62 N.Y.S. 11 | N.Y. App. Div. | 1900
This proceeding was commenced by the relators, as taxpayers of the city of New York, upon an order to show cause directed to the appellants, as members of the riitinicipal council of the city of New York, by which they were required to show cause why a peremptory writ of mandamus should not issue, requiring them and each of them forthwith to approve and adopt a resolution theretofore adopted by the board of aldermen for the issue of corporate stock of the city of New York, to' pay an award made in condemnation proceedings taken pursuant to chapter 481 of the Laws of 1892, and the act amendatory thereof. By the affidavit upon which .this proceeding was instituted it appeared that a proceeding was commenced under chapter 481 of the Laws of 1892, as amended by chapter 669 of the Laws of 1893,, to acquire, for the-city of Brooklyn the use of certain reservoirs, Wells, machinery, pipes, franchises and other property of the Long Island Water Supply Company. The commissioners were duly appointed under said act, who made an award as for the value of such, property to be acquired, which was duly confirmed by the Supreme Court. The act of 1892 (Chap. 481,.'§ 12) provides that “ The proper officers of the city of Brooklyn are hereby authorized and directed to issue and to sell, in the same form and manner as is now provided for issuing and for selling duly authorized water bonds of said city, water bonds sufficient to pay the amount, or amounts, directed by -the final order tO'~be paid.” The award of the commissioners having been confirmed by' the, Supreme Court, and the order of the court having directed a sum of money to be
The corporation, counsel appeared upon the argument of this appeal and insisted that as he is by the charter the recognized legal adviser of the municipal assembly, the duty is imposed upon him to furnish to the municipal assembly and to every department, board and officer of the city, all such advice and legal assistance as counsel and attorney, in or out of courts, as may be required by them or either of them, and that no officer, board or department of the city, unless it be therein otherwise especially provided, should employ any attorney or counsel (Charter, § 255); that these appellants had no standing in court to separately appear and be heard upon the application, and had no right to appeal from an order or judgment of the court directing them as the municipal council of the city of
As before stated, this proceeding was instituted to require the ■municipal council as a branch of the legislative department of the city government to obey an act of the Legislature requiring the city of Hew York to issue bonds for a public purpose. These appellants, as individuals, had no interest in the proceeding. As public officers they were required to perform a public duty and the proceeding w;as to compel the performance of that public duty. It was the municipal ^council as a body that was before - the court, and it was1 the official acts of such municipal council that the court was asked to control; and while the writ necessarily ran to each individual member of the council, it was directed to him as a member of the. council and in his public capacity as one of the council of the city of Hew York. By the charter (§ 255) it is expressly provided that the corporation counsel shall be the legal adviser of the mayor, the municipal assembly and the various departments, boards and officers, and it was his duty to furnish to the municipal assembly, and to every department, board and .officer of the city, all such legal advice and legal assistance as counsel and attorney, in or out of court, as might be required by them or either of them. It thus became the duty of the counsel to the corporation - to appear for the municipal assembly, or either of its branches, or its members when proceeded against as members of either of 'such bodies, as their attorney and counsel, and the section of the charter then continues : -‘Ho officer, board or department of the city, unless it be herein otherwise especially provided, shall have or employ any attorney or counsel.” It would seem that under this express legislative declaration these public officers, when proceeded against in their official capacity, must be represented in court by the corporation counsel, and are expressly prohibited from appearing by any other attorney or counsel; and any such appearance was unauthorized. It appears from the order that this objection was expressly taken in the court below, as it is there stated, and “ William J. Kelly, Esq., having, been heard ex gratia on behalf of Joseph Cassidy, Martin F. Conly, William A.
It would seem that this appeal was entirely unauthorized. As before stated, these four officials, being proceeded against in their official capacity, were expressly prohibited from appearing by attorney or counsel, the charter requiring that they should be represented by the corporation counsel. No right to appeal as individuals was given to them because they were not proceeded against individually, but as members of the municipal council, and it was the duty of the corporation counsel to appear for the council as a body, and for each individual councilman when proceeded against officially. It is quite evident from a' consideration of the charter that it was the intention of the Legislature to require all public boards and officers, when proceeded against in their official capacity, to be represented by. the corporation counsel, thus imposing upon him the obligation and responsibility of defending the city and its various departments in all legal proceedings commenced against it. In such proceedings the individual members of the city government have no personal interest except to have the duties imposed upon them properly ascertained in a legal manner. In any proceeding against officers of the city government, in their Official capacity, it is the city who is interested in ascertaining the duties and obligations imposed by law upon such officials, and it is quite proper that the city, through its regularly constituted legal representatives, should" have the right to appear in judicial • proceed- . ings which involve the obligations and duties of the city officials and
I think, therefore, that no one authorized to represent these appellants has appealed. But as it.was stated upon the argument and conceded that a motion was made at the Special Term to compel the respondents to receive the notice of appeal, which was resisted upon the ground stated above, we do not think that we should dispose of this appeal upon that point. We will, therefore, examine' the question upon the merits.
It is quite unnecessary for us to add anything to the satisfactory opinion (28 Misc. Rep. 735), given by the learned justice upon the principal question involved, namely, as to the nature of the act that the respondents below were required to perform. We think that the act was ministerial, expressly directed by the statute, and that after the new charter of the city took effect all these, public officials, whose consent was necessary for the issuance of the bonds to pay this award in question, were bound to give such consent by (the express provision of the statute so as to enable the bonds to be legally issued and a fund provided for the payment of this award. -
The point is further made by the appellants that" these relators as ■ . taxpayers cannot maintain this proceeding of enforce the obligation of the city of New York to provide the money necessary to pay the amount awarded for the property taken in the condemnation' proceedings before mentioned. By the statute under which these con-. dernnation proceedings. were instituted (Chap. 481, Laws of 1892,
It has long been recognized that any citizen or taxpayer of a municipal corporation can apply to the court for a mandamus to compel a municipal corporation, or its officers, to comply with or perform any act of the Legislature which affects the public interest. This rule is stated by Judge Daniels in the ease of People ex rel. Boltzer v. Daley (37 Hun, 467): “Where the act omitted, to be performed affects the public interests generally, and all citizens are
Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred.
Order affirmed, with costs.