People ex rel. New York Inebriate Asylum v. Osborn , 1870 N.Y. App. Div. LEXIS 71 ( 1870 )

By the Court, Gilbert, J.

This is an appeal from an order made at a special term, held in and for the county of Delaware, on the 11th day of August last, awarding a peremptory mandamus against the defendant, the former treasurer of the relator, commanding him forthwith to pay over to Francis T. Newell, his successor in office, the ‘ moneys in his hands, which he received as such former treasurer, and to deliver over to said Hewell the books of account and all papers and vouchers belonging to said relator, which he received as such former treasurer.

The appellant retains these effects of the relator pursuant to authority and directions given him by the commissioners of the land office, acting under an act of the legislature passed in 1870. This act is as follows : “The commissioners of the land office are hereby required to examine into the management of the inebriate asylum at Binghamton, by the superintendent and other officers of that institution, and to take such action (if any) to protect the interest and property of the State in said asylum as they may deem necessary, and to report to the next legislature their action thereon.” (Laws of 1870, ch. 704, § 3.)

It was held by the court below, and conceded on this appeal, that the legislature had the power to pass an act empowering the commissioners of the land office to give to the appellant the authority and directions under which he justifies his acts, of which the relator complains; and such undoubtedly is the rule of law, whether we regard the relator as a private corporation,' or as simply an instrumentality provided for the administration of a public charity. But it is urged that the act confers no such power; that it neither repeals nor modifies the statute incorporating the relator, and that therefore the exclusive power vested by such statute in the trustees of the corporation continues. It may be admitted that the act of 1870 did not have the effect to directly repeal ór modify the charter of the relator, or any part thereof. It contains no repealing clause, and its provisions are not of a character to work a repeal by implication. But this is by no means decisive of the case.

The legislature may, in many ways, interfere with the actual administration of the affairs of a corporation, without destroying its corporate existence, or impairing the powers of its managers or trustees. Instances of the exercise by the legislature of this kind of visitorial power have b,een numerous. The powers: conferred upon the bank commissioners, by the safety fund act, and upon the comptroller, in relation to insurance companies, and upon the comptroller of the currency, by the act of congress relative to the national banks, occur to me as examples of the legislation to which I refer.

Generally, where the property or effects of a corporation are seized or sequestrated by virtue of statutes of this kind, the statutes themselves provide some mode of judicial proceeding for the purpose. Such a provision, however, is not essential to the validity of the statute. On thq contrary, it is a well settled rule, that where the legislature have the power to provide redress for either a public or private wrong, the remedy or mode of redress is wholly a subject of legislative discretion. The sole question in the case then is, what is the meaning of the act of 1870? We think it is very plain. The commissioners are to do two things: 1st. They are to examine into the management of the asylum by the superintendent and other officers of the institution; and, 2d. If they deem any action necessary to protect the interest and property of the State in such asylum, they are required to take such actiom The only conceivable limit on the power vested in the commissioners to act is, that their action shall be reasonable and adapted to the accomplishment of the object the legislature intended, namely, the protection of the interest and property of the. State. We are of opinion that in both these respects the action of the commissioners was unobjectionable.

The learned justice, in the court below, held that the commissioners had, if they deemed it necessary, a right to control the funds, but that they must do it through and in the hands of the legally constituted treasurer of the company. We cannot consent to this view. It was competent for the commissioners to select a depositary of the funds. If they had selected the treasurer now in office he would, pro hae vice, have been the agent of the commissioners, in the same sense that the appellant now is, and in respect to the funds which the commissioners sequestrated,- he would not have any power or control by virtue of his office as treasurer of the corporation, but only the right to hold the same as a mere custodian under the direction of the commissioners. The commissioners, therefore, having the power to sequestrate the funds, it is quite immaterial whether they used the former or present treasurer for that purpose.

[Second Department, General Term, at Brooklyn, December 15, 1870.

The papers show that the real estate connected with the asylum belongs to the State; that there is a mortgage for $60,000 upon it, which falls due May 1, 1871, and that there are no funds applicable to the payment of it, except the funds in the hands of the appellant. These facts are sufficient, certainly, to justify the acts of the commissioners in causing the funds of the corporation to be secured, and placed in the custody of a person selected by themselves ; and it may be that a due protection of the State required the detention of the books and papers and vouchers also. We cannot say that it did not. The power vested in the commissioners is quasi judicial, and wholly discretionary. Such a discretion, except in a case of palpable abuse, is beyond judicial control by the writ of mandamus. Ho such abuse has been shown. We think there is nothing in the objection raised, that the act of 1870 violates the constitution. The law took effect upon its passage, and was in no sense dependent upon the action of the commissioners.

The order appealed from must be reversed, with costs.

/. P. Barnard, P. J., and Gilbert and Pratt, Justices.]