The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-23


York, in suit instituted by Thomas e. Davis and
CortIandt Palmer against the Mayor, Aldermen, and
Commonalty Of that city. That Injunction certainly
purpOrted to prohibit the corporation from making
PENDANTS were not parties to that suit, nor is it
averred in the complaint that the injunction had
been served on them. An injunction affects the per-
rather than the right II u aiecss the right at
case of Fellows VS. Fellows, a john, Oh. Il. 25)
Chancellor Kent said:-"I have no conception that
It is competent to this Court to hold man bound by
an injunction who is not party IN 'as css ior me
junction which had been issued against persons VINO
had not been made parties to the SUIT should
party disobey lawful injunction, he COULD OF course
be punished for the contempt, and he could not
directly gain anything by his dsobedence. But 1t
would not affect the rights of another party VINO
might have dealt with him in reference 10 inc SUP.
ject matter of the controversy IL wonid innocent
parties might suffer, notwithstanding all the precau-
tions which the most prudent could take. AS the
present defendants were not parties to the
suit in which the injunction issued, the rights
which they may have acquired in SUBJECT
matter common to both suits were not affected, UNI
less as the plaintiffs contend, the Common Council
in adopting the forbidden resolutions, were guilty OF
criminal contempt, and no rights can be acquired
through the preparation Of crime This position
renders it necessary that should consider the ques
tion whether the members Of the Common Council, in
passing the resolutions in question, were guilty OF any
crime, and regret exceedingly that 1t does SO, as
sions different from those entertained by the learned
judges of another court for whom l entertain the
highest respect. Their opinions are certainly enti-
tied to great consideration but cannot control sit
ting here. 1t is alleged that the members Of the
Common Council have wilfully disobeyed a process
of injunction lawfully issued by the Superior Court,
and have consequently been guilty OF mlsdemeanor
r. S. 278, 10, subd B. and 692 sec. lD The in
junction commanded the corporation to absolutely
desst and refrain from granting to the defendants
the right to lay the proposed railway in Broadway
or in any manner authorizing them to do it. The
Common Council subsequently adopted the resoll-
ton granting the forbidden right, and comforting the
forbidden authority, but proceeded no further 10 con-
summatipg the grantat least 10 additional action as
to that is set forth in the complaint. The alleged
contempt them far as it have any bearing upon
the efficacy OF the grant, or the condemnatory reso-
lutions subsequently adopted by the Board OF Alder
men, however conternptuous and improper they may
have been did not impair the previous action OF the
same body) consisted simply in the adoption OF the
resolution for the construction OF the railroad. Sup
posing that the injunction forbade such adoption the
question Isl whether it had been lawfully issued for if
it had not been there was no criminaty in dsobey-
ing it, II the Superior Court had jurisdiction to pre-
vent the action of the Common Council in this mat
ter, the injunction had been lawfully issued, other
wise not.
BY the first section of the act of April 7,
1890, relative to the city of New York, it was
provided that the legislative power OF the corpo-
ration should be vested in the two boards, who
together should form the Common Council OF the
said city. This delegation OF power is continued
by the act of April 2, 1S49. The Common Council
9th section of the last mentioned act but otherwise
their legislative power is coextensive with their cor
porate rights. 1t has been seen that under the Dom
gan and Montgomere charters the corporation holds
for their improvement. The adoption of ordinances
resolutions for the improvement OF the streets is
nowhere declared to be an executive duty but is the
exercise Of power devoved upon the Common
IN itc1 latiu
making the grant in question with reference to the
improvement Of Broadway as street, were pending
before the Common Council when the injunction was
issued, and that process, if eectual would necessa
ry have interrupted and eventually prevented egis-
lative action can find no warrant for this inter
ference either in any legislative enactment or judi
cia determination. 1t is familiar principle, that
legislative action is not subject to judicial control.
This results from the distinct nature of the duties of
the two departments and their coordinateness.
Judges are elected or appointed to administer the
laws not to make them or to interfere in their enact
ment They formerly had voice in their final pas
sage the Council OF Revision in this State but their
interference was at length deemed inexpedient and
improper, and the council was abolished. To inter-
bill in either branch of the Legislature, would be
still more Objectionable on every account Legisa-
tive action to be worth anything should be free.
do not understand that this principle is denied as
applicable to State Legislature, but it is said that
it does not extend to municipal corporation Why
not! The delegation is Of part OF the sovereign
power, and that must pass with its Inherent immune
ties unless there is express otherwise necessary
limitation. In this case there is no limitation nor
1t necessary that there should bel mean as to the
exercise Of their legislative power. There is I'M
doubleday check upon the action of the Common
Council in the veto power given to the Mayor. The
statutes impose no other nor do they permit any in
reference even by the Mayor while the matter is
pending before either Board There is no necessity
that the legislative action of the Common Council
should be checked by judicial authority. Should
an ordinance be passed which should be void from
want ofursdcton, or voidable by reason of breach
OF trust or from any other cause its further prosecu
ton, If by any public officer, would be ministerial,
or if by any other person. it would be in his private
capacity and in either case an injunction would be
proper AID preventive OF mischief. In the present
case the injunction already issued by Justice of this
court has been sufficiently eicaciOus, notwithstand-
ing the passage of the resolutions; not rail has
been laid stone or block removed. fit should
be said that the consideration of these resolutions by
either Board was not prohibited, but that the re-
strant was only upon their adoption the difficulty
would not be answered. 1t would then seem that
either Board might deliberate upon them, and that
vote might be taken, but that the members were
restricted to voting only against them. This would
be placing any member of the Board who might con-
slider that the resolutions ought to be adopted in an
unfortunate predicament. Should he vote for them
he would violate the injunction, and put his body in
peril of Imprisonment and should he vote against
them he would violate his official OATH and encoun-
ter still more fearful danger. It surely cannot
require any argument to prove that it is incompetent
for any court thus to restrict the action of the
bers OF any legislative body. have said that the in
junction in question had not been sanctioned by any
judicial action asked the counsel for the plaintiff
on the argument if he had met with any case where
court had prevented the legislative action Of mu.
nicipal corporation. He did not cite, nor have
seen, any instance Of the kind, and presume none
can be found Proceedings have frequently been
had in the courts in England against the municipal
corporations there, and some Of them have been con-
Quoted with great zeal and with all the influence and
power Of the The charter of the city of Lon
don annihilaed by the arbitrary decision of the
Court of Kings Bench, presided over at the time by
a judge who, as counsel for the crown, had drawn
where court had attempted to prohibit legislative
action. Neither has there been an instance
Of the kind in this State, or, SO far as l know,
IN any State in the Union. 1t is strong argu-
ment against the claim Of any power without
plies with peculiar force when an attempt is
made to extend the common law jurisdiction Of any