The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-02-28

tie practice OF the supreme Court, Under llen gene
raj superintendng power over jurisdiction from ITS
organizaton and their constant practice to interfere
in cases Of trial, and to say 10 the court beeatn
IT, you have judged wrong, gentlemen TINS - nota
case for new trial and you had no right 10 grant IT,
But upon an examination Of the whole facts and an eX-
hbiton OF authorities before the court they came q the
conclusion that that Supreme Court invested with all
the supreme and experimenting powers that II GER
tanly does possess, yet had not that power vested III
them. You can send TO such q court-say The court
of last resort commanding them to give judgment,
If they refuse TO do So but you cannot direct them
what Judgment they are TO give. That is entirely III
their own discretion. That thing we are to judge
of and not you.
Mr.. VAN BuREN-will you please produce some
authorities upon this point
Ex-Chief Justice JoNEs-With regard TO the ques-
ton put to me by the learned counsel the opposite
side, can only say that have not instituted an eX
animation fully upon the facts, but have no DOUBT
that such cases do exis and may readily be FOUND
recollect perfectly having occasion once to examine
that subject somewhat, upon an application made 10
the court Of which was then member to restrain or
prohibit that court from admitting certain alder
man, who was alleged to have been unduly elected;
and upon that occasion counsel of the first eminence
at the bar did maintain the proposition, and dd ofer
some pretty strong reasons in favor OF the ISSUING OF
such writ, when q proper case was made 70 such
body of men. speak now OF corpora ton exceed.
nights jurisdictiongoing out OF its Jurisdictions; and
the prohibition arose. beyond all doubt from higher
court to subordinate Judicial tribunal keeping them
within their jurisdiction; but whether the writ could
be applicable TO the case | am not now cOntending.
| contend that an injunction is not proper remedy
and fthere be any it must be some one in the nature
of prohibition by a court having general
superintendence of all inferior jurisdiction. My
argument is, that no such right exists in any
form as restraining body which acts legisatiyely
from their action in that course OF legslation-that
they are not to be controlled. Their acts unques-
tionaby are afterwards examnable, for whoever UNI
dertakes to execute and carry out the ordinance
must see that they had the power, and that they
executed that power properly. Even there, how far
the mere general averment that the law which they
should pass was an abuse of their authority or not,
simply when going strictly within the jurisdiction
they possessed, would be another and a very grave
question. But, beyond all doubt, this Court has
right to look into these acts before them, and
if they should see proper and sufficient legal grounds
to exercise the power, with them rests the power to
arrest this proceeding which has been thus licensed
by the corporation Neither this nor the other
court has any power to interfere with the legislation
of the Common Council--to direct them, you shall
vote shall not vote in particular way, or shall
not vote at ALL 1t is the act Of yotingt is the act Of
passing the resolutonthat sayi beyond the reach
Of an inunction-and that when the Superior Court,
the judge of that court issued that injunction,
that if it was to have any effect, and to be OF any
force, il TO act upon the agents Of the corpora
ton in prohibiting them from carrying into effect
this order, if it were an improper order that that
corporation had passed. and not to prevent the cor
poration from passing it at all The corporation
of the city of New York possess corporate powers,
as j understand it, in two capacities, namely
as a public municipal body, and as a private
Of the opinions delivered in the other court, the
general proposition seems to be maintained to
this effect that there is no distinction between cor
porations, whether they are municipal or whether
they are privatewhether it is corporation passing
bylaws and resolutions which are to have the effect
OF legslatng for the community for which they act
whether it is corporation making grant OF land
to me- or any one, or a corporation making regula-
fiCn fnrt IF firnlo hrann If huc
ness which they are pursuing for their own private
emolument But everywhere, in all cases to which
we have referred, Tin the language Of the counsel
and of the judges in that have been before this
Supreme Court) in every instance that distinction
has been taken, and has been acted upon and fol-
lowed, namely: the distinction between public
and municipal corporation and mere private corpo-
ration for the regulation of private property-the
distinction between them Is an obvious one When
the corporation act public municipal body they
act legisatvely, and then act that the one Com
mon Council can do can bind their successors in
gard to any of those public matters or public con-
In other words, their acts all revokable,
just like an act of the Legislature Of the State.
passed orc day and Iepealable the next. The Court
will find il laid down, In various cases, that the Com
mon Council Of the city OF New Yotk, in regard to
premacy that the legislation Of the State possesses III
regard to the State at large; and that consequently,
any covenant that they, as private corporation,
may have made. when they come to act in public
a right TO pass an act which shall repeal that
private covenant, if the necessities of the city
require that that act should be passed, and
In their private capacity they were bound by this act
but the Legislature have nerered, and the passage
Of this bylaw by the corporation under the authority
OF the Legislature is just as peremptory and binding
upon you if the law bad been passed by the Legis
lature directly, in itself II must be Tn csc local
legislative bodies if they do not possess this power
amount to nothing If they are constantly to be
under the revision Of the courts Of Justice whenever
any disappointed or disafiected citizen shall choose
to apply for relief against imaginary injuries inflicted
by the bylaws passed by that Board it will be so
fruitful source OF controversy as will alone occupy
the Supreme Court in this circuit and in this State.
| know it has been said that this supremacy OF the
local legislature cannot be made available to the
Common Council because they are sueable. Well
if the Court please the corporation of this city, like
all other corporations acting in their private capacity
the owners OF land as the owners OF real estate,
having franchises which vest in them property, they
must be sueable in respect to those properties and
TO all their dispositions contracts made in regard
TO them But does it follow then if the Court please
that they can be made parties to suits Of any kind
for the performance OF their Legislative duties Can
they be sued--the Mayor, Aldermen, and Assistant
Aldermen-for passing an act which a person af
ected by 1t should choose to say invades his rights
Can you bring action against the corporation for
passing that act You can undoubtedly sue any per-
who attempts to enforce that act against YOU but
can You sue the body who passed it? Is corpora
ton sueable IN That respect! Why, certainly not
They stand upon the same footing as ell legislative
bodies. They are irresponsible to individuals, be-
cause the legislative power was vested in them,
and they had this broad legal discretion
question was asked by the parties who oppose
this power could you sue the Legislature you
restrain the Legislature! y The answer give to it
is mo, because they cannot be sued. Is that the
reason and does it stand upon that ground that the
State or the Legislature OF the State is not sueabe
because it is supreme or sovereign body? In one
rpSuect the State ic mot N inIguap1ent irn
body for jurisdiction is given TO the courts of the
United States which reaches the action Of the State
ITSELF II such action is brought, will an injunc.
ton lie against the Legislature the State upon that
particular subject to which that action relates Look
ct the case which has been referred TO by my asso.
ciate OF the disputed boundary between this State
and the State OF New jersey, with respect 10 the
right OF fishery upon its borders the State Of New
jersey claiming that they have exclusive rights to
certain fisheries which the State OF New York has
no right to interfere with. If an ,tion vas brought
IN the Supreme Court OF the United States for the
purpose OF trying this right, and the legislature of
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