The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-27

THE BROADWAY RAILROAD.
Decision or Judge Duer In the Broadway
Railway Case-IDj unctlOn Against the Fro
5ect Declared Perpetual.

Decision or Judge Duer In the Broadway
Railway Case-lnj unctlOn Agalnst the Pro-
Ject Declared Perpetual.
SUPERIOR CoURr-sPEoIAL TERN.
Nov. 26.-Ihe Attorney General, Thomas e.
Dorts, and others, vs. The Mayor, &C., of Netc
! York, Jacob Sharpe, and Others.-Thls cause has
been fully heard upon the pleadings aud proofs; and
as the complaint has been amended by the intro
dncton OF the Attorney General as q prosecuting
party, am enabled aud shall now proceed to deliver
my opinion upon the several questions OF fact and
law that are necessary to be determined. i do not
construe the section 267 Of the Code as making it
! the duty OF Judge who has tried cause without
jury, to set forth in his decision in special YER
dict all the facts Of the case including those not
controveIted by the pleadings and those which, al
though controverted, he may deem MINISTERIAL. So
FAR as questions OF fact are concerned the Judge in
my opinion fulls his duty by determining the issues
which, in his judgment are material. The only issues
raised by the peadiDgs in this case, which deem
to be material, are the following First, whether
the railroad in Broadway which Jacob Sharpe and
his asst ciates, defendants in this suit claim that
they have lawful authority to construct, and
their intention to construct II constructed and regu-
latsd in the manner proposed will be public nui-
I sance? and second whether the grant made by the
Common Council to Jacob Sharpe and his associates,
OF the privilege of laying down and constructing the
corrupt motives, and must therefore be condemned
as o fraudulent breach Of trust? The affirmative
Of each Of these issues is maintained by the
plaintiffs, and from the nature of the facts
| the clearest evidence. The evidence that has
been given l am bound to say, has failed
to produce 10 my own mind that deliberate convic
ton that IN case like the present could alone justify
me in decreting perpetual injunction. Whether
the contemplated RAILROAD will win no. be public
| nuisance, is problem which ! am persuaded that
experience alone solve and assuredly, facts
have been proved that could warrant me in saying
that those members of the Common Council who
voted for the grant, which is impeached as fraudu
lent, must necessarily have acted in bad faith and
INF TVU0 nj thocon oau nhnra hauo
been examined asiwitnesses, and have stated, under
oath, the reasons by which they were influenced in
voting for the grant in question. have no right 10
reject their testimony, nor to affirm that those who
voted with them were not governed by the same con-
sideratoDs. II they were, the grant, whatever may
be my private opinion Of its expedeDcy, was made
Of justice can rightfuly interfere with or control.
The conclusion s, that had the title of the plaintiffs
to the relief which they seek depended solely upon
their maintenance Of the issues of fact raised by the
peadings must have dismissed their complaint.
proceed next to the questions of law upon the de-
termination Of which my judgment will be founded.
The resolution of the Common Council, of the 30.h
December, is not an act Of legisatiOn-n0t law in
the proper sense of the term it is the grant Of q
franchise, which, when accepted by the grantees,
became contract upon the terms and conditions
set forth in the ordinance. The contract thus
made from its nature aud terms, is entire-so that,
if any of its PROVISIONS especially those which enter
into the consideration Of the grant, are found to be
illegal, it is void as whole. The contract, thus
its face, for the reasons that follow Il The resolu
ton of the Common Council not merely grants to ia
cob Sharpe and his associates the privilege OF laying
down and constructing the rairoa which describes,
but in consideration OF their performance Of certain
stipulatons and requirements, gives them q per-
petua license for running cars for the transportation
opassengers upon the railroad to be constrncted
the contract therefore, on the part Of the corpora
ton, is not merely that the railroad may be built,
but that when built, if the grantees elect it shall
be permanent. These provisions are, in my judg.
ment, directly inconsistent with the power which
the charter gives to the Common Counc OF altering
and regulating the streets of the city at is discre
ton; SINCE if they are valid it is manifest that
regulation Of Broadway can hereafter be made, by
which the rights and privileges of the grantees
defined by the contract can be Invested or impaired
II they valid and the railroad shall be built. the
Common Council will have no power to order its
removal, or to prohibit the grantees from running
thereon for the transportation of passengers.
Broadway, 80 far as it embraces the railroad, will
be the property Of the grantees and will ongerbe
held by the Cork ration in trust for the city, Hence,
valid, the legislative power of the Common Council
ia relation to the principal and most important
thoroughfare OF the city, has ceased TO exist. The
grant the refore cannot be valid unless the Common
Council may by contract renquish forever the |
discretionary powers which the charter gives and |
requires them to exercise. No proposition of law, |
however is more evident and certain than that the
municipal corporation cannot, by contrset, or by |
any other act abrogate or abridge its own egisla'
tive or discretionary powers Such was the Ian
guage Of Chief Justice Marshall, in Gorglien '. the
Corporation Of Georgetown, Is Wheaton, 593) and |
such the decision, AZ understand the opinions of
Of the Presbyterian Church v. the Mayor, &c
Cowen, $3.50 ard Of Britton v. the same in viii: |
the counsel have furnished me with the opinion
rne hv the was r sa
that the necessary effect Of the grant 10
Jacob Sharpe and his associates and of the contract
which implies if construed according to its terms,
is to limit and abridge the legislative powers Of the
Common Council; aud the only reply given to the
objection that the grant, although absolute on its
face, may be repealed, and the contract, although
not revocable by it's terms be rescinded, whenever
the present or any future Common Council may
deem it expedent thus to exercise its inherent and
inaeDable power. The resolution Of the Common
Council, it was insisted ought now to be construed
contained on express provision rendering it subject
to future and unconditional repeal. The reply
thus given am forced to reject upon full delibera
tion as insufficient and unsatisfactory. am yet to
learn that there is or can be any exception from the
rule, that contract which q corporation has no
power to make, and enphatically where it violates
he provisions Of its charter is void in its origin;
l am yet to learn that contract, valid when made
power OF resembling it u expressly reserved, or was
given by some constitutional statutory provision
which was in force when the contract was made.
refer on this subject with full appreciation and assent
t. the observations of Mr. Justice Bosworth in the
last Of his advisory opinions in the proceedings
against the Aldermen and Assistant Aldermen for an
alieged contempt agree with him that 1t has GER
tainly never been pretended supposed that legs
latiye grant, valid when made, and not falling with
in either of the exceptions have stated can ever be
repealed and cannot believe that the corporation
OF this city possesses an authority which the Legisa
ture OF the State would never be permitted to exer
else; cannot believe that the provision in the
constitution of the United States, which for
bids tle passage Of any law imparing the
obligation OF a contract, is binding upon the
Legislature Of the State, but unmeaning and in
etlectnal imposing any restraint UPON the action
Of the Common Council. It liz, however unmeaning
and Intellectual if the Common Council may, bya SUD
sequent ordinance, revoke a gran. rescind con-
tract, absolute and irTevocable on its face, and
which, it is asserted, it had the power to make,
and was valid when made. IT. by such an erdi.
nance, the obligation Of contract is not impaired
the words Of the constitution have no meaning. II
follows, from these observations that where con-
tract IA made by a corporation, which binds and