The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-07

ton s, ays, An corporations shall have the right
70 sue, and shall be subject to be sued in al courts
In HE cases - natural persons" What now re-
uaiAs = the comparison ON which the opppdng A.
G0ment rests. The constitution says c0spoEations
shan b subject 3 be sued"-that q, whsn any one
complains Of . wrong done or threatened by them.
But further, they shall be subject 70 be sued in
Ike cases - natural persons" II natural per
son-a creature that God made-had done or was
about to do u wrong, or II we complained that
such was the fact, the courts would have jurisdic
tion, or power to hear and determine the complaint
50 81 sa ueh qns 5s sh TO make O
the corporation; and by the constitution the corpo
ration is suable generally, or in all cases; and
the court is not at liberty to restrict its juris-
| diction to a particular class of cases.
| II was said that the members of the Common
| Council were bound to vote aye or nay, and could
not be restrained from doing so, because the 18th
Section Of the Charter of 1880 says The board
which such act, ordinance resolution has been
returned, shall, after the expiration OF not less
than ten days thereafter proceed to reconsider the
| same"
| 1t is quite evident that the word shall here
means no more than the word may. It was q mere
| grant of authority to pass the ordinance, notwith
standing the Mayors veto. There are many cases
in the books holding that shall sometimes means
may, and may means shall but the sense here Is 50
apparent, that have not taking the trouble to look
for cases. II it was command il was only to re-
consider the resolution in not less than ten days
It did not compel the Common Council to act at
that time. And finally, if command, it was be-
yond the control of the Judiciary. sheriff Is re-
quired by law to sell property on execution withina
certain time. But If Injunction comes restraining
ton must be obeyed And so Of many other cases.
/ have now examined the ground on which the Al
derRen placed themselves when they violated the in
junction, and the other grounds on which they now
seek to escape the consequences Of their conduct;
and If am not greatly mistaken, there is not sha
dow of defence for the act Of which we complain.
1t is evident, therefore, that great offence, and one
Of a most dangerous tendency, has been committed
There have been few such outbreaks against the laws
in this State The laws have been violated, and the
authority OF the court condemned, by the Aldermen,
who are themselves conservators OF the public peace
and sit in our courts, and condemn the poor, the
ignorant and the unfortunate to the prisons and pen
tentaries for violating the laws.
have said already that this is indctable offence.
Whether grand jurors selected by the Aldermen will
act, is more than can say. But if they do not, it
will be time to consider whether grand jurors should
not be selected in some other way. This may be
among the reforms which so much needed In this
clients have discharged their duty by bringing this
matter before the Court. And there leave it, look
ing for what doubt not we shall have, fearless and
righteous judgment.
Superior Court-special Term.
Duer, Judge-Camphall Bosworth, and Emmett as
ISOLATED with him on the argument
FEB. 5.-1hos. e. Daris and COurttarldt Palmer
against the Mayor, aldermen and Connonahy Of
the city Of Ne'o York.
OPINION OF JUDGE DUER.
motion has been made in this case for an attach
ment against Oscar w. Sturtevant one of the Alder
men OF this city, for an alleged contempt OF the
authority of this Court by an act of positive disobe
dience to its lawful process The material facts that
have given rise to the motion, and upon which its
determination, in measure, rests, shall endeavor
to state in few words. On the 9th of December
last the plaintiffs in their own right, and behalf
of all others, the taxpayng inhabitants OF this city,
exhibited their complaint duly verified, to our Asso-
ciate Chief Justice Campbell, who, on the same day.
in conformity to the prayer Of the complaint, and
holding that the matters set forth therein entitled
the plaintiffs to the relief demanded, granted an or
alias that the defendants, the Mayor, Aldermen, and
Commonality of the city, and each of them should
absolutely desist and refrain from granting to- or in
any manner authorsing, Jacob Sharp and others,
was annexed to the complant,) or any other person
or persons the right liberty, privilege of laying
double any track for railway in that street known
as Broadway, in this city, from the South ferry to
resolution OF the Common Council, to which
the complaint and injunction refer, is upon its
face not only by its manifest intent, but by its ex
press words,a grant Of permission or authority upon
certain conditions and stpulations, to Jacob Sharp
and other persons named as his associates, to lay
double track for railway in Broadway and White
hall State street, from the South ferry to Fifty
ninth street. and to render the resolution, when final
ly adopted, effectual as grant, nothing more was
required than that the persons named associates
should. by writing to be filed with the Clerk OF the
Common Council, signify their acceptance. The com.
plant alleged that the resolution had, before that
time been adopted by each board Of the Common
Council, and had been returned to the Mayor, with
his objections to the Board of Aldermen, in which it
originated, and averred that those members of each
board, Constituting in each a majority Of those
elected) bywhose votes the resolution had originally
passed, had given out and declared that they intend
cd again to pass the same, Notwithstanding the OBJ
jectons of the Mayor; and that the grantees named
in the resolution had also made known their inten
ton to file their written acceptance Immediately
upon its adoption. The actual conduct Of the parties
correspond with these antcipations On the 2Sth
Of December, the order Of injunction, together with
copy OF the summons and complaint, was duly
served upon the Mayor, and upon the same or
the following day, the inJunction with copy of
the summons, was served upon each member of the
Board Of Aldermen. On the evening Of the 10th Of
December the Board of Aldermen met, and the reso-
luton making the grant to Sharp and his associates
again passed--the Alderman now before US and
twelve of his associates voting for its adoption.
And in order, it would seem, that doubt might
main as to the nature and motives OF their action,
the majority Of the Board upon the same evening,
and upon the motion OF Alderman Sturtevant
adopted certain resolutions, which are set forth at
large in the papers before us, but which we deem it
unnecessary now to recite 1t is sufficient to say
that one OF these resolutions declared that it the
duty Of the Common Council to protect its own
dignity and the rights of its constituents the people
o. this city, by utterly disregarding the Injunction
upon its legislative action, and declaring their
. of the same :" and that preamble to the resou-
tons, which was adopted with them, declared their
sense of the injunction by denouncing it, in no
measured terms, as an attempt, without color OF law
or justification to direct and control the municipal
legislation Of the city, a. bearing upon its face cha
racter of ndiscreton not less unustiGable and not
less unworthy the judiciary than its usurpation of
authority and jurisdiction and as precedent Of an
unwalranted and unwarTanable interference with The
rghtfu functions, powers and duties Of legislative
body. The original resolution Of grant, and the addi
of the Common Council, were transmitted to the
Board Of Assistant Aldermen, and on the evening Of
the 30th of December the original resolution was
adopted by that body; but whether any action was
then or has since been taken the additional reso-
lutions, does not appear. On the same evening the
associates named in the original resolution, by a
writing signed by them ALL and filed with the Clerk
of the Common Council sgniied their accent anceIof