New-York tribune., 1879-01-16
THE ARGUMENT AND THE DECISION.


last nstam OF one-thirl OF the ~ 100000 appro
prIated tor the building Of the Brooklyn Bridge came
up appeal from Judge Barretts decision, be
foro the General Term yesterday. Judges Davis
Brady and ingalls, being the Court. Many tech
meal points were raised in regard TO whether -
mandanus was the proper mode of procedure. whether
Mr. Kelly as Controller, could he alone tne subject OF
writ and other questions 10 compliance with tie
statute. The main question. however, whether the
act Of 1879 Withdrawing the bridge from private man
and throwing II upon the Cities or Nrw-Iork
and Brooklyn, required its completion at cost no' ex-
cccding The IS 100000 then appropriated. or whether
this should be considered fund for proceeding
with the work, leaving IL 10 future legislative action to
meet further contingencies that might arise from
changes in cost of labor. mlterlal, etc
The argument opened by A J. Wand rpool for the
lie took the ground that the 5r dsc great
public work. that its construction necessarily extend
many years, and the legislature therefore, could
only approximately estimate tie cost, and that tdere
was purp to limit the expenditure.
John IL S,rahan ami William II Arn0ux reSpon ted
behalf Of the city. They argued that the cost OF the
bridge having greatly exceeded he estimate the Leg
H.ature fixed limit IN order tO spare the TWO
cities from any increased eXptnse Of construction Tney
also charged recesuess the part Of tho trustees IN
;ho prosecution Of the work and claimed that from
want of proper supervision in the adjustment OF the
cables. it an Ob-tfu tion 10 ma yigatirn.
ARGUMENT OF MIR. EvARTs.
The Hon. William NJ Eyaris then fol owed fer the
trustees. lie said:
This discussion has shown that the counsel on
botn sides regard the real qu ston to be determined
"a that which was determined by tne learned
judge below, namely that of the true meaning.
'hr operative force, % the pro'iso Of Section OF
the Act Of 1si5. In searching for authorities
apon that point The cOun-e both dcs have cei the
same eases. Attcr an their comments ana criticisms
upon these case. i viii br W tie end that on the
question nf TRACTION. which claim to be the only
onpstion before yog, no one OF these cases sheds
half as mach Hght upon the precise duiy y0u are
10 exerie general principles Ot common sense,
common administrative practice ana YauiD" results 10
pubic government, %h'n risldy cn.e;tonei by iINi
cal,y discip min u bIi to the very text Di tIc
section Hsclf. NJ learned fri nd said o. your
UIonols are not to apply the writ Of maud anus
where there is such Doubt that within your
discretion you may withhold it, ant he
claims that this appl ca.ion does not justify the exercise
Of :h2t discretion Whatrrmoly there for ths rcaio'
unless bv writ OF rnandamus II he has ght 20 writ
OF mandamu- YOU have discretion to withhold II on
the ground that he also has riEht to another ram
edy My learned friend suggest, the alternative wlrh
rested IN the discretion OF vour HonoIS that we might
maintain bill ia equity. Bur what equity lS there on
the part Of the trustees OF this bridget They
ply tue drpOSitarics of 4 certain amount The relations
Of the trustees the bridge and the governments OF the
two ritie- are not relations Of equity
Ti- Is simply an action OF Tie state 10 Iuld th!s
hrd d~tribU ION of authority and an
ment of duty accomplish that object, and prov sion
that the judiciary ot the state stI see a' me WI ol
Legislature L. carried Ou NV TIE pupc servants 10
whom thls public du'y Is ASSIGNED. 70 ~ SalI
thar M. Kelly himself alone. In his canaci'y
Of Controller, could not be u d. me SUBJECT oI man
daiGus, because he alone dd not p's~'s' me ful
measure Of authority whch I might be necessary 10
exercise in order to ACCOMPLISH the wl. Of me ielaor
UnOu the papers stands mat among the puhc u "
tiJnarics city he is the ony one tat ha' res sed
II the law obstrnr's hum, then YOU Wli. nor a,Sisp
maudauus against nm ana wh'ihtF .thc, law nos
In regard 10 the Issue Of bonds will sy that while
Controller Kelly does not propose {" Sr t"csG hond,
until your Honors nave s'nt a ma'idanuS 70 him, hr
Will have The satlsiac'on 0I compymg 'u me idW -
the land and IA" resolution OF The Comm ~ Council
in that connrc ION at one and the same Tine.
Nv friend refers to the obstruction o. nay-diGh II IT,"
topUast OF "A vessel becomes tntHngtd IN M" storm
r0ps 0i which ne speaks his remedy - 20 p'3@eAnN
pun do"h ne ~ i'E'i ' no y t', ami ti,, ,r,I
state and be aud protected ~ the an
thorltic~ tnHt cutru ted win the "eirInluatlQu q"
public questions We al know thar bridge with draw
i'm u obStIcts uaN igatOn, bu' the ardn"un authority
determines that Il ~ not Hn obstruction 10 commerce,
bur that the advantages to comm are greater than
the injury caused Oy the modification - tiS respect
Nv rt "a I,ok ,t t. rgl>latIO on incident tp this Act
f IS7 The sec;inus The sycra! statutes proceeding
from 1867 e. 1874 contain no lmpcIt on ~ 10 nita-
ti,n 81 cost SuTnnsc thai one n tne yea, lis why
was no limit eon was nat coud Tor, What the
cost would be No could be 80 reckless H. 10 desire
that IA structure of this End should be electcd
~ me cost of rrrmausncr safety and strength. This -
one OF the great works OF The world monument IN lis
grandeur. and Is to be- mOhumrn al IN MS ehlliaLcG
In nroyd.ng fur this work, >un"d 10 be triumph
over the barrier walch seraTtc> the two cltIeS' tr
Legislature dd not intend 10 suJect itst TO lHe aCcu-
salon Of 10 by building a Irdee That shout he
measured by money. Thorduty 10 TIE puzzle To- tI"ic.
IN human lirr. dd permit mat element To HINT the
strength Of the structure. II IA intlmated IN the
Scriptures that no wise ah VIII commence thr pulu3
ot tower until lie has counted he cost pu II i ho
anywhere lutimatrd, THINK mat "a wise riah %"Uli
stop the building OF to"et t., vas u 't! &
when he found thtt he Hau III >'lc ,iil'u ttC
cost. Undoubtedly, wise man, especially II hi'
resources are I'M ted WI consider me 'st ol ms
before he commences l. pul Nutrr q 7l'lc i'' i
mined tnat the public interests require great pubic
work it under the condition ~ wisdom iat
IA imposed upon the Individual But I" saV Iha wisdom
Is shown in abandoning the tower ar the DdGc ana con
wltrout regard that which has ar'ady been pu INTO
IT, i, Inpu,ug what no one has suggested tiiHor IN
The great duty Of permanencc, safety and strength
should rrau ccnd the question o estimates Let lis say
material FOR tn wires. II j. iOaud THAI ciuc bic cast
steel prov ldcs greater strength The Use ~ ht later
will cause an ADDITIONAL oXprnd tnie OF FlOOOoo but
the Brs cmer s'eI b, used and rs power proves
itin~uhcrnt. When il tails are You to be told tht n
we had used crUcIbe Gel the bridge would not nave
failed buI that il TINS material had been emp"Icd me
structure would have exceeded IN cost m Sooo,ooo
appropriiel for the work You will search the law IN
vain any warrant for slch an exercise o' osc toh
tnut shall subordinate On" ends TO iht re2hN Your
Otuer side that this question hls pren Drought TO
you IN the Winter season. thai h.ihG u uihr Wn.n
present stage of construction there Is no difficulty IN
proceeding with the work. and therefore ID ttpy 10 IN
suggestion beg th.t early determination bc given
of tuis subject You have IL III your power 20 give
DECISION OF HE COURT
At the CONCLUSION Of Mr.. Eyarts's argument and
while counsel spectators were preparing TO leave
the court ROOM three Judges drew together IN con-
sultatlon Much To the surprise OF all present. Chief
Justice Davis in few minutes raped on DIS tlhle Tor
order Silence uuicsy followed and ne proceeded to de-
liver the unanimous opuion OF the Court when proved
To he IN favor OF the reator. He SAID that lie ana
his ASSOCIATES were all Of the opinion ana entertained
no doubt as TO the correctness OF ina, oph'o tH"l inc
Court below erred IN the cohsncTaTn V Az sry t
Two lmportnut questions were involved; the ns r"at-
ing to ihr remedy. whether ny mhndahus or 10y some
ofher mrtbod ot enforcing the rights OF the Uus-
toes and whether IL mandums be Issued,
It should he an imperative or hltlhauNe
casca where there clear right connected with