1 Duer 512 | The Superior Court of New York City | 1853
The provisions of the statute, upon reading them, appear sufficiently clear, but as the question now raised, as to their construction, is of considerable importance, we shall take time to consider it. The defendants must, therefore, be recognised to appear again on Tuesday next (March 1st), and must then be prepared to answer the interrogatories, if we shall hold them to be relevant.
March 1st. Dube, J.—I retain the opinion that the construction of the statute, under which these proceedings are had, is free from any reasonable doubt. (2 R. S., tit. 13, chap. 8, part 3, p. 534.) It is true, the statute is entitled, “ Of proceedings, as for contempts, to enforce civil remedies, and to protect the rights of parties in civil actionsand it is also true, that the court can pronounce no judgment at all unless it appears that the misconduct of the defendant “ was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies” of the relator in a pending action. (§ 20, 2 R. S. 538.) And'it is from these circumstances that the argument which has been addressed to us on behalf of the defendants, who have excepted to the fifth and sixth interrogatories, derives all its plausibility. It is evident, however, from other provisions in the statute, that the court may impose a penalty, even when no indemnity, beyond his costs and expenses, is due to the party
The specific question tinder consideration is, shall the defendants be required to answer the fifth and sixth interrogatories? This proceeding is based on an allegation, that the defendants have disobeyed an injunction order made by a judge of the court, in an action pending therein. The papers on which the attachment was issued, allege that the defendants, members of the Board of Aldermen, in addition to disobeying the order, voted for a certain preamble and resolutions relating to the issuing of the injunction, and the acts prohibited by it, and professing to state the grounds on which they assumed to disobey it. The fifth and sixth interrogatories call upon them to answer whether they did not vote for such preamble and resolutions ? and whether by such votes they were not adopted by the board of which they were severally then members? To determine whether they should be required to answer, it is necessary to look at the nature of the present proceeding ; the ends that may properly be accomplished by it; and whether the fact of having voted, or having omitted to vote for such preamble and resolution, is one that can legitimately be taken into consideration in the final disposition of this matter, and which can justly affect the ultimate decision.
The Code provides, that the order which has been disobeyed,
It will be noted that séctions 21 and 22 speak only of the fine to be imposed, and nothing in relation to the imprisonment. Section 20 gives the power to fine and imprison. Sections 23 and 24 relate to the matter of imprisonment, and embrace two classes of cases. The 23d regulates the extent of the imprisonment, where the misconduct complained of consists in the omission to perform some act or duty which it is still in'the power of the offending party to perform; and provides that, in such cases, he shall be imprisoned only until he shall have performed such act or duty, and paid such fine as shall be imposed, and the costs and expenses of the proceedings. In such a case, the order and process of commitment must specify the act to be done, and the amount of fine and expenses to be paid. If able to pay the latter, the term of his imprisonment will depend exclusively on his own volition; for when he has paid the fine and expenses, and done the act, or performed the duty, it will terminate, and he will be entitled to a discharge.
In all other cases; that is, in all cases except those in which the misconduct alleged consists in the omission to perform some act or duty, .which it is yet in the power of the defendant to perform, he may be punished' by imprisonment, “ for some reasonable time, not exceeding six months,” and until the expenses of the proceedings are paid; and also, if a fine be imposed, until such fine be paid, (ib. § 25.) The power to punish by imprisonment, conferred by section 20, so far as the imprisonment is ordered by way of punishment, is limited by section 25, to six months; but if the fine and expenses are not paid, it would last through life but for the act of 1843, chapter 9. This limitation of the power to imprison for a period not exceeding six months, has no connexion with the imprisonment ordered to compel the payment of the fine imposed, and of the costs and expenses of the proceedings. For if the power to punish by imprisonment in this class of cases, is a power to be exercised for the sole purpose of compelling payment of the fine and expenses, then it would follow—as a limit
In Sullivan v. Judah, 4 Paige, 447, he said, “ In this case, it is evident that the complainant has sustained no injury by the proceedings of the defendants, although they have proceeded in direct opposition to the injunction. . And the excuse offered by them, is sufficient to prevent the imposition of any considerable fine as a punishment for contemning the process of the court.”
In Lansing v. Eaton, 7 Paige, 367, he remarked that, “ The fact that the defendants acted under the erroneous advice of counsel, to whom they applied for information, how they could elude the justice of this court, and, at the same time, avoid punishment for a breach of the injunction, cannot protect them from a fine sufficient to compensate the adverse parties for the 'injuries they have sustained'by the wrongful acts complained
In the Albany City Bank vs. Schermerhorn, 9 Paige, 379, in which the Chancellor, on appeal, reversed a Vice-Chancellor’s order, adjudging parties guilty of a contempt, he stated that an order of conviction should direct “ to whom the tine is to he paid, or what is to be done with such fine when paid, &c., so that the order, and the process of commitment founded thereon; may show the nature of the conviction, and what the defendant is to do to entitle himself to a discharge from imprisonment.”
In the People ex rel. Backus vs. Spalding, 10 Paige, 284, the report of the case shows that Spalding had been convicted, by a Vice-Chancellor, of a wilful breach of an injunction issued by a creditor’s bill filed against him. After he had been committed, he was discharged by a Supreme Court commission, in proceedings under a habeas corpus. The Vice-Chancellor made an order for a re-commitment, on the ground that the commissioner had no jurisdiction in that case to order his discharge. From the order re-committing him, Spalding appealed to the Chancellor, who affirmed the order. An appeal was taken to the court for the Correction of Errors. That court affirmed the judgment of the Chancellor.
Chief Justice Kelson, in delivering the opinion of the court, remarked, that “ the act, for which the appellant had thus been adjudged guilty, is a criminal offence under the revised statutes, and was so before at the common law, subjecting the offender to indictment; and, on conviction, to fine and imprisonment.” (2 R. S. 692, § 14, ib. 697 ; 4 Bl. Comm. 139.) “ In cases confessedly criminal and indictable, the penalties for which would ordinarily go for the benefit of the people, the courts are authorized to impose a fine, with a view to the indemnity of the party aggrieved, his acceptance of it being declared a bar to any private action for the injury. The fine, however, is no less a penalty for a criminal act, than if inflicted for the benefit of the people; but the imposition of it in the way prescribed, accomplishes the double purpose of punishment for the misconduct on the one hand, and indemnity to the aggrieved party on the other.” (7 Hill, 301.) In that case,
“ The proceeding, after the attachment issued, was for a criminal offence; and although the respondent might incidentally derive a benefit from the conviction, still the proceeding was not upon the original demand, or for the recovery of the debt.” The judgment of the Chancellor was affirmed, by a vote of twenty-two to two.
The views expressed of these proceedings in the cases referred to, do not at all conflict, nor do they intimate any interpretation of the statute at variance with the ordinary and natural meaning of its terms; if each opinion cited is read, as all opinions should be, with reference to the particular facts of the
It seems to be clear, also, that in case of wilful disobedience, although no actual loss is suffered, a fine not exceeding $250 may be imposed, under section twenty-two, solely as a punishment of the criminal offence ; and that imprisonment may be ordered, under section twenty-five, for a reasonable period— “ as the nature of the case shall require.” (Section 20, ib.) If imprisonment cannot be ordered under section twenty-five, solely with that view, then that part of the section which prescribes the limit of six months, is nugatory; for the reason, that imprisonment ordered to coerce the payment of the fine, must continue until it is paid; while this section expressly provides, that the imprisonment shall be “ until the costs and expenses of the proceedings are paid; and also, if a fine shall be imposed, until such fine be paidand this is in addition to an imprisonment ordered for some reasonable time not exceeding six months; which, of course, must terminate when the
What effect the passage of the resolutions referred to in the interrogatories should justly have upon the final judgment of the court, is a question not now under consideration; and is one in respect to which the parties should be heard, and which should be carefully considered, with all other attending circumstances, before any opinion is formed. But it must be obvious, that the passage of those resolutions unexplained is pertinent to the question whether the disobedience was wilful, or was an act done in good faith, and in the honest belief that nothing prohibited by the injunction was done by the defendant in voting for the resolutions referred to in the fourth interrogatory. If they tend to show, that the acts which are alleged to constitute a violation of the injunction were done in good faith, and in the honest belief that they did not violate it, then, according to all cases, and upon principle, there should be neither fine nor imprisonment, for the purpose of punishment, if no actual loss has resulted to the relators. There should be neither fine nor imprisonment, for the very reason that the act of disobedience was not wilful, but was done in good faith and without any intention to disobey. If this be so, then it would seem to be equally incontrovertible, that if, unexplained, they tend to show that the disobedience was deliberate and designed, and that the acts done were understood as being expressly prohibited by it, such a consideration cannot be overlooked, in
The' court then decided that the interrogatories excepted to must be immediately answered.
Alderman Sturtevant then filed the following answer, with which those of the other aldermen (which were also filed) corresponded in substance.
To the fifth interrogatory he saith, that he did at such meeting, and immediately after the adoption of the said resolution, move the adoption of the preamble and .resolutions, of which a copy marked C. is annexed to the complaint.
That in making that motion, his only motive was to vindicate the dignity and assert the rights of the Common Council of the city of Hew York, and of their whole constituency; which dignity and rights he believed to be unjustly and illegally assailed by the injunction and complaint on which it was founded, of a portion of the contents of which he had heard through public rumor. That the motives of the members of the Common Council were aspersed, and then self-respect wounded by the charges of the said complaint; and that the circumstances under which the injunction was obtained and served, were highly irritating.
Thte resolution had been pending nearly two months; the * chambers of the judges were within a few rods of the chambers of the Common Council and the mayor’s and other public offices of the city, and in the same building with the office of
This respondent also believed, as he still believes, that the court had no jurisdiction to grant the injunction; and knowing that it is the right of every citizen to question and defy the exercise of illegal power, he did, under the influence of all these considerations, move and vote for the said resolutions; but, in doing so, he did by no means intend any disrespect to Judge Campbell or to question the exercise of any rightful power, or offer any resistance to the law, or any contempt to the lawful authority of the court.
In answer to the sixth interrogatory he said, that the said preamble and resolutions were adopted by the board of aider-men.
These answers being read, the questions as to the nature and extent of the punishment that ought to be imposed, were argued in extenso by the counsel of the parties.
March 12th.—The defendants being present, the court proceeded to judgment; and the judges delivered the following opin' ons:—
We are now to determine whether the members of the Common Council, who have been s&verally brought before us by a process of attachment, have been guilty of the misconduct that is alleged against them, and if so, whether this misconduct has operated, or was calculated “ to defeat, impair, impede, or prejudice the rights or remedies ” of the relators in the prosecution of their original and pending suit (2 R.
The misconduct that is alleged against all the defendants in »the affidavits upon which the motions for the attachments were founded, and in the interrogatories that have since been filed, is that of a contempt of the authority of this court, by an act of positive disobedience to its lawful order ; and the aldermen who are before us, with the exception of Alderman Doherty, are also charged with having given their assent, by their votes, to the passage of certain resolutions, not only denouncing the order, which they were required to obey, as an unprecedented act of usurped authority, but containing scandalous imputations upon the conduct and motives of the judge by whom the order was issued. These resolutions are set forth at large in the proceedings, and it has been insisted that they are evidence, not merely in support of the principal charge, but of a distinct and substantive offence, which may and ought to be treated as' a wilful and criminal contempt.
It is manifest, that we cannot do otherwise than adjudge each of the defendants to have been guilty of the alleged contempt, by his personal refusal to obey the order of injunction which has been so publicly violated, if we adhere to the opinion, that the order was rightfully issued, and properly served, and individually binding; and upon these questions it is only necessary now to say, that the convictions which we fully entertained, and have endeavored fully to express, are wholly unchanged—they have not been weakened, but confirmed, by subsequent reflection and research. We have held, and now hold, that the order of injunction commanded each individual member of the Common Council to-refrain from aiding or assisting in the performance of the corporate act which the order prohibited; and, consequently, that it was violated by every member who voted for the resolution in favor of Jacob Sharp and his associates, with the intent that the grant, which the resolution contained, should become, by its immediate acceptance, operative and effectual. Each of the defend-. ants, in his answer to the fourth interrogatory, has admitted that he voted for this resolution—nor has one of them attempted to
Nor is any argument requisite to show that the misconduct of the defendants, in violating the injunction, has tended to impede and prejudice the rights and remedies of the relators in the prosecution of their suit. Such was not merely its tendency and design, but such has been its actual effect. If the grant forbidden by the injunction had not been made, all the relief that the relators seek might be obtained in the present suit. The grant to Jacob Sharp and his associates has altered, in some degree, the nature of the relief to which the relators may be entitled. A decree, not merely prohibiting, but vacating the grant, must now be sought; and hence the grantees are necessary parties in the further prosecution of the suit. They are now the real parties in interest, and consequently, a final decree affecting their rights as such, cannot be made, until they shall have been brought in as defendants, by a supplemental complaint. The necessity of a proceeding which impedes, and, by the expense and delay which it creates, prejudices, the remedy of the relators, as plaintiffs in the suit, has arisen solely from the misconduct of the defendants now before us.
Reserving for separate consideration the resolutions passed by the Board of Aldermen, it follows from the observations that have now-been made, that each of the defendants, by violating the order of injunction, has been guilty of the misconduct alleged against him, and which, as a contempt of the court, I am required to punish. Such accordingly, in relation to each of them, is the judgment that I now pronounce.
The statute applicable to the case makes it the duty of the court, when the alleged misconduct of a defendant, prosecuted for contempt, and its effects or tendency, have been proved to its satisfaction, to impose upon him the penalty of a fine or
What, then, is the penalty that the nature of this case, it may justly be said, requires us to impose ? What the measure of punishment with which the misconduct of the defendants, in their public disobedience to a positive and most intelligible order of the court, ought to be visited? Banishing from our minds all extraneous and personal considerations, and fixing our attention alone upon those which arise upon the evidence, and which mark the character, and throw light upon the motives, of the transaction, what is the answer that these questions ought to receive ? The answer, that we deem to be appropriate and necessary, and the conclusions at which we have arrived, I shall proceed to state, as the judgment of my associates, as well as my own; and it is.due to the public and to the defendants that the reasons by which we have been governed, in forming our judgment, shall be fully explained. This is one of the occasions on which the interests of truth and justice require, that the judgment of the court shall not merely be declared, but vindicated.
Had it been proved, that the relators had sustained an actual loss, from the misconduct of the defendants, we should have had no discretion as to the amount of the fine to be imposed. They would then have been entitled to a full indemnity, over and above their costs and expenses ; and, consequently, a fine, which, equally divided among the defendants, would have secured that indemnity, must have been imposed. (2 R. S. p. 536, sec. 21.) But we think, that no evidence has been given of an actual loss, for which a definite sum, as a compensation, may
In cases in which the defendant is adjudged to have been guilty of the alleged contempt, but no loss, beyond his costs and expenses, to which in all cases he is. entitled, is shown to have resulted to the prosecuting party, the court may impose a fine not exceeding $250, and imprison the defendant for a period not exceeding six months, or, in the exercise of its discretion, may inflict either penalty in its full, or a limited, extent (2 R. S. p. 537, secs. 22, 23, 25). But we are clear in the opinion Fiat in those cases no penalty whatever, beyond the costs and expenses of the prosecution, ought to be imposed, unless it appears that the misconduct, as proved, was, in its nature, a criminal contempt, which, as such, the court, for the sake of a public example, and the necessary maintenance of its own rights and authority, is bound to punish; and such, we apprehend, is the settled construction of the statute.
Hence", in all these cases, the first necessary inquiry is, whether the alleged contempt was wilful and intentional, or accidental and undesigned ? the result of pardonable ignorance, error, or inadvertence ? or a deliberate act of conscious disobedience ? And when the disobedience is shown to have been intentional, and the question of a fitting penalty is alone to be determined, all the circumstances, by which the offence was palliated or aggravated, must be considered, in determining the measure of its punishment; and, in the discharge of this duty, the answers of the defendants to the interrogatories demand special attention; whether the language is that of regret and apology, or of contumacy and defiance, is a material inquiry.
These- views have been present to our minds in examining the cases now before us, and we lament to say that we have been unable to resist the conviction that :the disobedience of the defendants, each and all of them, to the order of injunction, was not the result of accident or inadvertence, but was intentional, deliberate, and wilful. I mean “ wilful ” in the sense of
Hor let it be said, that in stating this as our undoubting conviction, we disregard and reject, as unworthy of credit, the declaration made by each of the defendants, in his answer to the fourth interrogatory, namely: that “ he believed that the injunction did not purport, nor mean to restrain them from voting, in favor of the resolution” making the grant which was prohibited; for although we are forced to regard this declaration as ambiguous and evasive, it is not necessary to reject it as wholly untrue. It admits of an interpretation which may reconcile it with the conviction we have expressed, while, if understood in the obvious sense, which the words seem intended to suggest, it cannot be reconciled with the public acts and declarations of the Board of Aldermen, at the very time, to which this declaration, in their answers, refers. And were we reduced to the painful necessity of an election, it is to contemporaneous declarations, made for the very purpose of explaining and vindicating this act of disobedience to the process of the court, that our confidence and credit would in preference be given. The resolutions introduced by Alderman Sturtevant, and voted for by all the aldermen, .with one exception, who are now before us, are conclusive evidence that the order of injunction was then understood by them in the'very sense that we have given to it, and that, thus understanding, they meant to violate it.
Why a course of proceeding, by which all these consequences would have been avoided, was not in fact adopted, it is unnecessary and would be irrelevant, now to inquire. We are, however, told by the Assistant Aldermen that they not only believed, but were advised by counsel, that the injunction did not purport nor mean to restrain them from voting for the resolution which they reconsidered and adopted; but we are bound to presume that this advice was given, and was understood to be given in the belief that one or other of the courses, that we have indicated, would be followed—in other words, that although the resolution might be passed, its effect, as a grant, would be suspended, since we find it impossible to believe that any counsel could have advised them that if they adopted the resolution, so as to render it effectual, as a grant, the injunction would not be violated-. Ho counsel could have advised them that the injunction would not be broken, if they made the grant,'which in plain words it commanded and enjoined them to desist from making. While upon this subject, we deem it necessary to observe, that the advice of counsel,.when stated in general terms, as it here is, will never be accepted by this
Passing then from that, Avhich we deem a necessary conclusion, that the defendants knew what the 'injunction meant, and meant themselves to disobey it, we are next to consider, whether any reasons have been alleged that should induce the court to
The only reason that has been alleged, that we deem it at all necessary to notice, is, that the defendants fully and sincerely believed that this court had no jurisdiction to issue the injunction, and, consequently, that they were under no obligation to obey it. That, as a court of equity, we possess the jurisdiction, we have already decided; but it has been contended that, conceding our jurisdiction, the opposite belief of the defendants should induce us, so far as we can, to exempt thejn from the punishment their disobedience might otherwise have merited, since, if intentional', it was conscientious, and the result of a pardonable error: The answers of the Assistant Aldermen contain no averment of their past belief in our want of jurisdiction ; but, as they now deny it, we presume that the omission was accidental, and shall give them all the benefit to which the excuse, had it been made, would entitle them.
Our first observation here is, that the averment of the defendants’ belief in our want of jurisdiction, is plainly immaterial, unless the meaning is, that this belief was the motive of their conduct. It is manifest that a belief, which had no influence upon their action, can never be permitted to define its character. The fact that we have no jurisdiction would be a complete defence, but the erroneous belief can be no excuse for an act of disobedience with which it was wholly unconnected. To set up the excuse, therefore, is to admit that the disobedience was intentional.
We next observe, that it is not alleged that this belief of the defendants, however sincere and conscientious it may have been, was founded, at all, upon the advice of counsel; still less is it pretended that, upon this ground, they were advised by counsel to “disregard utterly” the order of injunction. For aught that appears, or we are at liberty to intend, it was the advice of Alderman Sturtevant alone that was given and followed. Had the fact been otherwise, it was so material, we must believe, it would have been stated.
Under these circumstances, we are constrained to say, that the alleged belief of the defendants, that the injunction which
In the opinion that I gave, in granting the motion for an attachment, I said, that “if the order of injunction Avas issued without rightful authority, the members of the Common Council, in the just maintenance of their own rights, were bound to disregard it,” and this language has been quoted upon the present argument; but I added—language that was not quoted —that “ if this court, upon any ground, possessed the jurisdic
An unconstitutional law has no force, it creates no duty of obedience; but he who resists a law, because he thinks it unconstitutional, may be involved, by his mistake, in the guilt, and incur the penalty, of treason. Resistance to a law, and disobedience to the process of a court, stand upon the same ground, and every citizen is bound to know that his private conviction, if erroneous, that the law or the process is void, will never be admitted as a justification, and very rarely as an excuse. His only safe course is to obey, knowing that if wronged by his obedience, the law will afford him a full redress.
I have no right, and do not mean to draw in question the sincerity of the belief that the defendants have avowed, and under which they claim to have acted, yet it is not a little singular that this belief was entertained, since there are several cases in which the jurisdiction that is now denied has been exercised, and its exercise, although questioned, submitted to by the Common Council. I refer, without dwelling'upon them, to the case of Lawrence v. The Mayor and Corporation, 2 Barb. 577; to that of Brower v. The Corporation, 3 Barb. p. 254; and to a more recent case, which, I believe, has not yet been reported, that of Christopher and Tilton v. The Corporation and others, —the well known Washington Market case. In each of these cases, the objection to the jurisdiction of the court, upon the ground that the inj unction prayed for was an illegal interference with the legislative action of the Common Council, was distinctly raised; in each, it was decisively overruled, and in each, the judgment, as I understand, was acquiesced in by the Corporation. ' In the last case, Judge Roosevelt maintained the jurisdiction of the Supreme Court, as a court of equity, upon the
It is true, it was held by the court that the application was needless, and that the injunction did not impose the command which the Assistant Aldermen- feared to violate, but the ground of our opinion was, that the ordinance, which they wished to reconsider, was not the grant or contract which the injunction forbade to be executed, but contained an express provision, that the permission, which it gave of constructing a railroad, should not take effect until a sufficient agreement between the grantees and the Corporation, to be drawn and prepared by the counsel of the latter, should be signed and executed. The application, however, was still pressed, and would, doubtless, have been granted, had not the counsel for the plaintiffs given a written stipulation that they would not insist upon that construction of the order of the court, which, it was feared, would be adopted and enforced.
It was in August or September last that these proceedings took place.
Remembering these facts, I pass, with much regret at the necessity, which my duty imposes, to the resolutions and preamble which were introduced by Alderman Sturtevant, and adopted by the votes of all the Aldermen, with the exception of Alderman Doherty, who are now before us. These resolutions and preamble, from the terms in which they are expressed, and the imputations which they plainly convey, are regarded by all of us, not merely as an aggravation of the contempt of wilful disobedience to the order of injunction, but as constituí
The preamble commences with saying that the judge had issued the injunction without “ any color of law, or justification,” words, which have not merely been demonstrated to be untrue, but, which, if they do not necessarily imply a charge of positive corruption, certainly do, of the grossest ignorance. The preamble proceeds to say that, as the injunction was issued at the close of a session and threw forward the period of showing canse against its continuance beyond the expiration of the session, and this, in regard to a measure that had long been pending, it bore “ upon its face a character of indirection,” (in other words, trick and dishonesty,) “ not less unjustifiable and not less unworthy of the judiciary” than its usurpation of authority and jurisdiction. As the indirection here charged is declared to be “ unworthy of the judiciary,” it is to the judge who issued the injunction hearing this character, that the dishonesty, which the term implies, is meant to be imputed. We forbear from any further analysis or comments. The plain meaning of the preamble and resolutions is this, that the plaintiffs, knowing that they had no right to maintain their suit, and could not by fair means defeat the measure to which they were opposed, resorted to those, which were indirect and unfair, and that the judge, who, without a color of law, issued the injunction, by continuing it in force beyond the expiration of a session which was about to close, lent himself to their fraudulent design. The publication of resolutions bearing this interpretation, we cannot but regard as a direct and very dangerous interference with the administration and course of justice. It was calculated to.prejudice the public mind in relation to the merits of a pending suit, to destroy all confidence in the integrity of a
We are proud, and justly proud, of our democratic institutions, and rejoice that our country—a country, in which the legal distinctions of rank are wholly unknown, and the people alone is sovereign—exhibits a spectacle of peace, security, and order, a wide-spread scene of human happiness, such as no other country or age has been privileged to witness. But we shall greatly err, if we attribute the multiplied blessings we enjoy, our unexampled progress, and unexampled prosperity, solely to the nature and force of our peculiar institutions. The experience of other countries, in past ages, and in the present, might well convince us that the institutions in which we glory, would be prolific sources of confusion, discord, and misery, were the disposition and habits of the American people, resulting from a long course of training and discipline, materially changed; nor is there any hazard in saying, that it is to the peculiar, the distinctive character of the American people, that the admirable and successful working of our peculiar institutions, is mainly and eminently due. There are certain great truths that have been long and deeply impressed upon our minds and consciences, and it is the constant influence and moral efficacy of these truths, as controlling our actions in all the relations of life, public and private, that has formed our national character—the character from which our institutions derive their vitality, and to which they owe their success. These vital, governing truths, are, that liberty and order are inseparable, and that the freedom which is not defined and restrained by law, and consciously, willingly, and wholly, subject to its dominion, is sure to degenerate into licence, proceed
The judge then proceeded to pronounce the sentence of the court.
I have no doubt that the sentence that we are about to pronounce will be thought by many far more lenient than the nature of the case, and the observations that I have made would j ustify. But there are many circumstan ces which have induced us to think, that in the existing state of public opinion, it is far better to err upon the side of moderation than upon that of severity. The most aggravated case is that of Alderman Sturtevant; he was the author of these resolutions. His framing and preparing them was a deliberate act. Their adoption by his brethren might have been the result of haste and passion: His case, therefore, must be distinguished from the others. The sentence as to Alderman Sturtevant is, that he shall be impri
In relation to each of the Aldermen who voted for the resolution of Alderman Sturtevant—with the exception of Aider-man Wesley Smith, who, in suitable terms, has expressed his regret, and has made what we deem a sufficient apology—we impose upon each of them a fine of $250, in addition to the "sum of $101 51 for the costs and expenses of the relators, to he paid to them. Alderman Doherty voted against the resolutions, and Alderman Smith has very properly submitted himself to the judgment of the court by a concession of his error. Upon each of them, therefore, as well as upon each of the assistant aider-men who laid the resolutions upon the table, we. impose a fine of $100, to he paid to the treasury of the city, in addition to the sum of $101 51 for the costs and expenses of the relators. In each of these cases a warrant will be issued, committing the parties to prison, until the fine that has "been imposed,"is paid-
This proceeding has reached that stage, at which it becomes the duty of the court to decide whether the defendant is guilty of the misconduct alleged against him, and if it determines that he is, to also decide what the punishment shall be.
Although this is in fact a proceeding at Special Term, yet having, in connexion with my brother Emmet, sat with the judge before whom the proceeding is pending, not merely to assist him by acting advisorily, hut upon the understanding that the counsel of neither party expects the questions that have been argued here to he re-argued on any appeal that may he taken to the General Term, but that the final determination to he made at the Special Term will he passed upon at the General Term, without further argument; I deem it due to the position in which I am placed, with respect to this proceeding
The complaint, which was duly verified, prayed for an injunction, restraining; and on such complaint an order was made by a judge of this court, “commanding and strictly enjoining the defendants (therein), the Mayor, Aldermen, and Commonalty of the city of New York, their counsellors, attorneys, solicitors, and agents, and all others acting in aid or assistance of them, and each and every of them,” to “ absolutely desist and refrain from granting to, or in any manner authorizing Jacob Sharpe and others” (the persons named in the resolution, a copy of which was annexed to the 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 track for a railway in the street known as Broadway, in said city of New York, from the South Ferry to Fifty-seventh street, or any railway whatsoever, in 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.”
The injunction order was granted on the 27th of December, 1852, in an action in this court, in which the relators were pi aintiffs, and recited, that it appeared (to the judge who granted it), from the complaint in that action drdy verified, that the plaintiffs were entitled to the relief demanded in the complaint, and that such relief consisted 'in restraining the defendants as hereinbefore stated.
Before the alleged disobedience of the injunction, a copy of the summons and complaint, and the injunction itself, were duly served on the mayor of the city. The injunction was also served on each member of the Common Council, the defendant being one, by exhibiting to each member personally, the injunction itself, and delivering to and leaving with him a copy of it, and such service was made prior to the alleged disobedience.
On the 29th of December, after such service had been made, the Board of Aldermen, by the votes of a majority of its mem
A copy of this resolution, in the form in which it was finally adopted, was annexed to the complaint, which alleged that the members of the Common Council avowed a purpose to pass it, and were continuing their session by adjournments from day to day for the purpose of passing it, and that the persons named as grantees in the resolution avowed a purpose to accept the grant as soon as made, and to immediately proceed, under the authority conferred by it, to tear up the pavement and construct a railway in Broadway. . '
Immediately after the passage of this resolution by the Board of Aldermen, the defendant introduced before that body a certain preamble and resolutions (a copy of which is annexed to the interrogatories filed on this proceeding and marked C), and on his motion, it was adopted by the votes of a majority of that body, including his own. The defendant, in his answer to the interrogatory put to him, states that, at the time of voting for the resolution creating the grant, he did “ believe that the said injunction did not purport, and did not mean to restrain him from voting in favor of the said resolution.”
The preamblé to the resolutions introduced by him immediately thereafter, and adopted on his motion, recites that the judge who made the order had granted it “ without color of law,or justification;” and had assumed the prerogative of directing and controlling the municipal legislation of the city, by prohibiting the defendants therein “ from performing a legislative act;” that said injunction “ 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;”
The first of the resolutions annexed to the preamble declared 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 Yew York, and its constituency, by utterly disregarding the said injunction on its legislative action, and declaring its sense of the same.”
The second of such resolutions declared “ 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 consepuently to attempt to arrest his action on the bench, as such judge has in regard to the legislative action of the Common Council.”
ISTo regret is now expressed, either for having disregarded the injunction, or for having introduced or voted for the resolutions in relation to it and the action of the judge who granted it; but it is expressly stated in answer to the fifth interrogatory, that he then believed and still believes “ that the court had no jurisdiction to grant the injunction, and believing that it is the right of every citizen to question and resist.the exercise of illegal power,” he voted for the resolutions under the influence of the various considerations stated in his answer to that interrogatory.
It seems to be too clear to admit of doubt, that he voted for the resolution creating the grant, with' the intent to have the resolution become absolute and effectual as a grant, so far as the Common Council were competent, by any action on their part, to make it absolute and effectual, and with the expectation that the grantees would accept it as provided by the terms of the resolution. They did so accept it.
This act of the defendant was a clear and palpable violation of the injunction. (Ross v. Clussman, 3 Sand. S. C. R. 676.)
It seems impossible to deny, after reading the preamble and
There would seem to be no grounds presented on which the court is at liberty to draw the more agreeable and charitable conclusion, that the disobedience was unintentional, or was an act done in good faith, and believed not to come within the letter or spirit of the prohibition.
If it be true, as the defendant avers in his answer to the fourth interrogatory, that, at the time of voting for • the resolution creating the grant, he verily believed the injunction “ did not purport, and did not mean to restrain him from voting in favor of the said resolution;” then the censorious resolutions and pre-' amble introduced by him, and adopted on his motion, have not even the poor apology of momentary indignation, excited by a supposed usurpation of power.
If it be true that he believed it did not purport and did not mean to restrain him from giving the vote which he gave, and with the intent with which it was given, then it could not have been understood by him as interfering with any legislative or other act done by him as a member of the Common Council, with reference to the subject matter of this action.
If that was his sincere belief, then there was nothing to suggest the idea, “ that it was the duty of the Common Council on that unprecedented occasion, to protect its own dignity, and the rights of the people of the city of Hew York, by utterly disregarding the said injunction on its legislative action, and declaring its sense of the same.”
If-such-was his sincere belief, then in his judgment no legislative action contemplated or taken by him had been enjoined. Ho vote which he intended to give, or subsequently gave, had
Such an act is “ wilful disobedience,” is a criminal contempt, punishable as such, and indictable at common law and by statute.
Such an act was calculated to defeat, impair, impede, and prejudice the remedies of the relators. It has actually prejudiced, if not impaired and defeated their rights.
If the facts stated in the complaint are true, if the grant was about to be made under circumstances manifesting a gross abuse of power, and which would make it a fraud upon the rights of every citizen; if the railway, when built and used, would be a public nuisancé productive of special injury to the relatorsj it was their right that the grant should not be made.
If the injunction had not been violated, the whole question might have been determined in that action.
That cannot now be done.. At least it is not clear that it can be. The grantees have acquired rights, if the action of the Common Council has any legal validity; and they are not parties to this action. Bo judgment can be pronounced wMchcan operate directly on them.
If the decisions of the Supreme Court of the United States are a correct exposition of existing law, and as such controlling as authority, then I admit an inability to understand why the resolutions, giving authority to Jacob Sharpe and others, to construct a railway, and their acceptance of it, are not as much a contract as an act of a state legislature, conferring precisely the same powers and rights.
I had supposed it to be well settled that when the Legislature, of a state, whose powers are limited only by the prohibitions contained in the constitution of the state and that of the UMted
If the making of this grant was a legislative act, within the proper meaning of those terms, if the Common Council had full power to make it, if this power is beyond judicial control in every conceivable case, no matter how corruptly, fraudulently, or ruinously to the rights of individuals and the public, it may be about to be exercised, it will certainly be an anomaly, if, after the grant has been made and accepted, and the road built in every respect in conformity with the terms of such a grant as is contained in the resolution in question, the Common Council may rescind the grant, and divest the rights acquired under it, precisely as they may. order a street to be widened or extended, or may repeal any mere police ordinance or regulation.
If this be so, then it follows that although a repealing act passed in such a case by ’the state legislature would be nugatory and of no effect, yet such a legislature, has power to authorize another body to exercise legislative powers which it cannot exercise itself, and to give to the legislative action of the body it creates the force and obligation of law ; while the same action, if performed by itself, under the n> -st solemn forms of legislation, would be utterly nugatory and void.
The form of the proceeding by which the Common Council saw fit to confer full and absolute authority on Jacob Sharpe and others, to construct and operate by .themselves and their successors, a railway in Broadway, determined nothing as to the nature of the transaction between that body and Sharpe and his associates. If they chose to grant the authority by a resolution resembling in form a legislative act, then the nature of the transaction is to be determined by the character of its provisions. If they confer power on. certain persons to act
, Instead of being able to have it determined in this suit, whether it would not be a clear abuse of power on the part of the Common Council to make such a contract, and whether the execution of it would not produce a special injury to the plaintiffs beyond that to which every other citizen in common with them would be subjected, and to procure a judgment which would prevent the making of the grant, if the decision should be favorable to them, it now becomes necessary either to amend the proceedings and make the grantees parties, in order to obtain a judgment that can operate directly upon them, or to institute a new action for that purpose.
There can be no doubt then, that the act of disobedience was calculated to defeat, impair, impede, and prejudice the remedies of the relators.
The court were reminded on the argument, of the position taken on the hearing of the order to show cause, that the Code requires a copy of the affidavit on which such an order is made, to be served with it, and were referred to a decision of this court, that to bring a party into contempt for disobedience of an injunction order, it must have been served upon him by ex- " hibiting the order itself, at the time a copy of it is delivered. (Coddington v. Webb, 4 Sand. S. C. 639.)
The rule adopted, in the case cited, if adhered to as a rule to be applied to all cases, would be productive of irreparable injury to parties, as will be manifest from looking into the facts of some of the reported cases, which hold that a party may be punished as for a contempt, when he has knowingly and designedly done acts which he knew, at the time, the court had, by an order, prohibited him from doing, although at the time no order had been served, or in fact entered—but had only been directed to be entered. (Hull v. Thomas Head et al., 3 Edws. Ch. R. 236; The People ex rel. Morrison v. Brower, 4 Paige, 405; Stafford v. Brown md Others, Id. 360; 1 Craig & Phillips,
Where a party is directed by an order of court to do something, as to pay money, deposit papers, &c., and his whole obligation to act at all depends not only on the existence of the ' order, but also" upon its being served in a particular manner, it is a proper rule of practice not to hold him guilty of a disobedience of the order for not having done the thing required until he has been shown the order and furnished with a copy of it. There are reported decisions showing that in such cases the Court of Chancery has refused to punish as for a contempt, on the ground that the order itself was not shown to the party at the time of serving the copy.
If my brethren did not consider that the Aldermen and Assistant Aldermen were, as such, actual parties to the suit, and " that there was a complete service on them by the service made on the chief officer of the Corporation, and that such service having been made, it is enough to render the defendants liable to be proceeded against as for a contempt, that they did what the injunction prohibited, with actual knowledge of its existence and contents, I cannot but think they would deem it important to allow the point decided in Coddington v. Webb to be reconsidered, and so restrict its application as to prevent great and manifest injustice from being done under its operation.
If the defendants cannot be considered as being actually parties to the suit in which the order was made, then tire question would arise whether it is operative against them as individuals, and whether they can be proceeded against for having deliberately done, as the agents or officers by whom alone the party defendant could do the prohibited act, what they knew their principal had been forbidden to do, for the purpose of performing it in behalf of such a principal.
It is enough to say, that when an agent, officer, or servant, claims no right to act or interfere at all, except in that capacity, and in that capacity he _does acts which he knows it is unlawful for his principal to do, and which it is impossible in the nature of things for the principal to do except through his action, he has no reason to complain of being subjected to the
The cases cited in the opinion given on the order to show cause—show that such a practice had been pursued.
The 3d sub. of § 1, of 2 R. S. 534, expressly provides not only, “ that parties to suits,” but also, “ attorneys, counsellors, solicitors, and all other persons,” may be punished as for a contempt for the non-payment of'money ordered by the court to be paid, in certain cases, but also “ for any other disobedience to any lawful order, decree, or process of such court.”
There cannot well be a decree against a person not a party to a’suit, which can operate upon him at all, except to prohibit him from doing as the solicitor, attorney, or agent of a party, some act which it enjoins the party from doing.
This section having authorized the punishment of persons other than parties to suits, for any and every disobedience to the lawful order or decree of the court, the language is broad enough to reach, and seems unmeaning, unless it is construed to reach the very case of disobedience of an order, by one person, as agent of another, when he deliberately does what lie knows at the time the court has forbidden his principal and agents to do.
In that way he can disobey an order or decree made in a suit to which he is •• >fc a party. If he chooses to do that, knowing that every person is prohibited from doing it as the agent of the party, and disobeying its acts as such agent, there is no reason why he should not be punished for such disobedience, and for such “unlawful interference with the proceedings in the action.” (Id. sub. 4.)
It is unnecessary to examine further any of the objections taken to the regularity of the proceedings; the nature and character of the disobedience are, at present, the matters of paramount importance.
A somewhat grave and delicate point is presented at the outset to the consideration of the court. It arises out of the adoption of the preamble and resolutions annexed to it, which were adopted by the Board of Aldermen, immediately after the act violating the injunction.
The publication of such an attack upon the action of- a judicial officer pending a suit, and upon his conduct with reference to any order or decision made by him, in a suit pending and undetermined at the time such publication is made, is a contempt at common law, and punishable as such. The cases cited below, would seem to leave the question free from doubt. (J. B. Wallace’s R. 77, Hollingsworth v. Duane; Oswald's case, 1 Dall. 319; Matthews v. Smith, 3 Hare, 331; Littler v. Thomson, 2 Beavan, 129; 2 Atkyn’s, 469; 13 Ves. 239; 1 Phillips, 454 and 605; 2 Mylne & Craig, 360; Crawford's case, 13 Ad. & Ellis, (N. S.) 613.)
The inevitable effect of such a publication upon all who may give the least credit to its statements, and to the imputations it contains, is to prejudice their minds against the justice of the plaintiffs’ claims, and the truthfulness of the allegations of fact on which they base their right to relief, and to favor the idea that the law 'is not uprightly administered between the parties to the action, and thus to interrupt the free course of justice, and dishonor its administration. Such misconduct tends to prejudice both the rights and remedies of a party. The statute expressly provides that misconduct of that tendency, in all cases where attachments and proceedings as for" contempts, have been usually adopted and practised in courts of record, to enforce the civil remedies of any party to a suit in such court, or "to protect the rights of any such party, may be punished in a proceeding like this. (2 R. S. 534, § 1, sub. 8.)
Besides, it is an “ unlawful interference with the proceedings in an action,” and this, in the same section, is made a distinct ground for punishing a party as for a contempt. (Id. § 1, sub. 4.)
In a country whose peace and quiet, and under a form of government whose very existence depends upon a cheerful obedience to law, and upon an absolute acquiescence in such protection to the rights of persons and property, and in such redress by way of the prevention and punishment of wrongs as may result from such obedience, and from an impartial but firm administration of justice between man and man, it is of the highest importance to the public and to suitors, that those who administer the law should not only be pure, but unsuspected.
It is not the personal injury that may possibly result to the members of a court, from falsely speaking, and writing contemptuously of it, or of the judges, in their judicial capacity, who may compose it, of which the wrong done, wholly or in any considerable degree, consists.
But the most grave and serious part of the wrong consists of the injury done to the community at large, by the tendency of such proceedings to dishonor the administration of justice, and impair the confidence of the public in the integrity of those tribunals, to which they turn as a last resort, to obtain that strict and impartial justice to which the laws of the country entitle them.
When our citizens are coerced to feel that such a hope can be no longer confidently cherished, that they cannot be certain of obtaining just redress in the courts of justice, that they must submit to such justice as may be awarded by a court whose official action in the case has been characterized by such 'an assumption and illegal exercise of power, that it ought not to pass. unrebuked, the court's will have become so contemptible that nothing which might be published of them ought to be punished as a criminal contempt.
Yet no pretence has been made that the injunction was not granted from the purest convictions of duty, and on the honest-judgment that the case made by the complaint entitled the plaintiffs to it. The only apology, if it should be so called, that has been made is, that those who disobeyed it had a different opinion of the law from that entertained by the judge
No regret is expressed at having passed the preamble and resolutions. On the contrary, the answers to the interrogatories conclude with challenging the authority of the judge to make the order that has been disobeyed, and also the jurisdiction of the court to entertain the proceedings in which it now becomes its duty to make a final decision.
These facts render the duty of the court in pronouncing final judgment still more delicate and embarrassing.
The duty which they are required to perform is one which they owe to the public, as well as to the parties to the proceeding. It is one in which no consideration personal to the members of the court exists or can arise, except such as are attendant upon the decision of every matter submitted to their judgment, and incident to the obligation and the wish to make a decision which will render equal and exact justice to the defendant, the relators, and the public.
This duty, however unpleasant its performance, is not one from which they can escape, or which they can avoid. It is one which they are coerced to discharge by the obligations springing from, the office they hold, the duties of which they have sworn to faithfully and impartially discharge, according to the best of their judgment and ability.
In arriving at the conclusion what order should b,e made, the statute has, as to one part of it, left us no discretion : That is imperative that afine should be imposed at all events, sufficient to satisfy the costs and expenses of the proceedings.
The more serious question remains, whether any fine in addition to this should be imposed, and if so, to what amount, and whether any imprisonment should be ordered, except to coerce'the payment of the fine.
In this case the disobedience was deliberate and intentional, and was immediately followed by the introduction and passage of the preamble and resolutions, to the character and tendency of which sufficient reference has been made. If the defendant had contented himself with merely disobeying the injunction,
The defendant, on his oath, states in answer to the interrogatories, that he not only then believed, but still believes, that the court has no jurisdiction of the action.
That belief may be ultimately held to be in accordance with the law of the land, but the judgment of the court being to the contrary, it can find in it but very little mitigation of the offence, as that is not the mode in which a law-abiding citizen should test in such a case, the accuracy of his opinion. I incline to the opinion that the affidavits read on the part of the defendant on the order to show cause, should be taken into consideration. They contain, it is true, nothing in relation to the fact whether he did or did not disobey the order, and therefore have no bearing upon the question whether he disobeyed it, or whether the disobedience was wilful.
But they contain statements of facts which, uncontroverted, might induce the defendants to believe that the offers, apparently so much more advantageous to the city, were not made in good faith, but were made by enemies of the measure, and under preconcerted arrangements with others equally hostile to it, to take such legal proceedings as would inhibit them from constructing or attempting to construct the road, even if their application had been preferred, and the authority had been given to them.
If such was the state of existing facts, or if he honestly believed such to be the facts, then a case was presented for the exercise of his discretion. And with the mere exercise of his discretion, with reference to such a state of facts, no court, I presume, would interfere.
If such a state of facts shall be shown to have existed, the question of the authority of the Common Council to make such a grant would then be reduced to one of mere naked power, to affect the rights of the public and of individuals, as it might
That is a question on which this court has not as jet passed, and does not enter into the considerations upon which it concluded that, on such a case as was made by the complaint, it had jurisdiction to .make the order.
The facts stated in the opposing affidavits do not touch the question of jurisdiction, but bear upon the merits of the controversy, and controvert the truth of some of the facts constituting the equity of the plaintiff’s case.
Heither do they tend to show that the order was improvidently made, if the court is right in its views of its jurisdictional powers, for the judge who made the order was compelled, as he is in the case of every application, to determine upon the propriety of granting it, solely on the facts contained in the affidavits on which the application was based.
These affidavits were not before him, nor could he have justified himself in refusing the order, by assuming, without anything on which to base the assumption, that the facts stated in the complaint, and sworn to be true, were false in any material particular.
Still the court should not overlook the consideration, that on these affidavits third persons swear to facts which, if uncontradicted, presented a case for the exercise by the defendant of a discretion, if it should be ultimately determined, that authority existed to make such a grant, in a case free from a fraudulent úse, or gross abuse of that authority, and provided also that it shall appear that the ro,ad would not be a public nuisance.
The court, it is true, will not try the merits of the action in this proceeding, nor permit a party lawfully enjoined to speculate upon what may be the decision of the court, upon the equity of the complaint upon which the injunction has been allowed, nor to test the improvidence of granting it, by wilful disobedience.
But I think it may properly look into opposing affidavits, so far as to see if there is color for the position; that if the facts existing had all been fully and fairly presented in the affidavits , on which the injunction was sought, the court might have hesitated to grant it, and if that is clearly apparent, to give
The example set by him is not sought to be excused, but, on "the contrary, to be justified, on the ground, of the utter want of jurisdiction of the court to entertain the action.
Such an example is exceedingly pernicious. So far as it produces any influence, it tends to predispose the community to array their own judgment against that of the tribunals constituted to declare and enforce the law, and to wilfully disobey orders and judgments, whenever the parties against whom they are made, shall come to the conclusion that the court has mistaken the law.
It is obvious that such a practice, if tolerated, would soon result in an open defiance of the administration of justice, through the.constituted tribunals, and the enff would be inevitable and hopeless anarchy.
2STo human judgment is so perfect as to be exempt from a liability to err, nor is the proper interpretation and application of the law in all cases so easy, that different minds, aided by equal industry, experience, and integrity of purpose, will always come to the same conclusion.
State legislatures sometimes, upon full consideration, enact laws which the courts, in the honest and independent exercise of their judgments, believe and adjudge to be repugnant to the constitution and void. Such a law, any person, so far as strict legal right is concerned, may lawfully resist.
But any one who should attempt to question its validity by forcible resistance, rather than by an appeal to the courts, whose province it is to determine that question, and whose powers are sufficient to secure him full indemnity and redress for any injury that may temporarily result from that obedience which becomes the orderly citizen, would inflict a serious wound upon the institutions of the country, violate the principles on which they are founded, and furnish an example which, if generally followed, would lamentably demonstrate that in the community of which he was a member, liberty regulated by law could not long continue.
Courts too, may err, as courts have errgd, in relation to their
The example is still more pernicious in its tendency when set by a man invested with authority, who, by virtue of his office, is a conservator of the public peace, and a member of the courts constituted- to try persons indicted for the commission of crimes. A wilful disobedience of any lawful order of a court was a criminal offence, at common law, and is declared to be such by the statutes of this state, is punishable by imprisonment, in a county jail, not exceeding one year, or by fine not exceeding $250, or by both such fine and imprisonment. (2 R. S. 697, § 40 : id. 693, § 14; id.. 278, § 10, sub. 3 ; id. 538, § 26.)
Giving the defendant the fullest benefit of every extenuating consideration that has been presented, the most favorable judgment that the court can render, consistent with a proper discharge of its duty to the public, is one which does not order imprisonment merely as a punishment, for the full term provided by the statute.
Every one must know that- the members of the court, as a matter of necessity, cannot be ignorant of other and vague charges which are made against members of the Common Council. This fact is alluded to only for the purpose of saying that the judges of this court would be unworthy of the stations they occupy, if they allowed any such extraneous matters to exercise the slightest influence upon their deliberations, or in the formation of their judgment.
The only matter with which they have anything to do is, to determine whether the defendant has disobeyed an order lawfully made by a judge of this court, what is the true nature and character of that disobedience, what effect it has had or is calculated to have upon the rights or remedies of the relators and upon the interests of the community, and to give such judgment as shall be just to them, to the defendant, and to the public.
In the exercise of my best judgment, I think he should be imprisoned in the county jail for the period of fifteen days, that he should also be fined to the amount of $250, to be paid, when collected, to the Chamberlain of the city, for the benefit of its citizens; and in the further sum of one hundred and two dollars and twenty cents, to satisfy the costs and expenses of these proceedings, to be paid 'to the relators; and ordered to be committed to prison until such fine and costs and expenses are paid.
In giving judgment in such a matter, if there should chance to be any error, the error should be one arising exclusively from the lenity of the sentence, and on no account from its severity.
I think a discrimination should, be made between the case of this defendant and that of any other of the aldermen who merely voted for the preamble and resolutions: they might have so voted without that consideration and understanding of their import, and the manifest impropriety of passing them, which is naturally to be imputed to one who prepared and offered them for adoption.
If the slightest regret for the passage of them had been avowed in their answers to the interrogatories, on which the court could justify itself for overlooking that act, I should be disposed to go as far in that direction as would be consistent with a proper discharge of the duty which the court owes to the public.
But no regret is expressed for that act, or for having violated the injunction: even the legality of the order is still questioned, and the jurisdiction of the court protested against: all but two of them answer in the same form, and thus, present themselves to the court as being alike insensible of the true character and tendency of the misconduct charged against .them,
If the sober reflections, and more matured judgment resulting from a subsequent consideration of the matter, have induced either of them to regret the act, or to regard their example as one dangerous in its tendency, 'he has not allowed the court to know it. However much the court may regret this result, it is one over which they have no control: they can look only to the case, as the defendants have preferred to make it, and mast pass upon it, as it is submitted to them for final judgment.
In so deciding upon it, they are not at liberty to overlook the position which the defendants voluntarily choose to take with reference to the act of disobedience, when presenting their case, as they desired it to be regarded by the court in forming its final sentence. (Palmer v. Kelly et al., 4 Sand. Ch. R. 575; Mr. Lechmere Charlton’s case, 2 Mylne & Cr. 359-360.
It is my opinion that a fine should be imposed on each of the other aldermen, except Aldermen Smith and Doherty, of $250, to be paid to the Chamberlain of the pity, and the further sum of $101 51; to satisfy the relators’ costs and expenses of the proceeding.
Alderman Smith has made an apology which, while it does no discredit to him as a man or a public officer, furnishes grounds to the court for making a discrimination in his favor, which it would have been more agreeable to it to have been able to extend to all the defendants, if they had but thought proper to have made such answers to the interrogatories as would have rendered such action practicable.
Alderman Doherty voted against the preamble and resolutions. By this act he repels the idea of intending by his disobedience any other contempt of the lawful authority of the court, than such as arises from a deliberate disregard of the order, induced, perhaps, by the conviction that he was the best judge of what the law was, and that he preferred disobedience, with its consequences to the public and himself, rather than submission to the order, and an application to the court to modify or vacate it.
Each of these defendants should be fined $100, to be paid to
The case of the Assistant Aldermen is somewhat different from that of the two aldermen last named, or that of either of the others. They took no action upon the preamble and resolutions.
Before voting for the resolutions creating the grant, they obtained, as their answers state, the advice of counsel and were advised that “ the injunction did not purport, and did not mean to restrain them from voting m favor of the said resolution.”
This affidavit is not one which can justify the court in wholly omitting to impose a fine. It is hot one which would prevent the taking' of an inquest, or which would entitle a party to have a default opened, for the purpose of having a trial on the merits.
Hie name of the counsel is not stated, and the court is with-' out any means of conjecturing whether his advice would be entitled to little or much consideration. On what statement of facts the advice was given, the answers do not disclose.
The answers do not state that counsel advised them that, voting for the resolutions containing the grant with the intent of enabling the grantees to accept it, and with the expectation that they would accept it, pending the injunction, would not be a palpable violation of it. We cannot imagine that any respectable counsel would have given any such advice.
That it was voted for with that intent and expectation is not denied. It is too clear in our judgment to admit of a doubt that they did vote for it with that intent and expectation.
In that expectation they were not disappointed. At some hour of the night on which the resolution was fully adopted by their votes, and made absolute and effectual, so far as that result depended on the action of the Common Council, or the will of its members, it was accepted by the grantees in the manner prescribed, and thus the grant became complete.
Ho regret is expressed for violating the injunction, nor is the slightest intimation made that, under similar circumstances, their conduct would be different.
The court has not attempted to coerce their vote against their convictions of duty, nor made any order which would have prevented them from voting in favor of the resolution.
They were prohibited from granting to Sharp and others the privilege, or in any manner authorizing them to lay a track for a railway in Broadway.
They could have voted for the resolution, if they had added to it a provision that no acceptance of it should be made or filed, or if made, that it should be void and of no effect, if made before the injunction was vacated, or so modified as to allow of such acceptance. If the adopted resolution had been accompanied with such a provision, no court would have entertained a proceeding, to punish them on the ground that they had disobeyed the injunction.
If there had been a disposition to obey the order served upon them, it would seem that obedience might have been rendered, without jeopardizing any right or interest, public or private.
On and after the first of January, 1853, the Common Council would be as competent to pass the resolution against the veto of the new Mayor, as against that of his predecessor.
The same Aldermen continued in office through 1853 ; the changes made in the Board of Assistant Aldermen, by the previous November election, withdrew from it but four or five of its old members.
The adoption of a resolution, for which so many of each board voted, against the objections of the Mayor, and, notwithstanding the injunction, would seem to be certain, if submitted anew to the Common Council of 1853, if the strong favor which it received resulted from a conviction of its paiamonnt importance to the public interests.
_ There was no necessity, legal or moral, coercing any Aider-man or Assistant to vote in favor of it, pending the injunction; the majority by whose votes it was adopted, had the power to postpone the consideration to a future day, or to refuse to consider it then.
The objections and disapproval of the chief magistrate of the
It was an order of the court which had on other occasions prohibited them from doing acts which, if performed at all, would be performed by their voting as Aldermen or Assistants in favor of pending resolutions. On other occasions the order had been obeyed.
Under such circumstances, it is the duty of the pourt, after giving the greatest consideration to everything urged in extenuation, not to overlook the act, or encourage others to imitate the example, in consequence of granting to it entire impunity in a case so marked and prominent as this.
In my judgment, a fine of $100 should be imposed on each of the Assistant Aldermen, to be paid to the City Chamberlain; and also of $101 51, to be paid to the relators, to satisfy their costs and-expenses of the proceedings.
In the case of each of the Aldermen and Assistants, ihe order to be entered, should direct that he be committed to prison until he pays the fine imposed upon him, and also the costs and expenses which he is ordered to pay. -
Differed with the court as to the amount of punishment; and said:
I regret to say, that while I concur fully with the general views of this case, as presented by the able opinion of Judge Duer, and agree to all the conclusions of law stated by him, I am not so fortunate as to assent entirely to the judgment which he has pronounced. I will endeavor, therefore, briefly to state in what respect I dissent from that judgment, and my reasons for so dissenting. In regard to the amount of fine imposed upon the delinquent parties respectively, both Aldermen and Assistant Aldermen, I have no objection to offer. Nor do I find fault with the judgment of the court as to the particular case of Alderman Sturtevant. ' But if it be right and proper, as I think it is, that Alderman Sturtevant should be punished by imprisonment, as the author and promoter of the resolutions
It is true that the case of Alderman Sturtevant is marked by more prominence than that of either of his associates. Those resolutions and preamble were deliberately prepared by him, and in concocting them, he would seem to have taxed the English language to obtain terms as offensive to the dignity and as defiant towards the authority of this court as a gentleman could well use. He was, moreover, a member of the legal profession, and whatever his opinion may have been of the propriety or legal effect of the injunction, he was bound to know that his duty as a lawyer and a citizen forbade such an attack upon any branch of the judiciary; and that his hand, instead of aiming the blow, should have been raised to stay such an indignity, if offered to this court from any other quarter.
I therefore, not only concur in the propriety of imprisoning him for fifteen days, but if the judgment of the court had been that such imprisonment should be for the full term of thirty days, it would have met with no objection from me. But while I grant the sufficiency of the reasons for punishing Alderman Sturtevant with greater severity than his associates, I cannot admit, that there is just ground for so great a disparity of punishment as the judgment of the court has made between them.
The other Aldermen who voted for those resolutions and preamble, heard them read and deliberately adopted and passed them. It would be a bad compliment to the intelligence of these gentlemen to assume that they did not understand what they were doing. Their official station forbids any such supposition. If they were fit to be Aldermen of this city, they can claim no indulgence on the ground of ignorance of the true meaning and import of those resolutions and preamble, for they could not be misunderstood by any one of common capacity. In substance, they charge a judge of this court not
It must not be supposed that I regard the passage of those resolutions and preamble as being capable (however designed) of impairing the standing, or even wounding the personal feelings, of the individual judge against whom they were directed. Certainly, no one of the judges of this court would feel affected by them, in either of those lights. I treat it as an assault upon judicial authority, and would punish it as such.
The judges, as ministers of the law, are but the servants of the public, but they are the depositaries of a trust which it is most important to the best interests of this community to preserve in its integrity and plenitude. I mean the authority of courts of justice—the respect of the people for the law and those by whom it is administered; and, painful as it may be, and as it certainly is to myself on the present occasion, to vindicate that authority and preserve that public respect by severity of punishment, I regard it as a duty in the performance of which the judges of this court are bound not to falter.
I need hardly say that no public rumors as to the official conduct of any members of the late Common Council could possibly influence my course in this matter; and I allude to
I have only to add, therefore, that if the punishment in this case had rested solely with me, I should have felt it my duty to have imprisoned every other alderman, besides Alderman Sturtevant, who voted for those resolutions and preamble, for ten days, except Alderman-Wesley Smith, who alone has, in some degree, apologized for doing so. He has acknowledged the impropriety of the act, and, in a measure, excused himself, by stating that he did so without due consideration at the time. ' - °
For this partial atonement, I should have mitigated his imprisonment to five days.
Alderman Doherty, although he violated the injunction by voting for the grant, "had the decency or discretion to vote against the offensive resolutions and preamble, and for taking that course, I agree in opinion with my brethren, that he should not be imprisoned; and, in all other respects, I concur with the judgment of the court.
Hie. general term, which had been adjourned to this day, was then opened, and held by the same judges.
Each of the defendants, except Alderman W. Smith, who submitted, and paid his fine, then appealed to the general term from the judgment pronounced, and from every previous order made at special term.
The counsel for the relators moved in each case to dismiss the appeal, which motions were denied.
The counsel of the parties declining .any further argument, the judgment and orders appealed from, in each case, were, affirmed,
The sum. total of the costs and expenses of the relators had been previously ascertained "by a reference, and in the imposition of the fines an equal proportion was charged on each defendant.
The following is the form of the judgment in the case of Alderman Sturtevant: