The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-02-15

vested In the Mt for the general good Is 81
poeS % es dsIessaed with sovereign. According
n reference 70 this very Charter. this very power
legislative resumption recall his boz ~
: corporation to appoint measarers Of gram 30
Cense nnkeepers Various other powers enlu,erat
e.ss s ss Sss., have been taken practical
1901 and the judicial decisions are NUM- ,ous rh
recogese the distinctions here ncosd nn. ~n'
Int ~ applicable to the charter in Saes TO
& F; sss y y: MORT, ~ ~ wsna H'S r. ss
sssIsh VS. Mayor New York Sc cowep ss ssu
&c. Of New Y SoT PSI ssS sos ,1 co. Lloyd
Mshr. &C. Of New York, DEMO, 6sS) But while "
appears up %e ina mat the regulation Of the
the control - the Legislature, and 90 onr 'A =.
lot regula cd by them the proper subject Of rssu
the Defendants aud their essees II yery Ssreot
question whether, and to what extent, ought TO be IN.
eriered with oy the courts Am in condition to say
maximum rate Of ferriaee for foot passengers At two
cents, but not requiring the imposition Of such rate,
plain that it will fraud or palpabe oppression
upon the citizens who shall have occasion To cross the
ferry then court Of equity should probably Interfere
But am not satisfied such conclusion would be
well founded i results in this, ought a mere dif
ference Of opinion between the Court aud municipal
corporation az to the proper Of errse be charge
TO induce interference by injunction In case too where
the erroneous Judgment Of the defendants If it exists
This is probably the most important question In the
case 1t is very clear that such power IL 1t exists 10
Corporation Of New York are by their charters taken in
connection with their subsequent action under the same
vested with the power Of certain ferries and With the right
10 establish others Incident 10 that right, the absence
OF legislative action must be the right establish
OF ferriaee. The right would otherwise be vsueess.
There rates should OF course be reasonable. Who 10
decide that question: The Legislature may do So as
have endeavored to show If they do the Corporation
certainly jrsiabe for adopting their rates If they
| m
ton Of the public will that it shall be left to the
themselves local legislature n and snn ,n ARE
have right to legsate on this question. If there
we're no general law, why might they pass a local
Jaw nxmg the raes OF ferriage on the waters
about their cyS But may be said they have passed no
hw. Perhaps not In FORM but have they not manifested
away IN the resolutions passed by the fixing the maxi
mum rates OF ferrisge aud is not this matter sub
isptla'lve action, fraud or palpabe abuseY l think
these Questions must be answered in the afYirma-
tive need not cite authorities to the PROPOSE
uon that where matter Is left to the discretion
OF subordinate tribunal the that discretion
IN good faith unattended with fraud abuse on their
own part or imposed upon them by others, absolutely
conclusive The remedy for their errors OF JUDGMENT
consists not in an appeal to Ae judicial power to overrue
authority con6ded by law but in an appeal Ia
the law making power to override them by paramount
legislaon or IN an appeal to the people to eject from
therefore, of opinion that far this branch Of the ap
phcaton is concerned the injunction must be denied So
far as the application founded upon the allegation of
New York and the Union Ferry Company to enable the
latter to obtain the lease by imposing terms which cannot
complied M s BY Snk must Ss s for the
that effect in the complaint il not verified sccompa
med by the affidavit Of Alderman Dayton Of his belief of
the fact, but that is too vague and indefinite To
operate the proper foundation for an inunc.
ton Besides, it is repealed, 50 far as it can
he'd upon as sufficient evidence from which TO infer the
fraud are in my Judgment inconclusve The shortening
Of The leases, TO take effect the contingency OF SALE
nfad hvt
supposed importance Of selling the ferries together
to adopt The :. the same perea the refusal
Common Council, and to listen TO their sasgess'dts,
justify, think, the imputaton Of bad faith; and
the conference and, 10 rome extent, concord, between
the Comptroller and some OF the members OF the Common
Council the chief manager OF the Union Ferry Com
pany natural enough in matter Of so much import
arce, to sufficient support
the allegation Of q fraudulent combination Indeed the
agents OF the Corporation in the whole matter are as
have heretofore stated not supposed 70 have acted with
sy 81 York the charge az
too anxious, ranscious wish to serve them bu.
even OF this there sufficient evidence, the rental OF
ferries reserved TO the city does not exceed the fair
81 ns "a
binary commercial purposes As before stated there Is
not sufficient evidence OF fraud impncAsog tne Psrnes
leasing and advertising Of the ferries from which to infer
any corrupt bargain between them to participate as in
oiyiduAls in profits Of the transaction, ultimately
contaminated by lease. The only remaining question
10 be discussed to the effect Of the law OF May H.
validity and operative character Of that law Assuming
that that Law in force, am Of opinion that 80 far
as it applies ferries established after its passage.
il is valid Of legislative power By its terms
do understand 1t applicable to existing ferries The
power granted TO the city Of New York 0y the Mont
pomerc charter to establish future ferries Is mere
power conferred upon the city, and not right Of proper
~. 1t Is pubic or governmental power whose
The sovereign authority. doubt if the sovereign
ALLEVIATE 1t beyond recall, inasmuch as the public
welfare demands that should reside in the legitimate
Temporarily aIenated, IL may, think be resumed 80
long remains unexecuted by the agent or delegate
inyiolable and indeeasble. But it is delegation Of
authority for public purposes and not for private emou
sn and 50 GOLFERS ME mo present. right Of properly
vests no title 10 real estate and l think II must De
deemed to be accepted with the implied understanding
execution though on face exclusive, does not mean
exclusive Of the donor ba. OF any other donee R io
lows from these considerations that the law OF 1915 mas
not been repealed by the act Of 1857 IS valid and ope
ratye the two ferries which were granted or esao
shed after its passage 10 tha e1.e. inc o
mount legislature thalaw in force, the Corporation OF
New York has authority to lease The Hamilton avenue
and Wall street ferries, and their attempt TO DO SO
threatened exercise OF Illegal power, which, from its
grave character and serious consequences may D. pro
pery restrained By Injunction Ia arriving az THIS couc
| sion 7 do mot come in conflict with the decision OF Mr.
Justice Barculo, the case OF Benson w. Mayor &C. Oh
New York no. Barb 223) for he abstained from deciding
The question: nor necessarily with thai Of Mr. Justice
Roosevelt. the unreported case OF tne Mayor, &C. OK
New York w. Benson, who jS SAID 10 nave ueCueu III
favor Of IN Injunction restraining the defendants in that
from taking possession o. ana runnna e Tbe S
] South, Hamilton avenue and wal stree, erres. Inc ae
fendants in that justified defended under single
lease OF four ferries combined aud the decson may
have placed upon the ground That as the deendants
were attempting ghts as TO the ferries under
lease or license two OF which ., least was Invalid,
that they ought be epjoined IL does not appear DIS
tncty hat the at upon what grounds
wss based and feel therefore, at liberty TO ADOPT my
! own conclusions. But 1t appears 10 me that the
oct OF 1885 was by operation OF law repealed by tho
amended charter of 1857 These acts relate 70 the Same
subject atierthe ferries OF New Yorkthe forme EN-
bracuR the ferries Long Island the latter al the New
York ferries provide different and inconsistent modes oil
leasing licensing the sane are both emanaons o. the
came Law making power, and the --latest expression OF the
| egsatiye will must prevail The act OF lS45 contern
pisiee licensing Of the ferries by commissioner n
| n nu6ic sale and an exercise Of discretion
| on the part Of the commissioners In the
selection Of the censers as well as in The number OF er
res to be maintained and the places where they shall be