The New York herald., 1879-03-26
COURT OF APPEALS DECISION.
The Comptroller Allowed No Discretion
to Withhold Funds.
MUST COMPLETE THE STRUCTURE
No Positive Limit to the Cost
in the Laws.


to issue mandamus compelling New York to pay
her share Of the cost of constructing the
bridge over the East River. commonly called
the Brooklyn Bridge. The prevailing opinion
was delivered by JSdge Earle and concurred
in by Judges Andrews. Rapalo and Dan
forth. A dissenting opinion rendered by
Judge Folger, which was concurred in by Chief
Justice Church and Judge Miller. The prevailing
opinion is very lengthy and recites that it the
evident intention of the State Legislature that the
bridge should be completed. the cost not being
limited. Congress also accepted the view taken by
the Legislature and gave consent that. GER
tain conditions being complied with. the Sec
retary OF War should accept the plans and
permit the work to be finished. Congress therefore
authorized the construction Of the bridge, and the
legislators Of New York decided that the city Of
Brooklyn should pay two-thirds and New York one
third of the cost Of such structure. By special
enactments it was provided that eventually the
bridge should become the property of these
cities after buying whatever stock might be
In the hands of individual shareholders. The
capital stock Of the company was $5.O0O,OoO. The
two cities were authorized to subscribe to the capi
tai stock Of the company such amount two-thirds
Of their Common Council respectively should deter
mine. Considerable stress is laid upon the fact that
the Secretary Of War satisfied with the plans.
and gave permission to have them carried out
SPECIFIC DIRECTIONS BUILD THE BRIDGE.
Section 2 of the act of May. IA. 1876, provides
that within twenty days after the passage of the act
the Mayor, Comptroller and President of the Board
of Aldermen of the city of New York shall appoint
eight trustees and the Mayor. Comptroller and City
Auditor of Brooklyn shall also appoint eight. for
the purpose Of managing and constructing the
bridge; and the trustees thus appointed. to-
eether with the Mayors and Comptrollers Of
ha kxvn cit Sha
of Trustees of the bridge. and shall have fun
power. control and direction the plan and
struction of the bridge. Section provides that
after the dissolution of the company the bridge shall
be public work, to be constructed by the two cities
for the accommodation. convenience ana safe travel
Of the nitants of the district composed of the two
Cities that the expense OF constructing and main
IN the proportion of twothirds by the city OF Brook
lyn and one-third by the city of New York.
sna sas fs time suea % as the they sss
deem necessary. call upon the cities for
such sums they shall deem proper in the proper
cced ss.oOOOOO and the city Of New York shall not
in any any - one year ar until the said bridge shall
be fully completed and open for public
are given full power and authority to purchase and
hold for the cities all rea estate necessary for
the bridge % 70 & sha rae az and E 1ws
over the same and to keep and maintain the same in
good repair at the EXPENSE Of the two cities.
stocEholder OF the company shall have '' de-
clined to sell his rights in the COM
trustees authorized to proceed at to acquire
the for and In behalf Of the two cities in the
IN sss a so
tho dissolution of the Bridge Company provided
In the net. the bridge and its appWtenances shall
vest absolutely in. and belong to. the two Cities
COMPTROLLER MUST
After concluding that the structure is city pur-
pose, and that what has been clearly sanctioned
BY the State and national Legislature be neither
unlawful o nuisance the document concludes:--
There is no allegation on the part of the 6efend-
ant that there has been any departure from the ap
proved plan in the construction of the bridge,
cept in particular. and thats ~ to the guys or
stays He alleges that guys stays have been and
Attached to the main span of the bridge which hung
below the bottom chords thereof There is no ale
anent part of the bridge. but they used only
peeins to be conceded in tho construction OF the
ws Within s
scrbed by the Secretary Of War. But If these guys
or stays are unauthorized. such . departure
from the approved plan would not justify
the defendant In withholding tho payment of this
money. The duty Is not imposed upon him
parture from the plan in the construction of the
bridge He is to pay the money when properly
srustees o Of tho bridge to properly y1 apply and
expend it. II they do not discharge their
duty. they commit breach Of trust, or II
defendant. OF the trustees, can go into the
proper courts. State federal and compel observ
Ance OF their duties and conformity to the plan.
Tho defendant also alleges. as justification Of his
refusal pay that tho trustees arc extravagant in
and that the bridge will be uselcss and unsafe
when completed upon the present plan. These mat
ters do not justify the defendants refusal. The
trustees appointed pursuant to law to disburse
the money. In its disbursements there may be a
certain amount OF extrayagance ana wastefulness
flowing from misjudgment or folly. for which
there In remedy But II they be car-
red to such an extent rs TO be reckless
application to it, may restrain and Control pI0p tSe
trustees to the waste of the trust funds The
descendant is member df the Board Of Trustees. and
Is expended. II he cannot, as n member of tho
Board prevent its waste he may take preventive
ss' b wsssS ~S%G qdS Rsa may noss ~si
pay It TO persons charged with the duty of expcnd
Ing Il, could withhold payment because of the ap-
prehcnded extravagance OF those appointed by law
NO LIMITATION PLACED UPON THE COST
The issue to whether the bridge will be useless
Tho Legislature has directed the bridge TO
be completed and has sanctioned the plan
adopted 1t authorized the appointment Of trustees.
who were given full power control aud direction
over tho plan and construction of the bridge, and
was made the duty Of the defendant. as Comptrol,
Ter. 10 pay the money TO them. He cannot withhold
payment because In his judgment the bridge will be
useless and unsafe. or because 1t will In fact
tion Is yot TO be considered. The defendant claims
that under the act of 1876 the had power
to proceed with tho construction of tho bridge and
to call for any money from the two cities. and
that the cities had power to pay any money to the
trustees unless the bridge could be completed for not
more than the sum Of $S000.Oo0. careful consid-
GRAFTON Of the whole subject has constrained us 10
take different view of that act. The Legislature
has at ALI times apparently regarded the bridge as OF
great importance TO tho two Cities and has appeared
70 be solicitous about Its completion. In tho
nrst act. that OF 1867, 1t authorized the two
cities to subscribe an Unlimited amount
10 the capital stock OF the company, and
ultimately 10 become the absolute owners OF the
bridge. conferred upon the company the SOW
ercign power TO take lands for the purpose OF the
bridge by the right Of eminent domain thus treat
ina It like corporations organized to construct rail-
roads, In which the public are supposed TO have an
interest In tho act OF 1909 II provided for repre-
pentation OF the two cities by three Of the prin-
cipsl officers OF each city In tho board
Of Directors. and directed the company to proceed
with the completion Of the bridge without delay.
shinss sfo rrnxln for fha nnoe1ix cnnsfr,scfior 81