The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-07

precedento1 act Of judicial power-it will be our
duty e confess and xith al possible expedition cor
Court issued in the exercise Of its known jurisdic
ton, has been publicly denounced and wholly dsre-
garded by those to whom it was directed, and who
were from their official position under peculiar OBJ
unworthy of our station could we hesitate to main
tain firmly the rights Of the judiciary, and vndicate
eectually the nsuted, but, we trust still paramount
authority Of the law we proceed 70 tne lmmen a;
cussed Il has been contended that Alderman Stur-
tevant is not liable to an attachment for the con-
tempt with which he il charged, for the Following
reasons-First because he is not party to the suit
and the law is settled that it Is only party against
whom relief is sought and may be given, who is
bound by an injunction. Second, because the ser.
vice Of the injunction upon him was irregular and
void not being y nsr service
plant upon which it was founded. Third, be-
cause the only breach Of the injunction with
which he is charged consists in the act Of voting for
the resolution to which it refers an act to which the
were not intended to restrain. And lastly because II
the injunction must he construed as intended to re-
strain the reconsideration and adoption by the Com
Council of the resolution, in question, the prohi
btion as illegal and void, was properly disregarded;
no Court Of law or equity having any Jurisdiction to
control in any case or for any reasons the Legislative
action l Of corporate and more especially Of mum
the order in which they have been stated
The first, that Mr.. Sturtevant is not party
to the suit, and, therefore, was not bound
to obey the injunction, we are all OF opinion
cannot be sustained. 1t is unnecessary now to-
determine the question whether, under the pro-
visions Of the code, (section 2l9 person to whom
injunction is directed is wholly excused from ODE
dience unless he Is party to the suit and one of
those against whom relief is demanded 1t will be
time enough to consider and decide this question,
(Which is, perhaps, more doubtful than it seems to
have been regarded when it shall properly arise in
a case before US. 1t does not arise in the case now
before u.s. for the plain reason that Mr. Sturevant is
in judgment of law party to the suit. He is not
indeed party in his proper name, or as mere indi-
vdual but he is in his official character and it is his
personal action in that character that the Injunction
not only by its legal construction but by its express
words seeks to restrain 1t is not addressed to the
Mayor Aldermen, and Commonalty of the city as
an abstract metaphysical being but it is addressed to
each individual member of the whole corporate
body, and it controls the personal action Of every
one Of them whose consent or cooperation might
be necessary to the completion of the corporate act
which it strictly prohibits. 1t imposes o command
and duty upon every one OF them to refrain abso-
lutey from performing or concurring in the per-
Torrance of the prohibited act for the very purpose
and the necessary means of preventing it from be-
coming act of the corporation. 1t is not true, as
the objection we are considering plainly assumes,
that when judicial command in relation to a cor
pOrate act, mandamus or injunction, Is directed
to corporation solely by its corporate name, the
members and officers through whom alone the cor
pOritlOn can act, may QSreRarO IL Win cnClrc
IMMUNITY, and by their disobedience render the
process of the Court wholly Intellectual. The law,
we apprehend, is otherwise settled That the man.
date OF the Court in these cases may with entire
prOpriety be directed exclusively to the corporate
body by its corporate name has not been denied,
and there are numerous decisions that show
that when such is the form of the order or writ,
it is operative and binding not only upon the
sonal action as member officer Of the corporate
body it seeks to restrain or control. Every such
person is fully bound to personal obedience, as if
personally named in the process, and consequently
of Abingdon, Lord Raymond, $50; Rex vs.. Mayor
of Shelford, cases in Chan, l7l.2, Lord Raymond
s4s; Rex. vs.. Mayor of Tregony, Mod Ill; Bank
Commissioners vs.. City Bank Of Rochester, Barb.
the defendants to admit that in the case of man.
damus, the law is such as we have stated, and we
clear in the opinion that In respect to the persons
upon whom 1t operates, there can be no distinction
the decisions rest upon the same principle, principle
which Lord Kenyon in the OF the Rex Holland,
has briefly and torcbly stated Is Term R., 622) It is
that where duty is thrown upon body consisting
Tor its performance and individually liable for its
BREACH and in the application of this principle it
is plainly immateria whether the duty result from
act of the Legislature or the mandate of court of
Justice. We remark in conclusion, that unless upon
he construction that we adopt an injunction adj
dressed exclusively to corporation must be in all
cases q nugatory and senseless proceeding
A corporation cannot be attached, nor have
any means by which, when such is the form
of the injunction, its obedience as Corporation
may he compelled or its disobedience punished. And
that there are none, Lord Loughborough in the
OF the Mayor OF London vs.. the Mayor OF Lynn,
seems distinctly to admit. Il II. Black, 209.) I'm
less the injunction, therefore, in such cases. operates
upon those members and officers OF the corporation
by whom its corporate will is manifested, and corpo-
atc md I,rt,y
which they are parties to the suit personally
spOnsible, it is emphatically bruium fslmen-the
words may be those Of command or menace, bit
they are addressed to no one and signify nothing.
The next objection, that the omission to serve upon
the Aldermen, with the injunction, copy of the
complaint, rendered the service of the Injunction it.
SELF or as to them, imperative and void, like the
preceding, we are satisfied must be overruled. IL
furnishes in this for not proceeding TO
an attachment Notwithstanding the positive
terms OF the code (sec 220) we doubt exceedingly
whether, when the injunction itself is duly served,
the omission to serve copy Of the, affidavit upon
which 1t was founded, may, in all cases, be al
legged as valid excuse for disobedience. When
the order of Injunction cannot properly be I'M
derstood and consequently obeyed, without a
knowledge of the contents of the affidavit the
service OF copy must doubtless be made. But when
the injunction is plain and implicit, and leaves no
doubt as to the act which the party upon whom it is
served is required to perform, desist from per-
forming, it may well be doubted whether the rregu-
lease him from the duty of obedience. In such cases,
q knowledge OF the contents of the affidavit would
neither instruct him to his duty, avail to dis
charge him from its performance, since whatever
may be the facts stated in the affidavit, the injunc
ton, when emanating from competent authority,
until dissolved, must be obeyed (krom Us. Hogan,
and Howard, p. r., 225, Woodward as. King, Oh.
Ca 2o3, Sullivan Us. Judah, 4, page 1859 The pur-
pose for which the code very properly required that
copy Of the aidavis shall in all cases be served is
not that the party upon whom it Is served may deter
mine whether he will or will not obey the injunction
but merely to enable him, without delay, If SO adj
vsed to move for its dissolution. 1t is not however,
upon the ground that in this case the alleged rreg
arity in the service Of the injunction was not such
as to excuse the disobedience that followed that we
override the objection The papers show that there
was in truth rTegularty that the defendant Stur-
teyant, can be permitted to allege copy of
the complaint, together with the injunction,
was duly served upon the Mayor, on the
2Sth of December, the day before the meet
ing of the Board of Aldermen. The SER
WIG rrCp 1y ms nl,;n c au.