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

enactment in the scales Of the constitution, have
eDdeavored to do it with cautious prudent, pains
taking, AZ well a. fearless hand. And have been
the more anxious Of late from the alarming increase
Of discretionary power which has in this State within
the last few years been thrust upon the judiciary,
I'll have trembled for the peEmAnency Of system
thus beset with temptation and trial at it, every STEP
Undoubtedly one Of the visest and most salutary
principles Of our institutions has been tho duty
which has devolved upon the judiciary Of restrain
ing executive or Legislative usurpation upon const
tutional law. Unfortunately there has been nothing
Dus It's snd IT, y ~
ing the other departments has been not by prohibit
ing the act but by declaring it void, and that no
rights could be acquired under it. Thus it was that
the Supreme Court of the United States nullied our
Dsolvent and steamboat laws, the stop laws Of
of the Western States and the antislavery laws of
Pennsylvania. And thus in q recent case did our
Court OF Appeals overthrow the act for the enlarge
ment Of our canals. This principle of institu-
lions we do MT inherit from England. With the
great mass OF the common law which governs us,
for there the Parliament was regarded as omnipo-
country, arising from the fact of having written
constitutions designating the powers and duties Of
the difiereAt departments Of government. It was
put forth in the Federaist, No. 49, and in less than
was asserted by our courts. (Kent, Com. $50. 2
Dallas 4lO.) 1t has been maintained since
by long series Of disclosures, and almost,
if not uniformly, not by restraining legislative
It were III in The power Of the courts I to re-
strain legislative action, it would require clear
marked and unequivocal case of legislative usurpa
ton, and against which there was no other remedy
that could induce me to depart from practice which
thus sprung up in the infancy Of our country, and
has been steadily adhered to by the sages of the law
for more than fifty years. This is not such case It
is conceded on all hands that part, at least of the
fhp ia n nof
legislative power, and after it shall have passed. the
emedy would be ample and complete in any of the
heads of departments within whose province it might
ONE, refusing to execute it as void law, and thus
the question be properly brought before the proper
tribunal for final adjudication 1t will be observed
that am not discussing the question whether the
act Of the Common Council is right or not, but mere
whether ii it be wrong, it is proper for the courts
interfere by its strong hand and its extraordinary
power OF Injunction. obi accpefoe guis enper viuet
an armis. And much do prefer, 50 far as may be
allowed my option, adhering to the practice which
ment, and from which see no good reason to depart
STILL am free to confess that, if this was the only
consideration that pressed upon my mind,
should hesitate about departing from the ruling
Of my brethren on KINDRED subject for should
be bound to suppose that such obvious con-
sdelations had not escaped the attention they
deserved at their hands. But there is a view which
is controlling with me-, and to which it is evident
their attention has not been called. do not find in
any of the opinions to which have been referred
any reference to the Revised Statutes, which sup
pose dsposes Of the question before me. In this case
the suit is brought by two Of great number of tax
payers, and if it be sustained, then all the rest
of the Taxpayers of the city may also bring their
SUITS not only in regard to this particular matter but
in regard to any other within the scope Of the legis
an amount OF litigation that would be overwhelming.
1t is true that such consideration does not disproye
the jurisdiction COT the Ourt does such reasoning
from extremes alwas lead to just conclusions; but it
81
to see where the principle under which we act will
lead us. Far, however, as it may conduct us, it
might be necessary to follow it If the Court should
be satisfied that there was no other remedy against
usurpation by corporations. Such, indeed, see was
the Consideration pressed upon the Court in one of
the cases, and the learned judges might well
have been startled OF the bold proposition that was
put forth by one of the counsel and which seemed to
The mistake was in overlooking our statute on this
subject. Several English were referred to on
those arguments, as well as on that before me- which
grew out of the British Corporation Reform bill,
source they are of no binding force with u.s. because
we have statute of our own, passed in 1880, amply
providing for such case as this 1t is that statute
which has been overlooked in the consideration of
the case, and it provides o complete and ample
remedy. refer to Art. 2 Of Title of Chap of the
Third Part Of the Revised Statutes, e R. 8. 1927
entitled, "Of Proceedings against Corporations in
Equity" 1t provides that on a bill being fled by
junction, any corporation from assuming or exercis
ing any franchise liberty privilege, transacting
any business not allowed by the charter of such
corporation It also provides that in certain cases an
Injunction may also issue well on the application
of creditor or stakeholder as on that of the Attor
ney General. This statute grew out Of decision of
Chancellor Kent, attorney General vs. Utica In
surance Company, 2 j. C. r., 390), in which he
held that the restraining o corporation by
Injunction from usurping franchise, was without
precedent, that the process Of injunction was too
peremptory and powerful in its effects to be used in
such a case without the clearest sanction, and that
he should better consult the stability and utility of
the power Of the Court by not stretching them be-
yond the limits prescribed by the precedents. Such
was the state of the law when our Revised Statutes
were proposed, and they provided an adequate
remedy and regulated its exercise in the case OF all
corporate usurpations, except only in cases Of
libraries, religious societies, and certain schools
Why should this statute be entirely disregarded and
virtually be repealed as it will be, if such proceed
ings as this be sanctioned. II these plaintiffs, or
any other tax payer has cause of plant, their
remedy is very plain. Let them 60 to the Attorney
General, the law officer Of the State, and in the
language Of the statute, give him !" satisfactory
proof that the defendants complained of have
usurped, exercised or claimed any franchise, priv
ege liberty, or corporate right not granted them,"
and then it will at once be his duty to intervene,
and by taking proper proceedings in behalf Of the
whole people, save the infinite confusion and mis-
chief that must spring up from tolerating q
practice unprecedented in courts on this side
the water and which opens an endless flood
of litigation to thousands upon thousands of
repeat that If this proceeding be sustained, it
will be virtually repeating, and at least, entirely dis
regarding a very important statute, under which we
have acted for near quarter of century, and which
regarded at the time and Justly So too, as wise
reform in the law touching corporatOns-a reform
which the British legislature afterwards followed,
and which has been too sautary in its action with
US to lie sighted dsregarded. For these two rea
sons, then, first, that the uniform practice of our
courts since the establishment Of institutions,
has been to reach void enactments by declaring them
void after they are passed, and not by restraining
them while in process Of legislation; and second, be
cause our Legislature has provided an ample remedy,
which this proceeding interferes with, am of opin-
ion that the injunction, in this case improperly
granted and must be dissolved. 1t will be Observed
however, that in coming to this conclusion confne
myself t. the consideration Of the powers of this
Court and do not to touch the question whether
the action OF the Common Council is right or wrong.