The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-08-25
THE COUNCIL MANDAMUSED.
JUsTICB MADAM ORDERS APPROVAL
OF LONG ISLAND WATER BONDS

Were Overruled by the Court-History
of the Case Reviewed by the Justice.
Another mandamus has been granted against
the Council by Justice McAdam OF the
Supreme Court requiring 1t to approve the
issue Of $4,000 In city corporate stock 10 pay
for the plant OF the Long Island Water Supply
Company. Application for the mandumus was
made By Henry W. Sheriff.. James McKeen and
Willis L. Ogden as taxpayers. The city. through
Assistant Corporation Counsel Blandy. con-
scented that mandamus issue. but opposition
was made by Councilman Cassidy. Comfy, Doyle
and Murray. Their right TO appear as individ-
uals was denied by Mr.. Blsndy. and the Court
says that they wero only heard ex gratia. 1t is
expected that the Councimen will save them
selves from tho penalty OF contempt by voting
the stock a. they did on the previous man
damus procured BY John Pierce. contractor for
the new Hall Of Records building.
Tho history Of the matter IL reviewed at
length by Justice McAdam from the act OF 1892
which authorized Brooklyn to condemn the
plant OF this company. An award OF $4,000
being made. litigation followed. which was car
red to the Supreme Court OF the United States.
but the proceedings wsro held to be valid.
The acquisition OF the waterworks was op-
posed by the water company In its litigation at
that figure Tho litigation having ended. the
Board OF Estimate and Apportionment author
lied the Comptroller to issue the corporate
stock, subject to the approval OF the Municipal
Assembly. The Board OF Alderman on June 81
gave Its approval. but the resolution failed the
same day In the Council. The position Of the
taxpayers was mainly that the city Is obliged
to pay interest at u per cent. on the award,
and 1t will not have to pay moro than per
cent. on the corporate stock. Brooklyn Is not
to have the water plant until It's paid for. The
main objection Of the four Councilmen was to
the propriety OF the expenditure. The Justice
says:
The four Councilmen declare that in their
belief the resolution the REALTORS want passed
by the Council Is not in the interest Of tho city.
and that it seeks to authorize an unnecessary
expenditure OF money. This objection is well
answered By tho Court Of Appeals t143 n. y,
$50: The Legislature may be presumed to be
the best Judge OF the necessity Of public works
and improvements. Of how they shall be insti-
tuted and Of how they shall be carried on. so as
best to subserve public ends BY the Act Of
1882 1t is expressly declared that the public in-
terest requires tho acquisition OF this pro perty.
so that after this legislative declaration. and
the approval OF the award made by tho COM
missioners, By the General Term OF this court.
the Court Of Appeals OF this State. and the SUI
promo Court OF the United States. the mere
fact that four Councilman dissent from the con-
illusions arrived at by the Legislature and tho
different courts named. and claim that it ulti-
mately rests with them to determine the pro-
priety OF the matters involved. can have but
little weight In arresting tho orderly admins
tration Of justice.
IA an apparent excuse for their conduct the
four Counoilmsn allege that the property and
franchises OF the Long Island Water Company
are not worth 1000. and in the same para
graph they aver that the Long Island Water
Supply Company has not demanded or at
tempted to collect said alleged reward. but on
the contrary has applied to the court to have the
same set aside which plainly shows that
while the four councilmen think the award too
high the water company thinks It too low.
This has boon the attitude OF the water COM
pany In all the litgations. and when the mat
ter was before tho Court OF Appeals that court
said: We may concede that the evidence
would even have justified n larger award. even
upon the theory upon which the Commission
ers proceeded so that the highest court in
this State deemed the award fair. though mod
crate In amount.
The city OF Brooklyn had previously con-
traoted to purchase the water plant at a price
equal to $1.250 900, but this contract was an
nuled as tho result OF an action by taxpayer
Of that city. The city by the award OF the Com
nissioners and action OF the courts gets the
property $5O000U cheaper. or course the
water company does not want to part with its
property for the amount awarded. and the re-
spondents' contention that there 10 unneces-
sary or extravagant expenditure involved is
without the slightest shadow OF truth.
The Council is an inferior body. unlike the
State Legislature. which represents the SOW
ereignty OF the State. and is the nero creature
Of the legislative will. with power to pass by
laws In the form OF ordinances and the like.
and Is not exempt from judicial supervision
and control.
The rule undoubtedly is that where an
officer or body is clothed with a discretion
either to do or omit to do an act mandamus
can only issue to compel decision but cannot
direct it's form. 30 that II the respondents had
been given q discretion in the natter the power
OF the Court would be limited to compelling
them to exercise their discretion. and could
not direct them to vote for or against the meas
urs. But where the duty 10 mandatory and no
discretion is vested. It's performance and man
ner OF performance may be compelled by man
damus. The word directed as used in this
statute. means that the officers are ordered
and has the same force as an order given to
soldier whose only answer 10 obedience. Who
ever accepts public office takes 1t with all the
responsibilities and duties the law casts upon
1t. No one Is obliged to accept public office.
and II he cannot perform its duties the statute
points out an easy mode OF resiR ming it's cares
but while in ofilce he must obey the law or
mako place for some one that will No one is
above the law; all must yield obedience to 1t.
and In a becoming manner
when writs Of mandamus have been APP
Piled for against inferior courts. the response
has generally been waiver Of all technicali-
ties, frank submission OF the controversy.
narrowing it down to the point IN dispute. and
expressing willingness to obey at onca any
instruction or direction from the superior au-
thority. The four respondents. instead OF fol.
lowing this laudable exam pie. have challenged
the jurisdiction Of the Court to advise or direct
them. and claim that II the act OF the Logisla-
ture imposes any mandatory duties ON them.
1t Is unconstitutional and void. Then they
deny on Information and belief. that the rela-
tors are citizens and taxpayers But such
form OF denial in proceedings for mandsmus
has no value and raises NO issues.
In conclusion the Court decides that the
Council. and particularly the four mem bers OF
1t who have been heard upon this application.
have neglected to perform q plain duty con-
corning which they have nodisoretion. that the
direction from the Legislature. representing
the sovereign power Of tho State. must DO