New-York tribune., 1873-01-31

for convenience sake here, ana tnas peihAP'
is designation which may properly sdopt-a Board
of Audit The three officers named-the Mayor cop-
troller and the President OF the Board OF Supervisor
are directed to audit certain claims against tue coun
described or limited rather by tne ct .se H. controer
II directed TO make payment 10 thr parry vi
parties entitled to received the sae, Iabtles
against the County OF NewYork incurred previous 70
the passage OF tins act were then IN ue
thereon required 10 bo ascertsined BY some &
body There had been previous to tho pS'as oi @
these liabilities Board of Audit has peen pee,
Of bom cS@POssg Sqs sy officers sad some not It
had been created, and IL seems IL had not asceIIhu
these particular liabilities so that they had rpehea . @
payment The Board Of Supervisors. 1t would seem naa
not taken action upon them so the Legislature Tor the
purpose OF ascertanng those accounts and the
nation of what anon ought TO De PAID upon tno & pS
the county, created tins Commission That Board was
directed Ia very brief language TO audit these aDIs res
The language OF the act IL. All liabilities against .nS
County NewYork incurred previous TO the passage OF
this act shall be audited
THE OBJECT OF THE BOARD OF AUDIT
or course question arises to what is meant by the
act and by the language used by the Legislature. That
answered by answering the question. what Is meant
by the words sha be auditedi' It is pure question
Of law for the Court to determine and is therefore the
dty OF Jurors 10 take the construction which the Court
puts upon the language as the law or the case II .he
Court makes In that construction, ~ Is the
subject OF direction by appellate tribunal have no
manner OF doubt that what required by ns secuon
and
mosa several things necessary ascertain that the
liabilities named IN the act were Justly ana properp
payable IL required at the hands of thls boalu
the liabilities which should be presented 10 thel' huu
pass upon them In such form as should iqrhan 20 % se
Judgment satisfactory evidence that the laDles were
lust, and should be paid. The word AUDIT embraces
an OF that when used in the form In which IN USED IN
this statute and need not resort TO exeons nor 10
any other statute for the purpose OF ascerahnB ma
was the intention OF the Legislature IN Gec,g ere 70 , b
passed upon by the operation of such evidence upon e
minds Of tine persons clothed with the power as Tou
produce a satisfactory conviction with them as Dody
that the accounts or liabilities were just ana proper
Now In the action Of pubic officers clothed Win duties
OF tls kind have already SAID something more Is re
quired than the clerical act OF signing name OF
subscribing certificate These persons Therefore, t
named this section. were oonnu nrst, 10 olsaize 20
themselves in form into Board or body SO as 10
act untcdly and jointly upon those ma,ters IL %ou,d
be impossible satisfy this statute by the separate anu
distinct action of each one OF these parties ior Ine
law demanded the auditing by them hinn gUiG'y "
You do need any Illustration 10 DIlhG "
your minds what l intend to say on TINS supJect,
FOR you readily see that IN order 70 SATISFY statute
which calls for the action OF three minds III reacnnR
conclusion given subject or passing upon question
upon such evidence as shall DO before InSm1 say
illustration to show you that sucn ~ statuo statue
be satisfied by the separate anu % pen @
under this section therefore it was necessary
i'm order conform to IL that the three persons hahtd
should meet and pass the evidence presented io
their Joint action and determine before tho issue OF
these certificates whether these accounts were Just and
correct public officer, clothed with such authority
cannot delegate it, nor can a body OF public officers
because duties constitute trust for the penent Oh
II the Legislature had intended to confer powers o de
egation that intention would be expressed
A KYowLEDGE OF DUTIES OBLIGATORY.
II ia charged in the indctment-FTSt: That the de
fendant In connection with the other parties aud OH
GERS named in this suit neglected to do the duties thus
epioined 1t ia of no importance whether or not evil
deuce has been given here satisfy You that there
wlful neglect the part OF the Mayor or Controller
II enough for this II the people have satisfied
you that defendant Tweed was, in the meaning oil
the law guilty of neglect Willfu! neglect Is an ihten
tional act OF omission An officer Is bound TO
know the duties devolvinG upon him, II ne
accepts and enters upon the duties SO OF ,lt ms
and that rule applies with greater force upon public
officers who enter upon the duties Of the Office oy ITS ac
ceptance 80 that where an officer knowing MS duty as
he presumed TO do, Intentionally falls 10 perform ~
intending to omit ts performance he Is guilty under the
punishes him. There Is no necessity OF proving
malice within the ordinary acfeR5aon o, odH
term, an intending 10 lnlure sonepopy
There no necessity OF going any further than simply
TO omit that intention. to omit tue duties thtt us a"
deyOves upon officer that constitutes the onense
Now the defendant Is charged with having wuly neg
lected to perform his duty and the question ior YOU
determine Is whether the evidence satisfies you thas nc
did wiuly neglect 1t within the RUE wmeh cbaraSe nave
N N each OF these the Issuing of Ger
t1cate corruptly upon fai1e claim Oh Ina,
that il " as false clam. Now you will readily conceive
that there is Distinction matter of course between
glect TO perform duty by officer In order to CON
sIue the oense under the fourth count necessary
false one upon which the certificate granted that
the certificate OF that liability. the same being false,
was granted, and that this act was knowingly done by
the accused party who is now on tTiai. ri
You Will perceive it contains three elements First
that the particular claim audited was fase second tha
the certificate was granted on that claim, and
third, that it was known 20 the parties grant
ing the certificate to he false clalu. sIali,
by and by call your special attention 10 the evidence
tending show, it produced here, that tho de-
desire TO call your attention TO the act far have
evidence that IL performed by the Board OF AUDIT
IL appears by the resolution passed 10y that BODY whch
that the 5th day of May, E7G br Hal. the Mayor Mr.
Tweed President OF the Board OF and MI
CopnOly the Controller under and pursuant To the
requirements of the fourth section OF the act OF lsO 10
at the Controllers office, Is stated IN their resolution
The resolution states that they organized themselves
into a commission. AS they called themselves by the
resolution That was sufficient expression Of the object
OF their meetings sufficient declaration OF their form,
by the act They passed the resolution which has
been frequently read before You IIhe Court tneh
been commented upon and stage OF this trial "
supposed by myself that Judge Potter had declared
the passage Of this resoutonfor IL was so stated by
counseto be in itself crime. an ohese under the law
could view IT, and so expressed myself at the
construction OF what that learned Judge SAID IN the
course OF his opinion The passage of this resolution
Of intention 70 future action. IL organized
the Board and II made preparation, 50 to speak, Tor its
own future action.
INVENTION WITHOUT ACTION not CRIMINAL
Now in one sense the declaration OF what the Board in
tended 10 do may TO be declaration OF an
intention to do something that the law as eonstrue H.
docs not permit But in that sense. In the true
sense OF the resolution its passage would not he crul-
ina oense unless It was followed by acts under and In
pursaance oft The law does not adJudge mere inten-
lion 10 be a crime in order TO constitute erimna! OF
fense an intention must always ne Ioiowed Dy ACTON
90 that n public officer resolve that he VIII not do
certain official duty which is performed on future day
however after he resolve declare that intent.
| boweyer emphatically he may make his intention
known yet II. when the time comes for the perform
ance Of his duty he perform H. crime has been
| committed. But IL. In pursuance OF that reso-
luton declaration, when the proper ptSpps tune hme
| he ne elects and refuses to perform IL, then
The resolution being evidence OF the intention TO DO s