The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-04-05

have doubt the uniform success OF the Pacific while
under my command, would in the latter case, induce
passengers to trust the aselves my care-the warning
Of my heretofore friend Of the Times twiths landing.
In voluntary unpr voked attack gentle manly and
courteous language wouli In my opinion, be be-
soming to q respectable journal:
Allow to take this occasion to say that Mr. Bowen
whom mentioned in my last communication, il Of the
firm of Messrs. Brown Bowen, of Philadelphia, AMI
branch Of the house the Browns Of Liverpool and the
Browns Of New York eesm this statement ne cessary
the connection with the matter of generally
inownto the public would otherwise be msunders .ood
APRIL 4, 1856. F. NYg.
Important DecIsisn Relative To the Broadway
Railroad.
SUPREME COURT.
s. B. STRONG Justice Sharp ~. The Maov Al
demen and Commonaty Of the CITY Of New Pork NrnondS
Wood, Mayor of the said City, and Ohers-The plaintiff
seeks in this action prevent the communication by the
approval Mayor Of resolution passed by the Board
OF Aldermen the I'd day April 1885, and by the Board
Of Council the 2lst day of March, 1885, purporng
to rescind resolution authorizing the plaintiff and
his associates to construct and msntain railroad
in Broadway, and other designated streets, in the
Council, the s0th day of December, 1852 The COM
plant verified by plaintiffs OATH presented to
the 22d OF Mar CD, 1885, and thsreupon made an
order requiring the defendants to chow cause at spec
not granted and Restraining in the meantime any aco
upon the resembling resolution. asked to grant
the Injunction, and the matter has fully and ably
argued by The unset for the plaintiff for the Corpora
ton and for The Mayor In deciding the motion before
me, l must be contro led as TO tue facts by what L.
sta ed in the complaint aid in the afidavi.s pre-
scented by the psrss. can have reference to
the decisions in tho several cases upon the original
have been very literally quoted except 80 far IS may
ceem them authorities upon questions Of law The coun
would
capacity and there ore transcends the power vested
in the judiciary should think the objection we'll found
ed the prop sed purely of political cha
racter expressed opinion to hat effest when the
case Of hilhau Sharp l6 Barb 1889 was before
the Court OF Appeals in the case Of the People Vs. sur
want, but it was there decided that 1t inap-
% IN .doprs the resolutions fop the eon
struction OF the proposed railway: Judge johnson
who the opinion Of the Court in that case said that
Ihe act in ques ion lot Ia aay just act Of
municipal legislation is true that it took the
form Of resout but substance was grant upon
condition; and II immunity belongs TO municipal le
gsla,on 1t cannot be that BY giving act not legis.
ltiye the form of ordinance resolution the jurs-
dic,ion of the courts be defeated Making grant In
in its nature not legislative act 1t is such act
~ has always been 10 he power Of any court
g 10 cspsS
sued Asa corp rate Oody merely II has no nimunities
which set It neyond the jurisdiction Of the courts.
Il may be eDjoEei from making . grant, just
a. it may. be ordered to make one. quote
these remarks not Indicative Of my sentiments
Council when It's members are dslibersting and voting
upon proposition to make grant, but se,auss they
are decaratve at the opinion The Judges OF higher
court by which course, controlled. 1t will be
perceived that learned Judge charaeteizes the or
s os the
that he fotlfes the OPTION expressed BY n the
Of Of, hhs s Vs. 81 Sharp Go Barosur 2ss 229o there
grant Of valuable right" after enumsratng Of tbs
provisions remark 'Surely all these prov sons indicate
seme,hirg more than evccapie license They convey
valuable right which, upon the performance Of the p
mary acts required from the DEFENDANTS, would vest In
them, and ct which they could not be deprived by
peal of the resolution 1t IS not competent even for
vested Fight, ah ugh may have been conferred upon
him by statue Che Pc PIE vs. the Supervisors OF
Westcheser county g. and the cases there
cited III these decide, the original resolu
ten could have been lega y restrained BY injunction
from making II, there be subt 10 the power
Of the Court sue the process to prohibit s
cion. III. objections to The pr posed resolution which
l shall consider and which 1 ana under the necessity
Of examining very briefly, frst that Il was not
regularly, OF indeed 1T all sdoptedD BY those who
s SUI, the two boards q, the same %s nad secopa
parties to it without the consent OF the other.
The rescir ding resolution IS have already stated was
1885, and by the Board e Cornsilmsn the 21st Of
March 1856 In the intervening time there had been
and Of all the members Of the Board OF cmen
An act OF the Comm Council to be OF any avail must
Of ea board e By its member
them, there is continuance from one term OF
Office to another There fs continued identity in tho
Representatives. although there may be as was said on
the argument) 10 the corporation. The resolution In
gue,ton not edoptei by the Common Council In
1866 because die not then the Board OF Council
nsp in 1885, because cid not then pass the Board
Of in the two year, because there not
identity in tie representative If measure could
opted By two boards separate years. might
become eectual without recevi sanction Of both
s have vsa If sS q
been returned to Board of Aldermen of the present
year they might have tissen'ed In our national and
fT gtadh ida
session. II tee Same matters resumed at a subse.
quent session they go far as legislation concerned
should not be appe1 TO the representatives OF corpora
ton But the principal objection to the adopt OF the
proposed resolution is that IL IL attempt to recind
grant by the separate and direct action OF the psrty from
which emanated. There is priuciple Of which
II, as is alleged Ia this case, tbs grsnt made in
fance CT injunction, trauscenced the Of the
corporation, Involved papable breach Of tiust, It
may be Iescineed or is nudity declared, by court Of
eqnity. But the cooperation, however powerful IL
may be, cannot take the Law Iao its ha ads and d.
rec;y annui it's own contract. An appeal was made
by me to the validity of the grant in
was not e's could s no
the rights Il that body beper could it HAYS any effect
upon the plaintiffs interest, theie be eatoppei
unless 1t Is mutual. Besides it appears from the papers
lain before that sace she institution Of the suit In
which that opinion was prom ounced the corporation
complaint OF Davis and Palmer against them state shat
the grant made to jacob Sharp and his associates by
properly made In good faith with good moves
without fraud, any corrupt, fraudulent improper
IL % Intent s 20 % s s public I
railroad will DO great benefit TO the said coporaiou
and lis c,rpora,ors and czesa" This admission is not
conclusive against the corporation, bat II IL eatsd "
some weight On application, TO restrict them from
cinting giant Of which the predecessors Of its present
members sined favorable an opinion. ruste
does not to bave been any gent necessity or, in
deed necessity at ALL for this attempt by tne corp,
ration to annm their own gram. The plaintiff aud his
Injunction.