The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-06-18
Judge Rapallo's Dissenting Opinion
on the Civil Cases.
THE COUNTY CLAIMS ILLEGAL.
Right of PREPARATION Vested
Only in the State.
The Board Of Supervisors Merely
State Agents.

sions touching to right OF the county OF New York
to enter civil suits against Messrs. Tweed, lnger
soil and others, we publish below the dissenting
opinion OF Judge Rapallo in the Court OF Appeals
From this opinion 1t win be seen that Judge
Rapallo believes the old Board OF Supervisors to
have been directly amenabe to the State which
created the Board and defined It's duties, and that
the Attorney General OF the State is the only
of1cial authorized to prosecute the contemplated
civil suits for the recovery OF moneys received aud
mtsappropriated:-
rHR OPINION
The main question IN this case is whether upon
the facts stated IN the complaint admitting them
to be true, the State Is the proper party to MAN.
tain this action. BY an act OF the Legislature
chap. $780, sec. A., 1t was enacted as folIows:-i
Gan Liabilities against the county OF New
shal be audited By the MAYOR OF the n citv ae OF
New York, the Comptroller OF said city and the
present President OF the Board OF Supervisors and
the amounts which are found to be due shall be
provided for by the issue OF revenue bonds oil the
county Of New York, payable during the year 1871,
ordinance levying the taxes for the year 1871 an
amount SUFFICIENT to pay said bonds and the inter-
Comptroller to the party parties entitled 70 re-
ceive the same upon the certificate OF the officers
uameo nere'n THE COMPLAINT
alleges in substance that the auditors appointed
by this act between May and September. iS7o, GER
titled CLAIMS purporting to be or the character de-
defendants Ingerson, Garvey and others,
dollars upon which certificates revenue ns bonds
OF the county were issued IN proper form by the
Comptroller as prescribed IN the act and money
thereof in order to pay the amounts so certified;
that this money was deposited IN hank to the
OF che city OF New York Treasurer OF the county,
and was afterwards obtained by the defendants,
Comptroller's warrants drawn upon the bank Tor
the payment OF the claims certified as aforesaid.
che passage tne ac Of
the Board OF Supervisors Of the county OF New
York, and. consequently one OF the persons by
oct as such auditor, and that, In that capacity
he, as well as the auditors named In
the act, signed certificates OF the audit and allow
ance OF the alleged claims which served as the
foundation for the issue OF the revenue bonds
That these claims were never in fact audited by
the Board appointed oy the act OF April 26, 1870
but that the certificates OF the audit thereof were
signed by the AUDITORS separately and without in
vesttgation, in pursuance OF resolution adopted
BY them on the 5th Of May, 1870 whereby the
rected to collect all bulls and liabilities against
the county incurred prior 70 April %. ls1O and it
should be the authorization OF the same bv
the Board OF Supervisors, or its appropriate
committees, on certificate OF the CLERK or the
President. The complaint then proceeds TO al
lege that the accounts so pretended to have been
audited we're false, fictitious and fraudulent and
were prepared by fraud and collusion between the
said Watson then County Auditory and the de-
PENDANTS Garvey, Ingersol and Woodward and
put in such shape as to enItle tuem, by the
terms Of the resolution OF the Board of Auditors
dated May g. 1870, and before mentioned, to be
certified under the act OF April 2s 1870 without iur
ther Investigations that after they had been so Ger
tined Watson obtained the Comptroer's warrants
for their payment, and that the sums paid on such
warrants we're pursuant to a corrupt, fraudulent
and unlawful combination and conspiracy to that
end by and between the said William NJ Tweed,
gersoll and Ebert A. Woodward, agreed
TO be divided and were divided between
Gsrvey and william NJ Tweed, and other r persons
unknown, &c. The details OF the transactions are
ncaently appears that these payments were made
out OF the fund rasedsby the sale OF revenue bonds
issued on the strength OF the certificates OF audit
signed by the auditors appointed by the act OF
TwEED's DUTY DEFINED.
These facts, which are admitted bv the de-
murrer, establish thar the State, through its Legis
nature, provided method of dscharglng q spec-
ned class or the liabilities OF one OF It's counties
That 1t appointed certain persons to carry out its
enactments BY auditing the liabilities, issuing
bonds Tor the precise amount necessary to pay
such liabilities when ascertalned, and applying
20 such payment the proceeds or the bonds so
issued. The State provided Tor the payment
visors OF the county to raise by taxation the
amount necessary to pay them. The auditing Of
county ofilcers, out as special appointees Of the
Legislature to carry out the provisions OF the act
They were the Mayor and the Comptroller OF the city
Of New York and the then present President OF the
Board o; supervisors Of the county. His powers and
duties as auditor did not depend upon the contnu.
ancc OF his once OF President OF the Board OF
Supervisors. Instead OF being personally named
he was described in the act as the then President
OF the Board. This was q mere designation OF the
person intended. He continued auditor, notwith-
standing the termination OF his ONCE OF President
Q, tne boar@ 81 supervisors wnicn' as Is aieged
July, 1870. From the beginning he acted not in
virtue OF his county ONCE, but as the repository OF
. special trust directly cOnnded to him by the
Legislature, and, together with the Mayor and the
Comptroller OF the city formed commission ap-
special duty. This duty consisted in auditing and
certifying the amount vi the Liabilities OF the
determining the sum which should be levied upon
the taxpayers Tor the purpose OF meeting those
liabilities. Inc liabilities were not TO be paid out
such but Intimately BY means Of the tax Which
the supervisors OF the county we're by the act re-
"a the ioowins 0 year, ISL In pu oPdeT
70 opylate delay in the discharge or
was ae or question 81 means ans
tax so authorized by the issue OF the bonds before
referred to, and the amount necessary TO pay those
bonds was 70 De raised by the AK.
THE CONTROLLING QUESTION
arising upon this demurrer is whether for any
oil any OF the persons designated by the Legisa-
ture Tor the purpose OF carrying into effect the pro-
breach OF trust has resulted in raising upon tenn
porary bonds issued IN the form authorized by the
act vastly larger sum tnan was necessary for the
dlscharge OF the liabilities provided Tor by the act,
and in transferring the surplus into tne pockets OF
the delinquent agent or appontee OF the state and
other persons confederating with him to that end,
an action VIII lie on behalf OF the State against
the delinquent and his confederates who have par
ticipated In the corrupt transactions and their
fruits. One material inquiry in determining this
question Is, upon whom Will the loss occasioned
by these transactions fallY There eau be but one
answer 20 this question. Tne bonds have been dis
posed OF TO bona Tde holders. Tney are directed
by law 70 be paid by means OF tax, to be levied
on the taxpayers OF the county. The bondholders
have the legal right TO enforce the levy OF this
Inere IS no property OF the county as such out OF
which these bonds can be collected by legal pro-
cess the moneys, therefore, wuich have been
H8udulenty raised upon these bonds and appro-
prtated by the wrongdoers, viii have to be COL
iected under authority OF the state out of
the taxpayers OF the county and
the loss consequently falls upon Them
IL clearly shown by the authorities cited in the
argument that no individual have standing
In court as taxpayer merely for the purpose OF
obtaining redress for such wrong; and the rea-
sons for this conclusion are too OBVIOUS to render
discussion necessary. Among other reasons, 1t is
evident In the present case 1t wound be impossible
to ascertain the extent TO which any individual
who was q taxpayer at the time OF the wrong