The New York herald., 1867-05-26
7 n E c o y r 7 S


The ConstitstiOnality Of tho Transfer BY sht
Legislature Of tho Licensiug Powcr-Argu.
DeDt In the Test Case.
Before Judges Leonard Ingraham ana Smith.
ne People Of ne State q Nes YSk and john Hey
sas, Mayor, de-, va Thomas C. Acton and OAers. Com
ssssSoners Of tie Metropolitan Police dc-The argumsn
in this case which has been made up for the purpose
testing The consttutonahty Of the twelfth section
he city tar levy, was commenced yesterday morning
before this court Messrs l. Il. Woodruff A. J. Van
ssrpoel and Waldo Hutchns appearing as counsel on
behalf Of the Commissioners, and Messrs. David Dudley
Isld and ExJudge Allen for the city.
David Dudley Field opened the behalf Of ths
c,ty authorities, and said substantially that:-For two
centuries the city Of New York has had its loca
government II given not from accident not from
caprice. bat IN pursuance Of maxim Of civil policy
sva with modern civilization The municipalities Of
vived Europe not only the earliest promoters OF
indusy and the arts but the strongest and bodest
advocates and defenders Of individual freedom Where
ever on the continent Of Europe, in Italy or Ger
many or In the Netherlands people assembled together
lor tho pursuits Of industry, they asked and earlier or
behind which the hurehers det ended for themselves
their rights and transmitted them 70 their SUCCESSORS
England ana there TOOK deeper root st And in ali the
struggles in that country the rights OF the municipalities
proved to be the most efficient protection for the rights
q the city against both the and the n0bleG And
whom own f0refathers came here they established
= they supposed st deeper foundations the same
observer OF modern times has found thought found
IN this principle OF local the key TO all
Sas .od a bs
supposed TO be laid rmer Twenty years ago there
ssmbed in this State Of the abes II not the ablest
bodies Of public men that got together within
borders TO make anew constitutional government
and they established they thought for all time the
foundations that never more to be moved And t
- curious commentary upon the motives Of parties
that attery the tendency to destroy local government
has been greater than ever before since this country has
bean settled. To-day debating question which
- to determine whether the Legislature may rghtfuy
axe from sns ancient CITY every vessge Of s power
take away all others The act which s the subject Of
controversy s entitled act to enable the Board Of
Supervisors Of the County Of New York raise money
By taxes for cerain county purposes TO extend the
powers Of the Metropolitan Police provide for the
.Sdiing ana paymens, q claims against the county"
have brought before you and whether under our con-
ssitution, which processes to guard and limit the action
Of the Legislature, such legislation th shall be up.
heid, Ia the question now before the court
The FIRST objection TO the twelfth section Of the act In
question is that Il conravenes that fundamental maxim
Of system Of government which forbds legislative
and executive functions TO be conferred upon the
person. The Board Of Metropolitan Police branch Of
local Legislature Of this ancient city can ordinances
In relation to or concerning the persons occupations
natters in this section mentioned shall remain in full
force and effect except modified and affected by this
os until they shall be altered, modified amended
sepealed; and the Board Of Metropolitan Police is
hereby authorized to alter amend, modify repeal
the same" This 10 the language, and II Il have con-
stitulional vitality, the police make the laws and
cute them at the came time Suppose It were enacted
Shat sherifs should be 'authorized to alter amend
modify repeal the samen would that be thought with.
IN the constitution Suppose police justice were
deemed competentf Though the constitution Of New
York. unlike the constitution of several States contains
- express declaration that the different departments Of
power must Be kept distinct yet the observance Of that
maxim 70 implied In the forty seventh number Of the
vsderaliss, Mr. Madison referring y 9sr SoagtgQp of
S Sa Sa a0x no
have been framed with eye the danger or improp
Grly blending the different departmental The consti-
ese9s Of ls2 and ls4o are su stronger TO The same
This twelfth section 10 also unconstitutional and void
because Il contravenes that part Of the tenth section OF
vhioh fobids State from passing any law 'impairing
tho Obligation Of confacts No inconsderable portion
ne snss fees oy ne m s action
ana other debts Of the city. Tho city has borrowed
sns debt Is s unpaid The eject q the -. ac IN Question
y 70 take the fund from the custody where IL placed
n O Ss cg Or =
- 70 impair the obligation Of the contract be-
tween the lender and the borrower. Take the
oase Of . transaction between individualA II A
borrow Of B, on the security Of mortgage TO G. can
che Legislature without the consent OF al the parties
q the hands Of G and place them in the hands Of
DY We submit that It Is not competent TO the LcgIsla
ture 10 do So and that the present attempt s equally be-
According to the arrangement made at the time Of the
oan the money received for licenses TO be collected
sha who was " enter in book at the Office open TO
public inspection, the names OF all persons from whom
The cense fees were received the amounts received ana
vhen pad: render an under oath 10 the Comp
ssoler daily and the same time the amount TO the
Chamberlain The amount Of the license fees was TO be
axed by the Common Council The Act in question re-
xvae 40 srho oua
Rve the account Of the licenses given need not
b entered In public book adaiy report OF them need
mot BE- Riven the Comptroller and daily payment
into tho city treasury need be made And more than
~ ie ID no longer Common Council but the Police
0onalssioners strangers to the original ent
Who arc to az the amount OF the fees Tho contract
ado with the citys creditors Is thus broken In upon In
most material respects The lender and the borrower
agree that certain 70 be xcd by the borrower
shall be pledged TO the payment Of the debt and the
money is lent upon that condition This act comes In
- oSsr hsDds but ,Sas ssnS IL. thereof shall
b entrusted having relation 70 either bo
rover lender and having no motive TO enlarge the
fund
Suppose . loan BY 70 for which gives a secu-
y nts Of BIS estate which he has tho right to change
from time 70 lime would .w % valid which snS .s ss0Ts ss
regulation Of them both hs amounts and the psr
sons 70 receive them, In other hAndsf
Tho 18th Section of the Act In question ID unconst
Snona and void because consravenes The 10th Sec
sion Of the ID Article Of the Constitution OF this state
she same being in these words: "No private Or local
embrace more than one subject, and that shall
Be expressed IN the titls" This was local
bill: IT embraces than one subject
County taxaton BY the Board Of Supervisors
for county expenditures ID subject legislation BY
the Board Of Metropolitan Police upon coach fares. b
snsther The consequences s either that the whole act
y void or that part which relates to The second subject
= void
Ths section in question unconstitutional and void
because contavencs the second section Of the tenh
article of the constitution Of this State which declares
that city ofceu shall be elected BY the citizens or ay
pointed BY the city authorities The duties which the
twelfth section Of the act dovolvcs upon the Police
Commissoners, who State ofncen, are city duties
The book 10 fu Of laws recognizing the control
Of the city Over such subjects, or giving such
control. The constitution Of 18l6 was framed
and adopted with this course Of Legislation In view
Beginning with the Dongan and Montgomery charters
and taking the consolidated act Of 1914 can follow
the same current OF legislation 70 the present
dine The seventh section Of the Dongan charter 10
mentioned because Il h older than the fourteenth
son Of the Montgomery charter which relates 70 the
onmc general subjects though the latter IL full
These charters were confirmed by statute Of the col
ony OF Now York 1892 and the several constitutions
q the State have carefully preserved them (sec 30 Of
constitution OF 1777. Art section ~ OF constitution Of
t.s.xtsr ~ Aennv ~