The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-07

. any Illegal or fraudulent proceeding into which
they may be tempted or bessayed; and whom, IN
compliance with the prayer Of stockholders or
creditors, or Of any whose rights and interests
they are about to sacrifice. court Of equity
attempts, By an injunction, 70 restrain the pro
as the members Of tho Common Council defy
the mandate, and denounce the attempt as an un
warranted and unprecedented stretch of judicial
ton still remains, has this court or any court Of
equity the power TO interfere with the Legislative
discretion OF the Common Council of this city of
any other municipal corporation? And to this ques-
erection be properly limited and understood; and thus
understood, / carry the proposition much further
than the counsel who advanced it, This Court has
no right to interfere with and control the exercise
not merely Of the legislative but Of any other dis
cretionary power that the law has vested in the
Corporation 0fthe city; and hence / deem il quite
immaterial whether the resolution in favor of Jacob
Sharp and his associates be termed bylaw, q
grant, or contract, or whether the power exercised
in passing it be termed legislative, judicial or exc
cutive; for il the Corporation had the power of
granting all the extraordinary privileges which the
resolution confers, the proprety of exercising the
power, and perhaps even the form of its exer.
else, rested entirely in its discretion. Nor is this
ALL. court Of equity has no right to interfere
with and control, in any case, the exercise of
discretionary power, no matter in whom il may
dermen OF city, the directors Of bank, trustee
executor or guardian; and add that the meaning
and principle of the rule, and the limitations to
which IT subject, are in all the cases to which it
cpe Of the rule are, that the Court will not substi
tnte it's own judgment for that of the party in whom
the discretion is vested, and thus assume to itself
power which the law had given to another; and the
limitations to which it is subject, are that the dis
erection must be exercised within its proper limits
for the purposes for which it given and from the
motives, by which alone, those who gave the discre
tion intended that it's exercise should be governed
A court of equity will not interfere when the dis
erection is legally and honestly exercised-and it has
reason to believe the fact is otherwise it will
interfere whenever 1t has grounds for believing that
its interference is necessary to prevent base injus
tce or oppression and the violation of trust or the
consummati0n Of fraud. 1t will interfere-and it
is bound to interfere 1t has reason to be-
eve that those in whom the discretion is vested are
prepared illegally, wantony or c0rrupty to trample
upon rights and sacrifice interests, which they are
specially bound to watch over and protect Having
stated these principles, the discussion may be regard
ed as closed, since the application of the principles
TO the case before US, is obvious and decisive. shall
therefore content myself with referring to few Of
the authorities by which they sustained and then
proceed to apply theory to the facts of the case
The doctrine which, when stated in condensed FORM
may be extracted from the decision of Lord Edon in
the leading case Of Agar VS.. the Regents Canal Com
pany, (Coopers Eng. r. ~ is that whenever cor
p0raton IL about to exceed its powers and apply its
funds or credit to some object beyond its authority
and whenever the purpose Of the corporation if car
ried out would constitute breach Of trust court
of equity cannot refuse tonterfere and give relief by
an injunction; and his lordship said that this was
most wholesome exercise ofjurisdiction since it would
be most prejudcia to the interests Of all with whose
property the managers Of corporation might choose
to interfere, if there not jurisdiction continu
ally open and ready to exercise its powers to keep
them witkn their legitimate limits. In the case Of
the River Dan Navigation Company vs.. North Mid
land Railway Company, Il Railway Gases 1856 it was
upon the same doctrine that Lord COttenham-a
Judge scarcely inferior to Lord Eld0n in judgment,
learning and research-placed the exercise Of ju'
rsdiCtion which he declared himself not at liberty to
withhold. The case of Frewin vs.. Lewis is one Of
those upon which the counsel for the defendants
placed strong reliance, for it in this case that
Lord Cottenham dissolved an Injunction against the
Poor Law Commissioners upon the ground that its
upon the legal discretion Of those important public
functionares yet in this very case his lordshp was
careful to assert and maintain the rghtful urisdic.
ton Of his court, and said, chat when public func.
has vested in them, and are assuming power which
does not belong to the this Court no longer c0nsd
ers them as acting under their commission but treats
them, whether corporation or individuals, as per-
and he added ~ that when such persons infringe or
violate the rights Of Others, they become like all
other individuals, amenable to the jurisdiction Of
this Court by injunction" The force and applica-
OiOu VI tus NHSWiSc Will Dc July uuuerSLOOu, WneQ
we remember that the powers of the Poor Law Com
mssioners are legislative discretionary and POLITICAL
even In more extensive sense than those of our own
toney General vs.. Aspinwal e M. and G. 613,) the
Same VS.. Corporation Of York, "a NJ. and c. 3O) and
the Same vs. Mayor of Dublin, e Bligh, N. r. 3I2)
as proving that when property held by municipal
corporation is clothed with public duties or the OBJ
defined by law, there arises a trust the violation
OF which court of equity has not merely the power,
bnt is bound to prevent by an injunction. We are
now in condition to Spnswer very decisivey the
to the Corporation void upon its face from the total
want of jurisdiction in the court by which it was
issuedI And the answer is that assuredy 1t was
not If there is any ground whatever upon which this
cQat could lawfully restrain the Corporation from
making the grant which the order described; and
that there are many grounds upon which the re-
straint could be legally and Justly imposed, we deem
it no longer possible to doubt.
i. 1t may be that the Corporation has no power
whatever either to establish itself to grant to others
the privilege Of establishing railway in any of the
public streets OF the city; and whether they have or
not is question OF law, which belongs not to the
Corporation but to courts of justice to decide: and
until the decision, the exercise of the power may
and ought to be restrained.
2. 1t may be that the establishment of railway in
Broadway would operate as an injurious monopoly,
use and enjoyment, and securing them almost ex-
clusively to the grantees of the Corporation
The creation OF such monopoly would not only
be an excess of authority, but a breach of trust
which may and ought to be prevented by an injunc
ton.
8. It may be that the building Of railway in
BrOadway-from the inconvenience and dscomforts
It would create to citizens generally, and its special
injury to the inhabitants-woud be public nui-
sance. To prevent the creation of nuisance, no
matter by whom created is not only within the juris-
diction Of the Court but, upon proper allegation in
complaint. its positive duty. The mode Of relief is
an injunction.
A. 1t may be that the Common Council intended,
from motives of partiaty corruption to make the
grant to Jacob Sharp and his associates upon terms
far less beneficial than could certainly have been
obtained from Others thus defrauding the treasury
of the city, and imposing heavy and unnecessary
burthen upon its tax-paying inhabitants In such
case, to issue an injunction, forbidding the grant
Is not to interfere with legal discretion, but to pre-
vent fragrant breach of trust and the completion