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


applicable TO the general purposes OF the county.
or was incapable OF use for county purposes ex-
cept by legislative permission, there would be no
necessity or occasion for the Intervention OF the
people or their Attorney General as there might
pe II the authorities OF the cOunty-the trustees.
Ia iact-had been participants in the fraudulent
abstraction OF the moneys, or accessories 10 the
frauds Dy refusing to prosecute. 1t Is material to
recall the TACT that all the allegations OF COLLISION
on the part OF the county officers in the perpetra.
ton oil the fraud and wrong and In the usory
prosecution of the offenders as well as OF any
unwulngness on the part or the county or
its corporate authorities to prosecute for the
recovery have been expunged from the complaint
that n the county has cause OF action and can re-
cover the money land there are no obstacles to an
action 2, by the county ana no omission Of the on
State can MAINTAIN an action for the same money.
True. In some cases. as In the case OF general
owner and baer, or principal and agent either
can, under certain circumstances maintain an ac-
tion Tor money or property or upon contracts but
these are exceptional cases, and This case is not
within the exception or the reasons for il. There
is no such or analogous relation between the State
government and the counties OF the State, and the
sence oil legislation or some peculiar
reason giving duplicate actions exist at the same
time IN two independent corporations or indivdu-
ais For the wrongful conversion OF money or
property belonging 60 municipal corporation, or
for which It may have an action. these cannot be
concurrent remedies by the state and the munich
pallty prosecuted pdr1 pdSsu. II the state has q
right OF action II results from and as an incident
OF its sovereignty, and must necessarily be par
amount to that Of the subordinate body. and upon
the exercise OF the right by the State the right OF
recovery by the state the corporation be barred of
Its remedy. Otherwise party may be vexed with
two n.sanons ana mn POSSIBLY nave two re-
OF action. I find no authority or precedent
for thus depriving municipal corporation
property, in the discretion Of the law ocer OF the
State. county is not independent OF the State,
ect to the State and the Legislature OF the state
as sovereign, and its boundaries, its rights, pryi
eges and powers may be enlarged or curtaled,
and its property and property rights controlled
from time to time in the discretion OF the Legisa
ture; but when grants, whether OF rights or of
power, are conferred by the Legislature, they are
held absolutely, and to be enjoyed and exercised
independently, subject only to the general laws of
the State the terms and conditions annexed to the
grant, until withdrawn or modified by the Legisla-
ture.
THIS Is CONSISTENT WITH THE TOWN OF GUILFoRD
VS.. SUPERVISORS OF CHENANGO.
8 Kern, 143 and Darlington VS.. Mayor OF New York.
81 New York, l64 Chancellor Kent In speaking OF
municipal corporations says:-"They may be en-
municipal uses, and such property is invested with
the security OF other private rights. FL Kents
Darlington VS.. Mayor, &c, supya:-"This does not
exempt such property from legislative control,
and in that respect property rights stand upon the
same footing as other corporate rights, whether
political or civil. Property owned by q CITY, county
or other Tanicipal or local government Is held by
1t as pu olic corporation and subject to the law
ever name called and known, are merely
trustees or the public. who are the cestut que
poration is the trustee OF the Inhabitants
OF the territory embraced within Its limits" An
effort has been made TO distinguish the county of
New York from the other counties OF the State in
respect TO its powers and corporate capacity as
one Of the civil and political divisions Of the State
was implicitly II not expressly, conceded by coun-
sci lor the plaintiffs that there is no substantial
distinction-that 49, no diference-between the
organization and power Of the county OF New
York and those OF the other counties or the State
winch in the least ariects the question under con.
sideration. From the first the State has been
dlv1ded for governmental and political purposes
into counties, and every part OF the State
within the territorial limits Of some county and
subjected to county government. Every consttu-
made provisions consistent with 1t and based
upon 1t.
NEW YORK WAS ONE OF THE TWELVE ORIGINAL
COUNTIES
into which the State was divided by law OF the
first Legislature, held in the then colony OF New
York on the the mrs! day OF November less-2 r L.,
granted after the treaty OF peace of 1874, by which
the English were relnstated in the possession OF
though the charter OF Governor Nicols. OF 1854
had been recognized and corporate proceedings
aaS 5 t. the Of the DGn
boundaries o. the city and county Of Of New
period this not so, but the fact not material
and only of interest as a matter OF local history.
appendix NIX. XX., XXL notes II and Is 49,
From 1883 TO the present time the county OF New
York has existed, with substantially the same ter
ritorial limits at present. at all times having
and exercising more or less OF the political aud
corporate rights that were held and exercised by
the other counties OF the State. BY reason OF the
coincidence Of the boundaries and the constitu-
ences OF the two distinct organization the city
so%ny or New na ta T
eaton has been OF less political importance than
in other sections or the State. and the gov.
erning body has been differently constituted
and has exercised less power. At times many
OF the powers exercised elsewhere by the Boards
OF supervisors have been devolved upon the Com
formed by county officers have been performed BY
city officials. 1t Is not important to trace the
by some OF which the distinction between the city
and county government has been to some extent
ist, and at all times body has existed known as
the Board OF Supervisors Of the county, who were
the governing body OF the county, exercising such
legislative, administrative and corporate powers
the Legislature has seen At 20 intrust to it, To the
extent that other special provision has been made
by law for the performance of the functions
in other counties performed by the Boards
OF supervisors, the county OF New York has been
excepted from and not subject to the general laws
Affecting counties and prescribing the powers and
duties OF Boards oil Supervisors. But IN all other
respects the county has been subject to such gen.
as well as governmental, conferred by law upon
the counties Of the state. In 1857 most material
change was affected in the constitution or the
county government and from that time the func-
tons OF the governing body and the corporate
powers OF the county have been greatly enlarged,
ana the county government has more nearly as
simulated to that OF other counties. In that year
the controlling power in botn branches OF the
Legislature and the Executive department OF the
State was in antagOnism with the party dominant
In the city and county OF New York, and either
with a view TO the better administration OF the
government OF the county, or Tor the purpose OF
dividing the political power and the emoluments
OF ONCE IN the city ana county Of New York. pro-
vision was maze or the government OF the county
by hybrid body-that Is, by Board Of Super
vlsors, so chosen as to secure an equal number
from each OF the two political parties As a re-
form IN government The project was doubtless o
failure; but as a means by which individual men,
bcrs OF the TWO parties were enabled to combine
and enjoy the luxuries OF power, patronage and
plumber, 1t has proved perfect success
CONSTITUENT ELEMENTS OF COUNTY PROPERTY.
1t Is probably true that up to that time the
county, as such, had but little, II any property,
even that which was necessary for public use;
but that circumstance did not affect
Its political existence or corporate capacity.
county NAV be absolutely destitute Of all prop
and vas