The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-06
hange, unless It be accompanied by especial FORE

liz WILL Doubtless be an unavoidable necessity TO
ones to be enacted with reference TO special and
peculiar cases IL Is quite possible 10 CIV gen.
intended 10 apply 70 special and to oper ate
as special grant oil powers
Tue benent intended 10 be secured by the pro-
hbitlon may thus be defeated. Even greater
mlschieis than those which existed under the OLD
system may be created
tended 20 obtain special powers for particular
case cannot be relied on TO guard against the pos
other cases 10 which IL may De applied. The legis-
ator VINO could measure the whole consequences
oil an act limited IN It's terms 20 special instance
cannot foresee the possible cases to which gen
eral law adapted 10 the instance present 70 his
nlha may oe found capapce OF applying or what
great danger OF vague, loose and hasty legislation
In contemplation OF one object, but capable or
working III numerous cases results neither lore
seen nor intended.
Tue new legislation called for by this provision
should be framed with more than ordinary care
FRAUDS AND MANIFESTATION BY PUBLIC OFFICERS.
1t VIII be the FIRST and most imperative OF our
provide criminal punishment and civ.l remedies
Tor frauds by public officers and by persons acting
in completely with them. The condition of our ex.
listing statutes aud oil our unwritten law, as Its
provisions for such cases have been construed and
declared by recent decisions OF the court OF final
resort disclose grave defects. The practical evils
resulting from hese detects are greatly increased
by the recent frequency and magnitude or VIOLA
APERPEcTIoN OF CRIMINAL LAWS.
The statutes Furnishing emoezzlement are held
public officers. The statutes relating TO larcenies
are deemed TO be OF questionable application to
fraudulent acquisition OF public funds, existing in
the form oil credits Inscribed on the books OF a
bank. and known in the language OF commerce as
deposits The statutes In regard TO obtaining
money or property by false pretences are not free
from technical embarraSsments III their applica-
tion 10 public frauds. Without asserting to the
conclusion that these sta tuteS wholly unavail-
abe IN such cases, IL cannot be doubted that they
are inadequate. unfit for the exigencies OF the
times, ana that they abound in needless technical
tice
No illustration OF these defects can be so
impressive as certain facts OF recent expert
ence. public oficer, designated by a statute
OF the state, and authorized. with rwo others
10 audit the then existing liabilities against
the county OF New YORK. raudulently made
audit, or certified 10 an audit not made, OF
fictitious claims the amount or $4,000, 000
and instantly receiver 81 5OO,00 OF the money
paid on such audits. through common agent
the claims. For this hagrant crime, accom-
panied by many circumstances or aggrava-
tlon, the eminent counsel who represented the
people deemed 1t prudent to seek convictions
only for mlsdemeanors IN neglect OF otifcal duty,
the punishment Ior each o. winch IS imprss0nment
in the Penrentlary for term not exceeding one
year and tine not exceeding $3.50. When we
consider that person VINO, under the tempta-
ton OF pressing want, steals property OF the value
OF over 49, Is Liable TO imprisonment IN the state
Prison for term OF i've years, and that the other
offences against private property are punishable
with CORES pondlng severity the inadeQuacy or
the law applicable to great public delnquents.
betraylng the highest trusts ana plunderlng the
people on a grand scale Is revolving TO all just
notions Oh morality and justice.
RECOMMENDATIONS.
recommend the enactment Of a statute which
Shall clearly embrace such offences, and impose
penalties upon them proportionate TO their moral
turpltude and TO the mischief which they inflicr
upon society 1t can apply only 10 future cases.
but 1t may be expected TO do something toward
preventing recurrence or SUCH evils,
CIVIL REMEDIES.
the existing civil remedies applicable TO such
years the spectacle has been exhibited on the
conspicuous theatre OF our great metrOpons Of
fraudulent officials remaining in quiet possession
and making unrestricted dispositions Of great
wealth, which we are morally certain was derived
from their spoliation Of public trusts, notwlth-
standing legal proof OF The most conclusive nature
exists OF their guilt. In the meantime civil ac-
tons have been dragging their SLOW length along.
as IN ordinary OF disputed rights, while the
''law's delay" has been maintained by the use or
the vast und distracted from the pubic, and no
process has been found In our laws by which 1t
could be attached ana preserved pending the llti-
CATION or It's disposition interfered with before
RECOMMENDATION.
A bill to extend 10 sucn cases the remedy OF at.
tachment as In case oil foreign corporations or
nonresident abscondng or concealed defendants,
has been heretofore submitted TO the Legisa ture.
trust THAT such measure Will be speedily
adopted. l recommend, urtner, that preference
be gwen 10 such cases In the courts, whoever
may be the party plantlr.
GREAT DEFECT IN OUR JURISPRUDENCE
still more serious defect exists In our jurspru-
dence. Where wrong is committed winch Affects
the treasury OF CITY county, Town or village tne
Suit for redress, or who possess exclusively the
power to institute or conduct such suits, may be
themselves the wrongdOerS or be In completely
Win the wrongdoers. III every such case the rem
edy must OF course, be very much embarrassed II
not wholly unavang. The unfalthiul lncumbents
may be entitled To serve for a long term or they
NAV possess great facilities for gaining The favor
layed-perhaps Tor years-tne proofs may be lost.
or the Gepreoators may make away with their
property and withdraw their persons from the
reach Of process, or they may Through the lapse Of
time, become discharged from liability by the STAT
ute OF Limitations AS the offence becomes stale
d hn Inn ~ m al
forts OF patriotic citizens in behalf OF the people to
seek redress, is wearied and weakened. Ga the
developed into actual crimes by the prospect VI
impunIty which srows out oil hardness and uncer-
talnty ID the remedial law.
ATTEMPTS TO REMEDY THAT DEFECT.
The frequent occurrence OF maiversaton In
. local governing officials mas stimulated ingenuity
to devise some Judicial remedy. AT hrst IT was
conceived that the injured taxpayers or inhabi-
tants might. IN their own names, invoke judicial
ala. An analogy was set up TO the case OF pri-
vate corporation IN which corporation. on the
/ OMISSION OF the directors TO sue, might bring an
/ action, in behalf OF himself and his associates,
making the corporate body defendant The idea
/ received much favor rom the courts In the judi
cial district which comprises the city OF New
York. But the Court OF Appeals. In Roosevelt VS..
Draper and III Doolitte VS.. Supervisors OF Broome
no special interest distinct from tnat OF the public
which would enable MIN to sustain action, in
! person, for the redress OF pubic wrong OF the
nature involved IN those cases. In the former
case, the intlmaton was made, tnat the true '.re-
medal process against an abuse OF administrative
]
elective system, or by proceeding In behalf OF the
State;" In the latter. that ''lor wrongs against
the pubic, the remedy, whether civil or criminal,
is by prosecution instituted by the state IN It's
. political character, or by some officer authorized
Dy law to act Ia It's behalf" The whole reasoning
| OF the Court proceeded upon this ground nor does
| II seem TO have been questioned by the counsel on
! either side. The remedy lntimated In these de-
cisions has been recognized as established law in
! Great Britain from winch We inherit our equity
Jurisprudence, b. series OF great precedents. IL
has been applied to popuIous municipalities, like
Liverpool and 10 corporate funds derived from
taxation and applicable to general municipal pur-
poses. Ii is a natural deduction rom the historic
origin and the expansive philosophy OF the equity
system, whose proud boast has ever been that 1t
leaves no wrong without y remedy.
On the discovery IN 1871 OF the frauds committed
by the governing officials OF the municipality OF
New York. the Attorney General acting on these
intimatiOns OF our own courts and on the English
precedents Instituted actions against the parties
inculpated by POSITIVE proofs. Within the last
year the Court OF Appeals, in the cases or "1he
People vs.. Tweed, Ingersoll, ct al" and Of "rhe
People Fields" mas decided that the state can