The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-06-26


mandamus applied for on behalf of Mark II. Pome-
roy to compel the Board Of Audit and Apportion-
ment to audit and allow his claim for publishing
the Corporation advertising in the Daily Democrat.
Unusual interest attaches to the decision from the
fact Of this being test case, and there being some
eighty other papers having claims of similar
character, amounting, in the aggregate to about
two million dollars against the city. and for which
they are anxiOusly seeking payment. The decision,
which Is given in full below. Is an exhaustive one
and, as will be seen, orders the Board to audit
only such items as they may find just and equitably
charged against the city and county The fol-
lowing Is
THE OPINION
The question presented for The consideration OF
the Court is whether the relat0r has any legal claim
against the city and county OF New York which it
and settle. The solution OF this question depends
upon the construction given to the second section
81 $40 q, e OF S @ If rs
several p,Opriet0rs or the newspapers in said cftv
ana county for all city and county advertising oc
claimed that the effect OF the words itali-
cised is to legalize all previously Illegal de,
publishing under legal authority. 1t would require
the most direct and unmistakable language suscep-
Court In imputng legislative intention to perpet-
uate such wrong upon our people. There is nothing
IN the act demanding such an Interpretation, Its
IDENTITY was to provide an appropriate procedure,
with an adequate fund, for the speedy liquidation
and PAYNE Mt OF
ALL STRICTLY LEGAL OBLIGATIONS,
and also of all Just and honest claims of an equitable
If not Of technically legal character. There is the
fullest intention OF providing for publishers who
had acted under legal authority at least in good
faith under color Of such authority, but none of
who had acted in palpable violation Of law and
without shadow OF authority. There are other
such as the distinct reference to the authority OF
the Board OF Canvassers in connection with the
publication OF the official canvass, and also the d.
rection not to audt or allow any claim at greater
rate or amount than that fixed by law or by a con-
tract under which any services were rendered or
procedure. The bills are to be read aloud at the time
OF presentation entered by the Clerk of the Board in
suitable book or journal, and laid on the table
tons made within the five days are to be duly con-
sidered by the Board. The words 'a obiectOns''
as the minor. the leraty as well as extent, OF the
claim 1t IS also urged that the general laws o the
State In force Mt the time OF the passage OF the act
afforded adequate remedies for the enforcement of
all legal claims and that therefore, the provisions
In question are supererogatoiy under any other
than the extreme construction contended for. This
those whose claims are Of undoubted validity spe-
ciai fund is provided, with procedure
overlooks the equitable spirit which pervades the
claims Of those who, with but
DOUBTFUL LEGAL RIGHT,
are yet entitled having acted In good faith, under
color of legal authority, to equitable consideration.
Take for instance the provision respecting the pub
LEGATION OF the official canvasses. Here, all publca
lions actually made under the authority of the
Board of Canvassers are legazed and payment re-
quired. Whether the Board of Canvassers directed
such publication without any legal authority or,
with respect to the number OF the newspapers or
the extent of such publications, the in
nocent proprletors, who published ,1,, nde
be seen that the act in question was necessary
and lust supplement- to existing laws, and that the
construction which the Court gives II Is in harmony
with its purpose and spirit 1t remains but to apply
these views to the case OF the reator large part
of the publication for which he claims--viz those
specified IN schedules c. d, f and F. annexed to his
alfldavit--were made apparently without any con.
authority or even onicial request. The allowance
OF such claims would be pure gratuity, and the
Court will not by mandamus-a writ which only
issues in cases OF unquestonable legal right !
direct the Board even to consider them.
part of the REALTORS services, however-viz.,
those specified in schedules and B, appended to
his anllavit-was performed under color of legal
on the 1st Of December 1868; his news
paper, the Daily Democrat, was selected by the
Mayor and Comptroller under chapter 1853 of the
Laws Of that year, as one Of the journals wherein
the proceedings of the Common Council and the
notices OF its committees should be published In
1869 there was no legislation on the subject. In
1870 the Mayor and Comptroller were authorized to
designate seven daily and six weekly newspapers
to he unlawful to pay any money for advertising
thereafter made or incurred, of any description,
for or on account OF the Corporation, except to
such newspapers laws OF 1870, chapter 1881. No
designations were made under this act, and the
power thereby conferred remained unexecuted
In 1871 the Mayor and Comptroller were authorized
to designate from time to time nine morning or
evening daily and nine weekly newspapers to pub
fish such digest Of ,he proceedings OF the Common
Council as might be prepared and authorized under
the direction OF these two officials laws OF 1871,
chapter 574). All
THE NEWSPAPERS AUTHORIZED
by this act were duly designated, but none OF the
REALTORS journals we're selected. The advertising
specified in schedules and was done In 1870 after
the passage Of chapter 3s3 of the Laws OF that
year and solely under the authority of the designa
ton of December !, 1865. II the work had been
done after the designation of the nine daily and
nine weekly newspapers under the act of 1871 1t
would have been plainly Illegal and the Court
could not have treated it as within even the broad
language and equitable spirit OF the act of 1s72
But 1t was all done in 1870, without any notice, ex-
press or implied OF the revocation OF the original
appointment and 1t may well be In view OF the
failure to designate aresh, the absence Of any re-
vocation or other notice and the necessity which
proprietors OF the four daily and three weekly
newspapers which had been designated under
the act OF 1868 thus deemed their appointments
to have been continued under the act of 1870. At
all eve ts that part OF the work beneficial and
necessary so long as the power remained unexe
cuted and was done under
COLOs OF LEGAL AUTHORITY;
and, II the above views are correct, 1t comes within
the purview of the act of 1872 and is thereby d.
rected to be audited, allowed and paid. manda-
mus must, therefore, issue requiring the Board to
audit the claims embraced In the said schedules "a
and By II will then be for the Board to investigate
the details and satisfy itself that the advertise
ments were actually inserted and published as
charged and to audit such items in this view of
their legality may be found to be just, but at
no greater rate or amount than fixed by lazy
or by contract under which such services were
rendered: and II there be no express contract then
the Board should audit upon the basis OF the qtd,
turn n.eIuu-viz., OF an implied contract to pay
what the services are reasonably worth. This Is a
matter within the discretion of the Board, the
mandamus will only direct the principle upon
which 1t should act, without interfering with the
fullest exercise OF this discretion. In all other
spccts the motion Is denied Let the order be set