The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-06-17

I
the relief actually granted. II any, Ia adj
dltion aud as incident TO that has de. de,
Attorney General to intervene ana the jurisdic-
ton OF tue Court was at first referred to, the
statute OF Elizabeth concerning charitable uses
and the trusts enforced charities later pub
lie use, although not strictly charitable, was held
within the equity OF the statute; but distinction
was made as 10 the source from which the funds
proceeded. and moneys, the ayalls OF rates ana
taxes levied by act OF Parliament, were held not
within the statute; but TINS distinction was soon
\ ignored and respect was had to the PURPOSE for
their source and origin, in determining whether
they were held for q public and charitable use
within the Jurisdiction OF the Court Of Cnancery.
/ statute OF Elizabeth was not the source
e ,n the JURISDICTION OF the Court Of
pab use we're always Subject 70 the aeson
of account, and that the Court OF Chancery had
law in compelling an accounting. and that By
81 the techncalties OF the action Of account
the Better remeay Of the tSo The Iuncps Cor
poration act OF william, 4 CHI, 70, has been re-
lerred to; but do not understand that 1t Affects
the question to the general Jurisdiction OF the
Court OF Chancery over public trusts At the in
classes OF properly held by boroughs aud other
municipal corporations trust property, anu tine
had been held as the property Of the corporations
unaffected 6y any trust and as private property
out IN no other respect aaeG,ed the jurisdiction
held applicable to commissioners and other public
onicers clothed by Parliament with power over
/
ton OF the court was invoked against faithless
trustees and TO compel proper execution Of the
charged with their administration. breach OF
duty or violation OF trust by the trustees,
the foundation Of every actlon by the Attorney
General or he Crown or The people as sovereign,
wen as TO the right OF conrt OF equity to enter
tain Jurisdiction Of suit by either touching
municipal corporations for public use. II
the property or corporation be illegally
or others, the remedy is by action at the suit OF
the Corporation and not OF the Attorney General.
same VS. HICKS s. and s. S. same vs.. East asa.
lake, II Hare, 2o5; Same vs. Mayor Of Dublin,
s and a s. 2 same vs. vs. wson CT aua Poo
Same VS.. Corporation OF Poole, Kesne, 1907 5. c.,
$40 nom Attorney General sl, vs.: Aspinwall,
c., Az and CT. and Fin. 409.) Decisions are cited
from the reports OF this country and OF this State
some extent the doctrine OF the English courts,
and applying 1t to ike cases, as they have arisen
here. But in none has the doctrine been ex-
tended beyond the principles OF the English cases,
and aside rom the jurisdiction OF courts of equity
and over the trustees either Corporate Or
oIlcia the courts have only interfered AT the in
hIbt some ofiica wrong py municipal corpora
tions OF public officers and the exercise OF usurped
by the Complaint within the doctrine contended
for. the cases relied upon or within the reasons
which lie at the foundation OF the doctrine, and
IL Is not necessary therefore, to consider whether
the doctrine to It's full extent, or within what
limits, If at all, is part OF the common law OF this
State or whether 1t has been superseded or m0dl-
fed by statute. Doubtless the prerogatlves OF the
Crown, except affected by constitutional liml-
tations, exist in the people as sovereign, but to
what extent the exercise OF TINS prerogative is CON-
mitted to the public officials either by the Leglsa
grave consideration ana not to be lightly decided,
and should only be determined when necessary to
a Judgment and decision. Whenever the Legsla-
\ ture by statutory enactment has conferred upon
STATE OFFICERS OR PUBLIC BODIES
the exercise OF any prero9arve right no question
can arise, Tor in those matters, except as re-
oy tnere Msre no. other s or
great wrong and puolic Justice and individual
rights were llkely to snfer ior want o. prosecu-
dressing the wrong. the courts would struggle
hard 10 find authority for the Attorney General 10
intervene IN the name OF the people. But, IN the
else of high prerogative powers ought
n 10 be- cammttea to the discretion Of
any individual or body OF men. Such a commttal .
oil power should be OF the Legislature, who I
can hedge 1t about with all necessary safeguards.
Inis action is not to establish or enforce trust.
them trustee, charged with any duty or intrusted
with the possession or funds or property TO be ad-
sought to be charged tort ieasors, Tor c0nsum-
mated and completed tortiOus act.
THE PRESENT RESPONDENT
is not alleged to occupied any official position
or TO nave owed any allegiance to the state or any
OF Its cy OF @ sysChs except snaH as
occupied any fduciary relation TO tue city, county
or state OF New York, or 70 the funds Of either.
Unless the people OF the State, or the state as a
BODY polite or corporate owned and were entitled
to the money wronguliy distracted,
THE DEFENDANT CANNvT BE MADE TRUSTEE FOR
STATE
by reason Of his tortIods act-that is be can only
be charged as an involuntary trustee OF the true
owner OF the fund. Only one OF the other delend-
ants had any Official relation to the transaction de-
tailed and such relation was not that OF trustee in
any sense OF any funds or property or OF the
credit of the PUBLIC He, with others, was charged
with certain specific duties, which did not include
the possession care or disposal OF the puDiic funds
or credit. These duties were concluded long be-
fore the commencement OF this action, and the
complaint against him, SO far as it touches his off,
cla action, Is for MANIFESTATION IN the administra-
ton OF his ouice or agency, by means Of
lost TO the true owner and appropriated
by himself and Others. Whatever other
remedies the people may have to redress or punish
this wrong, no precedent has been referred TO lot
the main tenance OF civil action by the people 10
recover either the money lost or Tor compensatory
damages without proof OF right III the State
political and corporate entity 10 the money as
owner, and which would give 1t place in the
treasury of the state when recovered, or Of some
pecunary damages sustained by the State. the
its treasury. The people by the compla Mt claim
as owners and 90 not seek to reclaim the money
and compel ITS Appropriation to any particular use
or purpose. The clam OF counsel in their printed
brief and upon argument was that 1t must be as
sumed that upon tue recovery of the money by the
state aud its reaching the State treasury the
Legislature would make saeh disposition OF II as
should ne equitable and Just, not Claiming that
lished and enforced in equity.
Fl SUCH sHADOwY AND UNSUBsTASTIAL EQUITY,
depending upon the will and future action OF the
Legislature Ior its recognition and establishment,
II not the equivalent OF or substitute Tor trust OF
which the courts can take cognlZance. In all the
cases OF pubic or charitable established at the
suit OF the Attorney General or the state, the par
! tlcular use has been averred, and without such
4 averments the bill Information would have
shown no equity and the Court would have been
without jurisdiction. Attorney General VS..
4 Huber, Same Vs. Eastlake, same vs. Brown,
supra, are illustrations OF the principles
controlling the jurisdiction OF courts OF
! equity over individuals and public bodies acting
4 officially in respect TO property interests oil the
public. In all the cases the parties proceeded
against and whose action sought to be con-
/ troed or restrained had the acting admlnistra-
ton OF property the power TO raise and control
/ funds, dedicated or granted for pubic use and
! their offices and duties were continuing and re-