Year: 1873




mination at so late an hour in this regard provoked
no little surprise, particularly when it was found
later in the evening that his charge occupied three
hours lacking ten minutes. The following is the
charge:-


. Charge OF Judge Davis.


congratulate you, gentlemen, that your labors
are concluded. An important duty, however, re-
mains to the Court and then still more important
one to yourselves. This is which has excited
great public interest, that has been manifested
through the whole trial. 1t is not because of the mo-
mentous consequences to the accused party, but be-
cause OF Its connection with the transactions which
within the few past months have entered into his
tory Of the city and county. The defendant stands
indicted before you for alleged violations Of Official
duty. he is charged substantially by the Indictment
Of neglecting duty imposed upon him by law;
secondly, for having discharged that duty by the
granting Of certificate such as Is required by the
law upon the auditing of accounts which were false
and fraudulent, and known to be SO to him. That the
defendant was public olfcer at the time and SUBJ
sequent to the passage Of the act OF 1870 which
devOlved upon him the power mentioned in the
fourth section Of that act Is not IN dispute. He
held the once OF Supervisor Of the city and county
Of New York. He was then President of the Board
Of Supervisors. The Legislature thought proper,
by the act referred to, to create board, or COM
mission for the act gives no designation to the
three gentlemen who are required to act under IL,
but they are called for convenience sake here,
and that, perhaps, is designation which we may
properly adopt,


A BOARD or AUDIT. s.


The three officers named-the Mayor Comptroller
and the President OF the Board of Supervlsors-are
directed to audit certain claims against the county,
described. limited rather by the act ITSELF and
to issue their certificates of audit upon which the
Comptroller Is directed to make payment to the
party or parties entitled to receive the same. 1t
would be proper to state-indeed it does appear from
the evidence in this case-that certain liabilities
against the county Of New York incurred previous
to the passage Of this act were then in existence
the correctness of which, the justness of the
amount due thereon, required to be ascertained
by some authorized body. There had been pre-
vlous to the passage OF this act bodies clothed
with authority to ascertain these liabilities. A
Board Of Audit has been described, composed OF
various gentlemen, some OF whom were city OIL
GERS and some were not 1t had been created, and
1t seems it had not ascertained


THESE PARTICULAR LIABILITIES,


S sS rey rad Il Wen n
action upon them os that they had reached payment
SO the Legislature, for the purpose of ascertain
amount ought to be paid upon them by the county,
created this Commission. That Board was directed,
The language Of the act is-.An liabilities against
the county OF New York incurred previous TO the
passage Of this act shall be audited" or course
question arises as to what Is meant by the act and
by the language used by the Legislature. That Is
swered by answering the question, What is meant
by the words "shal be audited s'' 1t Is Q pure
question OF law for the Court to determine,
and It Is therefore the duty OF Jurors to take the
construct construction wi, which the Court puts. upon the
makes an error in that construction 1t is the sub
ject OF direction by an appellate tribunal.


No ~


that what is required by this section and by the
language used In it is the performance of those
listing liabilities named in the were Justly and
properly payable 1t required at the hands OF this
Board something more than mere @ clericaI duties.
should be presented to them and pass upon them
in such form as should furnish, IN their Judgment,
satisfactory evidence that the liabilities just
and should be paid The word "audit" embraces
al OF that when used In the form in which it is used
In this statute, and we need not resort to exicons
tanning what was the intention OF the Legislature
in directing that these liabilities should be audited
They were to be passed upon by the operation OF
such evidence upon the minds OF the persons
clothed with the power as would produce Q
satisfactory conviction with them as body that
the accounts or liabilities were Just and proper.
Now, in the action OF public oficers clothed with
duties OF this kind, have already said something
more Is required than the mere clerical act OF
signing name or subscribing certificate. These
persons therefore, named In this section were
bound, first, to organize themselves in some form
into q board or body so as to act unitedly and
jointly upon those matters. It would be impossible
to satisfy this statute by the separate and distinct
action Oh each one OF these parties, for


THE LAW DEMANDED


the auditing by them Jointly. You do not need
any illustrations to bring to your minds what in
tend to say on this subject, for you can readily
that in order to satisfy statute which calls for
the action OF three minds In reaching a conclusion
on given subject or passing upon question upon
such evidence as shall he before themI say it needs
illustration to show you that such statute can
not be satisfied by the separate and independent
action OF those three minds; that Is not what the
law requires under this sections therefore IL was
necessary, In order TO conform to it, that the
three persons named should meet and pass upon
the evidence presented for their Joint action, and
determine before the issue of these certificates
whether these accounts were just and correct.
A public oficer clothed with such authority can
not delegate it, nor can body OF public officers,
because the duties constitute trust Tor the benefit
OF the people interested in the subject matter Of
the trust II the Legislature had intended to confer
powers OF delegation, that intention would De ex
pressed. IL is charged in the indictment-F1rst,
that the defendant, in connection with the other
parties and officers named In this suit, neglected
20 do the duties thus eDjoined. II Is OF no impor
tance whether OF not evidence has been given
here TO satisfy you that there was


wILFUL NEGLECT


on the part OF the Mayor or Comptroller. 1t fs
enough for this case IL the people have satisfied
OF the Law guilty OF neglect Wilful neglect is an
intentional act Of omission. An onlcer Is bound
to know the duties 1evolved upon him II he &C
ceps and enters upon the duties OF his once. The
law judges that they must know that, and that
rule applies with greater force upon public officers
ccptance. SO tnat where an ofiicer knowing his
duty as he Is presumed to do, Intentionally fails
20 perform It, intending 10 admit its performance,
ne Is guty under the law OF the wllful neglect for