Year: 1872




Comptroller-Judge Barrett's Opin-


ion Denying tho Notion.


Eyer since the organization in 1866 OF the pres
ent Fire Department there has been more or less
dissatisfaction at its not being allowed control OF
its own funds, but being compelled to get its money
through warrants drawn on the Comptroller. The
claim was that ii was as much distinct organiza-
tion as the old department, which from its organi
cation in 1916 till its supersedence by the present
department managed exclusively its own financial
matters. A few days since application was made
before Judge Barrett, OF the Supreme Court, for o
mandamus directing the Comptroller to pay over
to the department the funds in his hands appropr-
ated for Its use. The question under this applica-
tiOn to be decided was whether the department
has right to q treasurer, separate treasury and
absolute control of the money appropriated for the
Department stands in the same relation to the
Finance Department as the other departments OF
the city. Judge Barrett yesterday gave his de-
csion in the case, denying the mandamus. The
following Is the


The difficulty with the REALTORS position consists
in treating the present Fire Department as an in
dependent corporation, when in fact it is but .
Metropolitan Fire Department, organized under
the act OF March 80, 1865, regarded as such an
Fire WHICH existed PRIOR '
this act was private corporation. This private
corporation, to quote the language Of Judge Davis
In The People VS.. Pinckney, 81 N. Y. r., $780, "Was
not municipal or political body, and neither 1t nor
its officers occupied any greater official relation to
OF the numerous and charitable corporations Of
the State.n The


OBJECT OF THE CHARTER


OF 1870 was to strike at all such Independent COM
missions and private corporations, and to inaugu-
rate more symmetrical and harmonious system
by reducing them to mere departments or agencies
OF the Municipal Corporation. Thus viewed the
proper construction OF the saith section of the char
Nocs sT nj 1nyy~
Fire Department. is thereby clothed with .'al the
power" and directed to perform call the duties OF
all such powers and duties as formed part Of the
plan Of independence conferred upon the old COM
mission, but clearly all such as were consistent
with the unity OF municipal administration then
sought to be effected. The entire charter suggests
this construction. The various sections which con-
claim is made, supplements such general power
by partcularlzng the special clause enumerated in
the old sS sston In "a e secon
re-enacted almost IN totiden verois. The several
remarks apply to the enumeratiing powers as to
the appointment and removal OF subordinates con-
tanned in the section Of the charter These
are the same powers which were conferred upon
the act of 1855. All this mere surpusage unless
the general power Is construed as though II read,
ment ior the extingushment OF fres and in the
general government, management and direction Of
the department. Every precaution was certainly
taken to enumerate such special powers as were
doubt by the language OF the general power.
II can scarceV be thought, therefore, that


RAISING AND Discussing MONEY
for the. Independent Commission was .engrafted
upon the charter by the force OF such general
language. But, further, this scheme Is not only
inconsistent with the spirit Of the charter and
the object which 1t has In view but also with Its
practical working. Indeed, 1t was not claimed
tnat effect could be given TO the powers and duties
instance under section 10 the FUND to be raised for
the Commission was to be deposited with the
sion. Now, the Court is asked to substitute for the
! Treasurer Of the State bank to be designated by
mission mis- p1s executed bond in ssoooo which ms should
be satisfactory to the Comptroller OF the State. Is
the Court to substitute local officer for the Comp
| troller OF the State or is the Municipal Corpora
ton to be dependent upon State official
for the security to be furnished by, one Of
sion was directed to report annually to the Cover
nor OF the State Is the Court to substitute the
Mayor of the city, or must the Fire Commissioners
report to the former under the act Of 1865, and to
the latter under section 81 OF the charter. Other
incongruities might be pointed out, but these are
REALTORS seek. There is not such construction OF
the eighty-fourth section OF the charter as would
| involve merely the re-enactment OF the entire
scheme for the raising and dsbursng OF the
funds OF the Commission, but the re-enactment Of
the scheme In modified form, SO as to meet the
'N's'F FnE y NEW CONDITION OF THINGS


1t y evident tnaT this l. I substantially asking
tended for is open to still another objection
arising upon the face OF the charter The trea-
surer was the fiscal officer OF the Commission. If
he is the fiscal officer of this department to the
extent and in the sense claimed what becomes of
the thlrtythird section OF the charter, which pro-
vides that the Finance Department shall have con-
troll OF all the fiscal concerns OF the Corporation
and OF the appropriations made for carrying on
the business OF the Corporations We have seen
that the fiscal concerns OF this department OF the
Corporation are already the fiscal concerns Of the
Corporation itself Its creditors, officers and en-
ployes are not independent Of but are creditors,
officers and employees of the Municipal Cor
poration and by such thirty third section these
are to be paid In such mode and manner
as shall be prescribed by such Financial Depart
ment. Nor Is q direct enactment wanting to In
dcate


THE LEGISLATIVE INTENT


that the Fire Department. in common with all other
ected to its proper level as one OF the mere agencies
OF the city government Under the old system the
Commission itself substantially settled the amount
which should be annually raised for and expended
by IL. Such the practical effect Of sections TO-
IL and 16 or the act OF 1885. 1t Is palpable that
these are not within any OF the powers conferred
upon the present department., either by the charter
or by any subsequent enactment. On the contrary,
the balance OF power was at nrst placed IN the
hands OF the other officials and subsequently the
/ adjustment was left to the Board OF Apportion-
| ment IN which body the department had no repre-
sentative. Finally, there Is nothing IN the legisla-
tive recognition OF the treasurer OF the department
to justify the construction contended for by the
REALTORS. That officer under variety OF enactments
| has moneys to receive and duties TO PERFORM all OF
| which are quite Independent OF the general fiscal
concerns OF the department., and may be received
ana performed without cashng In the slightest
degree with the duties imposed upon the Finance
| Department with respect to these general fiscal
concerns, under sections 49, "a, 81 3s and 80 OF the
charter


There is no question, therefore, OF the repeal,
either expressly or by implication, or the power
now claimed by the Fire Department for the reason
can come to no other conclusion than that such
power was never conferred.


The application for mandamus must therefore,