New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1860-08-15


Jndos Sunderland iiuterrupting}-I do not want TO
cut YOU off in your argument but seems to me- as
simple IA xpayer Won have not su-h an interest s ens
bes Won TO maintain this suit. Ny recollection ina.
the Court of Appeals have held the same thng, an'
that certainly would epd the case provided that DC So
Then there is another thing. You are premature
in asking this Injunction, even against tne Con-
roiler. How d, yon know this resolution Is ever
going to pass! The Court never grants ioJunctons Oh
contingencies. II liz time enough to ask for restraining
proceedings under the resolution when il has passed.
and then viii be time enough for the Court to Interfere
The resolution itself does not levy tax Dure you
or any other taxpayer Courts ofequity interfere only
TO restrain the which produces the injury tres
pass and waste. You would not restrain the passage
Of resolution 10 do an injury, but the itself which
produces the injury
Mr. Chateld thought it too late 10 lock the sta
Bile after the horse was stolen When the $50 600 had
been appropriated and the resolution for 900 had
passed one branch there was reasonable ground ap
prehend that the money would be paid.
Judge Sutherland sad If IT was desirable he would
hear argument upon the right of the complainant as
taxpayer to sue.
Mr.. Cbatfeld then resumed Thereasoning and facts
do not apply TO this case Here remedy by action is
imp.ssibe on the ground of ilegaty of the tax nm,
less the Cont is prepared 70 hold that soo wv OF
Illegal tax will vitiate and render void the $l2
or 500 600 600 imposed all the rest being conceded 70
be legitimate and legal In the INDIVIDUAL assesse.s
this srcenious item not gushabe nor are there
any means furnished by the city authorities OF sspa-
rst the good from the bad, as TO enable the TAX
payers TO tender the legal amount. inere ho
remedy except by Injunction. IL Is said tnere Is
remedy by election. Those VINO urge .lis 49, f..
meut have not considered its logic. To displaee the
present members of the Common Council at some future
election would not egazs this tax, or afford remedy
for the illegal imposition OF 1t. IL might prevent suo
sequent illegality but could not affect TINS TAX
material au. son here is this action be maintained
by one or more corporators in behalf OF Gil similarly
situated 1t has been expressly adjudged that 1t can.
quote, in support Of this proposition tne following
authorities: Adriance agt the Mayor OF NeW-I TOTE,
Bsrble, Supreme Court Reports, page 49, Bower agt.
the same ibid page 254; Cbrls.opoer aet the sane,
l3 ibid page 567 Mlham sgt Sharp, l5ibld, page 1885,
II ibid page AS; Stuyvesant agt: Pearsai, 10
ibid, page "a; DE Baum against Mayor, 10 ioia
mage 500; Wilmore against Story, - ibid, page Ala;
DAMS against Mayor Duer, page 663 &C., and 1t Is
res ectuly commended that holds the contrary
doctrine. In Warwick vs. The Mayor, Mr.. JUST 70
Inrsh holds that the tax payer cannot restrain coz
lection of tax after it has been levied, by inluncuon
bnt intimates that the imposition of it may be resisted
The case of Dooltte Supervisors OF Counly
above cited is clearly distiDgushable from this. Inc
act sought to be restrained there was purely egsls
tive act 1t the single of the Board OF SUPERVISOR
the Constitution article 3, section IL, authorizes the
delegation Of legislative power upon the subordinate
bOdy by the Legislature OF the State not az corpora
tors, but az local Legislature. The erection aud
division of towns is specially embraced In the
powers thus conferred and spurey political power
The de- termination the Board of Supervisors or an a
pic ton for the erection OF new town. clearly tne
exercise of legislative discretion and this cannot be re-
strained on the application of voter or taxpayer OF
any part of the territory affected by the division And
the reason is obvious. The interest affected Is remote
and contingent particular right IL invaded no tangi-
bic loss be pointed out and proved, and the ACT
it,. If is act Of sovereignty which individuals cannot
arrest Ii is the right OF all sovereign authority TO d.
vide the territory within s jurisdiction into coaven-
lent districts and no can say he s injured In his
personal rights by being in one district instead OF an-
other. What the learned Judge has said beyond de-
cdI the question involved is entirely oblter, and ID
in conflict with ali the a6judcations of this State. But
Judge DEMO does not hold the doctrine tnat
a corporation may not restrain oy m]uncuoh
the imposition of illegal tax by the officers OF
the CORPORATION. The inmation, 1t amounts 10 any
thing Is the other way But IT TO me the reason
ing of the learned Judge is vicious. 1t is difficult TO
distinguish, in effect or principle the loss 10 properly
of $500, by corporate act or the imposition OF TAX
of $500 on the same property by similar oct OF tne
corporaon and vet the learned Judge seems to think
that in our case the might restrain but not In
the other. The damage in both cases Is equally per
manent and rreparable. Nor is this case within the
principle Of any Of the cases OF purely common dam
age, such arises from public nuisance, cited by
Judge DEMO. There the damage is common 10
ALL and special to none. But where the act Is
specially Injurious TO Individual AS well as generally
70 the public injunction may be granted at the suit OF
any party I'M ured In support of this position the fol-
lowing authorities cited: Crowden agt TINKER
10 Vesey, page, 6l7; Spencer agt. London and BIZ
mipgham Railroad Co., Simmons page 1913; Samson
sgt. Smith, Ibid page ~; Corning ag. Lowerre,
Johnsons Chancery Reports page 439. The case IN
Simmons 9Th page and Simmons and Stuart, 2o' To
page directly in point, unless the Court intends TO
give 10 municipal corporation character different
from other corporate trusts Doubtless the power OF
government conferred on corpo ration of this charac
TO certain extent, political not sovereign, but
subordinate and while acting within the scope OF the po-
tica powers conferred the discretion of the governing
body unmpeachabe by action, but IN all that per-
taD m he v,
the officers of the Corporation are mere trustees and
amenable. An issue has been joined In this action by
general demurrer the facts charged therefore stand
admitted and on these facts the injunction pendene
tte is asked IL is that express fraud and maea-
sance of office charged; that members OF the Com
mon Council have by the admissions of the pleading,
sold the tick cts issued for the ball pockeed the money
and then, by corrupt and coIusiye agreement win
the Lelnds agreed to allow their bills at s9l 900, on
condition that they receive upward Of $50 900 Of as
bride. The demurrer admits all this to be true. Can
il be that there is in this State no Judicial power
TO arrest transactions of this wicked and abOminable
character Again il is alleged that the whole expense
of his reception Did not exceed $40 600 for which $751;
600 are about to be handed This is also admitted
by te demurrer and it is claimed that this manifest
fraud cannot be arrested Again, this Embassy We're
the guests of the nation, and not of the city. They
were not accredited TO this corporation. has the cor
poration the authority to provide magnificent recep-
on TO get up bali and admit whom they please, and
get policemen at the door and exclude everybody whom
they wish and yet make all the citizens pay for it
What is the meaning of the charter, if they to
celebrate this occasion ike the Fourth Of July or
Washngtons birthday. only differing in the fact
that the latter is public everybody, while this
il exclusively To few Is the corporation 10 take
the money Of the people to circulate their champagne
employ their music, decorate their house fresco 1t all
at the public expense and when the ball comes,
shut out everybody except three four hundred or
thousand people Is that the kind of power that this
Corporation possesses hope 10 be able to show on
the occasion OF this trial. If obtain it, that the Metro
polan Hotel was newly furnished and decorated fron
top TO bottom all at the expense of the CORPORATE
became, forsooth the Japanese Embassy was there.
l.. IL L. Ia ind MI tn he