Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1853-12-30
NEW YORK CITY RAILROADS.
TUE BROADWAY RAILROAD.
Decision Of Judge Dusr in the BrOadray Rlaray Case
Injunction Against the Project Dec!aFeG fepe'0o''
.r,,,,np CONVERSATIONAL TERM.

THE BROADWAY RAlLRCAD
Decision of Judge Dusr in the BrOad'fay Rnray Lase
Injunction Against the Project DecaTea fepe'0o''
SUPERIOR coURT-spEcIAL TERM.
NV o6-Thr Attorney General Thomas f. DAVIS, anu
orhers vs.. the Mayor, &C., OF Now orE' JACOB o'i
and others-lhs cause has been nliy hea upon c I,u
mos md proofs and complaint has been aHehnsu o}
The of the Attorney General az prosecuting
marry am enabled and shall proceed 10 denver my
opinion upon the several questions Of act ana law 'ao
necessary To determined do not cohs'rue le aeet
2GT Of tho Code as making it the duty OF Jndge VINO mas
red cause without Isry, 10 set TORN IN MS aee'+'oh a.
in special verdict al! the iacts OF lhe case
noi cunoyert,d BY the pleading, AM those w'ch although
conlruyertcd he may deem imnaerlal 60 lar as ques
lions of fac, are concernrd the Judge IN my OPINION lus
hi, du,y by determining the ssues wh" III his JUG
are maefial. The only issues laS.d ny INC pTuos "
This case which deem 10 be naclia', arc INC
E,tsi whether the railroad in Broadway which Jacob
Sh,.rc and his associates, defendants 10 ttis su ca
hs, rb have lawful authority construct, ana av""
bG IN hHHstWiil ne nu5c nutsance1 and Sc
cond whether the grant made BY The Common Counc!! !"
Jacob Sharpe and his associates, OF the privilege o laying
down aud constructing the railroad in question: was niae
in bad faith and from corrupt moves ana must eleoc W
condemned as fraudulent breach OF irnstl
The affirmative Of each o! lheae Issues 10 maintained oy
the plaintiffs and from OF the acts rcea on was
necessary 10 be established b. the clearcs evidence Inc
evidence that has been given am bound 10 say mas aru
10 proJuce In my mind that deliberate conviction 'a'
in ease like the present could alone justify me IN declsen
onrne,ual nIunclun. Whether The contemplated ra!oan
will or will not be public nuisance, Is problem when
am peruaded that experience alone can scl'e ahu a:sufeo
q
no thar those members OF the Common Council VINO voted
for the grant, which is mpeached az fraudulent mus. heceS
sarily have acted in bad faith aud from corrupt
wn of ,hsr members been examined hs Witnesses
and have under oah the reasons by whch ey were
influenced in voting for the grant in question nave no
right TO ccct their testimony nor 10 ann" 'na' 'sc WI"
ynrd wh them we're governed by the same conshefa
tions II they were the grant, whatever lay be my private
opinion Of its expediency, made IN the honest exercise
of discretion which court OF justice ca" ',s,u"S W.
rrrere with or CONTROL The conclusion 49, that ad inc ue
f tho painT. 10 the relief which they Seek, oepcnned
soey upun their maintenance of the issues Ut act rae y
the peadngs must have dismissed their compan'. pro-
coed ~ The questions VI law, upon Vic ue'' "
which my Judgment will be founded. ,o, :,
The resolution of The Common Council, OF the gun De-
ceoher Is not an act of IcgsIon-no law IN the proper
.en of The term; il is the grant OF aanchse WHICH, "heh
accented by the grantees became contract upoh e ef
and conditions set forth in the ordinance Inc conHaC
rhus made from its and terms 10 en'fe-so 'ha.
u n II. noysous especialIy those which enter into the
consideration of grant, found TO be Illegal Is V9u
ma whole The contract thus considered, 10, IN my jug
ment null and void upon its face for the reasons that io
The resolution OF the Common Council not merely
grants 10 Jacob Sharpe and his associates the pyese
LAYING down and constructing the rairoau "'I" u u
scribc. but in consideration oil their performance VI
on,ns and requirements gives them perpetuai Incense
for running for the transportation VI
the railroad be constructed the contract 'nereoe vi
The part of the corporation, is not mercy tna 'he ia
NAV he buIlt but that when built, II Inc grantees so
elect IL shall be permanent. These provisions are w NY
Judgment directly inconsistent vh me power w''csl e
charter piyes the Common Council, oil altering ana e2u'a
linz The streets of city lis disceiloni since 'hey
arc valid manifest that no regulation oil eau
hereafter be made by which the rights and pr'eseS vi e
uron,e,s "a defined by the contract can Dc olvesIed o I'M
haired re they are valid and the nllruad sha Dc ou nc
Common Council will have no power 10 oIaet us n
or 10 prohibit the grantees from running Gals ' " Wv
TRANSPORTATION OF passengers N, it,
propery the grantees and VIII no longer pe e'u W w
Corporation in trust for the ciiy Hence, IL 'G su. w
Jacob Sharpe and his associates are valid inc legislative
power of the Common Council in relation 10 Tue pncp'
street, and most mportanta thoroughiae o! le cr' mas
ceased exist. The grant, therefore, cannot pc 'au w.
less the Common Council by contract
the Discretionary powers which the charter gives ana re-
quires them to exercise. No proposition OF law however
more evident and certain than that Inc nuncp1 coIpou
jon cannot by contract by any other act aorosae OF
abridpe its own legislative Discretionary powers ouch
was ,Tc language Of Chief Justice Marshall in G0giien "
the Corporation Of Georgetown 70 wheaton, D'' anu
such the decision, | understand the opinions, ol "it
Judges the Supreme Court Of this State In tue cases OF
the PRESBYTERIAN Church the Mayor 10 Cowen o3o ana
of Brton v the same in which the counsel nave furnished
me with the opinion of the Court 1t was not Denied upon
the argument by The counsel for the deenuans hal Tie
necessary effect Of the grant TO Jacob Sharpe ana MS
cates and Of the contract which It implies cohssugo uc
cordng TO It's terms is limit and abridgc the Legislative
powcrs CT the Common Council; and the only reply given
10 The objection that the grant, although absolute OH
its face may be repealed and the contract although not
revocabc by terms be rescinded, whenever the pre-
sent or any future Common Council may deem IL eHpccn
thus 10 exercise its inherent and naenaoe power Inc
resolution of the Common Council was insisted ough
be construed, as should have been o'und 10 Gu?
srue il han il contained express rrGEsrn Icndtilfe
subject to future ami unconditional repeal The really lus
given am forced reject upon full deoeraon ca INSULT
Gent and unsatisfactory am vel learn thu! there is OF
can be any exception from the rule that contract which
corporation has power mase end e0phatcay ~hefe
violates the provisions of Its charter Is void In lis origin
and am yet learn that contract valid when MADE car
be rescinded either Of hepares unless the power of re-
scindug expressly reserved given by some con
surional or statutory provision which force when
the contract made refer this subject, with full ap
probation and assent the observations OF Mir Justice
Bosworh In the las, OF his advisory opinions in The proceed
ings against the Aldermen and Assistant Aldermen io
an alleged contempt agree with him that II has GER
tainly never been pretended supposed tina! eeis
atye grant, valid when made, and falling within either
of the exceptions have gated be repeaed and
believe that the corporation U this city possesses an
authority which the Legislature of the Stale would never
be permitted EXERCISE believe that the provision
in the constitution Of the United Satc which orblds the
passage Of any law mp.lring the obligation CT contract
binding upon the Legislature Of The State but unmcanns
nod Intellectual as imposing any restraint upon the action
the Common Council 1t Is, however, unmcaniuE aud 10
etiecua if Common Council may by subsequent or
dinance revoke grant rescnd contract absolute and