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

without
city Of London vanacre I. Aod Rep. 4ssl Lord
Holt in giving the judgment Of The coast said I'VE are
q opinion that this privilege q making and ordi,
and better sovsrnnsns Of the city; and every
inherent in their constitution by for the gov
eminent Of the body polite and this Is the true touch
Of all by laws which ought be for the admins
traon of the with which they entrusted
Ii has also been held that where the charter gives the
corporation power to make y laws It can only make
for it expressed by the court such power given by
the charter inpss negative that they shall not make
pany, 2 p Williams 207) In the present not
left to inference for the Mongomerie charter expressly
York the power to make such laws to them, the
greater part Of them, shall seem to be good, useful,
or necessary for the good rule and OF the
in the exercise of its public political powers and
within the limits of its charter, il is vested with the
largest discretion. And whether its laws are wise
unwise, whether they passed from good bad
tives II is not the province OF this court to inquire
regards the acts of the corporation in reference
its private property it stands upon very different
footing Such property is held for the common benef of
al the corporstors In respect 70 that the corporation is
which bound to administer faithfully honestly and
justly And one will contend that the body Of
who for the time being be its duly authorized
sentatives, legally dispose Of its property great
value without for nominal consideration and if
they shall presume to do will be no for such
and breach OF trust say that they
acted in their Legislative capactyfor the very simple
reason that they will not act in that capacity. They
win be acting reference to the private property of the
corporation, and, in this respect will stand upon the
same footing if they the representatives Of pr
vate individual ofa private corporation. The mere
fact that the forms of legislation are used will make no
difference in the character of the act 1t will be in
the exercise of political power delegated for pub
lie purposes. III the form of proceeding defined the
act then II might be said that most of the acts of pri
,Rte corporations legislative acts. Banking corpora
6ns, railroad and insurance companies have board OF
directors and President who transact the business of
the company: They have their regular meetings. they
have presiding officer and their deliberations, discus
sions, and proceedings conducted more or less
cordng TO parliamentary rules But no one supposed
that any of their acts OF legislative character and
for the obvious that they have reference to pri
vate property When public corporation acts in refer
to lis private property its acts are equally OF pr
vate character and equally subject to judicial control
If different doctrine were established the Mayor and
Aldermen of the city of New York might at the next
meeting of the Common Council distribute the whole OF
the property owned by the city among themselves
yded that they adhered to the ordinary forms of egsa
ton. The distinction which have taken is we'll
the case Of Frewin vs. Lewis, a Nylne and Craig 24s
which a suit against the Poor Law Commissioners,
giving his opinion said So long as these functionaries
strictly conne themselves within the exercise of those
duties which confded TO them by law this court will
not interfere The court will not interfere to whe
Their alteration regulation which they may direct
good or bad but they departing from that
which the law mas vested in them, if they assuming
themselves power property which the law does
not give them, this longer considers them
acting under the authority of their commission but
treats them whether they be corporation or indivi
dusl, merely persons dealing with property without
legal authority In the of Bailey The Mayor &c,
OF New York, Is HILL 53l il held that the Crot0n
Aaueduct was part of the private property of the
city, and that in regard to such property it stood in
thessame light individual owner and was subject
to tie liabilities. In the Dartmouth College case
the distinction between the public powers of
q and it private Ma
papy, q Bro CHI R. 46e0 the Master of the Rolls, in
speaking of the defendants said They have their rights
a sovereign power; they have also duties indivdu
Is. COMPANY
entered into private contract to which they must be
Maper Of Mve and be MASTER
Of the Rolls says IF property is held by corporation
trustee if the corporation holds it clothed with pub
terere" Before proceeding to the application of these
principles to the before u.s. it win be necessary to
the corporation to the defendants Their counsel cali
the grant of permission But this conveys no definite
idea The grant Of lands is the grant of permission to
have the absolute and unqualified ownership of chem.
lease OF house the grant Of permission to use and
occupy that house for limited time In order to deter
mine what the corporation has done, it will be necessary
ascertain what Is the character and effect Of this per-
mission which it has granted According to the provisions
of the resolution passed by the Common Council the
poraon has granted the permission and authority to lay
double railway track in Broadway. For the purpose OF
laying this track it win be necessary that the defendants
shall for tme take the exclusive possession of part
OF the street-that they shall place structure there
of their construction which shall belong to them,
and Of which they shall have the exclusive far
is used for railway In Judgment it immat eral
what particular Dame is given to this thing which is thus
granted Whether il be thing corporal or ncorporeal
of property Of some kind 1t is property held by the
city and is subject to the trusts and duties its
ether property The question then arises whether the
corporation has violated its duty trustee in making
the grant in question. 1t viii be observed that the de-
PENDANTS have paid nothing for the grant, and that the
only amount which they will be bound to pay TO
the city viii be the annual license fee for each which
higher rate Of fare shall be charged for the Of
from any one point to any other point along
the route and such combined system Of routes may
kAraa hn hy orfn
than five cents for each passenger 1t is stated in the
complaint and 1t is not denied that six offers made
and the complaint alleges that of them, accepted
would produce sum exceeding $3.50 600 per annum for
the benefit Of the corporation and the relief Of the tax
paying citizens while each passenger would be charged
but i've cents fare. That another offer, il accepted,
would produce sum exceeding s3ooooo per annnm,
for the benefit Of the corporation, while each
passenger would be charged but five cents fare.
That another Offer if accepted, would produce
the Of 500 600 per for the benefit of the
poraton while each passenger would be charged but
cents fare. That another Offer if accepted would produce
the sum Of for the benefit Of the corporation,
while each passenger would be charged but three cents
fare That another Offer accepted would produce the
sum annum for the benefit of the copor
alton while each passenger would be charged but three
cents and, finally, that offer made, in which the
parties agreed to comply in all respects with the terms
grant made to the defendants with tae exception,
that instead Of charging FIVE cents for each passenger
they would charge but three The defendants do not de-
ny these allegations, but they have submitted aiida
Wit TO by two of them, in which they say, that
either Of these offers if accepted and carried out would
have been less burthensome to the grantees in the
amount of money expended and less beneficial to
the citizens than the grant made to the defendants
And they state Of their that Of the
offers which refused excepting one, proposed to
take the grant upon the terms and conditions
the grant made them But what those terms and
conditions 1t will be by reference to the resou
lions that they generally, regulations to the
of laying the rails and constructing and managing
the which would not be to the grantees and
which would be adopted by any one almost matter
of course The only important provision Is that which
relates to the sweeping of the street But the expense Of
carry this provision in to effect would amount
very less than that which the other parties agreed
pay to the corporation They next state that the offer
which proposed take the grant upon the terms
and conditions agreed to by the defendants
not accompanied by any purchase or offer to purchase
the lines Of omnibuses established in Broadway
whereas they aege that they through their repre-
tves had made contracts with six of the PRINCIPAL omn
bus lines in Broadway, owning two hundred and forty
omnbuses TO buy out their lines for the purpose Of with
drawing the omnbuses from Broadway, and with view
OF transferring them to transverse lines TO in
munication with the railway. But IL they had made
these contracts why had they done so They not
Olndh nv teri Of he Mt