The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-28

various powers to which | have referred in the
charter vestng them with the entire power and con-
troll over the streets, and to direct and order Them
they could not under such power, grant the right
TO cleanse these streets for specific sum, make
binding contract upon them that should endure for
three four years; and therefore IT was held that
that was void act, and consequently that the
grantee under II had power to enforce it against
the corporation. So here, ii this Common Council
had attempted to contract with these parties that
they should have right TO continue that railroad
there for iye'or ten years. the next Common Concl
could have rescnded the act altogether and revoked
their consent. Suppose, now, that the Legislature
passed an act not within their jurisdiction, which
would violate private rights, it is yod but yon can
not forbid that Legislature from passing It, You ACT
upon the agents who attempt to avail themselves OF
it carry it into effect In that view every benefit
is derived TO the party, without the inconyenient
power, If il did exist, of the courts interfering with
the legislation of the city, or with the discretionary
power Of the parties ntrusted with the power TO act
That would seem to be perfect answer to the obec
ton that this license has been granted by the corpo
ration ITSELF without any reference whatever to the
Street Department; but if the court please by look
ing at the provisions upon that matter think It will
be most apparent that this was case which did not
come within that provision of the charter The pro-
visions of the charter in this respect will for mo-
ment direct the attention OF the court TO- There are
two parts of the amended charter to which the court
have been referred. 1t will be observed that one
great object of this amended charter was to prevent
what had been considered up to that time an impro-
Der exercise OF power, OF auLQOr1ty OF JuTlSulC-
ton by the different Aldermen of the city, in making
contracts each within his own jurisdiction, and the
dsposng of them, or having the patronage OF these
different contracts at his own disposal, and many
evils were apprehended to, and probably did arise
from that circumstance. Therefore, in this amended
charter there was distribution made of the execu-
tive and legislative functions The Legislature vested
the whole legislation in the Common Council of the
the administration of the executive powers, and
among others it conferred upon the Street Commits
sioner particularly the power OF making all contracts
of a certain description. Now, we will presently
show what these contrasts were. And first as to the
executive power =" The executive power Of the cor
poration shall be vested in the Mayor the heads Of
departments, and such other executive officers as shall
be from time to time created by law and neither the
Common Council, nor any committee or member
thereof, shall perform any executive business what.
ever, except such as is or shall be specially imposed
upon them by the laws Of the State and except that
the Board of Aldermen may approve or reject the
nominations made to them, as hereinafter provided.
They shall not exercise executive power. And the
other clause in the amended charter is, that "all
contracts to be made or let by authority of the Conn
mon Council for work to be done or supplies to be
custody Of the several departments or bureaux shall
be made by the appropriate heads Of departments,
under such regulations as shall be established by or
dinances Of the Common Council. Every person
elected or appointed to any Office under the city 60.
vernment shall take and subscribe an oath or afr
nation before the Mayor, faithfully to perform the
duties of his Office which oath affirmation shall be
filed in the Mayors Office Now then, in the first
place, the Common Council, as such, or any member
of it, is precuded from the exercise of these executive
powers which are indicated by these charters. All
the powers given to the different officers they are re-
strained from exercising They have eXerted no such
legislative capacity permitting railroad to be laid
in Broadway but they refer most especially in the
conditions which follow that resolution and be-
eve in the resolution itsef-to the Street Commls-
uInryv hos
tive part Of the matter is to be performed the laying
down the rails, the doing it, and SO forth. 1t Is
to be done under his superintendent and the gene
raj orders which they give upon the subject and iney
give the license which these parties are to have by
the laws Of the State. The only question that re-
mains upon that branch Of the subject is, was this
amended act? The terms OF that section are: Gan
contracts to be made or let by authority OF the
Common Council, for work to be done, or sup
plies to be. furnished" What work was to be
done here that comes within the meaning OF
this section? This-rails were to be laid.
Was that work to be done, supplies furnished, by
the corporation? Were they to be remuneratcd for
that work 1t seems to me that the meaning OF the
ection is too plain possibly to be mistaken. II re-
ered to all that numerous classes Of contracts which
are made by the corporation for the performance OF
the various work which they have to transact
throughout this immense city, among which are all
The operations upon the streets which are made at
he public expense-al the supplies to be furnished
or their use in all directions. Those are the con-
racts that come within the meaning Of that resolu-
ion. Here is a mere license to company to lay q
abroad in public street. at their own expense. and
without any reference to the corporation, OF any con-
ract with them upon the subject whatever 1t nei-
ther within the letter spirit Of that act,
participating in any way, in benefit profit, from
those contracts which were made for the public and
the public use. Could this matter be referred to the
Street Commissioner? Had he any right to make
license or give grant? None at all. II was no
power in the corporation hat could authorize, OF
could allow, or license the ting down of that rail
road in Broadway, but the corporation ITSELF by its
legislative act. They could not refer 1t to the Street
grant which could under the provisions Of that
charter They could not advertise for proposals for
doing this because they could not by possibility
ceive remuneration. 1t could not be set up at auc-
ton; it could not be disposed Of by saying who were
the highest bidders for this property. 1t was neces-
sarly to be done by the corporation ITSELF in the ex-
ercise Of its sound discretion, and by its legislative
act In the case of Christopher against the Corpora
ti0n there the work to be DONE and about which the
contract was made, was on the private account
OF the corporation for the building OF new market.
Now, there the work was to be done for the corpora
ton and the Court will perceive, by looking at the
case, that the corporation did in that case attempt
to proceed under that section. The Board of Alder
men first passed resolution that the market should
be built and then ordered that some advertisement
should be made All these acts were under that
carried out, and when the question came before the
court the court said, lyon have not done what that
section requires and they put it expressly upon the
ground that this was u contract for public work
which the corporation had no power to make, and
which one could make under that charter but the
Street Commissioner, and it was upon that ground
that that case was decided. And, as it appears to
me, in that view OF it, 1t was correctly decided There
the act to be done was the taking down Of the Wash
ngton Market, and the erection of new market
believe, upon larger scale, in its place. The con
tract was made by the Common Council themselves,
directly, and not in pursuance of this section Of the
charter, and the court said, When you made that
contract, it was one that came directly within he
scol Of this twentyrst section and you were bound
charter. You have not done so, and consequently
your act is void and the contractor cannot succeed
ia his action upon that contract" But il is said
that the corporation cannot authorize this railroad
without making compensation to the owners Of the
land for the portion oil the street that it was to oc
cupy. Well, it seems to me, If the Court please,