New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-07-06

~ 49, ;; p, 80 ~, ~ - & Reid .nd al the
member. both Boards Who VOTED for the MEASURE rs
charge therefor is IN he regarded '-,nz ~ nc ~
established practice Of the Court 81. -O'
10 be considered in deter mining the guestOA OsVIe mo
AZ 10 the fourth charge that the price pr oosea 20 os
paid Russ Reid excessive and unreasonable i ~
by statement by them under OATH and By reports VI ms
Committee Of the Common Council which may ms> no,
BE- satisfactory those who are clothed with the power OF
acting up n the subject.
The ffh charge has three propositions frs that the
solution not based statements previously made by
The proper officer The amend th- charter passed
IN le+s enacts hat no money shall be drawn from the
Cny treasury ues previously appropriated and al sppro
prlsions shall be basSd upon SPECIFIC and detailed state
u ens III Writing Of the several heads of departments
through tbs Controller
The resolution in question sppropates $4,000 but does
not sp. 70 be 6As cd on any statement required oy
tbs statute.
Nheiberihs epscmeniis merely directory As has ben
held in respec the provision Of the charter Of l-l)
curing the ayes and TO be taken or Is 50 essential
10 void any act cisregardng it. question which
it is not becessary here 10 discuss.
TIE second proposition IS iha; ths resolution usurps Er
ecuve power The first section Of the Of 1879 vests
the legislative yer OF the corporation in the Con
Council, ard the 9th section the Executive pOFer in
the Mayor and heads Of departments and prohibits tbs
Common Council, any of It's Co nmit;ses member
from performing any Executive business whatever eIe-p
such IS may be specially imposed them by the laws Of
the State
The statute is very indefinite what Executive and
what legislative pOger. One thing certain that all
appropriation Of money clearly legislative, while tbs
"OpenIng, regulating aud paving streets and prOy1.ns
supplies for them, are Executive.
The Legislative power il nowhere defined but there are
various provisions establishing Executive departments, and
defining their respective duts whence you'd thu
what 10 lot thus oeDed Executive must continue - D.
LegilSye for the that, the passed the
Common Council the general receptacle Of municipal
power ard the depAriI took only what expressly
given them. To hat effect section ~ which declares
that the several Executive departments ana the oc7rs ana
clerks thereof shs he suit - the Legsttv regulation
direction Of the Common Council so far as tue same
shs not be inconsistent with that act.
4 and -.n
ton OF the several Executive departments part ths
legislative power of the Common Council wherever II is
not expressly regulated by statute
Now It CONCEDED in this case thst it is within the leg
islsye province of the Common Council 70 direct the
streets TO be paved provided in this resolution bat It
is insisted The desgnsiOn OF the persons Who are 70 d. It
and the prce which it TO be Executive, and
therefore belongs 70 the head Of department and Ut 10
the Common CouDoil-n other WORDS, that the Common
Council might direct that the pavement should be laid bat
thst il the head Of the department 10 deermns
who should do IT, and Whist terms and that the only
naming power of the Common Council wJald be 10 sp
propri4e the money which might be necessary to enabls
the head Of the department 70 carry out contract which
he might nsktthe terms Of such contract being entirely
ard exclusively within his control
such il tie CiAm up by the plaintiff in this ard
and L may be Tor future consider uln wa her
it is wei iouIded or moi.
The reue.rng branch of this charge namely: h. the
resolution takes away the power OF executing from the
Street Depar ard cOniers II the Departmental Re
pairs and supplies, to 10 DO well grounded Inc
latter depsn bas under the statute, cognisance only
Of repsirs supplies Tor public payemens shile Is the
Street DepaumeLi alone has cognisauce of paving
The SIKH ,sree that the resolution hurried thro IN
10 iCress the act of l'5j unnOticed by any OF the
parties
that the resolution hurried through the Common COun
Gil to tore stall The act OF l'j Ii Is established that
there positions before the Common Council 70
the Tok cheaper than proposed by the resolution
that the ration not based on any previous state
ment from The proper department ana that the whole
work placed under tie charge of the wrong depart
uei II is doubtful whether proposes ufurpstDn %
Executive power provides for an easons0le aud tx
Ccssi,e cOInpens and Is deuled aud cOnrOyerted
that There any corruption or bribery in tn case
And the ng question is, whether uod-r ~ n cir
cuuste{ cs Is competent or proper i' ms Court 10 III
tenere by junction either preliminary or hnh.
laIproad this part oi the subject win uuiegaeo dill
dtnct because an constrained 10 dd-f opinion sIih
several Of ny brethren the bench, whose opinions
have ever gaded with aspect aud because miy very
well from thence sppreh-ud thar may err
But truly say with one Of the ancient Judge. d" Il
lis scIaon IT great comfort o me tia. 1t do
"my dmtt s not coHcu,ivet 70 the party but my mis-
take be recthvd, and 50 ini lsice MT b. done.
have ever looked win alarm upon 'i5 lht-r etsio'
the judicial with the Executive or Legislative D-pTt
mtDts Il the Government and whenever u hs been ne
ctsssTy tor has sometimes % weigh L-gl dy7
Enactment il scales of the Constuop hAve endetv
ored with cautious prudent pains taking as vel
as arss baud and have been the more ANXIOUS oi late
the usrn ing increase OF Discretionary power whoa
has in Ills state within the last Tow year, been thru,.
up,n the Judiciary until have trembled for the pern
ntncy OF system thus beset with temptation and trial 4,
lis every step
cpe of our institutions has been the duy which de-
VOWED upon the Judiciary Of restraining Executive or L.
esatNe utuTpatOn upon constitutional lay. ntJrtu-
Ist,y there has nothing but lis own sense of pOpd
tty restrain Judicial usUrpauon, and rs usual mode
hitherto If restraining the other departments, has been,
not boy Pre- hbitng the act but by declaring void ant
that sbt could be acquired under H. Thus Vas that
the supreme Court Of the United States nullded nso
vent anC steamboat laws the stop laws of some OF
Mesitrn and the anti slavery laws # Penusylvin
And thus III recent case did Court OF Appeals over
throw Ii, act for the enlargement OF our canals.
I'm. principle of institutions We DO not inherit from
ENGLAND win the great Of the Common ltx which
goS,ifs U.s. for there the Parliament regarded
npoient but II Is in great measure Indigenous 10
county, arising from the fact OF our having written Goa
sttutUIs Designating tie powers aud duties Of the different
DepartmeLis Government IL put forth Ia Tie FL
erqii No &C. and in less than five years after adop
ton of the Constitution, It asserted by Courts
heHt Com 45o Ddbes $40 Ii has oeennsintned slnc5
by oi s.nes decisions, and almost, Il not uniform
Is by restraining Legislative action but by declaring
il void. go
strain legislative action II would require clear, marked
al unequV Oca case Of legislative u'urPaon and
which there other remedy, that ud iudgcs
depart from practice which thus sprung Up the uf.n
cy of our county ana has been thus steadily adhered 1y
III. ssges Of the law than my years. Ih IS NOT
sucb case II is conceded all hanus that plrt Al
least of The obnoxious resolution IS an untquyOca exer
else of legislative power, and alter Il shall have passed
remedy would be- ample and complete any the lds
NJ d, n,rtmeut thin whose province II ght me- refs
ing 10 execute B. void Jaw and thus tne question b.
properly brought before the proper iIo anAs Tor haa
IYl be- observed that am d discussing the question
whether the act of the Jmmon Council IS night
merely whether IL Il be wrong il i proper loo tle Court
interfere 10y lis strong hand ana rs rAtluay ppF-- OF
injunction. on aoelHisn IN stht fi 90 +ratf, and
much prefer lar as may De allowed .ny op,n,
herug Tie practice winch Las obtained from tie VERY
foundation Of tioyeTnneI All walsh see 10
COED reason 10 depart.