Garside v. City of Cohoes

Landon, J. The charter of the city of Cohoes provides that “the mayor and aldermen of the city shall constitute the common council thereof.” It also provides that the common council “shall be judge of the election and qualification of its own members.” If the common council is the judge of the election of the mayor, then the execution of the resolution of that body, ■directing such a preliminary investigation as would enable it to render the proper judgment, ought not to be enjoined by the court. In such case the mayor’s attempted veto would be invalid, since that power is given him to be used for public purposes, and not for his personal advantage. The law, upon grounds of public policy, forbids him to act as an officer in a case in which his personal interest is presumed to be paramount to his sense of obligation to public duty. There may be cases in which a rigid insistence upon such a rule in the case of executive officers would result in a suspension of needful governmental acts, and in such cases the rule must be relaxed. Foot v. Stiles, 57 N. Y. 399. But here the matter is between the people and the mayor, and it is better that the veto power, for once, be suspended, than that ■the mayor should decide the question in his own favor under the prostituting influence of personal interest. People v. Thomas, 33 Barb. 287. But we do not think the common council is the judge of the election of the mayor. His membership of the common council is one of the least of the attributes of his office. “He shall preside at all meetings of the common council, when present; shall only vote when there is a tie, but may submit propositions in the common council.” Charter, § 1, tit. 4, as amended by chapter 79, Laws 1872. It will thus be seen that his active participation in the meetings of the common council is not strictly enjoined. It is a privilege which he enjoys if his other duties will permit. He is the chief executive officer of the city; .has the general powers conferred by law upon mayors. He shall take care that the charter and ordinances of the city are faithfully executed; has the power to veto any ■ordinance or resolution of the common council; shall execute all deeds, bonds, leases, contracts, licenses, and other papers, as the act of the city, when authorized by the common council. It is his duty to suppress riots, to submit annually a report to the common council of the financial transactions of the city, (Charter, tit. 4;) he is ex officio a member witii full voting powers of the board of health, (section 1, tit. 9,) the board of education, (section 3, tit. 4,) the board of water commissioners, (Id.,) the board of fire commissioners, (chapter 99, Laws 1879,) and the board of police commissioners, (chapter 692, Laws 1870.) Though the power given to the common council to be judge of the election of its own members includes within its letter the election of mayor, yet it is not within its spirit or intent. Following the American system, the executive and legislative departments of the city government are co-ordinate departments and fitted for the discharge of separate functions, although, to some extent, the mayor may participate in the legislative department, and the com [196] mon council may, independently of the mayor, exercise specified executive and administrative functions. The mayor is the chief officer in power and dignity. He is vested with the veto power, not absolutely, but suspensively. By his veto, he checks, for a time, the action of the common council. He calls a halt, bids that body to take a fixed period for further consideration, and then to abandon their purpose unless it shall be supported by a vote of two-thirds of their number. He is in theory, and should be in fact, a conservative counterpoise upon the inconsiderate action of the common council. In this respect he is not one of their own members, but their superior, and it would be a lack of systematic proportion to vest in the aldermen the jurisdiction which the supreme court possesses to judge of the election of the mayor. He may be a member of the common council, but not one “of its own members” in the sense in which an alderman is. But it does not follow from these reasons that the injunction prayed for should, be granted. The common council has only authorized an investigation. If the views we have expressed are correct, the common council cannot make the investigation the basis of any valid resolution to oust the mayor, and if it should refuse to recognize him upon the basis of any invalid resolution, it will then be timely to seek the aid of the court. Order affirmed, without costs. Mayham, J., concurs. Learned, P. J. The only question is whether an injunction pending the action should be granted. I think it should not, for the reasons stated by Mr. Justice Edwards in his opinion. Without expressing any opinion on the question whether the mayor is, or is not, a member of the common council, or on any of the disputed questions of right to office, I think this is not a case for an injunction. Ho such irreparable injury can be caused to the plaintiff by the investigation as would justify this remedy, especially pending the action. I therefore concur in the result of the within opinion.