The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-03-19


State the general government can transcend the
powers conferred upon them by their constitution, SO
corporation acting by the grant Of either mus. OF @
be bound by the supreme law which limits even the
power that created it corporation Neither state nor
the general government can grant Legislative powers
larger than they themselves Hence I'M
limited in this particular be the terms Oh its
all byaws of corporation contrary to the constitutional
law Of the land must be void For by law I'M
rano the obligation of contracts taking private pro-
perry for public without just compensation Is vod
Aug and Amos on Con- 1872 sec Several cases were re
the Common Council might at any time annul the grant,
that such an ordinance would dvest all rights acquired
under II and would be breach of the contract and
though legislative act would not be imparing the
obligation OF a contract, and among others
ferred to s Cowan 53S, and Cowan $685. We do not
think that these countenance, much less affirm,
such doctrine In Cowan $685. the corporation Of this
city had conveyed the premises in 1885, on which the
brick Presbyterian Church belonging to the plaintiffs
stood reservng annual rent and covenantng that the
and their assigns paying the rent
performing the conditions contained in the lease should
quietly use and enjoy the premises without any let or
hindrance Of the defendants any other person On
the 27th of October, 1928, the defendant, under
q R. L. 445, Sec 267,) passed bylaw prohibit
ing the use Of the premises cemetery
brought action to damages for breach of
the covenant for quiet enjoyment The Court said that
" the liability Of the defendants upon the covenant in
question must be the it had been entered into
by individual and the effect of the law upon 1t the
If that bylaw had been an act Of the State Le
gislature is expressly authorized by the legislature,
ierisature can make no difTerence;-id $40 saI The
decided in favor Of the defendants not the
ground that the grant revocabe at pleasure from
mere caprice, the ground that the corporation
could relieve itself from its obligations under valid con-
hut on e lat ol
absolute ownership in property down TO mere ease
ment is purchased and holden subject tohe restriction
that shall be exercised that its shall not become
public nuisance-that act of the Legislature, de-
carng particular use public nuisance and prohibiting
such use, is a constitutional law, and gives
claim in favo 0f n
who conveyed 1t with covenant for its quie
enjoyment Such law does not take private pro
pery for public use for the property is not TAKEN nor is
any entry made upon it, The title is not Invested i'm
paired only certain is prohibited, which, from the
increase of population would be nusance and for the
same in such there is nothing in the act
impairing the obligation of contracts. The Court was
also careful to say that unwarrantabe interference
with private property Is equally unconstitutional and
void whether by State Legislature corporation.
BY neither it be touched without necessity and then
if taken, it must be upon just compensation" q Cowan,
the covenant in question: must be the same as il had
been entered into by and individual % Cowan, 540)
The grant cannot be annued from mere caprice Though
act of the State Legislature has empowered the
poraon to pass by laws and ordinances preventing the
nterment of the dead within the city, it has passed
law authorizing it to annul its valid grants terminate
its valid contracts because it may be pleased to do
for except that it may be its will and plea
sure to repudiate Them No corporation, municipal
otherwise, possesses any powers except such as
have been granted to it. and no State grant to
poraon power to do that which it cannot constitution
u
not only restricted by the constitutional and statute law
of the State in which it is located but by the general
principles and policy of the common law as is accepted
there 1t is upon this principle that though many by
laws passed by the ancient municipal corporations and
trade companies in England for the regulation OF trade
and the Of monopoly held yet many
have been held void as being restraint of trade and
oppression to the subiect-(Dunham VS. Trustees OF
Rochester, s Cowan, 1927 Wilt be pretended that
subse luent Common Council, after the road has been
constructed and put in operation, and while all Of the
conditions of the grant observed by the grantees can
make similar grant in all respects to otherss If it
not, then it has bound itself in perpetuity for the
enjoyment by the grantees and their assigns of
the rights and privileges granted, on their perform
ing the conditions which the grant was made.
The fact that the manner Of using it is SO far subject to
legislative control that it lawfully be restricted
not to become public nuisance otherwise endanger
the health and lives of individuals furnishes ground
for holding that the grant, if valid can be arbitrarily re-
peaed the rights acquired under it annhlated at the
will and pleasure Of the party though corporation
who contracted upon consideration for their enjoyment
in perpetuity 1t is conceded that the Common Council
cannot dves itself Of abrdge its legislative discretion
to alter and regulate the streets may deem exeden
1t cannot be denied that It has no power to prohibit such
Of them the legislative authority of the State has
granted to citizen as matter OF strict right L.
424 section 1851 This grant will produce both results If
valid and If 1t confers the rights and privileges which
purpors grant To say that the contract is valid
but vodable at pleasure and valid until voided is to
such contract a. it's provisions expressthat though
by its terms the rights and privileges granted are to be
enjoyed without molestaton by the grantees and their
observed their part yet in fact such contract has
been made; that tis in effect license by the Com
shall be pleased to revoke the contract made
is to be determined by the legal import Of its terms
it is not obligatory upon the Common Council it must be
for the that II was incompetent to make it.
incompetent to make valid contract, such as It has
made it necessarily follows that it is void 1t also fol-
lows that the attempt to make it, and thereby confer
rights and powers which the State Legislature is alone
competent to confer and to absoye the grantees from
duties from which only the authority exonerate
tc as and
franchise The privileges granted to the associates
exclusive in their nature. They are granted with
use Of the grantees, and their assigns exciu.
sively the advantages and emoluments that may
arises from their enjoyment No other person or asso-
citation Of persons can be authorized by the Common
Council to for hire upon the road without clear
violation of the contract They are to run cars both
ways as often az public convenience requiresthey
to receive from each passenger fare for riding in their
and authorized to establish bylaws providing
for the construction operation and management Of
the said ralroad IT. at the end of the ten years. they
do not consent to pay such license fee the
corporation with permission of the Legsture shall then
prescribe they to surrender the road with all the
equipments and appurtenances thereto belonging to the
said corporation, at fair and just valuation Of the
In contract between individuals by which an owner of
lands should contract that third person might erect
structures and operate machinery upon it, without any IL
imitation to time paying certain rate annum for
the first ten years and providing that If at the end of ten
years he should not pay the then exaced for
the privileges he should surrender the structures and
machinery to the owner of the lands upon receiving
contingency, would not be bound to pay such value and
accept surrender of the property However that may
be- II is obvious that the spirit and fair meaning Of the
contract that the grantees shall have the exclusive
right and privilege Of running upon the road for
their private emoument andn every grant OF franchise
theimped powers and rights conferred by much
beyond the control Of subsequent legislation powers
and rights expressly granted 20 Wend. the People
the Manhattan Company 1t creates unncorporatcd
association and exempts It from the operation Of the
rules Of the common law, which define the rights and
liabilities Of partnerships. The latter declares that
partnership shall be dissolved by the death Of Of its
members, and gives to his personal representatives
right to have adjustment of the accounts and dvi
sion OF the property Of its proceeds This grant de-
cares that neither the death any of either
associates shall work dissolution Of the partnership,
but that the in interest Of any who may
die shall stand in his place. and the continuance OF his
rights shall depend upon his fuament of the conditions
imposed by the grant, and his compliance with the arti
clcs of association and the bylaws 1t may establish
Such rights and liabilities the Legislature Of the State has
al, the power to create and improve The ninth section
of the amended charter Of 1S49 Claws of 1s49 p 2so
declares that the executive Of the corporation shall
be vested IN the Mayor and heads of departments and
such other officers may be created by law and that