The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-27

may throw open the use of the road to all persons
whatsoever; to all Who may choose to run cars there
on. Such an exercise by the Common Council, Of
Their reserved power as interpret the contract OF
the parties, would be q perversion OF its language
and violation OF its spirit The power which the
Common Council reserve is merely that Of regulating
the use OF the road BY the grantees themselves
is, OF making regulations which the grantees, in
their own exclusive use of the road would be bound
to observe. Nor can at all doubt that it was the
clear understanding OF the parties that the resolu-
ton would secure to the grantees exclusively the be-
ncen: use OF the road In consideration of the lab r
and capital expended by them in it's actual construc-
ton and upon other terms am satisfied would the
grant have been solicited accepted. Their agree.
more certainly by the tota exclusion of the grantees
from the occupation OF the road, when made, than
by the admission of others to share, against their
wish, in its anticipated profits. The objection,
is void, as creating a monopoly, has not been an
swered and, as it seem to me, is unanswerabe.
Third-The thirteenth article of the resolution or
ordinance containing the grant, provides, inter a
that the grantees shall form themselves into joint
stock association, which shall have power, by the
votes OF majority in interest Of the associates to
establish articles of association and bylaws; and the
fourteenth, that such association shall not be dis
solved by the death or act of any associate but his
successor in interest shall stand in his place. These
provisions are very plain attempt to create joint
stock association, which, without being in all re-
spects q corporate body, shall yet be exempt from
ships are governed. Such an association the Legis
atuIe Of the State may possibly create, but assur
edly not the Common Council Of the city, nor can
do otherwise than regard the attempt as palpable
usurpatioD Of power.
Fourth-The twenty third section Of the amended
charter OF 1s49 enacts that all contracts to be made
by the authority Of the Common Council for work
TO be cone, or supplies to be furnished, shall be
49, al L.
der such regulations as ehall be established by ordi
Dances Of the Common Council. Let it be admitted
that the obligation OF the grantees and associates 70
build the intended railroad In Broadway is not
contract for ork to be done tor the benz
fit of the corporation, and is therefore, not within
the legal scope Of the section that has been rected
there other provisions in the grant of the Com
mon Council which, as it seems to me- by no reason
able INTERPRETATION can be relieved from that obec-
ton. The tenth article of the resolution making
the grant, imposes Il duty upon the associates to
sweep and clean the whole of Broadway south Of
Fourteenth street, every morning. and to remove the
sveepipes before certain hour on every day except
ing Sunday, and this duty the associates, by the &C
ceptance of the grant, contracted to perform Then
there is Q contract for work to be dOne-the daily
cleaning of street for the corporation tsef-a con-
tract not made by the head Of the proper depart
ment nor under ony prior regula ions established by
the Common Council; and why this contract, as
trabscending the power of the Common Council, and
violating the provisions of the amended charter is
not to be adjudged void, have been and still am
unable to understand. If this contact is Void am
forced to declare there is necessary failure of an
essential part Of the consideration upon which the
grant Of the associates was founded, and with this
failure the entire grant, as deprived OF necessary
Iastly-By the 272d section Of the Consolidating
Act Of 1918, and by . subsequent act of February
2lst, 1924, claws Of 1924, chap 5o) the Mayor Of
the city is authorized, under the direction Of the
Common Council, to license for certain annual sum
tie owners of hackney coaches and carriages for
hire and these provisions have uniformly been con-
strued, and in my opinion rightly construed, as
limiting the power OF the Common Council to fixing
the number Of licenses to be granted and the sum to
be charged for each leaving the Mayor an absolute
discretion in the choice Of the person to whom they
are to be given. car, in which persons are to be
transported for hire on railroad is just as certainly
a carriage for hire as hackney coach or an omni
bus and SO the Supreme Court OF this district in the
important case Of Drake VS.. the Hudson River Rail
road, has actually decided.
The 18th Article Of the resolution OF the Common
Council making the grant to Jacob Sharpe and his
years, from the date of opening the railway, the
annual Incense fee for each now allowed by law
and shall have license accordingly" and these pro-
visions OF only abrdge the legislative powers OF the
Common Council in fixing the annual amount OF the
license fee but take from the Mayor all discretion
in the choice of the persons and make it his duty to
license those whom the Common Cornell has select
paramount to that of the Legislature SO as to enable
them to divest the Mayor OF an authority that the
Legislature has given, these provisions mast be
void. In my judgment they are so-and conse.
qucDtly, the entire contract of which they are an
essential part Several other objections to the
validity Of the grant and contract uRder considera
ton we've rails ed and argued before me- which for
bear to notice. not rejecting tbem but in the con.
viction that those which have been stated are an
ample foundation for the Judgment that pronounce
that the injunction that has been granted must bs
made perpetual The giving Of costs in cases like
The present rests in the discretion of the Court;
and the defendants have succeeded the issue of
fact and have only failed upon questions of law, in
respect to which great differences of opinion have
existed costs are given to either as against the
other ] state as further reason for this decision
that the original plaintiffs have been permitted to
amend their complaint without costs, by making
The Attorney General party, and that, but for this
amendment, their complaint would have been dis
missed