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

stood ready to take the grant, and construct such
railway, and run cars with equal accommodations,
and charge only three cents fare, and pay license
fee Of 81 900 per annum. AS between two such pro-
positions there can be no pretence for saying that
In the exercise OF an honest discretion the former
might be preferred to the latter 1t is not debatea
Die question whether license fee Of 81 900 per
per annum is more advantageous to the city than
one OF go nor whether the interests of the commu
nifty VIII be better subserved by each citizen being
compeLed 10 pay fare OF three cents instead Of
hve Therefore, even If it can be successfully main
tanned that the Common Council had the power to
make the grant which the resolutions purport to
make, IT would be gross abuse Of power and ia
grant violation OF public duty to make the grant
it was made, instead Of making it to those who
would pay, at the least an additional million of dol
larsfor It into the public treasury and exact from the
passengers only three cents fare instead of five.
IL it nc0ntestible that such an abuse of power and
violation Of duty cannot be restrained by any Courtg
II must be conceded that this corporation is liable to
be sued, that the plaintiffs have capacity to sue and
that this Court has power to make the order in ques
ton, II any Court had power to make it, the facts
stated in this complaint It is undeniabe that these
are matters which the defendants may properly be
restrained by injunction from doing. II the facts
stated In the complaint are true the Common Coun-
Gil were intending, 30 far as they possessed power to
Of individuals the right Of appropriating to their
exclusive use, to certain extent, portion Of the
centre of the main street Of the city, and to the
same extent to deprive all other inhabitants of
the city of the right and privilege previously enjoyed
by them OF the free and common use of the whole Of
the carriage way of said street. They were about
TO make Q grant authorizing the grantees to i'm
pose charge or tax Of i've cents on every in
Others offered to construct road in the same man.
ner and charge only three cents fare and in addi-
ton TO this, pay into the treasury from fl0O 900 to
$2oo ,ooO per ann9m, or = 900 per car The part of
this TO be DONE has not been pointed out. To make
such grant under such circumstances, even il the
power exists to make any grant for the construction
Of q railway Ons the ground of its being deemed
eminent OF the body corporate" or with view to
public convenience, would be clear abuse of power
AID violation of duty. No one can pretend that it
would promote public convenience or tend to the
good rule and government of the body polite, to
compel every citizen to pay FIVE cents fare instead Of
three or that the public treasury should be permitted
to receive only $40, instead Of 81 900 per annum
for every car run. In Frewin vs.. Lewis, (4th Mylne
and Craig, 249,) the defendants were the Poor
Law Commissioners and the guardians Of the
Holborn Union, under the Poor Law amend
ment act, a, and s, viii. w., chapter 76.)
Lord Cottenham in speaking Of the jurisdiction Of
Commissioners, says that If they are assuming to
themselves power over property which the law
does not give them, this Court longer considers
them as acting under the authority Of their COM
mission, but treats them, whether they be O corpo-
ration or individuals, merely as persons dealing with
property without legal authority" "And it.
under pretence Of an authority which the law does
give them to certain extent, they 60 beyond the
rights OF Others they become, like all other indi
vduals amenabe to the jurisdiction of this Court by
Injunction Is it not clearly going beyond the line
Of any authority vested in the Common Council to
deliberately subject every inhabitant Of the city to
the necessity OF paying five cents every time he may
ride on the proposed railway, when others will
construct the road in the same manner, and with
the same accommodations, and charge only three
Ia .o.~ L.. -
ly tax the whole body of the rsopie1 Can a
two cent tax be imposed upon each citizen every
time he may pass up and down Broadway from mere
caprice, without any assgnable cause and under the
power conferred to pitch, pave, regulate, widen, or
raj against Forbes, the bill was filed in the name Of
the Attorney General, at the relation of Thos Tin
dale Treasurer, and by the relator on behalf Of
himself and all other Of the inhabitants of the county
of Bucks G.. Mylne and Craig, 1887. The court, in
Jurisdiction remarked that "In nformations and pro-
ceedings for the purpose of preventing public
muir ances, the ordinary course is for the Attorney
General TO take it ON himself to sue, representing
duals who conceive themselves aggrieved, may
come forward and ask the assistance Of the
court to prevent public nuisance from which
they have individually sustained damage !
not restrain municipal corporation as we'll from in
fribeing the public franchise in case presenting
on nquesionable abuse of power to the prejudice Of
individuals and the whole body polite, from grant
ing mere property to particular association of indi-
yiduals, where others stand ready and offer to pay
double the price for the same property. Municipal
corporations possess only such powers as are spe
ci6cally granted by the act Of incorporation, and
such as are necessary to carry into effect the powers
expressly granted. Inthe appropriation Of the funds
OF the people, they creatures of limited powers;
and when they attempt to appropriate the public
funds TO purposes not authorized by the charter or
In H..
dinance under the form of legislation their act is
without authority and void Hodges Vs. City of BuiIa
10, e DEMO-, l40); Halstead VS.. The Mayor of New
York, g CONS, ,43o) An attempt to sell to
certain persons the public wharves, piers and
slips or to lease them for a term of years
for fourth or tenth of what others offered,
and were able to pay, would be clear abuse of pow
er. and gross fraud upon the public which ought to
be restrained. If any doubt should be felt whether
such an nterposton of the Court would not be going
further than was evidenced by any reported case,
could be entertained that it would not be going
further than the prevention of fraud and the protec
ton the public required and if the action invoked
could not be rested any better principle it might
be safely placed on the ground that fraud and dam.
age, coupled together enttle the injured party to re-
lief in any court of justice" 1t is not intended to
deny the proposition, that where the exercise of dis
erection is confded to persons appointed by law to
municipal corporation, court will not attempt to
control the exercise of that discretion. But IT, under
petence Of exercising the discretionary powers thus
delegated they threaten and are about to do what is
undeniably gross abuse of power, to the injury,
and in fraud OF those for whose benefit these delegated
powers are to be exercised, and to the injury
and in fraud Of the rights Of individuals and the pub
lilo, know Of no principle or case which precludes
the interference OF the Court to prevent the threat
ened injury. [Oswcgo Falls Bridge Company vs.
Fish, Barb, oh. 547: The Attorney General vs..
Mayor, &C., of Mobile, 5 Port 279; The Attorney
General vs. the Great Northern Railway Company,
3 l.. & +. 1853; Munt VS.. Shrewsbury and Chester
Railway (Omuanv id. IA. Wafprmpu'g Edpn m
Iniunciions, vol. 2, p. 259, and hottest Assuming
but not conceding, the authority of the Common
Council to consider whether it was expedient to
grant authority to construct railway in Broadway
to be expressed-t is absurd to insist that. as be-
tween two sets of applicants, equally reputable and
able, and Offering to accept grant on the same
terms, so far az the mode and manner of construct
ing the road and of furnishing and running cars
are concerned there is any preenee for saying that
in the exercise Of an honest or INTELLIGENT Discretion