676 



NEW YORK. 



the cost of the property. After this had be- 

 fallen him, the persistent effort of Mr. Donnel- 

 ly to prove the innocence he had always de- 

 clared had this result: The two offenders were, 

 unknown to each other, carefully examined. 

 Their object having been accomplished, each, 

 unknown to the other, told the same story. 

 They said they had lied on the stand, on legal 

 advice, being told if they would swear they were 

 merely accessories their punishment would be 

 lightened and their victim would get the main 

 punishment. They swore the offense on Mr. 

 Donnelly, though he was wholly innocent. 

 The further evidence of handwriting confirmed 

 this confession, outside of their statements. 

 They also showed where the money that re- 

 mained could be had. It was found there. 

 On this state of facts, Governor Robinson par- 

 doned Mr. Donnelly. The moral, social, and 

 business injury done him gave much interest 

 to his case. After consideration, the Legisla- 

 ture, on April 18, 1879, passed an act author- 

 izing Mr. Donnelly to present a claim to the 

 State Board of Audit for the damages sustained 

 by him by reason of his improper conviction 

 and imprisonment on false testimony, for the 

 alleged crime of forgery. By the same act, 

 the Board of Audit was authorized to hear and 

 pass on said claim, and to award such compen- 

 sation for the damages sustained by Mr. Don- 

 nelly, in consequence of such conviction and 

 imprisonment, as should appear to be just and 

 reasonable. The Governor signed the bill. The 

 Board of Audit, by ample testimony, estab- 

 lished the facts above stated. Mr. Donnelly 

 proved by twenty witnesses his good charac- 

 ter, after having shown the injustice done him 

 and his. He then proved completely a direct 

 loss of $8,000 in property and loss of time, 

 etc., as if the case had been a technical one 

 between him and another man, before a jury, 

 and a consequential loss of $22,000 more. The 

 Board of Audit allowed only the direct legal 

 loss of $8,000. The Legislature voted the 

 money. The allowance was opposed by the 

 First Deputy Attorney-General as dangerous 

 as a precedent ; he declared it was untenable 

 except under the special act on which the Board 

 was acting; that that act made the allowance 

 of any award discretionary and not mandatory ; 

 that the act itself was a circumvention of the 

 general prohibition that the Legislature should 

 not audit or allow private claims against the 

 State ; that the allowance of any damages 

 would open an infinitely wide door of expense 

 and abuse. 



The question, Is a State bound to pay pro- 

 spective profits under the form of damages on 

 the change of a contract ? was decided by the 

 Governor in the negative by his refusal to ap- 

 prove an item of $65,000 in the general appro- 

 priation bill. After some progress had been 

 made on the State Reformatory at Elmira, the 

 Legislature, dissatisfied with the manner in 

 which it was being carried on and the unex- 

 pectedly large expenditures incurred and likely 



to be incurred, passed an act in effect putting 

 an end to the progress of the work under the 

 contract which had been entered into by the 

 commissioners, and adopting a new and more 

 satisfactory method of completing it. The con- 

 tractors were fully paid for all that they had 

 done and all the materials that they had fur- 

 nished, and suffered no loss whatever at the 

 hands of the State. The claim made by the 

 assignee of the contractor was not for any ac- 

 tual loss, but solely for the prospective and un- 

 certain profits he might have made if permitted 

 to go on with the work. In vetoing the item the 

 Governor said : "I hold that a sovereign State, 

 in the discharge of its powers and duties as an 

 independent government, is at all times at full 

 liberty to change its policy in regard to any 

 public building in which the whole State has 

 an interest; and that if, upon such change by 

 a public law, it takes care to prevent any actu- 

 al loss to a contractor and keeps him entirely 

 whole, it does all which it is in good faith bound 

 to do. Parties who contract with the govern- 

 ment know full well when they do so that it 

 has, and must have, the right to exercise the 

 power of changing its policy and its course of 

 procedure in public affairs. It is not reduced 

 to the level of an individual engaged in private 

 business in this respect, and can not be held 

 liable as such. This inherent right of the gov- 

 ernment becomes, therefore, in fact a part of 

 the contract." The opinion of the Attorney- 

 General was also taken, who maintained the 

 same view, and enforced it by reference to the 

 state of the law relative to public officers re- 

 moved from office. He said : 



In constructing public works the State acts as a sov- 

 ereign. It exercises for that purpose its sovereign pow- 

 ers of taxation and of eminent domain. It acts for the 

 whole public and not for private benefit. It employs 

 agencies for such purposes as it creates, and provides 

 and abolishes compensation for official agencies for the 

 administration of public affairs j and, except where 

 restrained by constitutional provisions, the will of the 

 people, as expressed through the Legislature and the 

 forms of law, is supreme. It has been accordingly 

 held by the Court of Appeals that the act of 1874 was 

 a legitimate exercise of legislative power. It was an 

 expression of the will of the sovereign that the public 

 interests required changes in the construction of the 

 Eeformatory and the superintendence and method of 

 the work. In the case of public officers (in the ab- 

 sence of constitutional restrictions), the State may em- 

 ploy and dismiss them at pleasure ; may increase or 

 diminish their compensation, or abridge their terms of 

 office. Although a public office is in the nature of a 

 contract between the incumbent and the public, the 

 incumbent has no vested title and no legal claim for 

 damages by reason of the abrogation of his office or 

 diminution of his compensation. Upon this question 

 the Supreme Court of the United States has said ; 



" The promised compensation for services actually 

 performed and accepted, during the continuance of the 

 particular agency, may undoubtedly be claimed, both 

 upon principle_s or compact and of equity ; but to in- 

 sist beyond this on the perpetuation of a public policy 

 either useless or detrimental, and upon a reward for 

 acts neither desired nor performed, would appear tc 

 be reconcilable with neither common justice nor com- 

 mon sense. The establishment of such a principle 

 would arrest necessarily everything like progress or 

 improvement in government. ... It follows, then, 



