New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-09-09
LAW INI,ELLIGE'NCE.
srottop for Mandnmus against the Controller.


uYCTeTOS JUDCE EDMONDs.
ebe People es rel william Reynolds Azarish c FasS
FDxOErs in this case i apears that on nc 2itn OF
April 1852 pursunt to resolution passed ~ me ,non
Caunol contract entered into between the roator
md Tie City Inspector for the removal oil DIAL am dshd
animals from the City That the relaor has ever sIace
Faithfully performed his contract and has been paid Dy ne
for snd he rresent Controller for he execution OF his
contract for the previous year or nearly 20.
That In May lat there w0s due him. such
If bis contract O5l ST. which the defendant refused to
That on the 10th Of July last the Common Council passed
arcsoution directing the defendant to draw his warrant III
favor Of the relator for that sum, . .
sons that Che Illegally made IN the brst IN
stance that the relaOr has iuiod to perform MS contract
tbot The Civ Inspecor was interested in the contract aud
that the rentor claim has never been audited pursuant 10
the act Of l2th April 1888. If,
This applcaonis Tor mendamus to compel the defend
ant 10 draw bis warrant for the amount claimed - be due
the relaor ard the first Of the defendant - II
that mnndemus Is not inc proper fsnsaS oos W. VIZ
or 10 his action against the defendant ior ncgect OF oy
That II the only question now before me- me propreiy
of the defendant refusal being ryc Tor future cons
dereion, II should be Of opinion that nandanu Is me
nc nsvmeft Of money out Of the Treasury Of the Cor
poratien requires the act Of four officers namely the May
Or The Controller the clerk Of the Common Council,
and The Chamberlain And tho question H. whether any
one of these four officers shall refuse to perform his duty
and thus render imrractcae for the Corporation to pay
IT, creditors be DO compelled to do by the summary
remedy Of mandamus The principle commended for blythe
defendant carried to lis legitimate results would any
ono of these four officers in refusing 70 pay even acrJ
mont and execution against the Cooraon and thus com
pei sale of It's property by the sheriff Nay goes iar
iber; II would authorize any Of Them whether acting
from corrupt honest motives TO repudiae all the debts OF
the Corporation utterly ruin It's credit and actually stop
the wheels Of the Municipal Government
The contemplation OF these consequences makes the
question very serious one. 49, -
am not now considering the validity o. the defendants
reasons for performing his duty They arc not now pc
fore me- but for the purpose Of this motion am looking
nj the where any one OF THESE Officers my Ut
brory and of his WILL refuse TO perform his duty
The rule governing the remedy by mandanus is that
y never resorcd where the party has another specific
adequate and appropriate remedy.
In this is suggested by the defendant that the re
Iator has other remedies against him. namely bv indie!
mon by removal from office or by an act Tor dana es
Neither Of these would be -circ or ADEQUATE remedy
lie indictment Oh 40 removal Of the deende might graft
fy ant Of revenge which is likely to be awakened
nv an exercise Of arbitrary power but hey would nor give
t5e ycintor his money 30 action against the delonld
might award the rcator damages but that award nigh
not give him bis money. - It'll, ,o,.
mo with some force and that is by an acton against the
CORPORATION and sale Of their property ON execution
nndorstGnd one Of the counsel for the defendant 10
admit ON the argument that after such judgment had been
obtained the Controller would have no Iish - refuse
But still the question recars suppose nc pulu 'ei - M
fuse ccrld he be compelled by m9ndanus because ho
could in one case, he could in the other tn upon gen
erel principles that this question s 70 D. dccaeu anu ono
must be careful to see whore nose principles WI" oii,s
ms And for Ire purposes Of this mott we must MOI over
iook nc consideration that the Controller might upon Inc
prncles now urged be justified in refusing to pay even
n
Now il seems TO me that there are two conclusive
,rewe to The ueeosion iha, the roator has his remedy
by suit against the Corporation ~ c.,
In The fst place il is municipal public Corporation
and not merely aprivOtc moneyed one Thus whie II
Nould not be competent 70 issue mandamus 10 cohei
c,slcr az bank the treasurer of railroad Company
800. en-. 5ebts of tbor corloratOn acknowledged by
tle lTopor authority be jusy due Tor there woad DC
more matter Of private contract between ifsa Pe,so'
Which coud be enforced by action might be competent
where The matter nvoy cd public considerations as "a 's
case tho public health and where the whole power eHor
cisod BY the Corporation related To Inc puonc "c"''e
alone. -, go T.. ,,,r,-,
arc afaned ard exercised for the good OF the
alone and one where they aim alone at the paoc welfare
must not be verooked Because under oar institutions
great deal Of the sovereign power OF the people 10 DC
exercised o o' sasme Lesisure such as boards
Superyisors Trustees of Villages Common Couacls Z"
Cities Trustees Of School Districts etc. ana wnen soi
Justico in the light Us il remaining IN and exercised
by the Supreme Legislature.
To carry out the parallel suppose the state Legiaurt
had nassed law directing this contract to be made, and
;restin the Controller of the State TO pay the contractor
for nerfe ming IT, In such there could be no douO
Una, o s \" peTorm his duty And what difference doe
II make that this power nstosd OF being exercised p 1ht
sSharioae esslive body Iii still, part of the su
rremt power Of the state exercised for the pubic welfare
alone and by duly authorized to exercise 1t.
Wherever the power is part of the sovereign power
the Stale exercised Tor the public welfare alone II must b'
subec, 10 the same rules whether by the supreme
on subordinate legislative body -.
Now hc power exevisod in making the contract IN ih
Was solely for the public good il was 10 remove nui
sapccs which might seriously have affected the health
half million 9 people, and can easily appreciate 1t
mportanoe to tho public by imagining what wocad hav'
been the consequences during the last two months tn
reator had when the defendant refused to pay him aoan
dored the Performance OF his contract IL may perhaps
he very that those consequences were "Noreu
All these considerations 60 to show that the power IN
VOWED in this contracts public one, exercised only 10
the general welfare and moi private one for the eeneh
ofhe ccroraors alone and is therefore governed oy Ia
same rules which apply to the power when by tn
snrrtire legislative authority that IL is power having
view only the public health aud that Controller Mayor
Clerk and Chamberlain in dischargiu their duties under
are public officers charged with Obligation to the Who'll
Yeone which can be enforced summary for the geners
elnre But there still another consideration and tina
4 that corporations and ministerial officers exception
IA the general rule that msndamus wiz not 20 wher
there Is another remedy In the case OF the people
S,eei . Barb ais had occasion 60 say that il Is we
,,,a ,s to eororaous and ministerial officers, the exi
tnc OF another and an adequate remedy no objection
varsne mandsmus. | had no occasion thea to "a
what i row DO 70 quality that remark by making II a.
Iicahe only 10 corloruons clothed with some OF me y
treme legislative power 10 be exercised Tor the Poou
veal But with that qualification see no nasSa
CHANCE NV views. In 81 the cases II. u V'.n "
,,ouie rs New York 10 Wend 393 Nelson y IN denve
me The opinion Of the Court says; Nor does ne Ia
b.t The marty liable 10 Indictment and punishment Il
..Es omission 10 do the act TO compel performance
,b;ch his writ is sought TO constitute any Objection
he Granting of the writ The principle IS that wne
~es legal right exists the party Is entitled to aieg
,.mosy and when AL others iaI the AID Oh TINS may
invoked" In that case the Application vas Tor an 91