The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-11-16

yspss VIII which the private and estate Of the
s:s s city .n
&c s: K K. .:a I; To
grant political legislative executive ADD
ss:
the susd apas
cS.p, II sssssSy .sas n"
else in entering into the and ssipai
pn; IN Ss o 0r I'D os. ~s the streets. pubic
TO- part and psraeot its s lavs and executive
TO ss
Of aud others u.s.
Jacob sharp and others, (known the Broadway Rail
road cass) DECIDED At general term though dissenting
from sosistes Justices Edwards and Strong in the
hDs conclusion they arrived at yet upon the subscts OF
the power and authority Of the Corporation over the
streets of the city, and Of the In this
court by Injunction to interfere with the political lers
ative &C ion OF the Com Council the Justices hodlog
the action, and deciding that cause unanimous
Justice Edwards. In his opinion the following
mistateable and conclusive language:-
the Dongan charter the then e.istny streets with
power Of out such streets IN future as Nigh.
ss M "a:
Inc and manager Of the public right for the commga
city Of New Yort, public municipal cooperation
nate legislative powers to be exercised within cers limits
Thus vim b seen that . far As acts the sxsrciss Of
w s tho an rhs s t.
are wise unwe whether they passed from good
5s:ss ssssss n: opinion, .s.ss:Tss ;:ssSssa +
s %
srei.s Of dsyolysS the Common Council in It's
Question: VIZ .si:.ssss z ~ s!ssss.s
tho
would necessarily have inc Iapssd and eventually pre-
ss ss ls$iiis principle sass
Or appointed to administer the laws not 70 make hem
TIT learned Judge by whom tho inunossn in
question allowed, beyond the Of his
ss sss
bli'hed BY the practice Of the Court Of Chaneery"
In the correctness of the legal principles thus pro
claimed by my associates in that fully Cured
which made the opinion Of that Court, far as tn
legal principles concerned unanimous The subject
matter Of this suit is the paving Of streets the paving
Of Streets by all Is conceded to be- on the part OF the
Iporaop, the performance of . municipal POLITICAL
political body.
These legal principles are applicable control this
case The justice at Chambers had no jurisdiction upon
the plant of citizen by injunction to interfere with
the municipal legislation of the city The counsel for the
plain upon the argument claimed that the decision of
Others not only authority for The principle he
tended for but decision Of this upon the point
in que ton and that the Justice at Special Term
jnt iciay bound to follow it the settled law Of this
court do not understand that case. In my judy.
ment there palpaole difference in the facts aud the
legal principles applicable to these two Some Of
which iferences are the following
1.-The Broadway case was instituted after the legisla
tive body Of the Common Council had exhausted their
legislative action upon the subject after the law had been
passed by the legislative power while in the present
the matter pending before and being considered
by the legislative boz of the Corporation.
In the Broadway case the action was brought by one
SGT OF individuals against another of Individuals
who formed no part OF the city government to test the
Legality Of law item already passed while in this case
the suit Instituted by individuals against the govern
nent ITSELF with the purpose and tor the express object
to the Sa Of the
fore them in their municipal POLITICAL and legislative
capacity.
Ii the matter OF the Broadway case the corporation
were to receive revenue for the permission granted BY
them to the defendants and the majority of the court
based their decision in that exp essy upon the po
stion that the corporation having granted the private
property of the corporation to the defendants for
OF moty less than they offered for it by other par
ties, the corporation guilty of breach of trust
because they did not take the largest sum offered which
would have been most beneficial their the
taxable Inhabitants. The majority of the court put
their decisions expressly upon The ground that the grant
of the private property Of the corporation and for
which they bound trustees to take the largest
price offered.
In that sass Justice Edwards says:-
In my Il ,sns what
thing or or whatsvsr b. It's legal d.
sgnaton II species Of properly Of some kind II
@ . T.
might city in case that
had ,ecepsed ,he offers wieh refused Surshen upon
which public treasury would have been Ssnsae
JUS ice strs ng Gays
ter or give away or mako grant
a. in the present case tho city has no property
IN the street and receive from Russ and
Reid for the privilege Of paving the trest it is not
but is municipal p tcs duty performed for the be
tit alike of all the citizens, whether taxable not and
for travellers using the whether they be residents
not Of the State Union-and for which tho city must
pay and cannot rece money There feature the
one upon tho principle which the maj rity Of tn.
Court decided it, that DO distorted into Multitude
any feature sontaned in the other The cited by
the ceunel for the plant IA the OF the
caseswere in relation to the private property of the
Corporation in which the taxable nhabi of the city
had an interest, and in which the cor poration
and pa PIERS wharves slips Croton works. &c.
The present Is in relation OF the ordinary,
cost of which il to be betrayed BY taxation, and In all
respects is similar in principle to sweeping the Streets
lighting the city with gas or oil supporting the poor,
of Epidemic the destruction Of buildings to stop
oopagson the expenses Of the are department of
police and Of the mill ary, when called suppress
riot repsI MISUNDERSTANDING the mill AIRY TO
IRE upon mob or an invading force, ss to exempt
those who obey the order DIRE from the penalty
der, should they kill any In my judgment, If the
principle commended for In this be law then
tax payer Of the city by Injunction suspend the
bury the dead light the Streets cxtngush fires sup
press riots &c., for the jurisdctional that
sSs glan.s own propsh ny taxation might 10
will be SAID Judge would grant such injunction
That may be; but still Is is impossible to anticipate how
far precedent might exer the present auction cpl
demc. however am un~ilrg by any opinion Of mine,
even by implication to b. considered asserting that
institutions are 30 constituted that the law deems
the possession Of property to be superior to the
mtnt and that man, because he possesses wealth. has
the Legal right to stop the from attempting
TO protect the community, and from performing
alike demanded by the ordinary dictates of humani y,
and by off cial oahs The point presented that pri-
vste citizen CANNOT institute proce. cngs NUM-
cipa Corporation, to restrain excessive jurisdiction
that such suit must be nstu ed by the Attorney GEN
ersl IL well taken This point IL clearly presented
and concusyey disposed of by the Justice who decided
this at special term Justice Edmonds that is