The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1874-06-18

the authority conferred BY the State, they have
thus wrongiully obtained and applied to their own
USE or to pay In the form OF damages such sum as
will compensate Tor the amount which by their
wrongful acts they have obtained az the expense
question presented is novel, but the law is not SO
detective as 10 be wholly destitute OF remedy In
sSss Ca Tns ne ins IS X the first
Obtained, Or TO to col, compel them to Ray =
position or the money which the defendants may
be adludged to pay Is not provided for py any ex-
isting law, and y Is therefore impossible for the
Court now to adjudicate what shall be Its maj
destination. That the defendants are not en-
titled to retain It. and that they are liable in some
cannot be questioned. that justice requires that
such disposition shall ultimately be made Of the
Se Is VIM Be pS
to the payment OF the Obligations upon which the
money was wrongfuly raised Is obvious. But In
. case SO extraordinary the court should not
undertake, whoever Is plaintin, to do more than
to require ss the abs e. the
custody, to await further legislation.
THE SUPERVISORS AGENTS OF THE STATE.
Assuming the correctness OF these propositions,
which will be further substantiared In connection
with the objections raised by the demurrant. it
proper party to invoke such a remedy as this case
demands. The wrong complained OF Is the viola
zion by an agent or appontee Of the State OF q
trust and duty created by statute for special
purpose, through which violation OF duty he and
the other defendants confederating with MIN have
obtained large sum OF money on obligations
which must be paid by taxation under authority
OF the State. The damage resulting is To the
auctqattnx body OF taxpayers Of one OF the
divisions OF the State, who, under the pro-
visions OF the constitution OF the United States,
cannot be liberated from the burden to which the
any means short OF the State itself assuming and
paying the bonds, the proceeds OF which the de-
other terms could any repeal Of the act directing
the levy OF the tax be sustained The money
which the defendants ought to replace will BY
wnosoever recovered, be subject 10 the control OF
the Legislature. Even II recovered by the State
and paid into the general fund, Legislation will be
required for its APPROPRIATION 10 any particular
object Unless 1t can be shown that under exist
ing statutes some particular officer or body Is
vested with the exclusive power of bringing the
people ought to be deemed sufficient to
entitle them to intervene for that purpose,
not only empowered, but required to prosecute all
actions in the event OF which the people are inter-
ested. Il r. s. 49, Section ~ 1t seems to be
ceded in all the discussions upon the subject before
and within the Court, that If the Attorney General
had been specially authorized by act OF the Legis-
lature to bring this action. such authority would
be valid and sufficient to sustain the action This
proposition necessarily comedies the interest OF
the State in the subject OF the litigation.
If o special authorization in the particular case
wouid have been sufficient to require the Court 10
entertain the action OF the Attorney General, on
what principle 1t refuse to do in the face OF
the general statute, which not only empowers, but
requires him to prosecute all actions IN
Ordinary reasoning would lead us to the concIu-
sion that this general statute Is sufncient author
some special statute IS pointed out which Restraints
mis- action in~he particular case or grants the ex-
elusive right to prosecute such action to some
other officer or local body. No such statute has
been pointed out, nor have found any.
THE RIGHTS OF CITIZENS
The cases in this State which deny the right OF
individuals to intervene simply on the ground that
they are taxpayers, whose burdens will be In
creased BY the wrong complained Of proceed upon
the ground that the general rule Is that for wrongs
p' only Hp0 spprshs s i'a zemsdp
in its political character, or BY some onicer
authorized BY law to act IN It's behalf,
snd n Is we 81 n esy Of M
fected. Common nuisances, purprestures usurpa-
tons Of public offices and the improper exercise
as Instances OF the application OF this principle.
The inconvenience which would result from any
other principle, among which is the multiplicity Of
suits which would arise, pointed out In those
cases. NO private person or number OF persons
can assume TO ce the champions OF the community,
meet them in the courts OF justice to defend their
offical acts Their remedy is to invoke the action
81 sue II in such cases. Doohttle VS.. Supervisors
Of Broome county Is 3, New YORK. 1 lSs;
9Se y nrspe 5re New IN @
the opinion Of the Court, declares that ian act or
administration likely to produce taxation is not a
affair altogether pubic, and the only remedial
process against an abuse or administrative power
tending to taxation which we can have, is fur
nlshed by the elective system, or proceeding in
behalf Of the State"
The grounds upon which the right of the State to
prosecute the action IS denied are that the money
which was taken by the DEFENDANTS belonged to
the county of New York. That the Supervisors OF
every county are empowered by statute to bring
actions to enforce liabilities to the county
and to recover damages Tor injuries done to the
and that consequently the action should have
been brought BY the SUPERVISORS OF the county OF
New YORK. No other party Is suggested as the
proper plaintiff Assuming that the provisions
authorizing Supervisors OF counties to bring
actions are applicable to the county OF New York
IA proposition which s denied by the appenants)
II Is necessary to this defence to establish that the
liability incurred by the defendants was to the
county or that the money taken by them was the
the supervisors OF a county are empowered by
statute TO sue are those before mentioned. to-
present case, such as actions on contracts made
with the Supervisors for penalties and IOr1etures,
e an ~ can
by statute Hunter Va. Mercer Co., 10 Ohio st. h
$50; Hunsaker Va. Borden, Cal. 29o).
SECONDARY INTERESTS or THE COUNTY.
u IS worthy OF remark, IN passing TO the con.
sheraton Of this defence, that far rs appears
upon the present record the right OF the people to
troversy Is not challenged BY the county OF New
York, and the question does not arise in conse-
quence OF any claim made by the county or on It's
behalf TO the money or damages sought to be re-
covered IL Is raised only by the alleged wrong
brought against them by the State. To be efec-
tive or that purpose 1t should appear not only
that the defendants liza BILE to the county, but
to that civil division OF the State exclusively, aud
that recovery OF the State itself and satisfaction
thereof would not bar subsequent recovery on
behalf OF the county for the same acts.
me main points urged on the argument on the
part OF the demurrant in support Of his defence
that the money which he took belonged to the
county are these:-
FTst-lhat the bonds upon which the money
was borrowed were county bonds. That when
county borrows money pursuant to law upon its
own bonds, the proceeds belong to the county, on
the same principle as that upon which money Dor.
rowed by natural person, or by corporation
authorized to borrow money, becomes the prop
erty or the borrower.
Second-That the money so borrowed was actu-
ally paid into the county treasury, ana that its alb
straction by means OF the certificates alleged to be
fraudulent was from that treasury. and
Third-That such deposit OF the borrowed money
In the county treasury is alleged in the complaint
to have been made In formal compliance with the
statutes and usual modes OF Official proceeding In
the city OF New York.
The allegation that the deposit ofthe money IN the
county treasury was IN compliance with the
statutes Is matter or law and not OF tact. IL does