The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-08-11

case and deposited in court where they remain The
note last paid maturcd and paid before the
closure was destroyed The city has not rendered back
the money so paid nor has II dscaimed the validity Of
the payment, nor has il rendered back the amount
any part Of H. expended by the company in making tho
improvements, made any offer touching the subject
In the process of the litigation Clark, the Mayor
applied to the Third District Court Of the city foT>an
injunction to restrain the company from rebuilding the
enclosure which had been destroyed, and injunction
was granted accordingly
The company thcreupon served n rule upon Clark TO
show cause why he should not be punished for contempt
in taking such action in another tribunal At tho final
hearing Of the case the city offered in evidence order No
IL OF Major General Candy commanding thn military
department The Court refused To receive il and tho civ
excepted The following facts agreed upon by the
parcs-From the execution OF the lease 10 the 18th Of
April 1866 the company had boon in pcaccabe posses
sion of the demised promises and had performed all It's
obligations under the lease No notice was given by
the city Of the intended demolition Of the inclosure and
IL was done early in the mornings Under the charter
OF 1896 the city had before theTar leased portions Of its
wharves TO individuals and companies and had in one
instance ARMED out the collection of cvee dues upon
all the wharveS by sections
The damages resulting from the destruction of the
companys buildings &C., and the necessary employ
ment In consequence of this destruction OF additional
watchmcn, amounts TO IS, 000n
Al the hearing the Court decrecd that Clark the
Mayor should pay lne OF $500 for the contempt Of
the court whcrewh he was charged. that the city
should be enjoned from interfering with the possession
ana enjoyment OF the lease, and that the company
that the city should pay the costs Of the suit Our re-
marks will be confined 10 the several objections the
Tho fine Of 5000 imposed upon the Mayor Is beyond
our jurisdiction. Contempt OF court is specific erin.
inal offence. The imposition of the line judgment
In criminal case That part of the decree distinct
from the residue as If il were judgment upon an in
.dctmcnt for perjury committed in n deposition read
at tho hearing. Crosby Case 3 Wilson 1ss William
sons case 2. Casey "a ex-parto Kcarncy, . Wheat
Al This Court can take cognzance Of criminal case
only upon corticate OF division IN opinion In eros
bys Mr. Justice Blackstone said, The sole adudi-
cation for contempt and the punishment thereof be-
longs exclusively and without interfering to
each respective court" The Circuit Court, hay
ing first acquired possession of the original
entitled To hold il exclusively until the
was finally disposed Of fainter Taylor, 10 Wall
go; Hagan va Lucas. 10 Pct, 400 Taylor Carol,
20 How, 5S4. ANY relief to which the city was en-
titled should have been sought there and that court
competent to give IL, either in the original or in
liary As to any other court the matter ultra
rireS Freeman VS. How, "a Howard, $50; Buck VS..
Coback, Wall, 334.
1t was unnecessary unwarpnted in law and grossly
disrespecfu to the Circuit Court to invoke the inerpo
son Of the State Court to anything within the scope
OF the litigation already pending in the federal court
The order Of General Candy No. IL, issued seven
months after the lease was made. The rights it
ferred upon the essces whatever they We're had then
become fully vested The order did not purport TO
null tho lease 1t prescribed n rule of conduct MS to
giving such leases in the future, and concluded rs
folows:-"And any alienation, disposition, grant will
be subject to any rights aud interests of the general
government which may be involved and shall cx-
tend beyond the time when the questions relative to
those rights and interests may be determined by
petent authority" II does not appear that the govern
ment took any action touching this lease. The
could not therefore, any affect the rights
ceive IL in evidence.
II has been enormously insisted that the lease was
made by Kennedy without authority, was, therefore,
void ali ino, and. if this not So that its efficacy
upon the principle of the jus post minimum wholly
ceased when the government of the city was sur
rendered by the military authorities Of the United
States to the Mayor and Council elected under the city
charter.
Although the city Of New Orleans was conquered and
taken possession Of in civil wagcd the part of
the United States to put down instruction aud re-
store the supremacy Of the national government in the
Gnnfohnr Knit That ,nHf Tho
power and rights in territory held by conquest if the
territory had belonged TO foreign couNtry and had
been subiugatcd in foreign war
The Court having considered the rights of the
qucror, conclude that the appointment Of Kennedy
Mayor and OF the Boards OF Finance and OF Street Land
ngs, was valid and that they were clothed with proper
power, and proceed
at can hardly be doubted that contract for portion
OF the waterfront Of the city during the continuance OF
the military possession of the United States within
the scope of their authority
But. conccdng this to be so, IL Is insisted that when
the military jurisdiction terminated the lease fell with
it, We cannot take this view of the subject The qucs
ton arises whether the instrument was fair and rca-
sonabe exercise of the authority under which IT,
made large amount Of money was 20 he expended
and expended by the lessccs The lease liable
TO be annullcd il the expenditures not made and
the work done within the limited time specified The
war might last many years, or II might at any time
cease and tho state and city be restored to their nor
NAL condition. The improvements to he made
important to the welfare and prosperity Of the city.
The company had right to use them only for limited
time The company was TO Keep them IN repair during
the life of the lease and AT its termination they
all become the property of tho city In the
time the rental OF SIS 600 year to be paid.
When the military authorities retired the rent notes
unpaid all handed over to the city The city took
the place the United states and succeeded all their
rights under the contract (hc United states McCrc
Law Reports Equity Cases, 75l; the company became
bound to the city IN all respects as II had before been
bound to the covCnances in the lease The city there
after collected Of the notes subsequently due, and
holds the fund without offer to return it while
Quoting this litigation 1t Is also to be borne in mind
that there has been offer OF adjustment touching the
lasting and valuable improvements made by the
pany, is there any complaint that the company has
failed in any particular to fulfill their contract We
think the lease fair and reasonable exercise Of the
power vested in the military Mayor and the two boards
and that the injunction awarded by the court below
properly dccrced The jns post minimum and the law Of
nuisance have no application TO the We do not
intend to mpugn the general principle that tho
contracts of the conqucror touching things in
conquered territory lose their efficacy when his
dominion ceases. We decide the upon its own
peculiar circumstances which think sufficient to
take it out of the rule
We might perhaps well hold that the city is estoppcd
from denying the validity Of the lease by receiving pay
mcnt Of Of the notes, but we prefer to place
Judgment upon the ground before stated The judg-
mcnt of tho Circuit Court Is affirmed
Justices Clifford Davis and Bradley did not hear the
argument and did not participate in the decision Of this
case.
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