The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-07

nished and an sales Of personal property IN the Gus
tody Of the several departments bureaus shall be
ma4e by the appropriate haads Of department. under
such Fegulations q snaH = sstsbiished BY ord,
1880 sec o. provides That the executive business
Of the Corporation Of New York shall hereafter be
performed By distinct dspsstments;n and the sth
executive power of the Corporation shall be vested in
the Mayor the heads of departments and such other
executive officers as shall from time to time be
created by law, and neither the Common Council,
nor any committee or member thereof shall perform
any executive business whatever, except such as
shall be specially imposed by the laws of the State
and except that the Board Of Aldermen may approve
or reject the nominations made to them as herein
or disposing of the public property? The attempt to
make and complete the grant, including the execrl-
tive business OF settling the terms and making the
contract, was plain usurpaton Of power.
Fourth. The Common Council had no power to
grant to Sharp and others an exclusive privilege in
Broadway They could not do it in any form, either
by deed or by law. In the first place, they do not
own the soil in the site Of the street. It does not be-
long to them, and we can sustain that proposition by
abundant authority. But if they have any interest
in the SOIL they hold it only in trust for the free and
common use Of all.
Fifth. The railroad will be q nuisance to the
plaintiffs and others, and the complaint is filed on
behalf Of all. True, the remedy for public nuisance
is by indictment or information by the Attorney
General. But where it works injury to particular
individuals, they have remedy by action.
Sixth. Whatever interest in or power over the
street rghtfuy belongs to the CORPORATION, it holds
the same as trust, to be exercised for the public
good, and the grant Of these privileges for triaing
sum, with the right to demand five cents fare for
travelling, when the trustees might have obtained
million Of dollars for the grant, with charge upon
travellers of only three cents, was palpable breach
81 trust and gross fraud upon the plaintiffs and
the city. The Supreme Court has decided this point
in favor in the of Christopher vs. the Corpo
ration Of New York. The opposing counsel has
very summary way of dsposng of that case, by say
ing it is not law. 1t will be for your Hoaors to say
which is the best authority the Court the counsel
The principle is one Of great importance, and l
hope to see it established in this city, and in the
clothed with authority, hold it as trustees for the
public good, and may be treated as trustees when
they are about to do great wrong to those whom
they represent. do not wish to say any hard things
about this Corporation, but must say that the case
made by the complaint shows that a gross fraud
has been attempted upon the whole community. And
yet we are told that the citizen has no remedy-not
even though there be bribery and corruption That
Mr.. Field said that there was no remedy by in
junction.
Ex-Chef Justice Bronson What remedy have we
then? What remedy has taxpayer got except by
Injunction? Without further discussing these Ques
tons at this time, there were evidently grounds
enough for granting the INDUCTION. But if that were
doubtful or even If the judge was in an error it is
no more than has often happened before. And vet
no one ever thought, because an injunction was dis
solved for want OF equity in the bill, that the pro-
cess might be dsregarded while it remained in force
The Chancellor of the State has dissolved injunc
tions which he had himself granted; and thousands
of injunctions have been dissolved because proper
case was not made for granting them; but, until
they are dissolved, they must be obeyed. judges
sometimes say that they have no jurisdiction to
meant than that it is not expedent or the exercise
of sound discretion, to grant It, They do not
that the judgment, whichever way 1t might be rem
but only that it would be error to grant the relief
1t has often been held that though proper case
was not made for granting the injunction, 1t must
still be obeyed until dissolved. (Sullivan vs. Judah,
is familiar one. Take another illustration. The
Supreme Court, while it had appellate jurisdiction
over this court, awarded a mandamus to this court
to vacate an order gr anting new trial: and SUBJ
sequently the same Supreme Court said 1t had no
jurisdiction by mandamus to correct judicial errors.
That meant no more than that the writ of mandamus
ought not to be issued in such a case 1t did not
mean that the court had no power to issue the writ
if it deemed it proper to do SO; and beyond all
doubt if issued, it must be obeyed. There is no
authority whatever for saying that the order of
court OF superior jurisdiction is void because the
court erred in judgment.
We now come to the ground on which the defend
ants placed their claims to be above the Judiciary,
and the ground in which their counsel has mainly
relied to wit, that passing the resolution legs
ative act and that the Court for that reason had no
Jurisdiction to interfere In the first place. say that
this resolution is not law but contract. 1t is not
in the form OF law. 1t is not in the language Of Il
law, for there is no command. The Common Coun-
Gil itself calls it grant, which is kind of
tract It does not bind the grantees until they agree
TO it, which is strange kind Of law.
The grant is made upon the following conditions
and stipulations.r Is that the language of COM
mand? They are evidently about making bargain
with Sharp Co., and not to pass law. They are
not making regulations concerning the common use
of the grant, but are granting to Sharp Co. special
privileges in it. The attempt to make the grant under
the bylaw power of the Corporation was a plain
violation Of the charter, fort gave them such
thOrity. Contracts are to be made by the proper
executive department, and not by the Common
Council. II was executive business which the Com
mon Council were strictly prohibited from doing.
Why was it done in this mannerI 1t was because
one of the integral parts of the Corporation would
not assent to it. The Mayor, who has the custody
of the seal, would not ax it, and therefore two Of
the three integral parts of the Corporation attempted
TO make the grant alone. 1t is a fraud upon the
chartered rights of the city.
will now assume that passing the resolution IVES
an act Of legslation-the exercise Of the bylaw
power Of the Common Council 1t is then said that
the courts cannot restrain the exercise of this power
whatever injury may be attempted in that form to
third persons matter how fraudulenty or coy1Tpt
ly the members of the Common Council may act
the citizen has no remedy. The Aldermen are above
the law and above the Judiciary, when they attempt
to do wrong to me or to any citizen by enacting
bylaw.
The whole argument for this eytravagant claim
rests comparing the Common Council of
this city with the State legislature Not another
inch oil ground has been occupied in the whole dis
custom. We are told that because the legislative
power Of the State cannot be restrained by the courts
the exercise of the bylaw power of the Common
Council cannot be restrained. This is utter fala
cy. The difference between the State and this Cor
poraon, is nothing less than the difference between
the creator and the creature. That L. pretty wide
difference to begin with, although it may be that the
creature thinks itself bigger than the creator. The
difference in point Of law is, that the one is the soye
reign power having authority to do its pleasure un'
more than delegation of power from the State not
to do ts pleasure generally, but to make certain regu
latons for its own government and the welbeing Of
with the legislation Of the State. A bylaw
is void unless ii be legal that il, unless il be
within the power granted to make it. and not