The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1879-01-16
BROOKLYN BRIDGE.
New York Oity's Quota for the
Cost of It's Construction.
ENFORCING PAYMENT BY MANDAMUS
The Supreme Court, General Term. Decides
that the Comptroller Must Pay.

made time ago by the trustees of the Brooklyn
Bridge Company for mandamus directing Comptrol-
Ter Kelly to issue bonds for the payment Of
additional to that previously paid the citys quota
of the expense incurred in building the bridge. In
the lower court this application. will be remem-
bered was denied. and the came up yesterday
appeal from order of Judge Barrett denying the
application. The Bridge Company was represented
by William NJ Evarts, A. J. yanterpoel. Austin Alb
bott and E. NJ Cullen. Corporation Counsel William
G. Whitney. William H. Arnoux and J. H. Strahan
presented the on behalf of the city.
THE PAPERS IN The CASE
The affidavit of Mr.. Henry c. Murphy, upon which
the application based, sets forth the State laws
and act of Congress authorizing the structure, the
approval OF the plan by the Secretary War; and that
there necessary. in the year 1878. defray the
expense Of constructing the bridge and to discharge
debts already incurred two sums each Of ST. OOO
and that the Comptroller of New York had been
called upon under the law of 1875, for onethird of
each of these sums
Two afidavits submitted in opposition in
one Of which Mr.. Kelly AYERS that the bridge upon
completion, will obstruct navigation. and in the
ond, in justification of the failure to comply
with the calls of the trustees, alleges that
the original enterprise instituted for
improper purposes; that William M. Tweed
improper the part of the officers of the old
bridge company to secure New Yorks subscription
to the stock; that ample provision was made by the
law of 1875 to complete the bridge within the limit
therein authorized but that the trustees refused to
bring their expenditures within such limit; that
the structure will be onethird uncompleted when
the entire expenditure allowed has been made, and
finally. that the Board of Estimate AMI Apportion-
ment has not authorized the of any bonds
and that the ordinance of the Common Council for
the issue Of the bridge bonds has been repealed
by another ordinance. Mr.. Murphy, in o re-
plying affidavit, expressly denied the asser-
tons of Tweed and all charges Of extravaganza
and waste. and asserted that Mr. Kelly is himself
of the trustees of the BRIDGE that one-half the
Board Mr.. Kellys appontees. and that until this
proceeding Mr.. Kelly had never opposed even
criticised any action of the Board of its proposed
plans.
ARGUMENT OF COUNSEL.
Mr.. vanderpoel, on behalf of the appellants, con-
tended that the limit Of money prescribed by the act
limit on the amount of the contributions to be
made by the two cites that the subject OF further
appropriations. if found necessary and expedient
was a matter tor further legislative action, ana
that the necessary cost Of the bridge can
not be determined by the courts by any
other tribunal than by the trustees themselves
As to the allegation that the will obstruc
navigation, he urged that the decision of the Secre
tary Of War conclusive that point The qiies-
ton had been the subject of litigation in the United
States and had there been decided in of
the trustees by Judge johnson.
Mr.. Arnoux, for the respondents argued that the
Limitation OF the expenditure to $4,000, 900 a
limitation upon the power of the trustees to demand
of the cities to grant any sum that could exceed
the amount specified and likewise limitation upon
the cost of the bridge that the bridge now CON
sructed violates both State and federal law and that
the authority given to the Secretary of War under
tine act OF Congress As simply confined to the incep
ton of the work. In conclusion he insisted
that the public sentiment in this city is opposed TO
the bridge injurious to navigation, prejudcial
to the maritime interests Of the port OF New York.
unsafe and unnecessary structure and useless all
practical purposes of locomotion.
Mr.. Evdrts made tho concluding argument, and
urged tina; there was no question to be determined
spoken OK the proviso Of section of the act of 1875
After considering the question whether the remedy
by mandamus was the proper one Mr. Evarts pro-
ton OF the highway. arguing briefly that the action
OF Congress and the federal authority had set that
matter at rest. he then entered upon an exhaustive
discussion OF the construction OF the law Of 1875
claiming that there limitation upon the total
cost OF the bridge.
THE DECISION OF THE COURT.
After brief consultation with his associates Judge
Davis announced the decision at which they had
1.-The Court is fully impressed" he said with the
importance of this and the questions involved
ton of these because the necessity
OF progress with the work. if the determination be
favorable to the trstees and secondly, il the
is finally to be determined by the court OF last
Sort to expedite Us far possible the obtaining of
early decision We all OF opinion, anu enter
tain no sort OF doubt about its correctness that the
learned Court below erred i'll its construction of the
statute. There are only two important ques-
tons involved in the case. Tne first
lates to the remedy, whether it be by
mandamus or by other method of enforcing
the rights of the trustees, and whether, IL
daus be issued. 1t be an alternative or peremptory
writ. The pereinptory writ is the proper legal pro-
i'll all where there is a clear right, con-
nected with clear legal duty. independent of
extrnsic facts to be determined passed upon by
court jury. Ii this here is no rea
sonable doubt that legal right exists if the construc
ton OF the statute be as we THINK and that the legal
duty has been RENTED by the statute and by the
sequent action of the Common Council of this city
to the Comptroller, aud he is clothed with the
sary power Tor Its execution being directed to
issue bonds provided by the statute. The
subsequent resolution of the Common Council
the Court holds was not repeal or modification
the former ordinance. bat simply request to
the Comptroller not to take upon the ordinance
until he should have obtained an adjudication by the
courts upon the matter, to which the Comptroller in
the due OF administration OF his duties
should pay proper nut II he dis regarded IL IL
would subject him to no scrious censure The Count
however, could not under the circumstances refrain
from saying that the Comptroller justified in
taking the opinion of the Court before acting Judge
Davis then proceeded 20 the consideration OF the other
question, OF whether or not the construction placed
by the Court below upon the statute the correct
one He rcctcd the provisions OF the statute. which
appropriated $S,O00vOO TO be drawn upon under
the act as prescribed, in the proportion
of two-thirds from the city of Brooklyn
and one-third from the city Of New York.
and no more than Sl.00ooo0 from New York,
more than s2,O0OOO0 from BrooAl!n could be called
for in any one year The statute provided that the
right to call tor these moneys should terminate
whenever SS.0O0.0OO shall have been expended IN
those proportions. IL also met another contingency,
which was that the public expense aud
bridge aud all the necessary structures connected
with 1t might not reach Ss0O0,OOo. and 10 another
limitation WAS 'nterposed, us the Court thought,
upon the power OF the trustees That limitation
expressed In the concluding words which the Court
tn ught had been misunderstood as being restrict
ton upon the total cost under all circumstsn
The PROVISION cads-'Until the said bridge shall
be FULLY completed and open tor public travel and
the deUts ana liabilities incurred therefor shall be
fully paid The true significance OF these words
taken in connection with the other provisions of the
section the Court thought that the'draits upon
the two cities ia the proportion named might
tnue against the Ss.OOo.O0O until the said bridge
shall be fully completed and open Tor puUc travel
Sc.that liz. the right to eau tor these drafts upon
the ss,OOO00O terminated whea that event occurred
so that II the bridge was completed for less sum
then the right ceased. Ibis made the statute sens-
bic and consistent with the object In view. and
showed no intent 10 provide that the bridge itself
should he limited under OSt