People ex rel. Commissioners for Erection of a Public Market v. Common Council

| NY | Sep 15, 1866

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 2d. 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 creatmg the stock 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 the fifth section of the statute is : “ The mayor, aldermen and commonalty of the city of Hew York are hereby authorized and directed to create a public fund or stock, to be denominated ‘ 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 the sixth section, that the comptroller cannot act until the stock has been created as provided in the fifth section of the act. It is the stock mentioned in the fifth section, and none other, that he is to issue; and it would be a fatal answer to an application for a ma/ndamus 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 Hew 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 on the ground that the statute, in language, imposes the duty to create the stock upon “ the mayor, aldermen and commonalty of the city of Hew 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 Hew York, which can'create the stock under the statute. It must be done by an ordinance, and that can only be enacted by the legislative department, viz.: the common council. (City Charter, Laws of 1857, vol. 1, p. 874.)

The order of the Supreme Court should be affirmed.

All the judges concurring,.

Order affirmed.