The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-12-14

o'clock on Monday, requesting them to be punctual
in attendance.
The Pay OF Members or the Common Council
under the New Charter.
COMMON PLEAs-aKNERAL TERN.
Before Hon Judges IngrshAm, DAILY and Brady.
Dec 12.-.yonas N. Philkrs a0st The Mayor, de-, Of
Neo Tpk-The parties thereto have agreed upon
containing the facts which they submit the Court pur
sDant TO the provisions Of the Code for judgment thereon
The plaintiff claims TO against the defendants for
and for the services rendered by Jesse Mitchell
during the month"; the latter claim being assigned to
the plaintiffs The defendants refuse payment Of these
claims the ground that the provisions OF the Amended
Charter Of April 1851 deprive the members Of the Com
mon Council of compensation for such services after
the same took effect by acts OF April IL, 1855 and
June a. 1853 COuncilmen substituted in the place
Of Assistant Aldermen formed part Of the Common Coun
Gil Of the said city, and were entitled to the sa ne compcn
sa,ion to have been duly fixed at - for each
day the Aldermen should sit in tho Common Council. The
question then arises whether the amended charter OF 1857
deprves tho members Of tho present Common Council Of
such compensation By section ~ of this charter II is
provided that no member Of the Common Council shall
ccve any compensation for his services such member
(See laws of 1867 chapter 446 If this provision is ap
pcabe to the members in office at the time Of its pas
sage there is authority for the payment OF compensa
ton to the members of the Common Council The previ
part Of section "A refers to offices under tho char
ter and the defendants counsel contends that the whole
section must be construed relating to such officers BY
the 5lst section OF the act Is enacted that the
Mayor Aldermen and Councilman provided for In this act
be held after its passage have had occasion heretofore
pass upon the provisions of this statute in the matter of
Ievn so far as the same was applicable to the present
Common Counc and have held that the powers therein
granted conferred upon the present members Of that
body far they required for the purposes of
government to prevent an entire cessation OF tho
cor structon OF the charter be correct then
IL necessarily follows that the provisions OF
the 44th section also apply to the present mem
bers. Many Of the provisions of this act have already
been acted upon by the Common Council and the depart
organized under those provisions. If tho
term Common Council is not confined 10 those hereafter
10 be elected then no ordinance for the organization OF
the departments could be passed except by those who
may be elected under this charter and the act does not
apply TO those office there is law excluding the
present Aldermen from the Courts of Oyer and Termner
aud Sessions provided the 4sh section because the
law heretofore passed therefor is repealed by this act
The Common Council itself can only exist under this char
ter All its powers must depend the present statute;
because, without organization under there is no law
which recognizes such office Councilman, and when the
statute provides general terms that member of the
Common Council shall receive any compensation Tor his
services such member see no way Of avoiding the
conclusion that the refers to the present well
future members. The former part of the section not
entirely confined TO future legislation 1t provides
for the disposition Of fees hereafter TO
be provided, and where the statute Is in
tended TO apply 10 officers thereafter to be chosen or APP
pointed is express in limiting its operation to 'oiccs
under the charter or provided by the act II Is said
that the allowing such compensation TO the MEMBERS
Of the Common Council is not repealed The provision OF
the 44 section if applicable to the present members
would he repeal OF that statute II express
peal contained the act by the oath section. All
laws inconsistent with the act thereby repealed and
II the provision above referred 10 applies then the statute
would be inconsistent with the charter and would be
expressly repealed thereby The 55th section Of the act
pre- vdes that shall take effect the LIST of May then
ensuing also shows tha, the Legislature intended that its
provision should be operative In some parts at that time
1t commended also, on the part OF the plaintiff that the
amended charter Of 1857, L. local bill and embraces
than subject which not expressed In is title
and therefore unconstitutional The provision Of the
Constitution is that no private local bill shall embrace
than subject, and that shall be expressed te
3, sec. 16) am not prepared TO admit that the act
In question Is either private local bill II can In
sense be called private bill. 1t is intended to regulate
the government Of city containing large portion Of the
population Of the STATE authorizing the city authorities to
powers o; legislation which, without IT, would be-
long 10 tho legislature private act Is one OF an entirely
different character relating private and public nte
rests, and individual and not TO whole commu
nifty. Nor do think such an act devolvng upon other
the which the Legislature for the purposes
OF government be called local act In the Case OF
Conner the Mayor, &C, Il Seldcn 1851 an act was I'M
der consideration providing for the salaries Of certain OH
elected the city Of New York. TO which the same
objection was made as in the present case Judge Foot
In his opinion, referring TO this objection, says "In my
opinion the act Is neiter private nor local. And again
he says: Regulating the amount and manner Of paying
the officers OF given number of the officers OF county
Of this state for their Official services when such services
rendered in and form part Of the atgn and
execution OF the laws Of this State and affect Che Citizens
thereof who within their range, can neither be pr
vatc local in the view contemplated by the constu
ton" With much greater force may these remarks be
applied 10 statute providing for the government OF
ge portion OF the territory aud population of the State
delegNing legislation, and authorizing the
sage Of laws well the administration of them, which
their operation affect all tho citizens Of tho state, who
either In their persons come within The range or whose
property IL within the limits OF tba jurisdiction Nor do
think the provisions OF the statute be said TO be OF
more than subject The act Intended 10 provide
or add 20 the charter Of the city Tho previous charters
had conferred ON the Aldermen the right TO sit a. Judges
Of the Oyer and Tcrmncr and Of the Sessions la framing
the charter well az Ia the act TO amend the char
ter of ls4p, passed April IL, 1858, deemed advsa
bic 60 prohibit the Aldermen from exercising that power
and proper and consistent with the other provisions
Q, iha ac, anu par. e s'e Sonse'n
the city government from exercising any longer such
powers. The further provision that the remaining Judge
in those courts should Holt the without the Alder
men, was only necessary declaring what would follow
from the prohibition. i however there any doubt
upon this question y not necessary TO declare The whole
act void So much Of CONSISTENT with the title could
be sustained. Such was the decision gf the Supreme
Court Of the Second district In the town Of fhkll
the Plank Road Company (22 Barb, :. @ Rep 63i) in
which the first section ~ statute held to be valid
aud the residue 20 be void account Of the defect in the
title II also urged that the provisions Of the SD sec
ton brought the statute within constitutional objection.
That section provided punishment for bribery offered 70
communicated by an officer o. the city government II
was necessarily connected with the city charter to pre-
serve the purity and integrity q ts members officers,
and should not In my judgment be considered as subject
separate from or unconnectcd with city government II
hardly be necessary TO discuss the question whether
the Legislature take away the compensation OF al OH
during his term. In Warner against the People,
ncnio, Rep, 2T2Iudge Bronson says-f DO not doubt
that the Legislature may regulate and reduce or take
away tho fees of officer And, IN Cornor against the
city of New fork-E Sandiord, 5hbruch rgn VI after or
take away tho compensation of public officer IL maintain
ed Tho plaintiff also claims that the saith section OF
the amended charter declares that no right acquired be-
fore the act took effect should be prejudced thereby.
This did apply 70 prospective compensation not earned
80 far the plaintiff had rendered service, so Tar his
right 10 compensation had accrued, but such right
can be claimed before the service was rendered The
cases referred show that the right 10 perform such
vice may be taken away, and must of course follow
tina, there was no right the plaintiff by which
he could insist pay for dschargnf his duties contrary
the provisions Of the statute Judgment should be rem
dercd for the defendants.
LIABILITIES or coSsrABLEs AND THEIR sURETIRs.
Cdypenter ~ Doody Draddy.-The statutes {see scs.
sion laws OF 1897 chapter 46l and 1851, chapter bl4l
make the executions in the district courts IN the city OF
New York rcturnable At certain period, and the ne
elcct 10 return them Is default the part of the
officer for wbich he and his surees may be made liable
II does not follow however, that the constable is In
all cases liable for the whole amount Of an execution VA
where he neglects to return w. The provisions w The
Revised Statutes on this subject applicable 10 Justices