The New York herald., 1871-10-30
The State Can Institute Criminal
Proceedings Only.
Nr. O'Gorman's Suits Will Not Be I'm
pediments to the Attorney General.

Mr.. O'Gorman's Suits Will Not Be I'm
pediments to the Attorney General.
The Law Governing the Case
Plainly Put.
In the complaint made out and filed at Albany by
the Attorney General, MIR. Champlain, which ap-
peared In the HERALD OF Saturday. was charged
that Mr.. German. Corporation Counsel. had
brought six actions in the Of the city against
Messrs. Tweed Connolly and Others in bad fath
and for the real purpose Of shielding them from
prosecution. In answer 20 this charge Mr.. OGor
man embodies the following letter to Mr.. Cham.
plain, enclosing correspondence between himself
and Mr.. George T. Curtis relative to the city suits
against the above named gentlemen. The corre-
spondence is as follows:-
Mr.. o'GoRMAN DEFENDS HIS OFFICIAL INTEGRITY.
CITY OF NEW YORK, LAW DEPARTMENT,
OFFICE OF COUNSEL TO THE CO. CoRPoRATIoN, po ALTON
70 Hon. M. B. CHAMPLAIN, Attorney General Of the
State OF New York;
SIR-In the Times newspaper Of this day find, in
what purports to be correct copy OF complaint,
ngned by you as Attorney General OF the State OF
New York, in suit recently commenced against
william NJ Tweed and others, an allegation that six
actions instituted by me as Counsel to the Corpora
tiOn were instituted against said Tweed ana Others
"fraudulently and in bad faith, and will not and
cannot be prosecuted fairly, benefcally or usefuny
TO the people or 10 any public interest inasmuch as
the Mayor is governed by evil designs and intent
and has complete control over the said Counsel to
the Corporation In respect OF SAID SUITS" This state
ment conveys
AN IAPUTATION ON THE INTEGRITY OF THIS DEPART
MENr,
which is wholly unjust and unfounded in evidence
whereof beg to call your attention to the following
correspondence
Mr.. o'GoRMAN PRoPoUNDs QUESTIONS.
CITY OF NEW YORK, LAW DEpARrMENT,
OFFICE OF COUNSEL TO THE GCoRroR44gT1SoS, Coz % 4gIS,
TO GEORGE TfcKNoR CURTIS, ESQ.,
MY DEAR SIR-Before proceeding further in the
actions brought on behalf OF the CITY and county or
New York against Mr. Connolly and others, In
which you are associated as counsel with me, beg
leave to ask you TO examine the following ques-
tions, and give me your opinion thereon:-
]. Wi an action for damages lie in the name Of
any officer Of the city county, who by neglect Of
his proper duty or by connivance with persons as
sertlng exorDitant or fictitious claims against the
city or county, has been instrumental IN the uniaw
full abstraction OF public money belonging to the
.. II in your opinion such actions are among the
apprOprate remedies to be applied to the lately al
legged uniawfui and fraudulent distractions Of the
public funds OF the city and county, would 1t be proper
for me- Counsel TO the Corporation, after having
received from the Mayor SPECIFIC directions TO COM
mence such actl0ns against certain officers OF The
CITY, rely upon remedies that NAV be instituted In
the name OF the State or In the name OF the Ator-
ueg General; or Is IL or not, on the contrary, my
duty to prosecute the actions which l have com
menced lD behalf OF the city or county to recover
damages sustained by the city or county by unlaw-
ful and fraudulent distractions OF their public
funds9 Yours, truly, RICHARD O'GORMAN,
Counsel 10 the Corporation.
Mr.. CURTIS DEFINES LAW-THE CITY CAN RE-
NEW YORK, oct. "a, 1871.
Non. RICHARD UGoRMAN, Counsel to the Corpo-
MY DEAR sIR-I have considered the questions
submitted TO me by your letter OF the ga instant,
you propose to serve in the actions already nsti-
,uted seyeMlly % by by summons g IN the M name o and
OF New YORK." against Richard b. Connolly and
William M. Tweed.
actions brought against an officer OF the city or
county to recover in the name and behalf OF the
county by reason OF fraudulent abstraction OF Its
funds occurring through the negligence or fraud of
such officer in the discharge Of his Official duties do
not understand that am to consider the question
Of criminal liability, inasmuch as 1t is not your
province to institute criminal proceedings.
All public official duty suppOses certain measure
% OF Official a.. diligence and ndeilsy. The laws which
do what he ls commanded and what he has con-
tractcd TO do with proper diligence and fidelity.
BY acceptance OF the Office and It's emouments the
officer engages. apart from any oatn of Office the
tenure OF any statutory official bond, TO discharge his
Official duties honestly and efficiently as they are
defined by law. II he be an accounting officer,
or have charge Of the payment Of claims
10 pursue whatever method the laws prescribe for
auditing sucn claims and the payment OF such
which is necessary to prevent the payment T"t Of
fraudulent or ex0rbitant claims. IT. by reason Of
Ai frna htcn
is not justly due to the party receiving IT, cause OF
action accrues 70 the government, or body polite,
gence or connlvance; and that cause OF action is q
calm to recover from the onicer damages sus-
tained by reason oil his unlathulnesS or his lraudu-
lent breach Of trust
Nor, IN my opinion, is such course Of action
merged In The liability under statutory official
bond or waived by the acceptance of such q bond.
lG springs and is regulated by the great gene
cipal suffers damage by reason OF the misconduct
OF ms agent, OF cestM !'te trust incurs loss by
trustee Is personally responsible to the amount
OF the loss or injury which he caused.
inns prlnclple o. u tne common law y as appicabe
ment body potic, whose agents they are, as 1t IL
10 all other agents; and may add that II has been
applied IN very pointed manner to the case OF q
deiaulting public agent VINO was not regularly in
office, but to whose hands public moneys were en-
trusted for disbursement IN the discharge OF the
duties Of the Office. ana who failed to account for
them.
In the case OF the United states VS.. Maurice,
Brock Q. O., r.. p. 90, Chief Justice Marshall mad
occasion TO examine the questions-hrst, whether
IAN agent OF iortiicatons' was an Office OF The
United States that had been created by law; and,
secondly, II the once had not been created by law,
whether person who had been appointed to such
an once, who had received moneys OF the govern
ment for disbursement therein and who had not
9ssuursel or accounted for those moneys was liable
~, Ietrn or the moneys on bond given for the
1a'iu nn,d discharge OF the duties OF the supposed
H,0c, on the ground tnat the bond, although not
ScPao'e oi Delng enforced a statutory bond, was
y ~ contract li for the faithful discharge OF an
agcncy ags y,a,n Wnicn the defendant had undertaken.
Tue Chief Jusnce held that no sucn office had
Deen ahsh0rlzed by law; that the duties involved IN
the onlcs were nevertheless services for which thc
Unite United Mates could lawfully contract that the
bond gveL, altn0ugn not q statutOrv bond lor
securing the faithful discharge OF the autiea Of an
office created py any law, was yet evidence Of n
contract between the United States ana the de.