The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-04-04
New York and Its Legislative and Judicial
Protectors.

1rOtectOr1.
There are few persons in this metropolis
so enamored of the system pursued Of late
by its Common Council, or 50 confident In
the probity and wisdom of the city fathers,
that they will not rejoice at the recent mea-
sures taken by the judicial and legislative
authorities to check the hitherto uncontrolled
and unchallenged action Of those to whom had
been confded the vast interests of this city.
We publish to-day two documents Of engrossing
interest on this subject, namely, the decision Of
Judge Edwards-concurred in by Judge Strong
given In the Supreme Court on Saturday,
and other city railroads, and the substance Of
the contrary decision of the other member Of
the Court. Judge Morris,) taking totally diff
ferent view Of the matter from that acted on by
his learned associates.
The first-that of Judge Edwards and Strong
seems to be predicated more particularly on the
superstition that the streets of New York, but
more especially Broadway, are private proper
ty and. therefore free from the action and be-
yond the control Of the city government The
decision does not say SO in so many words; it
merely questions and leaves in allegiance the
right Of the Corporation over the streets; but
the idea pervades, and probably has led to the
conclusion and judgement of the majority of
the Bench. The tangible point on which the de-
cision is made to turn is that the Common Council
did not use fair discretion in selecting the re-
cipients of the Broadway Railroad grant; that it
rejected, without any adequate public cause,
various other offers which would have conduced
more to the benefit Of the city; and that, in fine,
to use the words of the document, there could
be no other conclusion than that the Corporation
has shown an entire disregard Of the public in
terests and Of it's own duties"
On both of the grounds taken by the majority
Of the Court we dissent from the legality of the
judgment. Nothing can be more preposterous
than the idea, or insinuation, that the streets of
the city are private property. If this Judgment
were to be received as law, then the owners of
property on Broadway would be the persons
not the Mayor or Common Council-to make a
railroad grant. and to license and exercise con-
troll over the omnibuses and other public convey
ances plying through it. Then railroad tracks,
laid down and in operation in other streets might
be torn up by posse of proprietors. Then
there would be no power in the city legislature
to remove nuisances, or to prevent the owners
of property extending the sidewalks into the
centre of the road, taking up the gas or water
pipes on their portion Of property or cucumber
ing the~street with their wares; or, If they
thought that business was migrating upward
too quickly, to their loss there would be nothing
to prevent the owners from turning Broadway
into a cui-de-sac, by building across it at
Fourth street. The supposition is too prepos-
ferrous to require any sort of reasoning except
that Of nd nbsurdum.
The other ground assumed by the majority Of
the Court appears to be no less untenable. II.
as is alleged, the Common Council did not ex-
ercise any fair discretion in the awarding of
railroad grants-if they even did allow them
selves to be influenced by undue and criminal
motives in making them-stil the judiciary is
not vested with power to impugn their mo-
tives or annul their action. The Common
Council Of New York is legislative body, an
swerable to the people. by impeachment or
criminal prosecution, for malfeasance in office,
but quite Independent of the judiciary for any
other sort Of legal proceedings. To our mind,
the Marine Court mi ght just as well issue an
Injunction to prevent the Legislature Of the
State from passing new city charter, as for
the Superior or Supreme Courts to take cogni-
zance of the legislative action Of the Common
Council.
Such. we see, is also the opinion of the mi
nority Of the Court. Judge Morris has dissent
ed from his colleagues on both these PROPOSE
tons, ard has given a lucid statement of his
opinion on the matter before him In his
opinion, the discretion of the Common Council
has been unfortunately exercised; but he con
siders that since that body was invested with
governmental power the Courts have no au-
thority to interfere.
This, as We have sad, is the true, rational,
and legal exposition of the subject. Judge Nor
ris i pre- cminently qualified to give sound de-
cision u his matter since he speaks on points