36 N.Y.S. 744 | N.Y. Sup. Ct. | 1895
The court at special term was undoubtedly correct in its view of the question which this case presents, and the opinion of the learned justice who presided leaves but little to be said. It may be suggested, however, by way of complement thereto, that when proper emphasis is laid upon the language of the constitution there remains scarcely any opportunity' for the contention made by the appellant’s counsel. Section 18 of article 3, which defines the powers of the legislature, provides that no law shall be passed authorizing the construction or operation of a street railroad, except upon the condition that the consent of the “local authorities having the control of that portion of a street or a highway upon which it is proposed to construct or operate such railroad be first obtained.” Now, this language clearly indicates that the framers of the constitution recognized a condition of affairs, the existence of which is well known to every one at all familiar with the highway law of this state, viz. that a “portion” of a public highway is frequently territorially within one political subdivision of the state, while the burden of its control and maintenance is imposed upon another. And such is confessedly the situation which confronts
The order appealed from should be affirmed, with $10 costs and disbursements. All concur.