New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-11-24
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LAW INTELLIGENCE

49, La MULLEN. a
NJ Peorle q TIE STATE Of Ssw-Yofk ast fef'~""'
sisy-sne oiher
Lar week we published the remarks OF jung "u-
=, =, ,be motion 70 oussb tie indictment IN THIS case
He hss since prepared elaborate 'p-D'O "''''H 10
nbjoined: .-..,oe of the one,tions nre-
.,,sa on The motion to quash the Indictment IN thn
demand, more careful examination than my en-
eo1o III hermit me 10 make. have been COM
Rskeinep IL ro,e 10 eonfne my examination 10 two or
pence ~ onestons raised, and those such ss affect
thIee =, rather than the form of the indictment
"S susrtsb doCbt as 70 the soundness OF the fol-
loving posihohs'
mi, CITY are officers Of the City Government within
he true intent and meaning Of the 4Oth section OF the
amendment Of the charter Of said city passed in 1857
Second: That, as such officers, they are liable to
Indictment for willfuly dong permitting 10 be DONE
The acts specified in ,he said 10th section which are
therein declared TO be misdemeanors.
Third: That the las. clause OF section of the
amendment 10 the charter, passed in 1871 does not
exempt the Mayor members OF the Common CouD-
d, from liability for the acts forbidden by section ~ of
FIAT act but the approval Of the Mayor or the vote
the Councimen does not of Itself make him or them
liable. The Oflcnses created by that section do not
ecrsif in approving or voting, bet IN accomplishing
the result prohibited.
Fourth That giving lease fora longer period than
ven years, without having complied with the provis
IONS Of the 4st section Of the act Of 1857 is violation
Of the charter within the meansng Of the 4h section,
and punishable az a misdemeanOr; and,
Filth. That q conspiracy by the said officers named
IN the indictment TO give lease in violation OF the
provisions Of the Charter, is misdemeanor and In
dictable as such.
Twill now examine, az briefly as ] am able the sew
eral counts of the indictment, in order TO ascertain
whether they or either Of them describe Ofense
under the statute referred to or at common law.
will first examine the second count. II AYERS in SUBJ
stance that the Mayor. Alderman and Commonalty is
a Municipal Corporation, and as such capable OF
taking and holding real estste and of granting leases
Of and selling the same. That, by the act Of 1857 il
was declared that no lease of the public property
thereafter to be given except as the sape might be
required by covenants of the Cor ooration already
nnrg) should be for longer period than ten years,
and that all leases OF public property should be made
By public auction and to the highest bidder, who
fboud give adequate securlty and that II was further
provided in said act OF 1857, that any officer of the
CITY Government who shoud willfuly violate or
evade any Of the provisions Of the said Charter shall
be deemed guilty of o msdemeanor That on the 2lst
Of October, 1851, Wood was Mayor, and the other
defendants Aldermen and Councilmen of said and
officers Of the City Government and that they, disre-
gardng their duty, and with intent to vioiste and
evade the provisions of said Charter, wllful,y and
anawfuDy did violate and eyade the said Charter by
voting for and passng aresoution in due form law
directing the Controller TO lease TO the Roman CathO
tic Orphan Asylum certain real estete belonging to the
Corporation for period longer than ten years-tO
wit for long time as the same should be occupied
for the use OF the said Asylu n, without causing any
such lease of the said property to be put up public
auction TO be let leased to the highest bidder IL
viii be seen by this abstract of the Indictment that
is not averred that any lease has ever been in fact
ecuted delivered by the Controller, nor that the
Asylum has acquired any right title or interest in or
to the said lands If il shall appear that these aver.
mepts are or either Of them u.s. necessary ingredient
in the oense charged in the second count, it follows
that the omission vltiates the count.
The 4lst section already referred to- declares that
no lease thereafter given shall be for longer period
than ~ years; and, also that all leases shall ne made
by public auction and 10 tue highest bidder, who Will
give adequate security. II is the violation Of these
PROVISIONS with Others that is declared to he misde
meanor, II is then a misdemeanor to make lease
for longer term than 10 years; and 1t Is also like
ofcnse 10 make any lease, whether for less or more
than 10 years, except by public auction and to the
highest bidder, DC.
II the second count alleged the making Of a lease
for longer term than 10 years, and also that It was
made without being put up at public auction, &c, it
would contain the description OF two distinct ana IN
dependent violations of the st section OF the CHARTER
and, consequently, two misdemeanors; count thus
framed would be fatally detective But WIZ DC seen
that il is not alleged in this connt that any lease has
been made the averment is, that the dgeaddnts did
5olate and ecade he prors,ons OF sdtd act ny coHg
for and passsng a resolution an due torn, directing
he Controller TO lease 10 the sylun. BY the statute,
The ofepse is the giving Of the leases the oense in
the indictment is the voting for resolution author
izing the proper officer TO make lease.
Penal statutes to be strictly constructs in other
must be brought plainly within the letter and spirit OF
the the statute. Can il require argument to demon
strate that the passing by the Common Council with
the approval OF the Mayor OF resolution that ieste
be executed by the Controller is not the giving of
lease II is said by the counsel for the peobe that
all the defendants could do toward giving the lease
wac to pass the resolution III question. That may be,
but in order 10 convict them under the statute, the
lease must be made The making is the very essence
Of the oepse and no lease has been made, then the
statute has not been violated and of course no ofense
committed. The counsel for the people suggested,
also that this resolution, approved by the Mayor,
was a lease within the principle decided by the SUI
preme Court in this District in the case oil LowOer III
was held in that case, that IN case OF resolution ny
the Common Council to purchase certain real estate o
Lowber the Controller, whose duty twas to complete
,he purchase but which he refused to do, had no
discretion whether he would obey the order OF the
Common Council. have the opinion OF the learned
Justice in this case Of LOwber before me- In 1t he
saws "The heads Of departments do not hold their
places independent of the legislation ot the Common
Council and Whea such legislation Is not IN rotation
Of lar they have right or power to refuse obedi-
ence TO such legislation, because they may deem
anwise OF improydent. On the contrary, they are
only in the legitimate discharge of their duties
when they comply with the legislative directions
Of the Common Council, not passed IN rioia-
ton Of iar." fully concur with the learned
Justice in these views. If sound, they dispose
of the position assumed by the counsel for the
people The Controller is according to the opinion in
the case Of Lowber required to obey those resolutions
and ordinances of the Common Council which they
have authority TO pass. But he is not bound to obey
those which they have not authority to pass. If then
the defendants could not make lease for more than
ten years and if the resolution required the Controller
10 make lease for longer term, he was not bound
20 obey, could the Court compel him to execute
such lease Ifthe Controller had executed the lease
in obedience to the resolution in question: entertain
no doubt but he would have been liable To indictment
for misdemeanor and that the ofense of the defend
ants would thus have been perfected. How can thus
resolution be called lease, when 1t was not intended
such but contemplated instrument thereafter to