The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-09-30


fdnance resolution was originally passed, and not 10
one whose members had been changed. That corsruc-
ton soppo by the direction that the ordinance or
resolution shall be reconsider ed at the latter session.
Reconsdered by whom Certainly not by those VITO mad
never Considered oslsIe s,a Gat 1ae provision may Up
TO siderauon OF measure by the two existing
Boards and can be extended no iarther-cerainy NOV
80 lar az TO violate principle OF rcpresen-
iation. The OF Coles against the Trustees OF VII.
hansburg, 30 Wendell, ESQ., simply decides that
where petition necessary 10 any action of a municipal
corporation one pressn,.d former Board will aotho
rze their TO proceed That may very well be,
a. The of the petition perfected ACT
as /. relate to tho subscribers. Nothing more
10 De one by them and as TO them mattered not 10
which board was presented That has no reference 10
the case where the conjoint action OF two constituent
bodies requisite 70 make the action OF the composite
body. The delegation OF legislative powers 70 the Com
Council as it constituted in 1852 and 1853 Was
by statute The DoDgan charter IL true reoites that
"the city of New York 10 ancient CITY, and the cti
ard corpoTae' That Was not enough however TO chow
that war corporation by prescription nor could II
have been such, as sufficient time 70 make such under
the EDgsh law had not elapsed aimee the discovery OF
this continent. II, however, It had been cor
porAsoa BY Prescription, "a, h. avis o 10 OF s
,utc and of modern date The principles which
control th!e institution such as applicable 20
recent enactment. In such the grant the
poration cannot be explained, most assuredly us
powers cannot be created by usage In ancient grants,
and especially wnen expressed obsolete phraseoogy
asaee them may be resorted for explanation,
but never in such cases to es 1blsh additional
That the Common Council may have pied prac-
uce conformabe 10 what was done in this instance, and
pursued for period Of twenty five years. II had been
fully proved, which it has not, would not have sho9n
thai LEI al within the compass Of their powers.
Their legislative powers not derived rom usage,
but acquired wholly under the statute In all such
eaep mere are express statutory uennlons lucy must
control but If there are not any power cor
ierrad musl be taken with its ordinary qualities
and INCIDENTS That y the reasonable rue and
was the rule IN tho particular which 1 am consider.
ing n legislative bodies consisting OF two branshes
In England when there was an election OF new House
OF Commons the unhn shed business pending in the pre-
ctdrg Parliament was at an end. There was never
instance where bill adopted oy the House Of Co nmons,
only, OF Parliament was taken up by the House o.
Lores and anay passed without the concurrence Of u,
newly elected body The rule pas been extended to pro
rogaticns, and where the same houses reassembed.
Blackstone Gays (Com, VOL l. p 1867 that 'prorogaoa
puts end 70 the session. aad then such bills only
begun, and not perfected, must be resumed de Or
at ai) in subsequent session.. Jefferson says Manual
6 "Paraments have three modes Of separs ton, to
wit: BY adjournment, by propagation dissolution by
the king or by the eaux of the term for which they
elected Proros alton or dissolution constitutes there
Snai Is called sesson provided some &C. a" passsa
contn ued, and a their next meeting TO 90 taken
de noco taken up at all. An adjournment watch is ny
themselves no more than continuance OF the session
from one day 10 an other or Tor fortnight, mo0th, etc
ad hitum All matrrs depending remain in satu quo, and
when they meet again, be the term distant
resumed without any fresh nencement at the point
a, which they were left.n q Lew 1856 lex. Parl .;
ROLES Rep 20; inst, T. a. rs; Hut 81, Mod 1922
JAG. L. Mct r;le Parllament) He subsequently
marked that when said above, thai ell matters
depending before Parliament were discontinued by the
cary depending before the House OF Lords, suSh
as rmpeachmenis, appeals and suits OF error These
stand continued, o. course 10 the next session Raym
100 JAG. l.. D., title Parament) Inpeach mcuts stand,
IN like continued before the Senate United
States IL Is stated IN note 'that 1t held in the
case Of Hastings that dissolution work dis
continuance o. an Impeachment Impeachments are
Ike Indictments and when once preferred they remain
pending before The courts until they decided; 20,
too the House OF Lords acts az court in hearing and de
Gliding appeals and wrts of and 10 then governed
by The rule Of procedure But the action OF the
alone, furnishes rule for governing their conduct
when acting their legislative capacity where con
currepce OF another bocy ia requisite The practice Of
the English Parliament when acting lsgiratively has
been uniformly followed by the Congress OF the United
States, by the Legislature OF this Sate and far
know by the Legislatures OF all the her States In all
these bodice when there az been econ Of either
branch the unfinished business OF their predecessors 10
considered absolutely disco nnued, and IL taken up II
ALL acted upon without reference to what mas been
before. Why is not this rule applicable TO the Common
Council Of New York; Can power delegated 10 them be
taken thout the restrictive Incidents which enter Into
s dehntonf and ABOVE all can y be supposed that when
inferior one, designs to go beyond It's own limss lam
satisfied that ms rule Of acton IN all legislative bodies
York in their legislative proceedings. The supposed
solutions in question We're therefore null and void when
presented to the Mayor Tor his consideration The suOs-
quent action OF The two branches was not therefore,
upon the reconsideration OF previously adopted ord
nance. II IL could have any effect would have been
ss an original or q new amendment. In ibai
view was inehectua as II was not SUB.
in ne, what was attempted 70 be cone neither
grant, license, resolution or contract Of the Commoa
Council or in fact, Of anybody 1t was not therefore,
not embraced in its terms, could 1t have beeu
design Of the legislature complete the IN dashed bust
ness IL the Common Council or OF either It's branches
The revolutions in question had been adopted but by
single Board in any year or during the existence OF
one Common Council, and we're not, therefore .. any
tEe the act OF tie onre body II such resolutions
characterized by what they are aud by what the
are designed TO be, confirmation OF the OF the Com
mon Council would not reach them. In this point OF
view Is unnecessary TO consider the questo discussed
al the barwhether nulliy iIom Inherent defects
be confirmed by an act OF The Legislature, or auo-
tber question: Whether the Legislature, having deyoved
the power of regulating the streets upon the Commea
Council, can resume II without the consent o. toe
inferior body, legally expressedt Toe remaining
questions a. be considered are, whether the
construction or use Of the proposed railroad
the plaintiffs would clearly sustain serious special injury
whether would produce public nuisance ami II 80,
one peculiar 10 tDemseves-oy the nox Gus procedure
DsIse 70 msS aPssS !. ?. 'ae Pfedom1a1 juaSa
city is not public nuisance When the principal
sanctioned, thai lcgaLzss the temporary Obstruction
TO the public caused by the prosecution OF the appropr1e
work. AND prevent any elecinal acton by nd,vdg
ais on account Of any CONSEQUENTIAL inJury-alinousn
might be peculiar 10 themwhch should necessarily re.
tu from IT, But Il Is otherwae whsn tic railroad !. con.
s'ruc'ed without the requisite authority, when thc ob.
suuctons NJ least In removing tie payemept and aypy
the rails would be unjusiasbc. and they would
saIy be considerable they would amount 10 pubc moi
II The injury would be coaaned to travellers (ani
BY that term intend 70 include al who the street
ny ss passaEe tue people aone could sustain an &C
ton for ~ reformation or prevention Ia order % ena
DC 10 SUIT prevention m ther
own behalf must be apparent that the injury or VIII
they complain will ensue, and viii be peculiar
10 themselves. The unprecedented Ge.cterioas result
must be reasonably certain and not merely possible
even probable. Thus threatens to dig pit or de-
posi log IN the highway, an individual cannot Obtain
Injunction to prevent the because he s In hs
habit OF riding ia that part 81 the highway in the night,
sn6 be OF BIS horse viii probeb!y sustain ai not even
II II should be near mis- dwelling house TIE danger
might be imminent unJer such Circumstances. but not
certain, would also be which he would share
Win the travelling pe6lic ahd soua extend no flrlher
than 10 what might be DcNr 20 10 tle use Of tae street
simply passage, and The greater probability ex.
tent OF the apprehended injury 0y reason OF nropnanW
would not change It's character IRON pubic u private
Tho Judge who tried this acuon found substantially that
the plaintiffs would sustain special injury By the ohstro.
ton to the access 10 their stores This spprehended
grievance is not one Of those particularly specified
complaint II 4 included N the general charge thai the
proposed work would. " prosecuted, be specially
INJURIOUS 70 them. The rules Of good pleading would
seem 10 require greater part Culari,y bit If Tue
paft vas defective in mat paricu ar, the defendants
should have moved TOR az order upon The plaintiffs
form H. Of any rate should have objected trial
n ne ~ n cha