In re the Summary Investigation of the Financial Affairs of Town of Eastchester

Majority

p. 700

In the Matter of the Summary Investigation of the Financial Affairs of the Town of Eastchester.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

1. Municipal corporations—Towns and villages—When investigation OF FINANCIAL AFFAIRS MAY BE BAD—LAWS 1879, CHAP. 307.

The act entitled ‘ * an act to provide for the summary investigation of unlawful or corrupt expenditures by officers of towns or incorporated villages, and for restraining the same ” (Laws 1879, chap. 307), is in no sense an act to punish acts already done, but to prevent the doing of acts prejudicial to the public interest.

3. Same—Specific remedy—Not affected because of other remedies.

The fact that the petitioners had other 'remedies to prevent waste of the public moneys is not material, as the statute in question gave them a specific remedy.

3. Same—Bills audited by town board.

' Nor does the fact that the bills had been examined and audited by the town board affect the question.

Appeal taken by the supervisor of the town of Eastchester and by David Quackenbush, the said supervisor, individually, from an order made by Mr. Justice Dykman, made and entered March 5th, 1889, appointing Francis

p. 701

Larken, Jr., James S. Millan and Peter U. Fowler, experts, to examine into the financial affairs of the town of Eastchester. The petition for the appointment of experts was drawn and presented to the court under chap. 307 of the Laws of 1879.

It is claimed by the petitioners, that the following act is authority for the granting of said order and the investigation therein directed to be made:

Laws 1879, chapter 307. An act to provide for the summary investigation of unlawful or corrupt expenditures by officers of towns or incorporated villages and for restraining the same.

Section 1. If twenty-five freeholders in any town or incorporated village in this state shall present to any justice of the supreme court having jurisdiction therein an affidavit subscribed and- sworn to by themselves, setting forth that they are freeholders, and have paid taxes on real estate within one year, and that they have cause to believe that the moneys of such town or incorporated village are being unlawfully or corruptly expended, it shall be the duty of such justice, upon ten days’ notice to the supervisor or supervisors where there are more than one and the particular disbursing officer if any of such town making the expenditure or the trustees and treasurer of such incorporated village, to make a summary investigation into the financial affairs of such town or incorporated village, as the case may be, and the accounts of such disbursing officers or treasurer as the case may be, and at his discretion he may appoint an expert or experts to make such investigation, and may cause the results thereof to be published in such manner as he may deem proper. It shall be the duty of the supervisor or supervisors and disbursing officer of such town, or the trustees and treasurer of such incorporated village, as the case may be, to obey all orders of such justice directed, to them, for facilitating such investigation, and any refusal or failure by said supervisor or supervisors or trustees to obey such orders may be punished as for contempt; the cost incurred in such investigation shall be taxed by said justice, and paid upon his order by such supervisor or supervisors or trustees, as the case may be, whose expenditures shall be thus investigated, when the facts charged in such affidavit shall be substantially proved in such investigation, and by the freeholders making such affidavit when the facts charged therein shall not be proved by such investigation.

§ 2. Upon the said justice becoming satisfied that any of the moneys of such town or incorporated village are being unlawfully or corruptly expended, and being appropriated to purposes to which they are not properly applicable, or are improvidently squandered or wasted, he shall forthwith grant an order restraining and prohibiting such unlawful or

p. 702

corrupt expenditure, appropriation, squandering, or waste of such moneys, under penalty for disobedience of fine or imprisonment, or both, in the discretion of the court.

B. L. McClellan, for app’lt; Henry W. Bates, for resp’t.

The act in question is a remedial statute, passed to prevent waste of public moneys, and must be liberally construed to effectuate such intent. It is in no sense an act to punish acts already done, but to prevent the doing of acts prejudicial to the public interest.

The petition was in due form, and contained all the allegations necessary to set the machinery provided in the act in motion.

The fact that the petitioners had other remedies to prevent waste of the public moneys, is not material, as the statute gave them specifically this remedy.

Neither does the fact that the bills had been examined and audited by the town board, affect the question, If a bill is fraudulent, the fact of its being audited gives it no vitality. The' statute was passed to stop the payment of such bills, and the fact that they are audited raises a presumption that the moneys of the town are being illegally •applied.

The objection that the experts appointed were vested by the order with any illegal powers, was not well taken. The •order, in every respect, complied with the statute, and the . order must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.