The New York herald., 1878-11-01
THE COURTS.
Constitutionality of the Board of
.l Apportionment.
MARTYN PAINE'S WILL.
Shield OF Justice Protecting
'74 -" a Deaf Mute.


General Term. listening to tho argument on the
appeal taken In tho suit brought by John }. Towns
end against the city TO determine the question 10
the conssitutionaiity Of the Board Of Estimate and
Apportonment F'a
In opening the argument the appeal Mr. Towns
end contenaed that Board OF Estimate and Appor
tonment has an absolute power to hx tho budget OF
all city expenditures betrayed by taxation or other
wiso and Of all expenditures for local government
known AS county expenditures. The expenditure Tor
1877 amounted to $50 1884. 200 As. The taxed
was $2S 4S4, 200 49, sum WAS also deemed neces-
sary DEFICIENCIES amounting to $500, 500 4s. The
aggregate taxation OF all communities througL out the
state oil Now York tor all purposes for the
l64 90. The taxable value OF properly In
the State New York 81, 942 1856 The taxable
value Of property in the and county OF New YORK
Is 81, ,l01 002 O93. The tax directed by The Board Of
Estimate ana Apportlonment, to be levied In 1877, 10
sQua 10 65-l00 par Of value OF the estates
taxed. The annual expenditure Of the Untod States
government $l4l, ,535, ,497 In 1875 tho budget Of
the city and county Of New York amounted TO
$50, it, 472 Is In the discresion OF the Board Of
Estimate and Apporstonmsnt the local budget for
1879 may amount $50 600 0Oo Tho powers conferred
BY chapter 678 the Laws OF 1871 exercised BY
majority Of three othccrs two OF the three were ap-
poinices OF the Mayor, one the Comptroller for our
years and tho o.hsr tne Treasurer for tour years.
rhe SUN o. The taxing powers conferred by
.nls, law. 10 equivalent to the sum OF all
sns sSs ;a4,ns a1ng exclusive vosn
villages, included In county. The power
u absolute; - not 10 be reviewed. it is at tho dis
creuon vi alhs members convened; the powers are
exercsod without publicity and without Limitation.
Cnapter T19p Of 1873 re-enactmenso OF chapter 573
OF Taxes and Assessor for County Treasuror and
adding the President OF the Board Of Aldermen as
sl,,uent mo mbsrs OF Board appointses OF
Mnyor with the consent Of the Board OF Aldermen,
G ,US 10 am an he
NATION by yhs Board Of Aldermen The only other
change N tho law tha. tue tax Tor county expendi.
snn be directed by the concurrenL vote Of all
the constituent members. Tho power extends TO di-
TAX OF sum estimated 10 be suni-
Less Of The CITY. including al charges
liked BY law. overrulisg ~ objec.ions or
Vnel proceedings oi tho Board may be secret, the
pmount directed 10 be levied Is only to be stated in
sucn detail as the aggregate sum allowed TO eacn
department of tho CITY as the board snall deem
visabe.l The Eoard has the power OF approving or
withholding ITS approval OF thc salaries o. officers,
by the departments, and may enforce It's dsapproval
Dy refusing 20 appropriate money 20 any OF them.
The Board controls the members Of the police force
In this city, which by the Laws OF lS73 chapter 1886,
Is limited 70 as many captains. ssrseants patrols
funds appropriated allow rhe Board not only
directs annual taxation, u distributes NJ dis
izng or taking up al maturity stocks or bonds ana
ssung stocks bonds at such rates Of Interest
upOp auch terms and conditions OIL pay menl IL
determine. power IL gwen IN chapter 808 winch
permits the Board 10 transfer any excessive appro-
priation to such other obJscH or purposes may
Qure the same. II this system any siiniiar system
permitted 1t Is plainly impossible 10 osaue the
rtrsmc limit al the powero the Board some charges
are now nxed by law which may DO unhxed at any
time. be Salary blu OF 1877, which defeated BY
veto Is illustration OF the truth OF this PROPOSE
tion II is permitted 70 delegate these powers TO
board consisting of persons evidently same
powers may be delegated 10 one person. II 1t
IN
any county; it may be applied 10 ali couutes Either
" express terms or ny necessary mplication tho
except under the federal consttutlon must be found
In the several constitutions OF the state and tho
Amendments thereto The meaning Of every express
ljGn IN the constitution must bo ascertaned by
sdering oil tho antecedsnt and contsmporaDeous
circumstances under which tho first constitutior of
lS77 adopted, with the provisions Tor the organ
lxatton OF towns and counties aud the subseQuent
changes In the succeeding constiatiens, including
The provision oil the present constitution requiring
p,les villages as 10 prevent abuses assess
ments. The towns, he contended, arc tho fundamen.
tai necessary unit Of the poty sf the State Of Now
YORK. her continuous existence. uumpared in all
iher functions, Is an indispensable condilion
: pi personal freedom and political bapp,usss He
gave sxlended historical illustrations ol THIS poson
In conclusion he urged ina, the Board OF Estimate
ana ApportionmenI 1t now exists, Is the culmi.
nation OF gradual dsveopmen, OF vicious course OF
governms that u may be the best n the persons
are good, but that y may be the worst and WILL II
tabished IN any community.
Corpora,ien Counsel whitney, in reply, argued that
make whether the law creating the Board vi Appor-
tionmcnt violates any provision Of the constitution
people orthe state OF New York. no insisted const.
!ute sovereign power or community. By
aatsd 10 the Lorsss.urs Of .hs State % iso.ls,iyo
powers which ara unrestricted, cxcsps lar as
sssirioiions are found In the constitution, and 10
court can erect itse above the Legislature anu call
In question ana presume to nuihly is acts without
bong ablo 10 specify The constitutional provision
which the not violates. The power 70 Impose taxes
is oi the attributes OF sovereignty Possessed by
tue people oi the state, and has been conferred
70 no reslric,ions except those conia,ood 10
Ine constitutions OF tue United States aud
vision can be iouna in the ocons.itut,on OF tho
state winch tends the slightest degree 70 establish
the proposition that the law creating the Board OF
Estimate and ApportionneDt unconsftutiOnai that
the impose taxes Tor the general purposes OF
lLe saie mus. doubtless bs exorclsed directly by the
but that tho power to impose taxes iof
local purposes may DO delegated. The Board
soysrnmens Al pressn, son vested with iegisipiivs tive
functions by tho Legislature. THIS theory affects the
nnu greatest Of all, tho Board OF Health. rms
latior Board has BROADER aud moro sweeping powers
OF local legislation than the Board Of Aldermen
dream oi possessing. They have passed ordinances
regulating tenement houses, theatres, the sale Of
medicines and poisons, moat, hsh, milk, vegetables,
she construction Of buildings, ventilation, drainage
unloading oil vessels, removal aId Intorment oi
bodies and thousand other things so tnat in point
oil TACT you can't cat, drink, sleep or trado In
mo city wlihout being abiu 10 violation OF an ora
nance VI tho Board OF Health. anu tney have been
fully sustained by the Court OF Appeals The oujcct
.Uf creating sLe Board OF Apporionmsut secure
o body representative oil tue pooplo VI the 0cuitty
and It the tinle TO nx responsibility whore IL
could be seen and 10 obtain cousefvativc Board TO
deal WIN the subject Of tsxaton--one-hslf OF tho
Board elected by the poope, one-hu selected by tho
representatives Of the people, the Mayor ana Alder
men. f ~ ~,
AZ the close Of tho argument tho Court took tho
oapefs, ressrving It's dsciaoa.
s MARTYN PAlNE'S ESTATE.
Following the doosass Of the lato Msrsyn Paine,
formariv mr. ofeauos IN thu Nav York unlvarsttv