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

uvton 10 Dissolve the observation-disclosures
deserved.
BEIGE Judge Barnard.
Joseph Va'narA w., Mep'ter Of TIE Common Cam
eil dc, oeaina 'Aaancey NJ Depep e AZ tCiy board y
AUDIT. ar/nmen, the motion TO dissolve the
injunction gn .hted by Judge Barnard The 9th OF
july restra Ang the Board Of Audit from meeting au-
dt'ng oradustDg Of tho unsettled CLAIMS against
tho city which might be brought before Them took place
before tins yesterday The array Of counsel en-
gaeed in. the fully bore the prediction In the
HERALrvof Friday last, that tremendous effort would
be uSade 10 the dissolution Of The order OF
restraint and comprised among others two members
Of the BoaTd-Auorney General Martindae, Judge
Bonney and Ruins +. Andrews appearing for the
Board, Recorder Hacset. for the city OF New York, and
G. r. Noyes and Joseph f. Day for the Citizens Asso
citation, which appears plaintiff through Of its
members
Mr. Ncyes IN opening the case argued that the plain
tiff trusee OF the property, funds aud effects Of
the city Of New York, being corusiee with the other
members Of the Common Council, Of the same-bis
Legal standing and capacity and duty bring this action
beng expressly declared by the Legislature the Laws
Of 1854 chapter 406 section g. 1t is the province OF
courts OF equity and pubic private trustees carry
ing tho objects Of their trust and protecting the
funds The trustee the plaintiff, is bound by law
70 guard The trust property as hrs own, and his CO.
neglect refuse do their duty this respect
he must do II alone, aud the courts are bound TO help
him. In this the corusiees OF the plaintiff though
requested, have neglected 10 interfere TO avert the
threatened danger TO the trust funds committed
be committed 10 their charge II belongs therefore, 10
the plaintiff 20 seek the aid OF the courts 10 stay the
Anticipated waste. All officers though expressly
authorized by statute have capacity TO sue COM
measnrate vita their public and duties. "A Hill
1861 The waste Of the property Of the city OF New
York and its inhabitants is the necessary result OF the
unconstituiionaity of the law creating the Board Of
Audit and the Illegal appointment OF a new member Of
the Board not contemplated BY the said law Every
i'm yuh ri fha RnaYh hasidA in forn nf
DO paid; every claim which the Board rejects will
be sued over again; for the adverse decision of
the Board will DO no bar TO a recovery. Thus the
city has everything TO lose and nothing 10 gain by being
sent from the regular courts OF law TO this tribunal
pers and expenses doubled without any corresponding
benefits 1t rs best both for the city the
daon Of the Board and its decisions, should decided
at the OUTSET otherwise II will be the duty OF the Cor
poraton Counsel TO contest every award OF the Board
before payment The result OF this would be ruin
to claimants, who would have been at great
expense to prove therein claims before the Board,
It would be ruinous TO the city, which V would
have TO institute then separate proceeding tor
every such claim. The Board OF Supervisors which is
to raise the money; the Comptroller who to draw the
warrant; the Mayor, who Ia 10 sign IT, the Chamberlain,
who to pay it. have all the right and i will be their
duty 10 test the constitntionay OF this Board OF Audit
before consummaiing The waste inaugurated by its
acton The courts Of justice are open to honest
not cured by tho parties permitting the Board pro-
coed and pass Judgment The claimants forced be-
follow them there II they submit, under mistake
as 10 their legal rights they will not be concluded by
such Submission. This forced submission will no, be
subject to the rules governing arbatOns for the
dalton OF resort TO arbrament Is consent The Corpo-
ration has given no such consent: none of It's officers
have the power TO bind il to submission to arbitration,
which is irrevocable contract In the Mayor
Of Brooklyn VS.. Brady Il Barbour. 5s4, the
Brooklyn Common Council had right make
contracts. In New York the Common Council can only
contract up to $3.50 600 y section IS OF charter
the city Of New York the contracts the citv can enter
II ted hes Or ygOF nd
When difficulty arises in respect to these the courts
open to adjust them according 20 the provisions Of that
charter The very claims before the Board OF Audit
illustrate the point Almost all OF them Involve the
question as TO whether in mourning them the Corpora
larly established courts the only tribunals Intended
by the constitution and the laws for settling ques-
tons. The law creating the Board OF Audit B in VIOLA
ton Of the constitution of this State, because its effect
to deprive the Corporation and the claimants Of the
No mem s . s,as s
OF any OF the rights or privileges secured to
any. citizen thereof, unless by the law Of the
land or the judgment Of his peers and also by
section two OF the article, which declares
trial by jury. In all cases in which has been heretofore
used shall remain involaie forever and by section SIX
OF the article which says mo person shall DO
deprived of life liberty property without due process
of law" The In question conpels the claimants and
the Corporation TO orego their right TO have their
troversies adjusted by their courts and jury. II ns
OF tins county and declares that Il any person having
claim against the city shall not present such claim TO
that tribunal WITHIN three months from the passage OF
same and It provides that " the said tribunal shall ind
aud report that any person has Just and equita
raise the amount OF tue same by tax and the Comp
iroer shall paw IL TO the claimant This process for
condscatug the property Of the Corporation and the
taxpayers, the hand, and the claims of indi-
vduas the other not part Of tolerated by the
claw OF the land mentioned In section !; Is u
the "due process Of law mentioned in section OF the
constitution TIE total deprivation OF The trial 10y Jury
TO the parties is fatal to the act aud such laws
polling the city OF New York submit controversies
such legislative commissions as this Board have been
declared unconstitutional by present members OF this
IL is difficult TO say what the Board aud It's mem
bers in the contempt OF the constitution
whether such Board contemplated by II II
members are to 90 considered az most nearly resem-
bling the statutory arbitrator then OF the obec
tons already Sc, forth apry 20 H. II the members
officers within the meaning OF the constitution then the
following considerations are presented Civil officers
divided INTO three classes according settled authority,
such az the Governor tue Mayor DC
Judicial which includes all whose province II is TO de-
eide controversies between ndivduais aud nseria,
such sherifs. &c. The objections 10 the Board OF |
considered and WITH be found ais 20 IFS constitution
atty The duties OF the Board are wholly local and IL
IL an office contemplated by me constitution, then the
sct creating violates tie second sect on o. article ten,
which declares that all county cy, .0wn and village
officers be elected by clectorso such ounsy,
city, town village must be appointed by sucn |
authorities thereof the Legislature may direct the
Board OF Audit must be SHOWN to be new Office; |
and IL appears that the auditing of city claims |
il a dury which has heretoto ore been performed |
by the Comptroller and the Common Council This |
act then SIMPLY transfers tins power from these ocers
~
another set Of appointed In violation OF the constu
ton. But the objections 20 this new TRIBUNAL still
greater IL Il be considered judicial Office. The duties
Of board simply 10 hear aud decide controversies
between the Corporation and rs creditors This Is the
precise definition OF Judicial Office which the constiiu-
lion provides in article SIX, section eighteen, shai be
led by election, &c. The act u also VOID by bong 10
conflict with the constitution OF the United States aud
imparng the obligation OF contracts ia abrdging tn
remedy OF the city and the ella mants Inc vast OF
equitable adjudication granted by the act in question TO
tribunal II this Board be considered court
not permitted by the constitution Of the state
The Board of Audit II not an Office, and /
its members are no, officers in the constitutional and
legislative There term Of Office fixed there
lie oath OF ONCE required there 10 no provision for
filing vacancies No ONCE created the frs; incum-
bents Of which named oy the act. This being
the case the refusal OF Lewis HWoodruh 20 perform the
duties OF the makes any act Of the other four per-
sons invalid II is an indvisible trust which cannot he
executed by less Than all Eve The attempt Of William
Stewart 10 In place OF Lewis woodruff wholly
unlawful II the position Is not an ohce, but personal
trust reposed In Woodruff by the Legislature, the Gov.
cannot transfer that trust without authority OF the
constituting H. The Governor cannot make this ap