New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1899-08-04
COUNCILMEN STILL FREE.
Con tinued from First Page.

after the regular meeting of the Council.
Mr. Kellogg at this point said: Il have pre-
pared an order which Is entirely IN compliance
with Your Honor's decision and within the law
This order will hand up within a few minutes
will not apply for an attachment against any
OF the gentlemen who have obeyed the spirit OF
the writ OF mandamus issued by Your Honor
! will also give the Councimen all reasonable
time in which to pay the fines which have been
assessed by the Court i see no reason Tor
stay i'm these proceedings. The Counctlmen nave
been stopping public work. and fail to see why
they should be given any more time in this mat
ter by the Court"
Henry A. Gumbeton, who appeared for Coun-
Gilman HottenrOth. asked that a clause be in
serted in the order purging his client OF con-
tempt Of court He said that Councilman hot
tenroth had no intention Of violating the Courts
order. and had always voted for the bond issue
III my client is In contempt so Is the Mayor
he said
Justice Fitzgerald told Mr.. Gumbleton that the
question of the Mayors alleged contempt did not
enter into the argument Of the present motion
ATTACHMENTS AGAINST FIVE.
Mr.. Kellogg said after the hearing that he
would apply for an order Of attachment against
the five men who had voted against the issuance
of the So 100000 stock. Mr.. kellogg contends
that the resolution passed by the Councilman on
Wednesday does not comply with the order of
the Court. The five Councilmen Cassidy.
Murray Francisco, Comfy and Doyle.
Dir. Kellogg then called at the Office of the
Corporation Counsel. to find out if the resolution
passed by the Council was sufficient TO guar
antee the payment of the S34 $50 60 Mr..
Whaen was out OF town. and Mr.. Kellogg had
talk with Acting Corporation Counsel Connolly.
Mr. Connoly said that in his opinion no bonds
could be issued under the resolution passed on
Thursday. Then Mr. Kellogg prepared an order
Of commitment for the Judge to sign.
The Assistant Corporation Counsel. Charles
Blandy, had talk with Justice Fitzgerald in the
afternoon. Court summoned
for the purpose Of finding out what latitude
might be given 10 the five offending Councmen.
Justice Fitzgerald, it was said, had made up his
mind that the Ave COuncilmen should be pun
ished. but he did not wish to take hasty action.
1t was announced at BIO o'clock that Justice
Fitzgerald would not sign any order with re,
gard 70 the Councilmen yesterday. IL was SAID
that the reason was that counsel on both sides
could not agree as TO the exact terms of the
order to he issued
Mr. Kellogg then started for his country home
in Bernardsyie. n. j.. where he Will remain
two or three days.
Mr.. kellogg explained that the order when
signed would make all fourteen Councmen con
Cerncd liable to arrest He said, however, that
II left TO him the liberty TO obtain warrants or
not al his discretion. II shant arrest those EEL
lows that voted favorably on the proper resou-
ton" said Mr. Kellogg. that is. the S2,loo,WO
resolution. that being in my opinion the only one
they can vote for I'll even allow the men VINO
voted FOR that little time In which TO pay the
500 fine"
Mr. kpllOgg'S attention was directed 10 inc
queer law which ex-Mayor Patrick j. Gleason
Of Long Island City engineered making all Of
Queens County practically the county jan Nr.
Kellogg said he would investigate this law ana
n II applied to the COuncmen. care would be
taken that they were arrested in Manhattan
Borough.
when the Councmen are confined they can
be taken out only on a writ OF hsbeas corpus
and such a writ will be necessary 10 permit them
10 attend tho meeting next Wednesday. The
bonds cannot be Issued in the mean time. as the
Board adjourned tin that day. and bonds Can
not be issued at a special meeting
MR.. KELLoGGs POSITION.
The ground Mr. Kellogg has taken In the case
is stated by him as follows:
The claim is made that the Councmen have
complied with the writ In voting for a certain
resolution. This is not true. but II IL was true
Il would not affect the form 81 the order. The
reason is that the order must follow the decision
and be in accordance Herewith. The resolu-
ton IS I'm respect in compliance with the
writ Of mandamus issued by the Court. The
resolution provides that the Controller of the
city OF New-York he and he Is hereby author
tied 10 issue corporate stock ~ the city or New
York for the purpose OF paying John flerce'
tho rclator IN this mandamus proceeding, the
sums ~ S14 $50 and $40 500 the amounts stated
IN said writ OF mandamus to have been earned
by the said relator John Pierce under con-
I'm this resolution II will be seen that there
IL no amount OF stock authorized II confers
authority upon the Controller TO issue no par
tcular amount OF stock. Stock In the exact
fractional proportions as designated In the
resolution could not be issued by law There
no power in the Councilmen 10 pass any
other resolution in this matter except that al
ready passed by the Board of Estimate and
Apportionment and by the Controller.
The act provided that the money should he
paid follows: For all expenses 10 be in
CURED under the authority Of this act. nclud-
ing the furnishing and equipment OF the build
Y herein provided said Board
mate and Appointment Is hereby authorized
To require the Controller 20 issue bonds or
stocks OF the Mayor Aldermen and Commonal-
y Of tho city OF New-York from time to time,
I'm the manner provided by law. in such amounts
shall be necessary 10 carry out the purposes
Of this ct'-G.aws Of 1897. Chap. 30. Sec. is
The mandamus proceedings in this case show
the following resolution. That on the Sd day OF
February 1890. the Board Of Estimate and APP
portionment OF the city Of New-York duly au-
thoriZed and required the respondent, Bird 5.
Coler. as Controller OF the city OF NewYork. 10
issue corporate stock of said city of New-York
In the manner provided by law in the amount
OF s.. 100 600, necessary to carry out the pur-
poses of this Hall OF Records. etc.
This allegation was not denied. This resolu-
ton was the only resolution before the Council.
The writ OF mandamus directed them 10 pass
on the necessary stocks TO make the payments
to Pierce They could only pass upon those
stocks upon the requirements of the Controller
and Board Of Estimate and Apportionment and
in the amounts fixed by them. The resolution
which they have passed is q nullity: first be-
cause IL names no amount and second because
n does not adopt the only method prescribed
by the act and required in the writ OF manda-
mus. 10 wit: To authorize the Controller OF the
city OF New York TO issue corporate stock OF the
city Of New-YOrk for the purpose OF paying
John Pierce.
In other words the stock can only be issued
on conditions precedent, VIZ: a. The require
ments of the Board OF Estimate and Apportion-
ment; 90 the requirements of the Controller;
80 the approval Of these two requirements by
the Municipal Assembly This is the only way
that the writ can be complied with. All the
members Of the Board OF Aldermen have al
ready passed the resolution I'm proper form
Twenty of the members OF the Councilmen did
vote for the resolution in proper form and
notified the other five to that effect"