New-York tribune., 1908-01-21
CITY LIGHTING BILLS.
arguments on Appeal IN Suit to
Preuent waste of Public Funds.
rBy Telegraph to The Tribune.


Albany Jan. 20-Argurnents were heard in the
Court of Appeals this afternoon on the appeal soI
William Randolph Hearst from a judgment rem
dered by the Appellate Division, ID Depart
ment, denying his motion for permanent in1unc-
ton restraining George B. Mcclellan as Mayor and
Edward NJ Grout Controller Of the city Of
New York from paying gas and electric light bills
the payment of which Mr.. Hearst characterized as
being waste of than sl2GO,000 OF the public
funds OF the city OF New York"
The suit in the form Of taxpayers action vas
begun December 3, 1904 enjoin the administra-
ton from paying portion of rhe lighting hlils OF
the city during the period between January l.
1908 and March 1, 1901 The portion against which
the proposed injunction sought was ~ per
cent gas and 20 cent Of the electric light
bills Hearst's contention tnat, there being no
contract, the bills were in fact eYorDitant ana
unreasonable and wholly disproportiona-e to the
cost of the said service and the fair value there
Of that the Mayor and Controller knew this and
that in spite thereof and in total disregard OF the
fact that than S,290G0O has been included in
said bills by said companies, by which ihe city Of
New York has received 10 value whatever and
that lin violation of law. in disregard of their
duties TO the public and in bad faith have agreed
with another and with the aforesaid companies
to pay said companies"
In addition the complaint alleged that the pay
of the said bills would be a waste OF more
than s. 100000 of the public funds of the city Of
New York. would be a fraud the public and
Illegal and that there is no warrant in law for the
payment any portion Of the public funds without
full value having been received therefor by the
city of New York"
On the strength of this complaint Mr. Hearst
obtained a temporary injunction, but it va
Gated by the Appellate Division. The case was
tried before Justice William J. Kelly, IN the SUI
preme Court, in Brooklyn, and on May 4, 1906 he
dismissed the action. with costs, amounting to
over SS3 against Hearst. The case was appealed
and on January 81, 1907. Appellate Division af-
hrmed the judgment of Justice Kelly Once more
MI. Hearst appealed and the arguments were heard
IN the Court of Appeals to-day.
The defendants did deny that the price
charged was exorbitant, but they did deny that
there any collusion between them and the
corporations defraud the city.
The arguments for MIR. Hearst were made by
Clarence J. Shearn who raised two leading points,
as follows:
Ffrst-That the court erred in excluding Evidence
OF the value OF the ppoPerty 0{ fe ce or their
investment IL 1903 and in excluding evidence rea-
OF gas and electricity to the several companies In
the year 1903 and years prior thereto. lncl9olhg
the cost OF labor and materials repairs ana rs~
newals. general administrative expense and depre-
cation aGcous me & Jour @ aISU bong ccoiint of the
several companies and OF their gross income. net
Second-Irrespective OF the element Of bad faith.
the evidence Of the reasonable value Of the service
Of the dsIropoTt9n hetWeen that ,ra ana tng 6 o
bonus. and be Illegal.
In reply Theodore Connolly Assistant Corpora
ton Counsel raised five points. as follows:
Ffrst-The Special Term found-and this finding
unanimously afflrmed-that both defendaltS
secondeIt is legally impossible for the defendant
Mcclellan to perform the acts with which he is
charged in the complaint
BY way OF explanation OF this point MI Con-
noly said that the Mayor has power over tho
making OF contracts, and he has no connection
whatever with the adjustment or payment or
claims against the city. AN examination. he
said "of the statutory powers OF the Mayor shows
thar these allegations not only false, but abb
surd."
Third-In taxpayers action not based upon
acts in excess OF power the complaint must eE-
pressy state and the proof must show fraud, col
iusion corruption or bad faith.
Folrth-The prices charged by the gas companies
did noJ exceed the legal rate allowed by law In tho
bnroughs of Manhattan The Bronx and Brooklyn
Fifth-The Special Term did not err in exciud-
ing evidence