New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1852-04-16
COURT OF APPEALS.
The Auditor AInndamus Case.

| George W. Nesosl, 4iudtor, &c. PldinT IN Error.
Mr.. FooTE stated the great importance
of the to the State for which he appeared should
be heard by full Court and such the habit unless
parties agree TO another The same discussion,
also is pending in the State Senate This Is In fact
another for the conflict The case is not
brought upon the Court by regular judicial action,
| but by its changing the order of business. Mr..
Foote proceeded say that it was not right that the
same question should be discussed in two balls OF the
Capitol once He moved to postpone the case to the
next term these grounds:
l. The absence Of one of the Judges, and the usual
| custom under such circumstances.
The great importance OF the case requires fuii
| Court.
g. The Court should not entertain still the SUBJ
| iect of legislative action.
If the law shall pass, the contracts will be legalized
and the Courts time lost
s. These facts are now for the first time known to the
Court
The counsel for the State are now for the first time
| heard and object to proceed without full Court
| T. The Inconvenience of adjournment to June Is
nothing in comparison with the satisfaction OF Judg-
ment from the whole Court.
No real advantage can accrue from argument at this
term The Legislature will Immediately adjourn, and II
then the Court shall think an early decision necessary,
l they give it at the next term.
Mr. Foote read letter from Judge Bronson to Gov.
Hunt stating his inability from illness, &c, to take part
| In the matter.
Mr.. SPENCER said that the statement
der 1t here by writ of error. The Code had no
application here As to the full bench, he had objec-
ton, if il convenient.
He did not agree that the Court should not take the
subject because it matter of legislative action
| Upon proceedings in lower Courts the Auditor had
brought this writ OF error Pending the case the Legs
lature proposed make the contracts valid That does
not affect the question. We are en- tiled to our judy
ment, whatever act may pass the Legislature. The
Lower Court has Judgment against us for costs But
we take broader ground The Auditor declined to issue
his warrant without the direction of the Canal Board
their approval. He has been abused for ths But It
action of the purest conscientousness, and he
has sought a prompt decision of the We claim
Judgment solely upon the validity of the contracts Mr.
Spencer enlarged upon the distinct spheres OF the Court
and the Legislature and asserted that it not impos
sibe members might remain beyond the hundred days
for the sake of great public good. The Court should
not make its proceedings depend upon those OF other
bodies. If the Auditor should refuse to pay drafts
after the passage of the law, what could prevent the
stoppage OF the works for year. the decision in
favor OF the contracts there will be end of the con-
troversy if against them end by the action of the
Board 1t is doubtful whether the constitutional ques
ton win arise in this We cannot consent TO
delay.
Mr.. BEARDsLEY said that all parties were
prepared and that there reasonable occasion for
| DELAY The people will acquiesce in the judgment Of
the Court and quiet be restored in the Government
Mr.. FOOTE read the law authorizing the
Governor to employ counsel and inferred his right to
make the motion he had made.
Judge RUGGLEs said that it was not
questioned
Mr.. FooTE stated that he was hardly
ready for trial. He had had very little time for prepa
ration. He reiterated the desire for the presence OF
Judge Bronson, whom the Governor had employed.
He had doubt that the Legislature would egaze the
contracts then the work must and US he had
doubt that the learned counsels eulogum of tho
Auditor just, he did not believe he would interfere
with the operation OF the law. Therefore be had no
hesitation in asking the posponeuient.
Judge KUGGLEs-lt was the wish OF
the Court that the should have been reviewed be-
low but they yielded to the suggestion that its great pub
lie importance required speedy decision 1t is desirable
10 have full Court but Judge Watson may arrive
tomorrow, and two counsel are prepared to main
tain the consttuonalty of the law, we have concluded
to hear the case now.
Mr.. SPENCER proceeded with his argu-
ment against the validity of the contracts.
|. The Auditor could no. draw his warrant on the
Treasurer until complete legal contract was deposited
or filed IL his office.
He can draw no warrant for the payment of money,
unless such payment be authorized by law.
This results from the 9Th section Article VII of the
Constitution :"No moneys shall ever be paid out OF
the Treasury of this State any Of its funds any Of
the funds under its management except in pursuance Of
an appropriation by law"
The appropriation in the present case requires pay
ments OF the funds pledged for the enlargement 10 be
made the warrant of the Auditor under the general
laws in respect to the Canal revenues Sec OF chap.
4e3, Laws OF 1851.
By general laws the Auditor is invested with all
the powers authority and duties of the Controller In
relation to the canals and the payment OF money for
work on the canals Sec 2 and IL of chap. i6s Of
Laws OF ls47, page 272, ante fol o.
Controllers Office, created for the purpose Of guard
ing the Treasury and to prevent the payment Of any
money unless strictly authorized by law The duty Of
| his Office.
The Controller was bound 20 examine and liquidate
the claims OF all persons against the State in where
provision for the payment thereof has been made by
law and where such provision Is made he Is To
port to the Legislature Ante fol BY section H. OF
chap l52, OF le47, ante fol- o., could be
| drawn by him. unless authorized by law.
This authority of law therefore be shown af-
frnativey; and all the conditions provided by law TO
entitle party money from the Treasury, sp-
| pear 10 have been complied with
There must be complete legal contract deposited
or fled in his office for the performance Of work the
canals before he draw warrant for the payment
of any for work done under such contract Rev.
| STAT D. 20, ante fol. o.
The assent Of the State must be given 70 any pro-
posed agreemer before il becomes contract and that
assent must be zen in the provided by law.
uehnii on OF the nature OF a contract follows:
H. The alleged coutrBcs with Shippey not com
pete and legal contract the assent OF the State has not
| been given 70 H.
L Under the lah section Of chapter 4s5 Of 1851 the
Canal Commissioners State Engineer and Division En-
cineer were merely agents 10 perform ministerial act
10 behalf Of the State, the formal execution CT
tracts and not authorized 70 conclude any contract
rrou any terms whatever unless those terms had been
| decided and approved by the Canal Board.
The Boards cersanly did not possess equal aud
concurrent powers In respect TO the OF the
tracts such construction would render the abor.
tive
The power to direct and spprover Is given to the
Cspsl beard aid not to any other ofscer or board
CITED.
TIE rcver given 10 the Canal Commissioners &c
ste e. rurt be construed be inco.-
sk;sLi III tie power Ct the Canal Beard direct and