Cowles, J.
The resolutions conferring the grant on which defendants rely, first passed the board of aldermen November 22, 1852; were amended and passed the board of assistants December 6,1852; were sent to the board of aldermen, and the amendments there concurred in, January 5, 1853; were •vetoed and returned by the mayor to the board of aldermen .January 12,1853; were taken up and passed by the aldermen, .notwithstanding the veto, on the 14th November, 1853, and, •soon after, were again passed by the board of assistants.
Intermediate December 6, 1852, and January 5, 1853, the term for which the board of assistants were elected, expired; and it is objected that thereupon the session of the common council closed, and it was not competent, afterwards, for the members of the new board to take up the unfinished business of their predecessors.
This view of the case supposes the existence of what might be termed the annual sessions of the common council, and .assumes it to be unlawful for one session to take up and complete the unfinished business of the preceding one.
An analogous practice has prevailed in the British Parliament from an early period; a similar one, evidently copied from that, has been adopted by our national and State legislatures. The unfinished business of one parliament is never taken up by the succeeding one; nor that of one congress by the next; nor that of one session of the legislature by the one which follows. No public statute inhibits it in either case, but long usage has given it the force and effect of law.
It is insisted that a similar rule should govern the common council of this city.
There is, undoubtedly, some analogy between the organization of the two boards of our common council and the two houses of the national and State legislatures. But their practice in this respect has not been the same. The common council, like the board of trustees of any private corporation, or like the boards of supervisors of the several counties, has regarded itself as one continuous body, notwithstanding any changes in its several members.
Prior to 1830, there was but one board, the aldermen and assistants uniting and sitting together to form it. Changes of [265] members, caused by expiration of terms of service, were not noticed.
In 1830, it was divided into two boards; but its practice in this respect remained unchanged: and this, after the subject, on two several occasions, had been formally called to its notice. (Proceedings of Board of Assistants, 38, Doc. 7,126; also Doc. Board of Aldermen, 21, part 1. 459.)
By these references it will be seen that unfinished business of importance, involving matters of both public and private interests, after being partially acted upon, has been taken up by a board of new members, where it was left by the old one, and finished.
In the absence of any statutory provisions on this subject, and with the practice which seems to have uniformly prevailed, I think the common council must be regarded as a continuous body, unaffected by the periodical changes of membership, and that its uniform usage, in this respect, has given it the force of law. Interests of great magnitude depend upon its practice in this subject being upheld, which should not be pronounced illegal, unless for most satisfactory and controlling reasons, which, in this case, do not appear to exist.
The plaintiff now appealed from the decision, dissolving the injunction. We give only so much of the argument upon the appeal as relates to the question of the proper mode of passing acts of the Common Council.
Samuel Beardseley and John Van Burén for appellants, contended that the resolution relied on had not been duly passed. (Laws of 1830, 127, §§ 12-14; Laws of 1849, 279, § 6; Const. 1822, Art. 1, § 12; Const. 1846, Art. 4, § 9; 77. 8. Const., Art. 1, § 7, subd. 2, 3).
Charles O'Conor, for respondents.—It is objected that the Common Council proceeded irregularly in the adoption of these resolutions. The aldermen hold for two years, the members of the second house in the municipal legislature hold for one year only. This resolution was adopted by the aldermen in 1852, amended and returned to that body by the assistants of that year; and early in January, 1853, after the assistants [266] of 1852 had gone out of office, the aldermen concurred in the amendment, and sent the resolution to the Mayor for his approval. He vetoed the measure in January, 1853 ; and in November of that year, both boards reconsidered and adopted the resolution, notwithstanding the veto.
On these facts, it is urged that on the termination of the assistant’s year, all business on which they had acted, and which had not received the assent of the aldermen,- fell through or became discontinued; and, consequently, that all corporate measures partially matured require to their legality a new commencement in January of each year.
The objection is founded upon a supposition that the practice of the British parliament and of our legislatures in conducting business, adopted for their own convenience, constitutes a rule of law binding on them ; and that there is an analogy between those bodies and the common council of New York which makes such practice a controlling guide to the latter.
We deny that those practices are law to the bodies which established them. Like other rules, they may be departed from. We also deny the analogy.
The municipal legislature is inferior and subordinate; its duties lie within, comparatively, a very narrow compass. Its members do not come together from remote and distant points, represent interests materially diverse and conflicting, or bring with them different capacities for action arising from circumstances connected with far-separated constituencies. In all these respects, the common council differs from parliament, congress, and the State legislature. The courts have sanctioned the idea that whatever changes take place in their members, these domestic forums are continuous. In Coles v. The Trustees of Williamsburgh, (10 Wend., 659), the point was so ruled. A statute required, as an indispensable preliminary to the opening of a street by the village council, that a petition, of a prescribed kind, should be presented to them. Such a petition was presented and acted on, but ineffectually. A new board took it up and adopted the measure. The court say, “ The petition presented to their predecessor's was sufficient authority for them to direct the street to be opened.”
[267] The separation of the New York corporate body, by forming executive and legislative branches, and by dividing the latter into two chambers, originated in the amended charter of 1830. (Laws of 1830, 125). This technical question was first raised after the lapse of twenty years. The law-committee of the board of aldermen, to whom it was referred, deemed the boards continuous, and not altered or varied in any respect by alterations in their members. They say that this doctrine “ has been practiced since 1831, and is an established custom of the two boards.” (Doc. No. 29, Board of Aldermen, 1854).
The question had been already examined with a like result by the counsel of the corporation. (38 Proceedings of Board of Assistants, 126. Supervisors of Chenango v. Birdsall, 4 Wend., 453-460).
After twenty-five years acquiescence, and numerous rights probably acquired in good faith on this construction, it would not be very judicious to disturb it. (25 Wend., 11).
But let us see how far the analogy contended for exists. The parliament of Great Britain was not originally a continuous body in point of fact. On the contrary, each parliament was convened by the crown, not only by special summons, but for a special occasion, as an advisory body. Its-constitution was consequently regarded as being special, and its authority as being limited to the special purpose of the call. This appears from the ancient doctrine that the signing of a single act by the king worked vpso facto a dissolution of parliament. The negative of this was not established until as late as 1620. (2 Hatsell’s Precedents, 328, 3 ed.; 4 Inst., 28 ; 5 Comyn’s Dig. tit., Parliament, Q., 312. See Act of 16 Car. 1, ch., 4; Stats, at L., 131).
Parliament was regarded by the king, and, of course, by the judges of his appointment, not as an established institution, but as an occasional resort. Continuity did not belong to it. It was “ a parliament,” and not “ the parliament,” that was formed on each royal summons. Popular liberty has in this, as in most matters of substance, at length triumphed over prerogative. Annual sessions are now the settled usage ; and, as the expression is, “ annual parliaments” have become a part [268] of the constitution of England; yet the original intendment prevails in all the practical forms. Each session is still treated as a distinct parliament; it is convened by the king’s special summons, and cannot assemble otherwise. (Dwarris on Statutes, 69). As a consequence, all legislative business not completed at the close of a session, is absolutely discontinued and falls to the ground. (Dwarris on Statutes, 257. 4 Inst. 27.)
The Upper House is a permanent body, and the Commons are elected octennially; consequently, there is no longer reason or propriety in the common phrase “ annual parliaments,” or in the notion that business must be discontinued by the mere close of a session. They both arise from that subserviency to established forms so common in England. Our congress has repudiated both. Rule 19 of the House provides that all-business left unfinished, at the close of the first session, may be resumed and carried forward at the second. (Jefferson's Manual, 138).
It appears that parliament itself has treated the doctrine of discontinuance as a convenient fiction, for it is disregarded whenever public convenience requires.
The final appeal at law and in- equity is not to the Lords merely, but to the Lords “ in parliament.” It was at first conceived that all appeals and writs of error were discontinued at the close of a parliament. (Haydon v. Gadsalve, Cro. Jac., 342; Dethick v. Bradbourne, T. Raym., 5.; Crouch v.. Haynes, Wm. Jones', 66). But the Lords, feeling the inconveniences of the rule in this case, determined that appeals and writs of error should not abate by a prorogation or dissolution. (Prichard’s Case, 1 Levins, 165; Gofton v. Sedgwick, 2 lb., 93; 5 Com. Dig., tit. Parliament, P. 2, 311). The ductility of this mere rule of business is still more strongly manifested in the denial of its applicability to a case of impeachment. The Commons are the prosecutors in such cases. Even after conviction, judgment cannot be pronounced except upon their motion at the bar of the Lords. (Dwarris on Statutes, 254.) In this form of proceeding they virtually possess the pardoning power, like the prosecutor in the ancient appeal of death. (1 B. & Ald., 457.) Yet it is settled law that a subsequent House of Commons may proceed upon a pending impeachment commenced by a [269] previous House. (1 Dwarris on Statutes, 253; Earl of Salisbury’s Case, Carthew, 132.)
So much for the idea of a parliamentary law of England, deducible from the practical rules for the dispatch of business, adopted in that country, which, by analogy, should control the action of our City Council, under its positive written charter.
An answer even more decisive, may be given to the attempt to establish a similar analogy in this respect between our own parliamentary constitutions and the city charter.
Neither the constitution of the United States, nor that of this State, nor any of the amended charters of New York contains any provision bearing directly upon the mode in which, as a general rule, one house shall act upon the resolves of the other. Light upon that point can only be gathered from the provisions concerning the executive assent.
The federal Constitution, Article 1, § 7, subd. 2, provides, that: “ If any bill shall not be returned by the President within ten days, (Sundays excepted), after' it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the congress by their adjournment prevent its return, in which case it shall not become a law.” The Constitution of New York, of 1821, (Art. 1, §12); and the Constitution of New York, of 1846, (Art. 4, § 9), use precisely the same language. The Constitution of Hew York, of 1777, (Art. 3), gave the veto, not to the governor, but to a council of revision, and no aid can be gathered from its provisions. The Amended Charter of New York, of 1830, (Davies’ Laws, 201), contains the following provisions on this subject:
§ 12. Every act, &c., which shall have passed the two boards of the common council, before it shall take effect, shall be presented, duly certified, to the mayor of the city, for his approbation. If he approve, he shall sign it; if not, he shall return it, with his objections, to the board in which it originated, withvn ten days thereafter / or, if such board be not then in session, at its next stated meeting. The board to which it shall be returned, shall enter the objections at large on the journal, and cause the same to be published in one or more of the public newspapers in the city.
[270] § 13. Such board “ shall, after the expiration of not less than ten days thereafter, proceed to reconsider the same. If, after such reconsideration, a majority of the members elected to the board shall agree to pass the same, it shall be sent, together with the objections, to the other board, by which it shall be likewise reconsidered, and if 'approved by a majority of all the members elected to such board, it shall take effect.” § 14. If the mayor shall not return any act, or ordinance, or resol ution so presented to him within the timé above limited for that purpose, it shall take effect, in the same manner as if he had signed it.
The only thing in this act throwing light upon the meaning of the above reference to stated meetings, is as follows:
§ 9. “ The stated and occasional meetings of each board shall be regulated by its own ordinances; and both boards may meet on the same or on different days, as they may severally judge expedient.”
The amended charter of 1849, (Davies’ Laws, 205), made the following alteration:
§ 6. “ If any ordinance or resolution passed by each board, as provided by sections 12 and 13 of the amended charter of 1830, shall not be returned by the mayor within ten days (Sundays excepted) after it. shall have been presented to him, the Same shall become a law in like manner as if he had signed it, unless the close of the session of the common council shall prevent its return, in which case it shall not be a law until the expiration of five days after the commencement of the next session of the common council, by whom the ordinance or resolution shall be reconsidered, if returned within such time, and be disposed of in the same manner and with the like effect, as if presented at the preceding session.”
There is no alteration in this branch of the law by the amended charter of 1853, except that section 5 requires a two-third vote to overcome the veto. Section 3 of the charter of 1849 provided that “ the common council shall annually hold only three stated sessions, of not exceeding one month each, commencing on the first Monday of January, May and September.” (Laws of 1849,- 278). But by act of 1851, this section was so modified as to read, that:—“ The common council [271] shall hold their sessions monthly, commencing on the first Monday of each month; but at no such session shall the members be entitled to draw any per diem allowance for a longer period than eight days.” (laws of 1851, 1001, § 1). The amended charter of 1853 did not supersede the old board of assistants and let into its place the board of councilmen until January 1, 1854. (Davies’ Daws, 211, §§ 2, 3).
It will be seen that by the Constitution of the United States and of the State of New York, the mode -in which the houses should commune (so far at least as this question is concerned) was left to their own discretion. A long interval between the sessions must have been contemplated. It was not to be supposed, that in bodies so constituted, old unfinished business would be resumed after an election of new members to the lower house and of a large part or the whole of the other. The discontinuance of a pending measure is only provided for in one case, viz., the non-approval of a bill by the Executive. Both constitutions provide that an adyournmmt of Congress, by which a return within the ten days is prevented, shall work an absolute discontinuance. In that case, the bill “ shall not become a lam''
The charter of 1830 was adopted in a convention elected by the people, containing some of our most learned and eminent jurists. (See Report of its proceedings, Kent’s N. Y. Charter, 1 ed.) No one can read this charter without perceiving that it was modelled upon our written constitutions. The intent may therefore be gathered as well by observing what they expunged as by perusing what they retained. (12 Wend., 318). It may fairly be supposed that they deemed the former unsuitable. They expressly and affirmatively repudiated the idea that the close of a session shall work a discontinuance. The mayor is required to return the bill to the next session. This idea is carried forward and enforced in the subsequent amendments; and besides, it is a matter of history, that our charter has been renewed and amended under a high pressure of party clamor against the corporation, twice, since the very question we are now discussing arose in the common council, and was determined adversely to the doctrine of discontinuance. It arose-in 1850; the very part of the Charter of 1849 most nearly con[272] nected with the subject was amended in 1851, and we obtained a new amended charter in 1853. It seems that the people and the legislature approved the principle of unbroken continuity. (2 Kern., 231.)
So much for any reasoning from analogy to our own constitutions. The comparison affords a conclusive argument against the notion of a discontinuance. If we refer to the detailed provisions of the charter as to the course upon a vetoed ordinance, they are found most positive and peremptory in their directions: they push forward the measure through all the successive steps of legislation, without admitting of any exceptional case. The mayor shall return it, the board receiving shall reconsider it, and shall send it to the other board, by whom it shall be likewise reconsidered. If approved on such reconsiderations, “it shall take effect.” The mayor is peremptorily enjoined to send it to the next session, though it be in the next year; the body receiving it, after reconsideration, though it be on the last day of the year, are peremptorily enjoined to send it to the other, though the members be all new, and the latter is commanded to reconsider. The language throughout is the most imperative that could be employed. To fritter away these positive injunctions of law by implied exceptions, founded upon far-fetched and inapplicable analogies, would not be giving law, but trifling with the clearly expressed will of the supreme law-making power.
If, as suggested, a board should commit such an abuse as to pick up among the dust and rubbish of by-gone days an antiquated and forgotten measure, which had been long previously sent to it for concurrence, and approve it, the mayor’s veto would correct the mischief. After that the assent of the first board would again become necessary. Besides this is an extravagant supposition. The reasonable construction of a law is to be judged of from what would naturally be the usual and legitimate course of action under it. A particular construction is not to be rejected because a fertile imagination can eviscerate from supposable morbid action, a possible inconvenience. It is the duty of each board, as soon as it conveniently may, to act upon and dispose of each measure sent to it by the other for concurrence. A violation of this duty is not to be pre[273] sumed, and nothing is less likely than a violation to the extent suggested.
S. B. Strong, J.
The plaintiffs are owners in fee of lots and buildings, Wetmore and Hoppok severally on Washington street, and the Stuarts on Greenwich street, all south of and below Reade street. They respectively claim to the centre of the street opposite to their lots. They are tax payers to a considerable extent in the city of New York, They complain that the defendants threaten and intend to construct a railway through the two streets, their entire length, and extending through the Ninth avenue to Fifty-first street, under an alleged grant from the common council of the city, by resolutions purporting to have been adopted by the board of assistants on December 20, 1852, and by the board of aldermen on January 5, 1853, and subsequently on reconsideration, after the mayor’s veto, in November and December of the latter year. The plaintiffs aver that the grant is invalid, and that they have a right to prevent its operation, as tax payers, as proprietors of lands which it is proposed to devote to a new purpose without allowing them any compensation, and as persons who will sustain a special injury by the construction and proposed use of the railway; and they therefore ask for an injunction restraining the deponents “ from entering into, or upon, Greenwich and Washington streets, for the purpose of laying or establishing a railroad therein, and from digging up, or subverting the soil, or doing any other act, in these streets, tending to encumber them, or to prevent the free and common use thereof, as the same have been heretofore enjoyed.”
The defendants in their answer deny that the plaintiffs are the owners of the soil of the streets mentioned in their complaint, or of any part thereof; but they allege that the ownership is wholly vested in the corporation of the city. They aver that the corporation had power to make the grant in question, and that it was correctly made ; and they state in a supplemental answer that “ they actually commenced the construction of the proposed railroad, prior to April 4, 1854, and that before that day the said road was in part actually [274] constructed in conformity to the resolutions of the common council,” and that on that day the legislature of the State passed an act ratifying, confirming, and establishing the grant to them, and they admit that they were constructing, and claim that they have the right to complete, and use the proposed railroad.
. The judge before whom this action was tried at the special term, decided that the construction of the proposed road along the streets where they passed the plaintiffs’ lots, would inflict ■serious private injury upon the plaintiffs, in unduly obstructing them in approaching to their respective places of business, .adjoining upon such streets, amounting in effect to a private nuisance to them, unless the grant is valid; but he also held that the grant was legal and valid, and that the defendants should not be restrained from proceeding with the construction of the road; and he therefore dissolved a preliminary injunction which had been granted, and gave judgment for the defendants. An appeal from his decision has been brought by the plaintiffs, and is now before ns for our determination.
It is entirely clear that suits for the redress or prevention of public wrongs, where there is no pretence of injury to individuals in their private capacity, can be maintained only by, or in the name of, the people. Where, therefore, individuals, without invoking the aid of the public, call upon our courts for protection, they must show that their private rights are ■endangered. The principle is too clear to need any illustration, and too well supported to require the citation of any ■authority.
In speaking of public wrongs, I do not intend to include such as may be sustained by corporators by the mismanagement of their corporate funds or property, by their officers. ‘These are included in the class of private wrongs. Their officers act in the capacity of trustees, and their conduct as •such is subject to the rules applicable to individuals. It is not a matter in which the people of the entire State in their collective capacity have any interest. If the proposed grant to the defendants in this case is of a franchise in the streets, that would unquestionably be property belonging originally to ■the corporation, and if the grant is improvident, and involves [275] a breach of trust, it would for that reason be invalid, as much so as if it had emanated from individuals in their private capacity. Then, too, the plaintiffs as corporators, and therefore the beneficiaries, would have the right in behalf of themselves and their associates, to impeach the transaction. In the case of the Mayor, Aldermen, and Commonalty of the city of New York v. Britton (reported in pamphlet), Chief Justice Nelson says that in the case of Bailey against the same defendants (3 Hill, 531), it was held that “ the grant of the legislature, authorizing the city to furnish the inhabitants with pure and wholesome water, by means of the Croton aqueduct, was the grant of a special private franchise, made as well for the private emolument and advantage of the city as for the public good, and that the defendants, quoad hoc, were to be regarded as a private company, and to be dealt with accordingly; that they stood upon the same footing in this respect as would any person or body of persons upon whom the like special franchise had been conferred.” I retain the opinion which I expressed in the case of Milhau against Sharp (15 Barb., 230), that these grants of permission to construct, and in a limited manner use railways in the city, are in terms of franchises.
The resolutions in this case purport to convey to the grantees, and, as I conceive, to them exclusively, the right to run cars upon the rails for the conveyance of passengers, subject to the provisions therein specified; and they provide that the joint stock association which may be formed “ shall have the control, management, and direction of the road, and the business thereof.” It was insisted on the argument that the resolutions in question cannot operate as the grant of a franchise, because they are not under seal. But when a grant is by an act of legislation, and not by individuals pursuant to it,' a seal is unnecessary. There is no limitation of the time for which the grant is to endure, nor is there any express power of revocation. If such a power can be implied from the character of the trust devolved upon the corporation by its charter, that would not deprive what is granted of its character as a franchise while it continued. I do not intend to say that it is competent for the corporation to grant to individuals a franchise in the use of the public streets. I only speak of these [276] resolutions as they read. , If the grant would have been valid according to its plain import, provided it had been made in good faith, it seems to me that the plaintiffs can assail it for unfaithfulness in the administration of a trust, not in their character of tax-payers, for that would include non-residing owners of real estate, but as beneficiaries or eestuis que trust. But it is a serious difficulty in their way in this particular, (and one which relieves me from considering the question of fraud in the common council), that the judge who heard the evidence on this subject has decided that no breach of trust was. proved. So grave a charge ought not to be Hfhtly inferred,, but, to be of any avail, should be affirmatively and clearly sustained by the evidence. The charge was that more advantageous offers were rejected by the common council, but the judge says that a better Iona fide offer is not proved to have been made. In an equity case, we are not, it is true, concluded by the verdict of a jury or the decision of a judge on questions of fact; but upon a full examination of the evidence, I am satisfied that the judge came to a correct conclusion upon this question. The plaintiffs cannot, therefore, avail themselves of this alleged ground to sustain their action.
The allegation of the plaintiffs, that the defendants purpose to take their respective lands for the track of the road, is not sustained by the proof. Their titles to the lots claimed by them were not admitted in the answer, nor were the conveyances to them produced in evidence on the trial. There was proof of possession of the lots and buildings adjoining the-streets by the plaintiffs, or under them, as owners. But there was no direct evidence of their possession of any part of the streets in front of their lots except of the vaults, for which they had -respectively made compensation to the common council, to which body they had applied for permission to-construct them. In the country the possession of land adjoining a public highway is justly deemed some, although not conclusive, evidence of the possession of the adjoining half of the road, subject to the easement. Ordinarily, the owners of the land devoted' to the public use, in the rural districts, retain some rights in the soil—all the private rights which may be. compatible with the free and unobstructed exercise of the-[277] public privilege. Thus they have the exclusive right to the pasture and the wood, which are frequently of considerable value. The existence and the common exercise of the right raise a presumption in favor of the adjoining proprietors. It is but a presumption of a fact, however, and may be rebutted. In cities the pristine or (if there be any such) the existing owners of the strata of the streets, cannot exercise any acts of possession for their individual benefit over the devoted soil. The many uses to which it may be appropriated preclude that. They have not, therefore, any possession which can raise a presumption of title.