The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-01-17

the court has no power TO enjoin the Common
In the first place. you have no jurisdiction, be-
cause the Common Council were compelled.
under the law of the State the same law under
which you sit to go on and act upon that resolution
Tor they could not eyade it and were bound to
answer when their names were called This is pro-
vded in the charter of the city of 1880 section H.
You cannot prevent their reconsideration because
they are bound by their oaths and by the law of the
land to do 1t, and no court has any jurisdiction to
stop it. You may as well grant injunction against
the Mayor for vetoing the measure. Suppose this
resolution passed the Board Of Aldermen and goes
into the Board of Assistants shall member of that
Board say that he Is not permitted to consider that
question because there is an injunction against him.
and that he shall not lift mp his voice if the President
calls up the resolution? do not see how it is pos
sible that you can enjoin reconsideration OF that
utterly silent. If the person for whom l appear
had been bought for 100000, you cannot enjoin
nm nun rom saying yes or no. for the law OF the land
has provided no such remedy. There is another
remedy, palpably plain and adequate; and you can
not enJoln member Of judicial body from voting
on an allegation that he is corrupt, for the
nav; nav aGes not allow any such grounds for
say therefore, upon this branch of the case that it
was the duty OF the members of the Common Coun-
Gil to vote upon this question. 1t was the duty of
did; he could not evade that duty, in accordance
with his obligation to the law and his oath; and if it
his duty to vote, he had just as much right to
vote Eyes as mo" unless you hold that your in
junction, granted ca pa,tc, can compel man to vote
not according to the dictates of his own Judgment
but according to yours But, suppose it should
be held that it was not the duty OF the Com
mon Council to vote upon this resolution, say they
had right to do So and il is matter in their Own
discretion, with which no court has any right to
interfere. Now, the legal power of the Common
Council to lay down railroad in the streets of the
city, is matter upon which shall not dilate, for
Had hn
sion OF the Supreme Court in the case of Drake
against the officers of the Hudson River Railroad
Company and the decision of the Court of Chancery
in the case of the Harlem Railroad Company The
learned counsel went on to argue the legal power of
the corporation to lay down the rails in Broad
way, and went on to say taking the ground that
tie corporation have this legal power, say
it was an act in their own discretion and whether
they should or should not this Court has no ursc-
ton to Interfere with the free of that discretion
and for the that the act of the corporation is
a legislative act. The counsel on the other side
maintains that this corporation is not Legislative
body but that it is sort of subordinate body having
do not exactly know what powers or rights. | say
however, that it is legislative body, although
subordinate one. 1t has all the functions of legis-
lature within the limits of their charter and it is call
ed legislature upon the very face of the acts
upon which it is erected: . The legislative powers
OF the corporation of New York shall be vested in
Board OF Aldermen and in Board of Assistants,
who shall together form Common Council" This
is precisely the language which the constitution of
this State in respect to the Legislative power othe
Senate and Assembly Of this State. Upon what reason
ing then, can it be held that this is not legislative
power and that it does not exercise functions strictly
egislative-mited by law, but still legislative? You
cannot say any more that they not legislative, be-
cause their functions are limited than that the egis
lature of this State is not legislative because it is re-
stricted and subordinate to the constitution of the
Union. Not only is that SO upon the face of these
acts, but by the last constitution of the State legs
latiye power was authorised to be conferred upon
LII, g..
vernment and rightful policy, too, which distin.
cuisines us from the governments abroad, that we
vest our legislative power in ractions-wc govern in
circles, and beginning from the bottom to the top,
they all exercise, within their jurisdiction and limits
legislative functions. If the Board of Supervisors
are legslature-if they exercise the functions of
legisature-does not the corporation Of this great
city, with its three-quarters OF million of inhabi
tants, and with interests larger than many States,
does not that corporation exercise legislative func
tons! But it is said, that although this may be a
legislative body yet that the particular act in ques
ton is an executive act. say it is legislative act,
and if it be not one, our Legislature has not passed
legislative acts in the whole course of year. What
is the distinction between legislative and an execu-
tive act! legislative act is one that makes rule
or grants privilege, and an executive act is one
that carries legislative act with effect This resou-
ton is to be carried into effect by the officers OF
the Common Council-by the Street Commissioner
who is named as experimenting these matters. IIe
is the executive officer; but the legislative act is the
granting Of the privilege. 1t is an especial act Of
legislation, giving to certain persons the privilege
OF doing certain things. l have a volume of our
State statutes here, of 1917 and the first law find il
this" An act to authorize ID. Richards and others
to build piers in the city of New York. Will my
learned friend inform me if that is legislative act?
BY parity of reasoning if that is not legislative
act, it is perfectly void The legislative power of the
State of New York is placed in Senate and Assem-.
bly,, and the whole executive power is placed in the
Governor; therefore, the Governor should have done
this. or some other executive officer. There are
niLcty-nine of these acts, under which individuals
hold property unquestionably to the amount Of many
millions and is it to be held that all these are void?
There is legislative act allowing the New England
Company to set up telegraph posts in streets Is
it an executive act, and all void? May any individual
80 and tear down the telegraph posts and plead that
they are nuisance? The learned counsel proceeded
at great length upon this part OF the case when the
Court rose at five O'clock and announced that they
would sit again on Saturday next, to hear the re-
mander Of his argument and those OF the other
counsel who were to follow.
Law Intelligence.
SUPREME COURT OF THE UNITED STAIRS Jan. 12.-Sdney
Webster, Esq, of New Hampshire Was admitted at
torney and counsellor Of this court.
No 4S-Stcphcn w. poss, appellant, vs.. VIM. Tyack ct
al The argument OF this cause was continued by .fr
Sherwood for the appeees and concluded by Mr. o. f.
johnson for the appellant. Adjourned
JAM 13-John L. Pendery, Esq, of Ohio was admitted
an attorney and counsellor of this court.
No. 49.-John Perkins, appellant Edward r Fourn-
by Mr. Souc for the appellant and continued by Mr. Hen
derson for the appecc and by Mr. Reverdy johnson
the appellant Adjourned.
JAN 4.-paniel Mace; Esq, OF Indiana was admitted
an attorney and counsellor of this court.
No 80. Samuel 5. Downey j. T. Hickss eSecutrix:
the Circuit Court of limited States