New-York daily tribune., 1857-04-25


perfectly well settled-thst the only way to try ttle
10 On flee BY action in the nature Of quo
rorronto. Code, Sec. 432l The Attorney-Gensral
of this fact when he refused an act OF quo
voyrono. Put supposng this Court could aot in this
care fr the dcoiding Of the constituonaity of this
lew. the question arose. Was this plaintiff in q suG-
tor 'o demand the exercise OF that power The state
o the law was this the right Of taxpayer as bene
ciary or css'ui que trust against corporation for
alleged breach OF trus; is limited iChrister &
Tilden agt The Mayor Of New-iork Is Barbour,
561; Debaun Case, l6 Barbour, 3D. In what
other capacity could this plaintiff sue y! He
could not sue a. one Of the Board Of Police Commis-
sioners without the Of the other members
Of the Board unless he rccited in his complaint that
they had refused TO concur. and by that making them
defendants As Mayor Of the city he certainly had
right TO sue. But whatever might 'e the result Of
thi- suit the injunction could not restore the old
Commissions that was gone Tecoverably, and if this
Injunction perpetuated, legal anarchy would
exist; no human being would have right 10 COM
msnd policeman except as any Judge who was By
law conseryator of the peace they would be ike an
army without a general BY the Charter recently
passed by the Legislature, the Charters OF $780, 1872
1883 and all acts supplementary to them. were re-
realed And the day on which that Charter goes into
effect there be legally constituted tribunal to
investigate charges against members of the Police
Department, and to control them, II II be not the
rewly-cons'itued Board now sought to be enjoned as
thc present Board OF Police Commissioners derive
their authority from the Charters that have been re-
peaied.
Mr. Cutting followed in lengthy argument. in
which he quoed various authorities bearing upon the
case On III point Of the right of the Court to have ju-
rsdction IN the matter, he quoted the following Ian
gusce from an opinion OF Judge Mitchell Of the Su-
prome Court Thompson vs.. The Commissioners OF the
Canal Fund, Abbstt's Practice Reports 2i8i:
IAN injunction when -lo~ able be granted By Judge
q the Court in which the ston brought BY County
Judge could h. the intention OF the law hst whenever
hSs any nss DE 1"ehs @ Sf G h & b. 1nco
prevent the officer. from acting under IT,"
Mr. Cutting also cited recent case in Boston where
this question came regularly before the Supreme
Court of Massachusetts, to test the jurisdiction of the
Commissioners Of Insolvency, IN elective Board which
was superseded by Court of Insolvency created by
act Of the Legislature, in which case Chief Justice
Shaw delivered the opinion of the Court. He regard
ed ths precisely analogous to the one now be-
fore the Court. In the opinion, which is very elab
crate the Court the following language:
" II the object il to establish jurisdiction or
new arrangement of existing powers and when such
officers do not fall within class specified in the Con-
stiuon by definite description II Is competent Tor
the Legislature to provide mode IN which such OIL
cer shall be elected appointed, although the effect
and operation may be TO transfer powers from officers
elected under the provisions of the Constitution to the
class to be thus newly appointed. Case of Dearborn
Ames.) Mr. Cutting also referred to the case of
Sattery Matteson $50, and also the case of Newell
va. The People Selden, lO9 the opinion being rem
dered in that by Judge Edmonds from which the
following IL All extract:
"And upon the examination thoroushy nbued with
the principle that the task of determining that law b void
by Of its Iepusnancy to the Constitution T. At all ,s
Of extreme decscy that il ought seldom over u be
done in doubtful that is not on slight impcatio9
% @ hss r.nynded it. powers etcher vs. Pect Csnch
lsl that 1t Is only S express constitutions Provisions nm
WsJonty oy psTpsntn, an % snG Po P @ % 1as and & and .d
| %iif.m bs abaS 81 sf % Of % to declare void
legislative enactment Cochran Van Laay 70 Wend Ss2;
that onug the language Of Constitution we have moth
ing to do with aTgumcns ab neoRrean for the purpose Of
enlsrng contracting s import the only sound principle
pie vs. More 2l Wend $40 that there safe rule for
uiur the extent the limitations Of powers in Constitution
confer, them with th fox which
,h,y conferred tGibbOn' Ogden Wheat issli and
should b. that the Juge feels clesr and strong conviction
their ncomPatbly with each other 6 Craneh 49, Co~en
Judge Edmonds thanked Mr. Cutting for citing the
page. He should have done so the day previous, but
modesty would not permit him.
Mr. 0'Conor then argued the case Cor the plaintiff
Under any circumstances he considered the case OF
importance, but as precedent II wns one OF sun
greater weight. We agree sad hel that there is no
danger of any disturbance OF the peace, order ana
harmonious and vignnt action of al that part of the
Government covered by the present Ponce IN conse
quence Of anything You may do by way oil restraining
thc action Of this ncwly-created body called the
Netropolitan Police Commission. Ten years nave
elapsed since the people in their sovereign capacity
established the Constitution which rs We view H. as
we think il will be viewed by your honor' gave ,ie 100,
patronage which is to be disposed of under tins bi
exclusiyely 20 the people of the civil divisions of the
State created nt that time. We have tound ont az
this short distance Legislature seized with the desire
Of drawing 10 itself the whole of this patronage ana
udoptipr a series Of measures all tending to
the manifest overthrow OF the provisions o'
the Constitution, and under circumstances showing
a most plain attempt to- DO did not pretend that
the intention Of the Legislature is at oil material TO the
decision TO be given by your Honor did not pre-
tend that Legislature having passed from the most
corrupt motives and to gain the most inquitous ends,
an act that that account II was To be reviewed OF
repealed in any court of justice its validity at all
IN he questioned bv any authority in the land. But,
if it shall appear that there was an intent upon the
paIt Of the Legislature to act IN violation ot rs known
duv Court certainly will be fully justified in enter
tanning with more readiness and examining with more
care The validity of its acts and their coniornyto the
great charter under which the Legislature processes
intention to act Here again, | at once repudlate
the idea that the Court ought to act IN q prelm-
inary Injunction in doubtful case. The reason why
we cail upon this Court TO act Is because the
case is in no degree doubtful and that Judge,
be he who he may who would give an opinion. IN our
Judgment at least that this act WAS not manifest ana
palpable violation of the Constitution, would subject
himself 10 severe criticism of all sound scholars and
round iurists Ii is not question involved IN DOUBT;
il is clear beyond peradventre. II Is not question
dependent upon inference-itis u as papaDie as
that the great lumnary is the cause of day. We have
said indeed that it ia against the spirit of the Const
tuition and upon the strength of that our adversares
have said don't claim II was against the letter oi
the Constitutions and will show il ia against the et-
liter Of the Constitution al the time that Il IS against
the whole spirit of the Constitution. II Il written IN
the Constitution that all city officers shall be elected
by the people Of the city or by some local authority
therein The history of the State which records TINS
fact shows that the politicians who got up this Metro
poitan Police bill brought before the Legislature with
1.-THE essential features that il possesses making
applicable simply and singy to the City OF New-for
Ii further appears that il referred to high oificer
10 say whether that act as il stood could be adopted
and carried into execution consistently with the law OF
the State of New-York. That officer gave an opinion
TO the Legislature-gave it his opinion that il was