The New York herald., 1871-09-14

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This point. therefore would seem to be settled beyond
bring this action.
Asmar decision was made in recent case-the
case OF the People against O'Brien, with winch,
perhaps, my learned friend Is familiar, and winch
may be found In one or the last volumes OF the
Honor please that from nth the analogy Of these de-
clsons-especally from the decision OF Judge
general principles and course and necessities of the
law. and from the unyarying DRIFT OF all recent cases.
tae section % or " the e act of r. lsss upon Which Ine
paintiH Foley) can rely for any standing IN Court
is UNooNsTIIUrIoNAL AND voIp: ,,,s s,,,
against any Of the defendants. That clause re-
spectiully submit Is bar. constitutional BAR I'm.
advance IN these proceedings. and renders those
that have been already taken, Unconstitutional and
lar as the constitution provides II 1t was not so I'M
perative and yet 1t IS clear that It Is quite clear that
OF the defendants and the plaintiff foley-that even
by virtue OF that clause any relation OF trustee
and cestuie Qui trust can exist. That clause gives
TO SUE THE BOARD OF APPoRrIoNMENT,
sue he Mayor %, 0 New YORK ana M n ESuh e
alone, against the Board OF Supervisors, and as
consequence he would have no right whatever
under that clause to sue any OF the other defend.
ants; anu as against the other defendants, except
the Board of SUPERVISORS, ne has and can have no
proper claim in Court. And as for the Board OF Su-
pervisOrs suppOsng he had O right to sue them
In this Court they aver that everything he presses
IN his demand for relief Is religiousy done 0y the
They assert that SO far their action Is concerned,
they have no objection to being enjoned to do what
they nave been doing and what they intend to con-
tinue TO do. They have been following the exact
course which the other side would enlist tue ma
chinery OF the law to compel them to pursue. They
as they are concerned, what is the object, the
meaning or the use Of such proceeding as this?
or course, If the Court please while dwelling on this
point have no Intention to waive my main Oojeo-
ton Us TO the constitutonality of the clause. sub.
nit, Your Honor, suppOsng 1t was CONSTITUTIONAL
no rights given under 1t 10 sue any parties but
the Board OF Supervisors. And while contend that
they do not intend to do anything that Is not egti
mate, there is no need OF an pJunctlOn and there.
| fore 1t Is
| THRILLING WITH TIE BUSINESS, THE IMPORTANCE AND
| DUTIES THE COURT
to ask for an Injunction against the defendants who
90 not need such nsJrsnip or guardianship, be-
| cause they are only aclIg according 30 the law.
There Is no need Of an nunrlion and It is trinlng
@ s sv USs r 10 as IL IN 10 Wn 'e Of tSa a
class. They in no way present any assimilation to
the old Board; they are IN every way different. All
| that they succeed TO Is the name; the necessity
OF law does not exist. Passing all that 10y,
ii the Court pleases, and now coming to the case
presented 10 the Court on the part OF Mr. Foley,
shall not have much To say. II seems to me that the
learned counsel on the other side in The form OF their
and III the form ana substance OF their opening to-
day, have wasted some valuable time on branch
| OF the case tlat, however interesting III public
point OF vew Is wholly without relevancy to this
proceeding for an Injunction. An injunction In Its
nature IS not represslve measure: to0es not need
sure and looks not to the past but to the future. II
on this occasion errors or shortcomings have Crept
! into the city government that fact may be re-
dressed in other ways, but certainly not by
proceeding of this KIND. II Is not against the past
government that Mr.. Foley asks reel-it Is against
the present government OF the city OF New YORK.
Up TO 1870 the form and substance of the govern.
ment altogether differed from what it is now. IL
was formed then OF various heterogeneous and an
tagonisc elenlentS-lt was not CIVIC government,
but state government-and the civic authorities
should scarcely be he'd responsible for very much
that might nave been objectionable in Its proceed
ings But 1t Is not against the government of 1869
or the government OF 1870 that the learned counsel
on the other side have advised their ce1t 10 pro-
ceed. The defendants here are not the Supervisors
ApportionmenI, as an institution llat sprung INTO
| lie in 1871. Tie action which they seek to
prevent is the action OF ,af tie present gov;
! 1868, 1869, or even In 1870, that they are TO
look for the basis Of their claim for this kind OF
side, was glad to sec, when he had closed that
part Of his address In which he spoke OF past trans
actions said nat substantially the real question III
the case as to the present and TO the future,
and although believe that that Is all that Is to be
considered in this case-tharis what the city gov.
ernmenJ are now doing TO the damage OF The plain.
tilf and what they threaten In the future to do to
his damage though ! believe that all-tnat is, all
not sorry that some OF the defendants have
In Their alidavits perfectly told all that they knew
OF their relations to the past AS far as Mayor Hall
is concerned, who represent IN this motion, he has
stated that he has no connection with any person who
are contractors IN any way lor the city government
he has stated 1t distinctly, not nippantly, as the
learned counsel on the other side somewhat flip
man who received an honorable election IRON
the people of the city OF New YORK. He has de.
| med his cOnnection-his pecunlary connection
with the Leader newspaper. A connection is avowed
| in the complaint. He has been frank and candid,
and told you what that connection ls-a connection
coming q gentleman. There are very lew men in
the city who win SO honestly speak out the senti.
ments of the heart who not will say, from their past
| knowledge Of the history OF the present Mayor OF
New York, that he is as much to be believed
as any man whose aflldavit was ever handed in In
any court OF justice. He states as 10 many OF the
charges, as TO amounts which have been paid under
his signature that during his Time OF ONCE he has
any man consider the responsibility OF his own
duties, could expect MIN to read through all those
accounts; human nature could not endure II.
Like men In banks and mercantile establishments
and other corporations he had TO depend OH the rell-
guided by the confidence they place IN their assist
| tants when only his signature Is TO be appended.
He says tnat he never signed any warrant which he
had reason to think was unjust and unfair, aud Your
Honor and every respectable intelligent man IN the
city VIII, am sure accept his statement l believe
1t and present 1t for such consideration the Court
may please TO give II. There Is no doubt that when
the old spendthrllt form OF governmental 1t We're
spendthrilt-CXsted,l lett large amount OF debt and
dltculfy TO It's SUCCESSORS Against that difficulty
they have fought rs well as they might. 1t does not
form any part OF my case TO 20 into that operation
The learned counsel for the other defendants Will
! more ably deal with that L. on the part OF my
clients, stand here to ask what IS there n the pres.
ent conduct or the civic government, what Is there
threatened In future whicl Mr.. Foley the piaintlD,
| has a rlgnt 10 complain Off l desire our Honor
to set me ngnt on that point If there Is anything
wrong about IT, AS To the figures herein adduced on
the part OF the defendants the difference not OF
real importance The question Is whether In th @
financial government OF the city OF New York any
error has been committed Now, the learned counsel
tha eta tbaf Ta inu of
sometimes known as the Two Per Cent law, requires
that all claims accrung against the city and county
Of New York in 1871 should be paid out OF the taxes
collected In that year. This Is the question really to
be argued. The amount that can be raised by the
Two per cent tax and applicable to the city
government Is s23362, 527. The State tax TO
be paid out Of that Is So,1il,s56 leaving
balance OF S1662l,57l. In the complaint 1t IS
stated they believe SO, 100000 OF bonls are coming
due this year. Now the $9,000,00O OF bonds accru-
ing the theory OF the counsel for the plani6 are
also be paid out OF the money raised by the two
! per cent tax named. Deducting s9.00O000 that