The main question in this case is, whether upon the facts stated in the complaint, admitting them to be true, the State is the proper party to maintain this action.
By an act of the legislature, passed on the 26th of April, 1870 (Laws of 1870, chap. 382, § 4), it was enacted as follows:
"All liabilities against the county of New York, previous to the passage of this act, shall be audited by the mayor of the city of New York, the comptroller of said city and the present president of the board of supervisors; and the amounts which are found to be due shall be provided for by the issue of revenue bonds of the county of New York, payable during the year 1871, and the board of supervisors shall include in the ordinance levying the taxes for the year 1871 an amount sufficient 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."
The complaint alleges, in substance, that the auditors appointed by this act, between May and September, 1870, certified claims purporting to be of the character described in the act, in favor of the defendants Ingersoll, Garvey and others, to the amount of several millions of dollars, upon *Page 39 which certificates revenue bonds of the county were issued in proper form by the comptroller as prescribed in the act, and money was raised thereon from bona fide purchasers thereof, in order to pay the amounts so certified; that this money was deposited in a bank to the credit of an account then kept by the chamberlain of the city of New York, as treasurer of the county, and was afterward obtained by the defendants Ingersoll, Garvey and Woodward, by means of comptroller's warrants drawn upon the bank for the payment of the claims certified as aforesaid.
That the defendant Tweed was, at the time of the passage of the act of April 26, 1870, president of the board of supervisors of the county of New York, and, consequently, one of the persons by that act appointed auditors; that he assumed to act as such auditor, and that, in that capacity, he, as well as the other auditors named in the act, signed certificates of the audit and allowance of the alleged claims which served as the foundation for the issue of the revenue bonds upon which the money in question was raised. That these claims were never, in fact, audited by the board appointed by the act of April 26, 1870, but that the certificates of the audit thereof were signed by the auditors separately and without investigation, in pursuance of a resolution adopted by them on the 5th of May, 1870, whereby the county auditor (then one James Watson) was directed to collect all bills and liabilities against the county incurred prior to April 26, 1870; and it was resolved that the evidence of the same should be the authorization of the same by the board of supervisors, or its appropriate committees, on certificate of the clerk or the president.
The complaint then proceeds to allege that the accounts so pretended to have been audited were false, fictitious and fraudulent, and were prepared by fraud and collusion between the said Watson (then county auditor) and the defendants Garvey, Ingersoll and Woodward, and put in such shape as to entitle them, by the terms of the resolution of the board of auditors, dated May 5, 1870, and before mentioned, to be certified under the act of April 26, 1870, without further *Page 40 investigation; that after they had been so certified, Watson obtained the comptroller's warrants for their payment, and that the sums paid on such warrants were, "pursuant to a corrupt, fraudulent and unlawful combination and conspiracy to that end by and between the said William M. Tweed, James Watson, Andrew J. Garvey, James H. Ingersoll and Elbert A. Woodward, agreed to be divided and were divided between the said James H. Ingersoll, Andrew J. Garvey and William M. Tweed," and other persons unknown, etc. The details of the transactions are set out in the complaint and schedules, and it sufficiently appears that these payments were made out of the fund raised by the sale of revenue bonds, issued on the strength of the certificates of audit signed by the auditors appointed by the act of April 26, 1870.
These facts, which are admitted by the demurrer, establish that the State, through its legislature, provided a method of discharging a specified class of the liabilities of one of its counties. That it appointed certain persons to carry out its enactments by auditing the liabilities, issuing bonds for the precise amount necessary to pay such liabilities when ascertained, and applying to such payment the proceeds of the bonds so issued. The State provided for the payment of these bonds by requiring the board of supervisors of the county to raise by taxation the amount necessary to pay them.
The auditing of the claims was intrusted to three persons, not as county officers, but as special appointees of the legislature to carry out the provisions of the act. They were the mayor and the comptroller of the city of New York and the then present president of the board of supervisors of the county. His powers and duties as auditor did not depend upon the continuance of his office of president of the board of supervisors. Instead of being personally named he was described in the act as the then president of the board. This was a mere designation of the person intended. He continued auditor, notwithstanding the termination of his office of president of the board of supervisors, which, as is alleged in the complaint, occurred on the 4th of July, 1870. From the *Page 41 beginning he acted, not in virtue of his county office, but as the repository of a special trust directly confided to him by the legislature, and, together with the mayor and the comptroller of the city, formed a commission appointed by the State for the performance of a special duty. This duty consisted in auditing and certifying the amount of the liabilities of the county up to a certain date, and, consequently, determining the sum which should be levied upon the tax-payers for the purpose of meeting those liabilities. The liabilities were not to be paid out of any fund, property or revenue of the county, as such, but, ultimately, by means of the tax which the supervisors of the county were, by the act, required to levy for that special purpose in the following year, 1871. In order to obviate delay in the discharge of the liabilities in question a means was provided for discounting or anticipating the tax so authorized by the issue of the bonds before referred to, and the amount necessary to pay those bonds was to be raised by the tax.
The controlling question arising upon this demurrer is, whether for any fraud, misconduct or breach of trust on the part of any of the persons designated by the legislature for the purpose of carrying into effect the provisions of this act, which fraud, misconduct or breach of trust has resulted in raising upon temporary bonds, issued in the form authorized by the act, a vastly larger sum than was necessary for the discharge of the liabilities provided for by the act, and in transferring the surplus into the pockets of the delinquent agent or appointee of the State, and other persons confederating with him to that end, an action will lie on behalf of the State against the delinquent and his confederates who have participated in the corrupt transactions and their fruits.
One material inquiry in determining this question is: Upon whom will the loss occasioned by these transactions fall? There can be but one answer to this question. The bonds have been disposed of to bona fide holders. They are directed by law to be paid by means of a tax, to be levied on the tax-payers of the county. The bondholders have the legal right to *Page 42 enforce the levy of this tax. There is no property of the county as such, out of which these bonds can be collected by legal process. The moneys, therefore, which have been fraudulently raised upon these bonds and appropriated by the wrong-doers, will have to be collected under authority of the State, out of the tax-payers of the county, and the loss, consequently, falls upon them.
It is clearly shown by the authorities cited in the argument, that no individual can have a standing in court as a tax-payer merely, for the purpose of obtaining redress for such a wrong; and the reasons for this conclusion are too obvious to render discussion necessary. Among other reasons, as is evident in the present case, it would be impossible to ascertain the extent to which any individual, who was a tax-payer at the time of the wrong, would be damnified, or even that he would be a tax-payer when the time should arrive for the levy of the tax. Who, then, is the proper party to appear as plaintiff, and represent the fluctuating body of tax-payers who, sooner or later, must be compelled by authority of the State to pay the money wrongfully obtained by the defendants on the credit of the tax to be imposed?
The people of the State, through their attorney-general, appear before the court, claiming the right to intervene as plaintiff, and to compel their own unfaithful appointee and trustee, and those who have combined, conspired and shared with him, to replace the moneys which, under color of the authority conferred by the State, they have thus wrongfully obtained and applied to their own use, or to pay in the form of damages such sum as will compensate for the amount which by their wrongful acts they have obtained at the expense of the tax-payers.
It must be conceded that the question presented is novel; but the law is not so defective as to be wholly destitute of remedy in such a case. The remedy required is, in the first place, to take out of the hands of the wrong-doer the fund which they have unlawfully obtained, *Page 43 or to compel them to pay an equivalent in the form of damages. The disposition of the money which the defendants may be adjudged to pay is not provided for by any existing law, and it is therefore impossible for the court now to adjudicate what shall be its final destination. That the defendants are not entitled to retain it, and that they are liable in some form for the wrong committed in obtaining it, cannot be questioned. That justice requires that such disposition shall ultimately be made of the money to be recovered as will relieve pro tanto the tax-payers who will ultimately be subjected to the payment of the obligations upon which the money was wrongfully raised, is obvious. But in the absence of any machinery provided by law for a case so extraordinary the court should not undertake, whoever is plaintiff, to do more than to require that the avails of the recovery be placed in the treasury of the State, or other safe custody, to await further legislation.
Assuming the correctness of these propositions, which will be further substantiated in connection with the objections raised by the demurrant, it would seem sufficiently plain that the State is a proper party to invoke such a remedy as this case demands. The wrong complained of is the violation by an agent or appointee of the State of a trust and duty created by statute, for a special purpose, through which violation of duty he and the other defendants, confederating with him, have obtained a large sum of money on obligations which must be paid by taxation under authority of the State. The damage resulting is to the fluctuating body of tax-payers of one of the divisions of the State, who, under the provisions of the Constitution of the United States, cannot be liberated from the burden to which the acts of the defendants have subjected them, by any means short of the State itself assuming and paying the bonds, the proceeds of which the defendants have wrongfully appropriated. On no other terms could any repeal of the act directing the levy of the tax be sustained. The money which the defendants ought to replace will, by whomsoever recovered, be subject to the control of the *Page 44 legislature. Even if recovered by the State and paid into the general fund, legislation will be required for its appropriation to any particular object.
Unless it can be shown that under existing statutes some particular officer or body is vested with the exclusive power of bringing the action in such a case, the interest of the people ought to be deemed sufficient to entitle them to intervene for that purpose, through their attorney-general, who is, by statute, not only empowered, but required to prosecute all actions in the event of which the people are interested. (1 R.S., 179, § 1.) It seems to be conceded, in all the discussions upon the subject before and within the court, that if the attorney-general had been specially authorized by act of the legislature to bring this action, such authority would be valid and sufficient to sustain the action. This proposition necessarily concedes the interest of the State in the subject of the litigation.
If a special authorization in the particular case would have been sufficient to require the court to entertain the action of the attorney-general, on what principle can it refuse to do so in the face of the general statute, which not only empowers but requires him to prosecute all actions in the event of which the people are interested? Ordinary reasoning would lead us to the conclusion that this general statute is sufficient authority for his intervention in any such case, unless some special statute is pointed out which restrains his action in the particular case, or grants the exclusive right to prosecute such action to some other officer or local body. No such statute has been pointed out, nor have I found any.
The cases in this State which deny the right of individuals to intervene, simply on the ground that they are tax-payers whose burdens will be increased by the wrong complained of, proceed upon the ground that the general rule is, that for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by the State in its political character, or by some officer authorized by law to act in its behalf; and this is true whether *Page 45 the whole people of the State or only those of a particular locality are affected. Common nuisances, purprestures, usurpations of public offices and the improper exercise by public officers of their functions, are recognized as instances of the application of this principle. The inconveniences which would result from any other principle — among which is the multiplicity of suits which would arise — are pointed out in those cases. No private person or number of persons can assume to be the champions of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official acts. Their remedy is to invoke the action of theofficer whom the law has appointed to sue in such cases. (Doolittle v. Supervisors of Broome County, 18 N.Y., 163;Roosevelt v. Draper, 23 id., 318.) In the case last cited, Judge DENIO, in delivering the opinion of the court, declares that, "an act of administration likely to produce taxation is not a matter of private or individual concern; it is an affair altogether public; and the only remedial process against an abuse of administrative power, tending to taxation, which we can have, is furnished by the elective system, or a proceeding in behalfof the State."
The grounds upon which the right of the State to prosecute the action is denied are, that the money which was taken by the defendants belonged to the county of New York. That the supervisors of every county are empowered by statute to bring actions to enforce liabilities to the county and to recover damages for injuries done to the property or rights of the county (2 R.S., 473); and that, consequently the action should have been brought by the supervisors of the county of New York. No other party is suggested as the proper plaintiff.
Assuming that the provisions authorizing supervisors of counties to bring actions are applicable to the county of New York (a proposition which is denied by the appellants), it is necessary to this defence to establish that the liability incurred by the defendants was to the county, or that the money taken by them was the property of the county. The only cases in which the supervisors of a county are empowered by *Page 46 statute to sue are those before mentioned, together with some others which are foreign to the present case, such as actions on contracts made with the supervisors, for penalties and forfeitures, etc. (2 R.S., 473); and a county can neither sue nor be sued except by express power conferred by statute. (Hunter v. Comrs. Mercer County, 10 Ohio St., 520; Hunsaker v.Borden, 5 Cal., 290.)
It is worthy of remark, in passing to the consideration of this defence, that so far as appears upon the present record, the right of the people to sue for and recover the money or damages in controversy is not challenged by the county of New York; and the question does not arise in consequence of any claim made by the county, or on its behalf, to the money or damages sought to be recovered. It is raised only by the alleged wrong-doers, and as a means of defeating the action brought against them by the State. To be effective for that purpose it should appear, not only that the defendants are liable to the county, but to that civil division of the State exclusively, and that a recovery of the State itself and satisfaction thereof, would not bar a subsequent recovery on behalf of the county for the same acts.
The main points urged on the argument on the part of the demurrant, in support of his defence that the money which he took belonged to the county, are these:
First. That the bonds upon which the money was borrowed were county bonds; that when a county borrows money pursuant to law, upon its own bonds, the proceeds belong to the county on the same principle as that upon which money borrowed by a natural person or by a corporation authorized to borrow money, becomes the property of the borrower.
Second. That the money so borrowed was actually paid into the county treasury, and that its abstraction, by means of the certificates alleged to be fraudulent, was from that treasury; and,
Third. That such deposit of the borrowed money in the county treasury is alleged in the complaint to have been *Page 47 made in formal compliance with the statutes and usual modes of official proceedings in the city of New York.
The allegation that the deposit of the money in the county treasury was in compliance with the statutes, is matter of law and not of fact. It does not, therefore, conclude either party on demurrer. As matter of law, no statute can be found authorizing the deposit of these funds in the county treasury. The only acts bearing upon the question to which we have been referred are Laws of 1862, chapter 37, section 2, and 1 Revised Statutes, page 369, section 20, and page 370, section 29. The act of 1862 provides for the payment into the treasury of the county of moneys loaned upon revenue bonds of the county, issued in anticipation of the collection of the annual taxes of the county, to pay the ordinary charges and expenses under appropriations made by the board of supervisors for the support of the county government, and is expressly restricted to taxes authorized to be raised during the same year in which the money is borrowed. This act is clearly inapplicable to the fund now in question. The act of 1865 merely provides that all revenue of the city and county shall be deposited in the banks designated by the chamberlain. The proceeds of the bonds now in question cannot be called revenue of the city or county. The mode provided by other statutes, which have been referred to, for drawing moneys out of the treasury of the county, do not affect the question, what moneys should properly go into such treasury. The only statutory provisions relevant to the question are 1 Revised Statutes, 369, sections 20 and 29, which provide that it shall be the duty of the county treasurer to receive all moneys belonging to the county, from whatever sources they may be derived, and that the chamberlain of the city and county of New York shall be the county treasurer thereof. And this brings us back to the original question, whether the fund raised by the issue of these bonds belonged to the county. If not, the mere deposit of them in bank to the credit of the chamberlain did not invest the supervisors with the exclusive right to such moneys. "The *Page 48 county treasury cannot become the depository of any funds but those that the law brings to it." (Jefferson County v. Ford, 4 Greene [Iowa], 370.)
The only fact upon which the defendants can rely in support of their claim that these moneys belonged to the county is, that the bonds upon which they were raised were county bonds. If a general power to borrow money for its own purposes had been given to the county, or if the money in question had been raised pursuant to law, in anticipation of the annual taxes of the county, to pay its ordinary charges and expenses under appropriations made by the board of supervisors for the support of the county government, which is the class of moneys to which the act of 1862 relates, a title in the county might be made out. In that case, the control and power of disposition of the money would be conferred by law upon the supervisors. They could appropriate and apply it to the expenses of the county government according to their discretion. But the present case is entirely different. The money was raised for a specific purpose designated in the act, and the supervisors and all the county officers combined had no authority or power to divert a single cent of it from the specified purpose. There was no grant of the money in any form to the county. There was no surplus to arise in which the county could be interested, for no more was to be raised than precisely sufficient to pay the particular claims which should be certified by the auditors. There was no direction to pay the money into the county treasury, nor was the least power or control over it given to the supervisors, not even its custody. On the contrary, the State undertook, through its own direct agents, named in the act, to administer the fund to the exclusion of any act of the supervisors. The claims were to be audited by the special board appointed by the legislature, and to be paid by the comptroller of the city. There could not, legally, be any interference in the matter by the board of supervisors.
But it is said the credit of the county was pledged to the bondholders, and, therefore, the county should have the *Page 49 money. What is the credit of the county? It is not like the credit of an individual or a corporation having power to contract debts, and property out of which they can be collected by legal process. The county is one of the civil and political divisions of the State. It holds property only for public uses, and no such property is liable on civil process for debts. The State, in this case, provided for the payment of certain debts of the county by directing the local authorities to levy taxes within the boundaries of their county, and in anticipation of the collection of such taxes authorized the issue of bonds. The creditors who took the bonds trusted the justice of the State and not the county, which was powerless to pay them, except through the means provided by the State. The obligations in question were not obligations voluntarily incurred by the county, or in consequence of any negotiation made by it, but were created by order of the State, for the purpose of carrying into effect a statute of the State, and the faith of the State is pledged not to withdraw its requirement that the local authorities shall levy the tax for the purpose of reimbursing to the bondholders the money advanced by them upon the bonds. The bonds amount to nothing more than legally authorized certificates of the amount which each holder is entitled to receive out of the tax which the State has directed to be levied, and on the faith of which tax the lender has advanced his money. The State, then, is the party by whose power and authority the money was raised and must be repaid.
The county organization is the mere agency to carry out the will of the legislature, and is compelled to do so. Can it be questioned that the State has an interest in protecting the fund, and recovering it, or its equivalent in damages, from those who have wrongfully possessed themselves of it by combining with the agent of the State? What right did the supervisors of the county ever have to the possession of this fund? It is impossible to point to any law giving them such a right. What power of disposition would they have over it should they now recover and collect it? What could they do *Page 50 with it? If it were their money they could do anything they chose with it — apply it to the payment of the expenses of the board of supervisors, or to the erection of public buildings, or to any other purposes, or to release it. But it is evident that any such use of the fund would be clearly in contravention of law. The authority to raise it was for the sole purpose of paying claims existing prior to April 26, 1870, and it could not lawfully be applied to any other. Those claims have been paid and overpaid. It is said the supervisors might apply it toward the payment of the revenue bonds upon which it was raised, or of those which have been substituted in their place. To the assertion that if the supervisors got the funds they might have exerted the physical power of applying them to the payment of those bonds, it is a sufficient answer, in law, that they had no legal right so to do, and, in fact, that they might have made some different disposition of them. To hold that where a fund raised as this was, under an act of the legislature, for a specific purpose named in the act, has not been applied to the purpose for which it was raised, the supervisors of a county have the legal right or power to apply it to a different use, is too monstrous a proposition to be seriously entertained. It would be to allow the agent to overrule the principal.
It cannot be supposed that the legislature ever intended that any such result should follow as that $6,000,000 should be raised on the credit of the taxing power of the State and placed at the disposal of the supervisors of the county of New York, without any direction as to its application, especially in view of the fact that the legislature has consistently denied to that county the unlimited power which is accorded to others, of raising by tax the amount deemed necessary for the expenses of local government, and has compelled the county of New York to come every year to the legislature with a specification of the amount desired to be raised, and of the purposes in detail to which the money so to be raised is to be applied. Not only has the general taxing power conferred upon boards of supervisors of other counties of the *Page 51 State been withheld from the county of New York, but for a long period the existence of the county as an organization was nominal merely. A record of the proceedings of the board of supervisors of that county covering a period of thirty years, prior to the year 1840, is contained in a single small volume, and they show that it existed as a county more for the purpose of designation than for any substantial governmental purpose. The territory was the same as that of the city, and the latter exercised all the powers of municipal government. In 1857, and subsequently, additional powers were from time to time conferred, and were often used for corrupt purposes, but the act of 1870 stripped the board of the most important of these powers and conferred them upon the special auditors. The proposition that the supervisors, thus denuded of power, are the proper body to call to account the State agents who have superseded them, is a solecism unsupported by law or logic. The people of the State, through their legislature, are the only power who can prescribe the ultimate disposition of this fund. (State of Maryland v. B. andO.R.R., 12 Gill J., 399; S.C., 3 How. [U.S.], 534.)
I can see no ground upon which the supervisors of the county can claim the fund or damages in question to the exclusion of the State. The only purpose for which any party can claim to recover and hold this money is for the indemnity of the tax-payers, who are or will be burdened with the bonds. But there is no law creating the supervisors trustees for any such purpose. Supervisors are not the representatives or guardians of the tax-payers. They are local officers whose duties are definitely prescribed by statute, and they cannot exceed the powers thus conferred upon them. The actions which they may bring are confined to such as are specified in the statutes and necessary to enforce liabilities or duties enjoined by law to them or to the body which they represent, that is, the county in its corporate character. They have no right to intervene for the protection of the general interests of the inhabitants or tax-payers of the county. (2 Denio, 464; 17 N.H., 214; 6 Allen, 356; 4 Black [Ind.], 256.) This duty *Page 52 specially devolves upon the State authority. (Davis v. TheMayor, 2 Duer, 663; S.C., 14 N.Y., 526; Attorney-General v.Eastlake, 11 Hare, 223.) The legal custodian of the fund which may be recovered in this action is not pointed out by any statute, and this is very natural. The existence even of such a fund was unanticipated, as it was not intended that any more money should be raised on bonds than should be paid out on regularly audited claims. But I think it a safe and a necessary doctrine, that where moneys are thus raised, under color of law, upon obligations which are a burden upon the tax-payers of the State at large, or of a particular locality, and such moneys are unlawfully appropriated by individuals, and there is no local authority or officer clearly vested by law with the right to sue for their recovery, the State must of necessity be held to be the proper party to prosecute. Were it otherwise, public funds thus situated would be wholly unprotected and liable to be plundered with impunity.
But assuming that there was a right of action in the supervisors, as contended by the defendant, such right of action must have been founded upon some title to the fund conferred by the State. If the title to the fund was thus conferred upon them, it could only be held for public uses theretofore declared, or thereafter to be declared, by the legislature. It is impossible to conceive of any other kind of property they could have had in the fund. Certainly, no individual right or interest in it. Supposing, then, that on some such ground the supervisors had a right of action, but that they refused or neglected to prosecute, was there then no redress? Could those who had taken the money retain it and be free from all responsibility for their acts? And must the tax-payer quietly submit to be taxed for the benefit of the wrong-doers? No one has as yet ventured to assert so bold a proposition. On the contrary, it seems to be conceded that in such a case the State might sue, but it has been suggested that, to entitle the people thus to intervene, they should have alleged in their complaint the refusal or neglect of the county officers to prosecute, and *Page 53 that with such an allegation the action might be maintained in behalf of the people. This necessarily concedes some interest on the part of the people in enforcing the claim against the defendants, for if they have none, the failure of particular persons or officers to prosecute could confer no right upon them. If, then, the people have an interest in the controversy, on what principle can it be claimed that they must defer to their subordinates and await their pleasure?
The case of stockholders in private corporations is claimed to be analogous. In such cases it has been frequently adjudicated, that for the recovery of property belonging to the corporation, or of damages sustained by wrongs done to it by its officers or others, the stockholders, although being those ultimately injured by the wrongs complained of, will not be heard in court, unless the persons who are appointed by law to represent their interests refuse to perform their duty, or are so far implicated in the wrongs to be redressed that it would not be safe to intrust the prosecution to their hands. Under those circumstances, courts of equity will entertain a proceeding by the stockholders in their own names. But the ground upon which stockholders are allowed to prosecute in the case supposed is totally different from that upon which the State claims to intervene in the present case. Stockholders have no interest to represent or protect, except their own pecuniary interest in the property of the corporation, and it is necessary, before they can be heard, to show that their rights are not duly cared for by those whom the law has appointed to protect them. But the interest of the State in the questions now at issue is of a totally different description. It is not for the protection of a proprietary or pecuniary interest of its own in the subject-matter that it claims the right to intervene, but for the protection of a portion of its citizens against the wrongful act of its own appointees and their confederates, who have, under color of authority conferred by the State, raised and appropriated to their own use a large sum of money, which must be repaid by the tax-payers of the division of the State where the money was raised. There is *Page 54 no similarity between the position of the State in such a controversy and that of a stockholder in a private corporation. To the State primarily belongs the power, and upon it devolves the duty, of redressing just such wrongs; and unless it has in this instance delegated to some of its departments not only the right, but the exclusive right, to perform this duty, it has not stripped itself of its own powers, or rendered an application to its delegates and a refusal on their part to act a necessary preliminary to its own invocation of the action of the judiciary.
It is claimed on the part of the defendants, and this is the plea upon which they have expended the most of their force, that it would be placing too much power in the hands of the attorney-general to allow him, without an express statute, to institute proceedings against public officers charging them with abuses of public trust. This is a very feeble argument; as well might it be urged that a general power of attorney from one individual to another to prosecute and defend all actions in which the principal actually, or in the judgment of the attorney, had an interest was impolitic and void, as giving to the attorney too much power; yet this is the power of attorney which the State has given to its attorney-general and requires him to execute. It must be borne in mind that the only power of the attorney is to bring the matters in dispute before the courts in proper form for their adjudication. The attorney has no power to decide them, whether he be an attorney for an individual or for the State. His province is simply to lay the question in dispute before the court. True policy would seem to dictate liberality in thus permitting controversies to be ventilated. The responsibility of deciding them does not rest with either party, but with the tribunals of justice before whom the cause is heard. The safety of the public is, in my humble judgment, better subserved by throwing open than by closing approaches to these tribunals for the remedy of public wrongs of the description disclosed in this action.
The only substantial ground upon which the defendant *Page 55 in such a case might, with propriety, decline to answer at the suit of the attorney-general, would be that a recovery by him and satisfaction thereof would not be a bar to a subsequent action for the same cause by the local authority. If this could be made out it would be a perfect answer to the action; but it cannot. When the suit is brought by the attorney-general, in a matter within his authority, no other involving the same questions can be instituted. And when a judgment is pronounced in such a suit, as the attorney-general represents the public, all persons are bound by the decision. A judgment for or against the defendants in the present action would, consequently, be a perfect protection to them against any subsequent or other action against them for the same acts.
I have not referred in detail to the authorities upon which I have relied in confirmation of these views. They have been elaborately cited and discussed in the briefs and in the arguments of the eminent counsel on both sides who have argued before the court, and references to them will be made by the reporter. It is sufficient to say that I have carefully examined them and discussed them with my fellow judges, and that but for the prolixity which would be occasioned by an extended review of them, and a demonstration of their applicability to the present case, I would cheerfully devote myself to that labor. I think it more useful to state the results. In my opinion the judgment should be reversed, and judgment should be rendered for the plaintiffs on the demurrer, and leave to answer should be granted.
All concur for affirmance, except CHURCH, Ch. J., and RAPALLO, J., dissenting.
Judgment affirmed. *Page 56