5 Abb. Pr. 41 | N.Y. Sup. Ct. | 1857
—Section 7of the “ Act to amend the Charter of the City of New York,” passed April 2,1849 (Laws of 1849, 280, ch. 187), requires that all appropriations of money from the city treasury “ shall be based upon specific and detailed statements, in writing,- of the several heads of departments through the comptroller.” It is objected to the present motion that the counsel to the corporation did not transmit to the Common Council any such statement in writing as a basis for the appropriation made in the resolution of that body men
The ground upon which the injunction was originally issued was, that the appropriation, as made, was contrary to law. • If, on examination, that objection to the appropriation proves well founded, the injunction must stand; if not, it must be dissolved. The further ground for the injunction laid in the complaint, viz., that the proceedings of the mayor, in aid of which the appropriation was made, were factious, of evil example, &c., is not such as I feel willing to act upon, or even to examine. If the legislative authority of the city have, in any case, the power to make an expenditure like that now under examination, I disclaim all power to revise the propriety of their action in this particular case. It is for them to decide upon the necessity of the expenditure, and whether its tendency will be good or evil; whether it will disturb the public peace, and he injurious to the citizens or tax-payers of the city, or otherwise. All such considerations as these are to be urged upon the Common Council, while the resolution is in progress of adoption. After adoption, the only question for the court is, as already said, the one of power ; and that, not merely as to this particular act, but the power to pass any similar enactment, upon whatever subject, but presenting the same features as the present one.
It is to be remarked that, upon the argument of the motion, no question was made as to the plaintiff’s right to maintain this action, and it has, therefore, not been examined.
To a proper examination of the question presented, it is necessary to revert to the resolutions making the appropria
As finally enacted, the resolutions, with the preamble accompanying them, were in the following language:—
“ Whereas, It is represented that the Legislature of this State has, during the present session, passed various acts relating particularly to the city of Hew York; and
“ Whereas, It is represented that many of said acts are calculated to, and do impair and interfere with the property, rights, franchises, privileges, and powers of the corporation of the city of Hew York; and
“ Whereas, The said acts were passed without the application or assent of said corporation; therefore
“Resolved, That the counsel to the corporation be and is hereby requested to report to the Common Council, without delay, what acts have been so passed by said Legislature, setting forth copies thereof.
“Resoloed, That if he deem it necessary, the said counsel be authorized and empowered to consult and advise with su=ch other counsel as he shall see fit, touching the validity and effect of the said several acts, and each of them, and present to the Common Council an opinion in detail in-regard thereto.
“Resolved, That the sum of $10,000, or so much thereof as may be necessary for this purpose, be and the same is hereby appropriated to pay the charges of such additional counsel as the counsel to the corporation may see proper to associate with himself for the purpose aforesaid, and for the purpose of defraying the expenses of any suit or suits which have been commenced or may hereafter be commenced by the" mayor, to test the validity or constitutionality of the recent acts of the Legislature referred to.”
These resolutions, as required by section 4 of the act of April 12, 1853, chapter 217, further amending the charter of the city of Hew York, originated in the Board of Councilmen, and were passed by them and sent to the Board of Aldermen for concurrence. As thus passed by the councilmen, the sum appropriated was $5,000, and the only purpose to which that money could be appropriated was the payment of the charges of the additional counsel to be associated with the counsel to the cor
As thus amended, the resolutions were passed by the Board of Aldermen; the amendments were concurred in by the Board of Councilmen, and the resolutions were approved by the mayor.
The present motion is for such a modification of the injunction originally issued in this case, as to permit the payment of the charges of the additional counsel to be employed by the counsel for the corporation. But no application is made for the entire dissolution of the injunction, or for any such modification of it as shall permit the payment of any moneys for the purpose of defraying the expenses of any of the suits mentioned in the amendment to the resolution. These suits, it sufficiently appears on the present motion, were not instituted or conducted by or under the direction of the counsel to the corporation, nor by the direction of the Common Council, but independently of both, and by attorneys and counsel not employed by the city, or in any way responsible to it for the manner in which they shall perform their duties. If the city authorities can thus assume to defray the expenses of these suits, I do not see why they may not do the same for every suit which may be prosecuted or defended by any citizen of the city or county, in the event of which the Common Council may declare that the city has or may have any interest.
Since the issuing the injunction in this case, the question of the liability of the city of Hew York for the expenses of suits at law involving its interests, but not conducted by or under the control of its own counsel, the proper' head of its Law Department, has been examined by Mr. Justice Davies, in the case of Rawson a. The Mayor, &c., of New York (4 Abbotts' Pr. R., 342). The principles established in that case clearly show that the Common Council cannot do what they have undertaken to do by the amendment made in these resolutions by the Board of
It was upon this view, doubtless, and the authority of the case of Rawson a.The Mayor, &c., of New York, that the present motion was made, not for the dissolution, but for- the modification of the injunction. I did not understand the counsel for the defendants to deny that the appropriation, so far as it purports to authorize the payment of any part of the sum appropriated to the defraying of the expenses of the suits brought or to be brought by the mayor, is contrary to law, and void. He contends, however, that the other purpose of the appropriation is legal and valid, and that the court ought not to restrain the payment of the money thus appropriated to that object.
• On the part of the plaintiff it is contended that the appropriation, being of a sum in gross to several objects, some of which are bad, it cannot be apportioned. It cannot stand as an appropriation of $10,000 to such one or more of the several objects referred to as may be deemed lawful.
This position presents the main question in the case. It is, when stripped of all extraneous matter, a simple one, and may be thus stated: Where a legislative body of limited powers attempts to accomplish, by a single enactment, two distinct purposes, one of which is within and the other is beyond its powers, is the act sought to be done void in the whole, or only so far as it exceeds the powers conferred on the Legislature ?
It was contended on the argument by the defendant’s counsel, and, in my judgment, the position is correct, .that the rules of construction applicable to the interpretation of statutes should
The answer to this question will depend on the answer to be given to a previous one, viz.: Is the appropriation an entire one —that of a gross sum for the illegal as well as the legal purpose —or is it distinct, capable of division, so that the legal purpose may be accomplished without promoting any illegal one ? If it is of the latter class, I entertain no doubt that the law would be valid. If the defendant had, by these resolutions, appropriated $5,000 to pay the charges of the additional counsel to be employed by the corporation counsel, and a further sum of $5,000 to defray the expenses of the suits therein mentioned, it would be easy to separate the legal from the illegal, and the first part would stand, while the other would be clearly void.
But the appropriation is of $10,000, as a single sum, to two purposes, one of which is good, the other bad; and no part of the money is devoted specifically to either purpose. If the court had not interfered to restrain the payment of these moneys, and-if the disbursing officers of the city had concurred in the views of the Common Council as to the legality of these resolutions, it is plain that the whole appropriation, or all but a mere fraction of it, might have been expended for the illegal purpose. It seems obvious, also, that as an additional sum was given when the illegal object of expenditure was added, the whole $10,000 was not designed to be applied to the legal object. The coupling of the illegal with the legal purpose has therefore placed at the discretion of the disbursing officer a larger sum, in this case apparently double the sum, which would have been committed to him for the legitimate purpose alone.
In regard to contracts, the rule of law is well settled, that if any part of the entire consideration for a promise, or any part of an entire promise not in its" nature capable of separation, be
Although the resolution in question is not strictly a contract, it has some of the same elements; and some analogies may be gathered from that source which will, I think, tend to throw light on the point here presented.
Suppose the defendants, by thesó resolutions, had agreed to pay this sum of $10,000 to a person named, as a compensation to him for procuring the advice and opinions of the additional counsel to be employed by the corporation counsel, and for defraying the expenses of the suits mentioned in the resolution. I think such a contract would have been wholly void. It would be an entire promise, a promise to do one single and entire thing, viz., to pay the sum of $10,000. The objects thus contracted for would indeed be twofold, and one part would be good while the other would be bad. . But the thing which the promisor would bind himself to do would still be entire. And the performance of the promise, the doing of the thing promised, would accomplish the illegal as well as the legal object. If so, I cannot see how the agreement could stand.
These resolutions, however, instead of being a mere contract to pay, either create, or lay the foundation for, the obligation to pay, while at the same time they set apart the money for the purpose of paying, and direct its application to that purpose. It seems not unreasonable to say that the defendants cannot apply money to the payment of a debt which, from its nature, they could not legally bind themselves to pay. And that, where the obligation to make payment is so far mingled with illegal matters as to be void, there the ordinance directing the moneys to be applied to satisfy such an obligation is equally void.
The foregoing view relates to the operative part of these resolutions, which may be likened to the stipulating or promising part of a contract. I think the same conclusion will be arrived at, perhaps, with greater certainty by another process.
To every contract it is essential that there should be a consideration, which, as above stated, must not be illegal. One, and perhaps the broadest and best definition of the consideration for a contract, is: The reason which moves a contracting party to enter into an agreement (Webster’s Dict.). Chitty
It may, at first,' seem that this view of the point under consideration is rather specious than solid. But, if the history of the passage of these resolutions does not show the contrary, it is easy to suppose a case that will do so. The resolutions, as pro
The motion to modify the injunction must be denied.