The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-03-14

ment The aggregate amount Of the fines and
costs which the Aldermen are condemned to
pay is $12,760 96; q rather large sum, as our
readers will probably think, for differing in OPT
MON from the Court as to the Interpretation of
our city charter.
1t now remains for the Court of Appeals to
decide finally whether the city council, acting
in legislative capacity. under legal charter,
are liable to be restrained and prohibited from
doing what, in their discretion, seems fit. The
Court must first decide whether granting pri-
vilege to lay down rails in Broadway is or is not
legislative act. If they decide this question
in the negative, the action of the council then
becomes private contract, and they themselves
appear simply in the light of private corpora
ton, liable for their acts. and not possessed of
has right to claim II, on the contrary, it be
held that the permission to lay down rails in
Broadway was an act of legislation, the Court
will then be called upon to decide whether
Judge Roosevelt had or had not the authority
to interfere with their exercise Of the legisla-
tive power thus delegated to them. We need
not observe that the higher legislative bodies,
such as Congress and the State legislatures,
cannot be restrained" by judicial injunction.
They stand above the law. They make the
law. But it cannot be pretended that the same
is true of the Common Council. 1t was not the
intention of the Legislature of New York. in
granting the city charter, to confer upon the
rent with their own. Certain duties were as
signed to the aldermen and assistant aldermen
and sufficient power was placed in their hands
for their discharge; but no more. The question,
therefore, naturally resolves itself into very
succinct shape: was the grant Of the privilege
Of laying rails in Broadway such an act as the
Legislature may fairly be presumed to have in
tended to invest the Common Council with
power to do or not at their discretion? If
the Court hold that it was, the interior
enee of the Court was unjustifable and
the spectacle of batch Of aldermen a
the bar may possibly be followed by the appear
ance-of a Judge in similar predicament,
charged with false Imprisonment of fellow
citizen. IT. on the contrary, the Court of
Appeals should be Of opinion that the Aldermen
were really guilty of contempt the sentence will,
of course, be confrmed-the S12, 760 paid over to
the proper officer, and Alderman Sturtevant
will endeavor to spend his fortnight in prison as
pleasantly az he can.
Far be it from us to ntrude our crude notions
into the company of the arguments which the
learned luminaries of the bar have evolved on
the subject: but it does occur to u.s. as it does,
we dare say. to many plain matter -offact citi-
zen, that if we elect men to serve as Aldermen
put charter in their hands which invests them
with certain powers, and imposes on them GER
tain duties, and duly swear them in to discharge
their functions to the best Of their judgment and
discretion if after this, a question arises on
which the Court-a body whose interference
was not contemplated by the charter-says no,
and the Alderman's judgment and discretion
say yes; if the Alderman, being conscientious
individual and having the memory of his oath
in mind. follows the latter. then, it seems to us
we repeat, that to fine him. and his fellows,
s12,760 for SO doing. is an act of very question
able propriety.