The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-06-17
NEW YORK HERALD WEDNESDAY JUNE IT, 1s7-TR1pLE SHEET

as luIautb, lulOCS ana the ike; Out corporation
| with iun power to acquire and hold property,
create debts, levy taxes ana sue and be sued, with
competent board Of governors, Is not within this
this nursing quality OF the State government
Neither can I discern any Just foundation for the
| claim OF the State to these mnds-that Its action
is necessary to the protection of the taxpayers OF
the municipality. The cestuts que trust OF the cor
within the territorial limits o. the Corporation,
including taxpayers aud non-taxpayers; therefore
the corporators and their interests, as well
the present as nture inhabitants and c0rpo-
the governing body for the time being as il
| money borrowed or raised by taxation for county
| purposes, and not wanted or used for the par
able, by the action OF the Board of Supervisors to
| the payment OF any county charge; but Il this be
not so, the want OF power TO appropriate It to
public use, Without legis alive authority, does not
work forfeiture OF the money to the State. 1t is
not intended to deny the existence OF penary
power in the Legislature to direct the appropria-
ton OF any money in the county treasury to any
use or purpose for the benefit OF the inhabitants OF
the municipality Darlington vs.. The Mayor,
the right OF the State, for II the moneys were
onrs n 0s State ea wna re-
or payment to any particular use. But whatever
the Legislature might do in the way OF reyoking
erty OF county, no power in that direction has
been conferred upon the Attorney General.
THE POSITION AND RIGHTS OF TAXPAYERS
Much was said in the course OF the argument OF
the position ana rights OF the taxpayers and the
State could BY Tecer nd mem he
money In controversy. But the taxpayers as dis
tingushed rom other inhabitants OF the county
or interest in che money. The cestut que trust OF
municipal corporation are all the inhabitants
within the territorial limits, whether taxable or
not; and although the taxpayer may be more i'm
mediatey affected peculiarly by maladminis-
traton OF the corporate ana trust funds he mas no
rights except SUCH as are common to all the tnhao
itants. One taxpayer for himself or himself and
all others or all the taxpayers combined, cannot
"a n
incorporation or misuse OF the corporate
property. lDoollttle vs.. supervisors Of Broome
County, Is New Y0lk, 155; Roosevelt vs.. Draper, %
Id, 316) When the State in the exercise OF the
taxing power or any OF the political corporations
has collected taxes pursuant to law the amount
levied has ceased to be the property OF the tax
payers and becomes corporate funds and money In
II the money is borrowed In anticipation Of taxa
ton ana TO be levied OF those who shall hereafter
become taxpayers Neither the present nor pro-
spective taxpayers have any special and peculiar
interest In the fund as distinguished from that Of
other citizens and subjects Of the government n
rowing Of money to be repaid by taxation IN the
future is but one form OF exercising the taxing
power, and the character OF the fund Is the same
whether 1t has been collected OF the taxpayer or
borrowed upon the credit OF the government,
For all governmental and public purposes, includ-
ing that OF levying taxes and borrowing money
petpa and no respect IS had to the Chang
Ing character OF the constituency, and
those liable to contribute to the support
Its debts. H. by mistake of any kind. taxes
In excess OF the amount required for present pur-
cannot be recovered back unless there has been
some irregularity or defect OF jurisdiction, which
vltiateS the assessment ana levy.
TRUST FUNDS FOR PUBLIC USE.
Neither IL the money waif belonging to the
State or any one who may chance to obtain pos
ury, and Is trust fund Tor public use by the cor
porate authority. The result is the same If the
wants, and 1t is enough that binding obligation
has been incurred by the municipality to repay
the money. Whether the obligation was incurred
II the public corporation having power to
act individually and In corporate capacity
become bound by Its obligation, the debt has be-
come corporate and county charge, and the
ernlng body of the corporation under the general
laws OF the State The validity of the bonds which
covered in this action is conceded by the counsel
for the appellants and II not valid the purchasers
paid for them Ii valid, they the obligations Of
the county OF New YORK, aud the debt county
charge The State IS under TO pay
SsSna g act u gosd ss islsa toward A' snoss
money on the faith OF It's laws and policy. The
State cannot in good morals do anything to impair
or diminish the ability Of the county to pay the
bonds at maturity. The only security the debtor
has Is the credit OF the county, and the grant of
power to the county with direction III the act to
levy taxes for the payment or the debt. To this
extent the State may perhaps be regarded as con-
tracing with those who have taken the bonds,
and to have agreed that the grant OF power shall
not be revoked, but this does not create an Ob9a-
tlon to pay the bonds. 1t only brings the rrsnsac-
ton within the provision OF the constitution Of the
United States prohibiting States from passing any
bill .lmparing the obligation OF contracts" (Con-
stitution OF the United States article l. section 10y,
and makes the grant OF power rrevOcable (Hof-
man vs.. Quincy, Wallace. $780, II IS claimed that
recovery had. THAT the federal courts would sus-
tain an action upon these bonds against the
county can hardly be douo ted in view OF the past
action OF these courts ~ similar actions 1t has
been held by the courts OF this State that for
claims which by statute are made county charge,
and for the auditing OF which provision is made by
statute. counties cannot be sued BRADY vs. SUI
pervsors OF New York, 10 N. y, 260 Martin Vs.
cedng that the rule holds, as TO an absolute un-
dertaking to pay specified sum nj q given day, 1t
proves nothing. II an action will not lie upon the
feet legal remedy by the writ OF mandamus to COM
pei the levy Of the tax and the payment OF the bonds
form OF civil PROCEDURE or another is not mate
rial 1t necessarily follows that this money being
the fruits and avals Of burden Imposed pursuant
to law upon the taxable inhabitants ana property
OF the county Of New York, for county purposes,
OF right belonged to the county OF New York and
its Treasury and the county has an action against
any one who has py fraud or force become pos
sessed OF II.
FINANCIAL EFFECTS OF FRAUDS IN AUDIT.
Of the bonds had been depos ted with the County
Treasurer, the alleged frauds in the audit mad been
discovered and the warrants withheld, or payment
had been refused by the Treasurer, the state
by its Attorney General, without egis
menu ment of 0O't the moneys ' into the he STATE
treasury or recovered the money OF the County
Treasurer. Neither would IL be claimed that had
the County treasurer embezzled the funds his
suretes would not have been liaDle as Tor county
moneys received by him. Had the bonds been de-
Iivered to a purchaser without actual payment OF
the money any proceedings Tor u recovery OF the
bonds or the purchase price would necessarily
have been by the county The fact that a larger
Just claims against the county, by reason OF q
fraud in the audit, does not, In my judgment
properly or improperly, upon the credit and at
the expense OF the county and for It's use. to be
repaid by 1t. The wrongful act OF the
public agents does not give to the State
the rights and impose upon 1t the obligations
OF principal in the transaction. Had only just
claims been audited and allowed, and the precise
amount required TOR their paYment been raised.