The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-23

some act upon land are generally revocabIe, and
therefore do not confer any right. Some cases haye
held that mere parol license t operates, whe
when applied to land, is inconsistent wiz
the provisions Of statute relative to fraudulent
conveyances and cannot therefore apply here Therd
can Be no doubt but that q written permission
to use land in particular way for designated time|
for the benefit OF the person to whom it is given, ii
consideration o. some act to be performed by himI
is grant of some right in the nature of an incorj
pOreal hereditament and therefore confers property
upon the grantee. The resolutions in this cas-
speak of what they effect as the grant OF perlnis
sion or authority. Technically, the word grant il
inappropriate to a mere license, but it may havd
been used in this instance In its popular sense, and
1t is not therefore very significant of the characte
OF the interest intended to be conferred. The del
PENDANTS are authorized to lay double track for %
railway and OF course to remove SO much OF tho
existing pavement as may be necessary for thai
purpose, to continue the same from time to- time II
run cars upon the such rails for the conveyance d
passengers, for which they are to have licenses, n
receive compensation not exceeding five cents fol
each passenger to form an association with the ar
thorty to make by laws to transfer the interests Of
shares to new associates assigns and to c0ntinu
their operations for ten years. and for renewed tern
if they and the corporation can agree as to thu
amount of the future license fee, or otherwise ID
surrender the road to the corporation At fair and
just valuation Surely all these provisions indicate
something more than mere rev0cable license; thej
convey valuable right, which, upon the performance
of the primary acts required from the defendants
would vest in them and Of which they could not b|
deprived by repeal OF the resolutions. 1t is not COM
petent even for the legislature Of the State to I'D
prive party of vested right although it may havl
been conferred upon him by statute. (The PeoplI
VS.. the Supervisors of Westminster county, Att
Barbour S. c. r. Ga and the cases there cited) ThI
right which these resolutions purport to confer ce1
tainly bears very strong resemblance to o iran
chse. The privileges granted to, and the dutieI
exacted from the defendants, are much TIL
wi
prietors OF ferries, wharves and bridges. Al
relate to public matters, the grantees OF each hav
duties to perform, and expenses to pay, and all an
entitled to demand and receive compensation fro1
those who are personally benefited. 1t detracts nd
from the comparison that the railway, when finished
may be freely used by all. Similar privileges al
often reserved in the grants Of bridges and ferrie
In the case under consideration, the grantees wou
have the exclusive right to convey passengers in cal
rages running on the rails for hire, and tina
no doubt, would furnish them with liberal con|
pensation Notwithstanding the implicitly reserved
rights of the people, There are some extraordinalI
features in the grant under consideration. Th|
Mayors power to grant licenses for public vehicle
is restricted and, as it has turned out, without h
consent Corporate powers are conferred upon III
associates and they are entitled contingently to dl
mand the future value Of the railway and its appu|
tenances from the city, which might result in hea,
taxation, or what might be mOre an enormous deb
l should hesitate much before could decide that
passing resolutions embracing these provisions til
Common Council! had not gone beyond its power
II the grant is void from the want of adequate pow
to make it, or, indeed, invalid from any cause, t|
plaintiffs as proprietors OF lots and buildings d
Broadway would be peculiarly and seriously injurd
by an attempt on the part OF the defendants to co
struct the proposed railway, and they would be q
titled to an injunction to prevent evils for which th
could obtain no adequate redress in the law.
matters not that the resolutions were adopted by tl
Common Council in their legislative capacity. ~
privilege of exemption from judicial interference ID
inmates when Legislative action ends
am not, however, inclined to, nor is it necessa
that should express any definite opinion as to Il
validity Of these objections, concur with my b
Their Edwards in the opinion that the papers sll
mitted to us prove clear breach of trust, whit |
invalidated the grant. There is undoubtedly vii
difference in this respect between the acts Of t
State Legislature and of municipal corporations Sta
laws are enacted by the people, through their rep
sentatves in Senate and Assembly. They act in the
sovereign capacity, and are subject to no further
strictions than such result from their accession
the Union, their own constitution, and such prime
pies as are justly deemed fundamental in all civZ
countries. They may, therefore, through their co
stitutional representatives, give away the pub
property and no power can annual the grant as i
provident or destitute Of any valuable or appropr
consideration. But the city corporation is an infer
have been expressly delegated to it, and their app
pirate Incidents. The Common Council has
authority, under the city charter or any statute,
give away or make an improvident grant Of the pr
performance of any Of its legitimate duties It's
position of such property, including franchises,
therefore subject to the common law principle app
cable to the grants made by trustees to whom {
management Of private property is confded. 1t
right on every account that it should be so. We're
otherwise, unfaithful members of the Common Cou
Gil might squander the public property in sum,tuo
entertainments for themselves and their fiend
pompous and expensive parades, professedly Union
of the living or the dead or presents or improide
grants to their relatives other favorites. Thu
which would result from such improper if not rim
nal conduct, and particularly to the tax payer
whose legitimate burthens are numerous and feav
would be intolerabe. The difficulty might be ,voi
ed if intelligent and honorable men only sholld
elected to Office. But the experience of other corp
rations, if not Of this city, has proved that hpwev
desirable such consummati0n may be it isnOt
ways attainable. It is evident from the papers la 4
before us that propositions were made to the Cor
mon Council to construct and manage railway
Broadway on terms much more advantageous ID t
city, in pecuniary point of view as well as in eth
respects, than those contained in the grant t. t
defendants-so much SO, indeed, that the diffaen,
must be perceptible to the defendants, and the
must have accepted their grant with fl |
knowledge that it had been improvidently mad
1t was said on the argument that these pom
sails were made for the purpose OF defeating I'll
project but the facts stated in the papers d. n
establish that inference-at any rate sufficiently
warrant correspondent judicial action The Conmd
Council might have avoided this difficulty by mth1
rzing the construction and management of tn pr
posed railroad under suitable conditions, and thu
referring it to the proper executive officer TO sdve
tse for and to receive proposals, and to accent
those which might be more advantageous fol Il
city. But the two Boards did not think proper
pursue course so obviously just and proper; and
members have subjected themselves to the imput
ton Of violating the high trust committed to thel
and measure which. properly matured and p1|
perry guarded, might have proved highly benefci
to the community, to great delay, if not to eventu
defeat. The injunction should, in my opinion,
granted
The Turf.
NEW ORPHANS RACEs.-BIRTAIRIE COURSE, March le
Facing match between Dan Rico and Bob CottereI I
follow ing 10 the rs,ult -
Dan Rice ACKNOWLEDGEMENTS. 1 81
~ SoS'>As 4
Time, s4N-2:37-24l--24 8.