The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-07
cuss that point, as each Alderman was served with

With he Injunction; and upon the reason Of the
thing Il was enough to serve 1t upon the Mayor For
what object is it servedf The object Of TIE service
is that YOU may know upon what ground the injunc-
ton was obtained to the end, that you may answer
the ground and get rid Of the Injunction. The aida
Wit not TO be served upon the party for the purpose
of enabling him to Judge whether he viii obey the
order Of the Court or not. That would be y MONS
trous doctrine. An Injunction must be obeyed, al
though improperly, or even irregalarly, issued In
Woodward vs.. King, Cases in Chan. 2O4. the in
junction had issued without an order or afidayit 10
warrant it; and yet the Lord Keeper declared that,
notwithstanding the egularty, the injunction must
be obeyed. The rule must be so. The command OF
the Court must be respected so long as II remains IN
force If the process irregulary issued the RENE
dy Is motion to set it aside Until that IS done, the
process must be obeyed.
The principle has been settled in an analogous case
A man cannot be held to bail for debt without
der of the Court which is to be made upon affidavit;
and the affidavit and order must be served upon the
defendant, upon making the arrest (Code, ls4)
II has been held that though the defendant is not
served with the affidavit, it is, at the most, only
irreguariy and does not entitle the defendant to q
discharge He may move for copy OF the affidavit.
sd Code Reporter 1887 The affidavit in that case
should be served that the defendant might know
upon what ground he arrested and be enabled 10
take the proper steps to have the order Of arrest
modified or discharged. The affidavit was not re-
qured to be served that the defendant could read
it, and judge for himself whether 1t was sufficient
and whether he would submit to the order of the
Court. And though no affidavit should be served,
the orderof arrest, and knock the officers brains out
for serving the process II would not do for him to
say, the Aldermen did, ''there is no law for this
der: the Judge does not understand the law, and
therefore will dsobey his command, and knock the
officers brains out" But he had just good
right to do so as the Aldermen had for contemning
the order Of the Court because copy OF the affidavit
was not served on them. The Aldermen took no such
ground this. They boldly defed the order of the
Court. and 'rebuked" the Judge who made it in the
most insulting terms; and now they come here seek
ing shelter under one OF the qurks of the Code They
will not be able to escape under that cover.
II was said, if the Injunction operative to
individual members Of the Common Council, it does
not, in fair construction, prohibit them from voting
this question. The Common Council proposed to
make the grant by passing voting for the resolu
ton: and the injunction forbids them from making
the grant. The prohibition includes all and every
mode of granting, whether by deed, vote, or other
wise. There is no room for construction about it
voting is as much forbidden is any other mode Of
making the grant.
Then it was said, that the Injunction only forbids
a completed or contaminated grant, and That this
was complete until accepted by the grantees II
there be anything in this objection, then man may
do everything short Of perfecting the forbidden mis-
chief, with impunity. II commanded not to tear
down house, he may pull down all but the founda-
ton without violating the injunction. Or, if forbid
den to cut down the trees Of orchard he may cut
down all but one and yet go free. But take the
rule to be, that when man is restrained by injunc-
ton from doing act, he is not at liberty to take
any step towards its accomplishment. When the
Corporation was forbidden to make this grant it
forbidden to do anything towards and with intent to
make it.
It is very true that this grant was not, technically
complete until accepted by the other side but the
defendants should have qualified what they did, il
they did not intend the act should take effect in de-
fance of the injunction. want no better llnstra-
ton than the one put by the Defendants counsel.
They say that on the construction of this injunction
claimed by the plaintiffs, an individual restrained
from making grant, and requiring to absent him
self ON business, could not sign, seal, and acknow
ledge deed and leave it with his attorney to be de-
the injunction" l say he could; and the counsel
quite right in saying he could Bnt these Aldermen
weer not about to be absent on business and the
grant might just as well have been made at another
time. They did not do an inchoate act, to be
peted on the dissolution Of the injunction. They
completed the work far they could complete it;
and did so in defiance of the injunction.
The complaint states that the grantees had given
and alleged that upon the resolution being adopt
ed, they intended forthwith to accept the same in
writing, and thereupon to proceed with the work.
They were ready to seize on the grant the moment it
should be made. With the knowledge of this fact,
the Aldermen passed the resolution, which was all
they could do towards perfecting the grant. 1t
quires some hardhood to say that the injunction
not violated because the grant not perfected
If the injunction not violated then it could
be broken by the defendants They could not ac-
cept the grant. That was the act Of the grantees
and the grantees could not by any act Of theirs
4 charge the defendants with a criminal offence.
! have got through with most of the small OBJ
/ jeetons, and now approach the ground upon which
these Aldermen placed themselves when they adopted
the resolution Their position is that the Court had
\ jurisdiction to grant the injunction. If they are
right in that, they not in contempt, because
man is bound to obey the order of court which acts
without jurisdiction. The ground on which the jurs-
dction Of the Court is denied is, that the Aldermen
were acting in legislative capacity; they pass
ing bylaws or ordinances; and in such cases
told that the Court has no power over them. They
anhn he n tn ha
compared with the State Legislature, with Congress-
with the Parliament in England, and bodies OF that
description 1t is proper here to distinguish between
jurisdiction and between the right power to
decide, and the giving of an erroneous judgment Jul
risdction power To hear and determine to admins
ter justice to Judge and decide upon matters brought
before the court. When the court haspowe to do that
its judgment is valid however erroneous it may be.
If the court want jurisdiction the Judgment will be
void but If has jurisdiction, whether the Judgment
be right or wrong, it is valid until it is set aside,
versed, or annulled in some way. This is distnc-
ton which the opposing Counsel did not attend to.
For the most part they discussed the merits, and at.
tempted to show that a proper case was not made
granting the injunction That is quite wide Of the
question whether the Court had jurisdiction. Upon
the subject Of jurisdiction. refer the Court to L. :.
ArIedonds, (G Peters 103) and Grignon W.
Astor, (2nd Howard 2ss) where the Court
say - the power TO hear and determine a
cause. i jurisdiction; it is eorom JudicG when
ever case is presented which brings this power
into action. Now, here there was court of general
jurisdiction, having power 10 hear and determine, if
any court could do so.
in the second place the plaintiffs have capacity
to sue; and thirdly, the defendants, though corpo-
ration are liable to be sued. Fourthly complaint
that the defendants about to do a wrong TO the
plaintiffs, and praying relief by injunction; and
Ifthy, the Court had power to grant that kind of
relief in other words, it had jurisdiction OF the pro-
cess. Now | would like to know what more was
necessary to give the Court jursdictong The Judge
had discretion TO refuse to hear ont the plant
lie was obliged to listen TO it, and decide one way
or other upon the question whether a proper case
had been made for issuing the Injunction. And
though his decision may be erroneous, it is just az
valid il would he il he had judged rightly ! will
show, at the proper time, that the Judge made no
mistake. ! do not discuss that question now, be-
cause the defendants have right to make it until
they have purged their contempt. Still, will
ton some OF the questions presented by the com
plant. I will not argue them at large now because