The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1873-01-24
an actual and threatened intrusion and in,erier-

|
teral injury TO him personally; nor viii u be neces-
sary for the Court to determine or 10 consider
elther upon TINS motion or AZ the maj nearing VI
| Is not the Deputy Chamberlain, except possibly
In so far as such fact may be useful as iniertn,m
| evidence. Indeed, the allegation IN the conpiA.'
touching the appointment of Walter H. fainsr W,
pears TO be merely the assertion OF collntefl act
the pIaintilf to the relief he seeks AMI u might
therefore, be wholly stricken from .he pih AZ fui-
plussage or immateral matter without injury 20 is
| claim The right OF the plaintiff 20 an Injunction
| il net to any extent founded upon mos an.es
lions The question wnetnr ar 'no NOT ~ Of cSurs
| a very important one IN the controversy AZ IL con-
stitutes the sole grouRa sn de aeaaa
and not the plantin, who has raised that question
by ms pieading and lor that reason II cannot
the TACT In mis- that the action Is brought or
maintained by the plaintiff for the purpose OF
tablshing or determining the title 10 an oice. So
too, as TO the point made by the defendant IN his
answer and by his counsel at bar, that Walter r.
Palmer, tle mayor &c, OF the city, and the people
IL Is the personal action OF the plaintiff as nd
vdual, and It can be maintained upon no other
theory tnan that he is entitled upon the facts set
forth IN the complaint, to relief by way OF inunc-
ton, as
AMArrER OF PRIVATE AND PERSONAL RIGHT
Neither Of those persons, therefore, can be
deemed necessary party to the action for any
purpose. AS the allegations OF the complaint, TO
the effect that $50, 900 OF public moneys an
nuay pass through the plainun's hands that
several millions are constantly to be pre-
PENDANT which are complained Of are calculated To
produce confusion in the treasures hazard the
safe keeping Of the moneys and increase the re-
sponsibility of the plaintiff, are wholly uncontro
verified on the part OF the defendant, these aver
ments must be taken to be true. An examination
| OF the statutes read at the hearing also shows
that the City Chamberlain IL, in fact, treasurer OF
| the Corporation rs the name imports, and as such
| Chamberlain is er oUcfo the treasurer OF the
county and the custodian OF the moneys derived
| from taxation IN the county OF New York and be-
longing to the State, as well as the Gus
| In
estates, trusts litigants, &C., rs are directed
by the Courts to be deposited with
| by the Chamberlain or upon his direction IN GER
tain banks designated by him by written notice to
| the Comptroller, and are Withdrawn thererom by
him for the purpose OF making snch payments as
| he Is from time to time duly and legally required
to make that 1t is his duty not only to look care
fully to the safety of those moneys but to sec that
no money Is paid out In excess OF the proper APP
preparation therefor, even though he may be re-
| CURED to do so by the warrant or requisiion OF
| the Comptroller countersgned by the Mayor; that
books containing accounts OF all receipts pay
ments and transfers by him, with the vouchers
therefor. are kept in his office; and that by law
Deputy Chamberlain may be appointed who shall
have, and IN the Chanberlain's absence may exer-
cse all the powers conferred upon the Chamber
lain. la view OF all this 1t Is easy to see that If
the plaintiff shall either wilmlly or negligently
| drawn thererom by any one except himself, or by
a properly appointed and duly qualified Deputy
| PERSONALLY LIABLE FOR ANY LOSS
! the city, county, state or other party for whom
| he holds moneys may sustain thereby; and it fol-
lows that the plaintiff has such personal and pc
cuniary interest in the subject matter OF the action
and in its results as entities HIM to prosecute and
maintain the same. 1t is equally clear TOO that
less the defendant has established the fact upon
the hearing here, that he is in fact and in law the
Deputy Chamberlain Of the city, the plaintiff is
entitled to the Injunction he asks for. That ques
tion therefore, must now be considered In
April, 1866 an act was passed by the Legislature
which authorized the City Chamberlain to APP
point deputy chamberlain, fix his salary and
dismiss him at pleasure Inc i first paragraph Of
"the heads OF all departments shall
have power to appoint and remove all chiefs OF
bureaus except the Chamberlain, as also all chief
officers, employees and subordinates in their re-
spective departments" The Comptroller was thus
the head of the Finance Department, in which there
was, and for many years had been, "a bureau for
the reception OF all moneys paid into the treasury
of the city, and for the payment of money war
by the Mayors
THE CHIEF OFFICER
! Of which was the Chamberlain That statute does
not in terms repeal the act OF 1885, although it does
| directly and specifically repeal number OF other
acts, but II contains this general repeating
clause :-"All acts inconsistent with the pro-
| visions of this act are also hereby re-
peaIed." There can be no doubt that the act OF
is66, which gives to the chamberlain the power of
clerks is wholly inconsistent with the first para
graph OF the 32d section Of the statute OF 1870 above
cited If that paragraph intended by the Legis-
lature 10 confer the power Disappointing and remov
ing the same officers Tor the comptroller. The
language of the paragraph in question, when read
by ITSELF and not In connection with the other part
OF the section and regardless Of the PROBABLE
| INTENTION OF THE LEGISLATURE
is sufficient to give to the Comptroller the power
OF appointing and removing the clerks and officers
in the ChamDerlain's Bureau, including the Deputy
| Chamberlain. But that cannot be held to have
! been in fact conferred upon the Comptroller.
Indeed by an examination OF the entire act OF
| 1870, in connection with former enactments
and the surrounding circumstances. as shown 10y
the evidence before the court, 1t clearly appears
| that the Legislature did not intend to grant such
|
the local government and management OF counties,
towns cities and villages, from the earliest period
| in its history down to the enactment of the So
called charter Of this city in 1870 shows that 1t
| always been fundamental principle in the policy
OF the state government that the various treasurers
| or cuStodians OF the public moneys should be
| placed beyond the control and power Of those OFF,
GERS who were charged with the duty OF auditing
claims ana directing payment thereof in 80 far at
| least as concerned the
| CUSTODY AND sArEXEEpING
of such funds. Indeed, IN the limited time which
my official engagements have permitted me TO
devote to the examination OF the numerous
statutes upon the subject have been unable TO
find single instance during all that time In which
| any person or persons charged with the duty of
auditing claims against counties, towns or munich
| palities, have been empowered by law to appoint
the treasurer thereof except for short periods in
cases OF vacancy occurring by DEATH resignation
&c. In view Of that long pursued and well estab
lshed OF legislation 1t Is mere reasonable to
believe that the allure to insert an exception of
the Deputy Chamberlain in the first paragraph of
the thirty second section of the charter was the
the result of some accident or mere clerical omis-
sion than that it was so designed and intended to
be by the Legislature The fact too, that while the
power OF appointing ana removing the other heads
OF bureaus in the Financial Department., except the
! Chamberlain was given to the Comptroller the
latter oicer was especially excepted from that pro-
vision, as he always had been, stu further strength
! ems the presumption that the Legislature did not
design 10 confer upon the Comptroller the power Of
| appointing and removing the Deputy Chamberlain
For, as the Deputy was vested by law with all the
powers OF the Chamberlain himself and was author
zed to exercise the same TO the fullest extent in the
absence OF his principal, there was certainly as
strong and the same reason TOR placing the power
OF appointing ana removing the custodian OF the
public moneys
BEYOND THE REACH OF THE COMPTROLLER
| In the one case in the other The principle OF
thus separating treasurers from the account ting
| officers was probably adopted and has long been
adhered TO IN order to guard against COLLISION be-.
tween these two classes of officers, while clearly
the power Of appointing and removing the Deputy
Chamberlain might enable dishonest Comptroller,
az some future time, to
rIIE n pI Lcl- n, IInAr