The New York Herald Newspaper, February 7, 1853, Page 3

inj its face; for it is this defect of alone, that has been or can be to exist, and when it exists it must in all cases be thus apparent. The injunction commanded an be rightfully addressed by a court of equity to a m , the Common Council and its members, in just maintenance of their own sights, were bound to disregard it; but if it was a command that under any circumstances and upon any grounds, for any reason whatever, this Court might impose upon the Common Council and its members, it was at their own peril that they refused to obey it. -They had no right to regulate their conduct by their own opinion, or the opinion of their counsel, as to the truth or suffi- ciency of the allegations in the complaint, upon whick the order addressed to them was founded. For the of determining whether they would obey or di the injuuetion, they had no right complaint at all, and this for the lain reason that the jurisdiction of the Court may certain.and undoubted, and yet the facts and alle- gations cet forth in the complaint be wholly insuffi- cient to warrantitsexercise. When this insuificiency exists, there is a want of equity in the complaint, for which the injunction will be dissolved; but this want of equity is no evidence of a want of jurisdiction, that, rendering the process void, justifies bedience. A ly before whom an injunction is served, (they are the words of Chancellor Walworth that I quote,) is not permitted to speculate upon the future decision ~of the Court as to the equity of the bill, and disobey the injunction, upon the ground that upon the merits ‘it onght not to have issued. (People vs. Spalding, 2 Paige, 529; Sullivan vs. Judah, 4 Paige, 446.) add, that if there are any valid grounds in law, upon which the injunction in a particular case might have issued, although not one of the grounds may be stated in the complaint, the court has jurisdiction, and its order must be obeyed. It is erroneous, but certainly not void; and it is only a certain, a manifest invalidity that can excuse and protect disobedience. Although the want of equity and the want of jurisdic- tion (as was justly observed by the experienced and q counsel \y ho last addressed calor Soe are confounded not only by text-writers, but by Judges, yet the distinction which separates them is very rea- sonable and intelligible, as well as certain and estab- lished. This di tion, however, I cannot but think was, to a considerabie extent, lost sight of in the arguments that were addressed to us on the part ofthe defendants, and it is this circumstance that rendered a large portion of the observations that were made, and authorities cited, wholly inapplicable ‘tothe true and only question now before us. It is, ‘however, that queen alone, as I shall again state it, that [ mean consider and discuss. Was the order of this court, which, as an illegal exercise of power, wag arded by the Common Council, void upon ita face?’ The order commanded the Com- mon cil not to grant to Jacob Sharp and others, -orto any other person, the right, liberty and privilege of laying down a double or ay other track, fo railway in ag lB At the time this injunction ‘was obtained, a lution, making such a grant to Jacob Sharp and others, was about to be reconsi- Wered bythe Common Council, and as the terms of | the injunction embrace this resolution, and were, un- dou! ', Meant to restrain its adoption, it is rea- Bonavié to construe the order exactly as it would ‘be necessary to construe it had it referred to and recited the resolution, and by express words had ‘forbidden the Common Council to reconsider and adopt it. It is this constructlon, therefore, that I adopt, and for the purposes of this opinion I shall treat the resolution as an ordinance by law, and its reconsideration and adoption as properly acts of Jegislation in the fullest sense in which the term Aegislation can be justly applied to the acts of a cor- ‘porate body. ing these concessions, the denial of the jurisdiction of this court amounts to this— that a court of equity, of general jurisdiction, has no power, in any case, or for any purpose, to restrain he legislative action of a municipal corporation, nor in manner to interfere with or control its legisla- tive ion, no matter to what subject the action -may be directed, nor how manifest ‘and gross the violation of law, even of the provisions of its own ‘charter, that it may involve, and no matter by what | ‘motives of fear, partiality, or corruption, its discre- tion may be governed, por how sive and irre made still remains, has this court, or an: the power to interfere with the legialat m of the Ae ce Council % Bh er. any other munici ion? An pert pid a not, if the term cretion be ly limited and understood; and thus position much ae no right to interfere with and control the exercise, not merely of the ley itive, but of any other dis- e at the law has vested in the C ; and hence I deem it quite immaterial whether the resolution in favor of Jacob hary and his associates be termed a: by-law, a grant, or a contract, or whether the power exercised in passing it be termed legislative, judicial, or exe- cutive; tig all the extrgordinaryprifiegee wines te granting all the e: vivileges which the resolution confers, the propridty of exercising the power, and perhaps even the form of its exer- e, rested entirely in its discretion. Nor is this all. A court of equity has no vee to interfere with and control, in any case, the ¢ of a discretior power, no matter in whom it ma; be vested—a corporate body or individuals, the al- dermen of a city, the directors of a bank, a trustee, executor or guardian; and I add that the meaning and principle of the rule, and the limitations to which it is subject, are, in all the cases to which it applies, eget the same. The meaning and prin- ciple of the rule are, that the Court will not substi- tute its own judgment for that of the party in whom the discretion is vested, and thus assume to itself a power which the law had given to another; and the imitations to which it is subject, are, that the dis- cretion must be exercised within its proper limits, for the purposes for which it was given, and from the motives, by which alone, those who gave the discre- tion, intended that its exercise should be governed. A court of equity will not interfere when the dis- cretion is legally and honestly exercised—and it has no reason to believe the fact is otherwise—but it will interfere whenever it has grounds for believing that its interference is to prevent a base injus- tice or oppression, and the violation of a trust or the consummation of a fraud. It will interfere—and it is bound to interfere—whenever it has reason to be- lieve that those in whom the discretion is vested, are prepared, illegally, then or corruptly,to trample upon rights, and sacrifice interests, which they are specially bound to watch over and protect. Having ited these principles, the discussion may be regard- ed as closed, since the application of the prin les to the case before us, is obvious and decisive. I shall therefore content myself with referring to a few of the authorities ich they are sustained, and then pie to apply theory to the facts of the case. ‘he doctrine which, when stated in a condensed form, may be extracted from the decision of Lord Eldon in the leading case of Agar vs. the Regents Canal Com- pany, (Cooper's Eng. R. 77,) is, that whenever a cor- poration is about to exceed its powers, and apply its funds or credit to some object beyond its aceecitee and whenever the Ht ara of the corporation, if car- ried out, would constitute a breach of trust, a court of equity cannot refuse tointerfere and give relief by an injunction; and his lordship said that this was a most wholesome exercise of jurisdiction, since it would be most prejudicial to the interests of all with whose property the managers of a corporation might choose to interfere, if there were not a jurisdiction continu- ally open and ready to exercise its powers to keep them witkin their legitimate limits. In the case of the River Dan Navigation Company va. North Mid- land Railway Company, (1 Railway Cases 135,) it was upon the same doctrine that Lord Cottenham—a Judge scarcely inferior to Lord Eldon ete irl learning and research—placed the exercise of a ju’ risdiction which he declared himself not at liberty to withhold. The case of Frewin vs. Lewis’ is one of those upon which the counsel for the defendants laced a strong reliance, for it was in this case that rd Cottenham dissolved an injunction against the Poor Law Commissioners, upon the ground that its continuance would rate as an undue restraint upon the legal discretion of those important public fanctionaries; yet in this very case his lordship was careful to ascert and maintain the rightful jurisdic: tion of his court, and said, “that when public fune- tionaries are departing from the powers which the law has vested in them, and are assuming a power which does not belong to them, this Court no longer consid- ers them as acting und@ their comnfission, but treats them, whether a corporation or individuals, as per- sons dealing with propertyz without legal rights;” and he added ‘ that.when such persons infringe or violate the rights of‘others, they become, like all other individuals, amenable to the jurisdiction of ge the mischief that, in the particular case, may | certain to result to individuals or the public, from | its threatened exercise. If this be true as a proposi- tion of law, then the injunction order of this Court, from the want of jurisdiction manifest on its face, was | ~wholly void. If the proposition be not true, the order was valid, and should have been obeyed. In justice tothe counsel for the defendants, it must bo admitted.that they shrank not from maintaining the -trath of the proposition in all its extent, well per- ceiving that the necessity of their argument admit- ted no alternative. In reply to a question put by | the Court, it was expressly affirmed that, should the Common Council attempt, by an ordinance, and | from motives manifestly corrupt, to convey, for a grosely inadequate or merely nominal considera- tion, all the cea abs property of the city, neither | this, nor any other Court, would have power to sup- | press, by an injunctiou, the meditated fraud, or when consummated, to recind the nt, or pun- | sh its authors, or divest them of its fruits; there | could be no remedy, we are told, but from the force of public opinion and the action of the people at an ensuing election*, and all this upon the ground that neither the riety nor the honest; of the proceedings of a eginative body, nor, while they are pending, even their legality, can ever be beat fh a subject of judicial inquiry. is, it must be onfersed, is @ startling doctrine. We all felt it to | be so when announced, and | rejoice that we are now | able to say, with an entire conviction that, applied to 4, municipal Sernotssien is just as groundless in | Jaw as it seems to us it is immoral in its principle, land certainly would be pernicious in its effects. ‘he doctrine just stated may be true when applied to the legislature of the State, which, as’a co-ordinate | ‘branch of the government, representing and exer- vising in its sphere the sovereignty of the people, fis, for political reasons, of manifest force, wholly ex- | it in all its proceedings from any legal process or judicial cotirel but the doctrine is not, nor is any ortion of it, trug, when applied to a subordinate municipal body, hich, although clothed, to some ‘tent, with legislative and even political powers, is vet, in the exercise of all its powers, Jase as subject othe authority and control of courts of justice, to gal process, legal restraint, and legal correction, as ny other body or person, natural or artificial. | ‘he supposition that there exists an important istinction, or any dis inction whatever, between h municipal corporation and any other cor- poration, aggregate in respect to the powers courts of justice over its proceedings, is en- irely gratuitous, and, it seems to me, is as des- itute of reason as it certainly is of authority. The Founsel could refer us to no case, nor have we found iny,in which the judgment of the court has proceed- dd upon such a distinction, nor, in our re- arches, which have not been limited, have we been able to discover that, by any judge or ju- ist, the existence of such a distinctlon has ever een asserted or intimated. Were it other. ise—had such decisions been found in the Mnglish report, or in those of our sister States—had een proved that in England or in other States e supposed distinction is the established law, we hould still be compelled to say that it isa law hich we must refuse to follow, for the plain reason t, it is directly inconsistent with the paramount jority of our own constitution. The constitution the State declares that “all cot tions shall we the right to sue, and shall be subject to be sued, all courts, in like cases, a8 natural persons.’ n , 8e¢. 3.) There is no exception here municipal c rations, and an exception which he constitution has not made we have neither the clination nor the power to make ourselves. Re- g, then, an imaginary distinction, the question B to the validity of the only defence which the bers of the Common Council have set np in own behalf, and on which their counsel hay efly relied, their entire exemption from judicial atrol in every proceeding that they may choose to the with the forms of legislation, is seen to sé a far deeper and wider importance than could first have been imagined. If the members of the pmmon Council are entitled to the immunity which ey claim, exactly the same immunity, and exactly the same grounds, may be claimed, and justly mec, bY all who manage officially the concerns any and every corporation in the city or States, le directors, managers, or trustees of every bank, purance, or trust company, and owner of every iblic library, or hospital, dispensary, or savings ; They have all legislative powers in the same as the Common Council, powers not indeed as ensive in their operation, and not therefore liable to be abused, nor as dangerous when used, but just as legislative and discretionary their natnre. They have all the power making by-laws x the regulation of bir affuira and binding on their members, and yy May all give the form of a by-law or resolution ‘The counsel for the defendants have since declared to ewurt that they were misunderstood. They did not nto affirm that there would be no remedy in the supposed, but only that an injunction could not be ed upon the application of private individuals—that Attorney-General might institute the writ and obtain injunction was not meant to be denied. As the state- nt on the text, however. exactly corresponds with the | recollection of ench of the judges, it is re | whateyer either to establish i this Court by injunction.” The force and applica- tion of this lan, e will be fully understood, when we remember that the powers of the Poor Law Com- missioners are legislative, discretionary and political, even in a more extensive sence than those of our own torney General vs. Aspinwall, (2 M. and C. 613,) the Corporation. I refer lastly, to the three cases of the At- Same vs. Corporation ot York, (4 M. and C. 30.) and the Same vs. Mayor of Dublin, (2 Bligh, N. R. 312,) as proving that when property held by a municipal corporation is clothed with public duties, or the ob- jects to which it must be appropriated or applied are defined by law, there arises a trust, the violation of which a court of equity has not merely the power, but is bound to prevent by an injunction. We are now in a condition to {answer very decisively the question proposed-—was the injunction order directed to the Corporation void upon its face, from the total want of jurisdiction in the court by which it was ued? And the answer is that assuredly it was not, if there is any ground whatever upon which this Ciaee conta lawfully restrain the Corporation from Ing the grant which the order described; and that there are bene grounds upon which the re- straint couldbe legally and justly imposed, we deem no longer possible to doubt. 1. It may be that the Re Sep eetn has no power If, or to grant to others, the bait) of establishing 9 railway in any of the public streets of the city; and whether they have or not is a question of law, which belongs not to the Corporation but to courts of justice to decide; and until the decision, the exercise of the power may and ought to be restrained. 2. It may be that the establishment of a railway in Broadway would operate as an injurions monopoly, debarring the bulk of our citizens of its beneficial use and enjoyment, and securing them almost ex- clusively to the intees of the Corporation. The creation of such a monopoly would not onl: be an excess of authority, but a breach of tru which may and ought to be prevented by an injune- 3. It may be that the building of a railway in Broadway—from the inconvenience and discomforts it would create to citizens generally, and its special injury to the inhabitants—would be a public nui- sance. To prevent the creation of a nuisance, no matter by whom created, is not only within the juris- diction of the Court, but, upon Proper allegation in a complaint, its positive duty. The mode of relief is an injunction. 4. it may be that the Common Council intended, from motives of partiality or corruption, to make the grant to Jacob Sharp and his associates upon terms far less beneficial than could certainly have been obtained from others, thus, defrauding the treasury of the city, and imposing a heavy and unnecessar, burthen upon its tax-paying inhabitants, In suc! a case, to issue an injunction, forbidding the grant, is not to interfere with a legal discretion, but to pre- vent a flagrant breach of trust and the completion of an extensive frand. I have already said that, in the question before us, it is quite immaterial whether all or any of these grounds of jurisdiction and relief are alleged in the complaint, but it so happens that all of them are alleged in the complaint; and so dist- tinctly and fully alleged that the Judge who issued the order of injunction would have failed in his duty had he refused to grant it. Upon such a complaint he had no liberty of refusal. It is possible, as the counsel for the defendants have insisted, that all the matereal allegations in the complaint are groundless in Jaw orin fact, and that hei T we May ourselves be satisfied that they are so, but I shall not now 80 express or intimate any opinion upon questions that can only be properly discussed and considered a @ motion to dissolve the injounction or upon the final hearing. The conclusion at which I have arrived, and which necessarily follows from the observations that I have made is, that the order of injunctiog, which Alderman Sturtevant refused to obey, was a valid exercise of the established juris- diction ef this Court, and consequently that no ade- Nt cause has been shown why an attachment should, not issue against him for the contempt, of which from the pepe before us, he appears to have been guilty. In this conclusion allthe judges who assisted me—by each of whom separately all the questions in the case have been carefully examined—entirely concur. The motion for an attachment is thereforo granted. When he had finished reading his opinion, Judge Duer made in subtance the following remarks :— “It may be thought a singular omission in the opinion I have delivered, that I have forborne from those comments upon the proceedings of the Board of Aldermen, and upon the resolution moved by Mr. Alderman Sturtevant, and cially the injustice and violence of the attack whicht ey contain upon the con- duct and motives of Mr. Justice Campbell, which they would seem not merely to justify but demand. Per- haps, hereafter, the necessity of making such remarks may be imposed upon us; but at present I shall content myself with adopting, with some alight changes, a8 strikingly applicable, the language of a late colleague, a Judge alike distinguished by the moderation of his temper, the Purity of his charac- ter, and the soundness of his judgment. In the case of be ay print @G begged 662,) in which a defendant had disobeyed an injunction under the advice of his counsel that it was illegal, Mr. Justice Mason said :—‘* We live under # government of law feeling, and to Spirit of obedience to thority ; and it is a matter of deep regret, of those whose province it is to aid in the adminis tration of justice, by their own example, encourage a resistance to or disregard of the decisions or orders of the ceurt, or of any of its judges.” JUDGE BOSWORTH'S OPINION. Boswortn, Judge.—The plaintiffs move for an attachment against Oscar W. Sturtevant, one of aldermen of the city, to arrest him for a of Court, in disobe; an injunction Judge of this , 1852. Having, others of my brethren, at the request of the Judge holding the Special Term at which the mo- tion was le, heard the argument of counsel for and pag the motion, I shall, as briefly as practica- jate som 2 ocontempt ble, © of the views formed upon a con- sideration of the propositions argued and au- thorities ci'ed. To present these int jibly, it is necessary to state some of the mt facts of the case. On the 27th of ber, 1852, upon @ sworn complaint made by the plaintiffs, “aa well on their own behalf as on behalf of all other corporators and tax-payers of the city of New York,’ who might be affected by the several matters stated in the complaint, the plaintiffs ap, plied for and obtained an injunction order in this action. The order, by its terms, commanded “ the Mayor, Aldermen and Common Council of the city of New York, their counsellors, attorneys, solicitors, and agents, and all others acting in aid or as- sistance of them, and each and every of them,” to Wy sbecrtely desist from granting to, or in any man- ner authorizing, Jacob Sharp and others, or their associates, or any other persons whomsoever, the right, liberty or privilege of laying a double or any track fora railroad in the street known as Broadway, in said city of New York.” The com- plaint on which this order was nted, states that the plaintiffs are citizens of the State, reside in the city, severally own real estate situate on Broadway, and have sereally: been annually taxed, and have paid such taxes an amount exceeding $250 per annum, and that such taxes were levied to defray the Gey ae ergys of the city. It proceeds to state the Mmount of taxes levied in each year, from 1846 to 1852, inclusive; that in 1846 they amounted to, ++ $1,654,323 ++ $2,561,650 Petes kas dicsenigeigau lererine ——that by reaso ged corrupt ani acts of the defendants, the taxes of the city are annually asing to an alarming degree. That the city of New York is an ancient and chartered city, and the citizens and inhabitants thereof are a body politic and corporate, under the name of the Mayor, Alder- men and Commonalty of the city of New York. That all the property, jurisdiction, franchises and privileges, held and exercised by the corporation, were given, granted and acquired underthis corporate name. That all the powers of this coi ition are held by them, upon the trust that they shall be used and exercised for the benefit of the citizens and in- habitants of said city, without any fraud, corruption, evil practice or deceit. That this body politic and corporate is Sie of suing and being sued, in all courts of record, in all manner of actions. That on the 19th of November, 1852, the Board of Aldermen adopted certain resolutions—a copy of which is an- nexed to the complaint—and on the 6th of December, 1852, the Board of Assistant Aldermen also adopted the same resolutions, and ordered them to be transmitted to the Mayor for his Spee These resolutions are fifteen in number, The first declares “ that Jacob.) , and others specially named, and those who may for the time be ag- sociated with them, all of whomare herein d ited as associates of the iway Railway, have the au- thority and consent of the Common Council to lay a double track for a railway in Bi y and White- hall or State street, from’ the South ferry to Fifty- ninth strect, and hereafter to continue the same, from time to time, to Manhattanville.” Tho second provides that the tracks shall be laid in or near “the middle of the street,” the outer rails not exceeding twelve feet and six inches Eire The tenth, that the “ associates” shall cause the street to be well swept and cleaned every morning, except Sundays, before 8 A.M. ingummer, and 9 A.M. in winter, below Fourteenth street, and above that as often as twice a week, when the weather will permit. The eleventh, that five cents farefor each nger, isthe highest fare that the associates shall be allowed to charge. The twelfth, that the associates shall pay, for ten on from the opening of the railway, an annual ficense fee of $20 per car, “ and shall have a license accordingly,” and after that period such license fee as the Corporation, with the permis- sion of the’ Legislature, shalt then prescribe. The 13th, that the associates, or a majority in in- terest, within a reasonable time after the passage of such resolution, “shall fOrm themselves into a joint stock association, which association shall be vested with all the rights and privileges hereby granted;”” shall have power to establish by-laws providing for the construction, “operation and management of the said railway,” “and generally the means and mode of establishing the railway, and carrying it on, and of controlling and manag ne the property and affairs of the said association.”” The 14th, that ‘the associa- tion shall not be deemed dissolved by the death or any act of any associate,” and that ‘said associates may atany time incorporate themselves under the general railroad act, whenever two-thirds in interest of the associates shall require it.” The 15th, “that the associates named in the resolution shall, by writing filed with the Clerk of the Common Counoil, signify their acceptance thereof, and agree to conform thereto; and all new associates or assigns duly admitted according to the provisions of the arti- cles of association and by-laws, shall be deemed par- ties to such agreement. The complaint fu stated, that before such resolutions were passed, men of wealth, character and standing, residents of the city, abundantly able to perform their contracts, ap- pled to the Common Council for the privilege and authority to construct the road, and offered, in addi- tion to all the terms imposed by the resolutions on Sharp and his associates, to carry passengers at a less charge than five cents each, and pay a large bo- nus into the treasury of the city. That one of the pro- positions was to pay a bonus oj $1,000,000, and charge only three cents fare. Another waa to pay $1,000 per car,and charge only three cents fare. Another was to Ray. $1,666 per car, and charge five cents fare. ‘he complaint stated that on the 18th of December, 1852, the Mayor returned the resolutions to the Board of Aldermen without his approval. and with objec- tions thereto, a copy of which objections was an- nexed to the comptaint. The Mayor stated, among other things, as objections to the laying of a railroad in Broadway, that it would, in his “judgment, mate- rially interfere with the comfort and convenience of all cluszes; would seriously interfere with the busi- ness of parties resident thereon, and would depreciate the value of property on the line of the strect, fully twenty per cent; and that the grant of the privileges to Jacob Sharp and associates, onthe terms embraced in the resolutions, to the exclusion of those who had made offers 60 much more ad- vantageous to the city, would be a perversion of the rights of the ¢cmmunity to which they would not tacitly submit. The complaint further alleged that the members of each Board of the Common Coun- cil, who voted for the resolutions, and constituting a majority of the whole number, had declared a pur- ose to pass these resolutions, notwithstanding the disapproval and objections of the Mayor, and were continuing their session by adjournments from time to time, with a view to carry their declared purpose into effect. That the persons named in said resolu- tions avowed a purpose to accept the same in writ- ing as soon as passed, and to proceed to break up the eee lay down the railway, and establish a railroad in Broadway. That the laying of the rail way would occupy some four months, would render the street impassable while being construeted, would appropriate the street to a use exclusive in its nature, would deprive every citizen of his right to the free and common use of the whole carriageway of the street, and that the railway, if construc- ted, would be a public nuisance in the street, It also alleged that the defendants had no wight by Jaw to construct @ railroad in the street, or to authorize others to do s0; thatif they had power to grant the use of the streét for such a pore, it would be a Neo td fraud upon the whole community to grant it to one company, with the power to ae five centa fare, when another would construct and keep it in operation and charge only three cents fare ; or to give the grant to a company, with a stipulation that they should be charged a license fee of only $20 per car, while others offered to pay for the privilege a fee of $1,000 per car, and charge only three cents fare. Other allegations of fact were stated in the complaint, and other objections pre- sented against the defendants being allowed to make the grant, or give the authority, iting to be made and given by the resolutions. The Judge to whom application was made for the injunction order, granted HH on a verified complaint stating these facts to be true. Whether true or false, is a question which we are not called upon to determine on this proceed- ing. To determine whether he had any jurisdiction to make the drder, the complaint alone can be looked at,and Rhee at | contained in it and stated to be true in fact, must be deemed to be true for all the pur- poses of the question before us. It was on the facts stated in the complaint, and those only, that the order was made. If the Judge, on those facts, had juris- diction to make the order, it was the fe Maathe to whom it was directed to obey it until they had pro- cured it to be vacated. If he oh ioains gl to make the order, it is incontestible that it was his duty to make it, if the facts stated in the complaint are trae. Acouniing, to the allegations in the complaint, the Common Council, against the objections of the Mayor, were about to grant to Jacob i and others au- thority and power to construct and use @ railway in make, it would be a gross abuse of power, and a fla- grant violation of public duty, to make the grant as it was made, inst of making it to those who would pay, at the least, an additional million of dol- larsforit into the pablo treasury, and exact from the assengers onl, ree cents instead of five. is it incontestible that such an abuse of power and violation of duty cannot be restrained by any Court? It must be conceded that this corporation is liable to be sued, that the plaintiffs have capacity to sue, and that this Court has power to make the order in quea- tion, if any Court bad power to make it, on the facts stated in this complaint. It is undeniable that these are matters which the defendants may A rly be restrained by injunction from doing. the facts stated in the complaint are true, the Common Coun- cil were intending, 80 far as they possessed power to accomplish the parece, to grant to an association of individuals the right of appropriating to their exclusive use, toa certain extent, a portion of the centre of the main street of the city, and to the same extent to deprive all other inhabitants of the city of the right and privilege previously enjoyed by them of the free and common use of the whole of © carriage way of said street. They were about to make a grant authorizing the grantees to im- ore 2 charge or tax of five cents on every in- should ride in their cars, While others offered to construct @ road in the same man- ner, and charge oy three cents fare, and in addi- tion to this, pay into the treasury from £100,000 to $200,000 per annum, or $1,000 per car. The part of the charter or of any legislative act, authorizing this to be done, has not been pointed out. To make such a grant under such circumstances, even if the power exists to make any grant for the construction ofa railway on¥the ground of its being “ deemed good, useful, or necessary for the good rule and gov- ernment of the body corporate,” or with a view to public convenience, would be a clear abuse of power and violation of duty. No one can pretend that it would promote public convenience or tend to the good rule and government of the body palo. te compel every citizen to pay five cents fare instead of three, or that the public treasury should be permitted to receive only $20, instead of $1,000 per annum for every car run. In Frewin vs. Lewis, Cath Mylne and Craig, 249,) the defendants were the Poor Law Commissioners and the guardians of the Holborn Union, under the Poor Law amend- ment act, (4, and 5, Will. IV., chapter 76.) Lord Cottenham, in speaking of the jurisdiction of the Court over bodies constituted like the Poor Law Commissioners, says that, “If they are assuming to themselves a fsa over property which the fae does not give them, this Court no longer considers them as acting under the authority of their com- mission, but treats them, whether they be a corpo- ration or individuals, merely as persons dealing with property without legal authority.” * * “ And if, under pretence of an authority which the law does ry them to @ certain extent, they go beyond the ¢ of their authority, and infringe or violate the rights of others, they become, like all other indi- viduals, amenable to the ae of this Court by injunction.” Is it not clearly going beyond the line aby Cee vested in the Common Council to deliberately subject every inhabitant of the city to the necessity of paying five cents every time he ma’ ride on the proposed railway, when others wil construct the inthe same manner, and with the same accommodations, and charge only three cents? _ Is there any lawful authority to unnecessari- ly tax the whole body of the people? Can a two cent tax be imposed upon each citizen every time he may pass up and down Broadway, from mere caprice, without any assignable cause, and under the power conferred to pitch, pave, regulate, widen, or alter the streets? In the case of the Attorney Gene- ral against Forbes, the bill was filed in the name of the Attorney General, at the relation of Thos. Tin- dale § Treasurer, and by the relator on behalf of himeelf and all other of the inhabitants of the county of Bucks, (2, Mylne and Craig, 123). The court, in peal of the question of parties, as well as of ita jurisdiction, remarked that “In informationsand pro- ceedings for the purpose of preventing public nuirances, the ordinary course is for the Attorney General to take it on himself to sue, as representin| the public; but it is ‘eleva d ve certain that indi- es aggrieved, may ce of the ublic nuisance, from which they hai individually sustained damage.” I can perceive n2 good reason why a court should not restrain a municipal corporation as well from in- fringing the public franchise, ina case presenting on unquestionable abuse of power, to the prejudice of individuals and the whole body politic, as from grant- ing mere property to a particular association of indi- viduals, where others stan @ ready and offer to pay double the price for the same property. Municipal corporations possess only such powers as are - cifically granted by the act of incorporation, and such as are necessary to carry into, effect the powers expressly granted. Inthe appropriation of the funds of the people, they are creatures of limited powers; and when they attempt to appropriate the public funds to purposes not authorized the charter or by positive law, whether it be done by resolution, or- dinance, or under the form of legislation, their act is without authority and void. Hodges va. City of Buffa- lo, (2 Denio., 140); Halstead vs. The Mayor of New York, (3 Coms., 430.) certain persons the public wharves, piers and slips, or to lease them for a term of years for a fourth or a tenth of what others offered, and were able to pay, would be a clear abuse of pow- er,and a gross fraud upon Se Panic rein ought to be restrained. If any doubt should be felt whether such an interposition of the Court would not be going further than was evidenced by any reported case, none could be entertained that it would not be going further than the prevention of fraud and the protec- tion the pone required; and if the action invoked could not be rested on any better ponine it might laced on the ground that “frand and dam- age, coupled together, entitle the injured y to re- lief inany court of justice.” It is not intended to deny the proposition, that where the exercise of dis- cretion is confided to persons appointed by law, or to a municipal corporation, a court will not attempt to control the exercise of that discretion. But if, under pretence of exercising the discretionary powers thus delegated, they threaten, and are about to do, what is undeniably a gross abuse of power, to the injury, and in fraud of those for whose benefit these delegated powers are to exercised, and to the injury and in fraud of the rights of individuals and the pub- lio, I know of no principle or case which precludes the interference of the Court to prevent the threat- ened injury. [Oswego Falls Bridge Company vs. Fish, 1 Barb., ch. The Attorney General vs. Mayor, &c., of Mobile, 5 Port 2 The Attorney General vs. the Great Northern Railway Company, 3 1. & E. 268; Munt vs. Shrewsbury and Chester Railway Company, id., 144; Waterman's Eden on Injunctions, vol. 2, p. 269, and notes.) Assuming, but not conceding, the authority of the Common Council to consider whether it was expedient to grant authority to construct a railway in Broadway on any terms—on which poiut no opinion is intended to be expressed—it is absurd to insist that, as be- tween two sets of applicants, equally reputable and able, and offering to aecepta grant on the same terms, so far as the mode and manner of construct- ing the road and of furnishing and running cars there is any pretenee for saying that, of an honest or intelligent discretion, be made to one set of applicants, and allow them to charge five eents fare, instead of making it to another set of Szplcante who would ake it with a prohibition against charging more than three cents fare. It would be a remarkable abuseof power and violation of duty to make a grant interfering with the right of every citizen to the ecmmon and unobstracted use of the street as a highway, and Sppropriating itin part to the exclu- sive use and personal emolumentof the grantees, and confer on them power to tax every inha- bitant of the city and State five cents for riding in the cars, when others would take the grant, far- nish the same accommodations to the public, with power to charge heen. cents fare. If such an abuse of power and breach of trust cannot be re- strained, then the making of the nt could not have been restrained, if the purpose had existed and been avowed, to make it for the nominal considera- tion of one dollar. That it may be restrained, is contestible, as 1 think, both upon principle and au- thority. The only serious question upon the facts of any case that may be presented, is, whether the suit should be instituted in the name of some one representing the beige ween or whether it may be brought in the name of an individual. That a suit may be instituted in the name of an individual to re- strain a public nuisance, when it occasions special injury to the plaintiff beyond that which the coi munity suffers in common with him, is expressly af- firmed in the Attorney General vs. Forbes, and has been repeatedly decided on reported cases—6. J. Ch. 489, Corning vs. Lansing; 8. Simons 193, Spencer vs, jon and Birmingham Railroad Co.; Id. 272 Sampson va. Smith; Storcy’s Equity, vol. 2, 8. 924; State of Pennsylvania va. Wheel- ing Bridge Co., 13 How. Sup. C. R., 566, 576, 608. In thie case the complaint all facts which, it is claimed, establish the position, that the constrac- tion of this railway would be a special injury to them and other owners of property situate on Broadway. On these facts, the Judge who made the order was eqvired, and it became his duty, to exercise his judgment and determine whether this claim was well founded, Whether he decide vduals who conceive themsel come forward and ask the court to prevent a An attempt to.sell to | | ing it, wi Pp and their motive with beg je grossly unjust to them, and if the compe int were a fraud upon the ig course was to show this by for a summary di of the’ order, and for such action against the plaintiffs as such conduct would make it the duty of the Court to take. The remarks made by the Court in Noe vs. Gibson, 7, page 513, and in ll vs. East pn pons Company, 1 L. and Eq. R. 101, are app! euble to the duty of the defendants in this case. In the latter case, the Court eaid:—‘ I know of no act of this court which may not be questioned in a proper form, and on a proper application; but I think it is not competent for any one to interfere with the possession receiver, to disobey an injunction, or to disobey any otherorder of the Court, on the ground that ‘such orders were improvidently made—they must take a proper course to question them, but while they exist they must obey them; I consider the rule to be of such im- portance'to the interests of the public, to the and safety of the public, and to the administration of the justice of this Court, that it is a rule I shall hold inflexible on all occasions,” p. 106. ‘This Court has to maintain its authosity for The benefit of the f paedl and it can only do that, as I have before said, yy sup- porting its officers in the execution of the orders and processes of the Court,and not allowing disobedience and resistance to be the mode of pistes oe the pro- priety of the exercise of the discretion of this Court,” p.119. I shall but briefly notice a few of the many other points argued or suggested. These resolu- tions are in no proper sense of the term a legislative act; they are, in substance and effect, a contract, by which certain rights and privileges are granted to the associators upon certain terms and conditions, and for a stipulated compensation, to the exclusion of all others. It depends acy aa their will whether any new members shall be let into the association, and upon what terms, If soy of the clauses of the resolutions partake of a legislative or by-law charac- ter, they are few and unimportant, compared with those which relate to matiers purely of contract. The injunction order, by its fair meaning, Feapibited the Common Council ‘from granting to Sharp and others, the right or privilege, or in any manner au- thorizing them, to construct any railway in Broad- way. When the resolutions were passed the grant was made, and the authority was given. Nothing more was to be done, or could be done, by them, It cay remained to be seen whether the grantees would file their written acceptance, agreeing to con- form thereto. This was immediately filed. Assum- ing that the act is revocable, it is enough to say, that instead of there Le a Parpire manifested to revoke it, it was commit against the objections of the Mayor, in defiance of the injunction, and resolu- tions were passed rebuking the Judge who made the order for attempting to restrain the doing of the act. I think there is no just ground for saying that the injunction did not prohibit the acts subsequently done, and certainly none for saying, as the case now stands, that it was not understood as being a direct and positive prontison against doing what was in fact done. ‘If it be assumed that the resolutions would confer no authority to take up the pavement and construct a railway, and that all who should un- dertake to act under such authority would be wrong- doers, an injunction dente hem from doing such acts would not be void. That is the only pro- ceeding which could perce the necessity of @ mul- tiplicity of suits, and in actions sounding merely in damages it is obvious that no adequate redress could be obtained. It was only by the members of the Common Council that the inhibited nt could be made. It was by their acts only that the injunction could be violated. A corporation acts only by its officers and hee When enjoined from doing any- thing, and the injunction is disobeyed, the disobe- dience is not the act of the intangible and impalpa- ble statutory being bearing the corporate name, but of the individuals by whom it acts. Process is served on a corporation by serving it on some of its principal officers, which service is a good commence- ment of a suit against it, And an ordey which re- | strains a tion from doing any act, festrains | every officer of it from doing the thing prohibited, and if he does the act knowing that au order has been made Pe AS Ye, he is chargeable with the consequences of a deliberate violation of an order of the Court. If violated, it is by the officer or agent who performs the prohibited act. If the officers cannot be punished,no one can. The idea of ne- uestering the property of a municipal corporation lor disobeying an order prohibiting it from doing acts highly injurious to every citizen of the body litic, with a view to compensate those citizens for e injuries thus inflicted, is not intelligible. It is taxing them to pay losses occasioned by a breach of trust committed by those entrusted with exercising the taxing power for their benefit. First—Every inhabitant of the city is injured; and, by way of compensation, those who inflicted the injury tax them to its full amount to remunerate them for the loss. The statute provides that not only “parties to suits” may be punished for any “ diso- bedience to ht lawful order, decree, or process” of the Court, but that “all other persons” may be. 2 R, 8S. 534, 8, 1, sub, 1, 3, and 8. It fs laid down in books of practice, that, as “an in- junction to restrain waste, &e., is usually directed to the party, his servants, workmen, and agents, con- sequently, if his servants, workmen, or agents, hay- ing had notice of the injunction,do anything in- hibited by it, they will be guilty of a contempt.” 1 Barb. ch. p. 634, and notes. This rule is in terms, only of equivalent import, with the third subdivision of the section of the statute above cited. It is also laid down as settled practice, that, so far as the question of liability to punishment for a contempt of | court is concerned, it is enough that the party has actually notice of it, although it may have not been | regularly served on him. b 1, m,n and 0, and cases there cited.) ‘Neil va. Garrat, 1 Young and Coll. 97, is a recent authorit; to that effect. Matthews vs. Smith, 8 Hare, 331, is an authority that a party obtaining the injunction may be punished for publishing a notice respect- ich misrepresents the relative position or character of any of the parties to the cause. In ex parte Van Sandan, 1 Phillips, 445, a publica- tion speaking in less severe and disrespectfal terms of the judgment of the Court than the rebuking re- solutions did of the injunction order made in this action, was characterized by Lord Cottenham as “a ross contempt of the Court.” Lord Hardwick, in the case of the ‘* Genexal Evening Post, 2 Atk., 469," in enumerating the different kinds of con- tempts, states as one distinct head of contempt the “ scandalizing of the Court.” Such an act falls clearly within the spirit, if not the very letter, of 5 the appro- affidavit, and move 2R.8. sec. 10, sub. Id. sec. 1, sub. 8 ; 2 Daniels Ch. R., 127) 5 Price, 518 ; Waterman, | Eden on Injunction, p. 94 to 102-2. The effect of | not serving with the ection order a copy of the | affidavit on which it is granted, is, that a defendant May procure the order to be set aside for irregula- rity—-2 Paige, 394. An injunction order regularly granted, of which a party has knowledge, cannot be | treated as a nullity, and violated with impunity, be- fore the party obtaining it, in the exercise of due diligence, is able to serve it, nor after it has been served, because the service was not in all respects perfectly regular, where there is no pretence that the person or party disobeying it did not have fall and accurate information of the acts forbidden by it. T am of the opinion that no objection, ei form or substance, has been presented w exonerate Mr. Sturtevant from the consequences of a deliberate and marked disobedience of the order, or which would furnish a respectable apology for the Court for omitting to take such notice of it as is due to the interests of the panies and to @ proper administration of justice in behalf of parties to suits, and of the whole community, Fisuenies or rie Desrrict or Groversrer.— The editor of the Gloucester Tv/egraph has taken pains to collect the statistics of the fisheries of the district. of Gloncester, Mass. This district consists of the great fishing port of Gloucester, which has over three-quarters of the business of the entire district, and the out ports of Manchester, Rockport, and An- niequan. ‘The total number of vessels employed was 357 schooners, (of which Gloucester had 275,) manned by Mackerel, 53 men and boys. barrels, valu Codfieh. 85,000 quintals, do... "290,000 Halibut, 4,500,000 Ibs., do... wwe 112,500 Hake, pollock, &c., do.. « 43,000 Total........ $908,500 About nine hundred thousand dollars being the total roduct of the fisheries of the District of Gloucester. This aggregate greatly surpasses that of any district in the United States, with the exception of Barnsta- ble county, which comprises the whole of Cape Cod, with some fifteen or twenty towns. The port of Gloucester, besides its great fisheries, has a very large domestic and foreign trade, and its forcign imports rank the third in Massachusetts, From tir Frozen Norta.—Three members of the Minnesota Territorial Legislature, from Pembina, on the borders of the British possessions, in latitude 49, recently arrived at St. Paul. They were Mabon, one days on their passage, and sixteen days in reach- ing Crow Wing, to whic! int Mp Ritch with their dog trains. As Leach Lake the snow was four feet deep. The members from Pembina report that the crops have been excellent and the hunts produc- tive the past season in that twenty-one days travel out of the world region in the north-west. Interestina Fammiy Frvp—The Louisville Journal states that the trial of the parties surviving the last fray in Garrard county, Kentucky, between the Hills and the Evanees, has resulted in their ac- quittal. The different clans, with the exception of the Murphys and the Mays, have signed a formal treaty oF peace. By the various battles, assassina- tions, sieges, &c., among the parties, eight men and have been killed, several crippled and maimed for life, and forty-eight children left fatherless, The quarrel commenced about the year 1822, 1 Bath ch. pr. 603, (notes | Ou Boston Correspondence. Boston, Jan. 29, 1658, Close of the Month—Boston's Spoils— g the Liquor Law Orders— Rumors, §¢., Respecting Nasional Offices—Mr. Meagher in Boston— Maine Politics—The Constitutional Convention, §c. January is going out very handsomely, things being as good as any Christian man could reasonabigr ask for. There is as fair a degree of health, af things considered, as we generally have. The market is ensy—especially to those who have no par. ticular need for money. A very little mischief has been done at the State House, thus far, and doubte are beginning to arise as to whether the paper moneg advocates are to have their own way there altoge- ther. We are to have a new Senator, of a superior kind in the articles of eloquence and editorship, and whose late writings and acts show that he is not die posed to be behind the age. There is some ale’ to bt had, with its accompaniment of “fast driving,” full of encouragement to farriers and surgeons. Bual- ness is brisk, and more “ looming in the future.” we have not good reason to be thankful, it can onlg be because we are not so pfous as were our ancestors, but are like that celebrated Hebrew, Mr. Jeshurum, of whom it is written that his Kicking was the con- uence of his having grown fat. ‘he vote on Mr. Mortun’s order, on the by ped tion, whereby the committee of reference to so report as to strengthen the anti-rum law, and which passed the House by a. of five, ats very full sitting, is thought to have cut a ee Inet lank of the repealers. It was a test ion, and he Maine law would seem to be for at least ee TG! life, unless. matters should take's. very different turn from what they exhibit. The rummies have only themselves to thank for this state. of affairs. They have blundered from the beginning to the end of their management, and have not ever the sympathies of men who, though not rammies, are. still opposed to such legislation as that which the liquor men are seeking to do away with. On dit that the hunker leaders here have invited General Pierce to grant them an interview, and that he is coming to Boston next week, for that purpose, wie and W are a prowess Where ps 5. DB. Bradford, and several other accomp! gentlemen, will arrange his policy, form his , and make his appointments for him, in the most benevolent manner in the world, thus saving him @ deal of trouble. Whether he will come or not is more than I can say; but as a similar attempt to the General by the button failed not long since, I have my doubts in this instance. At present, men's minds are much exercised about a rumor, or some- thing stronger, that Mr. Crate, formerly member of Congress from Maine, but now of Boston, iste be our Collector. I do not think he has the — of a chance. The place will be given either to a Massachusetts or New Hampshire man, with the chances, just now, in favor of the latter. Mr. Hallett get it, it is feared that he would not act prudently; but he deserves something handsome, and would fill the District Attorneyship admirably. Gov- ernor Boutwell would have the best chance for the place but for his course on the liquor . bill, which has set all the mercantile im- terests Sastre ye - A iaSoge — have nerve enou; % fe’ e wi masses, which is what will be most Aeeetin cotaan There is not above a dozen democrats in the Customa House, and consequently there will be about a hun- dred subordinate places to dispose of, besides collectors, and higher officers. In the department there are only seven out ef the cohort of fifty-five. Inthe other posta there ia occasionally a strong democrat to be found. You see that there will be uncommon good = = der a new Collector, if he be the right kind and not di to shut his political friend ont ot the pasture. Our city democratic organization Titly to are, its supposed tet Jadgo, Bishop kel arige. 8 SU] ‘ur will receiee the recommendation of the Cones in the Legislature for the Collectorship, and that ef the State Committee ; algo, that he will be support — Up a for United Pitter Senator. ir. Meagher has made a very favorable impressiem: here. He is on all hands ‘admitted to be a magniéi- cent orator. The only enemies he has are among the Catholic clergy and ‘their immediate followers. _ The feeling of there ms towards him was made manifest at a ballof the Sarsfield Guards, a fine Irisite company here, on Thursday evening. He was apeak- ing, at the supper table, of the condition of and when alluding, in severe doi Sh to Louis leon, he was met by the cry of “ No, no!” and @ few hisses. The matter passed off, but it is a straw that shows that there are conflicting currents ia the moral atmosphere. From conversation I have had with Maine men, F infer that the “ere ee that State are in a very bad way indeed. The froubles that have been ae- cumulating there for years have come toa crisis, and good times will not again be known to the deme- crats until eee have been thoroughly beaten, which bids fair to take place next autumn. ‘The free soil State Central Committee have issued an address on the subject of the election of delegates to the Constitutional Convention, in which strongly recommend a thorough union with crats inal] places where it can be effected. As the democratic State Committee have done in this matter. There isa proposition bef Senate tore; oramend the law calling vention, and which will probably pass that where the fogies have full sway. In the House, not so certain that it will prove successfal. The ject isa grave one. The tate Bi is divided on The Boston Advertiser and the Courier are for form, while the Atlas and several influential | whig aoe take the opposite ground. If the | should get up a quarrel of an exciting character con- | cerning the constitutionality of the convention, coalition will gain something by it. The Senate is considering the work of the late re- | form Legislatures. I told Fae some time since, that | the anti-hanging law would probably be repealed; and | the Rite expressed has been justified the Senate having ye the law, and the thus far, evincing a disposition to join with it in the work. As Mr. Greeley has been prominent the foes of capital punishment, I recommend the | conduct of his political friends here te his especial consideration. There is a prospect of the session of the Legislatare being rather long, as almost a month without anything of consequence being done. the room in which the House sit is to be taken fee the Constitutional Convention on the 4th of ntlemen must move faster than they have ate, if they expect to get vied by that time. haps the whigs have no objection to so wp ogre the session as to bring the Convention and the House into collision, though the former mi, Faneuil Hall, I suppose, if hard pressed. ig 3 Bi E ; ant rid ik I H Darina Mat Roprery.—The Clagksville (Yenn.) Jeffersonian of the 26th, gives an account of a veg okeme of a mail on the route betweem Tarix and Clarksville, discovered on Monday, 24th ult. The mail not arriving at the proper time, the peat Mr. S gies left Santee to ascer- tain the cause. He found the mail ipped open, and the letters scattered about the woods, ten miles below Clarksville. The robbery is attributed to the mail carrier, Lovring. He was in New Providence on Thursday night, where he bought a new suit ef clothes, and is supposed to have left on board the steamer America, on Sunday night. The boat has heen telegraphed, and it is hoped he will be arrested. The following is a list of letters from which money was taken:—One from Dunlop & Porter, Paris, Tenn., inclosing $22 58; directions lost. One to Ez Graham, Philadelphia, inclosing $6, from a. Street, Paris, Tenn. One from A. P. Moffat, Troy, ‘Tenn., incloxing $14 to some editor; direction lost. One to A. H. Simmons & Co., inclosing $5 from J. W. Parker, Dover, Tenn. One to J. B. Fi Nashville, inclosing $1 from Thomas E. Gleason, Dresden, Tenn, One from M. ©. Bowles, Paris, Tenn., to Brody & Davis, inclosing $30 30. One from Jehn G. Priestley, Locust Grove, Weakly coun- ty, to T. B. Peterson, aie eae nciesing @8 One to J. B. Ferguson, Nashville, inclosing $1, J. W. Killgore, Como, Henry county, Tenn. One from R. Aveock & Son, Paris, Tenn., to C. Bi 5 Philadelphia, inclosing draft for $200 on New York. One to Fowler & Wells, New York, inclosi OT note onthe Union Bank of Tenn., No. 19,655, | e dated October 1, 1852, from Jane A. Jackson, Henry county, Tenn. One to J. F. Brennon, Louisville, Ky., from W. H. McLesky, inclosing $20. One to J. M. Dickson & Co., from A. M. Wall, r, Tenn, inclosing check for $250, drawn by E. Hi 4 Clarksville, Tenn., on Hewitt Lees & Co., New York, dated Jan. 15, 185 AX as ae pingidea ey tian (Mich.) Watchman gives an account ving of a son of a.Mr. Chubbs, living at that time im frisatted, in that State, and formerly of Ba: Yates county, some fourteen years since. The boy was six years of age at the time he was stolen bya party of boo gb Indians, who kept him for some time concealed, and afterwards sold him to a weatern tribe. The latter resold him to the Blackfeet In- dians, among whom he contiuned to live, and mar- ried a ee of ~— —_ er —s was totally ignorant of place of parents 5 dence during fourteen years, but succeeded finally im ascertaining it, and at once made a visit to his father, ving near Detroit—his mother ba died during his absence. He is attached to the Indian mee of life, and has no wish to ehange his habits or residence. Several white children are now in pow session of the Blackfeet, according to his » (4 were doubtless obtained in the same mode @ came into their hands. pire At Arrowsie, Me., on the 26th ult., by BP. Brot, kp of ‘about 200 tons, owned by Mesars. Swe Lunesta ‘ebb, John Lombard, and others, and ry Capt. | games Perkins, who will her, a