The New York herald., 1871-10-25
MANDAMUS DAY.
The Departments Of Public Parks
and Docks in Court.
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OPINION OF JUDGE INGRAHAM
Tho Comptroller TO Pay 100000 for Parks and
RiVef Front improvements
The Foley Injunction Still Further
Modified.
OPINION OF JUDGE INGRAHAM

IN the matter Of the application OF tho Commits
aoners OF Public Parks for mandamus directing
he Comptroller to pay them some six hundred thou.
sand dollars unpaid balances upon requfsitlons
made upon him, Judge Ingraham, OF the Supreme
Court, rendered his decision yesterday morning. He
grants mandamus, as will be seen, for $210,Ooo
the same to be applied to permanent improvements
IN The parks. We give below In full
THE OPINION.
The application for o mandamus In this case Is
based upon the provisions of the act of the Legisa
aud duties OF the Board OF Commissioners OF the
Department Of Public Parks, beng chapter 29O OF
act the depast1ent M was Authorized to make reqais
tons in writing upon the Comptroller for such sums
Of money as tney require from time to time for the
and places n SAID city under their CONTROL and
also Tor the construction and equipment OF q me-
peun OF art natural history, any park In the city
~ II. the ,,e same Ia, act % It, is made the duty
TIE faith and credit Of the Corporation
such sums or money as shall be so required
depository as may be designated by the Board. The
Comptroller Is also authorized to sell the stock and
funds provided 10 repay the moneys SO borrowed.
Tho department. by the act OF the Legislature,
chapter 595 Session Laws OF 1869, was authorized
% erect the observatory and museums, and to pro-
VIE the necessary equipments for the same, and
me moneys therefor were to be raised IN the
manner directed by the act Of 1860, chapter So.
made requisiton for $25000o, on which the sum
pf $16O,OOo was paid BY the Comptroller, leaving
Or paid to the department. Under the act OF 18th 9Th
Of April 1871 before referred TO, other requsltiOns
we're made as stated In the morning papers,
amounting to ST. 300, 900, on which $l,62O GOO had
been paid, leaving $400 900 unpaid.
There can De no DOUBT but that under the staru to
before referred to- Independent OF the question raised
- to the effect or the act OF 1871 providing for the
Iwo per cent tax, the department had the right to
make the requSiti0ns, and that 1t was the duty of
the Comptroller under these requsltions to navo
raised the money In the manner provided. as soon
Board or ApportOnmenb as provided by the tax
law Of 1871. 1t becomes necessary, therefore,
eide what effect the limitation OF the tax law OF
1871, commonly known as the two per cent act, had
upon these statutes passed previously. That act
provided In the first section that the Board OF Super
v1sors should raise by tax In 1871 and 1872 sum
which In the aggregate should not exceed TWO per
cent the valuation Of the real and personal es-
sates sub ect 10 taxation fixed for the year 1871 by
the Commissioners or Taxes and Assessments for
the city and county OF New YORK, IN addition
sne excess OF tae STATE TAX over mat OF 1870 and
t26 Oo9,0OO In either year. Tho second section pro.
vded that out Of such sum to be raised should be
paid all the expenses OF the city and county govern
ment for all their departments and purposes for
each OF said years, the interest on the city ana
county dcDt falling due, and the proportion of the
state tax PAYABLE by the said city and county In
zach OF SAID years respectively. The third section
apart the amount necessary to pay the interest on
ihe city and county stock and bonds becoming due
eunng the year, and the principal that may become
ing the year and also as much as may be necessary
70 pay the State tax TO be paid by the city and
departments and purposes OF the city and county
governments for the year 1871. ana the like
from these provisions that the whole intent of this
act to provide the money necessary 10 be raised
The city and County There Is nothing m the pro
Visions referred to which In any way could bc
q prospective Witch was not to be paid by ,axa
hOn during the year. 1t did not even include any
part OF the public debt falling due during the year,
Az N aa w no nv ha n nrod ~
be raised by tax during that year. II i've or ten
millions OF the city debt should he payable in 1871
provisions excepting the portion thereof which the
law creating II required to be raised By tax during
The whole form ofthe and the provisions therein
sbow tile intent to be TO raise The amount necessary
amount for the purpose that such annual tax was
ordinarily applied To, ana To limit the amount which
should oe raised by such means for such purposes.
10 Tar as these provisions that have referred to
affect the Issue OF these bonds for permanent inl-
pr0vements ! see notning witnin me term OF the
thereon and the amount required to be raised by
tax annually as sinking iund. Ii such bonds are
Issued In 1871 those aInOunfs must be deducted from
the tax OF 1872. The residue Of the bonds stocks
Issued Tor such purposes must not he included with
In any OF such provisions, woulu the acts author
lxlng the creation of sucn bonds or stock per-
manent Improvement be In any way affected there
BY. The following limitation added In the second
section 10 the PROVISIONS therein, direc ting that
the moneys TO be RACED by tax TO each year
silaIl be applied to the payment of the state tax
the est the public deDt aud the expenses OF
she city and county government for the year-vz.,
.and no aoility shall he incurred for any purpose
In either OF said years which snail, with the State
tax i0r such year and the principal aud interest OF
the city county debt payable In such year, make
The aggregate OF the expenses Ot the city and
county governments together for each OF the said
years amount TO more than Two per cent upon the
proyiaed.5 it is con,ended on the ',e part of me
Comptroller that this provision prevents the issue
q bonds or stock OK n under e. the previous statutes
ments and tnat the operation OF such limitation Is
to POSITION the issue Of bonds or stock during
those years. do not think such was the Intent OF
this provision. The limitation Is to the expenses OF the
clsy and county government for the years 1871 and
1871 II was intended to limit the expenses OF the
paid by taxation. The liability VIII ch should not be
expenses Of those governments during the year.
and the restriction was intended TO prevent the
dinary expenses by incurrng debts OF greater
amount tnan was appropriated for such purposes.
Section 5-lt was not intended to apply TO perma-
nent improvements authorized Ov former Statutes
which for tue increase of the city property or
for any purpose directed to be paid for by tax
alton. the issue OF bonds or stock lor building an
observatory or museum IN the Park would not De an
increase VI the expenses OF he city IN 1871 and lST2
~ Wouiu ue pernunenc ucp independent anu cx-
elusive OF the expenses OF the city, required to be
paid by taxation.
1here several provisions IL this tax law pro-
vfding iOr tie issue OF bonds stock for other pur
poses. which would Increase the amount also the
limited tax, and be violation thereof II tile CON
struction put upon this law by the respondents was
adopted. aud tile PROVISIONS IN the fourth section re-
Quirlng the concurrence OF the Board OF Apportion-
mcni to the issue oi bonds or stock shows mat the
Legislature contemplated The issue OF bonds not
wlthsandlng the limitation AS TO The annual ex-
penses. II Is stated III the affidavit Of Mr.. Storrs the
fOrmcr Deputy Comptroller, that the whole amount
appropriated to the department OF The Board OF Ap
porionment for the year 1871 has been paid by ihe
Comptroller. This would be all they could receive
from the amount raised Tor taxes during This year.
II does not appear for what purpose this apportion
nlcni was made, but suppose II To have been for
the ordinary annual expenses of the department.
The objection that Was made 70 the form OF the
requislton the same having been made by the
Executive Commit tee instead or the Board, was
raised on the argument on the understanding That
IN aIldavlt should DC made that such acquisitions
we're made ny the direction or the Board
l might also add that the requsitlon
for buildings In the Park on which Sl00 900 remain
unpaid was made In January, 1s7l-long before the
passage oI the Tax law. IL was the duty OF the
Comptroller to have complied herewith at that
time, and that duty was not relieved by the subse
quent passage oi tnat law.
My CONCLUSION Is, mat there Is nothing In any OF