THE PEOPLE, on the relation of THE MARKET COMMISSIONERS, against THE COMMON COUNCIL OF NEW YORK

THE PEOPLE, on the relation of THE MARKET COMMISSIONERS, against THE COMMON COUNCIL OF NEW YORK. Supreme Court, First District ; General Term, February, 1868. Municipal Cobpokation.—Mandamus. Under a statute (Laws of 1865, eh. 180) making it the duty of a municipal corporation to create a stock or fund to an amount and upon-terms of payment fixed in the statute, and requiring the comptroller of the corporation to prepare and issue the stock, and sell the same,—the corporation have a duty to perform in creating the stock by ordinance, before the comptroller can issue it. A mandamus to compel the corporation to create the stock, is properly addressed to the Common Council, although the corporation are designated in the statute as the Mayor, Aldermen, and Commonalty of the city Appeal from an order made at special term, granting a mandamus. The application was made under the act of the Legislature {Session Laws of 1865, 211, ch. 180) to .compel the .Common Council of the city of New York to create, by. the passage of an ordinance to that effect, the seventy-five thousand dollars of “ Market Stock,” provided by the fifth section of the statute. The defendants read no counter affidavits below, and the application was disposed of on the showing made by the relators. It appeared by the moving papers: 1. That a demand on behalf of the relators had been made upon the Common Council, for the creation of the stock, in the month of May, 1865. 2. • That no steps were ever taken, by the Common Council, towards a compliance with the demand, save that the matter in both boards was referred to some committee. 3. That by their non-action, the work of the commission had been, and still was, delayed. 4. That the property specified in the act, as the site of -the proposed market, was purchased in the name of the corporation, in 1857, for that purpose, at a cost of nearly two hundred thousand dollars, and, by legislative action, dedicated “ to the use and purpose of a market;” and that down to the present time it had remained unoccupied and unproductive (see Lowber Case, ■ 7 Abb. Pr., 158, and Proceedings of Aldermen and Gouncilmen, Aug. 16,1856; Nov. 6, 1856 ; Feb. 18,1857). 5. That the relators had no remedy except by mandamus. By the statute in question 'it is enacted that “ The Mayor, Aldermen and Commonalty of the city of New York are hereby authorized and directed to create a public fund or stock, to be denominated ‘Market Stock’ ” {here follow the amount, terms, (fiy.), “ the said Mayor, Aldermen and Commonalty being hereby authorized and directed to pledge the faith of the city and county, and the same is hereby specifically pledged for the redemption of the said stock, and the several parts thereof, when the same shall become due and redeemable under the provisions of this section, by tax upon the estates, real and personal, in the city of New York, subject to taxation. “ The comptroller of the said city of New York shall, within • thirty days after being required in writing, by said commissioners, so to do, prepare and issue the said stock * * * to the highest bidder therefor, and the proceeds thereof be forthwith deposited with the chamberlain of said city of New York, to the credit of the commissioners appointed under this act.” Richard O’Gorman and W. C. Trull, for the defendants. I. No action upon the part of the Common Council is requisite or necessary to the creation of the stock in question. (a) The act fixes the amount of the stock, the rate of interest, and the time when payable; and, also, the time when the stock shall be redeemable, and provides a fund for the redemption of the stock, and pledges the faith and credit of the city and county for its redemption. Nothing remains for the Common Council to do, and it would be the merest surplusage for that body to enact an ordinance providing for the creation of a stock which is already provided for and created by statute. The remedy of the relators is apparent. Relying upon the provisions of the fifth section of the act they should demand of the comptroller a compliance with the requirements of the sixth section, which makes it his duty to issue the stock within thirty days after its issue is demanded by the commissioners. Should the Common Council enact an ordinance in the precise words of the fifth section of the act of 1855, it would add nothing to the existence of the stock. . The true construction of the fifth and sixth sections of the act of 1865 is to construe'the former section as providing for the creation of a stock by tkq, corporation, which is to be created by the comptroller’s issuing thfe stock in obedience to the requirements of the sixth section. II. The Common Council owe no duty to the relators, (a) It is an elemental rule that a party applying for a mandamus must show a clear legal right to have the act done, the performance of which he seeks to enforce, and must establish a corresponding duty upon the part of those against whom the writ is asked, to perform the act as required (People ex rel. Green v. Wood, 35 Barb., 653, 659, 661). The provisions of the act relied upon to support the order appealed from impose no duty upon the Common Council. The language of the act is, “ The Mayor, Aldermen and Commonality of the city of Hew York are hereby directed to create a public fund or stock,” &c., &c. The duty is imposed upon the corporation, and not upon the Common Council. The Common Council is not the corporation, but only one of its constituent parts, and its members are merely the agents and servants of the corporation, which is composed of all the citizens of the city (Clarke v. City of Rochester, 5 Abb. Pr., 115; Lowber v. Mayor, 3 Abb. Pr., 329, 336; Wyatt v. Benson, 4 Abb. Pr., 186). The duty being imposed upon'the corporation, that is the body to whom, within the rule above stated, the writ of mandamus should have been directed. When the court determines that the corporation owes to the relators some duty . with reference to the creation of the stock in question, and issues its writ of mandamus commanding the performance of that duty, if obedience to that mandate requires any action upon the part of the Common Council,'the corporation will take care that such action is taken in the discharge of the duty which the Common Council owe to it (People ex rel. Green v. Wood, supra). Cephas Prainerd, and James S. Stearns, for the relators, respondents. It was contended by the relators, and cannot be disputed with any show of reason, that the conduct of the Common Council showed, plainly, an intention to defeat the purposes of the statute; that these quasi legislators were seeking, by evasions and delays, to render the completion of the work -within the time fixed by the statute impossible; that the facts warrant the com-t in finding a refusal (The Queen, &c., v. Commissioner of Navigation, &c., 8 A. & E., 901; The Queen, &c. v. Vestrymen of St. Margaret’s, Id., 889). The various counsel for the Common Council conceded, at special term, that'the writ must issue unless the following objections were well taken: 1. Ho action on the part of the Common Council is required; the stock is created by the statute, and the mandamus should run to the comptroller, to compel him to issue the stock, if, on demand, he refuses to do it. 2. The Act says, the Mayor, Aldermen, &c., shall creáte this stock, therefore the mandamus should run to the whole Corporation. 3. The Common Council, i. e., the Boards of Aldermen and Gouncilmen, being legislative, and vested with discretion, cannot be compelled to vote in any specific way. 4. The writ should run to Committees of the two Boards, tó whom the matter is referred. I. The Legislature had the power to pass this statute, and create this commission (People v. Draper, 15 N. Y., 532 ; Sill v. The Village of Corning, Id., 297; Darlington v. The Mayor, 28 How. Pr., 352 ; People v. Pinckney, 32 N. Y., 377; People v. Bachelor, 22 N. Y., 128). II. Under the law, as thus established, every one of the objections urged is set at rest. The supreme power, in respect of the erection of this market, being in the Legislature, they have the unquestioned right to select the means by which it shall be built. They can call in as many collateral agencies as may seem good, or employ but one;, they can order the payment of the whole of. these construction bills, in money realized immediately by taxation, or they can make the burden less heavy by proyiding. for the issue of bonds. They can order the Mayor or any other official, to execute those bonds. They can order unimproved property of the city to be sold for the purpose (per Denio, Ch. J., in Darlington «. The Mayor, ■ swpra), and they can make it imperative upon any local officer or body of officers to perform any part, great or small, in the work proposed. It is no answer to this to say that, in respect of other matters, these local officers, or bodies of officers,- are vested with discretionary powers, for here the Legislature, in the exercise of its acknowledged powers, has imposed an additional duty upon them, in respect of which they are not vested with any discretion; in respect of which they are mere executive or ministerial officers, charged with a duty which they cannot avoid, i. e., the creation of this “ market stock.” III. We will now answer, in the order stated, the several objections: 1. Mo action required on the part of the Common Council, &c. 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. It is the stock mentioned. in that section, and none other, which he is to issue ; stock created as indicated in that section, and not by an Act of the Legislature. A fatal answer to an application for a writ against the Comptroller would he: “ There has been no stock as yet created under section 5.” The Legislature did not intend to create the stock, for they have commanded another body to .do it in the section 5, i. e., the legislative department of the Corporation ; the Common Council. The 12th section of the “ Metropolitan Fire District ” law is a precedent for a law creating stock. That commands the Comptroller to issue bonds, and the Mayor to sign them and affix the seal of the Corporation. Here no such thing is done or contemplated. The compilations of Judge.Dávtes and Mr. Valentine are full of precedents for the sections 5 and 6 of this law, and it is drawn according to the forms sanctioned by a usage of many years. And, under these statutes, it has been the uniform practice of the Common Council to enact an ordinance creating the stock, and for the Comptroller to then perform the ministerial duty of issuing it. Again, there are no words in the statute which give any color for the argument in behalf of the Common Council; it does not purport to create the stock,—it pledges the faith of the city for the redemption of the stock to be created under section 5. 2. The Act specifies the corporation, and the writ should so run, &c. This is a fallacy: upon whom could service be made—the Mayor, the Comptroller, and Corporation Counsel? What would be the answer to it? The Common Council only can create the stock, and a writ should be issued against them. And how can they be compelled to act ? Only by a writ which, by proper service, shall take effect upon them individually. They must each be compelled by a mandatory process to vote in favor of the proposed ordinance. It is the duty of this commission to obtain a mandamus, generally, against the corporation ; for the name used in the Act is but the name of the corporation. (The Mayor, the Common Council, and the Comptroller, are not the corporation, nor are they all,» when combined with other officials, the corporation. Denio, Ch. J., in Darlington v. The Mayor.) And then this corporation, after going to the Court of Appeals on the question of the right to the writ, is, on being defeated, to resort to the same course in respect to the Common Council, to obtain the passage of the ordinance, upon which they go to the Court of Appeals; then a like proceeding to compel the Mavor to sign with a like litigation; then the same thing in regard to the Comptroller in every respect; but what it) at the outset, the Corporation Counsel should decline to sue out any of these writs? Would not this commission be at last reduced to the necessity, notwithstanding the proposition of the respondents, to take these extraordinary proceedings against, some division of the city government; and if that be true, then why not upon the immediate body, whose willful perverseness is now attempting to defeat the purpose of the legislature, and the wishes of the residents of the city. Do not courts seek to avoid circuity of action ? Then, upon the reason of the thing, the proposition is absurd. How stands it upon authority ? This precise question was made on the return to the alternative writ in Commonwealth ex rel. Hamilton v. Select and Common Councils of Pittsburgh (34 Penn., 496), carefully examined, and utterly repudiated by the court. So, the opinion of the court, by Bronson, J. (pp. 460-461), in McCullough v. The Mayor of Brooklyn (23 Wend., 468), is decisive that the writ lies against the body upon whom the duty of “ putting the necessary machinery in motion,” is imposed. So, People v. Common Council of Syracuse (20 How. Pr., 621) is strong to the same point. . There the act of opening the streets was an act of the corporation, but the Common Council was to set the machinery in motion, and, accordingly, the writ was issued against them. The earlier English cases upon these topics are collected in Archhold’s Practice of the Grown Office, 239-250, and in Tapping on Mandamus (Law Lib., N. S., 142), 94. But, finally, the statutes of this State put this question at rest. Ch. 603, Laws of 1853, § 5 (Sess. L., 1853, pp. 1135, 1136), provides that no debt of the character contemplated in the act under consideration shall be contracted, except by virtue of an ordinance passed by the Common Council of the municipal corporation by a vote of not less than two-thirds. There are many provisions in that statute which cannot apply to this case, but so much of the section as is here referred to, clearly applies. Of course, no one contends that the power to pass an ordinance creating this stock or debt resides anywhere in the corporate authorities but the Common Council (see Amended Charter, Sess. L., 1857, vol. 1, p. 874, § 5). 3. But we are told that the Common Council is vested with a discretion, and cannot be compelled to vote. The answer is, that in respect of this law they are vested with no discretion whatever, any more than the Board of Supervisors is vested with a discretion in respect to the auditing of a bill for the salary of a county officer fixed at a specific sum by law. Here the obligation is equally mandatory. The legislature has imposed a duty which' does not involve the exercise of any discretion whatever. • The authorities are controlling upon this point (The People v. Common Council of Brooklyn, 22 Barb., 404; Green v. Common Council of Syracuse, 29 How., 491; Commonwealth, &c. v. Select and Common Councils of Pittsburgh, 34 Penn., 496; People ex rel. Record Commissioners v. Supervisors of New York, 11 Abb. Pr., 114; School District No. 1 v. School District No. 2, 3 Wisc., 333; State, &c. ex rel. Ordway v. Smith, Mayor, &c., 11 Wisc., 65). 4. The observations already made are a complete answer to the suggestion that the writ should run to committees of the Common Council*. Those instruments of the Common Council cannot compel the bodies of which they are the servants to perform a public duty. It is clear, in every aspect, that the order directing the writ to issue, should be affirmed with costs. [MAJORITY — Clerke, J.] Clerke, J. On the argument, the only points taken by the counsel for the corporation were: first, no action upon the part of the Common Council was necessary to the creation of the stock in question; and second, that the Common Council owe no duty to the relators. ' I. As to the first point, the act (Laws of 1866, p. 211, § 5) directs and authorizes the Mayor,, Aldermen and Commonalty of the city of New York to create a public fund or stock, to be denominated “ Market Stock,” for the amount of seventy-five thousand dollars, and § 6 directs the comptroller of the city to prepare and issue said stock within thirty days after being required in writing so to do by the commissioners* What stock ? The said stock! That is the stock which, in the preceding section, the Mayor, Aldermen and Commonalty of the city of PTew York are directed to create. The comptroller evidently can prepare and issue no other stock than that mentioned in the first section, and any action relating to any other would be null and"void, and, of course, the stock would be utterly worthless. II. As to the point that the Common Council has no duty to the relators: The language, no doubt, of the act, as we have seen, is, “ The Mayor, Aldermen and Commonalty of the city of Pfew York are hereby authorized and directed to create a public fund or stock,” &c. The words Common Council do not appear in the act. The Common Council", however, constitute the only agency or instrumentality by which this behest of the supreme legislature can be obeyed. The Mayor, Aldermen and Commonalty can’act in no other possible way in the premises than by and through the Common Council. They cannot compel the latter to do so. The Mayor, Aldermen and citizens generally, who, I suppose, constitute the Commonalty, may daily raise their" voices in the loudest tones, to the honorable the Common Council, commanding them to create this stock, and the Common Council could laugh at them as they have laughed at the Commissioners. The only possible method by which the Common Council can be compelled to do so is, by application to this court, which alone can issue a mandamus capable of being enforced. This point has been frequently determined by authority. In the language of Bronson, J., McCullough v. The Mayor, &c., of Brooklyn (23 Wend., 458), the writ lies against ■the body upon whom the duty of putting the necessary machinery in motion is imposed. In The People v. The Common Council of Syracuse (20 How., 491), the act of opening the streets was the act of the corporation, but the Common Council had to set the machinery in motion, and, accordingly, the writ was issued against them. The obligation was mandatory on them. They have no discretion in the matter as in ordinary cases of municipal legislation; they must obey the supreme legislature. See, also, The Commonwealth v. Select and Common Councils of Pittsburgh, 34 Penn., 496 ; Archbold’s Practice of the Crown Office, 239-250, and Tapping on Mandamus, 94, in both of which the early cases on this subject are collected. The order should be affirmed, with costs. Barnard, P. J., concurred. [CONCURRENCE — Ingraham, J.] Ingraham, J. I concur in the propriety of granting this writ, were it not directed to the wrong parties. The statute imposes the duty of creating the stock, on the Mayor, Aldermen and Commonalty of the city of Hew York. This is the corporate title of the municipal corporation. They act by the Common Council and the Mayor. Ho action of the one, without the consent of the other, can enact the necessary laws for creating the public stock, except in case of a veto from tlie Mayor. The mandamus directs the Common Council to enact the necessary law to create the stock. This they cannot do without the Mayor; and they are required to do what is not in their power. I have.no objection to a modification of the command in the writ, so as to require them to prepare and pass, in their separate boards, the necessary ordinance for that purpose, and, on complying with that direction, their duty in the matter is discharged. In The People v. The Common Council of Brooklyn (22 Barb., 404) the writ was so directed and allowed, but in that case the statute directed the Common Council of Brooklyn to do the act. So, in the case of The People v. Common Council of Syracuse (20 How., 491), the statute directed the Common Council, after the award, to pay the money. In McCullough v. The Mayor of Brooklyn (23 Wend., 458), Bronson, J., said, the proper remedy was a mandamus against the corporation to exercise their functions according to law. Two things are necessary; the action of the Common Council, and the approval of the Mayor, before the law can be enacted. If the writ had been directed to the corporation, it would have been their duty to pass the law; as it ijj, the remedy, at best, will be imperfect. Order affirmed.