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

der Of she court m uh Issued IN VIC exercise VI Tvs
These extracts show that the Superior Court claims the
jurisdiction TO control by injunction the legislative &C
tep of the Comon Council and to sompel al its mem
bers while in their legislative capacity, and acting upon
Of . single judge and against their own deliberate
opinion and that, should the members Of the Common
Of iusn matter e IN p na ns
and consequently void The Judge, in his opinion, also
beers dest absolutely from the Of
stances BE- rehtfuliy addressed By Of equity
munieip. corporation s Common Cosnea and Z. s,esr.
The words which have italicsed present the aues-
ton which this Court has under consideration, viz.
Was the injunction Of Judge Campbell in truth issued in
the exercise Of his proper Jurisdiction II it Was not is
sued in the exercise of proper jurisdiction them in
the language of Judge Duer "he Common Council and
its members in the Just maintenance Of their rights
frmatve was not IAN illegal and criminal act, which
could confer NO right" This leads to two questions.
New York Second, what are it's powers The Mayor,
Aldermen and Commonalty Of the city Of New York
municipal corporation created for gGEsrnmsnts por
respects, the character OF private corporation This
corporation has two separate and distinct series of
one that of government of which win speak hereaf
ter the other that of private corporation which will
integbly defining the line between its property, iabi
Titles duties and objections, as private corporation.
and H. ns 81 thS ss anS
Notes and City Charter, page H. section p grants rat
dss and confirms 70 the Mayor, Aldermen and Common
The City Hall state House, with the ground thereto
as a sas ,hs &
and every Of their members and toge
AZ s'i deessa
1 wharf.-the within the , nd dock all and nss the
the said Hall and State
sStnoiy s,n9ss to the
IL cify Of No, YOrk and Ma hiatt
Island extending to low watermark" sc. Page 49, Ito
lay out their grounds and build upon them" &c. The
propeIy before mentioned and grants vacant lands on
both sides Of the East river bet high and low water
Pege 49, 3d. renews these grants and makes add
tons to them. All these grants the Mayor, Aldermen
and Commonay hold trustees for the benefit Of the
citizens at large As regards this property the corpora
ton is private corporation trustees for the citizens
and in relation to it, may be sued in the manner
as private corporations and their agreements in relation
to it. their sales and leases Of it, may be governed and
controlled by the courts by the same process and in the
same manner that courts deal with and control
porations Of banks, insurance companies, and village Ii
prares Chief Justice Nelson in the case Of The Mayor
Aldermen, and CommonAlty of the city Of New York,
administrators Of Joseph Britton, says
The charter of the city Of New York eonfer upon the
wy S
and si s + G sa
X all aSd snp ss
The charter also conferred them the ferries both
Be s aar
ad shsi s r aaa
various description. properly &c. held and enjoyed
@ j. Il:
and disposition q the a1y that would 6 law
entered into in the of such and
disposition would be as obligatory upon them as upon an
In the case Of Bailey against The Mayor Aldermen,
and Commonalty Of the city Of New York. the Supreme
Court Of this State held
That the grant legislature authorizing the city
was the grant # franchise made as well for the
an that the 81 sns rs be
regarded private company and to be dealt with accord
In the Berrian Island case tried in this court in which
Justice Edwards delivered the opinion Of the court
the Washington Market case, in which the opinion was
delivered by Mr. Justice Roosevelt sustaining the inunc
waite company and were dealt with accordingly because
in both cases the subject matter Of the controversy
was the private property OF the corporation att. inc
York possess another and very different and more i'm
portant power ,goyernmentale power This power is
They may pass laws for the Of the people.
and enforce obedience to them by fines and penalties
Their control over streets and highways their right
TO do anything in relation TO the streets or to order it to
be cone granting to others in relation to
political governmental power is limited and subject to
the control Of the Legislative of the State but to
the extent of the power delegated to them in their
with it, they exempt from judicial interference
dicaton and conto is the State government itself
distinct the three departments Of OBSERVATION-DISCLOSURES
tive executive AND that neither . shall in
This separation is necessary that the people
may through the independence Of these departments DO
protected against usurpation Of arbitrary power BY
either So long these three departments act indie
pendently Of each other liberty to the citizen is prac
teal existing principle; but the moment one of them
absorbs the other the judiciary compel
q
vote in accordance with its dictaton BY mprisoning
nose me an tins ms % be-
oppression it is only because there ia no immediate rea
son for its exercise By the charter Of the city and BY
men and commonafty Of the city Of New York in their
exercise Of powers the delegated they
subject only to the Legislative action of the State alter
tribunals Of the State acting only in the same manner
that the judiciary can act against the officers Of the
State and against the laws Of the state If the Legisa
tuie OF the State is about to enact law papaby
sttutional the judiciary cannot legally issue njunc
tien to prevent members voting for the law or to com
pei them to vote against it. After the bill has received
all the forms to make it law and is attempted to be
used law, the judiciary, BY injunction, may, I'M
So also the Common Council ars
about passing law or ordinance that either uneonsti
tstonal or beyond the delegated to them By the
tercre with the action Of the members by injunction
But after an ordinance has received all the sane.
II,
then tho courts either by injunction or by other
proceedir gs, as may be required in the particular
case, may declare the ordinance to be void BY
reason Of the want Of authority TO enact it. IT. however,
the legislature Of the State have the constitutional power
upon the subject and the Mayor, Aldermen and Common
atty have the charter to the law ordinance
the entire discretion as to the details of the law
ordinance vested in the Legislature in the Common
Council and Judge judicial tribunal has right
interfere because they may be Of opinion that such dis
erection was unsound, indiscreet, erroneous or even
corrupt courts permitted to interfere with the
discretion Of the law making power then would be at
the discretion Of the judges and not of the legislators
that made the laws, for law could exist unless it
squared precisely with judicial ideas Of what dis
Greet and proper 1t will be perceived upon examina
ton Of the charter and Of the statutes in relation to
them, that the streets are under the control of the
Mayor, Aldermen and Commonalty, as a government,
(unkc the ferries the City Hail. the lands PIERS docks
and slips &c., which belong to them as private corpo
ration) The streets expressly declared to be for
the and service Of the said Mayor Aldermen and
Commonaty Of the said city and of the inhabitants Of
Manhattan Island aforesaid, and travellers there
tKent CON- On. H. 15) Therefore, giving the corpora
tcn the power to lay out streets and to alter and