Roosevelt and others agt. The Mayor of New York and others. N. Y. SUPERIOR COURT. THEODORE ROOSEVELT and others, agt. THE MAYOR OF NEW YORK and others. Injunction - New York (city of )—When public bodies and public officers may be restrained from making corrupt appointments — Injunction should not be granted upon indefinite and uncertair. allegations A court of equity can restrain public bodies and public officers from making a corrupt appointment to an office to the prejudice of the public, and so to do is not controlling the discretion of a legislative body. The power of appointing and confirming a commissioner of public works and corporation counse! of the city of New York is a trust conferred on the mayor and board of alderman, and the method of exercising this trust is subject to the control of the courts, which will interfere on sufficient allegations that such trust is about to be used corruptly or influenced by bribery, though the appointment might be legal, yet, if tainted by a charge of corruption or bribery, the court will have a right to interfere on that ground and restrain a breach of trust by injunction. An injunction should not be granted on affidavits alone, and without a complaint. In an action brought by the proper party, in which action sufficient facts are properly alleged, an injunction restraining an illegal or corrupt appointment to a public office may be issued. Where as in this case the allegations that the mayor and aldermen were about to act corruptly were made on information and belief, the affiant not giving the sources of his information nor the grounds of his belief, and not stating who the persons were who were to be corruptly appointed and confirmed but referring to them by the vague appellation of certain persons." Held, that the allegations were too indefinite and uncertain to sustain an injunction. The mere allegation that there is a corrupt bargain and conspiracy, unless sustained by other facts, amounts to nothing, and is only a conclusion. Special Term, December, 1884. MOTION to continue the temporary injunction granted by judge BEACH, restraining the appointment by mayor Edson, and the confirmation by the board of aldermen, of a commissioner of public works and counsel to the corporation. Roosevelt and others agt. The Mayor of New York and others. Charles P. Miller, attorney and counsel for plaintiffs. Sewell, Pierce & Sheldon, attorneys (David Dudley Field and Robert Sewell, of counsel) for defendants. Among the privileges or franchises granted to the corporation of the city of New York by the state is the privilege of having certain officers, named in the charter, and among these officers are the commissioner of public works and the counsel to the corporation. The privilege of appointing is conferred by the charter upon the mayor of the city, while the right to confirm or reject the appointment is vested in the board of aldermen. This power of appointing and confirming is a trust conferred upon the mayor and the board of aldermen, and the method of using this trust is subject to the control of the courts. This trust is to be used for the benefit of the people of the city, each one of whom is a cestui que trust. Section 101 of chapter 410, Laws 1882 (Consolidation act), declares that the common council and the several members thereof are trustees of the property, funds and effects of the said city, and makes such trustees subject to all the duties and responsibilities imposed by law on trustees. It is to the prejudice of the citizens and of each citizen that an appointment to office is made through bribery, corruption or other unlawful means, for the law presumes that he who buys an office will make his purchase good to the manifest detriment of the public (2 Blackstone's Com., 36, 37). * * Section 58 of chapter 410, Laws 1882, provides that every member of the common council, or every person who shall promise, offer or give, or cause or aid or abet in causing to be promised, offered or given * to any member of the common council, or any officer of the corporation, * * * any money, goods, right in action or other property, or any thing of value, or any pecuniary advantage, present or prospective, with intent to influence his vote, opinion, judgment Roosevelt and others agt. The Mayor of New York and others. * * or action on any question which may then be pending before him in his official capacity, shall be deemed guilty of a felony; and every officer who shall accept any such gift or promise shall be deemed guilty of a * * * * felony, and shall upon conviction be disqualified from holding any public office, * and shall be punished by imprisonment or by a fine, or both. Now, it is well settled that public bodies and public officers may be restrained from proceeding in violation of law to the prejudice of the public or to the injury of individual rights. A usurpation of power may by this process be prevented and an alienation or renunciation of a public franchise be forbidden and restrained. To the extent that public officers and public bodies are trustees either of franchises or property for the benefit of the public, they are amenable to the jurisdiction of courts of equity (People agt. Canal Board, 55 N. Y., 390). In the exercise of this jurisdiction the court proceeds upon substantially the same principles as those which govern their interference in cases of trust; a municipal corporation being regarded in equity as charged with and made the depositary of a public trust, and thus amenable to the jurisdiction of equity for a breach of that trust (Christopher agt. Mayor, &c., 13 Barb., 667; Milhau agt. Sharp, 15 Barb., 193; Stuyvesant agt. Pearsall, Id., 244; Dudley agt. Trustees, &c., 12 B. Mon., 615). It was suggested on the argument that the appointment and confirmation were legal, and that it was the taking of bribes that was illegal, and that therefore only the bribe taking should be enjoined. It seems to me that this distinction is not a just one, but that the appointing and confirming an officer through bribery and corruption are the illegal acts which may be enjoined. As long ago as Fermor's case (in the year 1602), it was said that the law doth so abhor fraud and covin, that all acts, as well judicial as others, and which of themselves are just and lawful, yet, being mixt with fraud and deceit, are in judgment of law wrongful and unlawful. Roosevelt and others agt. The Mayor of New York and others. It was contended on the argument that the act enjoined was a legislative aet and discretionary, and therefore that the court had no jurisdiction to prohibit it. This court held in Davis agt. Mayor, &c., of New York (1 Duer, 495), that this contention is not true when applied to a subordinate municipal body, which, although clothed to some extent with legislative and even political powers, is yet, in the exercise of all its powers, just as subject to the authority and control of courts of justice to legal process, legal restraint and legal correction as any other body or person, natural or artificial. The supposition that there exists an important distinction, or any distinction whatever, between a municipal corporation and any other corporation aggregate, in respect to the power of the courts of justice over its proceedings, is entirely gratu itous, and is as destitute of reason as it is of authority. The conclusion from these remarks is, continues judge DUER in the case above cited, that a court of equity will not interfere to control the exercise of a discretionary power, when the discretion is legally and honestly exercised, but will interfere whenever it has grounds for believing that its interference is necessary to prevent abuse, injustice or oppression in the violation of a trust or the consummation of a fraud. It will interfere and it is bound to interfere whenever it has reason to believe that those in whom the discretion is vested are prepared illegally, wantonly or corruptly to trample upon rights and sacrifice interests which they are specially bound to watch over and protect (1 Duer, 498), and the same ruling was made by judge GILBERT, in Negus agt. City of Brooklyn (62 How., 291). Judge DUER then proceeded to consider whether the act of the common council in granting the right to lay a railroad track in the streets of this city was or was not a legislative act, and the conclusion that he arrived at is that it is not a legislative act. This is also the conclusion to which judge BOSWORTH came in the same case (see 1 Duer, 508), and is the conclusion arrived at by the court of appeals in The Roosevelt and others agt. The Mayor of New York and others. People ex rel. Davis agt. Sturtevant (9 N. Y., 273) and in Milhau agt. Sharp (27 id., 611). Now, if granting a franchise to a railroad company is not a legislative act, even though it takes the form of a resolution. of the common council (9 N. Y., 273), how can it be said that confirming the mayor's appointment is a legislative act? Such power of confirming is not given to them by chapter 4 of the Consolidation Act, above referred to, which is the chapter that defines their legislative powers, but is given to them by chapter 5 of that act, which chapter defines the powers of the mayor of the city The ordinances or resolutions of the board of aldermen (their legislative acts) must be approved by the mayor before they take effect (sec. 75 of chap. 410, Laws 1882), while such approval of the act of the board of aldermen in confirming or rejecting the mayor's appointments is not required. All that the board of aldermen is required to do is to give their consent (or refuse so to do). The act says that the mayor shall nominate and, by and with the consent of the board of aldermen, appoint the heads of departments (Sec. 106). But, at any rate, the act of the mayor in nominating is not a legislative act, and if the act complained of is corrupt and fraudulent and an abuse of trust, it may be restrained by injunction (90 N. Y., 410) or set aside when made (Excise Case, 1 Lancaster Law Rev., 318). I am of the opinion that in an action brought by the proper party, in which action sufficient facts are properly alleged, an injunction restraining an illegal or corrupt appointment to a public office may be issued. The action is brought by Theodore Roosevelt and others, but it is impossible to say on what grounds or under what statute the action is brought, because the complaint is not before the court. The counsel for the plaintiff said on the argument that the action was brought under chapter 531, Laws 1881, and the bond given on obtaining the injunction is the bond required by that act; but there is nothing in the papers before me to VOL. I 27 |