n 3 upttmc $mtt. General Term. Third Department. PEOPLE OF THE STA TE OF NEW YORK, vs. WILLIAM M. TWEED, Impleaded with Otlwrs. PEOPLE OF THE STATE OF NEW YORK, vs. RICHARD B. CONNOLLY. PEOPLE OF THE STA TE OF YEW YORK, vs. THOMAS C. FIELDS, and the Mayor, Aldermen, and Commonalty of the City of New York. OPINIONS OF THE COURT ON THE DEMURRERS. FRANCIS C. HARLOW, Attorney General. $ttt) Hlovh. John I'oi.hk.mi s, Printkii, 102 Xassau Stkeet. 1 872. Ex iCtbrtH SEYMOUR DURST -f ' "Fort ntetiut ^fm/lerdam. Je Matanj IVhen you leave, please leave this book Because it has been said "Ever thing comes I htm who watts Except a loaned book." Avery Architectural and Fine Arts Library (ill I ( 'I Si 1 Ml 'I R M 1)1 RSI ()l I) Yi IRK I IMR \R1 Jwjtettt* (Court, THIRD DEPARTMENT. The People of the State of New York, Plaintiffs, r Before MlL lee. Potter against , & p^ RKER , William M. Tweed, and others. Defendants. JJ. The Peoplk of the State of New York. Plaintiffs. against Richard B. Connolly. Defendant. J These two eases are appeals from orders of a Special Term. Thev involve, substantially, the same (piestions of law. They arise upon demurer, and were argued together. The facts will sufficiently appear in the opinion. Chakle- O'Conok. Samuel J. Tildes, and W. H. Pbckham, for the People. David Didlky Field. E. W. Stocghton, Wm. Fel- ler-ton, John E. Bubrux, John II. Reynolds, N. O. Bodtell, John Graham, Elihe Root and William Bartlett. for defendant Tweed. 1-21 The same counsel, and W. A. Beach and S. G. Cm kinky, for defendant Coxxoi.lv. Mii.i.kk. /'. ./. : The money which the plaintiffs claim to recover in this action was realized under and by virtue of an Act of the Legislature of this State entitled " An Act to make further provision for the government of the county of New York," passed on the 2*>th .»! April. 1870. (S. L. of 1S70., Chapter 882, page 8?5). By Section 4 of said Act it was provided that. " All li abilities against the county <»f Xew York previous to the passage of this Act shall he audited by the Mayor of the city of New York, the Comptroller of the said city, and the [then] present President of the Board of Supervisors, and the amounts which are found to he due shall he pro- vided for by the issue of revenue bonds of the county of New York, payable during the year one thousand eight hundred and seventy-one: and the Board of Supervisors shall include in the ordinance levying the taxes for the year eighteen hundred and seventy-one an amount sutli- cient to pay said bonds and the interest thereon. Such claims shall be paid by the Comptroller to the party or parties entitled to receive the same, upon the certificate of the officers named herein." It will be observed that the money raised by the i- sue of revenue bonds was to be paid by the Comptrol- ler to the parties entitled to receive the same upon the certificate of the officers designated. Although the com- plaint alleges that the money obtained upon the bonds issued was deposited to the credit of an account kept by the Chamberlain of the city of New York, as County Treasurer of said county, there is no statute authorising or requiring any such deposit, and therefore this allega- tion is immaterial to make out a cause of action, and this case must be considered as if the money remained in the possession and under the control of the officer named, for the purposes designated in the Act, until otherwise! lawfully disposed of. The money claimed wa> in the hands of the Comp- troller, to be paid by him. as required by law, to the parties who had ft lawful right to the same, and the bonds 122 upon which the money was obtained were subsequently taken up in pursuance of chapter 323, entitled " An Act for the Consolidation of the Debt of the County of New York," (S. L. of 1871, p. 031), and new bonds issued in the place of the old ones. The injury complained of, and for which redress is sought in this action, is for issuing bonds to a larger amount than was required for the purposes named, viz : the payment of liabilities against the county, and the ap- propriation of the excess of money which was thus raised by and for the benefit of the defendants. There was no Lawful authority to raise any amount of money beyond what was required for objects contem- plated by the Act of 1ST<». before cited. The amount which was realized besides what was required for the payment of debts, was not for the benefit of the county or to pay its liabilities, or to be paid into the county treasury for any purposes whatever. There is no law either for raising or appropriating anv such fund beyond the liabilities of the county; for if six millions or any lesser sum could be raised in this manner, then one hun- dred millions, or any other unlimited amount, might be thus obtained. So far, then, as the money appropriated by the defend- ants is concerned, it was procured without any lawful authority, and. in fact, in direct violation of law, as the Act under which it was supposed to be obtained does not sanction anv such proceeding. It was only legal debts, honest and bona fide liabilities against the county which were to l>e audited and provided for by the issue of revenue bonds, nnd none but these demands would properly come within the provisions of the law. The defendants, then, were in possession of funds with- out any legal sanction whatever. As they were not ob- tained for the benefit of the county, nor lawfully paid to its proper officer, 1 am inclined to think that the county was not the owner and never had lawful control over the money, and it never was within its lawful custody. While the county is liable to the innocent and bona fide holders of the bonds, issued by its proper officers in due form, acting under color of authority, it by no means 123 follows that the funds thus unlawfully obtained, and which never had been lawfully paid over to the county or for its benefit, were the property of the county. Even if it be conceded that the county, in its corporate capacity, can sue. as it was neither the owner nor in the lawf ul possession of this money, it could not maintain an action of the character of the one now before us for its recovery. The taxpayers can maintain nosuch action, nor in any form demand redress, as has been adjudicated by the Court in numerous cases. (Doolittle Supervisors of Broome county, IS N. Y., 155 ; Roosevelt vs. Draper, L6 How., 137; 23 X. V.. 324. See also 12 Peters, 1<»0.) The future taxpayers who may be called upon to pay the bonds, who are at present unknown, and some of them not in existence, are the parties really interested, and they cannot prosecute for the reason that is not known who they are or may be. Unless this action can be maintained, there is, perhaps, no remedy. Assuming, then, as I think we must from the plead- ings, that the money was unlawfully raised, and that it was unlawfully received and held by the defendants, the question arises, and is the main question to he decided in this case, whether the people can maintain this action it is contended by the defendants' counsel, that the power of the Attorney General in England, as the repre- sentative of the Crown, to correct abuses or misapplica- tion of trust funds, by an information in equity, was confined to trusts for charitable u>es. and that funds of municipal corporations, which are not held for charitable purposes, are not considered as trust funds, but are re- garded as the property of the corporations, the >ame as estates of private individuals belong to them personally, and in such ease, the only remedy, prior t<> the English Act of 1835, for any misapplication or embezzlement, was by an action or proceeding in the name of the cor- poration. Assuming that the money in controversy was the property of the corporation of the city and county .>f New York, which, as already stated. i> at le.i-t exceed- ingly questionable, it is a matter of serious inquiry how 124 far the English authorities sustain the doctrine con- tended for. In The Attorney-General vs. Brown (1 Swanston, Ch. II., 265), which was decided in 1818, an information in equity w as hied by the Attorney-General against Com- missioners appointed by an Act of Parliament being au- thorized to levy a rate, not exceeding a certain amount, on the occupiers of all houses, cv;c., in Brighton, for pav- ing, lighting and w atching the town, and another rate on coal landed upon the beach, or otherwise brought into the town, for repairing or building works to protect the coast of Brighton against the encroachment of the sea, with power of distress for non-payment, &c. It was alleged that the Commissioners had improperly applied a large portion of the rate collected, and had dis- trained the goods of the relator for non-payment of the duty, and the information asked for an account and an injunction against an undue levy, and a direction that they replace any sums which they had applied to purpo- ses not warranted by the Act. A general demurrer, for want of equity, and a defect of parties, was overruled. The Lord Chancellor Eldou, at the close of the argu- ment remarked : u It is said that this is not a charitable use, and I am not disposed at present to consider it such ;" and in an able and elaborate opinion, after a full discussion of the case, he said, among other things: " I have heard nothing which prevents my concurring in the opinion that a parliamentary grant, destined to such pur- poses, is a gift to charitable uses. If that doctrine is contradicted, it must be done by higher authority than mine.' ' Although it is claimed that this case was decided on the ground alone, that there was a charitable use. that such was not the fact, appears quite distinctly from the case of The Attorney-General vs. The Mayor, &c 3 of Dublin, (1 Bligb, ]S. S. R., 312,) which is hereinafter particularly referred to. The next case, in the order of time, bearing upon the question, is The Attorney-General vs. Pleelis, (2 Simons & Stewart, 07). This case was decided in 1N24, by the then Vice-Chancellor, Sir John Leach, who had been 1 '2a counsel in the case of The Attorney-General rx. Brown. It was an information and hill in which ten persons were the relators and plaintiffs, on behalf of themselves and all the other tenants and occupiers of houses and other premises situate in Great Bolton, in the county of Lan- caster, subject to the rates of assessment, and entitled to the henetit of certain acts of Parliament, under which a common was enclosed and vested in Commissioners upon trust, to apply the rents for the improvement of the town, with power to them to levy a rate on the inhabitants in case the rents were insufficient. An account was asked of the rents, alleging misapplication, and that a rate levied was unnecessary. A general demurrer was interposed, for want of equity, which was over- ruled, on the ground, among others, that funds sup- plied from the gift .of the Crown, or of the Legis- lature, or of private persons, for any hyal pnblii- or general purpose, are charitable funds, to he administered by Courts of Equity. The case of the Attorney-General VH. Brown is referred to in the opinion of the Vice-Chan- cellor, Sir John Leach, who had been counsel against the information in that case, and the views expressed appear to have been based somewhat upon an erroneous con- struction given by him to the authority in the Attorney- General vs. Brown, which case, as will be seen, sustains a different doctrine. In the Attorney-General /•*. The Mayer. Arc, of Dub- lin, (1 Bligh, N. s. Rep., 312) decided in L827, aninfor- formation and bill was filed in behalf of the inhabitants of Dublin paying water rates against the corporation, stating various acts of mismanagement and misappropri- ation of funds arising from the rates, submitting that tne corporation were trustees under the Act for the rates thereby given, for uses which were charitable in their nature, and charging that the conduct <>f Lhe corporation amounted to a breach of trust, and praying, among other things, for a declaration and execution of the trust, and that accounts might be taken of the rates received by the corporation and the application thereof, that the wrong doers be decreed to repiaa tht money* they had wrong- fully taken or misapplied, Are. It was submitted in the 126 answer that the purposes specified in the Act were not charitable uses, and held, (reversing the judgment of the Court below,) that the Court had jurisdiction to entertain the information and bill. The decision of this case is not put upon the ground that it came within the statute in regard to charitable uses. Lord Redesdale, who wrote the principal opinion, at |'. 341 says : " It is expedient in such cases that there should be a remedy, and highly important that persons in the receipt of public money should know that they are liable to account, in a Court of Equity, as well upon the misapplication of as for withholding the funds. Sup- pose even the case of a public accountant, clearly within the Act, who, having embezzled 35 (5 and 6, W. 4, ch. 76), by which corporate funds were declared to be trust estates and funds of a public character, and the corpora- tions or local officers becoming trustees for the benefit of the public, who become beneficiaries under the provisions of the Act, and involved the construction of some portions of that Act. This fact does not, however, alter the law, as settled by previous cases, as to the right to maintain the action, even if there is not a trust in the nature of a charitable use, and does not impair the full and direct approval of the Lord Chancellor Eldon of the doctrine which had previously been enunciated. Since the passage of the Act of 1*35 the right of the Attorney-General to bring actions of a similar character has been repeatedly adjudicated in the English ( 'ourts. i See Attorney-General <:r rel, the Mayor, &c. Wilson ; same case. 4 Milne A: Craig 17: also. 2 ; the same vs. Compton, 1 Younge & Collyer, 417. i I do not consider it im. portant to review these cases at length, and will only re- fer to one of them, which directly bears upon the ques- tion discussed. The Attorney -General ?*. Eastlake (stipra)^ was an information tiled at the relation of two of the rate- pavers of Plymouth against a majority of certain commissioners, appointed under a local Act, who were authorized to lew rates fur paving, light- ing. &C, the streets of a town, and it was held that as the object was beneficial, not only to the inhabitants subjected to the rates, but also to other persons having occasion to visit the town, the purpose was public and charitable within the meaning of the statute of chari- table uses, and the question depends, not on the source from which the funds were derived, hut the purpates for 130 which they were applied. In this case the earlier au- thorities are examined and discussed at length by the learned Vice-Chancellor, who considered that the case of Ileelis was over-ruled, and that of Brown sustained by 1 Bligh. He argues, at page 216, that " all the cases agree that not only the particular public or general purpose* expressed in the Statute of Elizabeth are charitable, but that all other legal, public or general purposes are within the equity of the statute." After stating a case where an Act of Parliament is passed for a private purpose, and for the benefit of indi- viduals who are dealing with their own property, he re- marks, at page 222. Arc, " but when you come to the purpose of paving and lighting a town, which is for the benefit of all the inhabitants, &c," " one does not need to look at this recital, by which we are told that, amongst other things, there will be benefited The Royal Naval Hospital, The Royal Barracks and other pub- lic establishments. It is sufficient to say it is a large and general purpose for this town, although not beyond the limits of the town, and for that purpose certain moneys are to be levied. I cannot see that the source from which these moneys are here derived, namely, from taxation, can make any difference as to the charitable >) as an authority in their behalf, which, it is claimed, being a General Term decision of this Court, is decisive of the ques- tion. The action in that case was brought in the name of the People against the defendants, as railroad eonimisioners, to restrain them from issuing certain bonds, under an Act of the Legislature of this State, for railroad purposes, and it was held that neither the Code confers upon the Attorney- General the power to prosecute in the name of the People, nor has .he such power at common law. The learned Judge who wrote the opinion, main- tains the position that the only cases in which, at common law, the Attorney-General was authorized to interfere to restrain corporate action, or was a necessary party for that purpose, were those in which the act complained of would produce a public nuisance or tend to a breach of trust, for charitable uses. In this I think that he is entirely mistaken, so far at least as relates to municipal corporations, and he does not Sufficiently discriminate between public and private cor- porations, the difference between which should be home in mind in the examination of questions of this charac- ter. It is also apparent that he has entirely overlooked the 132 case of the Attorney-General vs. The Mayor of Dublin (1 Bligh, W. P., Rep. 312..) to which he refers at page 407. and savs : " I have thus referred to all the cases cited in the opinion of Duer. J., except that in 2 Bligh X. R., 312, which I have not been able to find." The case is wrongly cited in 2 Duer, 668, as well as in 2 Lansing, and hence was not at all considered by the learned Judge. As this case, thus omitted, gives a construction to the prior decisions, and, as already shown, settles the law up to that period, its omission destroys the force of th • People vs. Miner as a binding authority, even it it were applicable here. The fact that no effect is given to the Attorney-General vs. The Mayor of Dublin, and the latter case not having been ex- amined, discussed or considered, the case last cited is not decisive of the question now before us. It may also be remarked that the opinion begins with a decision that the merits of the action were ao-ainst the plaintiff, thus rendering it unnecessary to decide the ques- tion, which was fully discussed, and therefore it is obiter. This case also holds substantially that a taxpayer is the propei- party to bring such an action, which, if not er- roneous, is at least doubtful, as the General Term in the Fourth Department have recently held the other way. (See Mans, opinion. Avers vs. Lawrence.) With all the respect which I entertain for the distin- guished jurist who gave the opinion referred to. and with all the consideration which should generally be giv- en to a General Term decision, it would not be in ac- cordance with well-established rules to hold that this case, under the circumstances, was controlling and de- cisive. In the case of the Attorney-General vs. The Utica In- surance Company, (2 John. Ch. R., 371.,) also cited bv defendants, the right of the Attorney-General to main- tain an action against a private corporation was considered, but that authority does not. I think, decide the ques- tion here involved. It merely related to the jurisdiction of the Court over offences against a public statute, in re- gard to the business of banking, which arose on a motion made by the Attorney-General upon an information filed 133 by him. The remarks at page 384 were not necessary to the decision of the case, and the authorities cited mainly looked the other way. But conceding that the opin- ion expressed is entitled t<> consideration, it i> worthy of observation that the principle claimed to be upheld has been overruled in the English Courts by numerous subsequent cases. This case was decided in l s 17. while those which we have already, cited, as decisions of the law, were all determined at a far later period. The defendants a^so rely upon the language of Davis, J., in the People vs. Booth (32 X. Y., 398). This is not an analogous case, and the remarks there made were not called for in deciding the case, and therefore must he considered as an obitett dictum. It has been held that the Attorney-General may prose- cute on behalf of the State, or the State itself, where a preventive remedy is called for by the circumstances. (Davis vs. The Mayor of N. V . 14 X. Y., 526; The Same rs. The Same, 2 Duer, *><>3. See also 11 II arc, 223.) In 2 Duer. • >•'>•'>. 667, 66t3 (supra), the right of the At- torney-General, in the name of the people, to maintain an action for a public wrong, is fully and ably vindicated, and although the authority of the last case is questioned in the People VS. Miner. I am inclined to think that the views expressed by Duer. .I., can be upheld, as we have already seen, both upon principle and authority. In the People vs. The Mayor, etc. (32 Barb., L02), it was held by Ilogeboom, J., at Special Term, that where there was a clear violation of law. or a clear misuser or abuse of corporate powers, the people, as representing the general public, the body of citizens who are aggrieved, are the proper parties to enforce the remedy. In the People VS. Lowlier (7 Abb., l.">si, Ingraham,.!.. in- timates an opinion, that in such a case as was then be- fore him the Attorney-General might maintain the ac- tion. In the}People vs. The Mayor, t'.' Abb., 263), the Bame views are expressed by the same learned .Judge. In the People VS. The Mayor (1<> Abb., 144.) T. K. Strong. .1.. holds the same doctrine. 134 Although the views of these distinguished Judges are not entirely decisive, yet thev are entitled to great con sideration. There are also several cases which have come to my knowledge, which are not reported, which are directly adverse to the People vs. Miner, and which involved the precise question which there arose ; that is, whether the people could maintain an action restraining railroad commissioners from issuing bonds. In the People ex /■> /.. Leonard Proctor vs Swarthout, et (U, which. I understand, w as a similar action. Justice Mason, as Referee, held that the action could he main- tained, and in his opinion he says : "This action is proper- ly brought by the Attorney General in the name of the People, on the relation of Proctor. The right to prosecute and maintain this action is given by statute," tfcc. " The Attorney-General has the right to maintain this suit independently of the statute at common law;" and cites Story's Eq. PL, Sees. 8 and 49; Mitford's Eq. PI.. 31, 24, 32; Part. 102 ; Barbour on Parties, 307; Edwards on Parties in Eq., l>0 and * ► 1 ; Calvert on Parties, 301-308. In the People ex rd.. Thompson et a/, vs. Benedict et al, railroad commissioners, and others, which was an action to declare void certain bonds alleged to have been unlawfully executed by said railroad commissioners, a demurrer was interposed by the complaint, and sus- tained at Special Term. Upon an appeal at General Term in the Third Judicial District, before Justices Hoge- boom, Peckham, and Ingalls, in March, 1S7<», Hoge- boom, J., delivering the opinion, it was decided that the action was properly brought in the name of the People, and the demurrer over-ruled. The learned Judge said : " 1 think, under our statutes authorizing suits to be com- menced by the Attorney-General to restrain corporations from exercising unlawful powers, and individuals from exercising corporate rights and privileges not granted to them by any law of the State, and under the well-estab- lished powers of a Court of Equity, this suit is well hi •ought in the name of the people." This case involved the same question as the People vs. 135 Minor, and is similar in its leading features. The action could not be maintained without a decision of this very point in favor of the plaintiff, and as it is not apparent that any consideration bearing upon the question was overlooked. I am at loss to see how it can be disregarded as a binding authority. It is. at least, entitled to as much weight as the People rs. Miner. After a careful examination of the cases bearing upon the question considered, my conclusion is, that the action is properly brought by the Attorney-General in the name of the people, and can be maintained in its present form. Where a public right is infringed upon, the State, by the Attorney-General, may bring an action for the bene- fit of the people at large, or of a portion of the public. Such a rule cannot be confined merely to public nui- sances. Many wrongs may exist without a remedy, ex- cept through the intervention of the State, and it seems to me that there is nothing inconsistent with the prin- ciples upon which our government is founded and admin- istered, to allow the chosen officer of the people, in their own name, to prosecute an action of this character, hav- ing in view the protection of the interests of the public against those acting as trustees on the behalf of a municipal corporation. There is no pro- vision of the Revised Statutes, or the Code, inconsistent with such course of procedure, and I apprehend no danger can arise from the abuse of such a power, as it is always the subject of legislative restriction and regu- lation. This is the extent to which it is necessary to go to sustain the plaintiff's action. Nor is there, in my opinion, any substantial ground for claiming that the action cannot be maintained in equity because a money judgment is demanded. The Code has abolished the distinction between law and equity, and the equitable character of the claim is not less apparent because money was unlawfully raised and misappropriated. That the recovery of money may he a part of the relief demanded in an equitable action, is also abund- antly established by authority. This was a part of the relief demanded in the Attorney- General m. The Mayor 136 of Dublin ; and Lord Redesdale, in his opinion, as we have already seen, puts the question whether the Attomey- ( reneral conld not proceed by information " to recover the moneys so fraudentlj withheld or misappropriated." See, also, Attorney-General vs. Oompton, 1 Yonnge tfe Coll- yer's R., pp. 417, 426, 427. If an accounting can be demanded in such a case, it seems quite clear that where no accounting is required, because the amount misappropriated is fixed and deter- mined, that a recovery of the money in the hands of the parties may be demanded. If money could not be demanded in an action in equity, in cases of public trust, the equitable remedy would fail in many cases. If the view expressed are correct, then it is not neces- sary to consider the question whether the Board of Super- visors or the County, even if there was a right in either of these bodies to sue, has authority to bring an action on behalf of the County. In The 'Attorney-General vs. Wilson, (1 Craig & Phil- ips, 1.) before cited, where the wrong-doers were officers of the borough of Leeds, the Lord Chancellor expressed an opinion (at page 23) that although the Attorney-General might assert the right of the public in an information, "if before the Act passed, a corporation might, in a proper case, institute a suit for the purpose of setting aside transac- tions fraudulent against it, though carried into effect in the name of the corporation, that right cannot be affected by the Attorney-General having a power to complain of the transaction." According to this intimation there may, perhaps, be two rights of action which are not in- consistent. It is not, however, necessary to determine this point, and it is of no consequence, whether the count) 7 has the power to sue, if that right exists in the People. It is quite enough that the action ean be maintained, in its present form, in the name of the People, to uphold the complaint. Nor is it. in my opinion, necessary that the county should be made a party in order to maintain this action, were they entitled to the money. In m st of the cases cited, which related to the rights of municipal corpora- 137 tions, these municipalities were not made parties. Such was the fact in reference to Dublin, Brighton, Liverpool and Leeds. The averment of collusion in the complaint was not essential, and this, as well as such portions of the com- plaint as set forth facts not material to sustain the cause of action, upon the grounds already discussed, are redun- dant, irrelevant and immaterial. They furnish do ground for demurrer, and migh have been stricken out. if a mo- tion had been made at the proper time, or may now be disregarded as surplusage. The question raised, as to the disposition to be made of the money which may be realized if a recovery be had. is of no importance, if, as the authorities hold, the action can be maintained. It may. however, be assumed, I think, that the Legislature of the State, in its wisdom, will make such provision for its appropriation as will be just and proper, and the circumstances of the case de- mand. Some other questions are raised by the defendant?-' counsel, but these are not of sufficient importance to de- mand discussion. The order appealed from must be affirmed with costs, with leave to amend in twenty days after service of order, upon payment of costs. The decision of the case of The People vs. Connolly depends mainly upon the questions already discussed, and as no additional points are presented, which author- ize a reversal of the order in the latter case, it must, for the reasons stated, be affirmed, and the same order made in all respects. Potter, J., wrote for affirmance, and Parker, J., for reversal. 138 Potter, Justice : — This case involves, in all its deter- mination, simply the question of the legal sufficiency of the plaintiffs' complaint as a pleading. Eliminating all unneccessary verbiage of statement, the action is simply one brought against the defendants as trustees and pub- lic officers created by the Legislature. It is brought to recover moneys in their hands which, as is alleged, they, by corrupt and fraudulent conduct, and by unlawful combination and conspiracy with others, have appropri- ated to their private use; for breach of trust and for fraudulent omission of duty. The cases have been thoroughly, elaborately and ably argued, both upon oral and printed briefs, and we have given to the examina- tion of the questions a liberal share of time and the ex- ercise of our best judgment. The detail of facts set forth in the complainl shows the appointment to office of the defendants, and the maimer in which they obtained the moneys, and the manner by which, and the manner in which the fraud and conspiracy, and breach of official duty was accomplished. All these facts are admitted by the demurrer. To these admitted facts the defendants interpose four several defenses, the first of which, I think, only, it will be necessary to examine at much length. The second defence is, that the complaint does not state facts sufficient to constitute a cause of action. This, I think, has no merit. I do not stop to discuss it. A pub- lic officer has made a disposition of moneys in his hands, received for public purposes, in a manner unauthorized by law. In other words, he has been guilty of a breach of trust in the inisappropiation of such moneys. In such a case he ought to be made liable to somebody for mal- versation in office. A good cause of action clearly exists upon the facts as set forth. The third defense, " that it appears upon the face of the complaint that there is a defect of parties defend- ants in the omission of the Mayor, Aldermen and Com- monalty of the city of New York," is not, in my opinion, well taken. It neither appears in the complaint that the Mayor. Aldermen and Commonalty of 139 said city, as a body corporate. participated in the alleged fraud, conspiracy and breach of official duty, nor is it shown therein that such corporate body have any title to, or interest in the moneys so raised, and so fraudulently obtained and converted. The Legislature, in this Act, conferred no title to the moneys which came to the defendants' hands, upon such city corporation ; they are not named in the Act. and neither the sources from which it was raised, nor the agents by whom it was obtained, were made subject to the corporate control of snch Mayor, &c, or are liable to them for breach of duty. The fourth defence, that it appears upon the face of the complaint that there is a defect of parties defendant in the omission of " the Board of Supervisors of the counry of New York," is not, in my opinion, well taken. The complaint shows no title to this purloined money in the Board of Supervisors. They were not made the direct agent, or instrumen- tality, to raise it, to hold it in trust, to disburse it. or to render an account for it ; or. to call this special Board to account to them; nor did the statute confer any title to it upon the Board of Supervisors. They were not made responsible for its honest appropriation, or required in any manner to intermeddle with it. or with any balance or surplus of it remaining over ; nor were they authorized by suit or otherwise to call the commission who were en- trusted with it, to account, or to prosecute for any fraudu- lent embezzlement, larceny, or mismanagement of the fund so authorized to be raised, nor for any breach of trust, or of official duty in regard to it. They were not made liable to pay the bonds. Nor does the fact that they, the said Board of Superv isors, were made the sub- ordinate instrumentality, by the statute under the taxing power of the government, to levy a tax at a subsequent day, for the payment <>f the bonds so authorized to be issued, and upon which the money was raised, confer any title in them to the moneys so dishonestly obtained, and retained by individuals composing the Special Board of Trustees, or quasi corporation, created by the Legislature for that special purpose. 140 If it shall turn out that the State is authorized to bring this action against the wrongdoers alone, then this objection is immaterial ; then the action is properlv brought against this Board of Auditors for the abuse of their public, trust, and against their co-conspira- tors. If the Attorney-General is not authorized to bring the action then this objection also becomes immaterial, rhe action, must fail upon that ground. This brings the examination, really, to the only question in the case, the right of the people to bring the action. The County of New York, previous to the passage of the act in question, like other counties, had a prescribed general system of government, and had also a regular or- ganization and method of raising means for the discharge of its liabilities, and the management of its financial in- terests. This system was peculiar to itself, certainly — some- what variant from that of other counties, because of its different and peculiar condition ; but it was a system in- tended to be suited to its own special necessities. It was, nevertheless, its own particular, but general system. The act in question was, in one particular, a mw and as its title expresses it, " a farther provision for the govern- ment of the county." This new provision did not employ any established re- gular organization to that end. but created a new Board with special powers to perform certain special acts, which, when performed, of course, exhausted the powers conferred upon this special committee. In performing these specified acts, they were, by ope- ration of law, constituted trustees of the moneys so to be raised. True, the organization called the Board of Su- pervisors, were directed in the Act, to provide, by the usual method of taxation, the means to pay the moneys for which this special commission should create a neces- sity; but the Board of Supervisors were thus but the sub- ordinate agents of the special commission. It was in the pretended performance of the duties imposed by this special act, that this specially constituted Board commit- ted the acts charged in the complaint. It will be seen that this Auditing Board, instead of personally performing 141 that duty, delegated their trust, hy a resolution passed by them on the 5th of May, 1870, and resolved to take the certificate of their delegate, as a substitution for their duty in this regard ; in other words, refused to person ally perform the duty. The Legislature, under the provision of Section 2 of Article X of the Constitution, bad power lo create, and created, a new hoard of officers, and conferred upon them special powers, authorizing them to perform certain acts and duties. This Act was without any express provision for the accountability to the said Board of Supervisors, or to any other body. The legislative power in this respect is sovereign. The right of taxation is a power inherent in the Govern- ment, and may he legitimately exercised in the way pro- vided by this Act; and it is not restrained by the Consti- tutional provisions, that private property shall not be taken for public purposes without just compensation, nor from providing just such a system of taxation. Taxation is based upon the principle or theory, that the tax-payer receives a corresponding benefit from the object for which the tax is raised, or on which the tax is to be expended. In the case at bar, the statute assumes that there were liabilities existing against the county of New York which it was the duty of tax-payers to meet ; it appointed an in- dependent commission or special board of three individ- uals, who were required to audii sucli liabilities, and con- ferred upon tliem the power to raise the means of pay- ment thereof, by the issue of revenue bonds of the county of New ^ oi k, separate from every other known organ- ized system to that end. It then provided a plan of tax- ation through the Hoard of Supervisors of said county, a^ one of the instrumentalities of this new s\ stem, to pay the said bonds. No moneys were obtained or to be ob- tained in any other method than from the sale of bonds; and no more mone\ could lawfully he raised than just sufficient to pay the claims that were to be audited. (Though it was conceded on the argument that new bonds had been issued under the Act of 1871. having a longer period to run, as a substitution for the bonds of 142 187", upon which the moneys were raised ; the fraud alleged to have been committed was in the issue of the first bonds.) These provisions, together, completed a special system of taxation upon the tax-payers of the county of New York. It was upon the face of the statute, for the legitimate purpose of relieving the taxpayers from a then existing liability or indebtedness. The omission of the Legisla- ture to provide in this enactment a plan, or provision, by which to call the agent of this system to account, and guard against the abuse of power conferred, created no right or title in any other known organized body of men, corporate, or quasi corporate, to sue for the abuse of trust, or for the moneys which have been fraudulently appro- priated by the members of the special commission. The statute conferred power, without any accountability, to the Board of Supervisors ; but surely, we cannot assume it to have been the intention of the Legislature to place this body of commissioners, and the trust committed to them, above the power of the law to reach them ; or the trust committed to their care, to be beyond its protec- tion. We must not assume that the jurisprudence of the State is so defective and inefficient ; or, that the Legis- lature intended to permit these trustees to appropriate to their own use the money intrusted to their charge for other purposes. This, doubtless, was an abuse, or omission in legislation ; but 1 can find no more legal reason in this case for join- ing the Board of Supervisors as defendants, than of joining the Boards of Police, or Fire Commissioners. The Boards of Supervisors were a mere instrumentality to carry out the behests of this special commission. People v. Flagg, 46, N. Y. 405. It may not be denied that this money, in moral right, and in equity and good conscience, should go into the treasury of the county of New York, and be applied to the extinguishment of the bonds so fraudulently issued and so unjustly imposed upon its taxpayers ; and in that moral sense the county has an interest in obtaining the moneys to that end. But before this Court, it is the 143 legal right of this county to he made Bach party, that is the question. It is the absence of any U'gal title and legal interest conferred by statute law ; it is in the absence of all legal statute reme- dies, by which they can obtain this money ; and it is the act of collusion and conspiracy of the officers composing the organized authorities of the city and county that represents her legal interests, and which re- fuses to prosecute the offenders. It is these causes which take from the county the power as well as the disposition to prosecute, which presents the legal question as to the necessity that the county should be represented. That it would have been most appropriate and wise for Legislature to have made a provision in the Act rendering this special Board liable to account to the Hoard of Supervisors, is, and may well be conceded, but it is not in the power of this Court to supply the defect It is not within the legitimate sphere of judicial action to add what the Legislature has omitted. Judicial legislation is ever (as it should be) odious. The Legislature chose to create a special Hoard without providing for their accountability to any one. Now, are we any the more called upon to travel beyond our sphere of duty, in order to answer the repeated interrogatory, "To whom does this money belong?" That question is not raised by the demurrer. It would be equally legiti- mate to enquire, Does it belong to the defendants !; and more appropriate to enquire, Does it belong to the Board of Supervisors? Can they bring suit for it ? Hut two questions really arise in the case in testing the quality of the pleadings, viz : 1st. Is a cause of action set forth in the complaint I and. 2nd. Is the plaintiff authorized to bring the action j What shall become of the money when recovered, is not in issue. This inquiry is calcula- ted to divert the mind from the only legitimate questions in the case, \iz : Is the pleading good? It suffices upon this point that we are unable to see, as is alleged, that the Board of Supervisors have a title to the money sued for, which imperatively requires that they should be made parties defendants. It is claimed by the defendant's counsel, that the in- 144 terest <>f the Board of Supervisors is shown in the fact that the first deposit of the money raised upon the said bonds, having been made with the Chamberlain of the citv of New York, who, by virtue of his office, happens to be, and is, County Treasurer, gave title to it to the county. To this it may be answered, this special Board only, being responsible for the money, had power to deposit the proceeds of such bonds in the bank, or other safe or convenient depository, and to draw it out again, accord- ing to any plan or system they chose to adopt. No person had a right to use or apply it. except upon the authority or order of this Board, by their proper officer, to whom it was entrusted. If this special Board or commission chose to select any bank, or any city or county officer, or other instrumentality, for convenience for deposit or payment, according to a prescribed form, such a selection by uo means changed the title to the money. It was the Comp- troller only, who was to raise the money, and he alone was to pay these claims, and they were to be paid by him by moneys to be raised upon these bonds. He was the sole custodian of the money, not the County Treasurer. This was a fund created by a special Act ; it was to be paid out only upon the official act of an audit by the Board, of which he was one. It was to be applied to a specific public purpose, and was payable only by a des- ignated public officer, appointed for that express purpose by the State. This appointment made him a trustee of that fund. If he paid it into the county treasury in any other sense than as his depository, it was so paid contrary to law, and no title thereto by that Act was conferred upon the county. If the Act of the Legislature did not create or designate this fund to be one for which the Board of Supervisors was not responsible, or confer upon them an interest in it, the act of the Comptroller, in selecting a city office as a depository, did not work a change in the title to it. So, too, it is claimed, that the form given to the bonds issued by this special Board, it being in the name of the county, and binding the county to its payment, and the form of its authentication being that the Board of Su- 145 pervisors had caused the same to he signed by the Comp- troller, and countersigned hy the Mayor, and sealed with the common seal of the Board, is all l>ut conclusive that moneys to he raised thereby were moneys of the county, for which moneys only the Board of Supervisors could bring an action. The statute, created the county liability to pay the bonds ; hut I am unable to see that this special Board of Trustees, by an action of theirs, or by the forms they employed to carry out the object of the statute, had power to change the title to those moneys, or that the agencies or instrumentalities they employed in its management could have the claimed effect, even if that Board had intended thereby to effect such a change. Equally immaterial i> it. in determining this demurrer, to inquire what is to he done with the money when recovered I It is not a question raised by the pleading. If the Board of Supervisors have no le»al title to those moneys, it would be equally pertinent to enquire, what would they do with the money if recoverd in their name '. The injury complained of, in this case, is not one that affects the corporate interest of the county of New York, or their corporate property. In contemplation of law, no money arising from this source was paid into the county treasury. None was authorized to be paid in. No money for this purpose has been drawn from the county treasury. It is an injury which doeh affect, and has affected, and in future will affect, the private interests of the future taxpayers of said county; but the parties so injured, it is well conceded, have no remedy by action at law for the injur" sustained. Doo- littlc v. Supervisors of Broome County, 18 N. V.. 155. They can neither individually, nor jointly, nor in any corporate capacity, as present taxpayers, bring the action. Attorney General r*. Hastlake 11 Hare R., 225, »/ 160. I'p to this period of time, no direct private interest has been invaded. I understand the rule to be this. When an offence against the public has been committed, which includes a private injury, the private injury may be pro- secuted for, in the name of the injured individual ; but U6 not so when the injury is not peculiar to himself, but affects a whole class of citizens alike When the grievance consists in the illegal exercise of official public functions, it then requires that the action be prosecuted by the officer who has been appointed by law to sue in suah cases. The Act of the Legislature, upon its face, is a legal and valid Act. It employed the in- strumentality »>f a special board of officers appointed by the so\ ereign power of legislation, to raise sufficient money in a specified manner to discharge certain liabilities; but it did not constitute any other body of men a forum or tribunal, to which they must account. Nor did the Legislature confer authority upon any other Board to vindicate the individual rights of the injured taxpayers; or give standing in Court to anybody to sue for abuse or breach of trust. Assuming that the Board of Super- visors of the county of New York have corporate capa- city like other counties, their powers of suing and being sued are both conferred and limited by statute. They can only sue and be sued in the manner prescribed by law, (1 li. S. Marg., p. 364, § 1,) and no county, through their Board of Supervisors, shall possess or exercise any corporate powers, except such as are enumerated in the Revised Statutes in the same chapter, or such as shall be specially given by law { Id. S. S., 2). No power is found created by law which confers upon the Board of Su- pervisors the right to sue or be sued for such misconduct as is charged against the defendants in this action. Even the power to sue and be sued is limited. They are not liable to be sued for debts due by the county. (Boyce /•. Supervisors Cayuga, 20 Barb., 295 ; Chase v. Saratoga, 33 Barb.. 607 ; Martin v. Greene, 29 N. Y., 647.) If they cannot sue or be sued for this fraud, how can they be sued for the moneys obtained by it '. How can they be necessary defendants '. I am not able to see in the fact that because the future taxpayers of the county of New York are made to pay liabilities, through the form of taxation, by reason of the bonds issued by this special legislative commission, that the Board of Supervisors, therefore, became parties in interest in the moneys so obtained upon the bonds, and so 1 147 fraudulently appropriated by the defendants. Nor ean I see in the fact that the Hoard of Supervisors are made one of the instrumentalities of raising, by taxation, in aid of this special commission, the means to pay such bonds, that they, as a corporation, ha\e an interest in the moneys previously obtained and previously eon- verted or stolen. They are made the Subordinates, not the superiors of this special commission. The whole plan or system of raising the money in question was a new and special legislative scheme or device. The board created, acted under the authority, if not by the com- mand, of the sovereign authority of the State. The au- thority was to issue bonds, raise money and pay liabilities. But it cannot be held that because the taxation to meet the liability created for that purpose, was to be effected through the instrumentality of the Hoard of Supervisors or other officers named, that the latter had any interest in the fund so to be raised. Xo objection is raised by the demurrer, that the tax- pavers of the county, who are to pay the bondholders who advanced their money, are not made parties defend- ants, and we therefore take no time to discuss such pro- position. We proceed, then, to the real point in the case. The first objection raised by the demurrer, L regard as the main and real question, viz: "That it appears upon the face of the complaint, that the plaintiffs have not legal capacity to sue in this action." The action is brought by the people of the State of New York, by their Attorney-General, as plaintiffs against the defendants, for neglige ce of official duty, and fraudulent misconduct, and for, by a conspiracy, fraudulently obtaining and receiving, and fraudulently appropriating the moneys raised by them as public officers, under authority of a statute of the Legislature of the State. The negligent omissions and the fraudulent breach of duty by which the acts were committed, are sufficiently stated in the complaint, and are sufficient to create a liability in favor of the proper party ; and the demurrer for the purpose of this review admits the facte charged. The simple question then, is, can the Attorney - (ieneral of this State bring and sustain this action 148 in the name of the people of the State ? Has the State, in its character of protector, and as the natural and governmental defender of the whole people and of each class and portion of them, a right to inter- vene by action, to that end ? The counsel for the de- fendants meet this question, first, by citing the 111th Section of the Code, which provides that every action must be in the name of the real party in interest, &c, and insist that the people of the State of New York have no interest therein. It can hardly be claimed that this provision of the Code destroys the right of the State of Xew York to bring actions in behalf of the people in all that class of cases in which, at common law. that right then existed. Nor, that it extends to that class of actions, or to actions which cannot be brought under the practice estahlished by the Code. The 4fiSth section of the Code ex- pressly provides, that if a case shall arise in which an action for the enforcement or protection of a right, or the redress or prevention of a wrong, cannot be had under that Act, the practice heretofore in use maj be adopted, so far as may be necessary to prevent a failure of justice. This would be just thatcase. But the right of the Attorney-General to prosecute was netiher conferred nor taken away by the Code. It does not abrogate his right, and is not repugnant to its exercise. In this particular. 1 concur with theopinion of the Court in the People vs. Miner, '2 Lansing 399 — " that there is nothing in the Code which manifests the intention to take from the Attorney-General any of his common law powers/' Another of the answers to this position, is, that it was a rule of the English common law that the Attorney- General is a necessary party in all suits in which the Crown is interested, and in this State, by our statute (1 Rev.. Stat. Marg., p. 1 79.) it is made the duty of the Attor- ney-General to prosecute and defend all actions in the event of which the pi ople of the State shall be interested. This places him, in our State, in the same relation to the government as does the common law in England. 2d. The complaint alleges, and the demurrer admits, 140 that the State, acting through its Legislature and upon the faith of the State, has authorized a special hoard or commission of officers, appointed by itself, one of whom was authorized to issue certain bonds, and upon which bonds the credit of the county of New York is pledged that they shall be paid at maturity, that such bonds have been issued by such appointee and officer; that the proceeds have been stolen, appropriated, or em- bezzled by a conspiracy of the said appointees or public officers and certain conspirators; that the proceeds are traced to the hands of the defendant ; that the county of New York, through the proper and legitimate authorities, has exhausted all means of taxation, by all the means provided by law, to pay the said bonds, and that they cannot pay them ; that such bonds can only be paid by another exercise of the sovereign power of the State, through further measures of taxation ; or, by an action brought by the State, by their Attorney-General, to recover such proceeds from the hands of the officers so appointed by the sovereign power, and that this peculiar necessity and state of things imposes upon the State the political obligation and duty to exercise the right of the people acting through their Attorney-Gen- eral, and according to the Jaw of the land, to bring this action to demand and recover possession of the proceeds of the said bonds, now so unlawfully in the hands of the defendants, and this duty and necessity, it is claimed, shows such an interest in the people, as authorizes the bringing the action in their name It is also alleged in the complaint, stands admitted, and is viewed as another necessity for bringing the ac- tion, that the defendants, acting in fraudulent collusion with the local authorities of said city and county of New York, to wit, with the Mayor. Aldermen, and Com- monalty of the city of New York, of which corporation the defendant Connolly is an officer, and with the Board of Supervisors of said county, of which body the defend- ant Tweed is a member, with the purpose u> impede, embarass. and delay, and if possible, to defeat any action in behalf of the people, and to enable the de- fendant to escape from the pursuit of justice, through 150 the direction of the Mayor of the City Hall, he, the said Mayor, directed the Corporation Counsel of the city of New York to commence six several actions against them- selves in the Supreme Court ; three in behalf of the Mayor, Aldermen and Commonality of the city of New York, one against each of the defendants, Tweed and Con- nolly, and one against Hall, the Mayor, solely ; and three other actions in behalf of the Board of Supervisors of the county of New York ; one against each of said last named defendants, and Hall, solely; that the said six actions were intended to embrace, in point of form and substance, claims for satisfaction of all the frauds of the defendant Tweed, official or otherwise, mentioned or re- ferred to in the complaint in this action, and all other liabilities of the said Tweed, Connolly, and Mayor Hall, for which any action might be obtained against them, or any of them ; but that the said six actions were com- menced fraudulently^ — in bad faith, — and will not, and cannot be prosecuted fairly, beneficially, or usefully to the said people, or to any public interests, inasmuch as the said Hall ( who directed the said actions) is governed by such evil designs and intents, and has complete con- trol over the said Counsel to the Corporation. And they further allege that no other suit, action or proceeding can or will be had or taken by any other officer or au- thority of the said city or county, for the purpose of re- dressing the said frauds and wrongs against the people of the State of New York, and its authority, and the rights and property of its citizens, or of recovering the public moneys, so fraudulently appropriated by the defendants ; but on the contrary, the said Hall, Mayor, &c, and all other officers of said city and county, having any power or authority in the premises, intend and design to prevent any such action, suit or proceeding, or any redress or re- covery. This fraudulent combination and collusion of the de- fendants with the local authorities, is alleged as a fact, and is urged as another reason why it became the duty of the people to institute this action in their name. This allegation must also be taken to be true. Not less so here than in England, is the Act of a public body, 151 corporate or incorporate, acting as trustees for the public interests, which affects injuriously a whole commnnity, a public wrong, which the sovereign power is hound redress. I think it may he laid down as a legal propo- sition that when a public right or interest is invaded, which requires vindication by judicial proceedings, and especially in cases in which either no other remedy ex- ists at common law. or when by collusion, or by fraudu- lent design, the constituted authorities, whose duty it may he to bring an action, refuse to prosecute, the Attorney- General representing the State in its sovereign capacity, may sue, and that whether the injury to the public in- terests affects the whole people, or any particular or limited organization of them. If this be not so, there may be wrongs without remedies. There is a class of cases in the English Court of Chan- cery, where it is found that the sovereign power inter- venes to represent the injured parties, for the reason that they are prevented from comilig*intO the Court upon their own account, and no other legal party can be found to represent them. Attorney General VS. Compton, 1 Young & Collier. 417; but without such judicial authority, I think the principle is elemental. It would. I think, be a reproach indeed to our system of jurisprudence, to declare, that it provided no remedy for such an atrocious wrong as that complained of in this case, and as is admitted upon the record. Unless the statute cited by the defendants, cuts off all remedy, 1 think our jurisprudence is not subject to that reproach. Can it be admitted that the sovereign power of this State is without the power or without a remedy to pro- tect itself and its citizens against the wrongs committed by its own agents appointed to perform a public trust ? The only question then is, can that remedy be enforced by the plaintiff I The anomalous character of the action, or the novelty of the particular complaint, in which the cause of action is set. forth, is no objection to its main tenauce, provided the injury set forth is equitable, by law; shown to have been inflicted, and is one for which the people, as plaintiff, can bring the action. The I.VJ statute, it is claimed, requires the real party in interest to bring the action. Assume then, that there must he a real party in interest. What is the character of that interest? And who is that real party '. It is not the suffering tax- payers, as we have shown. Who can be such party '. No taxes have yet heen paid on this account : it may be, that not one of the present tax-payers may he such, when the tax shall be assessed, or when the bonds become due; and they cannot now allege that an injury is done to them. If it were so, still it is settled that they could not maintain the action. Doolittle vs. Supervisors of Broome Co., IS X. Y., 155. Roosevelt vs. Draper, 23 N. Y. ; 318, 823; 29 X. Y.,647 ; 33 Barb., 607. Our laws furnish them no relief . The statute, under color of which the fraud was com- mitted, was a valid statute upon its face. Xo subsequent larceny of the money by these officers changes its validity. It is not the bondholders who have advanced their money in good faith, under the provisions of a valid statute, that can bring the action. As yet, they have not suffered ; besides, the faith and credit of the eoiinry of New York is legally pledged for the payment of the bonds. They sustain no injury until the maturity of the bonds, and default in the payment of interest. 18 Wend., 28 and 77 ; 34 X. Y., 30. It is not the city corporation, as we have already shown. It is not the body called the Board of Supervisors of the county, as we have also attempted to show. They have no such interest as entitles them to sue for the alleged fraud and breach of official duty of another independent Board. It is not a fraud against that quasi corporate body. They are not made by law the general guardians, or protectors of the rights and interests of the people of the '*ounty, or clothed with authority to sue for injuries inflicted upon them ; much less are they the guardians of that distinct and separate portion of the people called tax-payers of the county. The grievance is not common to all the people: many of the inhabitants are not taxpayers, and there are doubtless many taxpayers who are not inhabi- tants of tiie county. That portion who are not 153 taxpayers are in no way interested in the question. Town of Guilford vs. Cornell, 18 Bark, 639. There- fore the importance of holding the Hoard of Super- visors strictly to the powers conferred upon them by statute ; and the power to sue and be sued, is only in the cases so expressly authorized. They possess no common law powers which authorize them to sue ; and neither by common law, or by statute, is this Hoard the representative of private interests. See City of Georgetown v. Alexandria Canal Co., 12 Peters. 9$, 09 ; 16 Ohio State R., 320 ; 7 Ohio, 12 (Hammond) C.md.. 366. The injury is not one affecting the corporate treasury of the county. The injury consists in the fraudulent issue of bonds by the Board of Auditors, to an exces- sive amount. Had they been issued for only the true amount, no injury would have occurred. The moneys raised thereon was not for the corporate treasury of the county. The Hoard of Supervisors had no right to ex- ercise control over it, or over the officers authorized to raise it, or to apply it to county purposes. The excess of money raised by this Special Board of Auditors, certainly was not raised 1>\ authority of law. or for the henefit of the county ; nor for certain creditors of it ; and it cannot be shown that any power <>r authority exists at law, by which the county, or it> Hoard of Su- pervisors, became possessed of a legal title thereto, for which they could bring an action, or were made liable to an action upon the bonds, or for the money raised thereon ; and I find nothing in the Act of I m'>4, chap. 405, that applies to, or changes the effect of the pro- visions of the Act under which the alledged frauds were committed. This Act of 1864, upon its face, makes each tasepayer a cestui tjue trust, equally of the Common Council of the city, and of the Board of Supervisors of the comity. Hut of what '. It also makes each of those organized bodies, equally, and makes the several members thereof, trustees of the taxpayers. Hut of what does it make them trustees ? "Of the property, funds, and effects of said city and county, so far as such property, funds and effects are, or may be committed to their charge 154 or control." If tin's was a valid Act. which is denied ; if it was in full force and had application, which is also denied, it was still an Act subject to be changed by the Legislature, and this is what was done. The Legislature, by the Act of 1S7<», took from these organized corpora- tions, and the members thereof, the trust so committed to them and to their charge, and conferred the trust and committed all such property for a specified purpose to a new commission, authorizing ihe latter to create new liabilities upon the taxpayers. To this extent the Acts of 1S70 dissolved the trust committed to the Common Council and the Hoard of Supervisors, so created by the Act of 1864 ; and the Act of 187<» omitted to make the cestui que trusts of "this new commission, the Board of Auditors."' or of any one of them. So that neither the Board of Supervisors of the county, nor the Common Council of the city, could be accountable as Trustees, for the acts of the Board of Auditors, and therefore neither has any interest in those moneys as trustee, so as to entitle it to sue for them. Nor, do I think the Revised Statutes (vol. 2, page 473, marginal paging, § l n 5, (92), extends to this case. That section only gives authority to the Board of Supervisors to bring actions upon contracts made with them, or their predecessors in their official character / to enforce any liability or duty enjoined by law, to such officers or the hotly which they represent, and to recover damages to the property or rights of such officers, or the body they represent.' If I am in error, in this construction, as it will be shown hereafter, it does not affect the right of the At- torney-General to bring this action. This special commission appointed by the Legislature, whether or not they were a corporation or a quasi cor- poration, it is not material to inquire. It is sufficient to say, they were created by an Act of the State public officers, and were invested with certain specified powers as such, to be exercised for special and limited purposes ; but it was. nevertheless, clearly a public trust, to be exe- cuted for confessedly public purposes. They were not created the agents of the county of Xew York, or of the 155 Board of Supervisors in their corporate capacity. Lorri- lard r. Town of Monroe, 1 1 N. V.. 3!>5. The county could not he sued or made responsible for the manner in which they discharged the dn ties of their offices, for their breach of duty, for misfeasance, or nonfeasance, or for frauds,'collusions, conspiracy, or embezzlements of money. This Special Board of Audit were not county officers. See Constitution. Art. 10, ^ •>. As the Legislature possessed the power under tins article and section of the Constitution to appoint these officers, they were as truly public officers when so appointed as the highest official functionaries in the State. The Legislature, under the Constitution, had no power to appoint or make "county officers." Nor had this Hoard of officers power in the exercise of their functions, to act as " county officers.'' Sheboygan Co. v. Parker, 4 Wallace, U. S.. Even though the exercise of their powers did relate immediately to the interests of the county. How, then, could any organized body of county officers call them to account I Nor is it necessary to call them State officers because they were appointed by the State; it i> sufficient that they were public officers — ad- ministrative officers. How, then, can the Hoard of Su- pervisors of the county be a necessary party defendant I Who, then, can bring the action to defend this wrong? It was within the province of the government of the State, by legislation, to pass acts to provide for the wel- fare of the whole Community, and secure the welfare of all her citizens, or of any limited portion of them, or of any municipality within it. The power of the govern- ment over all the property within its limits for this pur- pose, was never surrendered, and the government of the county of New York is only a part of the State organ- ization to that end. subordinate to that id' the State. People v. Flagg, 4(5 X. V.. 4"4 .">. The municipality of the eoiintx of New V<>il< cannot allege that the legislation in question was not fur the public good. The Legislature i> the complete and final judge of what the public interest and general good re- quire to be done, and of what is needed for any particu- lar purpose. They devised this new machinery, under 156 the taxing power of the State, and they conferred upon their appointees important public functions. The right of the Board of Supervisors to exercise power over the property within her limits is only to the extent conferred by statute, and is subordinate to and subject to the su- preme authority of the State, so far as the latter chooses to exercise her power by legislation within con- stitutional limits, for the public interest. Id. When the State has so exercised her power by legislation, and by the selection of its own agents or officers, unless such new officers are made accountable to the local organizations of the county, the latter possess no power over them. (The town of Guildford V. The Supervisors of ( !henango, L3 X. Y., 149 ; Davidson, Mayor of Xew York, 2 Robertson's R., 244.) It is not because the acts of this new Board, under pro- visions of this statute, leads to taxation of its citizens, that the money previously obtained by this Board creates it the public money of the county. If the trust had been faithfully executed by these officers, there would have been no money belonging to the county of Xew York ; and it is not made plain that moneys obtained by breach of trust and by the frauds, conspiracies and collusions of this special legislative Board, enure to the benefit of a local organization, and thus authorizes them to sue or be sued. The means in- tended to be provided by this Act of the Legislature, if honestly executed, was reasonably adapted to the pur- poses in view. It did not anticipate or authorize the possession of moneys, beyond the actual needs, to pay ex- isting liabilities. These debts and liabilities are paid. All beyond that was obtained by fraud ; in fraud of the law ; in fraud of the trust, and by fraud of these public officers against the future tax-payers. The Board of Supervisors obtain no title to these moneys by reason of such a fraud; fraud does not con- fer title, nor does its results enure to the benefit of this corporation. The Board of Supervisors had no control over the legal acts of this Board of Auditors. They have none over the moneys they obtained by their illegal acts This excess of money, beyond the necessities of the law, 157 was not raised by authority of law. or for the benefit of the county of New York. The title to this money is no better than if it had been stolen. It is entirely unlike the eases of money raised by taxation through the regularly constituted authorities under an illegal tax or assessment, and the proceeds paid into the county treasury, or ex- pended for the uses of the county. Newman vs. Suiter- visors of Livingstone County, 45 X. V., 676 ; Bank of Commonwealth vs. Mayor. &c, of New York. 682 : People Ex. Rel. Mygatt, 11 X. Y.. 563. The machinery under which this outrage was com- mitted was created by State, not county, authority. It becomes the State to assert, if it may, its vindicatory power in bringing the offenders to justice. In nearly every organized representative body, corpo- rate or quasi corporate, who are entrusted with public funds, whose officers are annually or periodically elected, the body has continued existence notwithstanding the change of its officers. In these cases provision is made by law, as we have seen, for the incumbent of the office, in his own name or name of office, or in the name of the municipality he represents, to bring action for moneys in the hands of the predecessor in office. But such action can only be brought by virtue of statute authority. Nb such provision exists in relation to this Board of Audit. They have no succession ; they exhaust all their own powers as a Board ; and the statute has omitted giving the power to call them to account. In this it differs from the regular organization. The defendants place themselves upon the ground that the State has no right to bring the action. But if it be true, and because neither of the classes of citizens mentioned, nor either of the corporations or organized bodies named, nor any other officer or person, by statute, can sue these wrongdoers, or call them to ac- count for this official wickedness, the law. still, will not afford them impunity, and it is not to be held so weak or defective that no remedy whatever exists against the transgressors. (Adsit v. Brady, 4 Hill, 63(1.) The old common law maxim, " Uhi JtU ibi raiM- diuni" remains unimpaired. That there is no wrong 158 without a remedy in the jurisprudence of New York, is a doctrine I am prepared judicially to assert. This maxim was a part of the common law of England. It followed our ancestors here and became a part of the colonial law. It was adopted into the State Constitution of 1777, §35, and it has never been abrogated. Lord Coke says: "The law will, that in every case where a man is wronged and endamaged, that he shall have a remedie " (Co. Litt., 197.) This maxim was regarded so valuable in English juris- prudence, that the judges invented a form of action, pur- posely, to carry it into effect, called an action on the case ; and for its further security, the Statute of Westminster, 2, in the 13th year of Edward I, Chap. 24, was passed to quicken the diligence of the clerks in chancery, whose duty it was to invent precedents in new cases under some right, requiring a remedy. This statute, 13. Edw., gave direction to the Clerks of Chancery to agree in making such writs; " or the plaintiffs may adjourn it until the next Parliament by consent of men learned in the law: a writ, it says, shall be made, lest it might happen after that, the Court should long time fail to minister jiistice to complainants.'''' From thenceforth, until the adoption of our State Constitution, and ever since, this maxim that " there is no wrong without a remedy," has been the doctrine of the English and American systems of jurisprudence. Here, no less than in England, and in the other civi- lized nations of the earth, is it the duty of the State, in its sovereign capacity, and as protector of its citizens against wrong, when no other method is appointed by law, to furnish a remedy. Lord Hardwicke, the distinguished Lord Chancellor of England, in the case of the Charitable Corporation agt. Sutton and others, 2 Atkyns, 406, said : " The tribunals of this Kingdom are wisely formed, both of courts of law and Equity, and so are the tribunals of most other na- tions ; and for this reason there can be no injury, but there must be a remedy, in all or some of them, and therefore, 1 will never determine, that frauds of this kind are out of the reach of the Courts of Law or Equity, for 159 an intolerable grievance would follow from such a de- termination." " Hot "•/'// 1 ever determine that a Court of Equity cannot lay hold of every breach of trust, lei the person be guilty of it. either in a private or public capacity." Lord Hedesdale, in the ease of the Attorney- General vs. The Mayor, Are., of the city of Dublin. 1 Bligh, N. S.. p. 341, said: "'If is expedient in such cases that there should he a remedy, and highly important that persons in the receipt of public moneys should know that they are liable to ac.-ount in a Court of Equity, as well for the misapplication of, as for the with- holding of funds." Then he supposes a ease of one having some charge of such funds, who embezzles or misapplies them, or who rendered imperfect or fabricated accounts of them, and said. •• Could not the Attorney-General, up- on discovery of the fraud, proceed by information to re cover the moneys '." In the case of Innes vs. Lansing, 7 Paige R, Chancellor Walworth said : " Whenever the Leg- islature creates new rights in parties, for the protec- tion and enforcement of which rights the common law affords no effectual remedy, and the statute itself does not prescrihe the mode in which the rights are to be pro- tected, this Court, in the exercise of its acknowledged jurisdiction, is hound to gvoe •. 6 Paige, 133. are instances. The rule laid down in Attorney-General vs. Coinpron, 1 Young »fc Collier, -117. is this, that where property is affected by a public, trust, it is in the hands of those who hold it devoted to that trust; and that the Crown is en- titled by its officer to intervene for the purpose of asserting, in behalf of the public and the public interest, that public light which probably no individual can be found effectually to assert, even if the interest were such as to allow it. 160 If this remedy in behalf of the State does not exist in this case, it may he safely asserted that there is no body, officer, functionary. <>r person found, upon whom the right devolves if this be so. then it appears to me. indeed, it must be said that the public are remediless against such wrongs, and it may then be proclaimed, that in the State of New York alone, that wise and ancient maxim of the common law. ujji jus >l>i reim-ilium, has been cast out of her jurisprudence. It does not follow, that because the State cannol be sued or made a defendant for the misfeasance of its agents that it is not liable to its citizens for such damage done to their interests ; and the State may be made trustee for the citizens in regard to such interests ; nor does it follow, that as trustee it may not, as plaintiff, sue to recover such damage. In this case, under the exercise of the taxing power, it has authorized its agents to take private property of the citizens; and to the amount of the excess of property taken, it is done without making just compensation. That the State can- not be sued, does not relieve them from liability for the damage which they have illegally and unjustly inflicted upon the public. The State may prosecute as plaintiff. The State, therefore, as we have said, owes a duty to the citizen to redress this injury and to dis- charge the liability so incurred. This creates uot only an inferest. but also a duty, to bring an action. See Coster vs. The Mayor, &c, of Albany. 43 X. Y.. 3!*9. The question returns, have the people of this State such an interest in this action that they, by their Attor- ney-General, may prosecute? We have no statute which defines or limits the powers of the Attorney-General of the State or which changes the common law. We have various statutes which impose new duties and confer new powers upon him, and there is one general provision making it his duty to prosecute and defend all actions in the event of which the people of this State are interested. His powers were well understood, as they existed at common law in England. He was allowed to prosecute, without limitation im- 161 pediment, or delay, all offences or matters that immedi- ately affected the interest of the State. Insulted the aov- ereign, scandalized the credit, or endangered the security of government. See Woodeson's Lect.. vol. 2, p. 335. And he was the especial representative of the Crown in tiling informations to correct abuses or misapplication of trust funds held for charitable uses, and of municipal funds, raised by local taxation for local purposes, which were regarded as funds of the proper administration of which the King, as u parens j>r the Legit- latare of the Colony of New York, a* did together form the Law of the said Colon;/ on the VMh of April, 177"'. shall be and continue the Ian; of this State, subject to such alterations and provisions as the Legislature of r 1 i i — State shall from time to time make concerning the same." While the Legislature have from time to time added new powers and duties to the office of Attorney-General, 1 am not aware tbat they have ever abrogated or changed any of the powers of this officer, that existed at Common Law in England and the Colonies, in relation to such sub- jects as we have above referred to, to wit : that of correcting abuses in the misapplication of trust funds for charitable uses, and which included /// uniciptU fkmttt roiled /<. rel. Proctor v. Swartout, opinion hv Mason. •I.; and another case arising in the third judicial district, in the case of the People ex. rel. Thompson /• Benedict, and others. This was at General Term, held by Etoge- hoom and Miller. Ilogehoom writing the opinion. The rule is the same in the English Courts. In the case of the Attorney-General vs. Birmingham and Oxford Railway Co., the Lord Chancellor said : " I have attended to all the cases that have heen cited, and they all fall within well recognized principles, that where act> are being done injurious to the public inierests. inasmuch as the public interests might otherwise he altogether; neglected, the Attorney-General has, in such a case, not in a case of private injury, the authority to represent the public. 8 Eng. Law and Equity, '24->. i'+7. From what I have said, 1 think the following conclusions may he adopted from the case, as it is presented upon the pleadings to us : 1st. That the case shows an existing cau&e of action ayainst the defendants. 2d. That under our system of jurisprudence, a remedy exists for this cause of action. 3d. That the Mayor, Aldermen, and Commonalty of the city of New York have no such interest in the action as requires that they should he made defendants therein. •itli. That the Board of Supervisors of the County of New York, have no such interest in the action, as re- quires that they should he made defendants therein. 5th. That by the law of the land, the people of the State of New York have such an interest in the action, as entitles them to prosecute t tie same. First, it is the duty of the people of the State to bring the action. Taxation, and the liability to taxation, through which the citizen contributes or becomes liable to contribute "t his property to demand.- of the State through the sover- 164 eign power of legislation for the public interests, is the price he pays for governmental protection, and for the safe enjoyment of the remainder of his estate. For this consideration, the State, as the sovereign, ow&s a duty to the citizen, to afford him a protection against injury and loss. These duties are correspondingly re- ciprocal. The duty of protection includes that of providing a remedy for injuries to person, life, liberty and property. In this case it is seen that the State, through its sove- reign power of legislation, and the appointment to office thereby of a commission of its own, has created a pecu- niary liability upon a portion of its citizens to an amount exceeding six millions of dollars. The commission so appointed, have, by fraud, by com- bination and conspiracy, and under color of such legisla- tion, created a liability upon such citizens to an amount greatly exceeding the demands to be met. or the public necessities. That such liability was created by the said State's commission, by the issue and sale < f bonds, for the amount of which the citizens remain liable to tax- ation, and the defendants, as such commission and of- ficers. b\ such combination and conspiracy with others, and by fraud and a breach of trust, have appropriated to their own use and retain in their own hands a large amount of moneys so obtained, which, in good conscience and equity, should be recovered by action, and applied to relieve the citizens from a portion of their said liability. In my opinion, it is not only the duty which the State owes to the injured citizens, but that it is the right, and within the authority of the people to exercise the right, and by their constituted attorney to bring the action to recover the moneys so fraudulently obtained and held; and I hold that this duty, coupled with the right and with authority to sue, is such an intere;-t in the action as i> acknowledged by the law of the land, and such as relieves it from all objection mi this ground, if such ground could be urged, and I think it cannot 1 think it i< not necessary in such a case, in an action tor a bi each of trust, to show that the State, as a corpo- rate body, has the title to, or a corporate, or even a pecu- 165 Diary interest in the moneys sued for, to entitle it to bring the action. That is not the basis of its riglit or dutv to prosecute. That is not the ground upon which the State assumes to stand. The right to bring this action, if it exists at all, is the well-established rule of right and duty by the common law ; the duty of protect- ing public interests against public agents invested with trusts. This liability of public agents may arise as well from acts of omission as of commission. It was said of Lord Ilardwicke. in The Charitable Corporation V8. Sutton, % Atkyns. 405: "If some are guilty of gross non-attendance, and leave the manage- ment entirely to others, they may be guilty, by this means, of the breaches of trust that are committed by others.'' If, then, it be true, that the responsible ptrsonal public duty imposed by law upon this Hoard of Auditors, was intrusted by them to others who committed the alleged frauds (as is manifest from their resolution of 5th May, 1870), this was a gross breach of trust. It appears by this resolution, that they not only did riot f government agents who shall be found guilty of such shameless encroachments and wanton injury as the case present-. Without this protection to the citizen, government to him would be but a mockery and a shadow. Assuming, then, that it i& the duty of the people to bring an action, and that they have sufficient interest to sustain it, it remains to be seen, whether they have the right to bring this action in their name by their Attorney General '. The English case of Attorney-General against Brown supra, was, in its features, like the case at bar. It was an information, to recover money in the hands of commissioners appointed by an Act of Parlia- ment; which money was the produce of an unauthor- ized assessment made upon the citizens of Brighton, one of the English town*, for the purpose of being applied to prevent encroachments of the sea. The com missionen- abused the trust made exorbitant and 168 fraudulent assessments — appropriated the funds to their personal use, and when sued, demurred to the information. That ease, like the case before us, not only charged the unduly levying of taxes, hut also the misapplication of the funds when raised. The defendants in that case claimed that the Attor- ney-General was limited, to brine such an action in cases relating only to charitable uses, such as are specified in the Act of 43, Elizabeth, and that this was merely a trust for a municipality, and did not come within that class of charitable uses. Lord Chancellor Eldon, how- ever, on a deliberate examination of the case, overruled the demurrer and held the action well brought, and, as the report states, that it was a charitable use, and held the defendants liable This was in 1818. Sir John Leach, who was, in that case, counsel for the defendants, endeavored to show that because the fund was raised by titration, and was to be applied to the benefit of a municipality, it could not he a charitable use ; and that it did not come within the statute of Eliza- beth ; but this argument was overruled bv the Lord Chancellor. Afterwards, in the year 1824, when Sir John Leach had become Vice-Chancellor, and the case of Attorney- General vs. Ileelis, '2 Sim. \: Stu., 77, came before him as Vice-Chancellor, he held, in direct conflict with the opinion of the Lord Chancellor, in Attorney-General vs. Brown, (tiipra, and in accordance with his argument in the former case as counsel, viz : that it was the source from whence the funds are derived, and not the purpose to which they are dedicated, which constituted the use charitable, and that when the funds were derived from rates or assessment:- to be levied upon the inhabitants of a town, such was not a charitable use, though he admit- ted the commissioners appointed by an Act of Parlia- ment in such a case were trustees. Sir John Leach though ever regarded as a learned and able equity Judge, could hardly entitle himself to the character of a modest one, when, in his opinion as Vice-Chancellor, he attempted to overrnle the earlier decision of the Lord Chancellor, in the case of Attorney-General vs. Brown ; and, as will be seen, the case of Attorney-General as. Ileelis. is not now and has not since been, regarded as authority in England. The later cast! of the Attorney General vs. The Corporation of Duhlin was first de- cided in Chancery, according to and upon the authority of Attorney-General vs. ileelis. The case was appealed to thellouseof Lords, where it and the case of Attorney- General vs. Ileelis were reviewed, and where the former was reversed and the latter overruled. Lord Chancellor Kldon and Lord Kede.-dale delivered the opinions in the House of Lords. 1 Bligh., X. S., 312, Lord Eldon saving, " That the mode in which tlie rate was levied was not to l>r looked at, but the purpose to which it was apjoHedf 9 and Lord Redesdale concurring, he also said. * When the King as par ens patriot, may institute a suit hv the Attor- ney-General, it is not essential that the relators should join in the suit.*' In a still later case of Attorney-General vs. Eastlake, 1 1 Hare, 205. &c, all the cases on this point were reviewed by Sir William Page Wood, and the case of Attorney-Gen- eral v v. Brown ; the same vs. the Corporation of Dublin, were again considered, and affirmed, and the case of Attor- ney General vs. Ileelis again overruled. The ease of Attor- ney-General y*. Eastlake is also directly in point. It was a case of Commisioners appointed by an Act of Parlia- ment ; the moneys were obtained b\ taxation upon the municipality ; the object for which the money wa> to he raised and to which it was to he applied, was directed by statute; and the hill charged the misapplication of the funds. The Vice-Chancellor began his opinion h\ saying the case was entirely concluded by authority, as to the right of the Attorney General to interpose, and de- cided that the doctrine of Sir John Leach, and the distinction he had attempted to draw between gifts and moneys received by taxation, did not exist, in deter- mining whether there was a charitable u>e in that case, he concludes. u 1 cannot see that the source from which these moneys are here derived, vis : from taazzHon, can make any difference as to the charitable or public nature. which would be attributable to the fnjlds, if they proceeded from a more limited sphere of boiUltj ; and 170 if there be no distinction on that ground, the Attorney. General is the person to represent those who are inter- ested in that general and public or charitable use/' Confirmatory to this view, is what is said in Attorney- General >'.?. Mayor of Liverpool. 1 Mylne & Craig. 201. w hich was an action brought against a municipal cor- poration, in which the question, among others, was raised whether the Attorney-General could bring such an action, and whether the Court of Chancery had jurisdiction to interfere with municipal corporations. The Master of the Rolls held the affirmative of both propositions, and said. " But though a body having a cor- porate existence is capable of acquiring and possessing property, and therefore also of disposing of it. if prop- erty is held by a corporation as trustee, if the corpora- tion holds it. <:b>thed with pnhlic duties, the Court has always asserted its right to interfere : and he cited the case of Attorney-General VS. Dublin a- the authority for his decision. In the case of the Attorney-General vs. Aspinwall, '2 Mi lne & Craig. 618, the Lord ( haneellor Cottenham said : "If the property in question be subject to any trust, and if the appropriation complained of be not consistent with such trust, but applied to purposes foreign to it, and if there be not a provision in the Act taking from the Court of Chancery jurisdiction in such cases, then it will follow that the Attorney-General has the right to tile the informa- tion, and to pray that the funds may be recalled, secured and applied for the public. or in other words, the charitable purposes to which it is devoted." Nor is it an objection, in the English Court of Chancery, that other parties are also interested, and may also bring an action for the injury, that the Attorney-General brings an action, nor that he joins with him such other interested parties. So held in the case of the Attorney-Genera], on the relation of the Mayor <>f Leeds vs the Mayor. Aldermen. Arc. of Leeds 1 Craig & Phillip>. 1. Xor by the recent cases is it necessary, in order to con- fer jurisdiction upon a Court of Equity, that the trust should be what is technically called a charitable use; it is sufficient if there be a special or public trust, for pub- 171 lie purposes, and a breach. It did not. in England, 88 was argued, depend upon the Statute of William IV., • ailed the "Municipal Reform Act," passed in 1835. It existed, and was bo declared, long before that. Attorney- General w. City of Dublin ; Same r*. Brown, .supra. Nor does it affect the right of the Attorney-General to bring the action in such case that a corporation or a private in- dividual may also bring an action. Attorney-General vs. Wilson, 1 Craig & Philips, supra. The question a> to the right of the Attorney-General to bring the action in this class of cases has ceased to be discussed in Eng- land. But one case is found in this State, which is cited against this array of authority to show the converse of the rule — of the right and duty of the Attorney-General to bring the action before us. It is a recent decision of a co-ordinate branch of this Court. The People l**. Miiier. reported in -J. Lansings Sup. Court Reports, ."{!• conclu- sive upon this Court, upon the doctrine of Start decudn. I am not wanting in respect for this doctrine ; never, when it comes from a Superior Court ; less so, only hi degree, when it proceeds from a Court of co-ordinate au- thority ; especially one for whose learning and ability I entertain the most profound respect. But I can only decide this case upon the honest exercise ol my best and deliberate judgment, and upon my own clear convictions of well settled law. The authorities which led that able Court to the result as repoited here, upon a most thorough examination, clearly established in my mind a contrary conclusion. That opinion lays down as the basis of the decision the following proposition : " But it >eems to be considered in the English Chancery that no property of a corporation is considered charitable unless it has been given to the cor- poration by the Government, or individuals, to l>e de- voted to the use of the public." 172 " Hence" (says the opinion) " moneys raised by taxation is not within the control of the Court" (p. 4r08). The learned Judge then proceeds to cite the case of the Attorney-General vs. Ileelis, as authority for the rule laid down in that case, and says " it proceeds upon the distinction suggested and is directly in point, and against the power of the Court to intervene, in cases of trusts not charitable? We have previously shown that the case of Attorney-General vs. Heelis was not law when it was pronounced by Sir John Leach ; that it was ex- pressly reviewed and overruled by the cases of the Attor- ney-General vs. Mayor of Dublin, in the House of Lords, and by the Attorney-General vs. Eastlake, by the Lord Chancellor, and is found in conflict with nearly every other English and American decision. In an examination of the same English cases by the late Judge Dner, he said "that the examination he had given to those 1 ' (English) *' cases justified him in saying that the general rule to be extracted from them was this: that when the act of a municipal corporation * * affects injuriously the public at large — that is, the entire community over which the corpor- ate jurisdiction extends — the Attorney-General is a necessary party to the prosecution of the suit," and that it is only where the act which, in this sense, is a public injury to particular individuals, that the action can be maintained in their names ; " and he added that this rule " had a solid foundation of princi- ple, and was sustained by very sound reasons of public policy." It appears to me that the case in 2 Duer, supra, is supportad by the following cases in this State : Doolit- tle vs. Supervisors of Broome, 18 N. Y., 162; Roseveit vs. Draper, 23 N, Y., 137; 16 How. Pr. R., 318; 7 Abbott's Pr. P., 158 ; 10 id., 114 ; 32 Barb., 102 ; and 50 Penn St. P., 100. If the views of the law I have expressed are sound, then it may be laid down as a general proposition, that in a Court of Equity, if the case is one of public trust crea ted by statute, and if there has been an abuse or breach of the trust by a public officer, whether appointed by statute or otherwise, unless the statute has empowered 173 some one eJse to sue, or has declared or created a title to the moneys or property taken away ur misappropriated, to he in some other person or body, the remedy hy suit is in the people hy their Attorney-General. And various cases are found in the English authorities in cases of breach of trust, where, though ail individual may sue for a private wrong or injury done to his interests, the State has a concurrent right to prosecute, and this right is not affected hy the private action. 1 have had put into my hands a newspaper report of ;t case upon this same point, decided in the State of Missouri. It appears in the Si. Louis Republican of the dale of 13th .July, 1*7^. In that case the right of the Attorney-Gen- eral 'to bring an action in the name of the people was fully discussed. The English and New York authorities were all reviewed. The conclusion arrived at was the same as is given in this opinion, and the case of the Peo- ple '•. Miner, in 2 Lansing, was entirely disapproved a- authority. It is urged upon the argument, by the defendant's counsel, that if relief can he had against the defendants in the name of the Attorney-General, the remedy is only in the Court of Chancery ; that this action is an action of law ; that the complaint is. in form, Strictly, and only, one in an action at law. It is true, the demand at the close of the complaint i> for a judgment for money only ; and it is equally true, that the complaint is an anomaly in th* j system of plead- ing, and. it may be said, is not according to any pre- scribed form of past or present practice ; and. I think, it is also true, that it is the Court of Kiit;/ that has juris- diction of this class of actions. I am disposed to hold, that upon the great principles of natural equity such an action can he sustained, even in the absence of precedent or authority. It was held in the case of the People Rff. Aspinall. *'//>/ w. "that nothing is required to bring a case i within the jurisdiction of ( chancery, hut that monev> art' held for a public trust and a breach of that trust. And see, also, Attorney-General Poole, t> Clark A: Finnelly, 4<»1». If we are right in the views of the law of Kquity which we have discussed, it is still seen that facte are ael 174 forth in the body <>f this complaint sufficient t<> show an equitable cause of action, though the demand of a relief has the characteristic of an action at law. But we are taught by the more liberal system of plead- ing how in force, adopted by the Code, that it was expe- dient that the former system of pleading, as in cases at common law, should be abolished, and the distinction between legal and equitable remedies should no longer continue, and that a uniform course of proceeding be established. The kind of action or proceeding, however, still depends on the nature of the right to be enforced, or wrong to be remedied. This must be shown by the facts which constitute the cause of action. If these are sufficient, the form of the demand of relief does not destroy their force, or change the character of the action. The complaint certainly is inartistic, for an equity action, and perhaps, for any other, but an error in the demand of relief neither chancres the character of the action. n<»r affords ground for demurrer. Whatever im- perfections may be found to exist in the form of the pleading, or as to want of certainty in its statement, or for surplusage in statement, might be the subject of a special motion, but these objections are not available before us. There are several other objections raised which are merely technical, as to the form of action and to the form of the pleading, but they are not so material as to require discussion, or to make them a ground for sustain- ing the demurrers. From a renew of all the cases in England and in this State to which 1 have had access. 1 have come to the cor, elusion, and hold, that the Attorney-General is authorized to bring actions in the name of the people of this State for breaches of trust against all classes of public officers, and in cases of trust for public purposes. That in the exercise of this right, he is not limited to actions against municipal officers, but it extends especially to special boards or commissions appointed by the Legislature to exercise a public trust: that the right to prosecute does not depend upon the source from which the moneys used have been derived, whether from taxation from creating 175 liabilities to taxation, or from mure limited source?, as from gifts, bequests or donations; but that it depends upon the purpose or object to which the fund is to be applied, and that the case at bar, being a public pur- pose, it comes within this rule. I hold, therefore, that upon the statement of facts set forth in the complaint, the defendants l'wced and Connolly, together with A. < >. Hall, wore, \iy the Legislature, constituted a special public com. mission as a Board of Auditors, and were clothed, as such Board, with a public trust That the moneys in question having been raised by them in the exercise of such public trust, it became their duty to apply them to the designated public use; that they were guilty of a breach of that duty, and.a breach of said trust in the entire omission, as such Board, to audit the a ccounts in question, and in the illegal delegation of this duty to irresponsible agents; that they were guilty of a breach of duty in raising an amount of money greatly in excess of the public tiecessi- ties, and corruptly and fraudulently colluding and con- spiring with others in the appropriating of and in using the said moneys upon false and fictitious claims, aim in allowing large amounts thereof, through such instrumen- talities, to be taken, used and appropriated to the individ- ual use of the defendant Tweed. That it is the duty of the people of the State to prosecute for this breach of trust, by their duly constituted officer, the Attorney-General ; that this action i> lawfully prosecuted; that this ('Mint has jurisdiction of the said action, and that the com- plaint contains tacts sufficient to constitute a cause of ac- tion. The result is, in my opinion, that the order of Special Term overruling the demurrers in both cases, should be affirmed, with costs. 176 Parker, (dissenting) : This action is brought by the People of the State of New York, as plaintiffs, to re- cover of the defendants the sum of .-ix million three hundred and twelve thousand dollars, which it is alleged the defendants wrongfully obtained from the County Treasurer of the county of New York, and appropriated to their own use. The complaint sets forth, in the first place, the fact that, by au Act of the Legislature of the State of New York, passed April 20. 1S7<>. entitled " An Act to make further provision for the government of the county of New York," it was enacted, that all liabilities against the said county previous to the passage of that Act should be audited by the Mayor of the city of New York, the Comp- troller of said city, and the fhen President of the Board of Supervisors of the said county; and that the amounts which should be found due should be provided for by the issue of revenue bonds of the said county, payable during the year 1871 ; that the said Board of Supervisors should include in the ordinance levying the tax for the year 1871, an amount sufficient t<> pay said bonds, and the interest thereon, and that the claims on such liabili- ties should be paid by the said Comptroller to the parl- or parties entitled to receive the same, upon the certifi- cate of the three officers so required to audit in that be- half, by the said Act." It then alleges that at the passage of the Act, and at all times since, Abraham Oakey Hall was Mayor, and Richard 1>. Connolly Comptroller, and that defendant William M. Tweed was. and continued to be, up to and including .Inly 4. 1S7", President of the Board of Su- pervisors. That after the passage of the Act, and before the '2d day of September. 187*', claims purporting to be of the character aforesaid, were certified by the said three officers, amounting in the aggregate to 80.312.541.37. a list of which is appended in a schedule made a part of the complaint. That from time to time, as such certifications were re- spectively made known to him or his subordinates, the said Comptroller caused to be issued bonds, as prescribed 177 by said Act. in order to provide funds to pay the amounts so certified, and obtained from bona fide pur- chasers thereof, prior to the 5th day of August, l s 7". (6,313,000, which sum was. iii formal compliance with the statutes and usual modes of official proceeding in said city, deposited in the National Broadway Hank of the city of New York to the credit of an account therein, kept by the Chamberlain of the city, as ('mint;/ Treas- urer of the county, by virtue of his official character as such Chamberlain ; and then is set forth a blank form exhibiting the tenor of all such bonds, the respective payees, amounts, dates, and signatures being in blank, and an allegation is made that none of the bonds so issued have as yet become due. The blank form is of a bond of the county of New York, payable at the office of the Comptroller of the city of New York on the 1st day of December, 1871, with interest at the rate of seven per cent, per annum, payable semi-annually on the first day of.Iuneand December. The attestation clause is as fol- lows : " In witness whereof, the Board of Supervisors of said county have caused this bond to be signed by the Comptroller, countersigned by the Mayor, and sealed with the common seal of said Hoard, attested by their Clerk, at New York, this day of . A. D. 15— It is further alleged that none of the claims so certi- fied by said three officers were ever examined or audired by them, and that they passed a formal resolution in effect to dispense with such examination. That from time to time thereafter, accounts, purporting to be lia- bilities of the county incurred prior to April 2»5, 157* 1 , but which were fictitious and fraudulent, were presented to the said members of said Hoard of Audit, separately, whereupon they each, separately, without any investiga- tion <»r any conference with each other in regard thereto, certified each of said accounts so presented by severally signing a certificate in the form following: •'The under- signed, in pursuance of Sec. 4. chap. 882, Law- of L870, certify that they have audited the annexed bill of , and have allowed the same at the sum of dollars. Dated New York, — , 1H7<>.'' That upon such certifi- cates, by direction of the Comptroller, warrants wen- 178 issued, signed by the Comptroller and countersigned by the Mayor, <>n which the co-defendants of defendant Tw eed obtained from the County Treasurer the money to the amount aforesaid, which money was, pursuant to a corrupt agreement between defendant Tweed and his co- defendants, divided between themselves and others an known. The complaint proceeds to aver that no provision was made by the New York Board of Apportionment, in fixing the amount to be raised in the year 1871 for the payment of the said bonds ; and such Board, in fixing such amount, have proceeded to the extent of their authority; that the Board of Supervisors have raised by tax all the moneys which they can lawfully raise, during said vear, and none of it can lie applied to the payment of said bonds, and that there is no fund existing, or capa- ble of being raised or levied by taxation, or otherwise, which can be legally, or in fact, applied to the payment of the bonds or any part thereof, unless it be the moneys so paid by said bank, and sought to be recovered by this action; and that there is no property, nor any person, natural or artificial, bound by law or contract for the payment <>f the bonds, or any part thereof, unless it he the wrong doers in the complaint mentioned, save and except only the People of the State of New York, in their capacity as a body politic ; and that the people of this State are. through such means as their State government in its w isdom may employ, bound, by reason of the pledge of their public faith implied in the Act first above men- tioned, to provide for and pay the said bonds. The complaint further avers, that after it became pub- licly known, and known to defendant Tweed, and to A. O. Hall, and the Corporation Counsel, that the Attorney- General w as about to commence suits against these de- fendants, and others implicated in the said corrupt and fraudulent proceedings, the said Hall, as such Mayor and as President of the Board of Supervisors of the county, wrongfully and unjustly, with purpose and intent to defeat any suits, actions or proceedings which might be instituted in behalf of the people, and thereby to enable the said defendant Tweed, and his confederates, 1?.' to evade and escape from the pursuit of justice, did, in collusion with said Tweed, and w ithout the consent or knowledge of the Attorney-Genera), direct the said ( loun- sel for the Corporation f<> commence six actions in the First Department of the Supreme Court, by the service of a summons in each, as follows : three actions in the name of the Major, &©., of the city of New York, as plaintiff; one of them against Win. M. Tweed, as sole defendant; one against Richard B. Connolly, as sole de- fendant, and one against Abraham Oakev Hall, as sole defendant therein; and also, three actions in the name of the Supervisors of the County of New York, as plaintiffs ; one against said Tweed ; one against said Connolly, and one against said Hall, as sole defendants respectively ; which actions are still depending without any step having been taken, or in good faith intended to betaken therein, beyond the service of the summons. Tnat said actions were intended to cover and embrace, in point of form, and apparently in substance, claims for satisfaction in re- spect to all frauds of the said Tweed, official or other, wise, in this complaint mentioned or referred to, and all other liabilities of said Tweed, Connolly, and Hall, for which any action could be brought against them. But said six actions will not and cannot be fairly, beneficially, or usefully prosecuted, inasmuch as they are controlled by said Hall, who is in complicity with said Tweed and Connolly, and has complete control over the Counsel of the Corporation. Xor can or will any other action or proceeding be had or taken l>y said Mayor or uny other offi, er f t t/ir city or county, for the purpose of redress- ing the said frauds and wrongs against the people of the State of New York, or of recovering the public moneys so as aforesaid fraudulently appropriated by said defend- ants, or any of them. But, on the contrary, the said Mayor, and all other officers of said city and county, hav - ing power or authority in the premises, intend ami design to prevent any such action. >uit, or proceeding. red res.* or recovery. The complaint demands judgment against the defendants for the sum of b« million three hundred and twelve thousand dollars, with interest from the first day uf September, 187<>, and costs. 180 To this complaint the defendant Tweed demurred, upon the grounds : 1. That it appears upon the face of the complaint that the plaintiffs have not legal capacity to sue in this action. 2. That the complaint does not state facts sufficient to constitute a cause of action. 3. That it appears upon the face of the complaint that there is a defect of parties defendant, in the omission of the Mayor, Aldermen, and Commonalty of the city of New York. 4. That it appears upon the face of the complaint that there is a defect of parties defendant, in the omission of the Board of Supervisors of the county of New York. At Special Term the demurrer was overruled, and judgment ordered for the plaintiff. From the order of Special Term the defendant Tweed appeals to the Gen- eral Term. The atrocity of the acts charged upon the defendants, by means of which they corruptly and wrongfully ob- tained the enormous amount of money claimed in this action, very naturally arouses a feeling of indig- nation against them, and the desire to sustain, if possible, any proceeding against them for the recovery of the money so taken by them from the county treasury, and yet it is the plain duty of the Court to overcome such feeling and enter upon the examination of the legal ques- tions arising upon this demurrer, with the same degree of calm investigation and reflection as would he applied to an ordinary case. The circumstances attending this case, except so far as they legitimately control the appli- cation of rules of law to it, should not, and I trust will not, in any degree influence its decision. Three legal questions are raised by the demurrer, which may be stated as follows : 1. Does the complaint set forth a cause of action against the defendant Tweed, in favor of any party ? 2. If a cause of action is set forth, is it one in favor of the people of the State of New York, and can the people, as plaintiff, maintain the action ? 3. If the action is properly brought by the people as L81 plaintiff) is not the Board of Supervisor.- of the county of New York, or, it Dot such Hoard, the Major, Aldermen and Commonalty of the citv of New York, a necessary party defendant, w ithout whose presence in Court the action cannot proceed ? In regard to the first of these questions, it is said by the counsel for the defendant Tweed, that no cause of action is shown to exist against him, because it is not alleged that he drew the money f roin the county treasury, but only received a part <>f what his co-defendants drew, upon a division of it with them. and. so far as appears, without notice that the claims were fictitious or exces- sive, or that the money was not rightly drawn from the treasury by his co-defendants. To this, it is a sufficient answer to say, that it is al- leged that the payments made to his co-defendants upon the accounts falsely and fraudulently made up by them, were divided between defendant Tweed and his co- defendants pursuant to a corrupt, fraudulent and unlaw- ful combination and conspiracy between them, that they should be so divided. Notice to him, therefore, that the money was fraudulently obtained from the treasury, is not necessary to be averred or shown, to entitle the owner of the money to reclaim it of him, receiving it as he did, under a corrupt agreement from his co-defend- ants who thus fraudulently obtained it. lie is not a lnmu fide holder of the money for value, as sufficiently appears, and hence has no claim to it. as against the true owner. Whether he is liable in a civil suit for the mal-admin- istration of his office, or for inal-conduct therein, it is not now necessary to inquire. The ground of liability above stated, is upon the demurrer, a sufficient answer to the question first above mentioned. The next inquiry is, does the complaint Bet forth a cause of action against this defendant in favor of the People of the State I It is insisted on the part of defendant that if any cause of action exists upon the facts of the complaint, it is in favor of the county of New York, and not of the People of the State. The action is what is known as a common law action 182 for the simple recovery of the money, and no equitable relief is demanded. Whether the county of New York can maintain an ae tion for the recovery of this money, depends upon two questions : First, did the money taken belong to the county \ and. Second, lias the county capacity to sue \ The money in question was raised upon the bonds of the county, to pay debts of the county, pursuant to a statute of the State, to meet which bonds, the Act under which they were issued, required the Supervisors of the county to include in the ordinance levying the tax for 1871, an amount sufficient to pay the same with interest; and when this money had been so raised upon the county bonds, it was paid into the hands of the County Treas- urer, from whom it was obtained by the co-defendants of defendant Tweed, and distributed. Attention, however, is called to the fact that bonds were issued to an excessive amount; and as to such ex- cess it is insisted the money was in fact obtained for the use of the conspirators ; that such money was not author- ized to be raised at all ; that it was not raised for the use of the county, nor to be paid into the county treasury, or to be applied to county purposes, nor was any authority given so to raise or apply it ; and this was done, it is said, " by a special commission appointed, organized and directed by the State, through its own supreme Legisla- ture," and hence, it is argued, the State, as principal, has a right of action against these, its agents, for the fraudu- lent over-issue of bonds, and for the money obtained upon their sale. This Board of Audit, although designated by the Act, was, in no sense, the agent of the State, as their princi- pal, and the law of principal and agent has no applica- tion between them and the State. They were not acting for the State, but for the county. There is no dispute that the county owed debts which ought to be paid, and for the payment of which* legislation was necessary. In contemplation of law, the provision, for their payment, in the " Act to make further provision for the government of the county of New York," was beneficial to the county, and presumptively made, if not upon its application, at 183 least with its concurrence and consent; and if the law of principal and agent applies, these auditors were the agents of the county, and their liability for the over issue is to the county, whose credit they thus ahused, rather than to the State. (See Dailey vs. the Mayor, <(•'-.. 3 Hill, 531, 543.) That the persons charged with the duties imposed by the provision in question, were not county officers, does not in the least affect the influence of their acts upon the county. They were appointed by the Legislature to act in the business of the county, and for the county — and they were j>ro hoc vice, county officers, substituted for the officers of the county upon whom the duties with which they were charged are ordinarily imposed, to wit. the Supervisors. That they had power to pledge the credit of the county in the raising of the money to pay its debts, and to pay the debts with the money so raised, is not questioned. The fact that they exceeded, in their issue of bonds, the actual amount of the indebtedness of the county, does not invalidate the bonds so issued in excess, in the hands of the bona jide purchasers who ad- vanced the money. The officers who issued the bonds, were, in issuing all which were issued, acting, so far as third persons could see, within the scope of the powers conferred upon them, and the principle applies, I think that in reference to such acts, the party for whom they were thus ostensibly acting, to wit, the county of New York, is holden. Now if the county is holden uponthe bonds — and that it is so holden is not denied — it seems to follow, in- evitably, that the money paid for them by the bona ji the Mayor, Arc. a- Supervisors, nothing more was done than is common when an officer already in existence is by statute invested with tin- char acter of another officer viz., to go further, and invest him with the power.- and duties of >uch other officer. The same may be said a- to the provision in 5' 29 of 186 article 2. The application of the provisions of the chapter, in these cases, instead of the article, would have been quite inappropriate and impossible. The provisions of the chapter extend far beyond the scope of the powers and duties of Boards of Supervisors or County Treasurers. It includes provisions entirely in- applicable to those officers — treating, for example, in its different articles, "of the powers and rights of counties as bodies corporate,''—'' of the effects of a division of a county on its corporate rights and liabilities," — "of loan officers and commissioners of loans.' 1 — " of the Clerks of counties," — " of Sheriffs and Coroners," — "of Surrogates^ of District Attorneys, and of v arious other matters having no relation to Boards of Supervisors or County Treasurers. The application of the provisions of the chapter to the Mayor, ifcc, as Supervisors, or to the Chamberlain, as County Treasurer, would extend to them provisions relat- ing to those other officers and subjects, and would he unmeaning and absurd. It is evident, from an examination of the chapter, thai the use of the word article instead of the word chapter in the sections above referred to carries with it no implication of an intention of the Legislature that it was those t wo articles alone that were to have application within the city and county of Xew York. The article giving counties, as corporate bodies, capacity to hold property and to sue, is not, by the effect of the provision in Sections 17 and 29 respectively, expressly or by impli- cation, limited in its application, so as to not include the county of New York ; and there is no where manifested in this chapter or any where in the Revised Statutes, an intention to except the county of Xew York from the operation of that article. Neither is there anything in the circumstance that the territory and the inhabitants of the city and county are identical, as plaintiff's counsel claims there is, which at all detracts from the right of the county to claim a separate corporate existence, notwithstanding the city charter confers upon the municipal corporation all the powers ot local government. The learned counsel of the plaintiffs admit that the Legislature could set aside 1 s7 and disregard the common law rule stated by Ashhurst, J., in Rex. vs. Amory (2 Term /?.,569). "that there can- not exist in the same place two independent corporations with general powers of go\ eminent." In this case there can he doubt that the Legislature has, by clear expression to that effect, created two governmental corporations in the same place, having similar powers, privileges and jurisdictions. Mr. Justice Strong, in The PeopU Edmonds (15 Barb., 539), says " Manhattan bland, with the adjacent islands, was constituted a county by a law of the first Legislature ever held in the colony of New York, on the first of November, 1683. It has been designated as a county in all the subsequent Acts dividing this State into counties. It takes its organization as a county in der the general laws of the coli ny and of the State, and not under its charter as a city. The inhabitants, in effect, constitute two corporations— one as a county, under the general laws of the State (1 R. -V. 364), and the other as a city under their charter." Although the history of legislation in respect to the county of New York and the practice under it has been invoked to prove that the county has lieen treated as ex- cepted from the provision of law. making if a body cor- porate, with capacity to sue, &c, we have been pointed to no Act or Acts of the Legislature passed 81 nee the Re- vised Statutes came into operation, whereby that provis- ion has been repealed or abrogated : nor to any law doing away the effect upon the county of New York of the provision contained in >ect : on '.'•_> of Art. 4, Title 4, Chap. 8 of Part 'A of the Revised Statutes (2 /.'. &, 47::. 1st >;e of Oakley. Cfa. .1. : "'They area judicial body constituted by law to decide on all matters of account between individuals and the public body com- prising the county which they represent ;" and he fur- ther says, the statute " allows no appeal from their de- cision." This is now well settled law. and it is to be pre- sumed that the case of Phoenix vs. 77if Board, cVrc , was decided upon the same ground. In regard, then, to the oapacity of the county of New York, by its Board of Supervisors, to sue. I do not think there can exist a doubt. Hut it is claimed, on behalf of the plaintiffs, as another reason why it cannot 3U6 f or these moneys, that the coun- ty suffers no prejudice from their loss. "It- dei.ts." ir is said, "'if it had any. were not left unpaid — thev were overpaid." True, the debts which it raised the money, on its bonds, 190 to pay, were paid and overpaid, but the money with which ir paid them, before it was appropriated for that purpose, was its money, and the overplus has riot ceased to belong to it. Again, it is said. " itscorporate treasury, if it has one, is not to sufter any detriment. The State, by its taxing pow- er, has forced, oris to force, the payment of the bonds by the taxpayers," and hence it is concluded that the taxpayers, whoever they may happen to be when the tax is levied and collected, alone are to suffer, and of those taxpayers, the comity is not the mrntor, and has no authority to bring- suit t<> preserve or vindicate their rights. To this, the answer just made to the last proposition of plaintiff's counsel is sufficient. This suit is not brought to preserve or vindi- cate the rights of the taxpayers, the money for the fraud- ulent obtaining of which from the county treasury the suit is brought, was the county's money, and the circum- stance that the ultimate sufferers are the persons who shall be the taxpayers when the money shall be raised by tax to pay the bonds, is immaterial, and whether they can be represented by the corporation is immaterial. Defen- dants have possessed themselves of the money of the count v, and it comes back to the same result, the county must sne for it in the manner provided by law. The authorities cited to show that municipal corpo- rations have uo standing in Court to protect or vindicate the individual rights of their taxpayers, or inhabitants, have no applicability ; and the idea upon which they are supposed to be applicable, that it is the persons who are eventually to pay the tax, by which the money, to make up the loss of the money in question, is to be raised, who are the sufferers by such loss, and who are to be repre- sented in any suit to recover back the money taken, is a mistaken one. Such ultimate and indefinite interest creates no cause of action, and such persons are not, in anv respect, to be represented in the action to recover back the money. Nor can 1 regard the proposition that any obligation of any kind attached to the State in consequence of the rais- ing of the money, pursuant to the Act of the Legislature, or the mal-conduct of the officers designated by the 191 Legislature to raise it. or audit the accounts on which it was to be paid, as well founded. There is no more ground far calling upon the State hi make good the loss, than there would be in every ease of loss of moneys raised under the annual tax laws for the city and county of New York, occurring by the wrongful acts of the officers through w hose agency it was raised. The money is raised in such case in pursuance of Acts of the Legislature, and through the agency of officers designated by Acts of the Legislature, as in this, and if in this case the principle is adopted that the State is liable for the loss, in the other similar cases referred to it must be held liable also. In the supposed cases. I scarcely think it would be seriously claimed that the State would he liable. So far the questions considered seem to me plain and easy of solution, and the only difficulty in the case arises upon the the point raised under the allegations in the complaint, showing complicity of all officers of the county having authority to sue for the county, with de- fendant Tweed ; and that they all intend to prevent the prosecution of any suit for the recovery of the money in question. The principle upon which it is said the Attorney-Gen- eral may intervene in such cases, rests upon the idea of a public trust existing in the officers, through whose mal- feasance the money was lost to the county, and it is claimed that the people of the State, through their At- torney-General, may, through the Courts, ex mere BftOfu, intervene to prevent or redress injuries from breaches of such trust. In vindication of this proposition, a long list of cases is cited from the English reports and others. The princi- ple deemed to he established by those ea>e> it i:- neither necessary nor pertinent, as it seems to me, to discuBB, in determining the questions before us upon this demurrer. It is to he remembered that the cases cited by the learned counsel for the plaintiffs were suits in equity, containing proper averments ou which to found the prayer for relief in equity, and in which >uit> such relfef was de- manded. 192 Although, bv the Code, the distinction between actions at law and suits in equity are abolished, (Code, §69) still the essential distinction between legal and equitable causes of action is not abolished, and in pleading, when equitable relief is sought, it is still necessary to set forth an equitable cause of action. {Ileywood vs. The City of Buffalo, 14 N. Y. 7?., 540. Onderdonk vs Mott, 34 Barb., 106, 112.) The case at bar is in no respect an equity suit, but simply an action at law, to recover the money alleged to have been taken by the defendants, and to recover it, not as money of any cestui que trust, and for such cestui que trust, but as the money of the plaintiffs themselves, and for their own use. If the people had come into Court, by their Attorney - Greneral, setting up the fact that the defendants, having in their hands moneys of the county of New York, for the purpose of paying the debts of said county, had broken the trust committed to them, and converted the moneys to their own use, and that the officers of the county, who could sue them for the county, were colluding with the defendants, and refusing to proceed against them to protect the rights of the county, then a case would be shown, perhaps, entitling the Attorney- General to intervene, and ask the Court to compel the defendants, as in the case of The Attorney-General m the Mayor of Dublin (1 Bl'ujh N. 8 ,313,) "to replace the money they had wrongfully taken and misap- propriated.'" But no such cause of action is set forth in the com- plaint in this case. The plaintiffs, as already intimated, proceed upon the assumption that the money, which was misappropriated and converted by the defendants, was their money, and that they are entitled to recover it for their own use. None of the cases, on which the learned counsel for the plaintiffs rely as authority for maintain- ing this action, are such cases as this. In none of them does the Attorney-General, any more than in the Dublin case referred to — which is the case principally relied upon by the plaintiffs — bring suit to recover funds mis- appropriated by a trustee, for the benefit of the crown ; L93 and if in any of them it is sought to recover moneys so misapplied, it is for the benefit of the parties entitled r<» them. Upon a demurrer to a com]. hunt upon the ground that it does not state facts sufficient to constitute a cause of action, in favor of the plaintiff.-, when the complaint has only such scope and object as above mentioned in regard to this complaint, and <> recovery upon which tniist be for the benefit of the plaintiffs themselves, 1 do not think it an answer that the plaintiffs might have brought a suit in equity to recover hack the money for the benefit of the cestui que trust. .No such suit i> here brought) and no right appears in the Attorney * General to bring such a suit, in the name of the people, as is here brought. If it could be held that the Attorney-General might maintain the action, in the name of the people, by reason of the collusion alleged, or of any breach of trust shown, then it is most manifest that the county of New York, by its Board Of Supervisors, should have been made a party defendant for, as we have seen, the money taken be- longed to the county, and not to the State. The county, then, is a parry in interest, and as it cannot, by reason of the default of its officers, stand in its proper place as plaintiff, or, as the proceeding is for the benefit of the county, as cegtili que trust, it is necessary that it should be in Court as a party defendant, that it- right- may he protected. Although, in view of the circumstances of this ease. I should have been glad to sustain the action as brought, vet I have been unable to agree with the learned counsel for the plaintiffs in holding that it can lie sustained upon anv of the giounds suggested by them, or upon any grounds consistent with the well settled rules of law. If the difference between the parties upon the qiU38' tione raised by the demurrer was i mere formal or tech- nical one, it might, perhaps, in the interest of justice, have been disregarded. l'»ut the difference i- Milxtantial and radical, and goes to the foundation of every action brought in a Court of .Justice I cannot, therefore, avoid the conclusion that the de 194 murrer is well taken, upon the ground that no cause of action in favor of the plaintiffs is set forth in the com- plaint. Also upon the ground that, if the people can maintain the action there is a defect of parties defendant in the omission of the county of New York by its Board of Supervisors. 1 am, therefore, of the opinion, that the order appealed from must be reversed, and the demurrer sustained-, with costs. (A copy.) C. N. MATSON, . 6*W. An order was entered accordingly, in each case, affirm- ing the decision of rhe Special Term, by which the de- fendants' demurrer was overruled. Leave was given to each defendant to withdraw his demurrer and answer in twenty days, on payment of costs. 19fi SUPREME COURT — GENERAL TERM. TJt ird Depa / fm t n t. \ The People of the State <>f N ew York J .. . I ■ Miller. Pot- \ ter and Par Thomas C. t ields, impleaded witL the/ KER< Jus- Mayor, Aldermen and Commonalty of i tices. the Citv of New York. This was an action brought to recover of the de- fendant. Thomas ('. Fields, a large amount of moneys obtained from the Comptroller of the citv of Xe\v \ ork by the fraudulent and corrupt means of false and fictitious claims, which he procured to be audited and adjusted by the said Comptroller, and obtained payment of such claims from the said Comptroller The said moneys were obtained by said Fields under color of the pro visions of two statutes of the Leg- islature of this State, one passed May 12, 1S6 ( J, chapter ^Tfi. the seventh section of which directed the Comp- troller of the city of Xew York to audit, adjust and pav the claims, not to exceed the sum of $50,(MX), to the members of certain engine and hook and ladder companies specified, which were organized under the direction of the Metropolitan Department, designated " suburban companies." The said Comptroller was by said Act authorized and directed to raise the money necessary to pay the sum or sums which might be found due said members of said Fire Depart- ment. &e., on said claims as aforesaid, on the stock of the city of New York: the stock to be issued in the usual form, and to be called the "Fire Depart- ment stock,'' payable thirty years after its date, with in- terest. The Hoard of Supervisors of the countv of Xew Fork were therein authorized and directed to order and cause to be raised by tax upon the estates, bv law subject to taxation within said city and countv. an L97 amount sufficient to pay the annual Interest and to redeem said stock at maturity. The complaint alleges that under this provision cer- tain claims were presented to the Comptroller, and were audited and adjusted and fully paid by him, amounting to §40,277. #4 ; that the defendant - , hy himself and hie agents, conducted the whole business of presenting 1 such claims, and received from the Comptroller all the moneys so paid by him, except the sum of §245, which was paid to John Hart; that the claims so audited, adjusted and paid were the only claims which at any tune, prior to a certain other Act, passed in 1870, were audited, adjusted, or found to he due to any person or persons under the provisions of said Act of 1SG0, either by the Comptroller or by any other officer or person. The complaint further alleges that the 2(ith April, 187". by the seventh sec- tion of another Act of the Legislature, entitled " An Act to make further provision for the government of the city of New York," [Chap. HS'S Laves of 1870,] the said Comptroller whs authorized and directed to pay the claims which had been found to he due to the members of the same Engine Companies and Hook and Ladder Companies, under the provisions of said first-mentioned seventh section ; and to raise the additional amount required for such purpose by the issue of stock of the city of New York, in Like manner as pro- vided by said first above mentioned seventh section, and the interest and principal thereof to be raised also in the like manner as the same first-above mentioned seventh section provided: that there was not at any time subs e . qnently to the said first day of January. 1868, any just, lawful, equitable or other claim of any members or mem- ber of any of the said companies ; that the said Thomas C. Fields, well knowing the premises, but falsely and corruptly intending to defraud the public of the moneys hereinafter next mentioned, did cause to he made out, in writing, certain new, false and fictitious claims, amount- ing in the aggregate to the further sum of §4.V.t,;»72.70. in the names ol the same persons respecti\ely,who>e pretended claims had already heen so audited, adjusted, and fully paid as ahove stated, and for the same identical pretend 198 ed causes of claim, respectively, as had been so as afore- said respectively passed upon, audited, adjusted and paid in full, as aforesaid ; and after the passage of the said Act of LS7<>, that is to say, on . I line 3, 187", did present such new claims to the said Comptroller, and, as pretended assignee of the claimants in such new claims, obtained payment from him. said Comptroller, as upon such new claims, of the whole sum of money last above mentioned. That the said Thomas ( '. Fields was a mem- ber of the Legislature which adopted the said Act of lST", and was a promoter of said Act ; that before such Act he had arranged and organized measures for procur- ing the passage of such Act, and fraudulently obtaining the assent, real or apparent, of said pretended claimants of such new claims respectively, to the use of their names, for the purpose of giving color to such new claims, and investing himself, said Fields, with a formal or apparent assignment from such last mentioned claimants respectively, of such new claims respectively, and did. on the said third day of .1 uue, cause himself to be recognized by said Comptroller and the Mayor of said city as such assignee, and thereby obtained the said last-mentioned sum of money, which last-mentioned sum of money was raised for the ptupose of such payment thereof by means of stock, as directed in said Act of 1870, and sold on that occasion to buna jide purchasers. And the said plaintiffs further say that the said Thomas ( Fields had agreed with said pretended claimants of said new claims before the passage or promotion of said Act of 1*7<>. or any of his said acts and doings concern- ing the procurement of said last-mentioned sum of money, that he. the said Thomas C. Fields, should keep and retain, lor his own benefit, as a reward for his agency in procuring such last-mentioned sum, one equal moiety or half part, of all the said pretended new claims, and that he, the said Thomas ( '. Fields, did accordingly retain such half part of such last mentioned payment or more. That ever since the last-mentioned fraudulent payment to the said Thomas C. Fields, the Mayor, Aldermen and Commonalty of the city of New York, and all their several officers, if any, who might or could exercise any power or authority in the prem- 199 ises, and the Board of Superv isors of the county of New Fork, and all their several officers who could exercise any power or authority in the premises. have, w ith notice and full knowledge of such payment and of its fraudu- lent nature, acquiesced in and still do acquiesce in such fraudulent misapplication of the said moneys, and at all times since such application were, and still are. colluding and conniving with the said Thomas 0. Fields in the fraud aforesaid, and in protecting him from responsibility for the same by anv judicial means or remedies. And the plaintiff demands judgment to recover the said sum of §459,977.79, with interest. The defendant demurred to the complaint, and set forth the causes of demurrer, which will appear in the opinion. Charlks O'Conok and \V. 11. Pbokham tor the people and W. A. Beach for defendant. By thk Coirt. Potter, .Justice. First. — The complaint, in my opinion, does state facts sufficient to constitute a cause of action. It charges that the defendant, falsely and corruptly intending to defraud the public, and by means of false and fictitious claims, obtained payment from the Comptroller of the city of New York upon such false and fraudulent claims to the amount of £459.977.79. For the purposes of this case this charge is admitted t«> be true. Money obtained by fraud and falsehood, by false pretences <>r fraudulent rep- presentations, is recov erable by action. The first cause of demurrer is not. therefore, well taken. Second. — The second cause of demurrer, that the com- plaint does not >tate facts sufficient to constitute a right of action in favor of the plaintiffs, c<>mes within the rale of our decision, in the case of the People M. Tweed and Connolly, and k not. therefore, well taken. The Comp- troller of the city of New York, by the seventh section of the Act of I860, chapter 870, vv as created or appointed a trustee to audit, adjust and pav certain claims of err lain membei> of engine and hook and ladder companies therein specified, and was authorised and directed to 200 raise money to pay the same, to an amount not exceed- ing $50,000. In pursuance of this authority and trust, as is alleged and admitted, the said Comptroller did au- dit, adjust and pay. from moneys obtained by virtue of his authority, all the claims of said engine companies, &c, that had been presented ; that these claims fell w ithin the said limit of £5<»,ou0, and were the only claims found due by the Comptroller to such companies prior to the Act of 1870, hereinafter referred to. C'nder the pro- \isions and limitations of the Act of 18fi9 but ahout $722. (H> remained w ithin the power of the Comptroller to audit and pay. The payment of such further sum would exhaust all his power to raise money for that object; but this sum remained to be acted upon, and the Act of 1>7" can be held to operate upon this ba- lance. In 187<» the Legislature, by an Act, chapter 3S3, section 7. directed and authorized the said Comptroller to pav the claims "which have been found due" to the members of the said engine companies. &c, " under the provisions of Section 7 of the Act of 1869," and to raise the additional amount required for such purpose in the manner provided by the Act of 186;). This Act of 1870, proper! v interpreted, authorized the Comptroller to pay such claims only as had been found due under the Act of 1869. There was no authority given to the Comp- troller in the Act of 187" 1 to "audit claims," as in the Act of 1869, but a mere direction to pay the claims w hich have been found due under the Act of 18C>9. I think it would be a monstrous abuse of the powers of judicial construction to hold that the Legislature, in the Act of 1870, intended to invest one individual w ith the unlim- ited power to raise money, to the extent of millions if he pleased, under the language employed in it. and to pay it upon claims, without the direction to audit them, w hen in the prior Act they had been expressly cautious, not only to limit his power as to the amount, but to demand of him, officially, to audit them. Under the provisions of these two sections of statutes the fraud alleged was committed. These two sections must be construed ae being in pari materia, and their construction is doubtless to be regarded as an element in the case. It was held 20] by Lord Hard wick e, in Wallis ve. Hodson, Barn Oh. Rep., 276, in tlie construction of two statutes for the better settling of intestate estates, in which the latter Act had some additional clauses, "that the latter statute must be construed as if the former had been recited therein.*' Dwarris' Amer. Ed.. 100. 191; 5 Cranch, 1. Without referring to rules of construction, it is very clear to my mind that there is nothing in the Act of 187" that repeals the limitation of the power expressed in the Act of 1 869, but it remains a part of the law. Indeed, I think the law of L870 preserves that limitation; it distinctly refers to the claims that have been found due under the pro- visions of the Seventh Section of the Act of 1869 and to the pre-existing audit. There is no assumption in the Act of 1870 that an amount exceeding $50,000 was necessary, but only, by fair construction, that the whole sum of $50,000 had not then been raised, and that the whole amount had not then been paid. It is not a legal presumption, to be held and taken of an Act of the Legislature, that they intended what they omitted to ex- press, nor that they did not possess sufficient erudition to express in appropriate language a power they intended to confer. Statutes, by authority of which citizens may he deprived of their estates, must have the Btrictosl con- struction ; and this is so, whether it be in the exercise of a public <»r private authority. Powell vt. Tuttle •» N. Y.. 401. True, looking only at, the two acts, the necessity of the Act of 1870 is not apparent. There is, however, no provision in the statute authorizing the raising of an amount exceeding $50,000 : nor could he raise a larger sum w ithout an Act of the Legislature to authorize it. The Comptroller was a statute officer ami a public officer ; he was limited to the power conferred * and was responsi- ble for an abuse of power or for the exercise of power not conferred. Dwarris lays down the rule "that Acts of Par- liament which impose a dnty upon the public will he criti- cally construed with reference t>> the particular language in which they are expressed. When there i> any ambi- guity found the construction must he in favor of the public, because it is a general rule that where the public are to he charged w ith a burden the intention of the Lo- 202 gislature to impose that burden must be explicitly and distinctly shown." American Ed.. 255. Tlie only word in the Act of 1870 upon which and under which this false and unsound construction is claimed is the word "addi- tional." There is no difficulty in giving' full force and effect to that word by applying it with a common sense ap- plication to the balance of s"22.t>6. which remained unpaid, or not raised, under the Act of 1866. But if the Comptroller eons' rued the statute as it is now claimed for him. or even if he actually possessed the power, as now claimed, and acted with perfect integrity, I am un- able to see that his nets would justify the defendant Fields in the alleged acts of obtaining from him public moneys by fraud and falsehood and by the use of false and fictitious claims. Moneys so fraudulently ob- tained are subject to be recovered back by action. Title to property is not acquired by fraud. Honesty and good faith are held to be the living, pervading, universal prin- ciples and bases of all dealing between man and man before courts of justice ; and no cunning or skill of the perpetrator of a fraud can shield him in Courts where a pure administration of the law is a controlling principle of their action. A disposition by a public officer of funds in his hands for public purposes, whether obtained under autho: ized or unauthorized power, is a misappropriation and a breach of trust, and he is and ought to be held liable to suine- body in an action to recover them, and any one who aids or assists him in the commission of this breach of duty, or who by persuasion, fraud, falsehood or other corrupt means, obtains the possession of such funds, is equally a wrong-doer, and is responsible to answer for them in an action. The defendant does not interpose the objection that Connolly, the Comptroller, who raised the money, is not sued with him, nor would it* be material if he had. Each individual who by fraud and corrupt means advises, or assists, or participates in, or secures a part or the whole fruits of a fraudulent scheme, is liable individually I think, upon the admitted facts of the case, that a right of action does exist in favor of the plaintiff, and tha'. such facts sufficiently appear on the face of the complaint. 203 If we are right in the views ahove expressed, then the third eause of demurrer. " that the plaintiff has not legal capacity t<> sue, 1 ' will fall, for the reasons given in the cases of the People Tweed and Connolly; that such an action is properly brought in the name of the people. That under the first subdivision of this third cause of demurrer the interest of the people consists in their legal right as well as duty at common law to bring the action, and that no other interest is legally necessary. That under the second subdivision of this cause of de- murrer there is no legal acknowledgment of the validity of the defendant's claims ; and that under the third sub- divison the said moneys were not paid and received by the defendant by virtue of any power and autlurity con- ferred by the plaintiffs. The result is, the order of the Special Tern: should be affirmed. An order was entered accordingly, and the defendant was allowed to withdraw his demurrer and amend with- in twenty days, on payment of costs.