28 Barb. 65 | N.Y. Sup. Ct. | 1858
This action is brought in the name of the People and A. 0. Flagg, as comptroller of the city, and a corporator and tax-payer, on his own behalf, and on behalf of all other corporators and tax-payers, against the defendants, to obtain an injunction staying the proceedings upon a judgment, and praying that the judgment recovered by the defendant Lowber may be set aside, and that the defendants, the mayor, aldermen and commonalty of the city of New York, may be enjoined from completing the purchase of certain land, from Lowber, for a market purpose, and to declare such contract void. The common council, by resolution, directed such purchase to be made, in January, 1857, by the board of aldermen, and in February, 1857, by the board of councilmen, and which resolution became a law at the expiration of ten days, by the omission of the mayor either to sign or return the same with his objections thereto. The defendant Lowber thereupon prepared a deed, and submitted the same to the counsel of the corporation, who approved thereof, and of the title to the property therein described. The deed was tendered to the mayor and comptroller, who refused to accept the same or complete the purchase. Subsequently Lowber brought an action against the mayor &c., and recovered against them the amount
The people of this state are also joined as plaintiffs; and the question is thus presented whether they can maintain an action against a municipal corporation for any alleged fraud in making a contract, or to prevent the exercise of powers not possessed by them under their charter. Proceedings by way of information have often been brought in England and this country against corporations, and are common in the boobs. Those proceedings have repeatedly been sustained to
These views are fully sustained by the case of Ketchum v. The City of Buffalo, (21 Barb. 294.) The court says, “ The power to establish a market being granted, all the powers necessary for the exercise of this power are implied. The power expressly granted, or right expressly given, could not be carried into effect or exercised without land, and therefore the common council had the power to purchase, take and hold the land necessary for the establishment of a marketalthough in that case other provisions of the charter authorized the purchase of the land, still, that does not weaken the force of the argument on that point. The two provisions of the charter must be so construed as to give effect to both; and, while this limitation is to be applied to the purchase of land by the city for other purposes, (if it now has any force whatever) it does not destroy or control the right previously conferred, to erect and establish markets, and, as a necessary consequence^
These views dispose of the objection that the common council, in buying this land, did an act not authorized by the charter, and exceeded the limitation in the charter as to the amount of real estate they were authorized to hold.
Itis also urged, infavor of maintaining this action, that by the charter, no executive business should be performed by the common council, but that the executive power of the corporation should be vested in the heads of the departments. Without stopping to examine the question, whether the purchase of land by an ordinance or resolution, is an executive act within the meaning of the charter, of which I entertain great doubt, there is clearly, in the resolutions passed by the common council for the purchase of this land, no violation of that section (Sec. 9, Amended Charter.) The resolution authorizing the purchase, directs the comptroller to make the purchase for the use of a market, limiting him as to price, and defining the dimensions of the land to be purchased. The comptroller had previously advertised for and received proposals for the sale of the land in that neighborhood, and had submitted such proposals to the common council. The selection from those offers, of the land best suited for the purposes contemplated, and the limitation of the price, was a legislative and not an executive act, within the province of the common council, and was properly exercised by them. The duty that was executive was making the contract, receiving the deed, and making the payment. This duty was by the resolution confided to the comptroller ; and, so far as any thing appears before me, I see no executive act performed, or attempted to be performed, by the common council in this matter. I do not understand this section as taking from the common council the right to control by legislation the discretion of the officer, in selecting themselves the site, and fixing the price at which the purchase is to be made; but, after these things are settled by an act of legislation, they cannot either by a committee or otherwise, do any thing
These are all the grounds on which the plaintiffs’, counsel seek to restrain the defendants, except the alleged fraud on the part of the corporate authorities. If any such fraud is charged, equity can give relief on a proper application. The corporation might undoubtedly apply, and where the common council is so frequently changed in its members, the fair supposition is, that a successive body would require such a proceeding to be commenced, if they believed fraud had existed. There is still time for the present common council to institute proceedings if any fraud has been discovered. In the absence of proceedings on their part, I have, for the purposes of this action, conceded that the attorney general might commence the action. It is, therefore, unnecessary to examine the complaint, to ascertain whether any such fraud is charged in the transaction as would vitiate the proceeding.
Where the whole foundation of the action rests upon fraud, such fraud should be charged as the ground of the action. If, without such allegation, the people, by the attorney general, have no right to interfere, then it should be shown by the complaint that the parties had been guilty of acts of fraud, which would authorize the court to restrain the collection of a judgment that appears to be regular. The complaint shows the above proceedings by the common council, in authorizing originally the purchase by the comptroller; the presentment of the deed by Lowber and demand of the purchase money; the action brought by Lowber and recovery of judgment thereon; that
It appears to me that these facts as stated in the complaint do not show such a state of things as will warrant the court in charging fraud upon the common council. No fraud is averred. They are charged with neglect of duty in refusing to apply to set aside the judgment and with proceeding in violation of the provisions of the charter, but- no fraud is charged against them, and under this complaint no fraud could be proven by which the plaintiffs could succeed.
I do not consider that the discretion of the common council in legislation can be controlled by the courts. If they have authority to legislate, their discretion as to what should be passed or rejected is a matter exclusively for themselves. They may pass improvident laws, they may make improvident purchases, they may pay for land prices which some would think exorbitant, but neither the attorney general nor a tax-payer has a right to call them before the courts to show that their legislation was indiscreet, that the prices paid by them did
Hor are the acts of the counsel any ground for maintaining this action. It was his duty to examine the title and comply with the directions of the common council, so far as those directions did not conflict with the law. His consent to refer the cause of Lowber against the corporation, even if ill-advised, was not illegal, but was expressly authorized by the code, which provides for the reference of all causes by consent. His objections to the motion in the supreme court to open that judgment were made in pursuance of a resolution passed by the common council after full knowledge of the transaction in regard to the recovery of the judgment, and of a resolution directing him to take measures to enforce payment of said judgment, which were passed by the common council and approved by the mayor in August, 1857. This deliberate action of a subsequent common council, without any charge of fraud on their part, must be treated as a ratification of the action of the previous common council in authorizing the purchase, and the counsel to the corporation would have departed from the line of his duty if he had, for any supposed want of discretion on the part of the common council in passing the resolution of purchase, or improvidence in making the contract, attempted, to disobey such resolutions. The heads of departments do not hold their places independent of the legislation of the common. council, and where such legislation is not in violation of law they have no-right or power to refuse obedience to such legislation because they may deem it unwise or improvident. On the contrary, they are only in the legitimate discharge of their duties when they comply with the legislative directions of the common council, not passed in violation of law. There is no difficulty on the part of the common council in instituting this action in the name of the corporation, if they believe the contract to have been made fraudulently or illegally; and when two successive common councils have refused to make any attempt to set aside the contract, and have expressly di
Ingraham, Justice.]
My conclusions are, that if it he conceded that the attorney general may bring an action in the name of the people to restrain a municipal corporation, it can only be to restrain them from making a fraudulent or illegal disposition of the corporate property.
That such fraud must be distinctly charged in the complaint, where it is the foundation of the action.
That no fraud is charged in the complaint in this action upon which the same can be sustained.
That the resolution passed by the common council authorizing the comptroller to make the purchase of the- land in question was within their powers as conferred by the charter.
That the common council may order land to be purchased for a market, notwithstanding the limitation in the charter as to the yearly value of land which they may hold.
And that in passing such resolution, they did not violate any of the restrictions contained in the charters of the city.
The motion to dismiss the complaint is therefore granted.