The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-25
TN. Russ Pavement IN the uowery.
SUPREME CONFECTIONERY TERM.


Opinion OF Judge Roosevelt.
Nov % DE Bo an and Thast telait offase,res and
Rpa'rs and Supplies and Rus q leid plaintiffs in
II case, Of real estate and taxpayers IN the
city OF New York behalf of themselses and all aecs
similarly situate claim relief by injunction against the
corporation Of the city, the ground Of alleged attempt
wrongfuy to appropriate the public moneys and proper
ty, thereby TO encum Der the plaintiff real estate
with undue taxation by entering into alleged unlawful
contract with Messrs Russ Reid, for paving thu
Bowsrv and other streets at expense of nearly taros
quarters of million of dollars In Dscsn Der 1852 IL
appears Messis Russ Reed presented their memorial
tothe Common Council stating that the material for the
time, and that the Bowery, Chatham street and Park
the next important tnoroughfara aest en-
the Boa d Of Assistants passed resolution directing
contract to be- made accordingly at expense o. s. so
sixty or seventy thousand immediately
upon the publication Of this proceeding, hsssrs
C Cumming Pollock, perfectly responsible men,
ner ut So so the square yard On the 22d April John
Morrell Co. oHsredt to do the work ut ;, 6Oays
and to bind themselves, with ample suretes that the
pavement (when doRe) should not be ,erior in dlra
bi,y and appearance to any laid in the city" Fne Boad
Of Aldermen landing days afterwards
both these before t6sm concurred Ia the rso
luton Of the Assistants and sent 1t to ths Mayor for his
signature The Mayor on the 9th OF May. vetoed the
measure, majority Of the members of the Board it
understood had determined not Sthstandng, that
the cont act should be made The plaintiffs there APP
Piled to me for temporary inun tion-not against the
mem individually but Against the Corporation and
its officers, and Russ Reed had previously enter
tanned similar application in the Of the Washington
Market involving it appeared 10 Lac precisely the
principles As that Injunction had lstaned, after
full argument at Special Term, and subsequently likewise
appeal at General Term saw ground for dsayiug
the like rekef Ia the present case. accordingly
the usual order to show cause with the Temporary IL
junction in ths meantime. Ny colleague. wave,
an important provision Of the Revived Statute,
bearing on the subject, had been overo ked in tue
previous decisions, instead of granting iuc
Their inur cton, dissolved the temporary ion ii.
ready issued and from that order an appeal has ossn
taken to general term and argue1 bsors all tn i've
iud Of this district 1t will b. observed by recurring
to the dates above deta led that this ton
after being introduced into Of the Boards seemingly
sumbered in the other from December to Apc Ga the
9Th Of April for we'll undcrstood matter #
public bstory, the legislature passed the headed Char
enpg the vete Of the Mayor and another eaurng
all contracts like posed, and all sales If
psry and franchises to be fret duly ADVERTISED and then
This act, before becoming law to be sub ntel
the people at election the first Tuesday ofJune In
the interval tho 10th of May the Board Of Assistants
again passed their original resolution and the Board
Of Aldermen were to do the same on the day follow.
the people was to be taken on the amended charter.
Were not these proceedings their face say nothing
Of the breach OF trust clear and palpabe fraud conteo
plated tho action of the LEGISLATURE 1T conceded
esys the Judge whose opinion is appealed FROM that
the resolution hurried through the Common Council
rs 10 foTestal the act Of 1897 In that light passing
the otter considerations suggested in the plaintiffs
BILL yiewea the tapsacton; and viewing II, ii the
Court pos the power IL been held
they did did not feel my elf at liberty leuy ap o
cation il the cast or to refuse to issue the injunction
pray was accordingly issusc on the evening Of
the 10th of May and served, the Of
the Common Council rs deberative body, but the
officers OF the corporation corporation, like any
other corppsatior And herein it Is said by the counsel
for the defendants lies the error corporation the
city of New York is not they like ady other corpora
IL jurisdiction Of the courts. Much alarm been
essed by counsel but not felt it would seem, by
the community, at the interference called of tbs
judicial with tn. executive and legislative department.
OF the government The maxim implied in this argu
ment had always supposed had reference to tbs gov
eminent OF the ate nation. IL that the
is sound one and deserving the most implicit obs
dierce But is the Common Council Of mis- city with
its power to light streets and build and regulate
markets, and byeaws and ordinances witt to dol
lar rfns les in any just of the term. the
and spirit the kim, legislative dep,rt
ment Of the government By third article of III con
stitutionwhich it is presumed is the on
suhj.ct-it declared thst the l.ei.latye power
Of this State shall be vested in Senas Assembly z
And although the Senate and Assam ,y il they sea it.
may fcm time to time, according the article,
legislation and adunistration;' yet will cor teai
that such Delegation Of authority, in sub
the Sepate and Acknowledgment II the clause
thu Common Council would pacc tina boiy csyo the
reach OF the EguAr ad nisraton Of a-tcs axsln
its action from the cnutso of article tbs can
sltution, which declares that There shall b. supreme
Court, having al uri-dictios ia la an eaatyn
Even the learned Justice whose decis is unae-
view cesigna's IS he clam pu forth by counsel
" entire immunity Tor mupieiral corporations = ia
vo'ing "a bold proposition at which HE bother Judges
"mght well have been startledn Every co-op
Taton whether for banking, insurance, rnangflctu-
ring municipal or railroad purposes has the Of
making By lass anu is vested therefore soma ne
with Legislative autkority-inda-d eyary iad s,ius,
win family, If be a. ali well governed Y sad
In he erAe To legsiate nd 70 b. ya,,eI ~ ly
with powers tf local legislation and adm ns.at
But the exercise Of lese powArs such ea.es oaray
because for convenience Of expression We call Thorn sgs
at've to be exempt from the jurisdiction of the courts
both mt law and in equity In the case of the ate
Legislature, representing 10 all its fulness under
constitution the sovereignty Of the whole ope there
is obvious fitness an equally obvious nee assity
for the exemption Does either that fitness
eesy apply to subordinate corporations whether their
byawa act upon streets upon railroads? In the
else Ct meie ely discretionary power M ons claims
right to control them rather to override their judr
ment Ent ia case Of fraud, illegslity or gross
breach o. trust exists why the courts should
not afford remedy well against corporations be they
great or small as against individuals Corporations
but trustees. They endowed with trust powers
ami sometimes also with trust property-boh the ap
the msapplcation of the one and the misuse of the
other. AID what, in this respect is the differences
between board Of aldermen and board of aay
otper drec orsY When the latter in pursuit OF thar
own invade the interests Of their none dsay
the power apd toe duty of the interfere Ana
the delegated taxing they should in effect attsmp
oappoprate every house arc lot in the city their
USE cannot be at the instance of the
sufferers tribunal known to thu law? II this we're
1t would argue in this city the existence despom
which no freeman wou: be willing to submit to lean
not assent to . proeos ion leading to such results and
60 not wonder that it shoud have been ed
even by siendly pen as DO and startling" One Of
my coleagues who admits the correctness of the decision
in the Warrington Market case when of ths ac
ton OF the same Judge in the present case says The
Justice at Chambers has jurisdiction upon the oom
plant of citizen to interfere, by Injunction with the
municipal legislation OF the city" NOV, what, would
rspectiu! ASK is the difference, in ucple between
the market contract and the pavement conract9 The
Corporation in each case were the OF the soil in
trust; in the ore for the public as tn ough-
fare in the other for the public use a. market OF Tor
the public use generally In the case the measure
com planned OF was the contemplated tearing dova of
the existing market, and Mourning heavy debt to put
up new oae; 10 the ether the contemplated tear
ing up OF the existing pavement and incurrng heavy
debt to put down In both the old na.erislS
OF condsiderabs Wholesome Il ousands Of doars-were
to De given TO the fortunate con.rac ors aui in bon
some lnndreds Of thousands Of dollars raised oc be
rsised by TAXATION ALEC to be appropriated 10 the
same object. In BOTH the corporation officers and
tracors and the CORPORATION suob-not the
of the Common Counc--were made parties d.fenian
ard in both the plaintiffs seeking relief individual
tax AID the relief prayed for and granted
the estrsining the deendaas rom making III. tireA
ensd contrscs, VII CHI TO ia the creation an