The New York Herald Newspaper, February 7, 1853, Page 2

Attachment Against Alderman Sturtevant. Whe Argument of Bx-Ohief Justice trous doctrine. a must be obeyed, Bronson. , OF even ularly, issued. In We ve Kini , 2 Cases in Chan. 204, the in- ws com serwonr, | esas eens en kee dee ta ‘warrant it; c , OPINIONS OF JUDGES DUER AND ORTH, | votwithstanding the irregularity, the injunction manst Pywee be obeyed. The rule must be so. The command of ‘Term. the Court must be cted, so long as it remains in Judges Duer, Campbell, and force. If the process issued, the reme- Jan. 29.— Thomas E. Davis and Courtlandt Pal- | dy is a motion to set it aside. Until that is done, the mer against the Mayor, Aldermen and Commonalty | process must be obeyed. the City of New York. ‘The principle has been settled in an analagons case. A man cannot be held to bail for debt without an or- der of the Court, which is to be made upon affidavit; and the affidavit and order must he served upon the defendant, upon making the arrest. (Code, § 184.) It has been held that though the defendant is not served with the aflidavit, it is, at the most, only an = pase —— not i. Soe pene irregularity, and does not entitle the defendant to a " the petition was ted to the C discharge. He may move for a copy of the affidavit. mom Council by half a dozen citizens for the privi- | (3d Code Reporter, 183.) The vit in that case lege of @ railroad in Broadway, it was thought | should be served, that the defendant might know by ‘one to be a very extravagant project which | upon what ground he was arrested, and be enabled to was likely to succeed. But it turned out, in the | take the proper steps to have the order of arrest ‘eourse of events, that it became a very serious affair. modified or discharged. The affidavit was not re- Hewes soon found that the committee to whom the | quired to be served so that the defendant could read subject was referred by the Board of Aldermen, were it, and judge for himself whether it was sufficient, favorable to the project; and there were other indi- | and whether he would submft to the order of the ‘entions that the measure was to be adopted. Then | Court. And though no affidavit should be served, seme of the pro] owners upon Broadway, as a | the defendant would not be at liberty to disregard means of indemu! themselves against the injury | the orderof arrest, and knock the officer's brains out which the road would do to their property, united | for serving the process. It would not do for him to with others in the Common Bounci to make | say, as the Aldermen did, ‘there is no law for this or- the grant to them, if it was made to anybody. With- | der: the Judge does not understand the law, and out going into et: it is enough to say, that | therefore I will disobey his command, and knock the instead of the pro} by the committee of | officer's brains out.” But he had just as good a getting but a merely sum for the grant, with | right to do so as the Aldermen had for re | a o—" of five cents upon travellers, offers were | the order of the Court, because a copy of the affidavit made the Common Council to carry passengers | Was not served on them. The Aldermen took no such br three cents, and pay a million of dollars | round as this. They boldly defied the order of the into the city treasury for the privilege. That | Court, and “rebuked” the Judge who made it in the ig the case made by the complaint, and which | most insulting terms; and now they come here seek- ‘will be established wiienever we come to the proofs. | ing shelter under one of the quirks of the Code. They ‘The offers which were so advantageous to the city | wili not be able to escape under that cover. and to travellers were all rejected, and the grant was | __ It was said, if the injunction was operative as to made to the original applicants and their associates, | individual members of the Common Council, it does fer a merely nominal sum, with a.charge upon travel- | not, in fair sso) te rohibit them from voting lers of five cents. Without making any charge, I | upon the resoluti#h. I shall spend a little time w state what is matter of history, that the public had | this question. The Common Council proposed to become very much alarmed about the integrity of the | make the fag by passing or voting for the resola- @emmon Council as it existed the last year; and tion; and the injunction forbids them from making when they saw such a grant made, I believe there | the grant. The prohibition includes all and every was but one common sentiment in the whole commu- | mode of granting, whether by deed, vote, or other- nity in relation to the character of the act. Men of | wise. There is no room for construgtion about it— all sorts seemed to be agreed that there must be cor- | voting is as much forbidden as is any other mode of , right re making the grant. ae Saree oe ee an We CUTS | TNE vs weg said, int dhe injanction wily feeble a completed or consummated grant, and that this, Was not complete until accepted by the grantees. If there be anything in this objection, then a man may to the grant, and obtained an injunction. do everything short of perfecting the forbidden mis- Mayor had, in the mean time, returned the | chief, with impunity. If commanded not to tear resolution with his objection; and it was | downa house, he may pull down all but the founda- the Common Council threatened to ‘on, | tion without violating the Injunction. Or, if forbid- netwithstanding the veto, that my clients the | den to cut down the trees of an orchard, he may cut eomplaint. The injunction order was served upon | down all but one, and yet go free. But I take the yor, the head officer of the Corporation, upon | Tule to be, that when a man is restrained by injunc- whom process should be served, and each | tion from doing an act, he is not at liberty to take member ef the Common Council. With this docu- | any step towards its accomplishment. When the # such an act could be done. My clients re- | solved to appeal to the laws and the judiciary for protection. ‘They prepared their complaint, and ap- bag to the Judge, alleging various grounds of o} F ment their , th t " i Corporation was forbidden to make this grant, it was aves Se Doran sate sa} basa Aad | forbidden to do anything towards and with intent to the resolution in defiance of the in- | make it. they proceeded to declare themselves, It is very true that this grant was not, technically rocess of | complete until accepted by the other side; bnt tie and its defendants should have qualified what th they did not intend the act should take e in de- fiance of the injunction. I want no better illusti tion than the one put by the defendant's counsel. Hh it effect, above the laws, and beyond the p: the court. They not only defied the Court | precess, but they assailed the Judge, impeached his , and administered a public rebuke. This made a fearful issue. We have brought here the recital | They say that * on the construction of this injunction when ‘ay Mots ee icon tl — iained by the plaintiffs, an individual restrained | ecas of the Court. We have done so, because it was | from making a grant, and requiring to absent him- bat, eto them that the Court should know on | Self on business, could not sign, seal, and acknow- ledge a deed, and leave it with his attorney, to be de- ¥ oN eee livered immediately upon the expected dissolution of was a document that should not ‘ A matt the injunction.” [say he could; and the counsel eases Bie Wont cones spre ora | is quite right in saying he could. Bnt these Aldermen eounsel that it is calculated to fe the passions of | Weer not about to be absent on business; and the all rightminded men. But it is the act of the Alder- | grant oo oe just _as well have been made at another men and not ours; and they should not complain that | time. They did not do an inchoate act, to be com- we have brought into court their apology fur insult- | pleted on the dissolution of the injunction. They the judiciary. | completed the work so far as they could complete it; <> counsel upon the other side said hetrusted the | 2d_ did so in defiance of the injunction. The complaint states that the grantees had given out and alleged that, upon the resolution being adopt- ed, they intended forthwith to accept the same in ®ourt would e it.apparent, by its judgment, that | the document had had no influenee upontheir minds. The plain Lana of that is, that because the Court | has Sean ins ulted, you must let the offenders go free; tes and Cee od to bass gti the work. for f i hey were ready to seize on the grant the moment it Pee en dt a ada they will tampate toryounas | should be made. With the knowledge of this fact, the Aldermen passed the resohition, which was all they could do towards perfecting the grant. It re- quires some hardihood to say that the injunction was not violated because the grant was not perfected. ‘they have already to the learned Judge who granted | ‘the injunction, improper motives. I trust the Court will not give way to any such weakness. We are here to see whether these men are above the laws, and can defy the courts and their process with im- | panity. Many men here and elsewhere are looking anxiously for the result. For myself, I do not doubt that the court will uphold the laws and the adminis- Yon of ice with a firm hand. | I now, without further remark, proceed to | eomsider the objections which have been urged against our proceedings, or the excuses which are set = why these men should not be punished. the be broken by the defendants. They could not cept the grant. That was the act of the grant and the grantees could not, by any act of theirs; charge the detendants with a criminal offence. have now got through with most of the small ob- jeetions, and I new approach the ground upon which jurisdiction to grant the injunction. If, they are right in that, they are not in contempt, because no man is bound to obey the order of a court which acts is a proceeding to enforce civil remedies, and ent, if they have acted improperly, is fine or imprisonment, or both—a fine sufficient to in- point, aseach Alderman wae served with did, if | | 1 4 1 | | of the grant, but are granting to Shai inti Fy ir oc .. | Without jurisdiction. The ground on which the juris- | sey re dantisonrjent has recurd. to the iajery | wetion ot the Court is denied is, that" the Aldermen Which has been done to the whole community. Be ¥° na legislative capacity; they were past- ing by-laws or ordinances; and in such cases we are told what may be done on this proceedii offence is indictable at the common law as w by the express terms of the statute. Now, we will see what apology these men have for what they have done. 1 will remark here that toa great extent the counsel have left the ground of bold defiance, on which the Aldermen stood, when they disobeyed the injunction, and have been casting about to find some little flaw or quirk upon which these men may escape; but -I believe they will find wo such loop hole. LD ie The first objection is, that the injunction is inoper- ative against the members of the Corporation, be- eause they are not parties to the suit. To that I anewer that the Aldermen and Assistant-Aldermen compared with the State Legislature, with Congress, with the Parliament in Eng ti It is proper here to distinguish between jurisdiction and error ; between the right or power to decide, and the giving of an erroneous judgment. Ju- risdiction is power to hear and determine, to adminix- before the court. When the court haspowe to do that, its judgment is valid, however, erroneous it may be. Ifthe court want jurisdiction the jadgment will be i if it has jurisdiction, whether the judgment it is until it is set aside, re- erannulled in some way. This is a distine- to the suit. The suit is against,and the A Pass : ine aise wats addressed to, the whole Corporation: ts the opposing Counsel did not attend to. to “the Mayor. rmen, and Commonalty of the | For the most part they discussed the merits, and tempted to s ng the City of New York;” and upon the axiom that the whole includes all the parts, the injunction reached branch and officia! member of the Corporation. are not parties to the suit as individuals it ix true; but they are parties in their official capacity as Aldermen. When you wish to restrain a corpora- tion, the injunction ‘is always directed to the corpo- rate body. I never found a precedent for aay other mode of proceeding. When you want an answer = oath—to prove the conscience for the aad pd ‘getting a discovery—you sometimes go beyond the corporate body, and make the directors or other agents of the corporation parties to the suit. But mever did J hear that an injunction to restrain the action of a corporation was directed to any one else ‘than the corporate body itself. Nor do I suppose it ean be #0 directed. If the corporation disregards ‘the injunction, it does it by the acts of its officers, who are answerable as individuals for the miscon- duct. When a Sheriff is property, upon an executi ed doing an the individual whois punished for disobedience. role must ly be so. w thata proper case was not ma junction. That is quite wide of the ‘ourt had jurisdiction. Up ubject of jurisdiction. I refer the Court to U, Arredonds, (6 Peters 709,) and Grignon vy 238,) where the Court hear and determine a ; it is coram judice w is presented which brings this pow into Now, here there was a court of general jurisdiction, having power to hear and determine, if ‘any court could do 80. in the second Jeep the plaintiffs have capacity to sue; and thirdly, the detendamts, though a corpo- ration, are liable to be sued. Fourthly, a complaiat that the defendants were al to do a wrong to the plaintiffs, and praying the Court had px Now I would He was obliged to listen to it, and decide one wi The It is of no consequence ‘that the resolution was passed by the Common Conn- thongh hb valid as it would be if he had judged rightly. y,at the proper time, that t il, which does not include the whole eorpor: It is enough that the members of the C on Council were included in the order. I believe it Judge made no the Court has no power over them. They | executive department, and not are above the laws in such matters, and are tobe | Council. and, and bodies of that | Why was itdone in this manner? nor an, I state, and exce, thatthe Bowed o Aldermen reject the made to by dved seabpiew, In the See ora We , they do not serie gecty yee of reek Ti dees act he long to them, and we can sustain that proposition by abundant authority. But if they have any interest in the soil, they hold it only in trust for the free and common use of all. . Fifth. The railroad will be a nuisance to the laintiffs and others, and the complaint is filed on half of all. True, the ante he @ public nuisance is by indictment or information by the Attorney General. But where it works an injury to particular individuals, ~ have remedy by action. Sixth. Whatever interest in or power over the street rightfully belongs to the Corporation, it holds the same as a trust, to be exercised for the public good, and the grant of these privileges for a trifling sum, with the right to demand five cents fare for travelling, when trustees might have obtained a million of dollars for the grant, with a charge upon travellers of only three cents, was a palpable breach of trust, and a gross fraud upon the plaintiffs, and all other taxpayers, inhabitants and travellers, of the city. The Supreme Court has decided this point in our favor in the case of Christopher vs. the Corpo- ration of New Lager ate Sopoes counsel has a very summary way of disposing o! it case, by say- ing it is not law. yt will be for your Hoaors to ce which is the best poms A the Court or the counsel. The principle is one reat importaace, and I hope to see it established in this city, and in the whole State, that these popiis officers, who are clothed with authority, hold it as trustees for the alps good, and may be treated as trustees when hey are about to doa great wrong to those whom they rey nt. I do not wish to say any hard things about this Corporation, but I must say that the case made by the complaint shows that a gross fraud has been attempted upon the whole community. And yet we are told that the citizen has no remedy—not even thongh there be bribery and corruption. That is a pretty startling proposition. : Mr. Fiela—I said that there was noremedy by in- junction. Ex-Chief Justice Bronson—What remedy have we then? What remedy has a tax-payer got except by injunction? Without further discussing these ques- tions at this time, there were evidently grounds enough for granting the injuction. , But if that were doubtful, or even if the judge was in an error, it is no more than has often happened before. And vet no one ever thonght, because an injunction was dis- solved for want of equity in the bill, that the pro- cess night be di rded while it remained in force. The Chancellor of the State has dissolved injunc- tions which he had himself granted; and thousands of injunctions have been dissolved because a proper case was not made for granting them; but, until they are dissolved, they must be obeyed. Jfdges sometimes say that they have no jurisdiction to grant the relief asked tor, when nothing more is meant than that it is not expedient, or the exercise of a sound discretion, to grant It. They do not mean that the judgment, whichever way it might be ren- dered, would be void for want of power to give it; ut only that it would be error to grant the relief. It has often been held that though a proper case | G 3 was not made for fens the injunction, it must still be obeyed until dissolved. (Sullivan vs. Judah, 4 Paige, 444; 6 Howard, P. R., 124.) The doctrine | is a familiar one. ake another illustration. The | | Supreme Court, while it had appellate jurisdiction | over this court, awarded a man mus to this court | to vacate an order granting a new trial; and sub- sequently the same Supreme Court said it had no | inrisdiction by mandamus to correct judicial errors. hat meant no more than that the writ of mandamus | ought not to be issued in such a case. It did not | mean that the court had no power to issue the writ | if it deemed it proper to do 80; and beyond all | doubt, if issued, it must be obeyed. There is no | authority whatever for saying that the order of a court of superior jurisdiction is void because the | court erred in judgment. We now come to the ground on which the defend ants placed their claims to be above the judiciary, and the ground in which their counsel has mainly | relied, to wit, that passing the resolution was a legis- | | lative act, and that the Court for that reason had no | jurisdiction to interfere. In the first place, I say that If the injunction was not violated then, it never could | this resolution is not alaw but a contract. It is not | in the form of a law. It is not in the langnage of a | law, for there is no command. The Common Coun- | cil itself calls it a grant, which is one kind of con- | tract. It does not bind the grantees until they agree | to it, which is a strange kind of law. | The grant is made upon “ the following conditions these Aldermen placed themselves when they adopted | and stipulations.” Is that the language of com- | the resolution. Their position is,that the Court had no | ma: d% They are evidently about making a bargain with Sharp & Co., and not to passalaw. They are not making regulations concerning the common use & Co. special privilegesin it. The attempt to make the grant under the by-law power of the Corporation was a plain | violation of the charter, for it gave them no such au- | thority. Contracts are to be made woe proper by the Common | It was executive business which the Com- mon Council were strictly prohibited from doing. Tt was because | one of the integral parts of the Corporation would ter justice, to judge and decide upon matters brought | to make the grant alo decision may be erroneous, it is just as | is void unlesa it be legal; thatis, unless it Iwill | within the ight to make it until | It must be reasonable, or it is yoid. Still, I will men- | the acts of the Legislature. ‘was never made an objection to an injunc- 1 do not discuss that question now, be- tion, or a d_for disobeying it, that the com- cause the defendants have no mand was addressed to more persons than did act. | th © purged their contempt. It is settled by authority that we were right in tion some of the questions presented by the com | plaint. {will net argue them at large now because 1 will not allow these Aldermen to stand upon the ground that they may eseape here if the Court should think there was a doubt upon the merits, In the first place, we say that the adjournment of the Board recting the injunction to the corporation by name; and that those members of the Common Council who acted in defiance of the order be attached for the contempt. The cases are cited upon our points, | and I will mention only afew of them. [Here the | counsel cited and commented on the cases.) If an to restrain the action of a corporation is not an idle thing, the rule must be that the’ offic the body who disregard the process must answer an individuals for their misconduct. The next objection to this is, that the injunction was inoperative upon the members of the Corpora- tion, because they were not served with the affid upon which the injunction was granted; and the 2 section of the Code is vouched for thisobjection. section provides that an injunction may be granted when it satisfactorily appears by affidavit that there vember, being more than three days, was illegal, and Hoard afterwards assembled on the Lith, and passed | the resolution, it was nota legal assembly, and could do no val ree days without the concurrence of Board. It is said that Congress and the Sta ature do no not count the last day of their ped it falls on Sunday. However that may be, such is not the rule in tis State, when the tiie for doing an act is prescribed put an end to that monthly session; and when the | by-law They are forbidden to adjourn for | an | not assent to it. The Mayor, who has the custody of the seal, would not affix it, and, therefore, two of the three integral parts of the Corporation attempted . It is a fraud upon the chartered rights of the ¥ 1 will now assume that passing the resolution was an act of legislation—the exercise of the by-la power of the Common Council. It is then said’ that bet ise of this power members of the Common Council may act, itizen has no remedy. The Aldermen are above the law, and above the judic’ when they attempt todo a wrong to me orto any citizen by enacting a by-law. “The whole argument for this extravagant claim | m comparing the Common ouncil — of | y with the State Legislature. Not another of ground has been occupied in the whole dis- ssion. We are told that because the legislitive power of the State cannot be restrained by the courts, the exercise of the by-law power of the Common Council cannot be restrained. This is an utter falla- cy. The difference between the State and this Cor- poration, is nothing less than the difference between the creator and the creature. That is a pretty wide difference to begin with, although it may be that the t by injanction; and | creature thinks itself bigger than the creator. The er to grant that kind of | difference in point of law is, that the one is the sove- in other words, it had jurisdiction of the pro- | reign power, having authorit; 5 ike to know what more was | less expressly prohibited: whl cessary to give the Court jurisdiction? The Judge | more than a delegation of power from the State, not had no discretion to refuse to hear out the complaint. | to do its pleasure generally, but to make certa todo its pleasure, une | j¢ the other has nothing | regil- lations for its own government and the well-being of the city. What is a corporation by-law as compared with the legislation of the ‘State? A bylaw be adehed granted to make it, and not | e laws of the land. It must be reason- net restraint of trade. It is not so with | by-law must be good throughout; if in part it is void in toto. A cor- poration cannot by a by-law granta monopoly, nor an exclusive privilege in the streets; nor can it také away the common right of all to go there with their | carta and carriages; nor can the valuable privileges | in question be granted to Sharp & Co. for nothing, | contrary to tl able—it must be in of Mae rmen, from the 4th to the sth day of No- | when a million dollars might have been had for the | grant. Such a by-law could not be rearonable. The hap oe of this Corporation does not differ in pane ro the like pores in every corporation n this State—public and private—great and small. Every corporation has power to make by-1s is the rule of the common law and o! 2 The State Legislature is a co-ordinate branch of th government. It is part of the sovereign powe the State; while this Corporation is but the crea’ of the sovereign power and subject to its will. courts do not restrain the action of a co-ordinat are sufficient grounds; and then the concluding words | . Then Sunday is to be counted, though it | branch of the government; but that is no reason are, “a copy of the affidavit must be served with the | lay. (2x parte Dodge, 7 Cowen, 147.) | why they should not restrain a creature which the | injunction.” are the words which are sup- | statute farnishe own interpre- | government has made. Oar city Corporation, great to make the difficult The first answer that or has ten days, * Sundays exc as it is, does not rise to the dignity of a man; and » With Ohjections; but the section forbidding an adjournment for more than three days does not Sundays. In the second place, the r grant property or privileges belongiug to the city, without the concurrence of the Mayor, who is an in- tegral part of the Corporation; and the two Boards have no such power. All the property and pri leges belonging to the city are vested in the whole { make is, that the affidavit was so served. A copy of it, with the injunction, was served upon the Mayor, the head officer of the Corporation, which is the way all process and orders are servy- | ed upon corporate bodies. It was enough to) serve the injunction npon the Mayor, with- out also serving it upon each Alderman, except, | that if the Mayor should not communicate the fact | to the Aldermen, they might not he punishable for tution professes to | ration with the State yet it ventures to defy the jndiciary—one branch of the sovereign power of the St Let us now try the comparison of this ¢ Legislature, and we s] then see the utter fallacy of the opposing argu. | men The State, the sovereign power, is not suable. Thi? is so under all forms of govera- | A corporation issuable. And if fam not , ly mistaken, that distinetion ends the question. i gre in disobeying it:, though the Mayor would, Corporation ; and, of course, can only be ted hy | Corporations are suable—in other words, the courts in such a case, We punished for contempt tor allow. | the whole. They are not vested in the yniuen | have jurisdiction over them, and may call thom to ing the Aldermen to go on in iznorancs of the in- | Council, or in the Mayor, but in the whole body. account for their misdeeds, and restrain them when janction. (Bank Commissioners va. The City Bank | _Third—If the Common Council had any power | about to do injustice. They are suable generally, over the subject, it was only a power to regulate construction and use of the road. The exec duty of obtaining the best terms, and making the of Buffalo, 1 Barb. Ch. Prac., 636.) in to serve the injunction the precautio the Aldermen, as well as on the Ma But we took | m each of No doubt and not in any qualified or restricted sense—suable when they attempt todo a wrong to third persons by law, a8 well as when they oe to doit by a | of thi: — board to which such act, ordinance or resolution has been so returned, shall, after the expiration of not less than ten days thereafter, p to reconsider the same. It is quite evident that the word “shall” here means no more than the word may. It was a mere grant of authority to pass the ordinance, notwith- standing the Mayor's veto. in the books h may, and may means shall ; but the sense here is so apparent, that I have not taking the trouble to look for cases. If it was a command, it was only to re- consider the resolution in not less than ten days. It did not compel the Common Council to act at that time. And finally, if a command, it was be- yond the control of the jndiciary. A sheriff is re- quired by law to sell property on execution within a certain time. But if an injunction comes restraining the sale the command is at an end and the injunc- tion must be obeyed. And soof many other cases. J have now examined the ground on which the Al- dermen placed themselves when they violated the in- junction, and the other grounds on which they now seek to escape the cor ences of their conduct; and if Tam not greatly mistaken, there is not a sha- dow of defence for the act of which we complain. It is evident, therefore, that a great offence, and one of a most dangerous tendency, has been committed. ‘There have been few such outbreaks against the laws in this State. The laws have been violated, and the authority of the court contemned, by the Aldermen, who are themselves conservators of the public peace, and sit in our courts,and condemn the poor, the ignorant and the unfortunate to the prisons and peni- “tentiaries for violating the laws. T have said already that this is an indictable offence. Whether grand jurors selected by the Aldermen will act, is more than I can say. But if they do not, it will be time to consider whether grand Fe should not be selected in some other way. ‘is may bx among the reforms which are so much needed in this city. Whatever grand jurors or others may do, m clients have discharged their duty by bringing thi matter before the Court. And there I leave it, look- ing for, what I doubt not we shall have, a fearless and righteous judgment. Superior Court—Special Term. Duer, Judge—Camy , Bosworth, and, Emmett as- sociated with on the argument. Fer. 5.—Thos. E. Davis and Courtlandt Palmer against the Mayor, Aldermen and Commonalty of the City of New York. OPINION OF JUDGE DUER. A motion has been made in this case for an attach- ment against Oscar W. Sturtevant, one of the Alder- men of this city, for an alleged contempt of the authority of this Court, by an act of positive disobe- dience to its lawful process. The material facts that haye given rise to the motion, and upon which its determination, in a measure, rests, I shall endeavor to state in few words. On the 27th of December last, the plaintiffs, in their own right, and on behalf of all others, the taxpaying inhabitants of this city, exhibited their com: it, duly verified, to our Asso- ciate, Chief Justice Campbell, ‘who, on the same day, in conformity to the prayer of the complaint, and holding that the matters set forth therein entitled the plaintiffs to the relief demanded, granted an or- der of injunction, commanding and enjoining inter alias that the defendants, the Mayor, Aldermen, and Commonality of the city, and each of them, should absolutely desist and refrain from feaneng to, or in any manner authorising, Jacob Sharp and others, (the persons named in a resolution of which a copy was annexed to the complaint,) or any other person or persons, the right, liberty, or privilege of laying a double or any track for a railway in that street known as Broadway, in this city, from the South ferry to Fifty-ninth street, or any railway whatever. The resolution of the Common Council, to which the complaint and injunction refer, is upon its face, not only by its manifest intent, but by its ex- yress words, a grant of permission or authority, upon certain conditions and stipulations, to Jacob Sharp and other persons named as his associates, to lay a | double track for a railway in Broadway and White- hall or State street, from the South ferry to Fifty- ninth street, and to render the resolution, when final- ly adopted, effectual as a grant, nothing more was required than that the persons named as associates should, by a writing to be filed with the Clerk of the Common Council, signify their aceeptance. The com- plaint alleged that the resolution had, before that time, been adopted by each board of the Common Council, and had been returned to the Mayor, with his objections, to the Board of Aldermen, in which it originated, and averred that those members of each board, (constituting in each a monty of those elected, pymtices ror the resolution original passed, had given out and declared that they intend- ed again to the same, notwithstanding the ob- jections of the Mayor; and that the grantees named in the resolution had also made known their inten- tion to file their written acceptance immediately upon its adoption. The actual conduct of the parties correspond with these anticipations. On the 28th of December, the order of injunction, together with a copy of the summuns and complaint, was duly seryed upon the Mayor, and upon the same or the following day, the injunction, with a copy the summons, was served upon each member of Board of Aldermen. December the Board of Aldermen met, and the reso- lution making the grant to Sharp and his associates of being brought forward for reconsideration, it was | again passed—the Alderman now before us and twelve of his associates voting for its adoption. | And in order, it would seem, that no doubt might re- main as to the nature and motives of their action, the majority of the Board upon the same evening, and upon the motion of Alderman Sturtevant, adopted certain resolutions, which are set forth at | large in the papers before us, but which we deem it unnecessary now to recite. It is sufficient to say that one dat 'y_of the Cammon Council to protect its own dig upon its legislative action, and declaring their sense ot the same ;” and that a preamble to the resolu- tions, which was adopted with them, declared their sense of the injunction by denouncing it, in no | measured terms, as an attempt, without color of law or justification, to direct ‘aad control the municipal legislation of the city, as bearing upon its face a cha- racter of indiscretion not less unjustifiable and not less unworthy the judiciary than its usurpation of authority and jurisdiction, and as a precedent of an unwarranted and unwarrantable interference with the rightfil fanctions, powers and duties of a legislative | bedy. The original resolution of grant, and the addi- | tional resolutions vindicating the rights and dignity of the Coramon Council, were transmitted to the Board of Assistant Aldermen, and on the evening of fhe 30th of December the original resolution was adopted by that body; but whether any action was then or has since been taken on the additional reso- lutions, does not appear. On the same evening the associates named in the original resolution, by a writing signed by them all, and filed with the Clerk of the Common Council, signified their aeceptancejof the resolution, and their agreement to conform there- to; and thus, if these proceedings were valid, the gram, which the order of injunction prohibited the defendants from making, became absolute, and the rantees mei the very right, liberty and privi- lege of laying a track fora railway in Seating) which the injunction, by express words, had strictly commanded should not be given. It follows from the statement that has now been made, that a majority of the members of the present Board of Aldermen have deliberately chosen to place themselves towards this Court and its proceedings (for the act of the Judge, who ixened the injunction, is that of the Court—Code, §215) in a relation of direct and open hostility, Ad- ruitting their own knowledge of the order of injunc- tion, and of the reasons upon which it was founded — reazons which they have declared to be untenable in Jaw and unfounded in fact—constraing the order as commanding them to desist and refrain from the perfor e of the act which they were determined to perform, and have performed—they have chosen to treat it as an illegal assumption of authority, an exercise of power without right, which their dutiesto themselves and to their constituents re- — them to disregard and re: Relying on their own knowledge and convictions, not ‘only of their own duties and powers, but of the duties and powers of the judiciary of the State, they have pub- icly. raived an issue which this Court is compelled to and bound to determine. That issne is, whether court. by an unprecedented stretch of judicial i ed the province aud violated the ghts of the Common Council as a legislative body, or those memb of that body who openly denied and boldly disregarded the authority of this Court, are guilty of the criminal disobedience with which charged, and we are now called upon to The questions, therefore, which this motion involves, possess no ordinary interest. It is felt by all that they are in noordinary degree grave and delicate. itl just sense of their importance, they pave rties, heen elaborately fed hy the eounsel of the they would have been bound without stich service if the | contract, belonged to the proper executive depart- | deed. The counsel have admitted that they can | and have been carefully and anxiously consid by is came to their knowledge, although they ment, and not to the, Common Council. The 23d | find no law or diction to the contrary; and ‘I atm ourselves. For obvious reasons it wonld be desira- ‘not have it in their pockets, a4 Alderman Start. | section of the charter of 1449 provides that “all o | confident that there is none. If there'ever could be ble, were it possible, that these questions should be vant said he had when he disobeyed it. (1 Barb. Ch. | tracts to be made or let by authority of the Com a doubt on the subject, the question is settled by the | determined by another tribunal; but a+ no such Prac. 631, 633; 12 Johy. 534.) But we uegd not dis | Cguneil, for works to be done or supplies to be fur | exprese words of oct gonstitution, Article VIL see | transfer could be mpdg of our Jurisdiction, we of these resolutions declared that it was the | ity and the rights of its constituents, the people | ity, “ by utterly disregarding the injunction | , | they are addressed to no one, and signify nothing. ne | On the evening of the 29th of | | complaint, rendered the service of the injunction it- | j | committed. “Their error iy not au estoppel, tempt with which he is charged, for the following First, Lecaupe he is not a party to the suit, y iven, who is ci the ser- injunction upon him was irregular and void, not in accompanied by the service of a copy of the affidavit, the veritied com- plaint upon which it was founded. Third, be- cause the only breach of the injunction with which he is charged, consists in the act of voting for the resolution to which it refers. an act to which the terms of the injunction do not apply, and which oe were not intended to restrain. lastly, because the injunction must he construed as intended, to re- strain the reconsideration and adoption by the Com- mon Council of the resolution, in question, the prohi- bition, as illegal and void, was properly disregarded; no Court of law or equity having any fags to control in any case or for any reasons le; ve action of a and more ‘ially of a muni- cipal body. These objections be considered in the order in which they have been atated. The first, that Mr. Sturtevant is not a party to the suit, and, therefore, was not bound | to obey the injunction, we are all of opinion cannot be sustained. It is unnecessary now to determine the question whether, under the pro- | visions of the code, (section 219,) a person to whom an injunction is directed is wholly excused from obe- dience unless he is a party to the suit and one of those against whom relief is demanded. It will be time enough to consider and decide this question, (which is, perhaps, more doubtful than it seems to have been Logos phy when it shall properly arise in a case before us. It does not arise in the case now before us, for the plain reason that Mr. Sturtevant is in judgment of law a party to the suit. He is not indeed a party in his proper name, or as a mere indi- vidual, ‘but he is so in his official character, and it is his personal action in that character that the injunction, not only by its legal construction but by its express words, seeks to restrain. It is not addressed to the Mayor, Aldermen, and Commonalty of the city as an abstract metaphysical being, but it is addressed to | each individdal member of the whole corporate body, and it controls the personal action of every one of them whose consent or co-operation might be aarp to the completion of the corporate act which it strictly prohibits. It imposes a command and duty upon every one of them to refrain abso- lutely from performing or concurring in the per- | formance of the prohibited act, for the very ) ae | and as the necessary means of preventing it from be- coming an act of the corporation. It is not true, as the objection we are considering plainly assumes, | that when a judicial command in relation to a cor- pote act, a mandamus or injunction, is directed ‘0 a corporation solely by its corporate name, the members and officers through whom alone the cor- pone can act, may disregard it with entire impunity, and by their disobedience render the process of the Court wholly ineffectual. The law, we apprehend, is otherwise settled. That the man- date of the Court in these cases’ may with entire propriety be directed exclusively to the corporate ody by its corporate name has not been denied, and there are numerous decisions that show that when such is the form of the order or writ, | it is operative and binding not only upon the corporation itself, but upon every person whose per- sonal action as a member or officer of the corporate body it seeks to restrain or control. Every such person is as fully bonnd to personal obedience, as if | perscoall named in the process, and consequently | 1s just as liable for his disobedience. (Rex. vs. Mayor of Abingdon, I Lord Raymond, 560; Rex ys. Mayor of Shelford, 2 cases in Chan., 171-2, Lord Raymond 848; Rex. vs. Mayor of Tregony, 8 Mod., 111; Bank Commissioners _vs. City Bi of Rochester, 1 Barb. ch. p. 636.) We understood the learned counsel for the defendants to admit that in the case of a man- | damus, the law is such as we have stated, and we are clear in the opinion that in respect to the pReans upon whom it operates, there can be no distinction between a mandamus and an injunction. Indeed, all the decisions rest upon the same principle, a pean which Lord Kenyon, in the case of the Rex vs. Holland, has briefly and forcibly stated. (6 Term R., 622). It is that where “‘ duty is thrown upon a body consisting of several persons. each is individually responsible tor its performance and individually ‘liable for its breach,” and in the pppligasion of this principle, it is plainly immaterial whether the duty result from an actof the Legislature or the mandate of a court of ustice. We remark in conclusion, that unless upon he construction that we adopt, an injunction ad- dressed exclusively to a corporation must be in all casses a nugatory and senseless procecding. | A corporation cannot be attached, nor have we been able to discover that there are any means by which, when such is the form | of the injunction, its obedience as a Corporation | may be compelled or its disobedience punished. And that there are none, Lord Loughborough in the case of the Mayor of London vs. the Mayor of Lynn, seems distinctly to admit. (1 H. Black, 209.) Un- Jess the injunction, therefore, in such cases, operates | upon those members and officers of the corporation by whom its corporate will is manifested, and care rate acts performed, and unless it creates a duty for which they are parties to the suit, are personally re- sponsible, it is emphatically bru/wn fulmen—the words may be those of command or ‘menace, bit The next objection, that the omission to serve upon the Aldermen, with the injunction, a copy of the | self, or as to them, inoperative and void, like the receding, we are satisfied must be overruled. I[t | furnishes in this case no reason for not proceeding to | an attachment. Notwithstanding the positive terms of the code (sec. 220) we doubt exceeding]: whether, when the injunction itself is duly served, the omission to serve a copy of the affidavit upon which it was founded, may, in all cases, be al- leged as a valid excuse for disobedience. When | the order of injunction cannot properly be un- derstood and consequently obeyed, without a knowledge of the contents of the affidavit, the service of a copy must doubtless be made. But when the injunction is plain and implicit, and leaves no doubt as to the act which the party upon whom it is served is required to perform, or desist from per- | forming, it may well be doubted whether the irregu- | lar omission of the affidavit should be held to re- | | | i} | lease him from the duty of obedience. In such cases, a knowledge of the contents of the affidavit would neither instruct him as to his duty, nor avail to dis- charge him from its Dee since whatever may be the facts stated in the affidavit, the injunc- tion, when emanating from a competent authority, until dissolved, must be obeyed. (Krom vs. Hogan, - and Howard, P. R., 225, Woodward vs. King, 2 Ch. Ca. 203, Sullivan vs. Judah, 4, page 446.) The pur- pose for which the code bet ory rly required that a copy of the affidavits shall in all oases be served, is not that the party upon whom it is served may deter- mine whether he will or will not obey the injunction, but merely to enable him, without ‘delay, if so ad- vised, to move for its dissolution. It is not, however, upon the ground that in this case the alleged irregu- larity in the service of the injunction was not such as to excure the disobedience that followed, that we overrule the objection. The papers show that there was in trnth no irregularity that the defendant, Stur- tevant, can be permitted to allege. A copy of the complaint, together with ‘the injunction, was duly served upon the Mayor, on the 28th of December, the day before the meect- ing of the Board of Aldermen, ‘The ser- | vice ere made upon him as the chief offi- | eer, (2 B.S. p. 458, section 5) and for that purpose the representative of the whole Corporation, and we are clearly of opinion that this service was sufficient and effectual as to every member of the corporate hody whose porsonal conduct as such the injune- | tion was designed to control; and to whom the ac- j tual knowledge of its contents may justly be imputed. | That the defendant Sturtevant, and the Aldermen | who acted with him, possessed this knowledge is not | denied, and it even seems that they well knew what | were the allegations in the complaint itself’ They | have resolved that the reasons alleged for the injune. tion “were untenable in law and unfounded in fact.” It is only in the complaint, however, that these rea- sons are alleged, and it is therefore from the com- plaint that their knowledge of them must have been | derived. Under these circumstances, it would in- | be a mockery of justice to permit the alleged sularity in the service of the injunction to excuse | its deliberate and confessed violation—confeased, we | mean, in the resolutions of the Aldermen, although | not in the arguments of their counsel. Passing, then, from objections merely preliminary and formal, we proceed to an inguiry which touches in a mea- sure the merits of this motion, namely-—whether the | defendant Sturtevant has, in fact, bcen guilty of the contempt with which he is charged; and this he cer- tainly has not, unless he has committed some act from | which the injunction, by its terms or its necessar construction, commanded him absolutely to desist | and refrain. It is trae that Mr. Sturtevant, and | those who acted with him, have publicly declared that they understood the injunction in the very sense for which the counsel for the plaintiff contends, as the ay, sense of which its terms are susceptible. And it is also trae, that thus understanding the in- ‘tion, they not only disregarded, hut proceeded so fur ag depended on their own action, to rescind | and nullify it; but we shall not hold that they are | have | ey concluded by their mistakes, if a mistake big A | Oscar W, Sturtevant. ! guilty of the contempt with which he is cl | attachment moved for must be issued | and assuredly in the clear unambiguous. corporate prohibits, is that of granting to Jacob iates, Tr person, rivilege of a double, or an: for a railway lway, between a asa corporate act has been and if no such hide; the injneon sas not been vated the fact that such @ grant has been made, is undeniabl 1545 aot cot leased by all, but avowed and glo- ried in bi who it, and those who have obtained it. The resolution making the grant has bee'e reconsidered and adopted, and in Sey mone which it prescribes has been accepted by - tees, and Jacob Sharp and his associates now to , by @ valid title, the very liberty, and. privilege, ‘which the injunction, the voice Cr ecient ae ee Bal ey shor . co} ae act that the injunction prohibits, has been performed, and it therefore seems an affront to com- mon sense to say that the injunction has not beew voles It aa ay Ag just as Fe tgeoes as i ex words idden the Secolution it was ed to Paved ae Te- eat, the injunction has been violated, and the only quiry that remains, is by whom it has been vio- ated, and who, assuming it to have been right- fully issued, are amenable to this Court for their contempt of its authority. |It is idie to speak of its violation as merely a corporate act, for which no member or officer of the corporation is, fcc Res We ctiephet Pontes poh jun a corporation solely by ie corporate Tame, and that when so di- rected if CT ispey to restrain the personal action of every member of the corporate body by whose as- sent or co-operation the corporate act is for- bidden ma; accomplished. In the case before us, the injunction not only commanded the Board of Aldermen and the Board of Assistants not to make the grant to Jacob Sharp and his associates which it describes, but it commanded each Alderman and each Assistant not to give his assent to any sucle grant if proposed for ado to his assent to it forthe purpose and with the t of rendering it operative and effectual as @ corporate act. The resolution adopted by the Commoe Coun- cil is the very grant that the injunction fe and to this grant every Alderman who voted for the resolution with the intent that it should take effect as . a corporate act, has given his assent. Every one of them, therefore, who thus assented, the conclu- sion is plain and irresistible, has done the very act that the order of the Court commanded him not to do, and by so doing has violated its mandate and contemued its authority. And unless this be true it follows that when an injunction, directed to a body consisting of several persons, commands thenr not to perform a joint act, although all unite in per- forming the act no one of them breaks the injunc- tion—no one of them is liable to be punished. Two arenes one! Sel ae ae Sens julent transfer of 1) whole pai ip property; suspecting their design, their creditors Mion cee aint, and obtain and serve an injunction, by whicl The intended transfer, the meditated fraud, is strictly forbidden. The transfer is, however, made, the frand accomplished, the authority of the court de- fied, and the guilty partners rejoice in their impu- nity. Neither of them, it seems, can be attached, for the valid reason that the fraudulent transfer wa the act of both, and, therefore, the act of neither. Let it not be said that the sup) case is not analogous; the analogy, in truth, is perfect, for it is not at all affected or impaired by the circumstance that the body to which, in the present case, the in- junction was directed was a corporation, not a Ayu nership. The injunction in this case commanded the Common Council not to make a certain grant to cer- tain persons. The Common Council has made the rant ; yet we are told that the injunction has not. een broken, or, if broken, has been broken by the Common Council alone, the two boards forming the body, and not at all by the individual members, by whose concurrent votes the grant, as a corporate act,. was adopted and effected. conclusion, the whole - argument, it is manifest, depends upon the truth of the proposition with which we started, namely, that an injunction directed to a corporate body is binding upon the individual conscience, and restrains the individual action of each.of its members. If this, as a proposition of law, is certainly true, and that it is we cannot doubt, then this injunction, which,. om this case, has plainly been violated by the Ce = 1ation as a body, has just as plainly been violated every member who has given his individual assent to- the corporate act by which the violation was effected. ‘That assent was given-by the member now before us, e has, therefore, as an indi- thus been. , the ‘inst him, un- less the order of this Court, which he has disobeyed, ‘was itself unlawful and void. It is upon this id alone that he has himself justified disobedience, aud it is upon this ground alone that he can be ex- empted from its punishment. Before we proceed, however, to the discussion of the question whether the order of this court, from its total want of juris- diction, was illegal and void, there are some conside— rations, hitherto unnoticed, to which it seems expe- dient to advert. Hitherto we have passed over in silence an argument upon which the counsel for the defendants seemed to lay a peculiar stress— ere that the injunction was not violated at all by the mere adoption of the resolution containing the grant to Jacob Sharp and his associates, and* consequently not violated b those by whose votes the resolution was passed. The adoption of the resolution, it was said, was not a grant, it was merely an inchoate and initiatory act, which, but for the subsequent acceptance of the grantees, might have remained for ever ineffectual... Until this acceptance was executed and filed, no- grant was made, no homens al right, or privile; given, and, consequently, until then, neither in its terms nor in its spirit, was the injunction violated. This acceptance, however, was the act of persons ta. whom the injunction did not extend, and for whose acts neither the corporation nor its members can be made responsible. Notwithstanding the appa- rent confidence with which this argument was urged, we find it difficult to believe that it was seriously meant to be ere upon our adoption, since it. could hardly have escaped the counsel that, with equal propriety and {pree, might the same argument he urged in every case in which a grant, transfer, or any disposition of property whatever, is forbiddew to be made, either by a corporation, a partnership. or an individual. In no case is a oe effectual. hy the mere will and act of the grantor. In every case it depends for its ultimate validity upon the assent and acceptanee of the grantee. Hence, if the a ment is valid, it follows that an injunction, which ix meant to restrain a fraudulent illegal grant, addressed only to the grantor, ma; dis in all cases, withentire impunity. \ — the grantor as a fraudulent t 0 ir, be- - cause the nt which he executed and delivere night have been rejected by the grantee, and but for his acceptance would have be lly ineffectual You cannot punish the grantc in the injunction. The reply to t cases supposed is exactly that in the present. The fraudwent + forbidden to make the grant w hall he effectual, and in a mode rendered 0; and when it is pre all that he could to render the valid, he is certainly and justly present ease, the Comimon Coun ts members, have done all they c » render the xrant they were forbidden to make operative and, effectual. They passed the resolution with the intent that it should Me ob asa grant, and in the conti- dent expectation that, by its acceptance, it would be- come such. If they meant otherwise, they either should not have adopted the resolution at ‘all, or, when they had passed it, should, as they might have done, forbidden its acceptance. As the ci ds, they have made the grant which they were com- manded absolutely to desist and reftain from mak- ieg; and this grant, as they intended by their per-- mission and with their consent, has become absolute; hence, if words have a meaning or the law an inten- ion, they have violated the injunction both in letter and in spirit, and, I am constrained to add, they meant to violate it, and knew that they had done s0. We are told, however, that the members of the Com- mon Council could not have acted otherwise than they did. Their charter bound them, it is said, to re- consider the resolution, and when reconsidered, it was not merely their right, but their duty, to vote upon it according to the dictates of their own con- science, and to punish them for the exercise of this right would be injustice and iyrenn: » The answer is brief and conclusive. The charter imposed. upon them no such absolute duty as is asserted.. When an ordinance or by-law is returned tothe Com- mon Council, we apprehend that its reconsideration depends in all cages upon the will of the majority; present case, they were not bound to reconsider the resolution at the time and in the manner they did. I add, that even upon the supposition that they were bound to reconsider the resolution, by the Beene of their charter the: were equally bound by the mandate of this Court rescind and reject it when reconsidered, if the order of the Court was in truth issued in the exercise of its proper jurisdiction. 1 pass, therefore, to the last and most important onferton that has been urged as conclusive against the went motion—the al- leged want of jurisdiction in this or any Conrt, to Teithiin tbo aston of the Common Connell upon. vidual, violated the injunction, and ha’ » nuajority of