The New York herald., 1871-09-14


when, say, Your Honor, you consider the small.
ness of the pecuniary interests which the plaintir
It IS going little too lar ior nm To- require
for this purpose that the whole wheels
81 Should f be e D o mt
party as plalnti1s in this case but John Foley. l
recognize no fact in any papers except such rapers
outside influence or outside 1eehng In connection
with this matter before the Court. The plaintiff rep
Iesents only his own interests in this case here
ana none others; and 1t is with his interests alone
that nave now to deal. My learned friend on the
other side in one OF his objections in the early part
OF the discussion said that some one was suggesting
motives for this case. suggested none. Whatever
Mr. MI roey may 9ave we De asy goSa de-
cunary interests, whether he desires that they
shall be protected IN this suit wheheri 1t be- in fact
SHAM SUIT,
and he only be the agent OF others put forward here
to press the suit for ulterior purpOSess OF no sort
he has rights to be protected ana that ought to be
protected here, he has right to come here, and
will grant him what you believe to be his due-full
ana complete justice. NOW, then, Your Honor,
HAS FOLEY ANY RIGHT TO COME HERE?
Has he any standing or position In the Court at oil
That will be the first question which 1t VIII be my
duty to pre- ent TO Your Honor. and Your Honor Will
see as present it to you that have no desire tnat
any investigation such as might be fairly called for
rapidity, with fairness and with rulness which
! think may say is unusual in cases Of This kind
but with that solid and persistent industry which
%s the to assatSss s rase te
Will With the he COUNTER allegations or OF the derendan1.
And when | have made our statement or
standing In Court, shall 90 so only because be.
lieve 1t TO be the manifest duty OF counsel to take
point on thai which lies at the very root OF the right
to sue and not with any desire that any proper IN
formation should be withheld from the Court. My
case. which proved so creditabe performance TO
himself-eveD he suggested that there were doubts
a me Yor Honor I in V eW pSt' wors ase bs
doubts and his difficulties on this point an imposs.
bllity. 1t is admitted on the other side that, prior
to the act Of 1854, no private individual, either Of
citizen or taxpayer, or bondhoder, had
A LEGITIMATE RIGHT
TO stop, by legal proceedings civic corporation
from innicting waste. Your Honor s too familiar
with OF this sort to require that should more
than suggest the case of Roosevelt against Dooittle
some time after this case was decided and IN the
year 1854 IN an act which Is known as the Tax Levy
OF 1864, sentence was Included, the phraseOlogy
OF which Will read to the Court as fo0ws-
The Common Council of the city of New York and also
the Of said county e HsT and Of h &
1 and Of i1 city ana n Se 81
committed 70 their man,gemen' or control; and every
who pay CITY t.
declared to be s 2se trust IN respect to the said prop
any SUCH & q trust BE- entitled as such
To ali the hs n law of co.
trustee or que prosecute msinain any
and estate Rd n trust Such trustees hereby made subs
eS e and opon5es may % Se e
forced by co-rustce ecta que trust aforesaid
In all cases tried under the act this rule was
rigldly adhered to, and was In many instances
applied to clauses similar to the clause question
Now the scope of this clause was to establish the
the Common Council of New York, as related to the
city funds and the Board of Supervisors OF New
York, as related to the county funds, and the tax.
cpcf1N
Que. thus the relations thus made by this clause be-
tween these parties connects Win no other element
Now, may 1t please your Honor the question or
the consttutionalty or this act very soon came up
before the courts. 1t was decided, and rightly dc.
cided, tnat the act OF 1864 and all the other acts
having the same title, and tue main purpose aud
against the Mayor and Commonalty of the city
OF New York ,oIar, in Which S r, mad ,o the honor
fendant, the plalntif Pullman brought suit
as co-trustee, claiming his rights under the
provision of that act TO enJoin the Common Council
and the city government from making contracts
with certain gas companies. Your Honor, at the
first argument of the case, decided that the plantif
Pullman was not without some remedies. He
claimed under the clause which have quoted, and
which desire to cali Your HOnors special attention
TO. The title Of the act under which Pullman
| AN act TO enable the Board Of Supervisors To
raise money by taxation for the use OF the corpora
tion and in relation to the expenditures therefor. y
This act passed in 1866. In that act was clause
providing that the said several sums, so received by
purposes Tor which The same are thereby appro
prated; and that neither said corporation nor any
sRa Incur any other liability FOR any otner
pose, or pay any sum beyond the amount appro'
raeS theredo M f9ur t Honor viii IL, see
IS iSp0n rot one Of those which Sns' was refer: FER:
red to byA counsel. Your Honor held
in the Pullman case, when it first came up that this
clause gave Pullman the right to ask ine relief he
required. dld not then argue against the constitu.
afterwards, and was decided at the General Term OF
the Court, Your Honor being on the bench. And 4
or the cty-that that acl being only local act, and
not being necessarily, therefore, part OF the sub
| man, 1t was then decided. had no rights for
relief under It: Now, that IS q stronger
ciause-belng in violation OF that clause Of
the constitution affecting local acis--than the case
which we are now presenting. In this case under
the Tax Levy act the object Of winch ls TO provide
money for the city government Is founl q clause
totally different in object aud purposes, and in no
way cognate 10 the subjcct and the object Of which
is TO establish the relations OF trustee and cestuiQue
between part OF the city government and jndlvld.
Pullman, again plaintiff, against the Mayor of the
| city, implcaded with Mr. Wood, and which was
tce Sutherland had no nesitssiion Whatever IN de-
| cldtng the question. ! have in my hand ex
tract from his decision which, If the Court please,
| VIII read:-
This action is brought by the plan!ia member
Common Council of the city of New YORK. and assume,
were made defendants by making .the Common Council OF
the city OF New York" defendant defendants,
made defendants as corastees Of the plaintiff unde
said third section the plaintiff had legal capacity
bring this action and except
force OF said third Section either cO.trustee
payer Otherwise therefore, the first of demurrer
'tha the plaintiff had not legal capacity sue raises
constitutional question: which was argued this but
which not raised argued decided In Brady The
Mayor before referred The constitutional provision
which 70 insisted makcs said section Of the aet OF
April 25. 1904 unconstitutional and vOd l6 sixteen
article 3, which is In these words :No private local
bill which may be passed ly the legislature shall
than subject and that shall be expressed
title"
In the Sun Mutual Insurance Company The Mayor,
OF New York Selden 253 Judge Gardiner in Speaking of
this constitutional provision thai the purpose of
tina, neither the members OF the Legislature the public
should misled by the title" And The Mayor,
Colgate Keenan, i6), the same Judge said NOW, 1t is
that the dscr between The head
Jcct of laws frequent that constitutional al
provision deemed guard against
upon class OF legislators whose knowledge OF bills sup
posed 10 be gathered principally the es" There
be DOUBT that the act Of which said section
part is local act or bill All Of is provisions including
section s. relate TO the city Of New York. limited
to the city Of New York lis main purpose and subject
the raising of certain by local taxation, the
pendue thereof for local purposes that the expenditure
Of the moneys to be raised by the authorized taxation
| III