Opinion
August, 1899.
J. Hampden Dougherty and A.C. Shenstone, for relators.
John Whalen, corporation counsel (Charles Blandy, assistant), for City.
William J. Kelly, for Cassidy, Conly, Doyle and Murray, four of the councilmen, in opposition.
The three relators, taxpayers and residents of the borough of Brooklyn, in the city of New York, apply for a peremptory writ of mandamus requiring the respondents, who are members of the council of the city of New York, to approve and adopt a resolution heretofore adopted by the board of aldermen of said city, for the issue of the city's corporate stock to the amount of $570,000 to pay the award heretofore made in condemnation proceedings, taken pursuant to chapter 481 of the Laws of 1892 and the act amendatory thereof, to acquire the reservoir, wells, machinery, pipes, franchises and all other property of the Long Island Water Supply Company.
By chapter 481 of the Laws of 1892, as amended by chapter 669 of the Laws of 1893, the Legislature of this State provided and directed that the public interest required the acquisition by the city of Brooklyn, for the public use, of the reservoirs, wells, machinery, pipes, franchises and other property of the Long Island Water Supply Company, and said city of Brooklyn was, by said statute, authorized to acquire the same for such use by condemnation, free of all liens and incumbrances whatsoever, provided that the proceedings authorized by the act should be commenced within one year after its passage.
The said act further provided how and in what manner and by whom such proceedings should be instituted, and to whom and in what manner notice of the proceedings should be given, for the appointment of commissioners to ascertain the just compensation to be made to any person or corporation in any manner interested in the said property or franchises, as to the duties and proceedings of such commissioners, for confirmation of their report at the Special Term of the Supreme Court, and for appeals from the order confirming such report. It also provided that when the report should be confirmed the court should enter a final order in the proceedings, which should be binding upon all persons having any interest in the property or franchises condemned, directing that compensation be made pursuant to the determination of the commissioners, that the city of Brooklyn should thereupon be entitled to take and to hold forever the property and franchises condemned for the public use, and that payment of the compensation into court to the credit of any person or corporation mentioned in said order, in case a tender thereof be refused by such person or corporation, should be deemed a payment within the provisions of the act.
Sections 11 and 12 of said act of 1892 are as follows:
"§ 11. Immediately upon payment being made as hereinbefore provided, the city of Brooklyn shall be entitled to enter into the possession of the condemned property and franchises and hold the same in fee for the public use.
"§ 12. 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. Said bonds shall be payable in twenty years from the date of issue and shall bear interest at a rate not to exceed four per centum per annum, shall be exempt from taxation, and shall not be sold for less than par. All necessary expenses of the proceedings herein authorized shall be paid by the comptroller upon vouchers certified by the commissioner of city works and approved by the mayor, out of `the water sinking fund.'"
Neither of said sections of the act of 1892 was amended or affected by the said act of 1893.
Pursuant to the provisions of said statute, a proceeding was commenced by the presentation of a petition by the city of Brooklyn to the Supreme Court held in and for the county of Kings, at a Special Term thereof, and notice given as in the said statute required; and such proceedings were thereafter had that, on or about June 7, 1892, an order was duly made by the Supreme Court authorizing the city of Brooklyn to take and hold said property and franchises forever for the public use, free from all liens and incumbrances whatsoever, upon making just compensation therefor, and appointing five disinterested freeholders, residents of the county of Kings, commissioners to ascertain such just compensation.
Thereafter various of said commissioners resigned and other persons were duly substituted in their place and stead, and the commission as finally constituted consisted of the following named persons, that is to say: E.W. Bliss, Hiram W. Hunt, Charles E. Emery, Edward Rowe and Edward M. Shepard.
The commissioners, after giving due notice of hearing and after proceeding in the manner required by the said statute, made a report of their proceedings and determinations to the Supreme Court, which was filed in the office of the clerk of the county of Kings, January 25, 1893. The commissioners reported that a just compensation for the condemned property would be the sum of $570,000.
Thereafter application was made for the confirmation of the report at a Special Term of the Supreme Court held in the county of Kings. Such proceedings were had thereupon, that on or about June 29, 1893, an order was made therein at a Special Term of said court setting aside the report of the commissioners, and directing a rehearing before new commissioners mentioned in the last-named order. The city appealed from the Special Term order to the late General Term of the Supreme Court held in and for the second judicial department, and after hearing due argument the General Term reversed the order refusing to confirm the report of the commissioners, and directed confirmation of the same; and thereupon, on or about December 21, 1893, an order of the General Term was entered reversing the Special Term order, confirming in all respects the report of the commissioners (73 Hun, 499), directing that compensation should be made pursuant to the determination of the said commissioners of appraisal; that upon the payment of the compensation as therein set forth the city of Brooklyn should acquire title to and be entitled to take and to hold forever for the public use the property and franchises so condemned, free of all liens and incumbrances whatsoever, and to enter into the possession of all the condemned property and franchises specified and described in the petition, and hold the same in fee for the public use.
Thereafter an appeal was taken from the order of the General Term to the Court of Appeals, which affirmed said order of the General Term ( 143 N.Y. 596), and thereafter, and on December 4, 1894, an order was made in the Supreme Court and entered in the office of the clerk of the county of Kings upon the remittitur of the Court of Appeals, making the order and judgment of said court the order of the Supreme Court, and affirming in all respects the order of the General Term.
Thereafter the said Long Island Water Supply Company sued out a writ of error and appealed to the Supreme Court of the United States from the order and determination of the Court of Appeals and the order entered thereupon, and the same were thereafter duly affirmed by the Supreme Court of the United States. 166 U.S. 685.
Thereupon the city of Brooklyn became entitled to enter into the possession of the condemned property and franchises, and to hold the same in fee for public use, upon first making payment therefor as provided by the statute (Chap. 481, Laws of 1892, as amended), and in the final order entered in the proceeding, and it thereupon became the duty of the proper officers of the city of Brooklyn to issue bonds, as directed by the act, to pay the award.
Payment of the award has not been made. Possession of the property and franchises has not be transferred either to the late city of Brooklyn or to the city of New York, and bonds have not been issued to pay the award.
By the provisions of chapter 378 of the Laws of 1897 (the Greater New York charter), except as otherwise provided therein, all the powers or duties conferred or charged upon the common council of the mayor, aldermen and commonalty of the city of New York, as such city was formerly constituted, or the board of aldermen thereof, or upon the common council of the city of Brooklyn, or of Long Island City, or upon any board, body or officer of any of the municipal and public corporations or parts thereof by said act consolidated with the city of New York, as theretofore known and bounded, were and are to be exercised and performed by the municipal assembly of the city of New York as by said act constituted, subject, nevertheless, to the power of approval or disapproval by the mayor of the city of New York, as provided by the act. § 46.
It is further provided by the charter that all laws or parts of laws theretofore passed, creating any debt or debts of the municipal and public corporations, united and consolidated as aforesaid, or for the payment of such debts or respecting the same, should remain in full force and effect, except that the same should be carried out by the corporation thereby constituted, to wit, the city of New York. Id. §§ 4, 5.
The charter (§ 170) further provides that whenever it is lawful for any of the several municipal or public corporations which thereby became part of the city of New York to issue bonds for public purposes, but which bonds had not been issued prior to January 1, 1898, it shall be lawful for the said city to issue corporate stock of said city for the same purpose, and that such corporate stock, whether issued in pursuance of laws theretofore passed, or which might be thereafter passed, or in pursuance of the provisions of the charter itself, should be, unless otherwise provided by said charter, issued by the comptroller only to the extent to which he might be thereunto authorized by resolution of the municipal assembly and the board of estimate and apportionment adopted by vote, as provided for in said act. § 169.
Inasmuch as no bonds were issued by the city of Brooklyn to pay the award for said property of the Long Island Water Supply Company, it became the duty of the municipal assembly and of the board of estimate and apportionment, in obedience to the provisions of the charter and the act of 1892, by resolution by appropriate vote, to authorize the issue of corporate stock of the city of New York, in lieu of bonds as directed by the act, in order to pay the award. The precise nature and description of the bonds was fixed and determined by the act; and by the provisions of the charter (§ 169, et seq.) the precise form and character of bonds (therein called corporate stock of the city of New York) to be issued in lieu of such bonds of the late city of Brooklyn as were prescribed by the act of 1892 is also fixed and determined.
On or about July 11, 1898, the board of estimate and apportionment duly passed the following resolution:
"That pursuant to the provisions of the Greater New York Charter, and especially sections 169, 170 and 207 and 208 thereof, the Comptroller of the city of New York be, and he hereby is, authorized, subject to concurrence herewith by the Municipal Assembly, to issue forthwith corporate stock of the city of New York for water purposes in the amount of $570,000, to pay the award heretofore made in the condemnation proceedings taken pursuant to the provisions of chapter 481, Laws of 1892, and the act amendatory thereof, to acquire the reservoir, wells, machinery, pipes, franchises and all other property of the Long Island Water Supply Company, said award to be paid and distributed as fixed and determined and directed by the final order of the Supreme Court in said proceedings."
At a meeting of the board of aldermen, held on June 27, 1899, the following resolution was duly adopted:
"WHEREAS, the Board of Estimate and Apportionment on July 11, 1898, adopted a resolution, subject to concurrence therewith by the Municipal Assembly, authorizing the comptroller to issue corporate stock of the city of New York to the amount of five hundred and seventy thousand dollars ($570,000), to pay the award heretofore made in the condemnation proceedings taken, pursuant to the provisions of chapter 481 of the Laws of 1892, as amended, to acquire the reservoir, wells, machinery, pipes, franchise and all other property of the Long Island Water Supply Company, said award to be paid and distributed as fixed and determined and directed by the final order of the Supreme Court in said proceedings; therefore, be it
" Resolved, that the Municipal Assembly hereby concurs in the said resolution, and authorizes the comptroller to issue corporate stock of the city of New York for the said purpose to the amount of five hundred and seventy thousand dollars ($570,000)."
The resolution so adopted as aforesaid by the board of aldermen on June 27, 1899, was offered in the council at a meeting of said council held on the same date, but the resolution was defeated, there not being sufficient votes in its favor, as required by the charter, to carry the same.
At a meeting of the council, held July 11, 1899, the resolution was again offered for adoption, but it was again defeated, there not being sufficient votes in its favor to carry the same.
Although the council has been requested by the comptroller of the city, and by other persons, to pass the resolution, it has declined and refused so to do.
As the board of estimate and apportionment has authorized the issue by the comptroller of corporate stock of said city, for the purchase by said city of the said property of the Long Island Water Supply Company, and to pay the award made therefor; and as the board of aldermen has also authorized such issue, the action of the members of the council, in refusing to concur in the resolutions of the board of estimate and apportionment and of the board of aldermen, or to authorize the issue of such stock, is, it is claimed, a violation of their plain duty, a positive disobedience of the obligation enjoined by the charter, an obstruction to the due administration of the business of the city, and, as well, an injury and damage to the people of the city, and particularly to the people of the borough of Brooklyn, including the relators. The award is carrying interest at the rate of six per centum per annum, whereas the bonds to pay therefor are not to bear interest at a rate to exceed four per centum per annum. The interest already amounts to about $200,000, for which the city of New York and the taxpayers therein, including the relators, are liable, causing them, as they claim, great loss and damage; and the relators insist that, unless a peremptory mandamus issue, they will be without adequate remedy at law.
The corporation counsel, representing the municipality and the municipal assembly, appeared on the return of the order, and stated that the interests of the city would be best subserved by granting the writ, as the city imperatively required the property condemned for public use, and, on behalf of the municipal authorities, he consented in open court to an order that the writ issue at once. It is only necessary, therefore, to consider the objections raised by the four councilmen, who were heard ex gratia, and pass on the questions they submit before disposing of the application.
First. As to the locus standi of the relators. The relators being citizens and taxpayers are entitled to apply for the writ claimed. The court, in People ex rel. Boltzer v. Daley, 37 Hun, at p. 467, said: "it is sufficient to support the application that the applicant is a citizen and entitled to insist upon the execution of the laws of the State. These laws are made for the promotion of public order and individual security, and accordingly every citizen has a sufficient interest in their execution to entitle him to prosecute an application of this description. Laws are enacted for the well being, good order and security of the community and of its constituent members. Public officers are provided for, elected and appointed to execute their provisions, and where they designedly fail or intentionally omit to do that every citizen has the inherent right to apply to this court and insist upon it that the writ of mandamus shall issue in such a form as to secure the observance of that duty. The authorities in this and several of the other States, and those also of the Court of King's Bench, in England, have gone very far in supporting this proposition." See, also, People v. Board of Supervisors, 18 How. Pr. at p. 463; People ex rel. Wright v. Common Council, 16 Abb. N.C. 96; People ex rel. Waller v. Board of Supervisors, 56 N.Y. 249, 253; People v. Halsey, 37 id. 344; People ex rel. Kelly v. Common Council, 77 id. 503; Baird v. Board of Supervisors, 138 id. 95; Union Pacific R.R. Co. v. Hall, 91 U.S. 343; People ex rel. O'Brien v. Van Wyck, 27 Misc. 439.
Second. The propriety of the expenditure of the money. The four councilmen declare that in their belief the resolution the relators want passed by the council is not in the interest of the city, and that it seeks to authorize an unnecessary expenditure of money.
This objection is well answered by the Court of Appeals (143 N.Y. at p. 618): "The legislature must be presumed to be the best judge of the necessity of public works and improvements; of how they shall be instituted and of how they should be carried on so as best to subserve public ends."
In the act of 1892, supra, it is expressly declared that the public interest requires the acquisition of this property; so that after this legislative declaration, and the approval of the award made by the commissioners by the General Term of this court, the Court of Appeals of this State, and the Supreme Court of the United States, the mere fact that four councilmen dissent from the conclusions arrived at by the Legislature and the different courts named, and claim that it ultimately rests with them to determine the propriety of the matters involved, can have but little weight in arresting the orderly administration of justice.
As an apparent excuse for their conduct the four councilmen allege that the property and franchises of the Long Island Water Supply Company are not worth $570,000, and in the same paragraph they "aver that the said Long Island Water Supply Company has not demanded or attempted to collect said alleged award, but, on the contrary, has applied to the court to have the same set aside;" which plainly shows that while the four councilmen think the award too high, the water company thinks it too low.
This has been the attitude of the water company in all the litigations under the act of 1892, and when the matter was before the Court of Appeals (143 N.Y. at p. 606) that court said: "We may concede that the evidence would well have justified a larger award even upon the theory upon which the commissioners proceeded;" so that the highest court in the State deemed the award fair, though moderate in amount.
The city of Brooklyn had previously contracted to purchase the water plant, at a price equal to $1,250,000, but this contract was annulled as the result of an action by a taxpayer of that city. See Ziegler v. Chapin, 126 N.Y. 342, 349, as explained in 143 id. at p. 599. The city by the award of the commissioners and action of the courts, under the act of 1892, gets the property $500,000 cheaper. Of course, the water company does not want to part with its property for the amount awarded, $570,000, and the respondents' contention that there is unnecessary or extravagant expenditure involved is without the slighest shadow of truth.
Third. As to the existence of a remedy at law. As to the corporations, the existence of another and adequate remedy is no objection to awarding the writ. McCullough v. Mayor, 23 Wend. 461; People v. Mayor, 10 id. 393; People v. Steele, 2 Barb. 418.
Fourth. The right to issue the writ directed to the council. The four respondents assume that the proceeding by the relators is anomalous and without precedent — an assumption without warrant. Writs of a similar character have been issued against boards of apportionment, commissioners of public works and highways, municipal corporations, city officers and inferior judicial tribunals. See 1 Fiero Spec. Proc. (2d ed.) 162 et seq.; People ex rel. Hall v. Board of Supervisors, 32 N.Y. 473; People ex rel. Dannat v. Comptroller, 77 id. 45; Matter of Freel, 148 id. 165; People ex rel. Pennell v. Treanor, 15 A.D. 508; Commonwealth v. Commissioners, 32 Penn. St. 218; Lower v. United States, 91 U.S. 537; People v. Supervisors, 10 Wend. 363; People v. Collins, 19 id. 56; McCullough v. Mayor, 23 id. 457; Pumphrey v. Mayor, 47 Md. 145; 28 Am. Rep. 446; State v. Board, 134 Mo. 296; 56 Am. St. Rep. 503; State v. Rickards, 16 Mont. 145; 50 Am. St. Rep. 476; People v. White, 54 Barb. 622; People v. Common Council, 45 id. 473; People ex rel. Green v. Common Council, 20 How. Pr. 491; affd., 3 Abb. Ct. App. Dec. 502; High Extr. Rem. § 32; People v. Board of Apportionment, 3 Hun, 11; affd., 64 N.Y. 627; People ex rel. Gas Light Co. v. Common Council, 78 id. 56; Dillon Mun. Corp. (4th ed.) § 849; People ex rel. Commissioners v. Banks, 67 N.Y. 568, and kindred cases.
In Davis v. Mayor, 1 Duer, 451; affd., 9 N.Y. 263, an injunction was issued forbidding the performance of a corporate act. The board of aldermen evaded the injunction. The court held that when an injunction is directed to a corporation it is operative and binding not only upon the corporation itself, but upon every person whose personal action, as a member or officer of the corporate body, it seeks to restrain or control; that there is no distinction between a municipal corporation and any other corporation aggregate in respect to the power of a court of justice over its proceedings, and attachments were issued as for contempt against the refractory aldermen.
The council is an inferior body, unlike the State Legislature which represents the sovereignty of the State, and is the mere creature of the legislative will, with power to pass by-laws in the form of ordinances and the like, and is not exempt from judicial supervision and control.
"The main distinction between public and private corporations is, that over the former, the Legislature, as the trustee or guardian of the public interest, has the exclusive and unrestrained control; and acting as such, as it may create, so it may modify or destroy, as public exigency requires or recommends, or the public interest will be best subserved. The right to establish, alter or abolish such corporations seems to be a principle inherent in the very nature of the institutions themselves; since all mere municipal regulations must, from the nature of things, be subject to the absolute control of the government." Angell Ames Corp. § 31.
In Capet v. Parker, 3 Sandf. 662, an injunction was issued, and the attorney for the enjoined party advised that it was illegal. The court, in censuring the conduct of its officer, said: "It was very different from what should have been pursued. He was an officer of the court. He ought, therefore, to have advised his client to respect its authority, even though in his opinion the court had erred. We live under a government of law, and it is one of the peculiar felicities of our condition, that the moral sense of the community is so strongly on the side of obedience to law, that, in the civil administration of justice, resort to physical force is seldom necessary to carry the judgments of the courts into effect. They are submitted to as a matter of course. It is peculiarly the duty of those who profess the law, to cherish this feeling, and to elevate and strengthen the spirit of obedience to judicial authority."
It will not be inferred that the commissioners erred in the amount of their award, and that the different courts erred in sustaining them, and the respondents should have given the action of these officials and tribunals the respect commonly accorded to judicial adjudications, and not decided, as they appear to have done, that these responsible and reputable officials and the highest court of the State and of the United States did not understand their duties in reference to the condemnation proceedings as well as the respondents.
Fifth. When the writ may direct the doing of an act and the manner of doing it. The rule undoubtedly is that where an officer or body is clothed with a discretion either to do or omit to do an act, a mandamus can only issue to compel a decision, but cannot direct its form. So that if the respondents had been given a discretion in the matter the power of the court would be limited to compelling them to exercise their discretion, and could not direct them to vote for or against the measure. But where the duty is mandatory, and no discretion is vested, its performance and manner of performance may be compelled by mandamus (People ex rel. Wooster v. Maher, 141 N.Y. 330; People ex rel. Harris v. Commissioners of Land Office, 149 id. 26); and a mandamus directing a judicial officer to enter judgment in a particular manner, where the statute is mandatory and there is no discretion, was sustained in People ex rel. Allen v. Murray, 2 Misc. 152; affd., 138 N.Y. 635.
Sixth. The act is mandatory and the council has no discretion. In People ex rel. Reynolds v. Common Council of City of Buffalo, 2 Misc. 7; affd., 140 N.Y. 300, a mandamus was granted after argument commanding the common council to audit and adjust the amount of damages occasioned to the property of the petitioner at $5,500, the sum fixed by the commissioners in their report. The proceeding was instituted under chapter 393 of the Laws of 1890, "authorizing" the city of Buffalo to audit and adjust the amount of damage which had been occasioned to the property of the petitioner by the extension of Elmwood avenue, in that city. Commissioners had been appointed by the court, as provided in the act, to appraise the damage, and had made their report, awarding the petitioner $5,500. Counsel for the city contended that the act was permissive, and not mandatory. In overruling the objection the court said: "The language used in the act is not different from that used in many cases where this question has been before the courts. In People ex rel. Conway v. Board of Supervisors, 68 N.Y. 114, the same language was used by the Legislature, and the court held it was mandatory. Judge Earl, in his opinion, said: `Where the public interest or private right requires that the thing shall be done, then the word `may' is generally construed to mean the same as `shall,'' and a peremptory writ of mandamus was ordered. In People v. Board of Supervisors of Otsego County, 36 How. Pr. 1, it was held that where the Legislature authorized and empowered the board of supervisors to cause taxes illegally assessed to the county to be repaid, it became their duty to do it, and a peremptory writ of mandamus was ordered. On appeal to the Court of Appeals ( 51 N.Y. 401) the court held that the statute was mandatory, the court saying that the words `authorized and empowered' are mandatory when the statute directs the doing of a thing. Many other cases have been examined, but enough have been cited to illustrate the rule that where a party has a claim based upon natural justice and equity, permissive words in a statute are construed so as to accomplish what the Legislature intended."
This case is much stronger, for section 12 of the act of 1892 provides "that the proper officers * * * are hereby authorized and directed to issue," etc. The word "directed," as used in this statute, means that the officers are ordered, and has the same force as an order given to a soldier, whose only answer is obedience.
Whoever accepts public office takes it with all the responsibilities and duties the law casts upon it. No one is obliged to accept public office, and if he cannot perform its duties, the statute points out an easy mode of resigning its cares; but while in office he must obey the law or make place for some one that will. No one is above the law; all must yield obedience to it, and in a becoming manner.
Seventh. Attempt to raise unnecessary issues. When writs of mandamus have been applied for against inferior courts, the response has generally been a waiver of all technicalities, a frank submission of the controversy, narrowing it down to the point in dispute, and expressing a willingness to obey at once any instruction or direction from the superior authority. The four respondents, instead of following this laudable example, have challenged the jurisdiction of the court to advise or direct them, and claim that if the act of the Legislature imposes any mandatory duties on them, it is unconstitutional and void. They then deny, on information and belief, that the relators are citizens and taxpayers. But such a form of denial in proceedings for mandamus has no value and raises no issue. People ex rel. Kelly v. Common Council, 77 N.Y. 503, 511; Matter of Guess, 16 Misc. 306; Matter of Freel, 73 N.Y. St. Repr. 331; People ex rel. Rau v. York, 31 A.D. 527.
In conclusion, the court decides that the council, and particularly the four members of it who have been heard upon this application, have neglected to perform a plain duty concerning which they have no discretion, that the direction from the Legislature, representing the sovereign power of the State, must be obeyed, and that a writ of mandamus issue commanding the performance of such duty, with costs.
Ordered accordingly.