The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-04


In his way wherever \ is desired 70 part with We
rs:sption . s. IS psohibitidn x the Mayor i as
vaIueless as his non-concurrence would be II the
grant took the usual ana ordinary form; and il you
can get nd Of the non,joinder OF the Mayor in
resolution and letting him veto it, and then passing
it in defiance OF his Veto Of course that mode will
be always adopted in parting with the city property
wherever 1t s impossible get the concurrence Of
junction remains in force it must be obeyed, although
1t may have been enormously, or even irregularly
Issued. The Court will find a great variety OF au
thorites cited under this proposition, but shall not
feel authorized to detain them by referring partcu
larry to many Of them, for do not understand from
the other side that they intend seriously to question
that proposition; and yet it seems difficult for to
see how the acts Of these Aldermen can be sustained
unless they have right to judge whether the njunc
ton was properly or improperly issued; but that this
injunction did restrain them from doing precisely
what they did do seems to us reasonable and clear
upon reading the injunction and the affdayits OF
what they did. They pass precisely the resolution
that they were directed by the Court not to pass.
They passed it after the service of the Injunction
This particular party-Alderman Sturtevant-
for it with 1.-THE injunction in his pocket, and they
passed resolution that the Court had mo authority
to issue such an injunction. The order, also, which
has been made by the Court in this case, that
they will decide upon this question OF attachment
without hearing argument upon the merits OF the
case, seems to us to preclude the other side from
raising this question, or, at all events, from Offering
any objection 10 the proposition which is here main
tained But the strong language used by the Court
in two or three cases, might, perhaps, properly be
referred to, and refer the Court to the case OF Su
van vs.. Judah, 4th Paige, A.
Judge DUER-That proposition will not probably
be contested upon the other side. AT all events we
will not hear you till it is
Mr. VAN BuREN-You win find cited variety of
cases. some of which refer to another aspect OF this
question. For example, the case Of Lansing vs.
Easton 18th Paige, 364, which refers to the effect Of
the advice OF counsel, in authorizing aparty, or in
recommending party, to violate an injunction. So
does the case in 9Th Vesey, 1903.
Mr.. O'COS0R--There is no evidence that Alderman
Sturteyant had the advice OF any counsel
Mr. VAN BUREN-As such advice is presented
here, the counsel says such question arises. Pro-
baby such advice was not given. The newspapers
stated it had been and pretended to give the names
OF some half dozen lawyers who had given snch adj
vice. II is only another proof of how little faith one
can put in newspapers. Laughter2 ! refer the
Court to the cases in Paige, 444; Howard, 225; s
Howard ia, and two casesin chancery, Woodward vs.
King. The next proposition is that the injunction
to restrain the making Of this grant was properly
addressed to the Corporations and when served, the
order was operative upon every branch and official
member Of the corporate body And we also add in
addition to that, that it was operative upon their
agents and attorneys Now, do not know how far
it is intended to dispute that proposition, but the
court win find several cases cited under the third
point to maintain it. Some of these are cases Of
mandamus directed to corporations. think that is
the case in Lord Raymond $50 and $50, (the King
vs.. the Mayor Of Abingdon,) where mandamus
was directed to a corporation commanding them to
do certain acts; and, upon their refusing to make
return the question arose who should be the parties
attached, or which members Of the corporation
should be the parties proceeded against The court
will find in these the ground distinctly stated
that the persons who refused to do the act-the Off
GERS OF the corporation, or the part OF the corpora
ton who refused TO comply with the order OF the
court are those against whom the attachment should
issue. There one or two cases from Comberbach,
in reference to this point (Harcourt VS.. Fox,) page
2l2 and, under the next proposition is the case of
Smith against Butler, Comb, 326-327 The first
case was mandamus directed to the Mayor,
Aldermen, and Common Council no return was
made, and an attachment was issued against
the officer whose duty it was to make the return.
The case in Comberbach, 327, was that the Mayor
and commonalty of New Sarem failed to perform an
award, which was made rule Of court, by consent
an attachment was then issued against the officer
who refused to perform We say fOurthy, that there
was breach OF the injunction by every member Of
voted to make the grant. Every such member acted
in direct contempt of the authority of the Court and
the commandment Of the law. The case Of Agar.vs.
the Regents Canal Company, (Cooper's Chanccry
Cases, 10 was not case where an attachment was
granted, but the defendants came in by afidavits,
and showed cause, which, as the court thought, left
1t doubtful whether they had violated the injunction
or not; but it is an important case, because it was
very deliberately argued and the facts were very
severely Irrigated. II was the violation of an inunc-
ton by the Canal Company, which restrained them
from changing the course OF their canal Sir Samuel
Romiy and Bell argued for the motion, and Worth
and another against it. The injunction was not
granted, but it was not suggested throughout the
whole argument that the individuals who violated the
injuctiOT-who violated it for the cofporaton-were
not responsible for their conduct There is case in
Modern Reports ILL.,, The King v. The Mayor and
BTgesses Of Tregony. question arose there
whether peremptory mandamus to the Mayor and
Burgesses Of TregoDy to elect and swear in mayor,
could be awarded A mandamus was granted in the
first instance to do the act and they made return;
but before making return they took an exception,
that il the duty Of the burgesses to elect and the
mayor to in that their duties several and
that neither could do the whole act which the man
damus directed But the Court held that the writ
was properly directed, and called upon each to do
that portion OF the duty within his province. They
made up return that the time Of election had gone
by ana again the objection was renewed that it be-
longed TO to n and the other to elect; but
the Court held that the peremptory mandamas
should go, and that each should discharge the share
OF the duty that belonged to him. The Court will
find reference given to Kyd Corporations, $50,
where the rule is laid down we suppose it to be.
See, also, ! Barbours Chancery Practice, 636-the
Bank Commissioners vs. City Bank of Bufiao-de.
punishment of the members of a corporation
for any corporate offence, the Court will find
two authorities of cases OF indictment against indi-
vduas-directors OF a coporation-for the violation
Of corporate duty; but have found no indictment
against, nor had my attention drawn to any instance
OF the punishment OF a corporation in its corporate
capacity. On this point | wish particularly to call
the attention of the Court to the of The King
Holland, ) Term, K. COZ and 622, and also to the
case Of Kane vs.. The People s Wendell, p. 2O3, 2O9.
We suppose that the punishment and the proceedings
in this depend upon the same principle they
do in proceeding criminaly against party by the
remedy of Indictment. The Court will also find, by
reference to the statute, what is their duty and what
are the duties Of parties in reference TO the process
off the Court; and perhaps it may he well for me- in
this connection, to call the attention Of the Court
for single moment to them. The Code, at section
21s provides for the issuing of injunction order by
Judge and for its enforcement as an order of the
Court. There various provisions of the Revised
Statutes which are cited upon the points to the
mode Of punishment, the extent of fine and i'm
urisnnInent the Length of imnri soumenf and