People ex rel. Commissioners v. Common Council of New York

3 Abb. Ct. App. 502

• Court: New York Court of Appeals
• Decided: December 15, 1866
• Status: Published

Opinion

By the Court.

Wright, J.

The appellants urge a reversal of the order in question on two grounds: 1st. That no action on the part of the common .council is requisite or necessary to the creation of the stock; the act itself, as is alleged, in terms, providing for and creating it; and, 2nd. That the common council owe no duty to the relators, because, by the language of the act, the duty of creating the fund or stock is imposed upon the corporation, and not upon the common council, whose members are merely the agents and servants of the corporation.

In my opinion, neither of these objections has scarcely the merit of plausibility. In the one, it is urged, in substance, that the legislature has created the stock, and all the commissioners have to do is to demand of the comptroller a compliance with the requirements of the sixth section of the act, which makes it his duty to issue the stock within thirty days after the same is demanded by the commissioners; and, in the other, that the duty of creating the slock is imposed upon the corporation, and the writ of mandamus should have been directed to that body, and not to the common council, which is only one of its constituent parts. .

1. There is no color for any argument that this is a legislative enactment creating stock, and that all the commissioners have to do is to demand of the- comptroller to issue it. The language of section 5 of the statute is: “ The mayor, aider-man and commonalty of the city of Flew York are hereby authorized and directed to create a public fund or stock, to be. denominated c market stock,’ for the amount of seventy-five thousand dollars,” &c. This is a legislative mandate to the corporation, to create the stock (the legislature not assuming to . create it)-;’ and it is the stock thus created that the comptroller is to issue, on the requirement of the commissioners; a stock created as indicated in the section, and not by an act of the legislature. It is plain, upon a mere reading of section 6, that the comptroller cannot act until the stock has been created as provided in section 5 of the act. It is the stock mentioned in section 5, and none other, that he is to issue; and it would be a fatal answer to an application for a mandamus against the comptroller, that there had been no stock as yet created under that section. In short, there is no mistaking the intent and meaning of the enactment. The duty is imposed upon “ the mayor, aldermen and commonalty of the city of New York,” that is, the municipal corporation, to create a public fund or stock, to be denominated market stock/ and, after the fund or stock has been thus created, and not till then, on requisition of the market commission, the comptroller is to prepare and issue it and offer it for sale; sell it to the highest bidder (but not at a rate less than its par value), and forthwith deposit the proceeds with the chamberlain of the city, to the credit of the market commissioners.

2. As to the objection that the common council owe no duty to the relators. It is based an the ground that the statute, in language, imposes the duty to create the stock upon "the mayor, aldermen and commonalty of the city of New York,” that is, the municipal corporation, and not upon the common council. This objection is equally groundless with that which has been considered. The rule is well established that the writ lies to the person or the body whose legal duty it is to perform the required act; as, where a corporation is required by law to do a particular act, the mandamus is addressed to that organ of the corporation which is to perform it. In the language of. some of the cases, the writ lies against the body upon whom the duty of " putting the necessary machinery in motion” is imposed. The common council is the only organ of the corporation of the city of New York, which can create the stock under the statute. It must be done by an ordinance, and thkt can only be enacted by the legislative department, viz: the common council. City Charter, Laws o/1857, vol. 1, p. 874.

The order of the supreme court should be affirmed.

All the judges concurred.

Judgment affirmed, with costs

*

When the remittitur was ordered to he filed (March 8,1867), in the s upreme court, application was made ex parte for an order for an alias mandamus to be incorporated in the formal order; but Leonabd, J., who was in the court of appeals when the cause was decided, held that the order on the remittitur should not contain such a provision, but that relators could proceed at once on the original, order. Accordingly, an application for an alias was made ex pa/i'te to Ingraham, J. (March 18,1867), who held that notice must be given. An order to show cause was then obtained, and on the return day (the corporation counsel having declined to appear and having by letter advised the common council to enact the ordinance), Judge Ingraham declined to issue an alias, doubting the power of the court to do so.

He suggested that the court of appeals should, in its order, provide for the new writ. This question was then argued at length, in writing, for the relators; and the court, having taken time to consider, finally issued the alias mandamus (April 24,1867). The common council did not obey the last writ, and proceedings to obtain an attachment were taken; but the day before that motion was to be heard, the ordinance was enacted.

According to this, the true practice seems to be, where a mandamus has been issued, and has failed of its purpose by reason of a stay of proceedings on appeal, upon the affirmance of the order granting it, to apply, on notice to the respondents in the writ for an alias.

No decisions were found directly in point, out from analogy to the proceedings in the old writs, in Fitz Herbert, and upon intimations in various cases, it was argued that alias writs were allowable.

Judge Ingraham took the ground that an alias writ could not be issued, but that the court of appeals must provide for the case in their order. He requested the counsel for the relators to consult the judges of the court of appeals, which was then sitting in this city. Counsel consulted Davies, Ch. J., who conferred with his associates, and then informed counsel that it was not within the province of that court to do more than affirm or reverse the order appealed from; that the supreme court must provide for the enforcement of its own order.

For the foregoing information, I am indebted to Cephas Bbainerd, Esq., counsel in the cause.