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

IL
tirslv over this view Of the subject without giving
the court one or two references under IT, as to the
authority of municipal and other corporations. /
will, therefore, now allude briefly to what We sup
pose 10 be the difference between the power which
they have and the authority of the State Legislature
and Congress- Upon this subject refer you, not to
cases but to digest, and series Of propositions
in this digest sustained by cases which think will
call the attention Of the court sufficiently to what we
suppose to be distinction between the powers Of
this corporation and the Legislature And we sup
posed the authority OF this corporation far II is
called legislature is incidental to every corporation
without any express authority given, its charter is
one of the incidents Of corporation and one OF the
elements Of its constitution. ! refer to Comyns
Digest, Title Bye-Law A., that a corporation
may make bylaws without an express power
by their charter. But those bylaws which corpo-
ration either municipal or other, has power to make,
are subject to very great restrictions and to almost
unlimited control on the part of the courts For in
stance the general principle in regard to bylaw is
that it must be consonant with reason and aw-that
bylaw must be lawful. 1t is for the courts to Judge
then whether a bylaw is reasonably made by one of
these corporations with the limited power to legis
late that they all have. Nobody suppose, ever
heard that any such restraint or control was exer-
csed over act Of the Legislature act Of Con-
gress on the contrary people are divided in opinion
almost constantly about the reasonabeness or propri
ETY. OF various laws passed by the legislature, but no
body thought that the court could control that
legislation or declare it void for any such rea-
son. Again, bylaw cannot be made
to extend to persons other than the members
of the Corporation. Their authority is to legisate
over members, and they cannot make it extend to
strangers, unless by the express authority OF the
Legislature. If the court viii look at the original
authority in this Corporation to egislate which is
given them in Montgomerys charter, for example,
which willnot read, but refer the counsel to kents
notes, at page % the court will see how properly
guarded this authority OF the Corporation to pass
bylaws is made. and how entirely consonant It Is
with the general rule. Their laws and regulations,
which they are authorized to pass, are to operate
only upon the inhabitants of the city, and are even
limited in duration to three months, unless they are
subsequently passed by the government and council.
This sort OF minor authority to make regulations in
regard TO the corporate property and the duties Of
corporatOrs, is sedulonsly guarded in the charter
of this Corporation, and in various acts of the Legis-
ature passed from time u time which have gone to
enlarge their power; and when they desired to show
an authority TO pass any law, they have looked to
their charter or to some Of the acts OF the Legislature
which gave them such an authority. Now Il the
court will look in the same book, pages 80 and III,
they viii beabe to see how far this authority has been
enlarged from time to time. For example, subse-
quently the authority to pass these byawswas given
to them, so that the bylaws would stand for twelve
mouths instead OF three months and then they We're 10
be confirmed by the governor in council or to be void.
There are two or three other peculiarties, and this
suggestion that make extends, as we supposed. to
every corporation, that no bylaw can be passed in
restraint of trade. They have the right to regulate
trade, an express right is given them, either by
their charter, or, where it is municipal corporation
in this State, by an act OF the Legislature to reg
late trade to certain extent, but they cannot pass
law in restraint OF trade. Why not? Laws OF that
kind can be passed by State Legislature or Con-
gress but a corporation has no such power. Again,
if they make bylaw which IS void in part, it IS
void in the whole We suppose that portions Of
these resolutions il they are to be treated as law,
clearly void that it extends to the whole. But
say that all authority and right to pass any law at
all is derived either from the LEGISLATURE or from
their charter. Their right to grant licenses, for
ample is in the Mayor, is and is derived from
their charter and from acts of the Legislature;
their right to regulate streets, their right TO pass
any laws regulating the health OF the city and
the police of the city, is almost in every instance,
given them by express authority on the part OF the
Legislature. They have thus, incidentally, regulation
of the property and OF the duties OF the inhabitants OF
the city, which belongs to the corporation Of the city,
the same regulation of the property and duties OF
other corpoTators like banks or academies, when in
copOraed, belong to such corporation. Butno only
are ali their laws subject to these restraints that
have stated and subject to the great limitation that
have referred to- but the existence OF the corporation
itself is at the mercy of the court The court will
collect the case OF the city OF London, In which pro-
ceedngs instituted to take away the charter of
the city itself; and the idea that body whose exis
tence is at the mercy Of the courts should have the
legislative power, and whose action cannot be super
vised by the authority OF the court any more than
Congress, or the State Legislature, seems to me a
proposition totally ineconcileable with reason that
cannot entertain it. How they assimilate their
position to the authority OF the courts over them! |
DO not mean over public acts, but over them them
selyes-to that of legislature over whom the courts
of course cannot take any action Consequently, We
say further IL the resolution which the Common
Council was about to pass may properly be regarded
as an act OF legislation, il still question for the
court to decide whether relief might not be granted
against an injury attempted to be done in that form
and whether the judgment was right or wrong. it
was not void. Now we suppose il appears most dis
tinctly in this case that the Common Council Were
not legslating at al at the time they were passing
Hpspr hut fpaf was IN yart
an effort to grant certain rights and privileges
and to enter into agreement with certain parties.
have called the attention Of the Court TO the pbr
seulogy OF these resolutions, to show that this in
point Of fact, in law, and woald not have
been held 50 by the Court. 1t was not an act Of
legislation, and not, under the forms OF legsla
ton, attempting to make contract, because the
binary form OF legislation was in no sense observed
Now, If the Common Council had ordered contract
Of this kind 10 be made by the Street Departm ent
which Is the proper department to enter into these
contracts nobody would have denied the authority
Of the Court TO interfere and arrest the execution of
that contract and arrest the performance. II is inn
possible for the Court to avoid seeing that the object
OF adopting this mode OF proceeding was not only to
exercise powers which the Common Council did not
possess but to attempt to evade every control of
the Court, which they have and do exercise va
Iious department. whose duty it is to do what this
Common Council is attempting to do in this resolu
ton. Now, reference to the authority of the Com
mon Council in the act Of lS49 is little important
in this connection, and which is commonly known az
the new charter of the city, passed April 2, 1919.
By the first section, the legislative power is vest
cd in the Common Council, and by the ninth
section they are forbidden to exercise any exc
cutye power and after establishing various de
partments, the twelfth section organizes what
is called the Street Department which Shall have the
power OF opening, regulating and paving the Streets
and which is undoubtedly the department which had,
il any department had, special authority over this
subject. Now the heads Of these departments, as
The Court is aware elected by the people of the
city, and not chosen by the members Of the Common
Council. They are subject, to certain extent, to
the direction Of the Corporation the extent of which
will be seen by referring to section Il. Now, the
Court in looking at the provisions Of this charter,
will see in the first place the express division of the
executive and legislative powers Of this Corporation
whatever they might have been; and in the next
place, the express prohibition upon the Common
Council from exercising any executive power. And
II seems to ire that the Court cannot look at the
resolutions passed in this case without seeing that il
is attempt. not even in the form OF q leoisliiye