The New York herald., 1872-10-19

under the provisions Of section I, OF the
act OF lSo0,n and to raise the additional
proes BY o me ssn , n 9s
troller to pay such claims only as had been found
given to the Comptroller In the act OF 1870 to
"audit claims," as In the act OF 1860, but mere
direction to pay the claims which have been found
monsrous abuse Of the powers Of judicial construc.
ion TO hold that the legislature In the act Of 1870
limited power to raise money, to the extent OF
millions Il he pleased, under the Language EN-.
S asS e 70 suS MSen TnSS s
not only 70 limit his power as to the
to audit them Under the provisions or these two
sections OF statutes the fraud alleged was commit
being IN part rsatesa and their construction % is
doubtless to be regarded as an element In the case
1t was held by Lord Hardwicke, In Wallis Va. Hod-
two Statutes for the better settling OF intestate
Estates In which the latter act had some additional
s u e. taI .ae es @ t must oG
ris' Amer. Ed, 1oo 1ol; Cranch, !. Without re-
ferring to rules OF construction 1t Is very clear to
that repeats the limitation OF the power expressed
IN the act o. 1852 but 1t remains part OF the law.
ad,esd think the law q 1870 preserves that mi
have been found due under the provisions OF
the seventh section OF the act Of 1869 and to the
act OF 1870 that an amount exceeding $4,000 was
necessary, but only, by fair construction, that the
whole sum Of 500, 600 had not then been raised and
that the whole amount had not then been paid. II
fs not legal presumption to be held ana taken OF
act OF the Legislature, that they intended what
sess sufficient erudition to express IN appropriate
language power they intended to confer. Stat
utes by authority of which citizens may be deprived
struction; and this is so, whether II be in the
else OF public or private authority. Powell vs.
acts the necessity of the act OF 1870 apparent
There - however, no provision In the statute
ss95aorzing nut or the raising Of an amount exceeding
act Of the Legislature to authorize 1t. The
Comptroller was a. statute officer and public
and was responsible for an abuse of power or for
the exercise OF power not conferred. Dwarris
Impose q duty upon the public will be critically
construed with reference to the particular language
ySy are the Mnem there m Is any
OF the public, because 1t IS general rule that
where the public are TO be charged with burden
burden must be explicitly and distinctly shown"
American Ed, 255. The only word in the act OF
1870 upon which and under which this false and
unsound construction is claimed is the word
"ADDITIONAL.o
There is no difficulty in giving full force and effect
application, to the balance OF s722 90, which re-
manned unpaid, or not raised, under the act OF
1860. But II the Comptroller construed the statute
as 1t Is now claimed for him. or even If he actually
possessed the power, as now claimed. and acted
with perfect integrity, am unable to see that his
legged acts OF obtaining from him public moneys by
FRAUD AND FALsEHOoD,
ana by the M USE, use OF false and fictitious claims
Moneys 80 fraudulently obtained are subject to be
not acquired BY fraud. Honesty and good faith
ciples and bases of oil dealing between man and
man before Courts OF justice; and no cunning or
skill Of the perpetrator OF fraud can shield him in
courts where q pure administration OF the law is
controlling principle OF their action.
disposition by public officer OF funds In his
authorized or unauthorized power, is misappro-
prlation and breach OF trust, and he Ia and ought
to be held liable to somebody in an action to re-
cover them, and any one who aids and assists him
IN the commission Of this breach OF duty, or who
by persuasion, fraud falsehood or other corrupt
means, obtains the possession OF such funds, is
equally wrong-doer, and is responsible to answer
for them In an action. The defendant does not
inte tose the objection that Connolly. the Comp
troer who raised the money is not sued with
him, nor would 1t be material II he had Each indi-
vidual who by fraud and corrupt means advises, or
assists, or participates in, or secures part or the
whole fruits OF fraudulent scheme, is liable indi-
vldualy. think, upon the admitted facts OF the
case that right OF action does exist In favor OF
the plaintiff and that such facts sufficiently appear
on the face OF the complaint Ii we are right In the
views above expressed, then the third cause Of de-
murrer, "tha the plaintiff has not legal capacity to
sue," win al for the reasons given In the cases OF
the People VS.. Tweed and Connolly; that such an
action is properly brought in the name Of the peo-
Pile. That under the first subdivision OF this third
cause OF demurrer the interest OF the people con-
sists in their legal right well rs duty at common
law to bring the action, and that no other interest
is legally necessary. That under the second sub
division OF this cause OF demurrer there is no legal
acknowledgment OF the validity Of the defendants
claims; and that under the third subdivision the
said moneys were not paid and received by the
defendant by virtue OF any power and authority
conferred by the plaintiffs
The result is, the order OF the Special Term should
be aflirMed.