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

thereof shall be subject to the legislative regulation
and direction of the Common Council, so far as the
same shall not be inconsistent with that act. Thus
it is manifest that the general regulation and drec-
ton of the several executive departments is part
of the legislative power of the Common Council,
wherever it is not expressly regulated by statute.
Now, it is conceded in this case, that it is within
the legislative province of the Common Council to
direct the streets to be paved as provided in this
resolution, but it is insisted the designation Of the
persons who to do it, and the price at which is
to be done, are executive, and therefore belong to
the head of the department, and not to
the Common Council. In other words, that the
Common Council might direct that the pavements
should be laid but that it was for the head Of the
department to determine who should do 1t, and
on what terms and that the only remaining power
of the Common Council would be to appropri-
ate the money which might be necessary to
enable the head Of the department To carry out any
contract which be might make, the terms of such
contract TO be entirely and exclusively within his
control Such is the claim set up by the plaintiffs
in this regard, and i may be subject for fu-
not. The remaining branch Of this charge, name
ly, that the resolution takes away the power
Of executing it from the Street Department, and
confers ii on the Department Of Repairs and
Supplies, seems to me to be well grounded The lat
ter department has under the statute cognzance
| only of repairs and supplies for public pavements,
while it Is the Street Department alone has cogni-
zance Of paving. The sixth charge that the resolu-
ton was hurried through, to orestall the act of
1858, Is nnnotced by any Of the parties Thus, then
the case stands before me- II ia conceded that the
resolution was hurried through the Common Council
to forestal the act of 1853. 1t is established
that there were two propositions before the Common
Council to do the work cheaper than was proposed
by the resolution; that the appropriation was not
based on any previous statement from the proper de-
partment and that the whole work was placed under
the charge Of the wrong department It is doubtful
whether it proposes usurpation of executive power
or provides for one unreasonable and ex
cessive compensation; and, it is denied and contro
verted that there was any corruption or bribery in
the case. And the remaining question is, whether
under such circumstances it is competent or proper
for this Court to interfere by Injunction either pre
minary or final. Iapproach this part of the subject
with unfeigned dinidence, because am constrained
to differ in opinion with several of my brethren on
the bench, whose opinions have ever regarded with
respect and because may very well from thence
apprehend that may err. But can truly say with
one Of the ancient Judges. It lisa consideration Of
not conclusive to the party, but my mistake will be
rectied, and injustice not be DONE" have even
looked with alarm upon the interference Of the judi
cia with the executive Legislative departments Of
the government; sud whspeveg It has been necessary