The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-08-15


interfere with each other.
THE JAPANESE sWINDLE.
Motion ror Injunction TO Restrain the
Payment Denied.
SUPREME CoURr-sPEClAL TERN.
| Before Hon Judge Sutherland.
| AUGUST I4-LrT s. CAstfesd u the Mayor, Aldermen
and CSmfxvIir Of Neo Yotk-This was motion Tor IN
junction to restrain the city from paying the sum OK
SOs 900 the entertainment OF the Japanese Embassy
The following the demurrer put 10 BY the Corporation
counsel the complaint q the plaintiff, which has been
already published. Mr. Cns6eld and Mr.. F. O. Feono,
counsel for the plaintiff Mr. e. g. Anderson Tor inc
The defendants, the Mayor, Aldermen and Commonalty
Of the city Of New York aad Robert Haws ComProisr
OF said cay, demur the complaint Of the pAintlu
Fini-rhe said complaint does not state facts sufficient
70 constitute . cause u sttsou.
seoood-The plaintiff has not legal capacity 70 sue
NJ chssfeld the piAsslf 10 person said thus MOTION
yh U 90 has been inter used Iy The and the
Comptroller in other wprds, BY all the defendants
The Judge said the Court could not hear the demurrer
NJ. ChaI6ead-Thai I,Dow, but simply stating
what the rapers were, 60 that the Court would not pc
seaao TO- the % ssTesng ~ha, believe to be
ercwog evil IN the government OF this city and not only
" project myself but All other taxpayers Of ths city
the payment q a q: money passed by the Common
Council. for what ls called the Japanese entertainment
will say Curt that II this entertainment had cost
reasonable sum should not be heard here TO DAY II
the Original passed by the Common Councll had not
been ucoied auadrupled, should have been eA'is-
hedthe original amount beiae $50 ooc-but the expcud
lures amounted IA sl25 coo and approved by the
committee sos 000 beng more than three times the
amount originally appropriated. what tae Items are
thai sweed the Appropriation 10 tbs amount KNOW no
for II be thu object OF the city government to
conceal ruem There may be motive Tor TINS there
| .INr
| insgne vtsy good one, AID | have no doubt
| the parties who ~ receive this money
VII be @u more graded .4sy ~, axe ',,I per
them. The questions which must necessarily arise
this motion suggested in the demurrer entered by
the Corporation, the Application beng for al adncton
prdee h-duripg the pcuteucy Of the NJ, on aud the
question whether the psntf IN this ac,oe has the
| iega capacity u ralLtaln II.
The Judge required this was an order 70 shew causeg
hr Anderson, assistant Corporation Counseiit Is al
application for uionctoD restraining the C2rporatis "A
CoHpts oter from Inserting this Dill IN the annual
! taxes which TO be paj b. the city rle Common
! Council have not yet passed tue resooiioa
The Judge-it has not passed the Counc!me1.
Dir ChaIGeitli haF passed. Que breach Of 'he Common
Council aid obtained seveLteen votes one neces
ssry pass n the Other branch Tue ca2rer oil 1851
says Council shall not appropriate any money
for auy reception or any public amusement except the
Fourth OF july Evacuation Dsyfand washingtous Birth
Day unless by vote of TIRE, ouEths OF nj the mem
beers.
The following thc poats relied upon BY NJ. Chat
He.d:-
corporations stand the same footing private or
gregate corporations They mere creatures OF the law
pressy conferred by the cnartcr CDartmouth Col VS.
Woodward mhest 6lS) They may be created as auxia
the government, and to that end be clothed with
political power but in such case they can act only IN the
mode to tue extent for the purposes specified IN the
charter Dartmouth College above cited McCulloch
state Mary Wheat 3l6) And these powers cannot
bu exended bc onh the letter and spirit Of the act Of moor
posston ID aty Knowles, Pet, 1922 The powers pos
sssed by The city Of New Ycrk corporation defined
-.
gsature aeDdatory thereof aud such po
Ia expressly grated and others exercised
Municipal corporations undoubtedly have 70 impose
taxes ter the necessary purposes Of the corporate body
incidental power, and without express grant but
beyond this the caunot g" Every extraordinary tax
void Tue purposes o the por alton he ncccssa
ry and not sumpldAry convenient Hence,
u supply the cty with Coton water required special
act, cid the establishment of Tic Central Park aud
other public places, and the city railroads. The people
here as else where must have streets, courts, markets.
police res ola public officers and Offices snc taxa
ton support thea Incidental 10 the exsteuce OF the
corporation itsef These purposes must aga.a, be pub
c purposes and not private purposes The corporation
such, has power 10 establish theatres for the
ooursgement Of ballet dancing; course for the
exclusive of the owners oi b"ct horses; lager
beer saloon, at which shall Be charged al entrance
fee show OF exotcs. whether animal vegetable,
oeu only To 900 az The 5000 Inhabitants OF the Cor
pofattu, and then only ment Of fee to the mem
bers OF the Common Council, without special act for
that purpose Could the directors OF bank vote the
OF COO, the money Of the corporation 60 give recep
tou TO Baron Rethschd; and II attempted, could not
corporation restrain the act by Injunction In this
spec, munc.pa corporation does differ from any
other II must act within the powers granted its acts
will be void and may be restrained But IL Is said tax
corporaor cannot interfere because he has an
other adequate remedy The courts have not gone this
length and II they bad Dooltt,e Superintendent u
county Y the reasoning and facts do not
on the ground Of egaty Of the tax uncss the Court
prepared hold that s1o5 600 Of Illegal tax will vtiate
and render void the SIS 900 or $50 900 oo imposed
al the rest being conceded W be legitimate and legal
The power TO tax q sovereign power II has been
regarded with great Jealousy and watched with peculiar
interest II II possible for the Legislature 10 delegate
it, the OF the delegation be exceeded But
more OF the powers OF municipal corporation are
be legislative by the constitution art B. sec l, All the
egs alive power IL the state II vested In the two branch
Of the legislature and the power Of delegation except
in singIc Gaze not conferred on the Legislature The
Council ana Mayor but forms Of procedure TO
carry into effect the granted 10 the corporaton
ton to the School OF 1851 that submitting tho law to
the whole people for their approval rendered the act void
because TO vote thereon was legislative act aad such
power sas reserved to the people In the constitution.
In the individual assessments thu arcenous ilcm
distnguishAblc there any f1ruishcd by
the city Authorities OF separating the good from the bad
SO as 70 enable the taxpayers to tender the legal amount
There remedy except BY Injunction II said there
is remedy by election. Those who urse this argu ueut
members OF the Common Council at some future election
wond not lcgaiizc this tax afford remedy for the H.
gsiIty but could not affect this AK The material ques
ton here n, this action be maintained by
more corporsors In behalf OF all similarly situateds II
has been expressly adjufged that " (Adrana va
Ma, or Of New York. barb, sec 10; Brown vs. Same,
ID, 254; Christopher Lsrne, Is DO 5sT Mham W..
sharp Is. 1q3 ibid IL do AS Stuy pearssl
Is do 81; Dc Bann the Mayor, 10 DO. 3o2; Wet.
more Va story ~, all; Davis Mayor Dger, 663:
Roswell vs.. Draper, 10 How. p 1919 And IL Is re-
specially coutended that case holds the contrary do
trinc. In Warwick tho Mayor, Is How. p. r. ISL,
Mr.. Justice Ipsraham holds that taxpayer cannot
strain the collection e tax after II has been levied by
irjuEctlon, but init naies that the imposition o. IL
nay be prevented The Of Dooi,i w supervisors,
&c. above cited, Is clearly dstingushabe from this.
rhs sought TO be resraacd thus vas purely egss
live ac, In the single of Boards 81 Supery the
copsu,r article 3, section II, authorzs the deiegs
ton of ec,stlv power the snooriirt,c body BY
The Les sse OF the STATE tot as enrporatos but as
ocsl ssa,cre The erection and division Uf toens Is
specifically embra,ed N tho power thus conferred and
Il II purely political power TOE deterrniuatioo ~ the
Board ~ super appl aim for the erection Of
town " CLEARLY the exercise ~ lrg'st,ive tscre
tiui and ira cannot te rcxtraine the css Ofs
yo'er tax V,ycr Of any part the territory aisctet
by the tvsion And the Oh vtous The ltsrest
Affected s rcn"te ana ccnt'ngrnt prticulr righ;
invaded, tangible oss be fintef Oh, or proved,
tln act "a