mitted, and which existed as a law at that time." Hartung v. People (1860) 22 N. Y. 95, 104; Kuckler v. People (1862) 5 Park. Crim. Rep. 212; Shepherd v. People (1862) 25 N. Y. 406. In the latter case Judge Sutherland, quoting the definition by Chief Justice Marshall in Fletcher v. Peck (1810) 6 Cranch, 87, 3 L. ed. 162, that an ex post facto law is one which makes the act punishable in a manner in which it was not punishable when committed, adds the clause "or which increases the punishment with which the act was punishable when committed."

The act of 1900, chap. 625, amending § 444 of the Code of Criminal Procedure, relating to convictions for a lesser offense than that charged in the indictment, was ex post facto as to a person indicted before the amendment, and he could not be afterwards convicted of such lesser offense. People v. Cox (1901) 67 App. Div. 344, 73 N. Y. Supp. 774.

FRANCHISE.

The amendment of 1874, article 3, § 18, which, among other things, prohibited the legislature from granting any exclusive privilege or franchise, does not "prohibit a private or local bill to amend the charter of private corporation by regulating powers, rights, privileges, and franchises which it previously possessed." Re New York Elev. R. Co. (1877) 70 N. Y. 327.

Ferries. The South Ferry and Hamilton Avenue Ferry between New York and Brooklyn, having been established by the city of New York under the Cornbury charter of 1708 and subsequent grants, vested rights were thereby acquired which cannot be taken away by the legislature. Benson v. New York (1850) 10 Barb. 223. The charter granted by Governor Dongan to Albany, in 1686, included power to establish and maintain ferries. In Aikin v. Western R. Corp. (1859) 20 N. Y. 370, the court of appeals considered this provision, and while neither asserting nor denying that it conferred on the city an exclusive franchise, not subject to legislative control, cited the Albany charter of 1826, chap. 185, which, in express terms, confirmed the ferry provision in the Dongan charter, and declared that the grant should be construed to confer on the city the sole and exclusive right of establishing and maintaining ferries between Albany and Greenbush, giving to the city the same rights on both sides of the Hudson river. The court say that "if full and complete

authority over the ferries in question was not given by the Dongan charter to the city of Albany, then all the power not so given was reserved to and remained in the government, and was transferred from the colonial governors, or the Crown, to the legislature of the state." The court took occasion to observe that while the power to construe charters was not vested in the legislature, but in the courts, the act of 1826 nevertheless operated "as a grant to the city of Albany of any power which might remain in the legislature over the ferries." The Dongan charter of 1686 and the legislative charter of 1826 together conferred on the city "full, complete, and exclusive control of all the ferries within its limits, so far as the legislature could confer that power."

Fulton steamboat grant.-The legislature had power to grant an exclusive franchise to Livingston, Fulton, and others to navigate the waters of this state. Livingston V. Van Ingen (1812) 9 Johns. 506; Ogden v. Gibbons (1819) 4 Johns. Ch. 150. This subject will be considered again in notes to § 18 of this article.

Rival franchise.-The harbor masters' law of 1819, chap. 18, was held to be the grant of an office in the nature of a franchise, but a similar grant might at any time be made to others. "But, without the grant of a rival power from the same authority, individuals have no right to set up a rival office or business and assume to themselves the performance of the same public duties for the like emoluments. . . . The grant itself in the case of an office of this sort implies a prohibition against its exercise by others, unless they can show an equal authority." Tyack v. Bromley (1843) 4 Edw. Ch. 258.

The act of 1790, chap. 37, granted the right to erect and maintain for sixty years a toll bridge across the Harlem river, and prohibited, with certain exceptions, any other competing bridge or ferry. The legislature of 1832, chap. 162, authorized the erection of a railroad bridge near the toll bridge. The original franchise was held not to be exclusive, and a subsequent legislature had power to establish another bridge or a ferry at the same place. Thompson v. New York & H. R. Co. (1846) 3 Sandf. Ch. 625.

The charter of the Fort Plain Bridge Co., granted in 1827, chap. 209, prohibited another bridge or ferry within one mile of the bridge which might be erected by the company. This prohibition was repealed in April, 1857, chap. 495, and in July of the same year the defendant began the construction of a free bridge within 49 feet of the other, and without obtaining any special authority from the legislature. The rights of the parties were determined in Fort Plain

Bridge Co. v. Smith (1864) 30 N. Y. 44, where Charles River Bridge v. Warren Bridge (1837) 11 Pet. 420, 9 L. ed. 773, is cited as authority for the doctrine that "it is competent for the legislature, after granting a franchise to one person or corporation which affects the rights of the public, to grant a similar franchise to another person or corporation, the use of which shall impair or even destroy the value of the first franchise, although the right so to do may not be reserved in the first grant, unless the right so to do is expressly prohibited by the first grant." See also Oswego Falls Bridge Co. v. Fish (1846) 1 Barb. Ch. 547.

The same rule is applied in Syracuse Water Co. v. Syracuse (1889) 116 N. Y. 167, 5 L. R. A. 546, 22 N. E. 381, where it is said that "public grants are to be so strictly construed as to operate as a surrender by them of the sovereignty no farther than is expressly declared by the language employed for the purpose of their creation. The grantee takes nothing in that respect by inference. Such is deemed the legal intent of the state in imparting to its citizens or corporations powers and privileges of public character. And therefore, except so far as they are, by the terms of the grant, made exclusive, the power is reserved to grant and permit the exercise of competing and rival powers and privileges, however injurious they may be to those taken by the prior grantee."

But according to Suburban Rapid Transit Co. v. New York (1891) 128 N. Y. 510, 28 N. E. 525, the power to deprive a corporation of a franchise will not be deemed to have been exerted "in the absence of some unequivocal expression of legislative intent."

Street railroads.-Construing the street surface railway act of 1884, chap. 252, which embodied the constitutional provisions requiring the consent of the local authorities and property owners, with the additional provision that if a street railroad company had aiready constructed a railroad in a particular street, the consent of such company should be obtained before another railroad could be constructed in the same street, the court, in Re Thirty-fourth Street R. Co. (1886) 102 N. Y. 343, 7 N. E. 172, sustained the additional provision as a proper exercise of legislative power. After referring to the two constitutional provisions, already noted, the court say that "the Constitution, neither by express language nor by implication, abridges the legislative power over the subject outside of the matters particularly enumerated," and that "a constitutional provision which withdraws from the cognizance of the legislature a particular subject, or which qualifies or regulates the exercise of legisative power in respect to a particular incident of that subject, leaves

. . . The legis

all other matters and incidents under its control. lature is prohibited from granting a franchise to construct a street railroad, except upon certain specified conditions. But it is not prohibited from annexing further conditions not inconsistent therewith, and whether other conditions are necessary or proper is a matter resting in the wisdom and discretion of the legislature."

HABEAS CORPUS.

"This writ cannot be abrogated or its efficiency curtailed by legislative action. . . . It was in use before Magna Charta, and came to us as a part of our inheritance from the mother country, and exists as a part of the common law of the state. It is intended and well adapted to effect the great object secured in England by Magna Charta, and made a part of our Constitution, that no person shall be deprived of his liberty 'without due process of law.'" People ex rel. Tweed v. Liscomb (1875) 60 N. Y. 559, 19 Am. Rep. 211.

HIGHWAYS AND STREETS.

Prior to the Constitution of 1846 the legislature had no power to authorize a private road to be laid out over lands of a person without his consent. Taylor v. Porter (1843) 4 Hill, 140, 40 Am. Dec. 274

"The regulation of roads and highways, and the modes of travel and transportation thereon, is a part of the ordinary duties of the legislature. It is entirely within its control. It may say what shall be the rate of speed at which horses or vehicles may proceed, to which side parties meeting shall turn, in what vehicles and in what quantities merchandise or materials of any kind may be transported." The act of 1857, chap. 417, prohibiting on a certain highway in Dutchess county a load containing more than two tons of iron ore unless in a vehicle with a tire 6 inches in width, was sustained. Seward v. Beach (1859) 29 Barb. 239.

In Brooklyn City & N. R. Co. v. Coney Island & B. R. Co. (1861) 35 Barb. 364, the court said the legislature had power to confer the privilege of building a horse railroad in the streets of Brooklyn without the consent of the owners of the soil; such a use of the street is merely a mode of exercising the public right of travel, and not an appropriation of the property of the owners of the land requiring compensation in damages.

In Fearing v. Irwin (1874) 55 N. Y. 486, it was held that the

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legislature had power to pass an act for closing streets in the city of New York, and to effect such closing through such local officers or municipal board or organization as it should choose, and it could prescribe the particular action thereof which should work the result. The legislative control over streets in New York was also declared in People v. Kerr (1863) 27 N. Y. 188, and in Re Sackett. D. & DeG. Streets (1878) 74 N. Y. 95, where it is said that "the legislature has power to determine where and when streets shall be constructed, and their width and mode of improvement, and the courts cannot sit in review upon its action in such matters." Re Certain Streets (1878) 7 N. Y. Week. Dig. 202.

While the legislature undoubtedly had the power to authorize the village authorities to pass ordinances and by-laws (which they might enforce) limiting and restricting the use which the public might make of the streets beyond their rights of travel, it had not the power, neither had the municipal authorities, as against the adjoining owner, to confer upon any person the right to make use of the highway for any other purpose than to pass and repass, without the consent of the owner of the fee. An injunction was granted against the use as a hack stand of that portion of the street in front of plaintiff's premises, notwithstanding a village by-law authorizing such use. McCaffrey v. Smith (1886) 41 Hun, 117.

The legislature, by virtue of its general control over public streets and highways, has the power to authorize structures in the streets for the convenience of business, which, without such authority, and under the principles of the common law, would be held to be encroachments and obstructions. This power it may delegate to the governing body in a municipal corporation. Applied in the case of an awning. Hoey v. Gilroy (1891) 129 N. Y. 132, 29 N. E 85, and in the case of a bay window in Wormser v. Brown (1896) 149 N. Y. 163, 43 N. E. 524.

The legislative power over streets must be exercised subject to the constitutional rights of adjoining owners; and while it may direct the closing of a street, and may empower the municipality to discontinue its use as such, the power must not be exercised without affording an abutting owner access to his premises without making compensation, at least, unless there is provided or left for him other means of access. Egerer v. New York C. & H. R. R. Co. (1891) 130 N. Y. 108, 14 L. R. A. 381, 29 N. E. 95.

In People ex rel. Bull v. Buffalo (1900) 52 App. Div. 157, 65 N. Y. Supp. 163, affirmed in (1901) 166 N. Y. 604, 59 N. E. 1128, the court sustained as constitutional a provision in the Buffalo charter