New-York tribune., 1867-08-22
THE BOARD or AUDIT

THE BOARD or AUDIT
We have heretofore noted the TACT tha'' III
tbe instance of the Citizens Assoclat0n' an
Injunction has been procured restraining the
Roard of Audit, instituted by the late Leglsla-
ture. from proceeding in the business set down
for il. This action is for the purpose of testing
the constitutionality of the act creating the
Board. and consequently to determine the
existence of the Board itself. That the reader
NAV be possessed of the main reasons for
doubling the legality of this novel institution
We present very briefly the points made by
counsel in their effort to restrain the Board
from any action until an authoritative decision
shall be given The points are these:
l. The actions are brought in the capacity OF trustee
and taxpayer TO restrain threatened waste OF the
trust funds of the City and County of Now-York and
is rg ght given by common law and by the statute OF
1864.
O. The waste of the property of the City OF New
York and its inhabitants is the necessary result of the
unconsttutionalty of the law creating the Board OF
Audit and the illegal appointment of a new mem-
Der of the Board not contemplated by the said law
3 The adverse decision OF the Beard of Audit upon
claim will be no bar 10 action for the same III the
courts of law and therefore, the practical result Is
that the city has everything to lose aud nothing TO
gain by the further action of the Board.
T. The claimants are forced before tins new
tribunal and the Corporation is compelled to follow
tho claimants there. II they submit under mistake
"a 10 their legal rights, they will not be concluded
by such submission.
. Forced submission will not be subject 10 the
rules governing arbitations; for the foundation OF
resort to aIbitmment Is consent.
G. The Civ of Ncw-York has not, according to ITS
Charter the right Of submitting TO arbitration If
tho Corporation could submit claims against 1t to
arbitIaton the whole Charter might be violated ana
its restrictive provisions nulliied.
Z. The law creating the Board OF Audit is in viola
tion Of the Constitution of this State because ITS
effect is 10 deprive the Corporation and the claim
ants of the rights secured TO them by paragraph l.
Article l. which declares that no member OF tins
State shall be deprived of any of the rights or priyl
lcges secured TO any citizen thereof except by the
law of the land the iugdmcnt OF his peers Aiso'
because il violates paragraph Of the same Article,
which declares that the trial by jury IN all cases in
which It has been hitherto used, shall remain invo-
late forever" And, also paragraph of the same
Article, which declares that no person shall be de
prived of lite liberty, property without due pro-
cess of law
s. The Act in question compes the claimants on
the one hand and the Corporation on the other, to
tOTegO their COnStltutlOla IIBhb 10 hNc th'ii 'Vh
troverses adjusted by the courts aud jury
O. Such laws compelling the Corporation of the City
of New-York 10 submit controversies TO such lcgisa-
tive commissions as this Board have been already
declared unconstitutional by the Supreme Court in
the People agt. IIaws.
TO- If the Act creating the Board of Audit creates
an Office within the meaning of the Constitution,
then as its duties are wholly local. the Act creating 10
and appointing its members violates section of
Article 10 of the Constitution, which declares that
" All county city town, and village officers must bo
elected by the electors of such county city, town. or
village or must be appointed by such authorities
thereof rs the Legislature may dircct or the Board
must be shown to be n new Office.
H. This Board is merely vested with the duties of
local officers and is an old Office with Il new name
1t therefore cannot be sustained, as shown IN the
case of the People agt Draper, and in other cases.
r. The objections TO this tribunal are still
greater if it be considered judicial Office for tho
Constitution declares that "all judicial officers OF
cities and villages, and all judicial officers that may
be created therein by law, shall be elected at such
times and in such manner the Legislature may
direct"
49, The Board of Audit is not an office, and its
members are not officers in tho constitutional
legislative sense There is no term of Office fixed;
there is no oath of Office required; there is no pro-
vision for filling vacancies The Act merely APP
pointed five certain persons TO be Board of Audit;
il did not create Board of Audit, and appoint GER
tain persons TO be the first members thereof. This
being so, the refusal of Judge Woodruff one Of the
persons in whom the trust is reposed, TO perform it,
makes any act of the other four persons appointed
invalid. If this position as a member of the Board
of Audit is not an Office but personal trust reposed
in Woodruff by the Legislature, the Governor cannot
transfer the trust TO any other person without tho
authority of the Act creating it.
H. If the position of Woodruff as a member of the
Board is Office then there vacancy for Stew
art TO fill, for Wooduis resignation must be sent IN
to the Legislature, which has not been done,
ID. Injunction is the proper remedy in this action,
because it will stay the commission of the evils an
ticipated without unnecessary trouble and expense
These points cover the whole ground, ana
seem to be well taken. 1t is to be presumed
that the so-called Board will cheerfuly coop
crate in obtaining full argument, and an
early decision. The interests committed to the
| hands of its members-shOuld the Act be sus-
tained-will be vital in character and enormous
in extent. OF late years.. the people OF New
| York City have been accustomed to look upon
| millions insignificant sums but when the
annual tax-rols are footing up from Sl5,O0OOOo
to S2O0O0,0O0, it is about time to look after
hundreds of thousands, and such trifnG items.
Should this Board he declared lawfully estab-
| llshed, there will be such raking up OF 0bso-
| lete, forgotten and long ago abandoned claims,