The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-01-24

The Broadway Railroad Injunction Cass.
SUPERIOR couRr-aESKRAL TERN.
The Hem Judges Duer, Campbell, Bosworth. and
Jan. 2s.-1Somas 4. Davis and Cowslards
Palmer as. The Mayor, Aldermen and Commorol
IN of the CRY of Ner Yrk-Mr. d. Field continued
his argument on behalf OF the defendants, follows:
May itplease the Court, the next point wish to
jurisdiction. as appeared upon the face OF the com.
plant. contend in the first place that they had
no jurisdiction to award injunction to restrain the
passage of resolution. and there no authorities
that can be adduced to substantiate such PROPOSE
tion for since the time when the great seal OF Eng
land taken from the ecclesiastical chancellors,
to the present day, no authority can be found, IN
which that court although it has been filed by
succession of chancellors apt to ampfy their lurls-
dction, has undertaken to enon the passage OF any
resolution whatever. Surprising, however, that the
resolution passed, can You enjoln Its being carried
into effect contend that this Court has no lurlsdic
ton whatever to inquire into the manner IN which
the Common Council Of this city exercised tner dis
erection. Now, this depends upon three questions.
First, were the Common Council legally assembled
II il was legally assembled, had II discretion IN
respect to the granting of this railroad, and II
II had. can any court control that discretion!
The counsel the opposite side contends that the
Common Council were not legally assembled. and
therefore that all question OF discretion is ut an end
that they were not legally assembled when they
passed this resolution because previous to its passage
the Board of Aldermen had adjournedfrom Thursday
until Monday and that, consequently their act was
void and the Court has jurisdiction to restrain such
an act. They adjourned it is admitted, from Thurs
day night to Monday morning, and the law OF the
State, section four OF the act Of ls49 under which
they act, provides, neither Board shall stand ad-
journed for longer period than three days without
the consent of the whole body" But on this point
the practice of the government is clear that it can
not admit ola doubt The provisions Of the consttu
ton of the United States are precisely similar forthe
fourth subdivision of the fifth section says neither
House during the session Of Congress, shall without
the consent Of the other for more than three
days. BY reference to the Congressional Cto6e,
when Mr.. Justice Campbell was member OF the
House. find that the session commenced on the
4th December and that the House adjourned without
the consent Of the Senate from Thursday to Monday
morning; and every person who IS at all conversant
with the business at Washington knows the fact that
the Senate, being generally ahead In its business
adjourns commonly than the House, and that it
is common for the Senate to adjourn from Thursday
to Monday and that the House goes on with business
during Friday and Saturday. Can you, therefore say
that everything done in Congress is void The
observations will apply precisely to the Legislature
Of this State. Now, with reference to the second
proposition, supposing the Common Council legally
assembled, what is the state Of the authorizes upon
the point whether not they had the discretion to
authorize this railroad to be laid in Broadway. The
learned counsel in support of this point, cited Dun
gars charter, section 2, pages IA and 10, Montgo-
merys charter. section l6, page 49, which gave the
Common Council power to " establish to appoint to
direct and regulate" all matters appertaining to the
streets-to do whatever is necessary in respect to
those Streets and to make and govern them in every
respect. The same power is given to Congress by
the constitution of the United States; and the Court
knows very well that in the case Of Gibbons and Og-
den, the Supreme Court held that Congress, by the
force of the words to regulate, had complete con-
troll over the whole subject of foreign navigation and
commerce. the expression in the constitution being
''to regulate commerce with foreign nations The
fourth subdivision Of the eighth section is Con-
gress shall have power to establish post offices and
N1.nA Do~-
not that power; and here we have the charters Of
the city giving power to the corporation to establish,
direct, order amend and alter from time to time the
streets lanes and roads Of the city, Does not that give
under the constitution Of the United States estab
lish post roads uniform rule of naturalization, and
uniform laws on the subject Of bankruptcy through.
out the United States2 The learned counsel then
giving power to the corporation to fix railroads in
the streets of city or village, &c.:7 Barber, 53S
and 546 Drake against the Hudson River Railroad
Company; 10 Barber, p. 26, Plant against the Long
against the Albany and Schenectady Railroad Com
pany, IL Barber, 554, Whitehall's case, Adams
vs.. Saratoga and Washington Railroad Company;
Dana, page 2s9, Lexington and Ohio Railroad
which is, that you have right or jurisdiction to in
terfere with that discretion and the various auhor
ties that shall cite, show not only an entire absence
OF authority in favor OF it. but most concusvey that
the nave not, ana never QaQ, ana NOBODY Will
ever pretend that they had, any such jurisdiction.
will first cite some English cases upon the subject,
where it is laid down as rule by the courts to in
terere in cases OF property or funds bnt never to in
tertere in any manner with public functionaries 20
long as they conine themselves within the exercise
of their duties which prescribed by law He cited
the following cases:-lst, Milne and Craig, At
torney General VS.. The Mayor of Liverpool:
Ellis V. Earl Grey, Simonds Reports, PA; and
He cited numerous cases in the American courts, in
behalf OF this proposition among which were Mar
barry vs. Mattison, Or anch, page l37; Meseral
The Mayor of Brooklyn &C. A long discussion here
ensued between Mr.. Field, Mr. Bronson Mr.. O'Conor,
and the Court to whether the counsel for the de-
PENDANTS could offer anything in reply to the remarks
OF Mr.. Van Buren, in reference to the fraudulent
character Of the grant, but it was ultimately decided
by Judge Duer, that he must confine himself to the
allegations in the complaint. The learned counsel
his remarks by contending that the Com
mon Council had shown no dsrespect to the Court in
this injunction.
ration. He said-If your Honors please, there are
some circumstances brought before the Court that
calculated somewhat to disturb the regular flow
of justice in this case. The parties who moved for
with view Of showing, and upon those pa
pers intend to argue, that the party against
whom the present motion is made = Alder.
man Sturtevant was guilty of some personal
issued or allowed the injunction in question.
1t is very certain that in bringing that before the
Court the learned counsel will not refer to it merely
in support OF an argument that the passage of that
resolution is equivalent for a compliance with the
Code in respect to the service of the complaint upon
Alderman Stnrtevant; but his object will be to in
fame the passions Of you and your learned associate
who sits at your side and who issued the injunction,
and as far as possible to cause different sentiment
than mere judgment to influence his feelings in the
advice be may give you Iregret that such circum-
stances should appear in this case, for deem it to
be one OF the greatest possible importance, and
in which the judgment Of the Court should be
swayed by private feeling or passion. know very
well that the learned Judge will endeavor to restrain
as far possible the promptngs of feeling of re-
sentiment against what may seem to be intentional
personal disrespect. say may SEEM for do not
think it was 80 intended; but have learned by ex-
perience that Judges, well as aldermen are men.
] find it said by one Of the wisest Judges who
ever sat, and whose opinions are most frequent
ly cited, That exciting cases make bad pre-
cedents; they inhame the passions, seduce