The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-07-07
SuPrens Csuxt-speeaal Tern.
Before Hon. Judge Edmonds.

0uPgens Ceust-SPeeaal Tern.
Before Hon. Judge Edmonds.
TEE RUSS fAvEMxNr IN THE BowERY-rHx IN
JUNCTION DISSOLVED.
We reported last week that Judge Edmonds had
rendered . decision in the case Of De Bawn and
others against Russ q Reid, and we are now
enabled to give the opinion Of the learned Judge In
ertemso It is . very important document, and In
those days Of rampant injunctions upon every pro-
jeot and enterprise Of our city, 1t viii be read by
lawyers and laymen with very great interest
OPINION OF JUDGE EDA0NDs.
In this case, these plaintiffs as tax payers in the
city Of New York, for themselves and other tax
payers, have filed complaint asking that the Com.
mon Council Of the city may be restrained from
making a contract with the defendants, Russ h
Reid ,,ior laying q portion of the streets with the
Russ pavement. preliminary injunction is not
asked for. but permanent one 70 restrain the de-
PENDANTS from acting under q resolution then pend
ing in the Common Council aud not finally acted
upon and it is also prayed that such resolution thus
incomplete, may be adjudged by this Court to be
which this relief is sought are briefly these:--
l. That the taxes OF the city have, within the
past few years, greatly increased by reason Of the
waste, negligence, and corruption OF the Common
Council
q That there were two applications before the
Common Council, whereby the work proposed
could have been done much cheaper, and they were
improperly rejected.
s. That the resolution in question was sought to be
passed by direct bribery, from Russ Ried, to the
majority Of the Common Council,
4. That the price proposed to be paid to Russ d
Reid, was excessive aud unreasonable, and was so
made for the purpose Of enabling them thus to bride
the Common Council.
5.That the resolution is Illegal it violates seve
raj provisions Of the statute, namely, that it is not
based on statements previously made by the proper
executive officer, that it usurps executive power and
that it takes the power from the officer to whom it
properly belongs, and c0nfers it to whose de-
partment 1t does not belong.
G. That the resolution was finally hurried through
the Common Council, in order to evade bill then
pending in the Legislature and subsequently passed
into law.
Such is the case, as presented on the part of the
plaintiffs, on which, without hearing the defendants,
they were restrained by preliminary injunction.
The defendants have, however, now been heard be-
fore me. and shall inquire, first how the case stands
under their explanations and answer and, second,
how far it is competent, proper for the Court to
interfere in the thus made out by the evidence
on both sides As to the first allegation, that the
taxes have greatly increased within few years, by
the waste, negligence, and corruption OF the Com
mon Council no answer is made. The charge extends
back period of eight years, and none of the parties
to this suit seem to feel themselves called upon to
defend the former members of the Common Council
from this sweeping charge And, If that part OF the
complaint had not been stricken out as irrelevant to
the matter in hand should be obliged now to hold
those persons who are now in court, and cannot be
heard on the charge, as confessedly guilty of most
foul corruption 1t is painful enough for me to meet
with charges Of corruption SO freely made against
those who at present constitute our chief munich
pal authority. But it would be still more painful
# / were compelled to regard the charge as
distinctly made out against all who have admins
tered our affairs for the last eight years. l am,
however, saved that necessity, by the amend
ment that has been made, though must not over
look the fact that the charge was in the complaint,
and could not then be erased when the application
was originally made and granted fer the prelimi-
nary Injunction. As to the second charge, that
other proposals. more advantageous to the city,
rejected 1t is answered that Russ has patent right
and, under the supreme law of the land, q monopoly
for making that peculiar form of pavement, and
that under those laws he has the same right that
every other holder OF patent in the country has, to
demand compensation for his invention. As to the
third charge, that this resolution sought to be
passed by direct bribery while it is made only on
Information and belief, mode of statement which,
under the rules and practice of the courts is
sufficient to sustain an injunction, it is met on the
other side by the positive and unequivoca denial of
Russ Reed, and all the members of both Boards
who voted for the measure The charge, therefore,
is to be regarded according to the well established
practice OF the Court as overthrowD and not to be
AS TO the fourth charge that the price proposed to
be paid r. 4 R. is excessive and unreasonable, it is
met by statement by them, under oath, a1d by re-
ports of the committees of the Common Council,
clothed with the power Of acting upon the subject
The fifth charge has three propositions: First that the
resolution was not based on statements previously
made by the proper officer. The act to amend the
Charter, passed in 1s49 enacts $50 that no money
shall be drawn from the City Treasury unless pre-
viously appropriated; and all appropriations shall
be based upon specific and detailed statements in
writing, OF the several heads of departments through
the Comptroller. The resolution in question appro
PIRATES $4,000, but does not appear to be based
any statement as required by ths statute Whether
this enactment is merely directory, as has been held
In respect to the provision OF the charter of $780, re-
curing the ayes and noes to be taken, is
tial as to render void any act disregarding it, is
question which is not necessary here to discuss The
second proposition is that the resolution usurps
ecutive power. The first section of tie Act Of 1s49
vests the Legislative power of the Corporation in the
Common Council, and the ninth section vests the
ecutive power in the Mayor and heads Of depart.
ments, and prohibits the Common Council or any of
its committees or members from performing any ex-
ecutive business whatever, except such as may be
specially imposed on them by the laws Of the State
The statute Is very indefinite as to- what is ex-
ecutive and what legislative power. One thing
seems certain, that all appropriations of money
is clearly legislative, while the "opening, regl-
iating and paving Streets and providing sup
plies for them, are executive The legislative
power is nowhere defined; but there are various pro-
visions establishing executive departments and de-
filming their respective duties; whence it would seem
that what is not thus defined executive must con-
time to be legiaativefor the reason that when the
act passed, the Common Council was the general
receptacle for municipal power and the departments
took only what was expressly given them. To that
effect is section 81 which declares that the several
executive departments, and the officers and clerks
thereof shall be subject to the legislative regulation
and direction of the Common Council SO far as the
same shall not be inconsistent with that act. Thus
it is manifest that the general regulation and direc
ton of the several executive departments is part
of the legislative power of the Common Council,
wherever it is not expressly regulated by statute.
Now it is conceded in this case, that it is within
the legislative province of the Common Council to
direct the streets to be paved as provided in this
resolution, but it is insisted the designation of the
persons who to do it, and the price at which it is
to be done, executive, and therefore belong to
the head of the department, and not to
the Common Council. In other words, that the
Common Council might direct that the pavements
should be laid but that it was for the head Of the
department to determine who should do it, and
on what terms, and that the only remaining power