or author- 
 izing the proceeding that this Gilbert Elevated Railroad Com- 
 
27 
 
 pany is undertaken to begin and complete, and has no particu- 
 lar relation to the geneial question of the validity of this act 
 which I am now presenting to your Honor. 
 
 It is a matter of primary intelligence that the Legislature of 
 this State cannot devolve legislative power upon a subordinate 
 department of the State or upon the people of the State except 
 by some constitutional provision to that end. All that, in its 
 nature, belongs to legislative power is by the Constitution 
 vested in the Legislature composed of the Senate and the 
 House, and all that can ever become legislation in this State 
 must become so by the action of the Legislature, and, to be 
 valid, it must be submissive and conform to the general consti- 
 tutional requirements either in the manner of its action or in 
 respects that the Constitution requires. Now, the Legislature, 
 in respect to this subject, could only pass a general law on the 
 matter of railroads and of railroad tracks and special privileges,, 
 and whatever came from the legislative power must be thereby 
 opened to the citizens. The citizens are the subjects of the 
 law-making power. The Legislatures are the sole depositaries 
 of the law-making power. Whatever takes effect as law must 
 be complete when it leaves the Legislature. Whatever is 
 binding upon the subjects of law, the people, is complete in its 
 force when the legislation is enacted, and when the Constitution 
 says that the Legislature shall pass only general banking laws 
 or general railroad laws, or general laws on any of the manifold 
 general topics of right that may be enjoyed or franchises that 
 may be accorded, it means that when the law leaves the Legis- 
 lature there is no co-operating power, and no intermediation 
 between the governor and the governed, but the law has been 
 laid down which the people in their general and individual 
 rights equally are to find a place for themselves under, in their 
 own voluntary and accorded action. This is what a general 
 law means, and the mischief is which has been perhaps too 
 much recognized (perhaps we have gone too far) that special 
 relations by governmental authority, with particular citizens, 
 shall not come to be accepted under the general action of the 
 Legislature which permits general action by the citizens in their 
 primary and individual relations. What other definition do 
 you find ? A general law on any subject must be such as 
 within the range of that subject opens by the law to the 
 citizens without their intervention an opportunity to avail them- 
 selves of it. In other words, to come under the law by their 
 
28 
 
 rights as citizens, accorded by the law. Now, there being a 
 constitutional clause which prohibits the Legislature from giv- 
 ing a special charter with special clauses with deliberate and 
 considered adjustments and arrangements to particular circum- 
 stances and things, and requiring that the law shall be general, 
 and not thus accommodated and adjusted to particular in- 
 stances and interests, if the Legislature should pass a general 
 law either on the subject of banking or of railroads or of 
 insurance companies, that a commission should be created, 
 that at its discretion should accord special charters on any of 
 these subjects according as upon inquiry they should find right 
 and just, would, or would not, that be a law which satisfied the 
 requirements of the Constitution that they should pass only 
 general laws. It could only be so by assuming that the Legis- 
 lature had devolved the passage of special charters upon other 
 authority and did not exercise it itself. But our Constitution 
 does not permit legislative commissions any r more than it per- 
 mits (and nobody ever claimed that it did permit legislative 
 commissions) the Legislature to leave it to the people them- 
 selves to sa}^ whether such and such a thing shall be clone. 
 
 Now, let us look at this law. What would be a special 
 charter? Where would be the designation ? To what would 
 it be applied ? Why, it would be as to how much stock it 
 should have, as to what conditions and terms, as to what kind 
 of specified modes and as to what should be the acceptance of 
 this or that application, and the power, upon scrutiny, to 
 determine whether or not it should be accepted. And now, 
 with these general remarks, let us look at this statute. The 
 general railroad act (which your honor is sufficiently familiar 
 with as with other general legislation) provides that any num- 
 ber of citizens by doing so and so, by doing what that statute 
 requiies, shall ha^e the right to do what that statute allows. It 
 is not a special accord of franchises, it is the opening of com- 
 mon rights of what before was the subject of special franchises, 
 and which under the old system could have been communicated 
 only by special authority. Now, this provides that " whenever 
 it shall appear by the application of fifty reputable household- 
 ers, etc.," that there is need in any county of a steam railway, 
 or railways, for the transportation of passengers, etc., * * 
 the Board of Supervisors of said county may appoint five 
 commissioners, who shall be residents of the said county, and 
 who shall have full power and authority to do and provide all 
 
29 
 
 that they are hereinafter directed to do and provide,'' and then 
 is designated the functions which devolve upon them : They 
 are to give bonds ; they are to meet. Now, what are they to 
 do: "Said commissioners shall, within thirty days after such 
 organization, determine upon the necessity of such steam rail- 
 way or railways," that is a specified steam railway or railways, 
 " and if they find such railway or railways to be necessary in 
 such county," there is the function of determining whether a 
 special road in a special place for a special need and for a 
 special purpose shall or shall not by governmental power 
 come into exercise and play. And what is that but a Legislature 
 passing a special charter '? What else is it but a Legislature 
 saying that in such and such a place, and of such a length, and 
 for such time, there shall be a railroad built. And now this 
 generality is satisfied by devolving upon a governmental com- 
 mission the power of a Legislature to make a special charter. 
 Then it says they are to " fix and determine the route or 
 routes, " that is, to have 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, " except 
 certain streets of this city, and certain other places." Xow, 
 look at the general railroad act. It is no longer a 
 special right, it is no longer a special franchise ; it 
 is made a common right of the people of this State 
 to build railroads, the same as it is to sell groceries. That is 
 what is meant by a general law. It is the right to do what is 
 permitted on the conditions that are named by the Legislature, 
 and which is made a matter of general and common right. 
 
 The 4th section proceeds to repeat the constitutional re- 
 quirements of the consent of the proprietors on the road, or the 
 action of the Supreme Court in lieu of such consent. 
 
 The 5th section provides that the said commissioners having 
 by such public notice as they may deem most proper and 
 effective under such conditions, and with such inducements as 
 to them may seem most expedient" (all a matter of government- 
 al power tvholly in their discretion) invited the submission of 
 plans for the construction and operation of such railway or 
 railways, the said commissioners shall met t at a place and 
 decide upon the plan or plans for the construction of the 
 particular road that they have fixed upon and in the locations 
 determined by them. What more could there be in a special 
 legislative charter than that very thing, determining whether there 
 
30 
 
 shall be a particular road, determining the special conditions on 
 which people should be allowed to build that very road, in that 
 very place. 
 
 Where, is theioisdom of the great lawyers of the Legislature that, 
 though they could circumvent the will of the people of this 
 State, and avoid making a private charter by giviDg five men 
 the means and the power of making private charters as they 
 saw fit ? The 6th section goes on to provide that the said 
 commissioners shall, within the like period of ninety days, fix 
 and determine the time within which such railway or railways 
 shall be constructed and ready for operation together with the 
 maximum rates to be paid for transportation and conveyance 
 over such railway or railways, and the hours during which 
 special cars or trains shall be run at reduced rates of fare. They 
 shall also fix and determine the amount of capital stock of the 
 company to be formed for the purpose of constructing, main- 
 taining and operating such railway or railways ; and the 
 number of shares into which such capital stock shall be divided, 
 and the percentage thereof to be paid in cash on subscribing 
 for such shares. What would there be in a special charter 
 passed by the Legislature, but this very thing that I have here 
 indicated, to wit : that on certain terms, not general, not common, 
 not prescribed by a general Imv, a particular railroad, in a 
 particular place, of ^particular amount of capital, of ^particular 
 number of shares of stock, of a particular rate of speed, of 
 particular fares, shall come into existence by a vote of five com- 
 missioners. Do they execute, in a mere ministerial relation, the 
 free and declared will of the Legislature ? No ; the free and 
 declared will of the Legislature is that the commissioners shall 
 fix all these things to satisfy themselves. There was no 
 measure or scope or degree of legislative discretion that 
 before this constitutional amendment resided in the Legislature, 
 that is not by this act conveyed to five commissioners. Is it, 
 then, set forth a general law that the citizens of this State find 
 openings to them the right as citizens to do this, that and the 
 other thing ? No ; nothing but a power to an intermediate 
 sovereignty to lay down special laws for particular sections. 
 Now, if the constitutional amendment can admit of as great 
 freedom as if it did not exist ; all you have that makes the state 
 of things worse than if you had no constitution at all is, that 
 you must violate common sense and common justice to get rid of the 
 Constitution. 
 
The 7th section provides that the said commissioDers shall 
 prepare appropriate articles of association. 
 
 What under heaven is that Imtdrawing a special charter ? Is it 
 citizens making their charter within the range that the Legisla- 
 ture has allowed by a general charter ? Not at all ; its govern- 
 mental faculty and function is to draw a special charter which 
 the Legislature could not possibly do, "in which said articles 
 of association shall be set forth and embodied as component 
 parts thereof, the several conditions, requirements and parti- 
 culars by said commissioners determined, pursuant to sections 
 4, 5 and 6 of this act, and which further shall provide for the 
 release and forfeiture." One would think that the terms upon 
 which this special charter was to be forfeited in a particular 
 ■case was a matter specially arranged for the accommodation 
 of that case and not subordinating them to a common right. 
 
 Then it goes on to say that they shall forfeit 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. Then they shall open books ; 
 then there is the election of directors, and then a certificate is 
 given, and then the special corporation is made. Did it make 
 itself under a general law? I think not. Did the Legislature 
 make it ? They could not. That is the only reason. What they 
 did, they did through the Legislature ; but it was not govern- 
 mental action. And if there w T as any virtue in what the com- 
 missioners did in the way of governmental authority or in the 
 exercise of governmental discretion, they did it because the 
 Legislature could do it. If the Legislature could not have done 
 it, it conld not depute the power to the commissioners. You 
 cannot have a ministerial relation intervening between the de- 
 clared power given by the Legislature and the people, to 
 whom the power is given by special charter or by general law ; 
 but this framework is a devolution upon this commission of five 
 of the whole question whether there shall be a railroad, where 
 it shall be, what it shall be, how it shall be restricted, how it 
 shall be governed, what its stock shall be, what the expression 
 of its charter shall be, and from that and the authentications 
 of that action springs into existence a charter made by govern- 
 ment and not by the corporators, and not by common right. I 
 am sure, if your Honor please (w T ith great respect to the inge- 
 nious minds that can contrive this legislation) that it would 
 not have been in that shape if that clause of the Constitution 
 
32 
 
 had not been made. Nobody ever saw such a monstrous de- 
 sertion of legislative responsibility until this fundamental clause 
 required that there should be no special legislation on the sub- 
 ject. And they satisfied themselves, therefore, with giving a 
 general legislative partition of powers — not of the right of citi- 
 zens to conform to a general law, but of legislative power to 
 certain commissioners appointed by government and for gov- 
 ernment, to determine, arrange, accord and express all that 
 makes up the private privileges and the private charter of a 
 particular corporation. You would have as many different 
 rights in these corporations as you have commissioners. Now 
 one thing, and now another. One thing in Buffalo, and another 
 thing in New York ; one thing in Troy, and another in John 
 Brown s Tract. Under a generality you have found out the 
 foundations of making corporations, and have broken down your 
 Constitution, if this can stand as a power that it is lawful for 
 the Legislature to devolve. 
 
 Another general constitutional objection is, that in the 
 operation of this act (it is created by valid enactment so far as 
 the question is between the State and the right of the Gilbert 
 Elevated Railroad to put its road over this road of ours) that 
 it is an act of the Legislature which violates the contract made 
 between the city of New York and the Sixth Avenue Railroad 
 Company, and that there is no reservation of authority any- 
 where that justifies such a violation. What I have said in ex- 
 plaining the practical and material features of this structure in 
 its operation will enable your Honor to see whether or no it is 
 a violation of the contract which is accorded to this company 
 by the instrument executed between the city and this company 
 plaintiffs, and sanctioned by the city. Supposing there were 
 no execution of a power reserved to alter the charter of the 
 railroad company running from Albany to Buffalo, and it was a 
 contract protected by the Constitution of the United States (under 
 the Dartmouth College case), would it or not be a violation of 
 that contract to allow, fourteen feet above that road and on its 
 bed, the building of a trestle work and the running of a rail- 
 road on its track, over its bridges, on the ground that it did not 
 interfere with the surface railroad, and only used what had 
 been accorded to the surface railroad for surface purposes, to 
 prop up an air-line railroad fourteen feet above the track? I think 
 that would be a violation of the Constitution, and it will be for 
 our learned friends to point out why it is not a violation of 
 
33 
 
 the contract of the city with us, for the State to authorize such 
 a transaction as this. 
 
 I now come to the consideration of the construction of this 
 act. Supposing it to be valid under the Constitution, and sup- 
 posing that certain powers and rights may be communicated 
 by the action of this Board of Commissioners to railroad cor- 
 porations that may spring into existence by virtue of that act, 
 and derive their powers under it, and have no limitation, ex- 
 cept what is accorded to the discretion of the legislative board ; 
 supposing all that, how does the Gilbert Elevated Railroad 
 Company come within the movement of this general statute, 
 so as to get, not only a road, but to get a road free from all 
 the substantial guarantees of private right and of public con- 
 venience that are affixed upon that statute by the Legis- 
 lature. If this act had in view objects which, in good faith 
 and in a public sense, could be desirably accomplished to 
 suit the public need, in the city of New York, of a railroad 
 that should have the energy and the rapidity of motion for its 
 trains that would make the rapid transit and transfer of great 
 masses of people to serve the public need, the place where it 
 should be, and the scheme on which it should be possible and 
 available and safe, were all left open to the discretion of the 
 public and to public discussion ; with no conditions, except 
 what would accomplish a structure operated consistently with 
 the existence and the preservation of the necessary interests 
 of the city of New York, and would also meet the occasion of 
 its population for rapid transfer, back and foith. Now, undoubt- 
 edly, the Legislature knew that this immense problem could 
 not be solved by make-shift means, nor without great cost, and 
 the question was whether it could be done at all, or done for a 
 cost that, in the practical eyes of the people, was equivalent 
 to its permitting it to be done at all. But, the question was not 
 whether something could be done that was not rapid transit, 
 and was not safe, and was not consistent with common right, 
 and was not consistent with the main objects by which popu- 
 lation was concentrated here. That was not the proposition. 
 But, it would cost a great deal of money ; and there was a 
 provision for rapid transit from Forty-second street upward, in 
 a safe, firm, secure way, which was accomplished at great 
 public cost, as well as the expenditure of private capital. 
 There needed, only, to supply the space between the business 
 centres of the city and this railway. The conditions, necessa- 
 
34 
 
 rily and primarily, were that it should be straight ; that it 
 should be safe ; that it should be short ; and that it should be 
 consistent with the rights, and should meet the demands, of the 
 people — the paramount and controlling lawgivers of the whole 
 transaction. Why, the reports of the commissioners say that 
 they were shut up ; shut up to what ? Why ; shut up to mak- 
 ing such a charter, and giving such a road as these people de- 
 manded and prescribed for themselves. And now, how is it 
 with the scheme which might have given us rapid transit by 
 taking an avenue, and at a sunken or elevated grade, shall be 
 safe, firm and strong, and free from injury to anybody else, and 
 at an expense that that system would involve. Hoiv is it 
 avoided ? It would cost $5,000,000 to build such a road, we 
 are told, from the City Hall to Forty-second street, and then, 
 it would be done for all time, and then, alt the conflicting interests, 
 and the general desires ivould be satisfied, so far as the inexorable 
 limits of human affairs will permit. But, the men that build 
 that road would have to take the $5,000,000 out of their own 
 pocket. Now, it is demonstrable by the experience of elevated 
 railroads, in their limited interference with partially unimport- 
 ant property, and population, in the sense I am alluding to 
 now, that they degrade property from 25 to 30 per cent., 50 per 
 cent., 60 per cent. Isn't that taking somebody's property to build 
 the rapid transit rood. It is not taking property from the men 
 who build it and get the emoluments, but it is talcing the property 
 of others, and so this very avenue, growing constantly in value, 
 and placed almost at the head of the shopping avenues of this 
 city, is really to suffer the degradation of property that cannot 
 be put lower than $25,000,000 or $30,000,000, taken out of the 
 pockets of our citizens, and not accomplishing a public service, 
 by a special charter or legislation. Why, if your Honor please, 
 all these habitations of men, after this road is built, will pre- 
 sent the same relative aspect that the naked boughs and empty 
 birds' nests in winter do, to the foliage and the soul of sum- 
 mer ; all threatened by this monstrous invasion of private 
 rights. 
 
 Now, " what did they do ?" They laid out a route that, in 
 their discretion, they thought would meet the exigencies of the 
 public, and which would be short and straight, and safe and 
 suitable. What was that route ? 
 
 You must assume , that they laid out a route. They could 
 not lay out a route that was prohibited by the act, I suppose. 
 
35 
 
 I should think they could not ; and what does the act say as 
 to their power in laying out a route? Section 4. "The Com- 
 missioners shall have exclusive power to locate the route or 
 routes, except between Third avenue and Sixth avenue, or 
 across any of the public parks — that is, all over the city of 
 New York, except in Broadway i and on Fifth avenue, below 
 Fifty -ninth street, and Fourth avenue in Forty-second street, 
 in the city of New York. Then- powers were taken out, from 
 laying out a route that crossed Broadway ; that they could not 
 clo. This route crosses Broadway. How will they get out of it? 
 If they say that they laid out a route, and this is the route, 
 it is void. If they did not lay out a route, there is no power to 
 build any road upon it. There is a provision, in the 36th sec- 
 tion, to which I now ask your Honor's attention. When these 
 routes were laid out under the law, something might be found 
 to exist in respect of right and privilege under previous legis- 
 lation. " Whenever a route or routes determined upon by said 
 commissioners coincide with the route or routes covered by the 
 charter of an existing corporation, formed for the purpose pro- 
 vided for by this act, providing such corporation, &c., such cor- 
 poration shall have a " like power" to construct and operate 
 such railroad or railroads, upon the fulfillment of the require- 
 ments and conditions imposed by such commissioners as a 
 corporation especially formed under this act." Finally, the 
 Legislature concludes, giving them power to go upon any route 
 or routes with which they may connect, that is. on their own 
 routes with these new routes that are laid out, " but subject 
 to the requirements as to the connection and conditions, and 
 section 18th of article 3d of the Constitution of this State." 
 
 Now, the point is, that a route laid out lawfully, and opened 
 to the corporation specially founded under this act, whenever 
 that by the power of this commission has been brought into 
 existence, then if there is another road, another corporation 
 that has a route coincident with that lawful route, it shall use 
 that lawful route just as these commissioners might have 
 authorized a special corporation. Then, what was the route 
 that this commission elects, and that this road, by coinciding 
 with it, is allowed to use ? It was a route that crossed Broad- 
 way in two places. Could a specially formed corporation, 
 coming into existence by power of those commissioners, have 
 built on a route that crossed Broadway ? It is excepted from 
 the very grantina pmver of the discretion and authority. The 
 
36 
 
 scope and area of legislative faculties accorded to these com- 
 missioners " excepts" that they shall not be able to authorize 
 a route over, under, through or across Broadway. Now, we have 
 another of those interesting conditions which a corporation 
 that has not any poiuer of its own can come into. It can repeal the 
 requirements of getting consent from the landowners, repeal 
 the condition of the Supreme Court's inspection ; repeal the ex- 
 ception of crossing Broadway, which all the power conferred by 
 that law as an original creation, could not have vested in any- 
 body ; and all that grows out of their being under a coincidence 
 found between a route that had been given to somebody else, 
 and a route in the discretion of these commissioners allowed 
 to be built under this act. Had these commissioners laid out 
 a route "over" and "across" Broadway, then it is void; a 
 coincidence with a void route would not accomplish a result of 
 coincidence with a route that was legal. So it seems that this 
 route could not be " coincident with" because it could not exist 
 in point of law, and on that ground the justification set up by 
 authority under this act to build this road in this route — for it 
 is only as this route, and as a part of this route, and as an ac- 
 complishment of rapid transit to the complete extent and course 
 of the projected road, that it is justified at all, or can come in by 
 virtue of this act ; nor can this Gilbert road get itself into a 
 position to proceed with the inquiry whether it can build the 
 kind of road that it is proposed to build under the provision of 
 the 36th section which I am considering; bat it could not build 
 upon this route at all by any authority of any commission, be- 
 cause this route could not exist under thai statute. 
 
 Now, we come to a more intimate consideration of the 36th 
 section. 
 
 Supposing the route to be a lawful one, and therefore the 
 predicament of coincidence being established in favor of this 
 Gilbert road, it is within the power of commission to build a 
 road. What kind of a road could it build ? Its charter road, 
 it is not attempting to build ; it is not pretending to build. That 
 I have already sufficiently explained. Now, the Legislature 
 having never allowed it to alter its kind of road under the clause 
 which is said to give, on a coincidence of route, a right to a 
 chartered road, if it could build a road that its charter permit- 
 ted on that route, can they, by coinciding with the route, build 
 a road different from what their charter allows ? Is it a modi- 
 fication of their charter ? Is it changing their faculty from 
 
8? 
 
 being a pneumatic road on arches that span the roadway from 
 curb to curb and are fifty feet apart ? Under that coinciding 
 of route is this a change of their charter so that they get cor- 
 porate functions to do what they could not do ? No. Now, in 
 the 36th sectiodkonly these existing corporate routes could dis- 
 play theinselvefpn a route subject to such conditions of dis- 
 playing themselves wifchin that charter as these commissioners 
 should invoke. Was there accorded to these commissioners the 
 legislative poicer of altering the charter of the Gilbert road at the 
 commissioners' discretion ? Then it was void. No ; it was 
 simple and straightforward as can be. You may find that there 
 are existing chartered possibilities of building a road according 
 to the charter or routes that you are taking up for your espe- 
 cially authorized railways. You can let them in to build their 
 chartered road on such conditions as you find suitable. Not to 
 build a road such as you enacted for them, and enabled them to 
 build, and their charter has not enabled them to build. Not by 
 any means. Why could not these commissioners, on this co- 
 incident route, have allowed these people to build this pneu- 
 matic road ? The people, I suppose, do not want them to build 
 it because it was as harmless a road, after the Legislature had 
 permitted it to be constructed, as it was while it reposed in the 
 inventive mind of the projector. Nobody had ever evinced a 
 desire to pay a dollar of good money for a pneumatic road 40 
 feet in the air. Then the Gilbert road could not build a rail- 
 road here ; and then the commissioners undertook to say, you 
 cannot build your railroad here, but we will let you build a 
 road that becomes possible only by our legislative discretion, 
 and possible only by the statute of 1875, and possible only by 
 getting consent, or in lieu of it, the allowance of the Supreme 
 Court. We will permit you to build such a road as there is in- 
 ducement to build, and alter your charter to give you the power 
 to build it. 
 
 Their charter is not altered. If it is altered, who alters it ? 
 Is it not therefore a private special piece of legislation in alter- 
 ing the charter of the Gilbert Railroad Company? Where could 
 it find its place within any general law under our constitutional 
 provision which prohibited a discretion ? It cannot even be 
 repealed or modified under the existing statute now, without 
 stating the part that you repealed, and the part that you modi- 
 fied, as modified. And all this is done subservient to an una- 
 
38 
 
 credited legislative power, which transcends all the power that in 
 the Legislature possibly exists. 
 
 But, suppose they could alter the charter of the Gilbert road, 
 or that the charter of the Gilbert road is altered, so that instead 
 of a pneumatic enclosed arch-supported track, this structure 
 fourteen feet high, alone, propelled by steam, and not by pneu- 
 matic power, is justified. 
 
 What was the authority attempted to be conferred by this 
 section on a discretionary intrusion of an existing road on the 
 property, that would not be possible for other corporations 
 created here ? What does that mean ? What are the condi- 
 tions ? Of course, the condition upon which alone the newly 
 organized special corporation springs into existence under this 
 act, to do the work proposed, to wit : getting the consent of 
 the proprietors, or in lieu of it, the sanction of commissioners 
 appointed by the Supreme Court ; and yet, no word has been 
 heard of that the consent has been obtained, and they actually 
 stand here in your Honor's court, and on the pavements of that 
 great avenue of the city of New York, and claim to do what no 
 special act empowering them before the constitutional enact- 
 ment had given them the power to do ; and no special act could 
 give them the power to do after the enactment of that constitution- 
 al clause which no special law could give them the power to do, 
 and no general law could give them the poiver to do, what no gen- 
 eral law is pretending to give them power to do ; and any trans- 
 action that owes efficacy to its authority is post Jioc to its date ; 
 and this alteration of its power assuming to do what nobody of 
 authorized people, legislature or courts, can sanction for a mo- 
 ment as compatible with the public intention of the law. No 
 one pretends that it is a creation of Omnipotence. Ex nihilo nihil 
 fit, is supposed to be the limitation of means, and it is supposed 
 that if there is an affluence of power everything is created un- 
 der a miracle. Now, all this is created out of nothing, but 
 from authorities that are utterly incapable of the energy to 
 create. This piecemeal lapping of statutes is made to accom- 
 plish what no infractor of complete legislative power now in 
 existence in this State could accomplish, and accomplishes it as 
 of a date subsequent to this act of the people limiting the 
 Legislature by a special amendment and not in existence be- 
 fore. Now, if the court please, these are the general views of 
 the law, and if they find acceptance with you they dispose of 
 the subordinate amendments ; but if it reaches that stage of 
 
39 
 
 the discussion as to the recent constitutional amendment, as 
 construable to the end now sought to be accomplished under 
 its authority, then you are brought back beyond that question 
 I have adverted to of the infraction of the Constitution of the 
 United States, to the rights of citizens, of property owners, as 
 represented by this railroad in its capacity of its owning this 
 franchise and freehold in the street (as the Court of Appeals 
 has called it), and the owning of abutting property, for their 
 enjoyment, and the right of a common citizen to abate a nuis- 
 ance. You are then brought back to the construction, narrower 
 than those I have suggested, whether, under a trust title so 
 marked and described in the source of the title that it shall be 
 forever kept open to be used as " public streets are and of right 
 ought to be used," whether a structure like this, that intrudes 
 into the road-bed of the street, divides it, partitions it, obstructs 
 it, is, or is not, taking property by force of law for uses that in its 
 oivners' hands before the law it was not subject to or possible to be 
 used for. And all the legislation that has heretofore been sup- 
 ported in judicial inquiries resulting certainly to the extent of 
 authority to be involved in favor of these defendants, in the 
 case of Kerr, has simply undertaken to say, is, that when a horse 
 road, with tracks and vehicles accommodated thereto, imposed up- 
 on the surface and having the surface for traffic and transfer in 
 all respects as aliuays it was used, and " of right ought to be 
 used," it is not a violation of the trust or of the power which 
 was to be a fee when it was acquired by the prior owners by 
 cession or compensation. And every decision which has un- 
 dertaken to pass upon the question of a railroad track that 
 disturbs the surface, the grade, and deranges the general and 
 public use, or the order of its surface and grade, was a new 
 easement, and was therefore, a new trust subversive of the trust 
 and fee. Have people no rights as cestui que trusts ? Can you 
 take away property from a cestui que trust because you turn it 
 into a public benefit or devote it to charity ? Has any court 
 undertaken to state that a use of this street inconsistent (so 
 judicially held upon proofs, inspection and deliberation) with 
 the open use of streets as they have been and of right ought 
 to be kept, that that is a taking away which the Constitution 
 of the State permits from abutting proprietors, from the city 
 of New York and from public use without compensation ? Have 
 not all the adjustments of compensation and all the motives of 
 concession been measured and governed by the maintenance 
 
40 
 
 of the public street for all ? Does not a party when lie buys upon 
 the line of a street laid out, or when he concedes the soil in front 
 for a street, deal differently from what he does when he buys or 
 concedes on a strip of land that may be used for a market or a 
 slaughter home ? Certainly he does. 
 
 Now. we are to be told that no court has yet told us that 
 the immense investment of property, these lines of buildings, all 
 framed and shaped with their present arrangement, because of 
 and for the use of this open avenue and access, are now to be 
 destroyed, and all their occupation absolutely superseded by 
 an enactment that does not take away anybody's property, be- 
 cause the fee is left. 
 
 I regret, if your Honor please, to have addressed the court 
 so long, but I believe I have "placed before your Honor the gen- 
 eral views, which I submit for your consideration. 
 
I