The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-14

Jacob f. Oakley, John +. Rodman,
Thomas ]. Barr, Patrick Broaden,
Richard d. I'd Com Compton, aemas 4 We:
VIM. J. Brisley Edwin Bouton,
Wesley smith. VIM H. Wright
James NJ. Bard, Jacob II. Valentine,
Asahel A. Denman VIM McConkey,
Vim. II. Cornell, Joseph Rogers
John Doherty, Thomas Wheau.
VIM. Peck.
The clerk said all but three answered to their names.
Here Alderman Cornell who is q fine jolly, rotund
looking specimen of civic good things waving
through the of people that thronged the court.
Judge DuER then delivered the written judgment of the
Court which Is very elaborate, and occupied more than
three quarters of hour in reading. 1t is follows
JUDGE prER's JUDGMENT.
We determine whether the members of the
Common Council who have been severay brought before
by process of attachment, have been guilty Of the
misconduct that Is alleged against them, and So whs
Their this misconduct has operated calculated " to
defeat impair impede, prejudice the rights RENE
pending suit q 5, 20 53s These are not the
only questions that have found it to consider
and decide but they the first in the order Of the
judgment to be pronounced The misconduct that ia
alleged against all the defendants in the adavits upon
which the motions for the attachmen founded and
in the nterrogaores that have since been filed that of
contempt of the authority Of this Court by act of
positive dsobedienee its lawful order and the Alder
men who before u.s. with the exception of Alderman
Dohery also charged with having given their assent
by their vote to the OF certain resolutions
not only denouncng the order which they were re.
uuired to obey a unprecedented act Of usurped
authority but containing scandaleus mputations upon
the conduct and motives of the judge by whom the order
issued These resolutions set forth at large in
the proceedings and it has been insisted that they
evidence not expressly support Of the principal charge
but distinct and substantive offence which may
and ought be treated a wilful and criminal con
tempt II is manifest that cannot do otherwise than
audge each OF the defendants to have been guilty Of the
alleged contempt by his personal refusal to obey the
order of the injunction which has been publicly viola
lated il we adhere 10 the opinion that the order
rghtfully issued and properly served and individually
binding and upon these questions it is only necessary
to cay that the considerations which fully enter
tanned and have endeayored fully express wholly
unchsnged-they have not been weakened but con
6rmed by subsequent reflection and research We have
held and now hold that the order Of injunction com
manded each individual member Of the Common
Council TO refrain from acting, and suspendiog
IN the performance Of the corporate act which
the order prohibited. and consequently that it
violated by every member who voted for the resolution
in favor Of Jacob Sharp and his GATES with the intent
that the grant which the resolution contained should be-
its immediate acceptance operative and eectua
Each Of the defendants in his the fourth inter
rogatory has admitted that he voted for this
has of them attempted deny that he voted
with the intent that the resolution should take effect
pec,aon that blythe acceptance ofthe grantees it would
become so. The meaning and motives OF the entire
transaction indeed too apparent to admit of doubt
denial 1t IL evident from the papers before US, that
the written acceptance of the grantees must have been
prepared and signed before the resolution finally
adopted, since soon the anticipated final vote
taken it was delivered and filed. Nor is any argument
requisite to chow that the misconduct of the defendants
peds or prejudice the rights and remedies Of the
REALTORS in the prosecution of their suit. Such
vas no. merely its tendency and design, but such
by the injunction had not been made all the relief that
tie REALTORS seek might be obtained in the present suit
The grant to Jacob Sharp aud his associates has altered
in some degree the nature OF the relief to which
the REALTORS may be entitled decree not merely pro
hibng but vacating the grant must now be brought.
and hence the grantees parties in the fur
Their prosecution of the suit They the real par
ties in interest and consequently final decree affecting
their rights such be made until they shall have
been brought in defendants by supplemental com
plain The necessity Of proceeding ,ch mpedes, and
by the expense and delay which creates preudice the
remedy Of the REALTORS plaintiffs the suit has arisen
solely from the misconduct OF the defendants now before
us Reservng for separate nsderation the resolutions
passed by the Board 4 Aldermen it follows from the
observations that have been made that each Of the
defendant by violating the order of Injunction has
been guilty OF the misconduct alleged against him and
which, contempt OF the Court, req uired TO pun
ish. Such accordingly in relation to each of them is
the Judgment that now pronounce The applicable
t. the makes ii the duty the Court when the alleged
misconduct of o defendant prosecuted for contempt
and is effects tendency have been proved with salts
faction 10 impose upon him the penalty OF fine or i'm
prisonment both, in it, discretion and the
Of the eaFe may require q =, S3s sec 70 When
erection OF the court in fixing the penalty must be
ercised within certain limits both in respect TO the
amount Of the fine and the duration OF the i'm prsonment
that may be imposed and that discretion it must also
be observed is arbitrary but judicial and lis
else therefore governed by those considerations
by which alone the mind Of judge may reasonably and
justly be Influenced such is the meaning Of the statute
directing that the penalty must be such the nature
that the nature Of this may Justly be said
luires to impose2 What the measure Of punishment
with which the misconduct Of the defendants their
public dis obedience TO a positive and most ntel.
gble order Of the Court ought 10 be vedY Bansning
rom minds all extraneous personal IONS
pnd fixing attention alone upon those which arise
hpon the evidence, and which mark the character
and throw light upon the motives Of the transaction
what Is the that these questions ought TO receiver
shall proceed to the that deem to be appro
pirate and necessary and state the concu at which
arrived sahe judgment of my associate as well
that the reasons by which have been governed in
forming our Judgment shall be funy explained This Is
one oil the occasions which the interests OF truth and
justice require that the judgment Of the Court shall not
merely be declared but indicated Had it been proved
that the REALTORS had sustained actual loss from the
misconduct Of the Defendants we shou have had no
discretion as TO the amount OF the fine to be imposed
and above their and expenses and nsequent
~ fine which equally divided among the defendants
would have secured that indemnity have been i'm
posed. OR s., $50, sec IL But we think that no
evidence has been given of actual loss for which De
finite sum, as compensation, may be awarded; and II is
only TO such osseslosses pecunary in their nature
the amount Of which may be estimated with certainty
that the provisions Of the statute can in our
fore are entitled only 70 their costs and expenses
In hch the defendant adudged to have been
guilty OF the alleged contempt but loss beyond his
costs and esp enss 10 which in all cases he is entitled
Ia shown 10 have resulted to the prosecuting party
the Court may impose fne not exceeding $3.50, and Inn
months in the Of its discretion, may nict
either p.nsy in fsll limited extent (R y, d. est
rtcb ~, fut IN the Opinou tnat IN
thote cases 70 penalty whatever beyond the costs and
expenses OF the prosecution ought be imposed unless
appears that the mscone net, proved was In its
nire criminal contempt which such, the Court, for
the sske OF publc example ard for the Necessary main
tensnce OF s own rights and authority Is bound to pun
th and such we apprchend is the settled construction
OF tie statute Hence all these cases the irst neces.
inquiry is, whether the alleged contempt was wlful
Intentional accidental and undersigned the result
of -donabls ignorance inadvertencs or de-
lib act Of conscious disobedience And when the disc
boz &c 10 shown to have been Intentional and the ques
n n lima IN ho date al
a. ragrsvstaC must be considered, on our part In
,etrspg the measure OF its punishment and in
al cbass of this duty the answers Of the defendant
- nterroestories demands special attention. whether
III 1ngsge that Of regret and apology or Of contumacy