New-York tribune., 1903-04-06
THE MAYOR AND THE COURTS.


A new and interesting step in the develop
ment of government by injunction has JUST peeh
taken bv Justice Marean. He has issued an IN
junction forbidding Mayor Low TO approve
an ordinance recently passed by the Board Oh
Aldermen respecting porticos and bay WINDOWS
bevond the building line. He has also forpldueh
the Mayor to allow the ordinance 10 become d
law without his signature That Is, he' II JUS
tice OF the Supreme Court orders the Mayor
TO exercise the veto power in certain case hoI
according to the discretion by law vested III the
Mayor but according to the discretion OF MI
Justice Maraan.
Now, that may be all right the supreme
Court ought to know its own powers ana IL mas
been tending Of recent years to gather iegls-
latiye and executive functions TO itself In
snite of the old doctrine of the separation OF
the different departments of government re-
inforced by the Court of Appeals in the Guden
case and hv the able decision of Justice Leven-
tritt setting aside Justice FitZgeraldS lnJunc-
ton to Commissioner Sturgls IN the Croher
case there is still considerable uncertainty WIEN
the duties of a governor. mayor OF coihlhiS-
sioner may be taken upon hlnseif by some JUS
tsce of the Supreme Court. SO. as we say! thls
may be all right but it does seem to violate
some of the old established notions or the limits
of judicial authority.
iS of
hoard of aldermen may be compelled by the
Supreme Court to perform ministerial duty'
Thus. the Municipal Assembly of New-1ork was
under Mavor Van Wyck ordered to approve a
bond issue to meet expenses authorized by law
Rut until the new fashion of government bv
+be Judiciary arose 1t had been supposed that
the legislative power was coordinate Win Tue
judicial and was exercised solely at the olS-
cretion of the officers intrusted with tnat power
| They might use the discretion unwlsely, to lhe
hurt of the people. but the remedy was not III
the courts but in the people themselves at Inc
next election. They might even use the dls-
! cretion TO pass unconstitutional acts, Dut the
remedy was not in iniunctions against their
| passage but in afterward setting them aslde as
| invalid If an act is unconstitutional 1t is no
! law. and nobody need fear being wronged by H.
If II is constitutional. the courts have nothing
| to sar about its wisdom unwisdOm. its JUS
| flee or Injustice That is matter for the law
| making power.
| According to this time honored but apparently
| now discarded theory of government whether
| this proposed building line ordinance is GOOD OF
| bad it is the business of the aldermen and the
Mavor and not Of the courts. Ii, after II Is
| passed any property owners legal rights are
| infringed, he has his legal or equitable remedy
| Until it is passed he has no standing, except as
q petltiOner asking the cOnSlueIdIIou VI LIS OpIi
| ion by the legislative power in the exercise OF
| its discretion. The Mayor is part Of that power
He and he alone has the authority to approve
| or veto a bill. If the court can order him 10
| veto a measure, it can order the aldermen 10
pass a bill over his veto, do any other purely
| legislative act. The veto is not q ministerial
| act II ought not to be, and formerly was not,
subject to the judiciary. 1t is an absolute poIlt-
| cal power. Within his sphere the Mayors dis
cretion is much his own, and NOBODY else
| as that of the Governor or the President
| II a Justice of the Supreme Court can order
| the Mayor TO sign a BILL or TO veto 1t, he De-
| comes for the time being the Mayor 1t is his
| Judgment and not the Mayors which decides
| questions of policy. If he may do that, it IS
difficult TO see why he may not do the same
| thing TO the Governor. 4 citizen who thought
| the LIQUOR Tax bill would affect him unJustly
| might have secured an injunction restraining
| Governor OdeII from signing It Anybody who
| is opposed to anything and can persuade Su-
| preme Court justice that he is being Wronged
| by the political power may restrain that power
| Then we shall cease to have a government or
coordinate legislature, executive and Judiciary,
and concentrate all authority in the courts. 1t
will be interesting to observe If Justice Marean,
on reviewing his temporary injunction, Will sus-
tain it. and continue TO act as Mayor, so far as
this particular ordinance is concerned. and If
the higher courts will approve of such subor-
dination Of the purely political and in no sense
ministerial power TO judicial opinion