New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-11-28

ov n legislative Or discretionary powers Sach w.
language Of Chief Justice Marshar in Corvisn - ~ es
CORPORATION Of Georgetown sWheaon goa All NJ ~. in
dec fsoD undersiand The opinions M Tho fyei =,
the Supreme Court Of this state ia tho cases OF r. 30
byierian Church v. The Mayor, IS Cowen s1s Iss
Driiton " The Same, in which the counsel havs W,
me with the opinion Of the Court '"asaei !
II was rot denied, upon The argument by The all.
eel for the defendants that the necessary ee, - coaa
10 jacob sharpe and his associates and AZ ~, a grans
which II implies il construed according N oais,
limit aud sbrdge nc legisiatve powers of te c 70
Council and the only reply gyento the oh,s ,onmon
tLe grant although absolute IL faes vas hat
and The contract ohough not revoah ~ ee repealed,
rescirded whenever 'ne Pess, or any future Co, 20
Council may deem il oxpedient ihas 10 eOhmon
and inalionnble power The resolution a ~ solerens
Council IL was insisted, ought now 70 be- eas 'nnon
shoud have been bound to construc it. had h as
exuress PROVISION rendering It subject 10 A
condition al repes The reply, thus cven 80 sHa an
reject upon fnideiberaion, a. insufficient s.5 eea 10
tory am yet to leain that there or can he
ton from the rule, that contract which Keep
no uower 10 make and emphacaliy whore , ms
d DIVISIONS of its charter, i void In Is orgiu All - as
10 learn that a contrsot valid, when made csn ha ; It
by either Of the parties, unless the power Of rec;ns,
is expressly reserved, OF wos given By costitai,
or statutory provision, which in force when hs @
tract made. refer on this subject with fun sporeS I
tou ard assent 10 the observations Of Mr. Justice Rs
in he last oil his advisory opinions in the r,raaaara
against the Aldermen and Assistant Aldermen nrsay
legged contempt agree with him that II has certs;. Il
never been pretended supposed that legislative rrsy
valid when made and not falling within either Of Ss, |.
ce tions have stated ever be repealed sni ea,e
believe that the Corporation Of this City posses % ~
horiiy which he Legislature OF tine state would ness,
be pernittod 10 exercise cannot believe that 4. y
provision in the Constitution Of the United s;ss Z;
which forbids the passage Of any law impaidns A. Z,
obligation Of a contract Is binding upon the lea I
lotur, OF the State, but uumcdnng and Intellectual u
uninS any restraint upon the action Of Common Ca. p
Gil II is however unuaoaning and Intellectual thecm
mon Council may by subsequent ordinance, rsYoks, X
grant OF resci1d contract absolute and reyocabe oaN III
face ard hicb il is asserted, had the power 70 nd, L.
and was valid when made IT, 10y such ordinance a. III
Obligation of contract Is not impaired, the words d IA "
Constitution have meaning. u follows from tkeseA II
servations that where contract is made by Corns IS
ton w ch binds and restricts the Legislative powers Il
lie successors it IL either from the defect OF power voida
It's origin or If valid never be rescndod and e. In
cluson which adopt Il, not that the contract is ya an
reVOethle, but wholly void II
The next Common Co,ncil may repeal the grant, n
cob Share and his associates but the repeal Dur "a
operate annu valid and subsislng contract aud VI
in reality amount to more than declaration Of It's ORG
nal and abb ouio nully and this declaration unless -
taired by law, will have effect the rights OF the Pr
tics Il will otherwise be nugatory
H. The privileges granted b Jacob Sharpe and his h
socGtos plainly exclusive in their nature. The ma
feet intention OF the grant IS that they, and thoy as
shall be licensed TO upon the railroad which tr
undertake TO construct and that they shall alone be
thorized to derive poht from the transportation Of %
eenccIs Ii is rot pretended that the power OF gran4
such exclusive privilege expressly given % the u
po8tCn by its charter nor has ever been supposed IN
It's possession incident or necessary tn the eerce
the powers that given. On the contrary Il ~ seta
and undoubtod law. that by law OF municipal corpn d
ton creating onoroly is Illegal and void Davcnantn
Iirdis Moore b. SCI Nilcocks Municipal C0rpot 10
tons 90 334l and every grant Of exclusive prvss "
from the exercise of which proh Is to be derived ~
monopoly. 10
This objection was endeavorcd to be met by glyinsi
construction TO the resolution of the Common Councils Il
which find impossible TO assent, and which, am srs
fed never occurred to the minds Of the parties IN h
Common Council, il said have reserved 30 iheE L
selves the power Of making such regulations in relations
the railroad when constructed they may deem exp IA
dent and in the exercise Of their power may throw ore
the Of the road to all persons whatevero all wk
may choose thereon. Such exercise by ID
Common Council of their reserved power, ntepm
the contract OF parties, would be pervcrsion Of
language and violation Of its spirit The power Wild d
the Common Council reserve is merely that OF regulating
the of the road by the grantees themselves thg
OF making regulations which the. grantees, in Their
own exclusive Of the road, would be bound
observe. Nor at all doubt that it the clear
dertending of the parties that the resolution would socu
to the grantees ercaStrey the bonefcent of the ro
in consideration of the labor and capital expended b.
them in its actual construction and upon other tsrus
EN- Satisfied would the grant have been solicited or
eeptod Their agreement therefore, in my opinion we'd
not be violated certainly by the total exclusonS
the grantees om the occupation OF the road when mads
than by the admission of others, to share against th
wish in its anticipated profits.
Tie objection therefore that this grant of an executive
privilege void creating monopoly, has not been an
swered, and as il seems 10 me, is unanswerable.
III The 18th article of the Resolution or Ordinance |
containing the grant provides inter ALA that the grantees
shall iom themselves into Joint Stock Association L
which shall have power by the votes of majority in inter
N
citation and by laws and the lih that such Associates b
shall not be dissolved by the death act Of any asocs
but his successor in interest shall stand in bis Plaza
These provisions very plain attempt create sJc
Stock Association which without being in all respects u
corporate body shall yet be exempt from the genera r b
OF law, by which ordinary partnerships governed u
Such an Association the Legislature of the State may r.
sby create, but assuredy not the Common Council aas
City do otherwise than regard the attempt t
palpable usurpatioD of power N
". The 23d section OF the amended charter of 1919 -
not nj tn ba nv off
Council for work to be done supplies TO be f
nshed she'll be made by the appropriate heads Of deps
ments under such regulations shall be established d
ordinances of the Common Council Let IL be adnse
that The obligation of the grantees and associates to bud
the intended railroad in Broadway is not contact fof
work 10 be done for the immediate benefit OF the cofPus
ton and IT, therefore not within the legal scope Of be sec
ton that has been recited There other provisions
the grant Of the Common Council which az il seeD 20 ms
by no reasonable Interpretation can DC e1essa
that objection The 10th Article Of the Resolution mag
ing the grant, imposes IL duty upon the AsocSess p
to sweep and clean the whole Of Broadway soulh ~
Fourteenth st. every morning. and to remove the swssr
nes before certain hour on every day excepting Sunday
and this duty the Associates. by their acceptance
the Grant contracted to perform. Here there ser
tract for work to be dOne-he daily cleaning oi ~,
the Corporation tselfa contract not made By ne ns
OF the proper Department under any prior regaa
established by the Common Council and why tas e.a
tract transcendiDg the power Of the Common ocan ~
and violating the provisions Of the amended Chane' n
not to be edudged void have been, and stu am ansv
TO understand. If this contract is void as am ioreea II
declare H. there is necessary failure Of an essen. E
of the consideration upon which the Grant 10 ne ID
stes was ornded, and with the failure tne enAi'
AZ deprived Of necessary support must ia' a n
Lastly BY the s7sd section OF the m s9 Laws OF II
1872 aud by subsequent act oil feo II, r. sss II
1894 chap. SOY the Mayor Of the city su'nos eey II
the direction of the Common Council 70 hcene ~ al
tain annual sum- the owners OF hsckn'y ~ n.fuuy ID
Carriages for hreand these provisions nave q In
been construed aud in my opinion rgu' - sag 10 IN
limiting the force of the Common Coancn hsrrsl II
number OF licenses 10 De granted, and the sam cns
a. f,a IN