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this State, and each and every one of them, are hereby declared trustees of the property, funds, and effects of such county, town, or municipal corporation, respectively, so far as such property, funds, and effects bave been, are, or may be committed to their management or control; and every person residing in such county, town, or municipal corporation, and assessed to pay taxes therein, who shall pay taxes therein, is hereby declared to be a cestui que trust in respect to the said property, funds, and effects, respectively; and any co-trustees, or any such cestui que trust, shall be entitled, as against such trustees, and in regard to such property, funds, and effects, to all the rights and remedies provided by law of any co-trustee or cestui que trust; to prosecute and maintain any action to prevent waste and injury to any property, funds, and estate held in trust. Such trustees are hereby made subject to all the duties and responsibilities imposed by law on trustees, and such duties and responsibilities may be enforced by any co-trustee or cestui que trust aforesaid.

$ 2. This act shall take effect immediately.

Impressed, while examining the bill, with the belief that its provisions were open to serious objections, or, at least, to very grave doubts as to how they might affect, if it became a law, the vast interests involved in our numerous municipal governments, I addressed the following communication to the chief judge and the judges of the court of appeals :

STATE OF NEW YORK-EXECUTIVE CHAMBER,

ALBANY, February 12, 1872. To the Chief Judge and Judges of the Court of Appeals :

A bill is now before me, for approval, of which a copy is annexed. The bill affects all municipal governments in the State--cities, counties, villages and towns.

The intention of those who drafted the bill is unquestionably a good one, to wit: To provide additional protection against frauds by municipal officers. Two questions, however, have occurred to my mind in examining its language:

1. Whether the bill, if it become a law, in the words now used, may not operate to divest every municipal corporation of the title to its property, and to vest the legal title thereof in the various officers, commissioners, agents and other persons who may have control and management of such property, or of separate and distinct portions thereof.

2. Whether it may not operate to give to the tax-payers the exclusive right to sue for wrongs done, or in order to prevent wrongs by municipal officers, taking away the right of action in such cases from the corporation itself, and from all public officers; and may not, in fact, interfere with suits now pending.

I assume, from the title of the bill, that the Legislature did not intend to make such radical changes; they certainly intended to add to-not to diminish-the remedies against this class of wrongs.

I do not ask the members of the court to say what their construction of the bill would be, if it came before them as an enacted law. But in view of the far-reaching character of the bill, and of the extensive complications and injury that might arise from a possible construction of its present language, I feel that I am justified (and trust that you will agree with me) in asking of you the favor to read the bill, with a view simply to your telling me whether there is not room for donht on the points I have suggested, grave enough to make it wise that before it is enacted into a

law the language of the bill should be amended so as to guard against such questions. To this extent I can see no impropriety in your giving me your opinion, in view of the gravity of the questions involved; and I will be obliged by your doing so, if you see none. JOHN T. HOFFMAN.

Their answer is as follows: -
STATE of NEw York—Court of APPEALs,
ALBANY, February 12, 1872.

To His Ercellency, John T. Hoffman, Governor:

SIR.—I have submitted to my associates in the court of appeals the bill received from you, and * is before you for approval, entitled “An act for the protection of tax-payers,” etc. (Senate bill, No. 58), and they are all agreed that serious questions might arise upon the bill in its present form, both as to the title of the property covered by the terms of the act and as to whether the municipalities are not divested of all title; and also as to the right of a corporation itself, or any of its officers, or any public officer, or any person whatever, other than a taxpayer, to bring an action in respect to the property, funds or effects mentioned in this act.

The terms trustee and cestui que trust have a well understood meaning, and ordinarily indicate a right of property, a legal title in the trustee, and a beneficial ownership in the cestui que trust, to the exclusion of all rights of property, legal or equitable, in any person or corporation other than the trustee or cestui que trust.

It is not intended to express an opinion that such is the legal effect of the act, but such effect may be claimed, and a bill more carefully prepared may obviate these objections.

Truly yours,
(Signed) S. E. CHURCH.

As I said in my annual message, “it is not an unusual mistake that in providing a remedy for existing evils, others likely to come out of the remedy itself are overlooked.”

In times of unusual excitement about abuses in the administration of public affairs, and when the demand for correction and reform is urgent and loud, it is especially important that those charged with the responsibility of legislation should move with great caution, and that the most careful consideration should be given to every bill providing new remedies or making great changes in existing laws.

I deem it unnecessary to enlarge upon the objections which have suggested themselves to me, confident that the Senate will concur with me in the propriety of subjecting the bill, before it is enacted into a law, to a further examination by the judiciary committee of the Legislature, to the end that such amendments may be made to it as will carry out, effectually, the important purpose which the Legislature had in view, as indicated in the title of the '.

JOHN T. HOFFMAN.

Mr. Robertson moved to lay the same on the table.

The President put the question whether the Senate would agree to said motion, and it was decided in the affirmative.

By unanimous consent, Mr. Tiemann asked and obtained leave to introduce a bill entitled “An act to consolidate the several acts relating to Savings Banks, and to provide for a uniform administration of their affairs,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on banks. By unanimous consent, Mr. D. P. Wood asked and obtained leave to introduce a bill entitled “An act to amend an act entitled ‘An act to enable husband and wife, or either of them, to be a witness for or against the other, or on behalf of any party in certain cases, passed May 10, 1867," which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on the judiciary. By unanimous consent, Mr. Perry asked and obtained leave to introduce a bill entitled “An act to authorize the construction of a sewer in the county of Kings, from the county buildings at Flatbush, in said county,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on public health. By unanimous consent, Mr. Perry asked and obtained leave to introduce a bill entitled “An act extending the powers of notaries public in the counties of Kings and New York,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on the judiciary. By unanimous consent, Mr. Perry asked and obtained leave to introduce a bill entitled “An act to amend section 256 of the Code of Procedure,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on the judiciary. By unanimous consent, Mr. Perry asked and obtained leave to introduce a bill entitled “An act to divide the ninth and twenty-first wards, and to create a new ward in the city of Brooklyn,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on the affairs of cities. By unanimous consent, Mr. Ames asked and obtained leave to introduce a bill entitled “An act to change the name of John McDonald to John Leonard,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on the judiciary. By unanimous consent, Mr. Ames asked and obtained leave to introduced a bill entitled “An act to regulate the auditing of accounts by the board of supervisors in the several counties in this State, and the payment thereof by the county treasurer,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on the judiciary. By unanimous consent, Mr. Ames asked and obtained leave to introduced a bill entitled “An act for the relief of the Hussey and Howe Mining Company,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on the judiciary. By unanimous consent, Mr. Ames asked and obtained leave to introduce a bill entitled “An act in relation to the powers and duties of county treasurers, and to authorize certain actions and proceeding against them,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on the judiciary. By unanimous consent, Mr. Dickinson asked and obtained leave to introduce a bill entitled “An act to repeal an act passed May 4, 1864, entitled ‘An act to provide for draining and reclaiming overflowed and wet lands adjoining Black lake and its tributaries in the counties of St.

[SENATE Journal.] 26

Lawrence and Jefferson, and for improving the hydraulic powers at Ogdensburgh,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on the judiclary. By unanimous consent, Mr. Winslow asked and obtained leave to introduce a bill entitled “An act to authorize the trustees of the Black River Annual Conference to pay and transfer to the trustees of Central New York Conference certain funds and property,” which was read the first time, and by unanimous consent was also read the second time, and referred to the committee on charitable and religious societies. Mr. Ames offered the following: The special committee appointed to investigate certain charges against Senator James Wood having found it necessary, in the discharge of its duties in the city of New York, to employ for the occasion the services of a special stenographer, therefore Resolved, That such action of said committee, in that behalf, be and the same is hereby sanctioned and approved. The President put the question whether the Senate would agree to said resolution, and it was decided in the affirmative. Mr. Tiemann offered the following: Resolved, That the Presidents of the New York Central and Hudson River Railroad Companies, the President of the New York and Harlem Railroad Company, and the President of the New York and New Haven Railroad Company report within fifteen days to the President of the Senate, for the information of the Legislature, what streets or aveuues, or parts of the same, within the limits of the city of New York, above Fortysecond street, are used by them for the making up or running of the trains on said roads, with the number of tracks laid down or used for such purpose, and the number of daily passenger, freight, or other trains so run by them, or under their direction, on their respective roads, with the rate of speed at which such trains are run. And also the number of accidents that have occurred in any manner connected with the running of such trains within the period of two years preceding January 1, 1872, specifying particularly the date, locality, nature and result of each case of accident so occurring, and the number of actions at law that have been brought against the said railroad corporations, or either of them, on account of such accidents to life or property. And also what amount of rent or money has been charged or received during the year 1871, by either of the said railroad companies from any person or corporation, for the privilege of using any rails or tracks now laid down within the city of New Yotk. The President put the question whether the Senate would agree to said resolution, and it was decided in the affirmative. Mr. Lewis offered the following: Whereas, By chapter 654 of the Laws of 1871, “An act making an appropriation to pay the expenses of the collection of tolls, superintendence, ordinary repairs, and maintenance of the canals for the fiscal year commencing on the first day of October, 1871, passed April 20, 1871,” there was appropriated the sum of $1,275,750, of which sum there was appropriated the sum of $1,000,000 for the ordinary repairs of said canals, apportioned to the several divisions as follows: To the eastern division, $400,000; to the middle division, $300,000; and to the western division, $300,000; and Whereas, An act making an appropriation of $780,000 for deficiency in Food appropriation for the fiscal year ending September 30, 1873, for ordinary repairs of the canals to that date is now called for, o: tioned as follows: To the eastern division, $500,000; to the middle division, $150,000; and to the western division, $120,000; and Whereas, Proper appropriations for the purpose named cannot be made intelligently by this Legislature without a knowledge of the amount of the appropriation passed April 20, 1871, remaining unexpended on the first day of January, 1872; therefore, be it Resoleed, That the Auditor of the Canal Bepartment be requested to furnish the Senate with a detailed statement of the expenditures for ordinary repairs for each of said divisions from the first day of October, 1871, to the first day of January, 1872, and also with the amount remaining on hand of such appropriation belonging to each division unexpended, and what amount of liabilities, if any, remained unpaid chargeable to said divisions on the first day of January, 1872; and further, to report what deficiency, if any, existed in the appropriation for the ordinary repairs of the canals for the fiscal year ending the 30th day of September, 1871, and if such deficiency existed, in what manner it has been provided for. The President put the question whether the Senate would agree to said resolution, and it was decided in the affirmative. - The Senate then resolved itself into a committee of the whole, and proceeded to the consideration of general orders, being the bills entitled as follows: “An act to repeal chapter 321 of the Laws of 1870, entitled ‘An act to provide for the appraisal of canal claims against the State.” “An act concerning the Sodus Bay, Corning and New York Railroad Company, and providing for a change in its corporate name.” “An act to amend an act entitled ‘An act to incorporate the Utica and Mohawk Street Railroad Company,” etc., passed May 17, 1869.” After some time spent therein, the President resumed the chair, and Mr. Palmer, from said committee, reported progress on said first named bill, and asked and obtained leave to sit again. Mr. Palmer, from the same committee, reported in favor of the passage of the two last named bills, with amendments, which report was agreed to, and said bills ordered engrossed for a third reading. The Senate again resolved itself into a committee of the whole, and proceeded to the consideration of general orders, being the bills entitled as follows: “An act to amend chapter 515 of the Laws of 1869, entitled “An act for the incorporation of the Grand Lodge of the Independent Order of Good Templars of the State of New York, passed May 3, 1869.” “An act to authorize the city of Watertown to borrow money and issue bonds of the city therefor, for the purpose of liquidating its present indebtedness.” “An act to authorize the Clifton Mining Company to succeed to the rights of the Clifton Iron Company.” After some time spent therein the President resumed the chair, and Mr. Perry, from said committee, reported in favor of the passage of the first named bill, with an amendment, which report was agreed to, and said bill ordered engrossed for a third reading. Mr. Perry, from the same committee, reported in favor of the passage of the two last named bills, which report was agreed to, and said bills ordered engrossed for a third reading.

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