The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-09-09


All this sa;s IN. s 20
s: CSpnon couoe contrast uss entered into b.
tween the relate. and the CITY Inspector for the r..
rsetor has since faithfully performed his contract,
and has been paid BY thu former and the Comp
or II, IL Ms On.
kr such performance OF his contract, silo6i d. which
the defendant refused to pay inst on the 10TH 2. yay
the defendant to drs~ bis warso in favor Of the rsa
tsr for that That the defendant refuses 70 do 20.
slsdene as his reasons that the contract illegally
made In l. first Instance that the rs.tor has failed
perform his contract that the City Inspector inter
never been audited to tho Of April IL 1852
This application Il for mAndawus to eomTel the do
= due the reator the rst Of the defendant
70 ID that mandamus h not the proper remedy, but
Or he
ss he prophet, ef the dss.udsnss rsia.sl being re.
served for future consideration abouh DO Of opinion
that mandamus Is the proper remedy The payment Of
money ont Of the Treasury Of the Corpora ton requires
Ter, the Clerk Of the Common Council and tho Chamber
lain And the question 10, WHISTLER II any Of these
%, for s a' and this
sSitors he b compelled to do BY the summary
rsnedy Of mAndamu9 The principle commended for BY
justify any one Of these four officers in refuing
70 pay even after judgment and execution against
properly j., the sheriff: Nay. ' i sos: farther r:
Il would authorizs any one Of then. whether acting
Of 9.s, ruin
actually stop the wheels OF the muDcioal government
The contemplation Of these consequences m.kes the
questCn very serious one. am not considering
the validity Of the de dants for perform
ing DUTY They are not nov before one. but for the
whore OF these may arbitrarily and Of
own viii refuse to perform his duty The rule govern
ing the remedy BY mandamus that 1t is resort
ID to where the party has another specific adsquste
And appropriate emeoy In this Il suggested By
the defendant that the Islaor has oths remedies against
him. namely by indie smsnt By removal from Office
BY On action Tor damages. Neither Of these would be
sN ciRc adequate remedy The Indictment semoval
q the dofendaDs might gravity spirit OF revenge which
likely 10 b. sksncd exercise OF arbitrary
poser but they would not give the rsator hs money
So an acicn sgsirst the defendant might award the
relstor damages but that award might give him his
Tbo reIator has )her remedy, howegoe which
struck me With 10, cs and tina. Is by acion
cution uDderstoO of the unset for de-
endans to admit n the argument that after such udS
M had been obtained Com ptroller would have no
right refuse But still the luss,oo rscurs supposed
eh ud then refe, could be 20 compslled by mandsmus
because III he coulo he could In the other It
upon general orcc pies that this question is to be
dec osd and must De careful 20 SEQ where those
this mo ion must not overlook the coasidera ion
that the Compt oiler might, uDon the principles
even after final jasguso against tho Corporation
Nsw, IL to me that there ave two conclude
ars.eIs to the suggestion that The elaor has his re-
Uedy by against Coz ration. In the first phase
Is mun,cipai public Corporation, and not merely
piva'e -ysd rhas, while it would not De com
pet<Dt 70 irsre mandamus 10 compel . Car hier OF
bark treasurer OF railroad company, pay he
debts Of heir corporation Acknowledged BY the proper
auther,y to os justly due for there IL would mere
matter Of private contract between legal persons which
could Be en- o'ced By action It. might be competent
ease public health ard where whole 20 ger sxer
esed by the Corporation related 70 the gu bic welfare
alone. The distinction be. ~een Corporation where
s anted ed the good of the
oorpcrators alone and whore they aim alone
public welfare must rot be overlooked Because under
institution, great deal Of the sovereign of
Ne people 10 be exercised OILY for public welfare Is
vested In bodies subordinate to the ature,
such Bcards OF Supsrvrofs Trustees Of villages Con-
Councils OF ctiss Trustees Of School Districts &c,
10 And when thus g. Anted and exerci ed 1t must be
Nssrded in court OF justice IN the same light as If
remaining in exercised by the supreme legislature.
TO carry cut the parallel suppose the state Leg ala
tire bad passed Law Greeting this contract % be msa
and cirtc ing the Cong roller Of the State 20 nav thu
contractor psrfvrmipgi Ia such case there cou "a
Be no coubt that the mandamus would be the proper
remedy TO ccmpei 'ha officer To perform mis- duty And
What dihsrhcs does! make tost this power cad Of
ne s1ercited by the ssture Ted to and
exc eis.d by Auoosot Legislative body2 L. still
part vi The supreme power Of the State
pubic s.ifsIe alone Ard oy body duly antno izsd
exercise Whsrever power part of tho sovereign
Noi Va Io LUZ 1ae PuolAc "e"srs Mlons
Dust Dc subject 70 the rms rules whether exsrrised
BY the suprsms subo dDate legislative body Nox,
the power exercised in making tue contract III hta
solely for the pni lie good II nnssncos
which might ,sriously have alested the health
million II psopls. and easily spprecise iss imp,r
nce to the public by imagining wust gould have besa
the duri lass moths II tae seacor
had, when the defendant eiuted &c Gay him abandoned
ne pe foInstce # his con,fscr. Il NAV osrnap, bs
very fortunate that rhos l1snoes wsre aysrted
All these c.siieraticDs 20 show tnat tne poeer Ia
yolved in this conrao ia poblic exercsed only
for the general welfare 81 not private for tbs
benefit Of the alone. and Is, thei efore,
govsrnsd oy the same Jules raicn apply TO the po
when exeIcAed BY the supreme Legislative authority;
thst it po yer having view only public health
and thar the CON ptoller Msy Clerk sad oerain
charged WI ID az ooles lon to the whole PEG ce watch
can to enforced summary tor tho general welfare.
Bot there ia t smother aud that is that
corporations aud mir isteris o,-fs ptlons
the general rule that Inaoosmus II not &c uhere
there smother rsmsdy. Ia the of the people vs..
6tees, Barb AIS had oScosOa that it Il veil
settled That 70 corporations sud oiusteral cers
the .xs'erce Of snothsr and adequate remedy
objeci cs TO svardpg meDasmps | had 90 occasou
then 20 W rtsS nov do 70 qualify tnat ren,rh by
Eakh IL applicable criy TO corporations clothed vita
some OF the supreme legislative power To be exercised
for the public veal Ba. With that qu,i ics ton see
10 reason 20 charge views In Of tbs
ei,ed-ihs People Va Neg York, 20 W.od 1913 --Nsson
Judge h delivering be opinion of the Court says Nor
6oes The fact that tina party is liable indictment
add punis ent ior hts omission 30 do the act
70 compel performances o which this writ
Is sought constitute ANY objection to the grsut.
hs OF this wit. Toe principle Ia. that whenever
kgal gnt esis the party Is entitled TO Al reusiy,
ana when all oilers sL the s,c Of this msy iayossi'
In ttst case. The application Gas for tnsni4m4s to
COO Gel the Corporation to execute isass The sis
SAD 10 be tbs proper rffascy bus It wa depted the
merits. Ia ihs oih.r | here G. ed Nc cutogh We.
BrocAlyn z3 Wsnd 46l sr'nson, Judge, aid mere
das ges hsd been awarded property for opening
street action uld not lie that would be
. more appropiiate remedy Although general rule,
. mAnoanus viii not lie shers the party has ano her
remedy no. universally ia relation to corpora
tons minister si officers Ia The Of People w.
SUPERVISOR Of Columbia 10 Wesd 1858 ooec led 1T the
bss THAI the mandamns 10; the proper remedy.
whore The state sought to from the county thu
amount OF loao oce ortghge but the ovsrrued
nj tbecuoo ana among otner taiDgs he'd that
nscy by seton for damages sgsrst the Supervisors Who
might rejoice "a pay no remedy and ub-c lion
tbs writ issuing Ia Hull Supervisors Of Jneida 10
ECO, the Snptere Court he hst the erntendtng
control over In of courte, psg.rates corp rstons
10, by maLdsinus Is n sbidium jttsticite, AMI tae
CONT Tili lender IT. far 1, can the opIetory
means OF eubsiar ta justice every where there Is
70 on.r tpeohc lessl remefy for legs1 eight. Add
sy sod ire sub, climate public SCENTS refuse to
wfere the Joins uuon them 20 do the act
required IL Is our flee to enot obedeuce sas Il BY
nanotTus In case where no other legal remedy exist.
Now, upon thete principles, IL that the
Dsrcanus the proper remedy against the dsend .ot
To him " he has veil g,Ounded objections performing
ms DUTY, IL ~ e bat little Consequence nat form
the remedy but 70 the pubic ~ III of gess i'm.
portsnce that the arbitrary iii OF person sha not