The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-01-24

against al precedent for the courts to interfere
English chancery disclaimed jurisdiction in such
cases. Frewin Vi. Lewis. Myl. & Cr., 24a; 8. G.
6imoos, &C. Where such act Ii not within the
Legislative power, il Is void on its face; and no
injunction against passing could ever be necessary
Wiggin vs.. New-York. 3 Paige, %. Mayor vs.
Messerole, &c Wend. 49,; Comst 40. The mere
laws or ordinances OF q municipal body can never
Ice grievances in themselves especially if revocable
at pleasure. II il only the execution of them that
can prejudice. Pettigrew Sherman vs. Corprr
of N Y.-Superior Court. In some respects, such
jurisdiction would be impractible. For instance,
the Mayor could give his approval by simple
inaction; and, surely, preliminary injunction or
mandamus could not be allowed commanding him
to disapprove measure. Act Of 1880, p. l27 IA.
1t is by imperative terms, made the absolute duty OF
the Council the return of act with the Mayors
objections, to record the objections publish them
and reconsider the act. Act OF 1880. p. 1T, IL
and Is. There Is no precedent of an injunction to
resolution or to restrain party from steps merely
initiatory, which in themselves vest no right
The utmost object and intent imputable to the in.
junction Was TO restrain the consummatlon OF right
title in the intended grantees or licensees II may
have pointed to. and intended to restrain the act
which was to vest in them an authority or license.
The determination resolution OF the Council had
no such effect In order to vest any power or au-
thorty under the resolution it necessary that the
licensees should tender and that the clerk, a. an ex
ecutve officer Of the corporation, should fe an agree
ment in writing to accept the conditions: How far
injunction, aiming at this result could be made
eectua without including Sharp and his associates
parties and restraining them, i Is unnecessary to
inquire. Tadesmen's Bank VS. Merit, Paige, 3O2.
johnson VS.. Harris, yesey, 257 Johns CHI r. 70.
Assent the part Of the grantee is indispensable to
every grant and appointment. On the construction
OF this injunction claimed by the plaintiffs an ndi-
vidual restrained from making grant, and requir-
ing to absent himself on business could not sign seal
and acknowledge deed, and leave it with his attor-
10 Ao1.x tvHynn
dissolution Of the injunction. The injunction does
not in this case as is sometimes done restrain at
tempts to do the act. or things leading to it. 1t is
merely the final act itself which is forbidden, the
consummated grant of authority. The Court had no
jurisdiction. on the prayer Of these plaintiffs, to re-
strain any action Of the corporation Owing to the
inconvenience which would result from an interior
ence of the judiciary with the action OF the govern
ment courts Of common law and courts or equity in
yaraby abstain from the exercise of any discretona-
ry jurisdiction over acts OF government, local or
general. People vs.. Supervisors Of Allegheny 10
Wend. 2ll. 10 Wend. GIL. 20 Pick: 70: Weaver
VS.. Desendorf, DEMO lls. Suits of this descrp-
ton lie only to protect some individual right or in
terest Of the plaintiff. Complaint, fol. l2) mere
tax payer in municipal corporation has no interest
which will entite him to sustain suit against the
corporation for mismanagement or misgoyernment0 OF
the corporate property or abuse or excess OF corpo-
rate power. The judicial remedies in such case are
quo ira,7unfo by the State for misuser of franchises
and equitable action by the State to prevent breach
of trust other misconduct, requiring some spe
cifc equitable remedy This Court should not assume
jurisdiction to restrain the passage OF the resolution
in question the ground that the corporation, in
adopting the same exceeded its authority: Such
power, when exercised subordinate bodies, has
never been directed to restrain the making of Ordi
nances, bylaws, resolutions but only to restrain
the performance of acts in execution Of them. The
objection that the ordinance in question is an execu-
tive act, presented on this motion by the plaintiffs,
poration from doing any act which, if done,
would be an operative grant, If the resolution
was not grant it was not within the prohibition.
The resolution in question was within the legisla
tive power and its adoption did not involve the per-
the principal or chief authority in a government
the other departments but the mere ministers Of
its will. The judiciary reads and expounds its will
the executive carries that will into execution It fol
power is far more comprehensive than grant Of ex.
ecutive or of judicial power 1t is the general
receptacle Of governmental authority. Federalist,
art: a. p. $50. Notes on Virginia, p: 1876. The ju-
dietary disclaims the power Of making or creating
law. 1t merely expounds, for purposes Of practical
application the written statutes of the Legislature,
and those "statues worn out by time or accident"
which are called the customary or common law OF
State. Wilson, 348 The judiciary deliberate it
is true; but not in the in which the Legislature
celebrates 1t is the deliberation of research. 1t
seeks not to establish rule of future action but only
to find what is the law. When that is ascertained
us uuUy Is slLple anu uTecl ~ mas NO discretionary
authority moral right to do otherwise than simply
to declare the rule it has ascera9ed. The executive
power is organized merely to perform the acts which
the Legislature has determined upon as wise and ex
pedient Nothing like deiberation or discretion
properly belongs to the executive power, as simple
abstract idea The legislative power is the will Of
the State; the judicial is its memory: the executive
is its hand The first creates the rule of action, the
second is the living record Of its existence the last
carries it into execution
The Court then adjourned until Saturday next, at
IL O'clock when ex-Chief Justice Bronson will reply
on the part Of the plaintiffs.