The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-08-07

0NeDIiaI neCessATlIy
exercise Of right granted by the sovereisn power OF
the State or authorized by competent lawful aathony
In the case OF Williams va New York Central Railroad
doctrine 10 clearly laid down, and has never nee
been reversed. My second point 70 thai the plain
ufs have standing 10 court, because no
ACT has been committed or is threatened which
thew eau specify, which would deprive Them Of any
rights acquired or which they would acquire hereafter
The Legislature in Its wisdom created the Board Of And
adjust outstanding claims against the city and county,
and this Court win not presume that the gentlemen VINO
have appointed 70 that Board will allow illegal or
es nn her uar Of he kind
being proved 10 be IN contemplation In the third place.
he say that the Legislature had the power to Gre
ate the Board OF AUDIT ana not only did the constitution
allow but clearly sanctioned such creation II this
Board was he thought was, local inferior court II
was expressly provided for in the constitution Of ls46
The counsel then cited numerous passages in support Of
this proposition. He then made lengthy argument,
con,ending that the Governor had power to iii vacan'
cies created by the resignation Of public oficera
Attorney General Martindale, in presenting further
arguments In behalf Of the Board Of Audit said be
graduated the public and the Board upon the opportunity
which had been afforded OF explaining the grounds for
the OF that legislative power which had clothed
the Board with its present functions He said he did
doubt but that he should succeed in disclosing both
TO the Court the counsel and those Of the general
public who might be interested, that in the enactment
Of this law there had been no Of
Mr. Stewart TO fiji the vacancy which had occurred In
the first organization Of the Board there had been
visions Of the law. The first proposition In this argu
men related TO the appointment Of Mr. Stewart in the
place OF Judge Woodruff, who after associatng for
little while with the Board declined to proceed further
The nature of the duties devoving upon the Board
pubic, and there no private relations established
by the terms Of the law between the mem
who might appear before IL as claimant On the other
hand the authority from which the Board derived their
power the legislative authority OF the State There
fore, whether determined by the manner Of appoint
ment by the subject matter 10 which their duties
related must be that those duties we're public in
their character and that the members of the Board per-
forming them were public officers II this were true,
the retirement and resignation of Mr.. Woodruff one OF
the original app0ntees threw upon the Governor of the
State the duty Of appointing another officer TO fill
the vacancy thus created. The Attorney General
cited from the various statutes upon the point to show
that the Governor empowered to I'll all vacancies
which might in the public service during tho
cess OF the Legislature He continued say that the
creation Of public officers, such he had shown the
members OF the Board OF Audit to be, imposed upon
those gentlemen the duty OF taking the oath prescribed
by the constitution for all public officers. Every
Der Of that Bo rd with the exception Of Judge Woodruff
had taken the oath and filed 1t in the proper place. In
addition to that, Judge Woodruff had sisn6ed his
men5 70 discharge the duties which had been
deyoved upon him. He had indicated this to his fellow
appontees notice had been transmitted to the Office of
the Secretary Of State at Albany. There had been
thing like rreguarty in any shape in the appointment
Of Mr. Stewart by the Governor. The counsel then de-
OF Audit could only act a whole, and that the refusal
OF one Of their body to act invadated their Official
tiou He explained that as the act was originally framed
intended that the Board should consist OF three
members only; but that number OF gentlemen in
this city succeeded in inducing the Legislature to
enlarge the Board OF auditors three to fve In
making this change, however they failed introduce
alteration in the other provisions OF the bill. That
ii was not originally intended by the Legislature that
quorum should consist only Of all the members was
clearly seen from the fact that when 1t contem-
plated that the Board should consist Of three members
expressly stated that the action OF should be
valid. The attempt Of the opposite counsel TO lay down
principle that the Board 10 act legally must
act with sitting quorum Of all It's members was not
General Martndale then went TO defend the legality
OF the action Of the Legislature in creating the Board
or Audit Although he said he had come there to
make elaborate argument that point yet il was
proper for him TO the existence OF the power
the Legislature under the constitution take such
acton-a power quite adequate be interposed in
emergency such that which had arisen in the city
of New York. His proposition was, that it was compe-
tent for the legislative authority TO appoint Board OF
Auditors for the purposes defined in the act That act
provided for the evying and collection Of certain
10 the cry ana county Of New noIk ana sne app.ca-
among Others the adjustment and settlement OF legal
equitable claims outstanding against the city OF New
York. The act therefore, In Its whole scope was one Of
specific taxation, and for the application OF the moneys
thus collected Nothing had been fully explicit
~ determined by judicial precedents than the authority
Of the Legislature pass such laws and desig
commissions. board OF audit, or whatever name
might be affixed to IT. to adjust and tx the sums and OBJ
iecs which the money should be applied. II
questionaby true that the duties devoving upon the
Board OF Audit required an examination which
was to certain extent, judicial ia its character AND
that there limitations imposed upon judicial trbu
mails not imposed upon this Board They were not arbi.
m
law; they were under restrictions except such
they had voluntarily agreed 70 among themselves had
been imposed upon them by tho statute making them
public officers But they were vested with that legislative
authority which in the exercise Of i,s discretion had
power TO apply any rate of taxation TO any part Of the
State II it were deemed necessary TO Discriminate 10
meet and satisfy any which they deemed 10 be
just The counsel then alluded 70 the decision OF Chief
Justice Marshall in the Of McCulloch The state
OF Maryland The Legislature had simply the present
recalled TO itself powers OF taxation which
had been before exercised by the corporation OF New
YORK, and also ,s power to adjust and examine claims
financial duties which had heretofore been delegated
TO the Corporation II was objected by the PLAINTIFFS
that the decision OF the Board against claimants
will not preclude those claims from renewing prosecu-
against the city county in the Courts Of Equity
But such discontinued claimants could only have their
claims satisfied from he levied and collected
der the direction OF the Board OF Audit aud court
could compel the Board of Audit TO pay them out OF
such fund, and indeed nothing short OF the same legs
Iatve authority which created the Board Again.
IL was said that the claimants would not con-
sent TO submit their CLAIMS TO the decision Of
the Board He bound to that II gentlemen had
40 little confidence in the justice OF their claims that
they refused before the board within the short
statute Of limitation allowed by the act he thought
there would no little chance Of their getting any
in behalf Of them The counsel then pro-
ceeded TO dispute the legality OF Alderman varnum
appearing court NJ all against the Board IL Audit
tending that he did 30 simply as private individual
and not in his public capacity, and cited cases 70 show
that no private person had a right take w
the litigation OF public questions In addition 10 this
he claimed that II the Board OF AuJt illegal. he,
The Attorney neral OF the State the proper officer
to test lis validity the OF the state He con-
Guided by saying that the Board OF Audit rested upon
the impregnable Foundation Of legislative authority to
pass tax law IL deemed Just TO meet and satisfy sub
ecs merely charitable Of public benefit just and
equitable claims upon the public purse.
Mr., Noyes in reply TO the preceding counsel said that
under law Of 1885, which after all simply reenacted
The common law, Mr.. varnum, ~ trustee, had per-
feet right to appear and contest the constitu
louaty OF the Board OF Audit. trustee, under that
statute WAS empowered TO enter into litigation for the
protection OF ali trust funds from waste And II
certainly doctrine TO contend that taxes raised
In this city were not trust funds lie supposed that
eli the money, with the ex option Of ttle
resulting from franchises were raised from taxes, and
nasmuch the statute declared that all the funds
property and effects which into the possession VI
Inc Board OF Aldermen and Counciimcn trust
'unds, he should think common sense would show that
axes funds OF the city and such liable to
waste. The counsel then proceeded 10 deny that the
BOARD Of Audit was judicial body lf u wsre he
,sked why there not the OF appeal TO higher
tribunal, the same existed In all other courtsS The
meaning Of the act giving the Legislature authority 10
,reate local inferior courts plain. II evidently
and had always hitherto been understood to refer
local police courts and 20 the OF justices or the
pcaca He concluded bv rciterNtne the arguments be