author: By the Court. Duer, J. Bosworth, J.

text:
    Thos. E. Davis & Courtlandt Palmer v. The Mayor, Aldermen, &c., of the City of New York.
    When an injunction is directed, to a corporation, it is operative and binding, not only upon the corporation itself but upon every person whose personal action, as a member or officer of the corporate body, it seeks to restrain or control.
    Every such person is as fully bound to personal obedience, as if personally named in the process, and, consequently, is just as liable for his disobedience.
    Upon any other construction, an injunction addressed exclusively to a corporation, would be a nugatory and senseless proceeding.
    Quere: Whether the omission to serve with an injunction, a copy of the affidavit upon which it was issued, is such an irregularity as releases the party, upon whom the service is made, from the duty of obedience ?
    The service of a copy of the swprn complaint or other affidavit upon which an injunction, directed to a municipal corporation, is founded, is properly made upon the mayor, as the chief officer, and for that purpose, the representative of the whole corporation.
    The service thus made is sufficient and effectual, as to every member of the corporate body whose personal action, as such, the injunction is designed to control
    When the injunction forbids the performance of a corporate act, it is violated by every member of the corporate body, by whose assent or co-operation, the act so forbidden is performed,
    Every such member is, therefore, individually guilty of a contempt, for which as an individual he may be justly punished.
    An injunction which forbids a corporation to make a particular grant, which it describes, is violated by the passage of an ordinance, or resolution, as a corporate act, which by its terms is meant to operate as the grant which is prohibited.
    Every member, therefore, of the corporate body who votes for the adoption of sueh an ordinance, with the intent that it shall become operative and effectual as a grant, commits a breach of the injunction, and, if the process is valid, is guilty of a contempt.
    The only defence that can be set up in sueh a case is, that the injunction upon its face was null and void, from tl)e entire want of jurisdiction in the court by which it was issued.
    No such want of jurisdiction can be alleged to exist where the injunction imposes a command, which the court, under any circumstances and upon any grounds, might rightfully address to the corporation and its members.
    When the jurisdiction exists, although the allegations in the complaint may be wholly insufficient to warrant its exercise, the injunction must be obeyed.
    This insufficiency is evidence of a want of equity in the complaint for which the injunction may be dissolved, but is no evidence of a want of jurisdiction, rendering the process void and justifying disobedience.
    The denial of the jurisdiction of the superior court to enjoin the corporation of the city front making a particular graut by ordinance or otherwise, is a denial of the power of a court of equity of general jurisdiction, under any circumstances and upon any grounds, to restrain a municipal corporation in the exercise of its discretionary powers.
    There is no distinction between a municipal corporation and any other corporation aggregate, in respect to the power of a court of justice over its proceedings.
    A municipal corporation cannot be excepted from the general provision in the constitution of the state which declares, that ‘’All corporations shall have the right to .sue, and shall be subject to be sued, in all courts, in like eases as natural persons.”
    A court of equity has no right to interfere with or control the exercise of a discretionary power, by substituting its own judgment for that of the party in whom the discretion is vested.
    It will not interfere, therefore, when the discretion is exercised within its proper limits, for the purposes for which it was given, and from the motives by which those who gave the discretion meant that its exercise should be governed.
    The court, however, is bound to interfere whenever it has grounds for believing that its interference is necessary to prevent abuse, injustice, or oppression, the violation of a trust, or the consummation of a fraud.
    Hence,—If the corporation of the city of New York has no power to grant to any person the privilege of establishing a railway in any of the public streets of the city; or, 2nd—such a railway, if established, would operate as an injurious monopoly; or, 3rd—would be a public nuisance; or, 4th—there are reasons for believing that the grant is about to be made from corrupt motives, the issuing of an injunction to forbid the grant, is not an interference with a legal discretion, but a proper and necessary exercise of jurisdiction.
    Held—Upon these grounds, that an injunction directed to the defendants, which commanded them not to grant to Jacob Sharp and others the privilege of constructing a railway in Broadway, was properly granted, and that those members of the common council, who, after the service of the injunction, had voted for an ordinance or resolution, making the grant that was prohibited, were guilty of a contempt for which they were liable to be attached.
    Municipal corporations possess only such powers as are expressly granted, or are necessary to the exercise of those which are so granted. (Bosworth, J.)
    Hence, in the appropriation of public funds or property their power's are limited, and when they attempt to make such an appropriation, for purposes not authorized by their charter or by positive law, their act, whether clothed with the form of legislation or not, is without authority and void. (Bosworth, J.)
    When a discretion is confided to persons appointed by law or to a municipal corporation, a court of justice will not attempt to control its exercise. (Bosworth, J.)
    But if those in whom discretionary powers are vested, tureaten and are about to commit a gross abuse of power to the injury and in fraud of the rights of individuals and of the public, there is no principle or decision that precludes the interference of a court to prevent the threatened injury, (Bosworth, J.)
    When a judge who grants an injunction decides erroneously upon the facts alleged in the complaint, his error has no bearing upon the question'of his jurisdiction, (Bosworth, J.)
    The proper course, in such'a case, of a defendant upon whom the injunction has been served, is to move for its dissolution, hut so long-’ as it exists he is bound to obey it. (Bosworth, J.)
    Jan. 15, 22, and 29;
    Feb. 5, 1853.
    As a corporation acts only through its officers and jgents, it is only by them that an injunction directed to the corporation can be violated. (Bosworth, J.)
    Hence, every such officer or agent is bound by 1 re injunction, and when he performs knowingly the act which is prohibited, is chargeable with all the consequences of wilful disobedience. (BosworIh, J,)
    Unless the officers who thus violate the injunction can be punished, there can be no penalty whatever, and every injunction directed to a municipal corporation may be violated with impunity. (Bosworth, J.)
    It would be absurd to sequester the property of the corporation, since this would be to inflict an injury upon the citizens whose rights are violated or endangered, and would, in effect, be punishing the aggrieved and not the guilty party. (Bosworth, J.)
    Motions for attachments against those members of the common council, who voted in favor of a grant which the corporation was enjoined from making, granted. (Special term, before Duer, J., assisted and advised by Campbell, Bosworth, and Emmet, J.J.)
    (Affirmed at general term by Duer, Bosworth, and Emmet, J.J. March 12, 1853.)

    This was a motion for an attachment against Oscar W. Sturtevant, one of the aldermen of the city, for an alleged contempt of the court, by his voluntary breach of an injunction directed to the defendants.
    There were similar motions against other members of the Common Council, noticed for the same day, hut that against Aider-man Sturtevant was first and separately heard.
    The motion was founded on-the complaint, injunction, and affidavits, and was resisted upon affidavits, on the part of the Common Council and its members who joined in the acts alleged to be a breach of the injunction.
    As the arguments of counsel, and in a measure the opinions of the judges, turned upon the allegations in the complaint, it is deemed necessary to set it forth in ■extenso.

    The plaintiffs; Thomas E. Davis and Courtlandt Palmer, in this suit, complain to this court, as well on their own behalf, as on behalf of all other corporators and tax payers of the city of Hew York, who may be affected by the several matters herein complained of, against the Mayor, Aldermen, and Commonalty of the city of Hew York.
    The plaintiffs, for a cause of complaint, respectfully show to the court: •
    That they are citizens of the state of Hew York) and residents and inhabitants of the city of Hew York, and have been such residents and inhabitants for several years last past, and are two of the corporators of said city.
    That they are severally owners of very considerable real estate situated on the street known in said city as Broadway, and elsewhere in said city; and are also severally owners of considerable personal estate in said city, subject and liable to taxation; and have been such owners of real estate for many years past, and have been severally annually taxed and assessed upon the same, and have severally paid such taxes and assessments annually, to an.amount exceeding two hundred and fifty dollars, levied towards and for the public expense of governing the said city and the inhabitants thereof.
    The plaintiffs show, upon information and belief, that the taxes levied and assessed by the defendants upon the real and personal property of the citizens and tax payers of said city for several years past, are as follows;
    For the year 1846, . »* . $1,654,323 00
    For the year 1847, $1,824,211 00
    For the year 1848, . . * . $1,992,150 00
    For the year 1849, . « . $2,302,564 00
    For the year 1850, . . * . $2,578,969 00 '
    For the year 1851, $2,258,150 00 ■
    For the year 1852, . . $2,561,650 00
    And the amoúnt estimated as required for the coming year, amounts'to the enormous sum of $3,972,195 00.
    That by reason of the corrupt and illegal acts of said defendants, in squandering the public moneys, in farming out and disposing of, in almost every imaginable way, the public property, contracts, rights, privileges, and franchises, in the manner hereinafter stated, and .in various other ways, the taxes of said city are annually increasing to an alarming degree. The effect has already been to induce large numbers of persons, doing and transacting business in said city, to remove out of the limits thereof, to avoid the onerous and increasing taxes annually imposed upon the property owners of said city.
    That the said city of Yew 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, Aldermen, and Commonalty of the city of Yew York. ,
    That all the lands, tenements, hereditaments, jurisdictions, liberties, immunities, franchises, rights, and privileges, held, exercised, and enjoyed by the said Corporation of the said city, were given, granted, and acquiree} by them under the said name of The Mayor, Aldermen, and Commonalty of the city of Yew York.
    That the said body politic and corporate, has perpetual succession, and is able in law to sue and be sued, implead and be impleaded, answer and be answered unto, defend and be defended, in all or any of the courts of this state, having jurisdiction over corporations, in all and all manner of actions, suits, complaints, pleas, causes and matters, and demands whatsoever, of what kind or nature soever, in as full and ample manner and form as other people of this state.
    That all the powers of the said Corporation are held by them, upon the trust that they shall be used and exercised for the benefit of the citizens and inhabitants of said city, without any fraud, corruption, evil practice, or deceit.
    That in and by the ninth section of an act of the Legislature of this state, entitled “ An Act to amend the Charter of the city of Yew York,” passed April 2d, 1849, it is declared, that the executive power of the Corporation shall be vested in the Mayor, the heads of departments, and such other executive officers as shall be created from time to time by law; and neither the Common Council, nor any committee or member thereof, shall perform any executive business whatsoever, except such as is or shall be specifically imposed on them by the laws of this state, and except that the Board of Aldermen may approve or reject the nominations made to them as thereinafter provided.
    That in and by section 12 of said act, it is further enacted: That there shall be an executive department in said corporation, under the denomination of the “ Street Department,” which shall have cognisance of opening, regulating, and paving streets, building and repairing wharves, &c.
    That by section 19 of said act, it is, among other things, enacted: That no member of the Common Council, Head of Department, Chief of Bureau, or Deputy thereof, shall be directly or indirectly interested in any contract, work or business, or the sale of any article, the expense, price, or consideration of which is paid from the city treasury, or by any assessment levied by any act or ordinance of the Common Council.
    That in and by the eleventh section of an act of the Legislature, entitled “ An Act to amend the Charter of the City of New York,” passed April 7th, 1830, it is further enacted: That no member of either board of the Common Council shall, during the period for which he is elected, be directly or indirectly interested in any contract, the expenses or consideration whereof are to be paid under any ordinance of the Common Council, except emoluments or fees which he is entitled to by virtue of his office.
    And the plaintiffs further show, that, under the laws of this state, the said corporation are commissioners of highways, and as such, have the power of making repairs upon said streets, and to make them useful and convenient for all the inhabitants of said city, and travellers and sojourners therein.'
    That said corporation have not, either in or by their charter, or by the laws of this state, or otherwise, any power whatsoever to give or. grant to any person or persons whomsoever, any particular or exclusive privilege to use any street or streets, or any part of any street or streets in said city; or to erect or put up any building, work, or structure, or any obstruction whatsoever in the said streets, or any of them, or to do any other act which might, in, any manner, interfere with the free and common use thereof by any of" the inhabitants of, or travellers in said city, or which might become a nuisance.
    The plaintiffs further show, that, on the 16th day of July, 1852, a petition, of which, a copy is annexed thereto., marked A, and forming part of this complaint, was presented to said Common Council, through their said board of aldermen, for an ordinance authorizing the petitioners who signed the same, to establish and construct a railroad in said Broadway.
    That, afterwards, numerous remonstrances were presented to said board of aldermen, by the principal owners of property on Broadway, against such project.
    The plaintiffs further show, that said Broadwayis the principal street or thoroughfare in said city. That the greater part of that portion of said street which lies between the Battery at the south, and Union Place at the north, a distance of about three miles, is now devoted to trading and commercial purposes ; and a large portion of the trading and commercial business of the said city, greater than that of any other street, is now transacted in said street, and the small portion of the street which is yet used for dwellings, is rapidly changing its character, and stores, shops, and other buildings for trading and commercial purposes, are rapidly taking the place of dwelling houses,
    The plaintiffs further say, on information and belief, that said street is now constantly thronged with all lands and descriptions of vehicles and passengers. That the portion of said street located below Canal street, a distance of about a mile and a half from said Battery, is more thronged and crowded than any other part of said street or said city. That the average width of the carriage-way in said Broadway does not exceed forty feet; that at Maiden Lane, it does not exceed thirty-nine feet, and from thence it gradually narrows to thirty-seven feet at Wall street; from thence to about forty feet below Rector street, it narrows to thirty-four feet; from thence to about two hundred and fifty feet below Rector street it gradually widens to not over thirty-seven feet; at one hundred feet farther down, it is thirty-eight feet two inches, and thus gradually widens to not exceeding forty feet two inches in front of Mo. 42 Broadway ; and at no point between the Park and Union Place, does said carriage-way exceed forty-two feet in width.
    The plaintiffs farther show, that for the parpóse of putting the said carriage-way in the most perfect order and condition, and to facilitate the great and increasing travel thereon, which is at this time far beyond that of any other street in said city, the said corporation have very recently caused about two miles and a half thereof, extending (with the exception of a few blocks) from the Battery to Eighth street, to be paved with a very durable and expensive pavement, known as the Russ pavement, consisting of square blocks of granite, carefully laid upon a concrete bed of hydraulic cement, mixed with gravel and sharp stones.
    That said corporation have, as the plaintiffs are informed and believe, expended upon said pavement, and paid, or are bound to pay therefor, out of the city treasury, upwards of $500,000. By means whereof, a great burden has been brought ;ipon the tax payers of said city, including the plaintiffs.
    The plaintiffs further show, that before any final action was had upon said petition, and while the same was before the Common Council for consideration, various other petitions and propositions were presented to them by men of wealth, character, and standing, residents of said city, fully and abundantly able to fulfil and perform their engagements and promises, asking for the privilege and authority to construct and establish such a railroad in said Broadway, and run cars and carry passengers, upon the following terms:
    1. One of said propositions was, to give for such authority and privilege, $1,000,000, payable in ten annual instalments, and agreeing to charge each passenger only three cents fare.
    2. Another of the said propositions was, to give for such authority and privilege, the sum of $1,666 66 for each-car run thereon, and agreeing to charge each passenger only five cents fare.
    3. Another of the said propositions was, to give for such authority and privilege, as a license fee for each car, any sum imposed, not exceeding $1,000 per annum, and agreeing to charge each passenger only three cents fare.
    4. Another of the said propositions was, to give the corporation, for such authority and privilege, in lieu of license fees, one cent for each passenger thereon, and agreeing to charge each passenger only five cents fare.

      5. Another of the said propositions was, for such authority and privilege, to charge each passenger only five cents fare; and also pay into the city treasury, for the benefit of said city, a bonus of $100,000 per annum.
    6. Another of the said propositions was, for such authority and privilege, to conform and comply in all respects with the covenants and conditions set forth in a resolution of which a copy is hereunto annexed, marked B, and further agreeing therefor, to reduce the rate of fare, mentioned in the 12th subdivision of said resolution, from five cents to three cents for each passenger.
    The plaintiffs further state, upon information and belief, that the offer contained in said proposition, numbered 2, would, if accepted, produce a sum exceeding $250,000 per annum, for the benefit of said corporation, and the relief of the tax-paying citizens, while each passenger would be charged but five cents fare.
    That the offer contained in said proposition, numbered 4, would, if accepted, produce a sum exceeding $300,000 per annum for the benefit of said corporation, and the relief of the tax-paying citizens, while each passenger would be charged but five cents fare.
    That the offer contained in said proposition, numbered 5, would, if accepted, produce the sum of $100,000 per annum, for the benefit of said corporation, and the relief of the tax-paying citizens, while each passenger would be charged but five cents fare.
    That the offer contained in said proposition, numbered 1, would, if accepted, produce the sum of $1,000,000 for the benefit of said corporation, and the relief of the tax-paying citizens, while these plaintiffs, and other persons riding in said cars, would be charged but three cents fare, and be thereby materially benefited.
    That the offer contained in said proposition, numbered 3, would, if accepted, produce the sum of $150,000 per annum, for the benefit of said corporation, and the relief of the tax-paying citizens, while these plaintiffs, and other persons riding in said cars, would be charged but three cents fare, and would be thereby materially benéfited.

      That the offer contained in said proposition, numbered 6, would, if accepted, materially benefit these plaintiffs, and other persons riding in said cars, by establishing the rate of fare at three cents, while the corporation and said tax-payers and citizens would derive all benefit which can or may be derived from the covenants and conditions mentioned and set forth in said resolution annexed, marked B.
    And the plaintiffs further show, that in and by the charter of said corporation and the laws of this State, the legislative powers of said defendants are vested in the boards of aider-men and assistant aldermen thereof, and monthly sessions of said boards are authorized to be held, commencing on the first Monday of each month, and to continue for such period as in their opinion the public business may require. But neither board is authorized to adjourn for a longer period than three days, except by a resolution to be concurred in by the other body.
    The plaintiffs further show, that the last November session of said boards commenced on the first day of said month; on which day said board of aldermen met, and adjourned to the 4th then instant. On said 4th day of November, said board of-aldermen again met, and adjourned to the 8th then instant, without the concurrence of said board of assistant aldermen by resolution or otherwise; whereby and by means whereof, as the plaintiffs claim and insist, the session of said board of aldermen, and their powers as a legislative body, and part of said Common Council, for and during said month of November, ceased and determined on said 4th day of November, 1852.
    Notwithstanding which, said board of aldermen afterwards, and on the 19th day of November, 1852, met, and under the color of being assembled as a board of aldermen and co-ordinate branch of said corporation, adopted a resolution, of which a copy is hereunto annexed, marked B, and which forms a part of this complaint.
    That afterwards said resolution was transmitted to said board of assistant aldermen, for their concurrence. That on the Gth day of December, 1852 (being the first day of the session for that month), the said board of assistant aldermen did, notwithstanding the remonstrances and petitions aforesaid, adopt said ' resolution, and order the same to he transmitted to the mayor of said city, for his approval.
    That subsequently, and on December 18th, 1852, said mayor returned said resolution to said board of aldermen, without his approval, and accompanied by his objections thereto. A copy of such objections is hereunto annexed, marked 0, and forms a part of this complaint.
    The plaintiffs further show, upon information and belief, that the several and respective members -of the said boards who voted in favor of said resolution and grant, being a majority of the members elected to each of said boards, have given out, threatened, and declared, that they intend to adopt and pass 'said resolution, notwithstanding the objections of said mayor, and that they intend to keep said boards in session during the month of December for that purpose ; and to that end have met and adjourned (frequently for want of a quorum for the transaction of business), from time to time, in anticipation of the coming in of said mayor’s objections, and with the intent of protracting them session, for the purpose of passing and adopting said resolution, notwithstanding their compensation for service in their respective boards terminated after the first eight days of their session—and which have long since expired; and these plaintiffs are apprehensive that said resolution will be passed as aforesaid, as soon as the said hoards can by law act on the same.
    The plaintiffs further show, on information and belief, that the grantees or persons named in said resolution have given out and alleged, that upon said resolution being adopted by said boards, they intend forthwith to accept the same in writing, as therein provided, and will thereupon proceed to break up the pavement, lay down the said railway, and establish said railroad in said Broadway.
    The plaintiffs further show, that the laying down of such a railway, and the establishment of a railroad in such a thronged thoroughfare as Broadway, is as yet an untried experiment; and the same cannot, as the plaintiffs are informed and believe, be laid in said street without disturbing and thereby destroying said ■ Russ pavement so recently laid therein, at such a vast expense to the tax payers of said city.

      The plaintiffs further show, upon information and belief, that the laying of such railway would require at least four months, if prosecutéd with diligence; during all which period, said street would be rendered almost wholly impassable, to the great ' injury and detriment of these plaintiffs, and other persons having occasion to use and travel in said street.
    The plaintiffs further say, that they, and all other citizens and travellers, now have a right to the free and common use of the whole of the carriage-way of said street, with their carts, carriages, and other vehicles ; and that establishing a railroad in said street will be appropriating the street to a new and unauthorized use, and one which is exclusive in its nature, to the great injury and damage of those who now have a free and common right therein as aforesaid.
    The plaintiffs further show, that said street is too narrow to admit the establishing of such railway, consistent with the rights, privileges, and interests of the citizens and tax payers of said city, and other travellers in said street. And, further, the plaintiffs are advised and believe, and therefore charge, that such railway, if constructed, will be a public nuisknce in said street.
    And the plaintiffs further aver, on information and belief, that said corporation has no right, power, or authority, under any law of this state, or otherwise, to establish or construct such a railroad in said street, nor can they grant the right or privilege to construct and establish such a railroad therein to any person or persons.
    The plaintiffs also aver, claim, and insist, that if said corporation have the right to grant the use of said street to private individuals for such a purpose as laying and establishing a railroad therein, then, and in such case, it certainly is the duty of said corporation, and they have the right to impose any proper terms and conditions upon which such grant shall be made, and should consult the true interests of said city by accepting those voluntary offers and terms made by responsible individuals, which, while they insured equal accommodation to said citizens, tax payers, travellers, and the public generally, would secure the highest compensation, and produce the greatest revenue to said city,

      The plaintiffs also aver, claim, and insist, that a grant to the individuals named in said resolution upon the terms, stipulations, and conditions named therein, will be, if unrestrained, a fraud upon the travelling public and said citizens, because it permits the parties named therein to charge five cents fare for each passenger; whereas unexceptionable and worthy citizens of abundant means and ability, have offered, and are willing to accept said grant upon the same terms, stipulations, and agreements, with a permission to charge only three cents passenger fare.
    And further, that a grant to the individuals named in said resolution, upon the terms, conditions, and stipulations named therein, will be, if unrestrained, a fraud upon the tax payers of said city, including the plaintiffs, because many other unexceptionable and worthy citizens of said city, of abundant means and ability, have offered, and are willing to accept said privilege of constructing and establishing such railway,- and pay therefor into the city treasury annually, many hundred thousands of dollars, and which would materially diminish the annual taxes levied and imposed in said city—said resolution only permitting the imposition of the nominal sum of $20 per car, by way of license fee; whereas $1000 and upwards, by way of license fee on each car, has been voluntarily offered as aforesaid, for such permission, grant, and privilege. '

    The plaintiffs further claim and insist, that the adoption of said resolution should be restrained, because it attempts to bind the said corporation for ever; and thus limit and control the legislative power of said Common Council.
    And also, because it attempts to create an odious and unjust monopoly, not within the legislative powers of said corporation or Common Council.
    The plaintiffs are also advised and believe, and therefore charge and insist, that if the said corporation are authorized to construct, or allow .of the construction of such railroad, in the manner provided by said resolution, such authority, and all contracts, stipulations, and agreements in relation thereto, are within the province of, and are to be exercised by one of the executive departments of said corporation, known as the “ Street Department.”

      The plaintiffs further, upon information and belief, aver that all the said acts and doings of said Common Council, in relation, or tending to the establishment of such railroad, are in bad faith, and in direct opposition to the interests of said corporation, and of the citizens, tax payers, and other inhabitants of said city, and of travellers therein.
    The plaintiffs therefore, on their own 'behalf, and on behalf of all other tax-paying citizens and inhabitants of said city, demand that an injunction order may be issued by this court, directed to the said defendants, the mayor, aldermen, and commonalty of the city of Hew York, their counsellors, attorneys, solicitors, and agents, restraining and enjoining them, and each and every of them, from granting, or, in any way or manner, authorizing Jacob Sharp and others,- the persons named in said resolution, or their associates, or any other person or persons whomsoever, the right, liberty, or privilege of laying a double .or any track for a railway in said Broadway, from the South Ferry to 57th street, or any railway whatsoever in said Broadway, or of breaking or removing the payment, or in any other manner, to obstruct the said street, preparatory to, or for the purpose of laying or establishing any railway therein, until the further order of this court in the premises.
    And the plaintiffs further demand, that this court will make such injunction order perpetual against the said defendants, or afford the plaintiffs, for themselves, and others, on whose behalf this suit is brought, such other or further proper, appropriate, and adequate remedy and relief, as the case herein presented entitles them.
    The following is the resolution pending in the Common Council to which the complaint refers:
    Resolved,—That Jacob Sharp, Freeman Campbell, William B. Reynolds, James Gaunt, I. Hewton Squire, Wm. A. Mead, David Woods, John L. O’Sullivan, Wm. M. Pullis, Jonathan Roe, John W. Hawkes, James W. Faulkner, Henry Dubois, John J. Hollister, Preston Sheldon, John Anderson, John R. Flanagan, Sargent Y. Bagley, Peter B. Sweeney, Charles B. White, James W. Foshay, Robert E. "Ring, Thomas Ladd, Conklin Sharp, Samuel L. Titus, Alfred Martin, D. R. Martín, William Menzies, Charles H. Glover, Gershon Cohen, and those who may for the time being be associated with them, all of whom are herein designated as associates of the Broadway railway, have the authority and consent of the Common Council to lay a double track for a railway in Broadway and Whitehall or State street, from the South Ferry to Fifty-ninth street; and also, hereafter, to continue the same, from time to time, along the Bloomingdale road to Manhattanville, which continuation they shall-be required, from time to time, to make, whenever directed by the Common Council, the said grant of permission and authority being upon and with the following conditions and stipulations, to wit,
    First.—Such tracks shall be laid under the direction of the street commissioner, in or near the middle of the street, the outer rails not exceeding twelve feet six inches apart, and the rails being laid flush and even with the pavement, the inner portion of the rail being of equal height with the outer, with grooves not exceeding one inch in width, or such other rails as shall be approved by the street commissioner or the Common Council, on such grades as are now established, or may hereafter be established, by the Common Council; and the said associates shall keep in good repair the space between the said rails, and one foot on each side; and no motive power, excepting horses, shall be used below Fifty-ninth street.
    Second.—The said associates shall place new cars on said railroad, with all the modern improvements, for the convenience and comfort of passengers. And they shall run cars thereon, every day, both ways, as often as the public convenience may require, under such directions as the Common Council may, from time to time, prescribe. Said cars, with horses attached, not to exceed forty-five feet in length.
    Third.—The said associates shall, in all respects, comply with the directions of the Common Council in the building of such railway, and in the running of the cars thereon.
    Fourth.—At the Bowling Green, the said associates may divide the two tracks aforesaid, running one of them down Whitehall street, and the other down State street, should they deem such division necessary; and also, whenever in the course , of their route the sgid road shall pass a public square, it may be carried with a single track, round both sides of said square, instead of only one, for the better accommodation of the public on both sides thereof.
    Fifth.—The said associates shall be required to procure a depot, at some place near or at the lower part of said route, for the purpose of keeping withdrawn from Broadway su<?h proportion of the cars coming down in the morning as shall not be required for the accommodation of the return travel until the afternoon; and also, they shall be required to stop a portion of the cars at the Park, and to send down below that point no greater proportion of the whole number employed, than shall be found by experience to be requisite for the accommodation of the travel below that point, subject to regulation by the Common Council.
    Sixth.—The cars shall be so constructed as not to make provision intended for standing passengers to crowd upon the seated passengers; and also, when all the seats are full, the cars shall not be stopped to take in more passengers to be crowded into the said seats ; a flag being displayed in front of the car to give notice that all the seats are full.
    Seventh.—The said cars shall not be allowed to stop, so as to obstruct a crossing, nor to stop moré frequently in a block (unless the same be of extraordinary length) than just beyond its first crossing, except in rainy weather.
    Eighth.—The said associates shall keep an attendant, distinguishable by some conspicuous mark or badge, at every such appointed stopping place, in all parts of the street usually much crowded with vehicles, whose duty it shall be, with attention and respect, to help in and out of the cars all passengers who may desire such assistance, and in general to watch over the safety of passengers from all dangers of passing vehicles.
    Hinth.—The said associates shall be required to keep, or cause to be kept in readiness, a number of sleighs adequate to the public accommodation, when the travel of the cars may be obstructed by snow.
    Tenth.—The said associates shall cause the said street to be well swept and cleaned every morning, and the sweepings carried away, before eight o’clock in summer, and nine o’clock in winter, except Sundays; this provision applying to the whole of the street south of Fourteenth street, above which point the same shall be done as often as twice a week when the weather will permit.
    Eleventh.—No higher rate of fare "shall be charged for the conveyance of passengers from any one point to any other point along said route, and such combined system of routes as may hereafter be adopted by means of cars and transverse omnibuses, than five cents for each passenger.
    Twelfth.—In consideration of the good and faithful performance of all these conditions, stipulations, and requirements, and of such other requirements as may hereafter be made by the Common Council, for the regulation of the said railway, as aforesaid, the said associates shall pay, for ten years from the date of opening the said railway, the annual license fee for each car, now allowed by law, and shall have a license accordingly; and after that period, shall pay such amount of license fee, for further licenses, as the Corporation, with permission of the Legislature, shall then prescribe; or, in default of consenting thereto, shall surrender the road, with all the equipments and appurtenances thereto belonging, to the said Corporation, at a fair and just valuation of the same.
    Thirteenth.—Within a reasonable time after the passing of this resolution, the said associates, or a majority in interest thereof, shall form themselves into a joint stock association, which association shall be vested with all .the rights and privileges hereby granted, and shall have power, by the votes of at least a majority in interest of the associates, to frame and establish articles of association and by-laws, providing for the com struction, operation, and management of the said railway, the mode of admitting new associates, and of transferring the shares or interests of any of the associates to new associates or assigns, the number, duties, mode of appointment, tenure, and compensation of officers, the manner of making contracts, amending the by-laws, and calling in assessments from the associates, and generally the means and mode of establishing the railway and carrying it on, and of controlling and managing the propertv and affairs of the said association.
    Fourteenth.—The association shall not be deemed dissolved by the death or act of any associate, but his successor in inte-? rest shall stand in his place; and'the right of each associate shall depend on his own fulfilment of the conditions imposed . on him by these restrictions, or the articles of association and by-laws of the association; and in case of his failure to fulfil the same, after twenty days’ notice in writing to him so to do, his rights shall be forfeited-to and devolve upon the remaining associates. And said associates may, at any time, incorporate themselves under the general Railroad Act, whenever two thirds in interest of the associates shall require it.
    Fifteenth.—The associates, whose names are set forth in this resolution, shall by writing, filed with the clerk of the Common Council, signify their acceptance thereof, and agree to confgrm thereto-; and all new associates or assigns, duly admitted according to the provisions of the" articles of association, and bylaws, shall be deemed parties to such agreement. .
    Copies of the petition of Jacob Sharp and others, and of the objections of the mayor to the passage of the above resolution, although annexed to and forming a part of the complaint, are omitted as immaterial.
    Upon the complaint, Mr. Justice Campbell, on the 29th of December, 1852, granted the following order of injunction:
    “ It appearing from the complaint in this action, duly verified, that the plaintiffs are entitled to the relief demanded in the said complaint, and that such relief consists in restraining the defendants, as hereinafter provided :
    “ Eow, therefore, in consideration of the premises, and of the particular matters in said complaint set forth, I do hereby command and strictly enjoin the said defendants, the Mayor, Aider-men, and Commonalty of the city of Eew York, their counsellors, attorneys, solicitors, and agents, and all others acting in aid or assistance of them, and each and every of them, that they and each of them do absolutely desist and refrain from granting to, or in any maimer authorizing Jacob Sharp and others (the persons named in the resolution of which a copy is annexed to said complaint, and marked B.) or their associates, or any other person' or persons whomsoever, the right, liberty, or privilege of laying a double, or any tract for a railway in the street known as Broadway, in said city of Eew York, from the South Ferry to Fifty-seventh street, or any railway whatsoever in said Broadway; and from breaking or removing the pavement in said street, or in any other manner obstructing said street preparatory to, or for the purpose of laying or establishing any railway therein, until the further order of this court in the premises.
    “ Wm. W. Campbell.”
    It appeared from the affidavits on the part of the plaintiff, that a copy of the injunction had been duly served on each member of the Common Council, and a similar copy, together with a copy of the summons and complaint, duly served on the Mayor. That, after the service of the injunction, the board of aldermen met on the evening of the 29th December, and by the votes of a majority of its members, passed and adopted the resolution and grant referred to in the complaint and in the injunction. That Alderman Sturtevant was one of this majority, and that upon his motion, the board, upon the same evening, passed the following preamble and resolutions :
    Whereas, the Hon. William W. Campbell, one of the judges of the Superior Court, has, without color of law or justification, assumed the prerogative of directing and controlling the municipal legislation of this city, by issuing an injunction prohibiting the Mayor, Aldermen, and Commonalty of the city of Hew York, from performing a legislative act, supposed by him to be probably about to be performed, and summoning the said Mayor, Aldermen, and Commonalty to appear before him, and show cause why the said injunction should not be perpetual. And whereas, the said injunction issued at the close of a session, and throwing forward the period of such showing of cause beyond the expiration of the session, in regard to a measure which has been pending for months, bears on its face a character of indirection not less unjustifiable and not less unworthy of the judiciary than the usurpation of authority and jurisdiction which is contained in such an attempted injunction itself. And whereas, if the legislative act in question should prove, on judicial investigation, to be open to any objection or illegality or unconstitutionality, there would always exist ample opportunity for restraining its execution by injunction upon the first proceedings of the parties authorized to carry the'same into effect. And whereas, if such a precedent of unwarranted and unwarrantable interference with the rightful functions, powers, and duties of a legislative body, attempted .by a judge, be submitted .to, or tolerated without just rebuke, not only will the whole municipal legislation of this city, with its half million of inhabitants, be subjected to the caprice or interested views of any judge who might be found willing to come forward with attempted vetoes in the form of injunctions, but the next natural step of judicial usurpation will be to arrest and veto in similar manner, the legislation of the state, or that of Congress, on any judge’s opinion of constitutionality, expediency, or motive, at the close of a session, when all business of importance is usually completed. And whereas, the reasons alleged therefor are equally untenable in law and unfounded in fact—
    ResoT/oed, That as this Common Council will not encroach on the lawful jurisdiction and powers of any other public authority or body, so also will it never allow any other to interfere unlawfully with its own, which it holds from the people, and which it is bound to exercise, according to its own judgment, and on its own responsibilities, and not according, to the views and directions of any judge or other individual citizen; and that it is the duty of the Common Council on this unprecedented occasion, to protect its own dignity and the rights of the people of the city of Eew York, its constituency, by utterly disregarding the said injunction upon its legislative action, and declaring its sense upon the same.
    Besol/oed, That the Common Council have an equal authority and right to suspect and impute improper motives to any intended judicial decision of any judge, and consequently to attempt to arrest his action on the bench, as such judge has in regard to the legislative action of the Common Council.
    Besol/oed, That in reference to the measure against which the injunction in question is directed, it was adopted by the Common Council on grounds of public expediency, justice, and right, for the best good of the city, both in regard to the accommodation. and service of the public, and in regard to the interests of the city treasury, and also on petitions from more than thirty thousand citizens, and that nothing has yet appeared which shakes the ground on which it was so adopted, and that we shrink from no discussion or investigation, judicial or otherwise, into the foundations of these grounds, and the reasons of our action, collectively or individually. Which was adopted by the following vote, viz.:
    Affirmative—Aldermen Moore, Haley, Sturtevant, Oakley, Barr, Tweed, the President, Aldermen Brisley, Smith, Bard, Denman, Cornell, Feck—13.
    Negative—Aldermen Boyce, Francis, Ward, Doherty—-4.
    A number of affidavits were read on the part of the defendant, Sturtevant, but as their contents were deemed irrelevant by the court, as denying only some of the allegations in the complaint, and not the facts relied on as proving the contempt, they are omitted.

      J. Van Buren and G. C. Bronson, with whom were G. Wood, J. W. Gerard, and J. R. Whiting, argued
    in support of the motion for an attachment, and insisted upon the following points and authorities:—
    I. The court had jurisdiction over the parties, and over the subject matter of the complaint, and having jurisdiction, the question whether the order for an injunction was made upon proper and sufficient grounds, does not arise upon this motion. 1. The court has jurisdiction over corporations as well as over natural persons. 2. The plaintiffs complained that an injury was about to be done to their legal rights by a wrongful act of defendants, and prayed that the defendants might be restrained from doing the act. Nothing further was necessary to give jurisdiction, and it was then for the court to judge and decide, whether a proper case was made for granting the relief which the plaintiffs asked. And when a court has jurisdiction, its judgment or order is never void, however erroneous it may be. 3. The resolution which the Common Council was about to pass, was, in no proper sense of the term, an act of legislation. It was not a law, but a contract. It was what the Common Council itself called a grant. But if it was material to consider whether it was a law or grant, that was a question upon which the court was to judge; and if it erred in judgment, still its order was valid' until it should be reversed or vacated. 4. If the resolution which the Common Council was about to passynay properly be regarded as an act of legislation,, it was still a question for the court to decide whether relief might not be granted against an injury attempted to'be done in that form: and whether the judgment was right or wrong, it was not void. 5. We shall contend, at the proper time, that there is no color for the pretence set up by the Common Council that the power to make by-laws and ordinances for the government of the Corporation and inhabitants of the city, stands on the same footing as “ the legislation of the state, or that of Congressand that in such matters they are above and beyond the reach of the judiciary. We shall maintain that the Common Council may be controlled when it is about to do an injury to third persons, although the wrongful act may take the form of a by-law or ordinance. And clearly this is so when the thing which the Common Council proposes to do, though in the form of a law, is in truth a grant of the property or privileges of the city. But it is enough for the present to say that whether it was proper to enjoin the Corporation in this case was a question for the court to decide, and whether its judgment was right or wrong, it was valid, until reversed or annulled. •
    H. So long as an injunction remains in force, it must be obeyed, although it may have been erroneously, or even irregularly issued (2 Paige, 326, 329, The People v. Spalding; 3 Paige, 253, Higbie v. Edgerton; 4 Paige, 444, Sullivan v. Judah; 4 Paige, 163, Hawley v. Bennett; 4 Paige, 450, Rogers v. Patterson: 7 Paige, 364, Lansing v. Easton; 3 Sandf. S. C., 162, Capet v. Parker; 1 Barb. Ch. Pr., 634, 635, 636; 4 Howard’s P. R., 225, Krom v. Hogan; 6 Howard’s P. R., 124, Smith v. Reno; 6 Ves., 109, Marquis of Downshire v. Lady Sandis; Eden. Injunc., 102; 2 Cases in Chancery, 204, Woodward v. King).

    IH. The injunction to restrain the making of the grant was properly addressed to the Corporation; and when served, the order was operative upon every branch and official member of the corporate body (1 Ld. Ray. 559, 560, The King v. The Mayor of Abingdon; 2 Salk. 669, S. C.; Comb. 213, Harcourt v. Fox; 2 Kyd on Corp., 347, 349; 8 Mod. 111, The King v. The Mayor and Burgesses of Tregony).

      IV. There was a breach of the injunction by every member of the Corporation who, after the service of the order, voted to make the grant. Every such member acted in direct contempt of the authority of the court, and the commandment of the law (Comb. 326, 327, Smith v. Butler; Cooper Ch. Cas. 77, Agar v. Regent's Canal Company; 1 H. Black. 207, The Mayor, &c. of London v. The Mayor, &c. of Lyme Regis; 1 Barb. Ch. Pr. 636, Bank Commissioners v. City Bank of Buffalo; 5 T. R. 607, 622, The King v. Holland; 8 Wend. 203, 209, Kane v. The People; 2 Kyd on Corp., 350; Angel & Ames on Corp., 681; Code, § 218; 2 R. S., 534, § 1 sub. 3, 8; § 20, 21, 22, 25, 26; 7 Hill 302. Spalding v. The People).

      Y. When any one acts in an official character in disregarding an injunction, or order of the court, it is not the officer, but the individual, who is punished for the contempt.
    VI. This is the most aggravated case of contemning the court and its process that has happened in modern times ; and if it is' not followed by an exemplary punishment, it will be impossible to maintain the administration of justice in future.

      D. D. Field and C. O'Conor, with whom were E. Sandford, F. B. Cutting, and R. I Dillon, resisted
    the motion on the following grounds:
    First.—The injunction was not intended to restrain, does not by its terms apply to, and does not purport to restrain the Common Council from re-considering the resolution in question, and agreeing to pass or to reject the same.
    I. It rejects by implication the proposal of the complaint that such a restraint shall be imposed. This, it is presumed, was because the grounds on which the plaintiffs sought, to impose it were frivolous. All acts of this nature are revocable at the pleasure of the council. (Britton v. Corp. of N. Y., Oct. term, 1844; Brick Church v. Mayor &c. 5 Cow. 542; S. P. 7 Cow. 604.
    II. Neither the charter nor any known practice of the courts has ever subjected to preliminary judicial restraint the mere legislative action of the Common Council. Consequently, it could not he supposed that the court intended to exercise such a power, unless express words to that effect were found in the injunction, or such construction of its terms was unavoidable. 1. Where a legislative act is within the power and discretion of a municipal council, it is against all precedent for the courts to interfere. English chancery disclaimed jurisdiction in such cases. (Frewin v. Lewis, 4 Myl. and Cr. 249; S. C. 9 Simons, 66.) 2. Where such act is not within the legislative power, it is void on its face ; and no injunction against passing it could ever be necessary. (Wiggin v. New York, 9 Paige, 23; Mayor v. Meserole, 26 Wend. 132; 3 Comst. 430.) 3. The mere laws or ordinances of a municipal body can never be grievances in themselves, especially if revocable at pleasure. It is only the execution of them that can prejudice. (Petiggrew & Sherman v. Corpr. of N. Y., Superior Court.) 4. In some respects, such jurisdiction would be impracticable. For instance, the Mayor could give his approval by simple inaction ; and surely preliminary injunction or mandamus could not be allowed commanding him to disapprove a measure. (Act of 1830, p. 127, § 14.) 5. It is by imperative terms made the absolute duty of the council, on the return of an act with the Mayor’s objections, to record the objections, publish them, and re-consider the act. (Act of 1830, p. 127, §§ 12 and 13.) 6. There is no precedent of an injunction to restrain a municipal corporation from adopting a resolution, or to restrain a party from steps merely initiatory, which in themselves vest no right.
    Secondly.—The utmost object and intent imputable to the injunction was to restrain the consummation of a right or title in the intended grantees or licensees. It may have pointed to, and intended to restrain the act which was to vest in them an authority or license. The determination or resolution of tl^e council had no such effect. In order to vest any power or authority under the resolution, it was necessary that the licensees should tender, and that the clerk, as an executive- officer of the Corporation, should file an agreement in writing, to accept the conditions. How far an injunction aiming at this result could be made effectual without including Sharp and his associates as parties, and restraining them, it is unnecessary to inquire. (Tradesmen's Bank v. Merrit, 1 Paige, 302; Johnson v. Harris, 7 Vesey, 257; 4 Johns. Ch. R. 25.)
    I. Assent on the part of the grantee is indispensable to every grant and appointment. (4 Wheaton, 225; 2 Sand. Ch. R. 244; Angel & Ames on Corp. 71; Willcock, 30, S. 25; 4 Paige, 44; 6 Vesey, 109.)
    II. On the construction of this injunction claimed by the plaintiffs, an individual restrained from making a grant, and requiring to absent himself on business, could not sign, seal, and acknowledge a deed, and leave it with his attorney, to be delivered immediately upon the expected dissolution of the injunction. 1. The injunction does not in this case, as is sometimes done, restrain attempts to do the act, or things leading to it. It is merely the final act itself which is forbidden, i. e. the consummated grant of authority.
    ■ Thirdly.—The court had no jurisdiction, on the prayer of these plaintiffs, to restrain any action of the Corporation.
    I. Owing to the inconvenience which would result from an interference of the judiciary with the action of the government, courts of common law and courts of equity invariably abstain from the exercise of any discretionary jurisdiction over acts of government—local or general. . (People v. Supervisors of Alleghany, 15 Wend. 211; 13 Wend. 671; 20 Pick. 79; Weaver v. Desendorf, 3 Denio, 119.)
    II. Suits of this description lie only to protect some individual right or interest of the plaintiff. A mere tax-payer in a municipal corporation has no interest which will entitle him to sustain a suit against the corporation for mismanagement or misgovernment of the corporate property, or abuse or excess of corporate power, The judicial remedies in such case, are—1. Quo warranto by the state for misuser of franchises. 2. Equitable action by the state, to prevent breaches of trust, or other misconduct, requiring some specific equitable remedy.
    Fourthly.—This court should not assume jurisdiction to restrain the passage of the resolution in question, on the ground that the Corporation, in adopting the same, exceeded its authority.
    I. Such power, when exercised over subordinate bodies, has never been directed to restrain the making of ordinances, bylaws, or resolutions, but only to restrain the performance of acts, in execution of them.
    II. The objection, that the ordinance in question is an executive act, as presented on this motion by the plaintiffs, is suicidal. The injunction only prohibits the Corporation from doing any act, which, if done, would be an operative grant. If the resolution was not a grant, it'was not within the prohibition.
    HI. The resolution in question was within the legislative power, and its adoption did not involve the performance of any executive act. The legislative is the principal or chief authority in a government; the other departments are but the mere ministers of its will. The judiciary 'reads and expounds its will; the executive carries that will into execution. It follows, as a consequence, that the grant of legislative power is far more comprehensive than a grant of executive, or even of judicial power. It is the general receptacle of governmental authority. (Federalist, art. 48, p. 280; Rotes on Virginia, p. 195.) 1. The judiciary disclaims the power of making or creating law. It merely expounds, for purposes of practical application, the written statutes of the Legislature, and those “ statutes worn out by time or accident,” which are called the customary or “ common law” of a state. (2 Wilson, 348.) 2. The judiciary deliberate, it is true, but not in the sense in which the Legislature deliberates. It is the deliberation of research. It seeks not to establish a rule of future action, but only to find what is the law. When that is ascertained, its duty is simple and direct. It has no discretionary authority or moral right to do otherwise than simply to declare the rule it has ascertained. 3. .The executive power is organized merely to perform the acts which the Legislature has determined upon as wise and expedient. Rothing like deliberation or discretion properly belongs to the executive power, as a simple abstract idea. 4. The legislative power is the will of the state; the judicial is its memory; the executive is its hand. The first creates the rule of action; the second is the living record of its. existence; the last carries it into execution.
    IV. Whenever any matter requiring the exercise of choice, selection, discretion, is submitted to an executive officer, it is so far, in principle, a delegation of legislative power. 1. Even where separate departments are created by a fundamental law, this delegation must be allowed, because of the necessity of the case, and the actual impossibility of reducing to an arbitrary classification, the extensive and infinitely diversified circle of human concerns. Some discretion must necessarily be allowed to the lowest executive officers. More is necessarily allowed to those of higher grade, from the magnitude and importance of the subjects and interests on which they act. But all of them, in exercising such discretion, employ to that extent the legislative power. (Sproule v. Samuel, 4 Scammons, 134; Wilkinson v. Leland, 2 Peters, 659, 660; Federalist, p. 273.) 2. It follows that, so far as in the nature of things it is practically possible, it is legally or constitutionally within the competency of the legislative power to restrain these encroachments upon, or usurpations of, its proper functions, by giving, in its laws for the government of the executive, an exact and definite rule of conduct, leaving no room for any other than mechanical action. 3. The same is abstractly true of the judicial power. Were it practically possible for the Legislature to form a code containing, in express terms, admitting of no mistake or misconstruction, a rule of conduct for every case that could arise, the judges would become mere clerks, to frame 'the appropriate writs of execution by which to put the executive power in motion.
    Y. The direction of all details touching the intended railroad, as the selection of site, form, speed of cars, managers or licensees, was an act within the competency of the legislative power.
    Fifthly.—The members of the Common Council are not parties to the action, or officers of this court; and, therefore, they are not amenable to attachment on the relation of the plaintiffs, as for a contempt, not criminal, but merely tending to “ defeat, impair, impede, or prejudice the rights or remedies” of.the party in the cause. (2 R. S. 534, § 1.)
    I. The court may, ex-officio, or on the relation of any person, attach and punish, as a criminal contempt, certain acts of misbehavior tending to obstruct its proceedings. (2 R. S. 278, § 10, subd. 1 to 6.)
    II. But the so-called contempt, which is not otherwise detrimental to the course of justice, except in so far as it “ defeats, impairs, or prejudices” the mere private rights or remedies of the party, cannot be committed, except by a party to the suit. (2 R. S. 534, § 1.) 1. No instance has been produced, and it is confidently believed none can be found, in which such a jurisdiction was exercised. On such a question, “ the silence of Westminster Hall” is conclusive. 2. The cases arising under the law of mandamus, &c., against corporations, are not in point; the writ usually goes to the particular officer or officers, commanding him or them to do the particular acts, &c.
    Sixthly.—The plaintiffs not having served the affidavit on which the injunction was obtained, as imperatively required by the code, section 220, cannot charge the parties with a mere civil contempt, for failing to'yield obedience to their process.
    I. Under the old practice, a party could not involve his adversary in the pains and penalties of a contempt without strict service,-—an actual exhibition of the order duly authenticated was necessary. A mere office copy would not suffice for this purpose. (Graham’s Practice, 712 ; Howland v. Ralph, 3 Johns. 19, and cases there cited.
    II. Under the same practice, it was required that orders temporarily staying proceedings, until motion, &c.,' should be accompanied by notice of motion. An omission to conform to this rule rendered the stay nugatory. (Graham’s Practice, 680; 5 Cow. 438; 1 Caines, 505.)
    IH. In the present case, the complaint was “ the affidavit” under the rule in question. Its service was specially called for, since it is incorporated with, and made part of the injunction by the express words of that process. 1. No judge has power to make an injunction, except on affidavit. (Code, § 220.) 2. If there was no affidavit, the injunction was without authority, and void. None being served, the party might well assume that none existed.

       As the decisions of the judge at special term, in this and the next case, were affirmed, without further argument, at general term, they have all the authority of general term cases, and it is therefore deemed proper to report them as such. Connected as the cases are, the propriety of publishing them in immediate succession seems also apparent.

   By the Court. Duer, J.

A motion has been made in this case for an attachment against Oscar W. Sturtevant, one of the aldermen of this city, for an alleged contempt of the authority of this court, by an act of positive disobedience to its lawful . process.

The material facts that have 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 tax-paying inhabitants of this city, exhibited their complaint, duly verified, to our associate, Hr. 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 order of injunction, commanding and enjoining (inter aMa) that the defendants, the mayor, aldermen, and commonalty of the city, and each of them, should absolutely desist and refrain from granting to, or in any manner authorizing 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 the 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 express 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 Whitehall or State street from the South Ferry to Fifty-ninth street; and to render the resolution, when finally 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 acceptance. The complaint alleged that the resolution had, before that time, been adopted by each board of the Common Council, and had been returned by 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 majority of those elected), by whose votes the resolution had originally passed, had given out and declared that they intended again to pass the same, notwithstanding the objections of the mayor, and that the grantees named in the resolution had also made known their intention to file their written acceptance immediately upon its adoption.

The actual conduct of the parties corresponded with these anticipations.

On the 28th of December, the order of injunction, together with a copy of the summons and complaint, was duly served upon the mayor, and upon the same or the following day, the injunction, with a copy of the summons, was served upon each member of the Board of Aldermen.

On the evening of the 29 th of December the Board of Aider-men met, and the resolution making the grant to Sharp and his associates 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 remain 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 of these resolutions declared^ that it was the duty of the Common Council to protect its own dignity and the rights of its constituents, the people of the city, by utterly disregarding the injunction upon its legislative action, and declaring their sense of the same and that a preamble to the resolution, 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 and control the municipal legislation of the city; as bearing upon its face a character of indirection, 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 rightful functions, powers, and duties, of a legislative body.

The original resolution or grant, and the additional resolutions vindicating the rights and dignity of the Common Council, were transmitted to the Board of Assistant Aldermen, and, on the evening of the 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 resolutions, 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 acceptance of the resolution, and their agreement to conform thereto; and thus, if these proceedings were valid, the grant, which the order of injunction prohibited the defendants from making, became absolute, and the grantees acquired the very right, liberty, and privilege of laying a track for a railway in Broadway, 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 issued the injunction, is that of the court—Code, § 218) in a relation of direct and open hostility. Admitting their own knowledge of the order of injunction, and of the reasons upon which it was founded—reasons which they have declared to be untenable in law and unfounded in fact—construing the order as commanding them to desist and refrain from the performance 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 duty to themselves and to their constituents required them to disregard and resist. 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 publicly raised an issue which this court is compelled to meet and bound to determine. That issue is, whether this court, by an unprecedented stretch of judicial authority, has invaded the province, and violated the rights, of the C ommon Council as a legislative body, or those members of that body, who have openly denied and boldly disregarded the authority of this court, are guilty of the criminal disobedience with which they are charged, and we are now called upon to punish.

The questions, therefore, which this motion involves, possess no ordinary interest. It is felt by all, that they are, in no ordinary degree, grave and delicate. With a just sense of their importance, they have been elaborately argued by the counsel ' of the parties, and have been carefully and anxiously considered by ourselves. For obvious reasons, it would be desirable, were it possible, that these questions should be determined by another tribunal; but, as no such transfer can be made of our jurisdiction, we must not and will not shrink from the responsibility which the law imposes.

If the injunction that has- been issued was indeed an unjustifiable excess of jurisdiction—an unprecedented act of judicial power—it will be our duty to confess, and, with all possible expedition, correct the error ; but if -the lawful mandate of this court, issued in the exercise of its known jurisdiction, has been publicly denounced and .wholly disregarded by those to whom it "was directed, and who were, from their official position, under a peculiar obligation to respect and obey it, we should indeed be unworthy of our station, could we hesitate to maintain firmly the rights of the judiciary, and vindicate effectually the insulted, but, we trust, still paramount authority of the law.

We proceed to the immediate consideration of the questions that have been discussed.

It has been contended that Alderman Sturtevant is not liable to an attachment for the contempt with which he is charged, for the following reasons :

First, Because he is not a party to the suit, and the law is feettled that it is only a party against whom relief is sought and may be given, who is bound by an injunction.

Second, Because the service of the injunction upon him was irregular and void, not being accompanied by the service of a copy of the affidavit, the verified complaint, upon which it was founded.

Third, Because the only breach of the injxmetion 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 they were not intended to restrain.

And lastly, Because if the injunction must be construed as intended to restrain the reconsideration and adoption by the Common Council of the resolution in question, the prohibition) as illegal and void, was properly disregarded ; no court of law Or equity having any jurisdiction to control, in any case, or for any reasons, the legislative action of a corporate, and- more especially, of a municipal body.

These objections will be considered in the order in which they have been stated.

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 provisions of the Code (section 219), a person to whom an injunction is directed is wholly excused from obedience 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 regarded), 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 individual, 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 individual member of the whole corporate body, and it controls the personal action of every one of them whose consent or co-operation might be necessary to the completion of the corporate act, which it strictly prohibits. It imposes a command and duty upon every one of them to refrain absolutely from performing or concurring in the performance of 'the prohibited act, for the very purpose, and as the necessary means, of preventing it from becoming 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 corporate act, a mandamus, or injunction, is directed to a corporation solely by its corporate name, the members and officers through whom alone the Corporation can-act, may disregard it with ebtire impunity, and by their disobedience render the process of the court wholly ineffectual. The law, we apprehend, is otherwise settled. That the mandate of the court in these eases may with entire propriety be directed exclusively to the corporate body, 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 personal action, as a member or officer of the corporate body, it seeks to restrain or control. Every such person is as fully bound to personal obedience, as if personally named in the process, and consequently is just as' liable for his disobedience. (Rex vs. Mayor of Abingdon, 1 Lord Raymond, 560; Rex vs. Mayor of Shelford, 2 Cases in Chan. 171-2, Lord Raymond, 848; Rex vs. Mayor of Tregony, 8 Mod. 111; Bank Commissioner vs. City Bank of Rochester, 1 Barb. Ch. R. ps. 636.) We understood the learned counsel for the defendants to admit that in the case of a mandamus, the law is such as we have stated; and we are clear in the opinion, that in respect to the persons 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 principle which Lord Kenyon, in the case of Rex v. Holland, has briefly and forcibly stated. (5 Term. R. 622.) It is, that where “ a duty is thrown upon a body consisting of several persons, each is individually responsible for its performance, and individually liable for its breachand in the application of this principle, it is plainly immaterial, whether the duty result from an act of the Legislature, or the mandate of a court of justice.

We remark, in conclusion, that upon any other construction than that which we adopt, an injunction addressed exclusively to a corporation must be, in all cases, a nugatory and senseless proceeding. 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 v. the Mayor of Lynn, seems distinctly to admit. (1 H. Black. 209.) Unless the injunction, therefore, in such cases, operates upon those members and officers of the Corporation by whom its corporate w'ill is' manifested, and corporate acts performed, and unless it creates a duty for which they, as parties to the suit, are personally responsible, it is emphatically brutum fulmen—the words may be those of command or menace, but they are addressed to no one, and signify nothing. i

The next objection, that the omission to serve upon the aldermen, with the injunction, a copy of the complaint, rendered the service of the injtmction itself, as to them, inoperative and void, like (he preceding, we are satisfied, must be overruled. It furnishes, in this case, no reason for not proceeding to an attachment.*

Notwithstanding the positive terms of the Code (sec. 220), we doubt exceedingly 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 alleged as a valid excuse for disobedience. When the order of injunction cannot properly be understood, nor, consequently, be 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 explicit, and leaves no doubt as to the act which the party upon whom it is served is required to perform, or desist from performing, it may well be doubted, whether the irregular omission of the affidavit should be held to release him from the duty of obedience. In such cases, a knowledge of the contents of the affidavit would neither instruct him as to. Ms duty, nor avail to discharge him from its performance, since whatever may be the facts stated in the affidavit, the injunction, when emanating from a competent authority, until dissolved, must be obeyed. (Krom v. Hogan, 4 Howard, P. R. 225; Woodward v. King, 2 Ch. Ca. 203; Sullivan v. Judah, 4 Paige, 446.)

The purpose for which the Code very properly requires that a copy of the affidavits shall in all' cases be served, is, not that the party upon whom it isserved may determine, whether he will or will not obey the injunction, but merely to enable him, without delay, if so advised, to move for its dissolution.

It is not, however, upon the ground that in this case the alleged irregularity in the service of the injunction was not such as to excuse the disobedience that followed, that we overrule the objection. The papers show that there was, in truth, no irregularity that the defendant, Sturtevant, 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 meeting of the board of aldermen. The service was properly made upon him as the chief officer (2 R. 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 body whose personal conduct, as such, the injunction was designed to control; and to whom the actual 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 injunction “ were untenable in law and unfounded in fact.” It is only in the complaint, however, that these reasons are alleged, and it is therefore from the complaint that their knowledge of them must have been derived. Under these circumstances, it would indeed be a mockery of justice to permit the alleged irregularity, in the service of the injunction, to excuse its deliberate and confessed violation^-eonfessed, 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 inquiry which touches, in a measure, the merits of this motion, namely—whether the defendant, Sturtevant, has, in fact, been guilty of the contempt with which he is charged; and this he certainly has not, unless he has committed some act from which the injunction, by its terms or its necessary construction, commanded, him to desist and refrain. It is true 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 contend, as the only sense of which its terms are susceptible. And it is also true, that thus understanding the injunction, they not only disregarded, but proceeded, so far as depended on their own action, to rescind and nullify it; but we shall not hold that they are concluded by their mistake, if a mistake they have committed. Their error does not work an estoppel, for, unless they have violated the injunction in its true legal construction, there has been no breach for which they are liable to be punished as a contempt, whatever may be thought of their intentions and their language.

What, then, is the command of the injunction ? What the corporate act which its terms prohibit ?

If we read the complaint, it is manifest, that the sole object of its prayer, which the injunction exactly followed, was to prevent the adoption of the resolution in relation to a railroad in Broadway, which it alleged that the Common Council meant to reconsider, and had determined to pass ; but we have some doubts, whether the allegations in the complaint can with propriety be invoked to govern the construction of the injunction, and it is therefore to the terms of the injunction that, in considering the question we have proposed, we mean to confine ourselves. The language of the injunction is clear and unambiguous. The corporate act which it prohibits is that of granting to Jacob Sharp and his associates, or to any other person, the authority and privilege of laying down a double or any other track for a railway in Broadway, between certain limits; and if no such grant, as a corporate act, has been made, the injunction has not been violated. The fact, however, that such a grant has been made is undeniable : it is not only confessed by all, but avowed and gloried in by those who made it and by those who have obtained it. The resolution making the grant has been reconsidered and adopted, and, in the very mode which it prescribes, has been accepted by the grantees; and Jacob Sharp and his associates now claim to possess, by a valid title, the very right, liberty, and privilege which the injunction, speaking the voice and carrying with it the authority of this court, has said they should not be permitted to acquire. The corporate act that the injunction prohibits has been performed, and it therefore seems an affront to common sense to say that the injunction has not been violated. It has been violated just as certainly as if, by express words, it had forbidden the passage of the resolution it was designed to prevent. We repeat, the injunction has been violated; and the only inquiry that remains is—By whom has it been violated, and who, assuming it to have been rightfully issued, are amenable to this court for their contempt of its authority %

It is idle to speak of its violation as merely a corporate act, for which no member or officer of the Corporation is or can be liable. We have already shown that an injunction may be properly directed to a corporation solely by its corporate name, and that, when so directed, it operates to restrain the personal action of every member of the corporate body by whose assent or co-operation the corporate act that is forbidden may be 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 such grant, if proposed for his adoption, —not to give his assent to it, for the purpose, and with the intent, of rendering it operative and effectual as a corporate act. The resolution adopted by the Common Council is the very grant that the injunction describes, 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 has thus assented, the conclusion 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 contemned its authority. And unless this be true it follows that when an injunction, directed to a body consisting of several persons, commands them not to perform a joint act, although all unite in performing the act, no one of them breaks the injunction—no one of them is liable to be punished.

Two partners intend, by their joint act, to make a fraudulent transfer of their whole partnership property; suspecting their design, their creditors file a complaint, and obtain and serve an injunction, by which the intended transfer, the meditated fraud, is strictly forbidden. Hie transfer is, however, made, the fraud accomplished, the authority of the court defied, and the guilty partners rejoice in their impunity. Neither of them, it seems, can be attached, for the valid reason, that the fraudulent transfer was the act of both, and, therefore, the act of neither.

Let it not be said that the supposed 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 injunction was directed, was a corporation, not a partnership. The injunction in this case commanded the Common Council not to make a certain grant to certain persons. The Common Council has made the grant; yet we are told that the injunction has not been 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.

In 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 so we’ cannot doubt, then the injunction, which, in this case, has plainly been violated by the Corporation, as a body, has just as plainly been violated by every member, who has given his individual assent to the corporate act, by which such violation was effected. That assent was given by the member now before us, Oscar W. Sturtevant. He has therefore, as an individual, violated the injunction, and having thus been guilty of the contempt with which he is charged, the attachment moved for must be issued against him, unless the order of this court, which he has disobeyed, was itself unlawful and void.

It is upon this ground alone that he has himself justified liis _ disobedience, and it is upon this ground alone, that he can be exempted from its punishment.

Before we proceed, however, to the discussion of the question whether the order of this court, from its total want óf júrisdiction, was illegal and void, there are some considerations hitherto unnoticed, to which it seems expedient to advert.

Hitherto we have passed over in silence an argument upon which the counsel for the defendants seemed to lay a peculiar stress—namely, 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 by 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 vfas made, no authority, right, or privilege 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 to whom the injunction did not extend, and for whose acts, neither the Corporation nor its members, can be made responsible.

notwithstanding the apparent confidence with which this argument was urged, we find it difficult to believe that it was seriously meant to be pressed upon our adoption, since it could hardly have escaped the counsel that, with equal propriety and force, might the same argument be urged in every case in which a grant, transfer, or any disposition of property whatever, is forbidden to be made, either by a corporation, a partnership, or an individual. In no case, is a grant effectual by the mere will and act of the grantor. In every case,- it depends for its ultimate validity upon the assent and acceptance of the grantee. Hence, if the argument is valid, it follows that an injunction, which is meant to restrain a fraudulent or illegal grant, addressed only to the grantor, may be disregarded, in all cases, with entire impunity. You cannot punish the grantor, a fraudulent trustee or debtor, because the grant, which he executed and delivered, might have been rejected by the grantee, and but for his acceptance would have been wholly ineffectual. You cannot punish the grantee, for he was not named in the injunction.

The reply to the argument in the cases supposed, is exactly that which must be given in the present. The fraudulent trustee or debtor is forbidden to make the grant, with the intent that it shall be effectual, and in a mode, by which it may be rendered so; and when it is proved that he has done all that he could do to render the grant operative and valid, he is certainly and justly punished.

So in the present case, the Common Council, and a majority of its members, have done all they could do to render the grant, they were forbidden to make, operative and effectual. They passed the resolution with the intent that it should operate as a grant, and in the confident expectation that, by its acceptance, it would become 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, have forbidden its acceptance. As the case stands, .they have made the grant which they were commanded absolutely to desist and refrain from making; and this grant, as they intended, by their permission and with their consent, has become absolute. Hence, if words have a meaning or the law an intention, they have violated the injunction both in its letter and in its spirit, and, I am constrained to add, they meant to violate it, and knew that they had done so.

We are told, however, that the members of the Common Council could not have acted otherwise than they did. Their charter bound them, it is said, to reconsider 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 conscience, and to punish them for the exercise of this right would be inj ustice and tyranny. 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 to the Common Council, we apprehend that its reconsideration depends, in all cases, upon the will of the majority; and assuredly, in the present case, they were not bound to reconsider the resolution, at the time, and in th‘e manner, they did. I add, that even upon a supposition that they were bound, by the provisions of their charter, to reconsider the resolution, they were equally bound, by the mandate of this court, to rescind and reject it, when reconsidered, if the order of the court was, in truth, issued, in the exercise of its proper jurisdiction.

I pass, therefore, to the last and most important objection that has been urged as conclusive against the present motion— the alleged want of jurisdiction in this or any court, to restrain the action of- the Common Council upon the subject before them, as was attempted by the injunction which they choose to disregard. It was upon this allegation that the defence of the Common Council was mainly rested in the argument before us, and it is, exclusively, upon its truth that its members, in the first instance, elected to place their own justification of their conduct. The question which it involves has been perplexed by much extraneous reasoning and learning, and complicated with many considerations that do not at all belong to it; yet, if I mistake not, it is simple in its own nature, and, by no means, difficult of solution.

The true and only question is, whether from the total want of jurisdiction in this court over the subject matter to which the order of injunction related, the order was void, upon its face; for it is this defect of jurisdiction, and this alone, that has been or can be pretended to exist, and when it exists, it must, in all cases, be thus apparent. The injunction commanded the Corporation and its members to desist absolutely from the performance of certain specified acts, and, if this command could, under no circumstances, be rightfully addressed by a court of equity to a municipal corporation, the Common Council and its members, in the just maintenance oí their own rights, were bound to disregard it: but if it was a command that, under any circumstances, upon any grounds, and 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 sufficiency of the allegations in the complaint, upon which the order addressed to them was founded. For the purpose of determining whether they would obey or disregard the injunction, they had no right to look into the complaint at all, and this, for the’ plain reason, that the jurisdiction of the court may be certain and undoubted, and yet the facts and allegations set forth in the complaint be wholly insufficient to warrant its exercise. When this insufficiency 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 disobedience. A party upon 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 ought, not to have issued. (People v. Spalding, 2 Paige, 329; Sullivan, v. Judah, 4 Paige, 446.) I' 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 jurisdiction (as was justly observed by the experienced and learned counsel who last addressed us) are frequently confounded, not only by text-writers, but by judges, yet the distinction, which separates them, is very reasonable and intelligible, as well as certain and established. This distinction, however, I cannot but think was, to a considerable extent, lost sight of in the arguments that were addressed to us on the part of the defendants, and it is this circumstance that rendered a large portion of the observations that were made, and authorities cited, wholly inapplicable to the true and only question now before us. It is, however, that question alone, as I shall again state it, that I mean to consider and discuss.

Was the order of this court, which, as an illegal exercise of power, was disregarded by the Common Council, void upon its face ?

The order commanded the Common Council not to grant to Jacob Sharp and others, or to any other person, the right, liberty, and privilege of laying down a double, or any other track, for a railway in Broadway.

At the time this injunction was obtained, a resolution, making such a grant to Jacob Sharp and others, was about' to be reconsidered by the Common Council, and, as the terms of the injunction embrace this resolution, and were, undoubtedly, meant to restrain its adoption, it is reasonable 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 construction, therefore, that I adopt, and, for the purposes of this opinion, I shall treat the resolution as an ordinance or by-law, and its reconsideration and adoption as properly acts of legislation, in the fullest sense, in which the term, legislation, can be justly applied to the acts of a corporate body.

Making 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 the legislative action of a municipal corporation, nor in any manner , to interfere with or control its legislative discretion, 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 discretion may be governed, nor how extensive and irreparable the mischief that, in the particular case, may be certain to result to individuals or the public, from its threatened exercise.

If this be true as a proposition 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 to the counsel for the defendants, it must be admitted that they shrank not from maintaining the truth of the proposition in all its extent, well perceiving that the necessity of their argument admitted no alternative, since to admit a single exception, was to admit the jurisdiction which they denied.

In reply to a question put by the court, it was expressly affirmed by one of the counsel that, should the Common Council attempt, by an ordinance, and from motives manifestly corrupt, to convey, for a grossly inadequate or merely nominal consideration, all the corporate property of the city, neither this, nor any other court, would ha've power to suppress, by an injunction, the meditated fraud; or when consummated, to rescind the grant, or punish its authors, or divest them of its fruits. There could be no remedy, we were 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 propriety, nor the honesty, of the proceedings of a legislative body, nor, while they are pending, even their legality, can ever he made a subject of judicial inquiry.

This, it must be confessed, is a startling doctrine. We all felt it to be so when announced, and I rejoice that we are now able to say, with an entire conviction, that, applied to a municipal corporation, it is just as groundless in law, as it seems to us, it is wrong in its principle, and certainly would he pernicious in its effects.

The doctrine, exactly as stated, may be true when applied to the legislature of the state, which, as a co-ordinate branch of the government, representing and exercising, in its sphere, the sovereignty of the people, is, for political reasons, of manifest force, wholly exempt in all its proceedings from any legal process or judicial control; but the doctrine is not, nor is any portion of it true, when applied to a subordinate municipal body, which, although clothed to some extent with legislative, and even political, powers, is yet, in the exercise of all its powers, just as subject to the authority and control of courts of justice, to legal process, legal restraint, and legal correction, as any other body or person, natural or artificial.

The supposition that there exists an important distinction, or any distinction whatever, between a municipal corporation and any other corporation aggregate, in respect to the powers of courts of justice over its proceedings, is tentirely gratuitous, and as it seems to me, is as destitute of reason, as it certainly is, of authority. The counsel could refer us to no case, nor have we found any, in which the judgment of the court has proceeded upon such a distinction, nor, in our researches, which have not been limited, have we been able to discover, that, by any judge or jurist, the existence of such a distinction, has ever been asserted or intimated. Were it otherwise—had such decisions been found in the English reports, or in those of our sister states—had it been proved that in England or in other states the supposed distinction is the established law, we should still be compelled to say that it is a law, which we must refuse to follow, for the plain reason, that it is directly inconsistent with the paramount authority of our own constitution. The constitution of the state declares that “ all corporations shall have the right to sue, and shall be subject to be sued, in all courts, in like cases, as natural persons.” (Con. art. 8, sec. 3.) There is no exception here of municipal corporations, and an exception which the constitution has not made, we have neither the inclination, nor the power, to make ourselves.

A corporation subject to be sued, is necessarily subject to every process or order that, in the commencement, or in the progress, of. the suit may be necessary to, or be connected with, the relief which is demanded. And the words “ in the like cases,” plainly mean, for the like acts or omissions, and for the like reasons.”

Rejecting, then, an imaginary distinction, the question as to the validity of the only defence which the members of the Common Council have set up in their own behalf, and on which their counsel have chiefly relied, their entire exemption from judicial control, in every proceeding, that they may choose to clothe with the forms of legislation, is seen to possess a far deeper and wider importance than could, at first, have been imagined. If the members of the Common Council are entitled to the immunity which they claim, exactly the same immunity, and exactly upon the same grounds, may be claimed, and justly claimed by all, who manage officially the concerns of any and every corporation in the city or state, the directors, managers, or trustees of every bank, insurance, or trust company, and even of every public library, or hospital, dispensary, or savings bank. They have all, legislative powers, in the same sense as the Common Council, powers not indeed as extensive in their operation, and not therefore as liable to be abused, nor as dangerous when abused, but just as legislative and discretionary in their nature. They all have the power of making by-laws for the regulation of their affairs and binding on their members, and they may all give the form of a bylaw or resolution to any illegal or fraudulent proceeding into which they may be tempted or betrayed; and when, in compliance with the prayer of stockholders or creditors, or of any whose rights and interests they are about to sacrifice, a court of equity attempts, by an injunction, to restrain the proceeding, they may all, with the same propriety as the members of the Common Council, defy the mandate, and denounce the attempt, as an unwarranted and unprecedented stretch of judicial power.

Notwithstanding these observations, the question still remains, has this court, or any court of equity, the power to interfere with the legislative discretion of the Common Council of this city, or of any other municipal corporation ? And to this question I at once reply, certainly not, if the term discretion be properly limited and understood; and thus understood, I carry the proposition much further than the counsel who advanced it. This court has no right to interfere with and control the exercise, not merely of the legislative, but of any other discretionary power, that the law has vested in the Corporation of the city; and, hence, I deem it quite immaterial, whether the resolution in favor of Jacob Sharp 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 executive; for if the Corporation had the power of granting, at all, the extraordinary privileges which the resolution confers, the propriety of exercising the power, and, perhaps, even the form of its exercise, rested entirely in its discretion. Nor is this all. A comí; of equity has no right to interfere with and control, in any case, the exercise of a discretionary power, no matter in whom it may be vested—a corporate body or individuals, the aldermen 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, exactly the same. The meaning and principle of the rule are,- that the court will not substitute 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 limitations to which it is subject, are, that the discretion 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 discretion, intended that its exercise should be governed. I select, for the purpose of illustration, a single case; The directors of a bank have a large discretion in making dividends, in appointing its officers, and in fixing the amount of their salaries; and in the exercise of this discretion, a court of equity, in the just application of the rule that has been stated, has certainly no right to control them. It has no right to say what dividends shall be made, what officers be appointed, or what salaries be allowed. But should the directors attempt to make a dividend of capital, instead of profits, or to raise the salaries to a sum so exorbitant as to equal or exceed the annual profits of the company; or in the case last supposed, by a secret compact, secure to themselves a large proportion of the aggregate sum allowed nominally as a compensation to others, it cannot for a moment be doubted, that a court of equity would be bound, upon the application of-creditors or stockholders, to restrain or annul, according to the circumstances of the particular case, the illegal, unjust, or fraudulent act. The act, in the first case, would be an excess of power; in the second, an abuse of discretion, and from its manifest prejudice to the stockholders, a breach of trust; in the last, a scandalous fraudand, to the mind of an equity lawyer, it would be an absurd and monstrous supposition, that, in either of the cases, the directors, by giving to the proceeding the form of a resolution of the board, or by any other device, could evade the jurisdiction of the court, and enable themselves, with impunity, to set its mandates at defiance.

The conclusion from these remarks is, that a court of equity' will not interfere to control the exercise of a discretionary power, when the discretion is legally and honestly exercised— and it has no reason to believe the fact is otherwise—but will interfere, whenever it has" grounds for believing that its interference is necessary to prevent abuse, injustice, or oppression, 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 believe that those in whom the discretion is vested, are prepared-illegally, wantonly, or corruptly, to trample upon rights, and sacrifice interests, which they are specially bound to watch over and protect.

Having stated these principles, the discussion may be regarded as closed, since the application of the principles to the case before us, is obvious and decisive. I shall therefore content myself with referring to a few of the authorities by which they are sustained^ and then proceed to apply them to .the facts of the case.

The doctrine which, when stated in a condensed form, may be extracted from the decision of Lord Eldon in the leading case of Agar v. The Regent's Canal Company (Cooper’s Eq. Cas. 77), is, that whenever a corporation is about to exceed its powers, and apply its funds or credit to some object beyond its authority, and whenever the purpose of the corporation, if carried out, would constitute a breach of trust, a court of equity cannot refuse to interfere 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 continually open and ready to exercise its power to keep them within their legitimate limits. In the case of the River Dun Navigation Company v. North Midland Railway Company (1 Railway Cases, 135), it was upon the same doctrine that Lord Cottenham—a judge scarcely inferior to Lord Eldon in judgment, learning^ and research-—-placed the exercise of a jurisdiction, which he declared himself not at liberty to withhold. The case of Frewin v. Lewis (4 Mylne & Craig, 249) is one of those upon which the counsel for the defendants placed a strong reliance, for it was in this case that Lord Cottenham dissolved an injunction against the Poor Law Commissioners, upon the ground that its continuance would operate as an undue restraint upon the legal discretion of those important public functionaries ; yet, in this very case, his lordship was careful to assert and maintain the rightful jurisdiction of his court, and said, “ that when public functionaries 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 considers them as acting under their commission, but treats them, whether a corporation or individuals, as persons dealing with property without legal rightsand he added, “ that when such persons infringe of violate the rights of others, they become, like all other individuals, amenable to the jurisdiction of this court by injunction.” The force and application of this language will be fully understood, when we remember that the powers of the Poor Law Commissioners are legislative, discretionary, and political, even in a more extensive sense than those of our own Corporation. I refer, lastly, to the three cases of the Attorney General v. Aspinall (2 M. & C. 613), Same v. Corporation of York (4 M. & C. 30), and the Same v. 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 objects 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.

The streets of this city, we are told, are the property of the Corporation, in which the fee is vested; hut it is certain that this property is clothed with public duties, and that the objects to which alone it can be appropriated or applied, are strictly defined by law. Hence, according to the cases last cited, there is a trust in relation to the streets, the performance of which, a court of equity is competent to enforce by a decree, and, consequently, the violation of which, when threatened, it 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 issued ? And the answer is that assuredly it was not, if there is any ground whatever upon which this court could lawfully restrain the Corporation from making the grant which the order described; and that there are many grounds upon which the restraint could be legally and justly imposed, we deem it no longer reasonable to doubt.

A few I shall now state :—

1. It may be that the Corporation has no power whatever either to establish itself, or to grant to others, the privilege of establishing a railway in any of the public streets in 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 injurious monopoly, debarring the bulk of our citizens of the beneficial use and enjoyment of the street, and securing them almost exclusively to the grantees of the Corporation. The creation of such a monopoly would not only be an excess of authority, but a breach of trust, which may and ought to be prevented by an injunction.

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 nuisance. To prevent the creation of a nuisance, no matter by whom created, is not only within the jurisdiction of the court, but, upon proper allegations 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 unnecessary burden upon its tax-paying inhabitants. In such a case, to issue an injunction, forbidding the grant, is not to interfere with a legal discretion, but to prevent a flagrant breach of trust and the completion of an extensive fraud.

I have already said that, in considering the question before us it is quite immaterial whether all or any of these grounds of jurisdiction and relief are alleged in the complaint, since the omission would only prove a want of equity in the complaint, not, at all, of jurisdiction in the court; but it so happens that all of them, are alleged in the complaint; and so distinctly 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 material allegations in the complaint are groundless or untenable, and that hereafter we may ourselves be satisfied that they are so, but I shall not now express or intimate any opinion upon questions, that can only be properly discussed and considered upon a motion to dissolve the injunction, 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 injunction, which Alderman Sturtevant refused to obey, was a valid exercise of the established jurisdiction of this court, and, consequently, that no adequate cause has been shown why an attachment should not issue against him for the contempt," of which, from the papers before us, he appears to have been guilty. In this conclusion all the 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 therefore granted.

Bosworth, J.

The plaintiffs move for an attachment against Oscar W. Sturtevant, one of the aldermen of the city, to arrest him for a contempt of court, in disobeying an injunction order made in this action by a judge of this court, on .the 27th of December,' 1852.

Having, with others óf my brethren, at the request of the judge holding the special term at which the motion was made, heard the arguments of counsel for and- against the motion, I shall, as briefly as practicable* state some of the views formed upon a consideration of the propositions argued and authorities cited. ' '

To present these intelligibly, it is necessary to state some of the prominent facts of the case. (The learned judge here recapitulated the material- facts as set forth and averred in the complaint, and then proceeded as follows:—) •

The judge to whom application was made for the injunction order, granted it on a verified complaint stating these facts to be truei Whether true orzfalse is a question which we are not called upon to determine on this proceeding. To determine whether he had any jurisdiction to make the order, the complaint alone can be looked at, and everything contained in it and stated to be true in fact, must be fleemed to be true for all the purposes 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 jurisdiction to make the order, it was the duty of those to whom it was directed to obey it, until they had procured it to be vacated. If he had jurisdiction to make the order, it is incontestable that it was his duty to make it, if the facts stated in the complaint are true.

According to the allegations in the complaint, the Common Council, against the objections of the .mayor, were about to grant to Jacob Sharp and others, authority and power to construct and use a railway in Broadway, with liberty to charge each passenger five cents fare, on payment to the city of a license fee for each cár run of only $20 per annum, while others stood ready to take the grant, and construct such a railway, and run cars with equal accommodations, and charge only three cents fare, and pay a license fee of $1,000 per annum.,

As between two such propositions, there can be no pretence for saying that in the exercise of an honest discretion the former might be preferred to the latter. It is not a debatable question whether a license* fee of $1,000 per car per annum is more advantageous to the city than one of $20, nor whether the interests of the community will be better subserved by each citizen being compelled to pay a fare of three cents, instead of five. Therefore, even if it can be successfully maintained, that the Common Council had the power to make the grant which the resolutions purport to make, it would be a gross abuse of power, and a flagrant violation of public duty, to make the grant' as it was made, instead of making it to those who would pay, at the least, an additional million of dollars for it into the public treasury, and exact from the passengers only three cents fare, instead of five. Is it incontestable 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 question, if any court had power to make it, on the facts stated in this complaint. It is undeniable, that, if any jurisdiction can be exercised, the acts contemplated by the defendants are such as they may properly be restrained by injunction from doing.

If the facts stated in the complaint are true, the Common ■ Council were intending, so far as they possessed power to accomplish the purpose, to grant to an association of individuals the right of appropriating to their exclusive use, to a certain extent, a portion of the centre of the main street of the city, and, to the same extent, to deprive all other inhabitants pf the city of the right and privilege previously enjoyed by them of the free and common use of the whole of the carnage way of said street. They were about to make a grant authorizing the grantees to impose a charge or tax of five cents on every inhabitant who should ride in their cars, while others offered to construct a road in the same manner, and charge only three cents fare, and in addition 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 of a railway on the ground of its being “ deemed good, useful, or necessary for the good rule and government of the body corporate,” or with a view to public convenience, would be a clear abuse of power and violation of duty.

Ho one can pretend that it would promote public convenience, or tend to the good rule and government of the body politic, to 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 v. Lewis (4 Mylne & Craig, 249), the defendants were the Poor Law Commissioners and the guardians of the Holborn Union, under the poor law amendment act. (4 and 5 Will. IV. 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 power over property which the law does not give them, this court no longer considers them as acting under the authority of their commission, but treats them, whether they be a corporation or individuals, merely as persons dealing with property without legal authority.” * * * “ And if, under pretence of an authority which the law does give them to a certain extent, they go beyond the line of their authority, and infringe or violate the rights of others, they become, like all other individuals, amenable to the jurisdiction of this court by injunction.”

Is it not clearly going beyond the line of any authority vested in the Common Council to deliberately subject every inhabitant of the city to the necessity of paying five cents every time he may ride on the proposed railway, when others will construct the road in the same manner, and with the same accommodations, and charge only three cents ? Is there any lawful authority to unnecessarily 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 street ?

In the case of the Attorney General against Forbes, the bill was filed in the name of the Attorney General, at the relation of Thomas Tindale, treasurer, and by the relator on behalf of himself and all other of the inhabitants of the county of Bucks (2 Mylne & Craig, 123). The court, in speaking of the question of parties, as well as of its jurisdiction, remarked, that in informations and proceedings for the purpose of preventing public nuisances, the ordinary course is for the Attorney General to take it on himself to sue, as representing the public; but it is equally certain that individuals who.conceive themselves aggrieved may come forward and ask the assistance of the court to prevent a public nuisance, from which they have individually sustained damage.”

I can perceive no good reason why a court should not restrain a municipal corporation as well from infringing the public franchise, in a case presenting an unquestionable abuse of power, to the prejudice of individuals and the whole body politic, as from granting mere property to a particular association of individuals, where others stand ready and offer to pay double the price for the same property.

Municipal corporations possess only such powers as are specifically granted by the act of incorporation, and such as are necessary to carry into effect the powers expressly granted. In the 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 by the charter or by positive law, whether it be done by resolution, ordinance, or under the form of legislation, their act is without authority and void. (Hodges v. City of Buffalo, 2 Denio, 140; Halstead v. The Mayor of New York, 3 Coms. 430.)

An attempt to sell to 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 power, and a gross fraud upon the public, which 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 protection of the public required; and if the action invoked could not be rested on any better principle, it might be safely placed on the ground that “ fraud and damage, coupled together, entitle the injured party to relief in any court of justice.”

It is not intended to deny the proposition, that where the exercise of discretion 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 be exercised, and to the injury, and in fraud of the rights of individuals and the public, I know of no principle or case which precludes the interference of the court to prevent the threatened injury. (Oswego Falls Bridge Company v. Fish, 1 Barb. Ch. 547; The Attorney General v. Mayor, &c., of Mobile, 5 Port. 279; The Attorney General v. The Great Northern Railway Company, 3 L. & E. 263; Munt v. Shrewsbury and Chester Railway Company, id. 144; Waterman’s Eden on Injunction, vol. ii., p. 259, 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 point no opinion is intended to be expressed—it is absurd to insist that, as between two sets of applicants, equally reputable and able, and offering to accept a grant on the same terms, as far as the mode and manner of constructing the road and of furnishing and running cars are concerned, there is any pretence for saying that, in the exercise of an honest or intelligent discretion, the grant may he made to one set of applicants, and allow them to charge five cents fare, instead of making it to another set of applicants, who would take it with a prohibition against charging more than three cents fare.

It would be a remarkable abuse of power and violation of duty to make a grant interfering with the right of every citizen to the common and unobstructed use of the street as a highway, and appropriating it in part to the exclusive use and personal emolument of the grantees, and confer on them power to tax every inhabitant of the city and State five cents for riding in the cars, when others would take the grant, and furnish the same accommodations to the public, with power to charge only three cents fare.

If such an abuse of power and breach of trust cannot be restrained, then the making of the grant could not have been restrained, if the purpose had existed and been avowed, to make it for the nominal consideration of one dollar.

That it may be restrained, is incontestable, as I think, both upon principle and authority.

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 whole people, 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 restrain a public nuisance, when it occasions special injury to the plaintiff beyond that which the community suffers in common with him, is expressly affirmed in the Attorney General v. Forbes, and has been repeatedly decided in reported cases (6 J. Ch. 439; Corning v. Lansing, 8 Simons, 193; Spencer v. London and Birmingham Railroad Company, Id. 272; Sampson v. Smith, Story’s Equity, vol. ii., s. 934; State of Pennsylvania v. Wheeling Bridge Company, 13 How. Sup. C. R. 566, 576, 608).

In this case the complaint alleged facts which, it is claimed, establish the position, that the construction 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 required, and it became his duty, to exercise. Ms judgment and determine whether this claim was well founded. Whether he decided wisely or not, is wholly foreign to the question of his jurisdiction. If he decided erroneously, the proper course of the defendants was to apply to him to vacate the order.

If the alleged facts stated inffhe complaint were untrue; if they placed the intended action of the Common Council and their motives with respect to it, in an aspect grossly unjust to them, and if the allegations in the complaint were a fraud upon the court, the appropriate course was to show this by affidavit, and move for a summary discharge 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 v. Gibson, 7 Paige 513, and in Russell v. East Anglian, Railway Company, 1 L. and Eq. R. 101, are applicable to the duty of the defendants in this case. In the latter case, the court said:—“ 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 of a receiver, to disobey an injunction, or to disobey any other order 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 importance to the interests of .the public, to the peace 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 authority for the benefit of the public, and it can only do that, as I have before said, by supporting its officers in the execution of the orders and processes of the court, and not allowing disobedience and resistance to be the mode of questioning the propriety 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 resolutions 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 entirely upon their mil whether any new members shall be let into the association, and upon what terms. If any of the clauses of the resolutions partake of a legislative or by-law character, they are few and unimportant, compared with those which relate to matters purely of contract. The injunction order, by its fair meaning, prohibited the .Common Council from granting to Sharp and others, the right or privilege, or in any manner authorizing them, to construct any railway in Broadway.

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 only remained to be seen whether the grantees would file their written acceptance, agreeing to conform thereto. This was immediately filed. Assuming that the act is revocable, it is enough to say, that instead of there being a purpose manifested to revoke it, it was committed against the objections of the mayor, in defiance of the injunction, and resolutions were passed rebuking the judge who made the order for attempting to restrain the doing of the act.

I tbink 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 prohibition 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 undertake to act under such authority would be wrong-doers, an injunction restraining them from doing such acts would not be void. That is the only proceeding which could prevent the necessity of a multiplicity 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 grant could be made. It was by their acts only that the injunction could be violated. A corporation acts only by its officers and agents. When enjoined from doing anything, and the injunction is disobeyed, the disobedience is not the act of the intangible and impalpable 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 commencement of a suit against it. And an order which restrains a corporation from doing an act restrains every officer of it from doing the thing prohibited; and if be does the act knowing that an order has been made prohibiting it, 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 agt. If the officers cannot be punished, no one can be., The idea of sequestering the property of a municipal corporation for disobeying an order prohibiting it from doing acts highly injurious to every citizen of the body politic, with a view to compensate those citizens for the injuries thus inflicted, is not intelligible. It is taxing them to pay losses occasioned by a breach of trust committed by those intrusted 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 “disobedience to any lawful order, decree, or process ” of the court, but that “ all other persons ” may be. (2 R. S. 534, s. 1, sub. 1, 3, and 8.) It is laid down in books of practice, that, as “an injunction to restrain waste, &c., is usually directed to the party, his servants, workmen, and agents, consequently, if his servants, workmen, or agents, having had notice of the injunction, do anything inhibited by it, they will be guilty of a contempt.” (1 Barb. Ch. p. 634, and notes.) This rule is in terms only of the 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 coiirt is concerned, it is enough that the party has actually notice of it, although it may not have been regularly served on him. (1 Barb. Ch. pr. 693, notes 1, m, n, and o, and cases there cited.) McNeil v. Garrat, 1 Young & Coll. 97, is a recent. authority to that effect. Matthews v. Smith, 3 Hare, 331, is an authority that a party obtaining the injunction may be punished for pub-listing a notice respecting it, which misrepresents the relative position or character of any of the parties to the cause. In ex parte Van Sandau, 1 Phillips, 445, a publication speaking in less severe and disrespectful terms of the judgment of the court than the rebuking resolutions did of the injunction order made in this action, was characterized by Lord Oottenham as a gross contempt of the court.” Lord Hardwick, in a case of the “ General Evening Post,” 2 Atk. 469, in enumerating the different kinds of contempts, 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 2 R. S. § 10, sub. 6 ; id. 535, § 1, sub. 8; 2 Daniels, Ch. R. 1277; 5 Price, 518; Waterman’s Eden on Injunction, p. 94 to 102-2.

The effect of not serving with the injunction order a copy of the affidavit on which it is granted, is, that a defendant may procure the order to be set aside for irregularity. (2 Paige, 394.) •

An injunction order regularly granted, of which a party has knowledge, cannot be treated as a nullity, and violated with t impunity, before the party obtaining it, in the exercise of due diligence, is able do 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 have not had full and accurate information of the acts forbidden by it. ■

I am of the opinion that no objection, either of form or substance, has been presented which can exonerate Mr. Sturtevant from the consequences of a deliberate and marked disobedience of the order, or which could furnish a respectable apology for the court for omitting to take such notice of it as is due to the interests of the public, and to a proper administration of justice in behalf of parties to suits, and of the whole community.

Motions for attachment without further argument were then granted against the following aldermen,—Abraham Moore, Dudley Haléy, Jacob F. Oakley, Thomas J. Barr, William M. Tweed, Richard T. Compton, William. J. Brisley, Wesley Smith, James M. Bard, Asahel A. Denman, William H. Coryell, John Doherty, and William J. Peck; and against the following assistant aldermen,—Josiah W. Brown, Samuel R. Mabbatt, Timothy O’Brien, John F. Rodman, Patrick Breaden, Charles H. Ring, Helmus M. Wells, Edwin Bouton, William H. Wright, Jacob H. Valentine, William McConkey, Joseph Rogers, and Thomas Wheelan.