The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-06-27

complaint more definite and certain, by such speclca
tions acts, upon as constituting the
violation OF the ordinance complained Of The fourth
ground Of demurrer, to wit that the complaint does
not aver that the act Of the Legislature was passed
by vote Of twothirds Of the members Of the Legis
lature conformaby to article section Of the con-
sttuton of 1921, will be briefly disposed OF by OBJ
serving that demurrer to q declaration which
ayers the passage OF an act OF the Legislature, or
act the Court viii always presume that the act was
passed in constitutional manner. (Thomas vs.. Da-
kin, 20 Wend, o. Warner, &C., vs. Beers % ID, lO2;
Hunt vs. Van Alstyne, % 10 6os3 So that,
within the clause of the constitution referred to- this
objection must, nevertheless, be overruled. Aside
from the views expressed by the Court, in the cases
above referred it seems to me that the Court would
be bound to know judically, whether u public act
was passed constitutionaly not and that the que
ton should never be presented matter Of fact in
issue upon the record. When the law.making power
speaks autbortatvey, Courts are bound, and lathe
ory they are presumed 10 know it, to hear and to I'M
derstand however much it may task the limited hu'
man faculties of judges TO discover what the law in
fact is and however much, in the impertccti0n OF
human reason judges may differ in their understand
ing and exposition Of what the legislature have done.
1t may be further suggested that II the acs In ques
ton be regarded as private act, IN any inst sense
then section 63 Of the Code answers the ceiendants
objection, by its explicit provision that IN pleading
Il shall be sufficient to refer TO such statute by its
title and the day OF its PASSAGE" and tas the plain
tifs have done in the present complaint. The hith
ground Of demurrer is that it does not appear BY the
complaint that the plaintiffs are entitled to sue for
the penalty The general rule on this subject is,
that penalty imposed for breach Of the by law
OF a Corporation, in general terms, Is uqder
stood to be for the use Of the Corporation; and
1 il no mode Of recovery Is specified, it may
! he recovered in the name of the Corporation. x
| Kyd on corporations 157; BOdwise vs. Fannell, l
Wills, 337; Angel and Ames on corporations p. 3O6,
and cases cited) So that irrespective Of the ordi-
nance ret forth in this complaint which requires all
penalties in such to be sued for In the name OF
the plaintiffs the action IT, upon general principles
rightly brought In the name Of the plaintiffs To this
laws and impose penalties contained In the ancient
charter Of the city, expressly authorises the Mayor
Aldermen and ConiraonaIity al the city OF New Yorl
to recover the same 10 their own use, by action o.
debt or other lawful method &c. The third and the
sixth grounds q demurrer remain 70 DO considered
They are Ia substance, that II does not appear b,
the complaint that the bylaw In question was passed
in the manner required by acts OF the Legislatur
authorsing its psssage; that II has. or ever had
any binding force or effect. Its want OF legal op
Grafton Or binding czsSs VA a1aed urea "