The New York herald., 1874-08-22
THE FOURTH AVENUE IMPROVE.
MENT.

The facts connected with the refusal or Mayor
Havemeyer to countersign the warrant for paw
ment OF one-hafthe expense incurred In the Fourth
avenue improvement, or. In other words the
sinking the track scheme to facilitate rapid
transit, were given fully when the matter
first came before the courts To bring the matter
to test application was made before Judge
Westbrook, then holding Court Chambers for q
mandamus to compel the Mayor to countersiQn
the last warrant for the cys share of the expense
called for under the act OF the Legislature in &C
cordance with which the work is being prosecuted
which warrant had been duly drawn by the Comp
troller on the City Chamberlain, pursuant to
proper certificate presented by the experimenting
engineer OF the work. Judge Westbrook sent
down his decision In the case yesterday, embody-
ing the same in an elaborate and exhaustive opin-
Ion, covering over fifty pages OF foolscap. A COM
prenensve abstract OF the opinion Is given be.
lows
JUDGE WE sTBKooK's OPINION.
After recting the facts OF the case including
the general features OF the act under which the
improvement IS being prosecuted and the original
as we'll as various amendatOry acts referring to
the same, he shows how the city became respon-
such costs to be reported BY Board Of Engineers
having charge OF the worE. 1t is further stated in
paid into the city treasury $3.50, Ss7 So So
to meet its share Of the estimated
cost. According TO the act the payments on &C.
count OF the city were TO be made IN the usual
way that is to say. bv means OF warrants drawn
on the City Chamberlain by the Comptroller, and
1874, certificate was made by the Superintendng
Engineer, setting forth that $278 466 70 mad been
was drawn Tor half this sum, but alter the Mavor
had c0untersgned the same he caused his
name to be taken therefrom and refused to
again countersign 1t. Upon this state of facts ap-
plicatiOn was made for a peremptOry mandamns
directing the Mayor to countersign the warrant.
controversy involved simply questions Of law.
The opposition to tue mandauus was based on
sppropriate remedy; second that the csrticate ate
includes the cost OF temporary tracks for running
trains soGSry during the OF the work
the law is Unconstitutional. lie holds that that
none OF these grounds are renable. The only
he cites various authorities sustaining this view
As to the expense Of laying the temporary track
whole expense. Under the law the work was to
be prosecuted as unit, under one plan and a
naa aae Is tina; the
%en. S1 is Of rs ooas az the sppOTson
by the legislative power in the exercise OF its
best Judgment He holds that it is too late now
the allegation that the title to the act is imper-
feet, he holds that this objection Is not well taken.
tax Is Tor the benefit OF the railroad simply is un-
true & as the city Is equally BENEFITED; The opinion
cOncludes as IOiows:- may not the act OF 1879
be regarded the embodiment of an agreement be-
tween the parties to which all have assented upon
which, al have have acted, and the with
permitted, because BY its its conduct aIaUs it Il
has induced the ether to incur responsibilities
which 1t may be fairly assumed would not have
been incurred ii the other had not assenred The
relator accepted the law by making the contract
to the work which the act required H. to make.
The city, through Its oflcers, accepted it by no
Chief Engineer Of its Board Of Pubic works 70 be-.
come q member OF the Board OF Construction,
which directed the work and controlled the expen.
diture BY using its machinery lor the collection OF
taxes to assess, levy, collect and receive into the
city treasury its one-half OF the cost by drawing
through its citizens BY the payment Of the tax
levied lor the ctys share Of the cost Thus all
parties have agreed, the city through every oicer
and every taxpayer. No rule OF law and no rue
OF honesty should permit objections to prevail
which have been so fully and so explicitly waived
81 the cy It's ts
& INTO the city treasury; and ali except that part
still remains therein pledged to this OBJECT. 1t
cannot be used for any other purpose without q
fraud upon the parties from whom II was collected
anG who paid 1t tnat this work should not fail.
Wnen the Mayor refuses to countersign this war.
rant as the Law commands, ne refuses not In order
sively to be taken against their win, but TO defeat
their wishes and to appropriate their means
to some use other tnan that to which
so doing Is not only contrary to the desire OF the
relat0r but to that Of the body OF the people whom
ne sx rSe to and whose voice ne
that their means shall be used for the very pur-
pose TO which tney have applied them, and none
cute the trust which taxpayers, under the law,
have committed to their offlcia hands In the belief
that the provisions OF such trust would be faith
fully executed. The result OF my examination IL
that the peremptory mandamus asked for should
issue"