The sun. [volume] (New York [N.Y.]) 1833-1916, 1899-08-23
AHEARN LAW WON'T HOLD.
corDT DECISIONS THAT MdH SAVE
yTIIJOyy TO THE CITY.

- - thousands OF dollars for the al
,ad L.9al sxpenses OF city officers illegally
a,o,ad or tried for alleged crime. received
..o,bor black eve in the supreme Court yes
,ardo, following upon that administered by
rustice Maddox In his recent decision IN brook-
Ivn when he declared the act unconstitutional.
yesteriay Justice McAdam denied inc apph-
cation Of John 7 Fallon for the appointment OF
n reterea to audit his claim oil So'+oo eApens''
incurred In securing reinstatement us "arueh
n ,n rombs Prison after his dismissal. Jus
,I ". Loan also refused to appoint referees
Wv w, ,loim ~ Arthur J. McQuade. a member
-, no "nood,c Board" Of Aldermen OF 1884.
49, sos OIL incurred IN defense OF bribery
oL,reo. He took similar action on the claims
-, N,tbao Strnus, Park Commissioners. in-
I,,,ol f,r ,erting contracts for moro than
e. 600 without bids and OF George Weideke. q
,,ir.,uar,. dismissed from the force In teBf.
and who wa. le.nstatei al an expense OF Sb'o.
Mr. strauss cam is for $4,000. Justice Mac
i..., wr,,. n, ,rlnIon in his cases. but Justice
McAIam handed down one assailing the
Ah,aro act In his opinion Justice McAdam
says.
'r, former Years applicants for equitable
r,lirf Of this character appeared beiore the
Io,is,9,urc. presented their claims. ana those
thai were reported iavorably by the commit
tee TO which they were referred, were again
considered by both branches OF tho Legis!a-
turr. and II approved By them Jointly. ana
sanctioned by the Executive. the particular
cloips So approved were by special enact
men referred to the proper board oil
tbe CIV or county for audit. In
tho., cases tho representatives elect
ed by the people and entrusted with the taxing
mower thus determined in manner sanctioned
hy long established usage. IL not by direct
constitutional authority. that the particular
Gains so approved were proper subjects Tor
tho exercise Of the taxing power by the state.
Even this power has not gone unchalenged.
In the recent case of Stemmler v. the mayor
RS App Div ut r. 49, the Appellate Division
said Of such n special enactment: The con-
stltutionaIity Of this act IS not free from
doubt"
The act OF 1879 is far more Objectionable,
forUy it the legislature without examination OF
any Of tho claims attempts to delegate its
Legislative authority upon the subject. as II the
allowance OF such claims. though involving
large amounts. was mere perfunctory duty
that could as vel be performed by others. The
act directs that referee be appointed by
the court to audit the claims Of all who come
within its provisions and claim the benefit
thereof. and section provides that the
several boards in the several counties OF this
state having respective charge In making up
the annual expenditures OF the several cities
or counties for which they have been selected.
are hereby respectively authorized and direct
ed to cause 10 lie included in the taxes to be
levied for the year following the audit made
under section l OF this act upon the estates
subject TO taxation in tho respective cities or
counties in which such claims are audited, an
amount sufficient to pay revenue bonds direct
ed by the officer OF such city or county cmpow-
cred to ISSUE such revenue bonds in antcpa
ton OF the collection Of such taxes. with inter-
est due or to become due thereon. for the pur
pose OF the payment OF the respective claims
allowed and audited by the several and re-
eprctive referees who shall have audited the
respective claims
The persons for whose benefit the act was
passed have no legal claims against the city or
county, and the purpose of tho act il to have
the Auding by referees to the effect that these
claims are equitable in character and reason
able in amount, a sufficient warrant in law to
compel the taxpayers of the different counties
to paw the sums awarded. or In default thereof
that their property be sold to meet the de-
mands This clearly means the taxing OF pri-
vate property. not for public use. but for the
benefit Of private individuals. and is expressly
prohibited ty the state constitution. The
Court OF Appeals in Bush Y. Board OF Super
Fisors l5D y. T.. 212. 2l3l. said of an act not
70 objectionable:
Tho power to impose taxes. general or
loca. (which rests with the Legislature. Is with
nut much express restriction in the COnstitu-
ton. and yet even this power cannot be said to
BE- a sOutc. On general principles it has, at
least, one limitation. and that is that the money
t. be raised must be required for some pur
pose Tint in some sense, at loast, can be said to
lie public. The Legislature cannot authorize
taxation for the purpose Of making gifts or pay
Ing gratuities to private individuals. II Is quite
clear that this was the purpose OF the act in
question The individual for whose benefit the
tax was to be levied under the act. had no
claim. legal or equitable. against the town or
county whore the money was to be raised by
taxation. Those who actually served under
the ronscripton only discharged their obiga-
tons to tho general Government. Those
who committed simply paid so much money In
order to be relieved from the obligation
to render military service. In either
case the individual did nothing more than to
discharge his obligations to the Government as
citizen and hence he had no claim against
tn" 'tcnlity to reimburse him for what he was
Obliged to do, The fact that majority Of
the taxpayers requested the supervisors to
levy the tax is OF no importance. Majnrities.
however potent in many respects, have no
power to Impose taxes upon the minority for
the purpose of raising money to be devoted to
glits or gratuities to individuals.
We think that under the general principles
which control the exercise OF the power OF
taxation the Legislature had no power to pass
the act in question, 1t did not attempt to
authorize taxation for any public purpose. but
was. IN effect. a method OF taking private
property not Tor any public use. but for the
benefit OF private individuals. Legislation OF
this character has often been questioned in the
courts and quite uniformly condemned.
True, the report OF tho referee is to be con-
frmed by the Court before it becomes final.
but AS the questions to be submitted to the
reterc" are exclusively of fact 1t is at once evil
cent that but few. II any. cases would arise
where the findings could he disturbed Indeed.
II Is much like n reference to compute the
amount due in foreclosure case, in which the
report OF the referee is almost as OF course con-
"flrmed.
Judge Cooley announced many years ago
thht public Office is a public trust aud the
responsibilities and trusts devolvinR upon the
Legislature cannot he delegated to a referee or
even aIudlcial tribunalf for in our system OF gov
eminent the executive. legislative and judicial
branches made and infandaI IN ha knn nj