author:
Westbrook, J.:
      Per Curiam :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SIDNEY P. NICHOLS, Respondents, v. THE MAYOR OF THE CITY OF NEW YORK, Appellant.

      Charter of HewYork — ehaptei' 335 of 1873, section 25 —removal for came—rights of party sought to he removed — power of court to review action of governor.

    Section 25 of chapter 335 of 1873, the charter of the city of New York, provides ' that “ the heads of all departments * * * and all other persons, whose appointment is in this section provided for, may be removed by the mayor for canse, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the governor, expressed in writing.”

      Held, that before an officer could be removed thereunder he was entitled to have a definite and specific statement of the charge served upon him; a reasonable time to appear and answer it; the right to hear and examine the evidence by ’ which it was attempted to be sustained; to produce testimony to show its falsity, and to the aid and advice of counsel in the conduct of the examination.
    That the cause of removal must be found in some act of omission or commission by the officer in regard to his duty or affecting his general character, which the law and a sound public opinion pronounces to be sufficient to justify a forfeiture of the office, and not in the political bias or personal dislike of the officer having the power of removal.
    April 5, 1879, tho mayor of the city of New York made an order purporting to remove the relator, one of the police commissioners of the said city, from his office, which removal was approved by the governor on the seventeenth of the sam'e month. On the hearing before the mayor, the relator was not allowed to appear by counsel, to examine the evidence upon which the charges were made, or to produce witnesses.
    Upon an application for a writ of certiorari to the mayor of the city of New York, and the governor of the State to review their action, held, that the writ would issue to the mayor.
    That the court had power to issue the writ to the governor, if necessary, to protect the rights of the relator.
    That it was unnecessary to issue it to the governor in this case, because if the action of the mayor was reversed and held for naught, the approval of the governor would fall with it.

      ■Qucere, whether, as the action of the mayor and governor was separate and not joint, the action of each should not be reviewed separately, and whether it would not be irregular to issue one writ to both jointly.

      ■When the governor of a State refuses to act as the law directs, or when he acts contrary to law to another’s injury, or when he makes an error or mistake in the discharge of a judicial duty, which the statute might have authorized another to perform; in any of these cases, the party aggrieved may seek, and. will receive, the protection of the courts.
    Appeal frqp two orders, one allowing a writ of certiorari and', the other directing a return to be made to such writ.
    On the application for a certiorari, the following opinion was. delivered at the Special Term :
   Westbrook, J.:

On the 5th day of April, 1879, Mr. Edward Cooper, the-mayor of the city of New York, made an order purporting to-remove Mr. Sidney P. Nichols, one of the police commissioners-of said city, from office, which act was approved by the governor of the State, lion. Lucius Robinson, on the seventeenth day of the same month. Mi-. Nichols asks that a writ of certiorari may issue from this court to the said mayor and governor to review their action in the premises.

The power of removal of the heads of departments in the city of New York is given by its charter (chap. 335 of Laws 1873,, \ 25), and is in these words: “ The heads of all -departments, including those retained as above, and all other persons whose, appointment is in this section provided for, may be removed by the mayor for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the governor, expressed in writing.”

On the 14th day of March, 1879, according to the papers: upon which this application is founded — and neither that nor any other fact stated therein is denied — the mayor caused a written notice to be served upon Mr. Nichols, which alleged that, under the management of the board of police, of which said: Nichols was a member, the police force had become lax in discipline and demoralized, and the cleaning of streets had been neglected ; that Mr. Nichols had been negligent in the discharge of his duties, had allowed personal dissensions to interfere therewith, and that his conduct had been unbecoming his office. To these charges Mr. Nichols was to answer at noon of Wednesday, March 19, 1879, at the mayor’s office.

On the return day of the notice, Mr. Nichols appeared before-'the mayor, with counsel, and desired to be heard through them, which the mayor refused. Mr. Nichols, in writing, protested, against the assumption of the mayor, contained in the notice-served, that he was guilty of acts justifying his removal before a. hearing had been had. and claimed that the charges were not specific, and that no sufficient opportunity had been given him to-be heard. Pie further, saving all exceptions to the mayor’s action,,deuied, generally and specifically, all charges contained in the-notice.

After 'this paper had been read, considerable conversation occurred between the mayor and the commissioner, in which the-mayor assumed to know the conditions of certain streets from, observation, and in regard to which he wished to interrogate the.commissioner. To all these interrogatories, Mr. Nichols answered :— “If the mayor will furnish to me specifications of the¡ charges he holds, if any, against me, and will allow me reasonable-time to reply to the same, I desire to be heard.” The mayor, however, insisted on a hearing then and there, and proceeded, to repeat various questions concerning the streets, to all of which. Mr. Nichols gave the answer above stated. After this had continued for some time, Mr. Nichols read a paper as follows : — “ E am, and have at all times, been l’eady and willing to give the.mayor full information upon every subject connected with the police department or its operations, but it is not proper for me,, in a proceeding in which I am denied the right of counsel, and. have not been furnished with charges or specifications, to make answer which would seem to recognize in any way the regularity of the proceedings against me.”

After the reading of this paper, a conversation of the same-tenor was renewed, which finally resulted in the mayor signifying his willingness to receive any further statement from Mr.. Nichols in the course of twenty-four hours, and upon this announcement the mayor said : — “The matter is closed as to Mr. Nichols.’* On the 3d day of April, however, the mayor enclosed a printed, copy of the stenographer’s notes of the interview of March 19,1879> (from a supposed copy of which the foregoing statement is made), accompanied with a note declaring he would give Mr. Nichols a. further opportunity to be heard on April 5, 1879, and that he (the mayor) would then receive any statement, explanation or .argument in writing.” The mayor further wrote :— “ In the absence of further answer or explanation by you, and upon the statements of cause heretofore made by me to you, if the record .shall remain unchanged, I shall transmit the same, together with a certificate of your removal from the office of police commissioner, to the governor for his approval.”

To this communication Mr. Nichols answered at some length, criticising the mayor’s action and asking, if he appeared, whether he could have specifications of the charges against him ? Whether witnesses against him would be produced ? Whether he would be permitted to refute, by testimony, the charges made against him ? And whether he would be allowed counsel upon the hearing ?

To this the mayor made no reply, and on the 5th of April, as .already stated, issued and sent to the governor a certificate that he had removed said Nichols for the following causes :

“First.— That under the board of police, of which the said Sidney P. Nichols is a member, the government and discipline of the police force have become lax and incapable, the police force has deteriorated in efficiency and it has become demoralized, and that no satisfactory explanation thereof, or satisfactory excuse therefor, has been made by the said Sidney P. Nichols exonerating either himself or said board from responsibility and blame.

“ Second.— That the board of police, of which the said Sidney P. Nichols is a member as aforesaid, has not caused the streets of the city to be thoroughly cleaned, and has not removed from the city daily, and as often as necessary, all ashes, dirt, rubbish and garbage, and that no satisfactory explanation thereof, or satisfactory excuse therefor, has been made by the said Sidney P. Nichols, exonerating either himself, as a member of said board, or said board from responsibility and blame.

“ Third.— That the said Sidney P. Nichols, as such commissioner of police, had been negligent in his discharge of the public duties which he was bound to perform.”

On the 7th of April, 1879, the governor notified Mr. Nichols that he would be heard on the ninth of the same month on the subject of the removal. Ou that clay Mr. Nichols appeared at-the executive chamber in Albany, and protested against the proceedings, but, nevertheless, the action of the mayor was approved by the governor on the 17th of April; but on what evidence, if any, the action of the governor was based does not appear.

This full history of the proceedings up to the time of the present application, which was on due notice to the mayor, governor and the person, appointed to fill Mr. Nichols’ place in the police board, Mr. Charles F. MacLean, has been related to show that, the mayor, in the initiation of the proceedings for Mr. Nichols’’ removal, assumed that the charges were well founded ; that on a. notice of five days, without the aid of counsel and without the presence of witnesses, Mr. Nichols was required to establish his innocence of charges, of the particulars of which he was uninformed, to a magistrate who had prejudged his case, and that the order of removal was made either upon the assumed accurate knowledge of the mayor, or upon evidence taken in the absence of the accused, of the character of which he was uninformed, and to rebut which, by reason of its careful concealment, was simply impossible.

The question which this motion presents is : — Ought the writ of certiorari, which, if allowed, enables the courts to decide what power, if any, they possess in the premises, and whether the removal was legal or otherwise, to issue ? Its simple allowance decides nothing, except that the questions involved are so grave that they deserve settlement by the tribunal of ultimate resort. Wide differences of opinion do exist, even in professional minds, as to the jurisdiction of the courts in cases of this character, and as to the mode and manner in which the power of removal vested in the mayor of the city of New York and the governor of the State,, by the provisions of the charter hereinbefore given, should bo exercised ; and as the present application presents all fully, it would seem to be wise to so dispose of it, that all doubts should be solved, and the course of procedure in future similar cases be so well defined that proceedings which must, in the interest of the good government of the great metropolis, be sometimes taken, should not fail by reason of non-compliance with the terms of the statute. As, however, various points were discussed upon the hearing, it is proper that my own views on some 'of them should be presented.

The provision of the charter of the city of New York (§ 25 of chap. 335 of Laws of 1873) above quoted, it will be remembered, .authorizes the removal of the head of a department thereof “ for -cause” only. The meaning of those words, “for cause” in the connection in which they occur, is too obvious to require extended comment. If it had been intended that the power of removal should exist in the mer.e discretion of the officers to whom it was confided, it would have boon accomplished by the conferring thereof generally, without the addition of any words of restriction. That the words, the signification of which we are discussing, were added as a limitation upon the power lodged with the mayor, shows that the “cause” of removal should be found in some act of omission or commission by the officer in regard to his duties, or affecting his general character, which the law and a sound public opinion will pronounce to be sufficient to justify a forfeiture of the office, and not in the political bias or personal dislike of the city’s executive chief, nor in his leanings toward -another individual for whom the place is desired.

This view of the charter of New York, and of the same words when occurring, as they do in other legislative and constitutional enactments, is not novel, but, on the contrary, has oftentimes been expressed by eminent statesmen and jurists. On the 17th day of February, 1875 (see “ The City Record ” of February 24, 1875), the Hon. Samuel J. Tilden, then the governor of this State, wrote to Mr. Wickham, then mayor of the city of New York, in regard to the attempted removal of the corporation counsel, as follows:

“Removals for cause are distinguishable from removals which are in the arbitrary will of the officer vested with the power, and which have generally followed the changes of the removing power or of party ascendancy. * * * The principle on which the whole system rests is, that a removal in such cases must be for a .substantial, reasonable and just cause. The nature of that cause it is not now necessary to discuss. * * * The power, therefore, exists to give legal effect to a removal without obeying the rule which is binding on the conscience of the functionary making it. But a disregard of that rule would be none the less a violation of right and duty. It would be the immoral power to do wrong, because the law had not disabled the officer having the discretion. In the case of the governor, such a violation, if committed in evident bad faith or by a gross abuse implying bad faith, would, doubtless, render him liable to removal by impeachment. In the •case of the mayor, it would expose him to removal in the manner provided by the statute.”

It is proper to state that Governor Tilden,'in the letter from •which the foregoing quotation has been made, assumes that the action of the mayor and governor, in a case like this, is not reviewable by the courts, the soundness of which assumption will be hereafter considered ; but, as a whole, it is eminently worthy of perusal for its clear definition of a removal “ for cause,” and for Its cogent exposition of the danger and wickedness of executive action, which converts a power limited by such a phrase into one resting upon arbitrary will.

The point we are discussing, however, has been judicially settled in this State in People ex rel. Munday v. Fire Commissioners (72 N. Y., 445). The relator had been removed from the office of clerk in the fire department of the city of New York. Section 28 •of the aforesaid chapter 335 of the Laws of 1873, provides for the .appointment and removal by heads of departments of “ all chiefs of bureaus (except the chamberlain), as also all clerks, officers, employees and subordinates in their respective departments,” and declares: “ But no regular clerk or head of a bureau shall be removed until he has boon informed of the cause of the proposed removal and has been allowed an opportunity of making an explanation.” The General Term of this court for the first department, on certiorari, reversed the action of the board of fire -commissioners in removing Munday from office, and the Court of Appeals sustained such reversal. Judge Allen, who delivered the opinion of the latter tribunal (page 449), said: “ The removal must be ‘for cause,’ and the process for reino val is prescribed by , statute and must be pursued. The party against whom the proceeding is taken must be informed of the cause of the supposed removal, and be allowed an opportunity of explanation. This necessarily implies that the * cause ’ is to be some dereliction or general neglect of duty, or incapacity to perform the duties, or . some delinquency affecting his general character and his fitness for the office. The cause assigned should bo personal to himself, and implying an unfitness for the place, and such cause being assigned, if unexplained, the removal may be made. An explanation may consist either of excusing any delinquency, or apparent neglect or incapacity — that is, explaining the unfavorable appearances, ox-disproving the chax'ges; that some other man is a better man than the accused, or mox’o congenial to the appoixxting or removing power, is xxot a cause which the incumbent caxx explain iix the •sense iix which that term is used, and is xxo cause for removal within the statute. That something sxxbstaxxtial is intexxded by the statute is more evident from the fact that the ‘ true grounds ’ of the removal are to be entered upon the records, and ‘ a statement showing the reason therefor ’ filed iix the department.”

The case before us is evexi plainer. Judge Allen, in defining what “cause” for removal meaxxt, fix the sectioxi of the statute upon which that proceedixxg reviewed by him was takexx, was compelled to coxxstrue it as if the power of removal was-expressly stated to be “ for cause ” oixly. By sectioxx 25, however, oxx which the actioix against Mr. Nichols was taken, the only authority conferred upoix the mayor is “for cause ;” and if arguments iix favor of his (Judge Allen’s) interpretation of the words used in section 28 can be drawn from the fact that that section required a statement of the reasons for the removal to be filed in the department, the same ai’e applicable to the case before us, fox-section 25 also declares, “ whenever a removal is so effected, the mayor shall, upoix the demand of the officer removed, make in writing a public statement of the reasons therefor.”

It can hardly be necessary to pursue the further discussion of the proposition, that the power to remove a person from office “ for cause ” means that a reason must exist which is personal to the individual sought to be removed, which the law and a sound public opinion will recognize as a good cause for his no longer occupying the place. Many cases establishing the correctness of this view can be found. If the meaning claimed is not sufficiently clear as an original proposition, sustained as it is by the opinion of an eminent statesman who once filled the chief executive chair of the State, the judgment of our court of last resort must foreclose and end all ai'gument.

It is claimed, however, that the removal of Mr. Nichols was “for cause,” within the definition given, and for that reason the order, therefore, was legal. It is a fact that the certificate sent by the mayor to the governor stated reasons which, if they be true, justified action, provided the steps which the law required to be taken in their ascertainment were followed. A criminal act will justify the punishment of its perpetrator only when conviction therefor has been had under, and through the forms which the statutes provide, and a removal from office, to be effectual, must follow the process prescribed for it. This bring us to the inquiry, — What should have been the course of procedure in the case before us ? In the discussion of this question, which relates to the manner of removing one of the heads of a very important department in a great city, and not to the ordinary summary dismissal of a laborer or clerk, the peculiar phraseology of the act must not be forgotten. The removal must be ‘ for cause ” — i. e., for some good reason, which actually exists, and not for a false reason, which the removing power honestly, but mistakingly, believes to be true. The right to investigate is necessarily conferred upon the individual or body, who or which is authorized to act in a given direction upon the existence of certain facts, which furnish the only basis for proposed action ; and when such action taken will affect the rights of another, he, who is to be so affected, must be heard upon an investigation which is to ascertain the truth of alleged facts, on which depends the power to act to his injury. Quite early in the jurisprudence of this State (Hickock v. Scribner, 3 Johns. Cas., 311-315), Radcliff, J., said : “I consider it a maxim of natural justice and of universal law, an axiom, not now to be proved, that no. man ought to be affected in his rights by the judgment or decree of any court without an opportunity of being previously heard in his defence.” The principle thus clearly stated must also be applicable to any tribunal which has power to judicially decide a question affecting the rights of another, whether it is a court in name or not, because the rqason on which it is founded applies to both; and this “ opportunity to be heard,” required not only by an axiom of the law, but in the proceeding against Nichols demandad by the positive words of the statute on which it was based, involves, necessarily, a definite and specific statement of the charge, a reasonable time to answer it, the right to hear and examine the evidence by which it is attempted to be sustained, to produce testimony to show its falsity, and the aid and advice of counsel in the conduct of the examination. All this seems to be so elementary in the minds of persons living under the common law that citation of authority to sustain it is perhaps unnecessary labor. If, however, the soundness thereof is questioned, the following authorities will remove all doubt:

Judge Dillon, in his work on Municipal Corporations (second edition, § 191), in considering the manner of removing a municipal officer, says The proceeding in all cases, where the amotion is for cause, is adversary or judicial in its character, and if the 'Organic law of the corporation is silent as to the mode of procedure, the substantial principles of the common law as to the proceedings affecting private rights must be observed.” In section 192 he states that “the officer is entitled to a personal notice of the proceeding against him, and of the time when the trial body will meet;” and in section 193 he says : “ There must be a charge or charges against him, specifically stated, with substantial certainty ; yet the technical nicety required in indictments is not necessary, and reasonable time and opportunity must be given to answer the charges and to produce his testimony ; and he is also entitled to be heard and defended by counsel, and to cross-examine the- witnesses, and to except to the proofs against him. If the .charge be not denied, still it must, if not admitted, be examined .-and proved. Where the specific chai'ge stated is insufficient to justify the removal, or where the removal is erroneous and no ;good, and sufficient ground thereof appears, the officer is entitled to a mandamus to restore him.”

The author cites many adjudged cases, both in England and in this country, in support of his positions, which are not referred to in this opinion. They will be found to fully justify his conclusions. There is a single case, however (Murdock v. The Trustees of Phillips Academy), which was twice before the Supreme Court ‘of Massachusetts (7 Pick., 303; 12 id., 244), worthy of special attention.

Dr. Murdock had been removed from the position of professor in the seminary by the trustees. The charter gave the right to remove for “ gross neglect of duty, scandalous immorality, mental incapacity or any other just and sufficient cause.” In the opinion reported in 7 Pick., Parker, Ch. J., in discussing the sufficiency of charges (p. 330), says: “ Secondly, it is alleged that-the articles of charge arc not sufficiently definite and particular, .and this would bo a material objection, if sustained by the record; for we hold that by analogy to trials on criminal accusations in courts of justice, and the principles of the constitution, no man can be deprived of his office, which is a valuable property, without having the offence with which he is charged ‘ fully and plainly, substantially and formally described to him.’ This enters so essentially into the justice of the case, and into the character of a fair trial, that it ought never to be dispensed with. Without it, the party ■charged does not know what to defend against, nor can another foody, to which there may be an appeal, ascertain the applicability or the effect of the evidence.” In 12 Pick., the court, per Siiaw, Ch. J., describes the course of procedure to be observed by a body empowered to remove a person from office (p. 263): “ 1. A monition or citation of the party to appear.. 2. A charge'given him,' which he is to answer, called a libel. 3. A competent time ¡assigned for the proofs and answers. 4. A liberty for counsel to ■defend his cause and to except against the proofs and witnesses. 5. A solemn sentence after hearing all the proofs and answers.” 'The learned chief justice quotes these rules from 2 Burnes Eco. Law, 145, and then adds : “It is not to be insisted on, that in •exercising the powers vested in anew jurisdiction, where no forms: .are prescribed, any precise course as to forms must be followed, but these rules indicate the course which must, in substance, be pursued by every tribunal acting judicially upon the rights of others.”

In People ex rel. Munday v. Fire Commissioners (72 N. Y., 445), referred to above, it will be remembered (see p. 449), Judge Allen said : “ The party against whom the proceeding is taken must be informed of the cause of the supposed, removal, and be .allowed an opportunity of explanation. * * * An explanation may consist either of excusing any delinquency or apparent .neglect or incapacity —.that is, explaining the unfavorable appearances or disproving the charges.”

In The People ex rel. Garling v. Van Allen et al. (55 N. Y., 31), the Court of Appeals expressly adjudicates one question which this application presents — the right to be heard by counsel, Tire case brought up for review the proceedings of a court martial, before which tribunal that privilege had been denied. The-judgment of the military tribunal was reversed, and it was held that section 189 of the “ General Regulations” which forbade the appearance of counsel eo nomine was unconstitutional and void, because section 5 of article 1 of our State constitution provides for the presence of counsel for the accused “in any court whatever.” It needs no argument to prove that any proceeding initiated to remove a person from public office before a person or body having jurisdiction to decide upon the existence of “ cause” for removal, is judicial in its character, and the tribunal to which it is presented is a court for that particular purpose, and that therefore the constitutional provision is applicable. In the face of that constitutional enactment, and of the decision of the court of last resort, the order of the mayor to the policemen to remove counsel from the room, in which they were lawfully present to guard their client’s rights, was, at least, singular and extraordinary.

If the conduct of the mayor in the removal of Mr. Nichols be tested by the well-established course of procedure to be observed in cases of that character, it is very clear that it cannot be upheld. There was no specific statement of charges; the aid of counsel was denied; the proofs against the accused were not taken in his presence, nor was he informed of the nature thereof; no opportunity'to produce witnesses was afforded, and, in short, not a single right secured by the law, except to appear and prove his innocence of general charges, was accorded. It is possible that the mayor acted upon what he supposed was personal knowledge ; and if he had any, perhaps, as he was the city’s official executive head, it might be taken by him as evidence ; but it is most obvious that he might have been mistaken, and it was the clear right of the accused to an explicit statement by the mayor of that supposed knowledge, to the end that, if he was in error, previously formed opinions might be corrected and removed by proof.

This brings us to the consideration of the last question presented — can this court review the action taken?

As to the right to issue the writ to the mayor, there can be :no doubt. It has been so often decided that it is no longer -an open question. The following cases, and many others to be found, are directly in point: (The People ex rel. Bancroft v. Weigant, 14 Hun, 546; The People v. The Board of Police, 39 N. Y., 506; The People ex rel. Folk v. The Board of Police and Excise of the City of Brooklyn, 69 id., 408; The People ex rel. Clapp v. Board of Police of the City of New York, 72 id., 415; The People ex rel. Munday v. The Board of Fire Commissioners of the City of New York, 72 id., 445.) As to the governor, the question is not free from difficulty, for there are cases, .and notably that of Southerland v. The Governor (29 Mich., 320), which hold that the action of the chief executive of a State cannot be reviewed nor questioned by the courts. The argument against the power of the courts, to state it in the language of the attorney general’s brief, submitted on this motion, is: “The powers of the State government are, by the constitution, divided into three co-ordinate departments — legislative, judicial and executive— each independent of the other, except insofar as subordinated by the constitution,” and, therefore, the conclusion follows that the one cannot question or review the action of the other. Undoubtedly, this proposition is, in a general sense, sound, and yet sometimes it is not true. The courts must, when their power is invoked, declare what the law is, and enforce and protect public and private lights under it. They have not, it is true, the power to prescribe and define executive action in matters of public policy or political expediency, or matters vested in simple •Executive discretion, nor to dictate to the Legislature the course ■of legislation, but they can, and frequently do, interfere with Executive action, which, contrary to the law, as they expound it, wrongfully interferes with the persons or rights of individuals, and they can and do frequently declare legislation, though it has been enacted in the manner prescribed by the constitution, to be contrary to the fundamental law and void. It is, as has already been said, the constitutional prerogative of the judicial department of the government to declare what the law is, whenever a question under it is properly submitted, and at the instance of ±he public or of private parties to enforce all its remedies and afford all its protection. In a republican form of government there can be no officer or person beyond the jurisdiction of the-courts, for there is none above the law. Will it be seriously-argued that if the governor of the State seizes an individual and detains him, that the courts have no power to inquire into the detention, and, if illegal, release him ? If the governor, contrary to law, though professing to act in conformity therewith, by vir- • tue of his office, takes a man’s property, are' the courts impotent to afford relief? If the governor unlawfully prevents a person from discharging the duties of an office of which he is the rightful incumbent, are the doors of the courts barred to him when,, as a suitor for justice, the party interfered with seeks relief?' And when the governor is clothed- with judicial, functions to-decide a question, which any other person could as well have been ■ authorized to determine as he, is his action incapable of review while that of any other officer or individual is reviewable ? These-questions can have but one answer, unless the chief executive is. above and beyond the law, which no one will contend. The jurisdiction of courts cannot be controlled’or limited by the official position. of any one. When they issue a mandate commanding an act,, they do so not because the person commanded is their legal inferior,. but because the law is the superior of all, and its commandments must. be obeyed, and when they restrain action, it is because the law restrains. There can heno clashing between the executive and judicial, departments of government when to the former is committed all discretionary governmental, political and executive action, and to the latter the interpretation of law and the administration of justice under it. The checks and balances of government are better preserved by conceding to each department thereof its appropriate sphere of action, than by limiting the general jurisdiction of the one by the official grade of the individual filling another. These. general principles are well sustained by adjudged cases.

In Commonwealth v. Fowler (10 Mass., 290), the appointment-of Fowler by the governor to the office of probate judge of Hampden county was questioned by quo warranto. In answer to the point distinctly made, that the action of the executive was above question, the court (p. 301) said : “ The other objection is that an information, of the nature of that before us m this case, does not lie; against an officer appointed-by the supreme executive authority of the commonwealth. And it is said that, as the executive have the exclusive right of appointing, so it must have exclusively the right to determine when a vacancy in office exists, the filling of which appertains to that branch of the government, the executive being a branch of the sovereignty of the commonwealth equally independent with the judiciary. Our government is founded on principles not known to the laws of any other country. The sovereignty of the commonwealth remains in the people. The several departments of the government — the legislative, the executive and the judicial- — -are the agents of the people in their respective spheres. When the Legislature enact a law not authorized by the constitution, it is 'the part and the duty of the judiciary to declare it void. When the executive, in an act or appointment, overleaps the bounds prescribed to it by the constitution and the laws it is alike the part and the duty of the judiciary to pronounce such act or appointment null and void.”

To precisely the same effect are the following cases, each presenting the identical question decided in the Massachusetts case : Morton v. The Mayor (N. Y. Daily Reg., Nov. 15, 1878); Hogan v. Carberry (4 Cin. Law Bulletin, No. 7, Mar., 1879 [ in this last case the governor had removed an officer and appointed another ; the court held his action void]); Page v. Hardin (8 B. Monroe L. & Eq. Rep., 648.)

The famous case of Marbury v. Madison (1 Cranch, 137), fully sustains the positions taken in this opinion. Chief Justice Marshall concedes that “ by the constitution of the United States,, the president is invested with certain important political powers,, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to-his own conscience.” Certain officers, too, appointed by the president, the learned judge declares, when they act by his orders, “ in cases in which the executive possesses a constitutional or legal discretion,” are beyond the control of courts. “ But,” he adds, “ where a specific duty is assigned by law, and individual rights: depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.” And again the learned judge says : “ What is there hi the exalted station of the officer which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to the claim; or to issue a mandamus, directing the performance of a duty, not depending on executive discretion, but on particular acts of Congress and the general principles of law ? It is not by the office of the person to whom the writ is directed, but the nature of the thing to be done that the propriety or impropriety of issuing a mandamus is to be determined.”

In State of Ohio ex rel. Whiteman et al. v. Salmon P. Chase, Governor, etc. (5 Ohio St. Rep., 528), one question involved was the power of the court to issue a mandamus to the governor. Upon that question the court, per Bartley, Ch. J., said : “ Can the chief executive officer of the State be directed or controlled in his official action by proceedings in mandamus ? It is claimed, on the part of the defence, that inasmuch as the government is,by the constitution, divided into the three separate and co-ordinate departments — the legislative, the executive and the judicial — and inasmuch as each department has the right to judge of the constitution and laws for itself, and each officer is responsible for an abuse or usurpation in the mode pointed out by the constitution, it necessarily follows that each department must be supreme within the scope of its powers, and neither subject to the control of the other for the manner in which it performs, nor its failure to perform, either its legal or constitutional duties. This argument is founded on theory rather than reality. That each of these co-ordinate departments has duties to perform in which it is not subject to the controlling or directing authority of either of the others must be conceded. But this independence arises not from the grade of the officer performing the duties, but the nature of the authority exercised. Under our system of government, no officer is placed above the restraining aiithority of the law, which is truly said to be universal in its behests, ‘ all paying it homage, the least as feeling its care and the greatest as not exempt from its powei’s ; ’ and it is oxxly where the law has authorized it that the restx’aining power of oxxe of these co-ordixxate departments caix be brought to operate as a check upon oxie of the others. * * While the^ authority of the governor is supreme in the exercise of his political and executive functions, which depend on the exercise of his own judgment or discretion, the authority of the. judiciary of the State is supreme in the determination of all legal questions involved in any matter judicially brought before it. Although the State cannot bo sued, there is nothing in the nature of the office of governor which prevents the prosecution of a suit against the person engaged in the discharge of its duties. This is fully sustained by the analogy of the doctrine of the Supreme Court of the United States in the case of Marbury v. Madison (1 Crunch, 170).”

The question of the power of the courts to interfere with and annul the action of the chief executive of the State, when such action affected private rights, was, by our own Court of Appeals, settled in favor of its existence in People ex rel. Lawrence v. Brady (56 N. Y., 183). Lawrence had been arrested by order of the governor of this State, to be extradited to the State óf Michigan, on the requisition of its governor, and had been refused a discharge on habeas corpus in the lower courts. The Court of Appeals, however, reversed the prior decisions and discharged the prisoner, holding that the evidence upon which the governor issued his warrant of extradition was insufficient.

In the Matter of Briscoe (51 How., Pr. 422), the writer of the present opinion discussed the same question (pp. 428, 429, 430), and reached the same conclusion. That opinion is, however, only referred to for the purpose of showing that the views herein expressed, as to the authority of the courts to interfere with executive action, are not new to him, but have been long since deliberately adopted and formally expressed. They are also sustained In the Matter of Manchester (5 Cal., 237); in Hartman v. Aveline (13 West. Jur. [Sup. Ct. of Ind.], 208); and in Wilcox v. Nolze (13 West. Jur. [Sup. Ct. of Ohio], 209).

Upon reason and principle, then, it is held that when the gov•ernor of a State refuses to act as the law directs, or when he acts contrary to Iuav to another’s injury, or when he makes an error or mistake in the discharge of a judicial duty, which the statute might have authorized another to perform, in any of these cases the party aggrieved may seek the protection of the courts, who, in listening to the complaint and in redressing the grievance, if any exists, usurp no executive functions, but simply assert and exercise their own.

It is assumed that the action which the governor of this State-was called Upon to take, when the mayor transmitted to him the certificate of removal of Nichols, was judicial in its character. It. is true he is an executive officer, but that fact does not make every duty imposed upon him one of an executive nature. He was. called upon to judge' and decide whether the reasons which the-mayor gave for the removal were sufficient, and not only that, but he was bound (see letter of Governor Tilden, referred to above) “ to take all information necessary to enable him to decide whether he ought to give or withhold his approval of an act of removal, initiated by the mayor, under the law which defines their respective powers and obligations in such cases.” In short, he was to determine for himself whether there was “ cause ” for the removal; or, to use the language of Judge Allen, in People v. Fire Commissioners (72 N. Y., 449.), “some dereliction or general neglect of duty, or incapacity to perform the duties, or some delinquency affecting his general character and his fitness for the office. ” To argue* that the investigations of such questions and their determination is; not the exercise of judicial power would be a frivolous discussion.

A careful examination of the questions which this application involves has led to the conclusion that the court has the power to review the action of both the mayor and the governor, and that,, to use no stronger language, the facts require its exercise» Whilst, however, holding that the action of the chief executive-of this State is, in a case like the present, reviewable by the: courts, still respect for the high office should induce judicial tribunals to be sparing in the use of their reviewing power, when-, process is asked to issue to or against him directly, and they should not, therefore, grant a writ of certiorari directed to him, unless there, is no other remedy. In the present case, all the rights of Mr.. Nichols can be guarded by a review of the action of the mayor. If that be reversed and held for naught, the approval of the governor falls with it, for the conclusion of both the mayor and governor must stand to make effectual the removal. Besides, their action is separate and not joint. Each makes a separate and independent decision, and, in my judgment, each should be separately reviewed»

W. C. Whitney and F. N. Bangs, for the appellant.

Townsend & Weed, for the respondent.

The writ asked for will be issued to the mayor aud is refused, as to the governor, not because his action is beyond review, but because it is unnecessary, and also because one issuing to both, jointly might be held irregular.

Per Curiam :

We are of opinion that a writ of certiorari may properly be sued out to review the action of the mayor in cases of this character. The allowance of such a writ rests in the sound discretion of the court to which application is made, and this court will not. interfere with the exercise of such discretion in allowing the writ, where it does not appear that it has been palpably abused.

Without considering or in any way passing upon the merits of the case which, we think, are not properly before us for that purpose, we dispose of the case upon the ground simply, that a writ, of certiorari would lie in such a case as this, and that the action of the court in granting the same was not an abuse of its discretion.

In respect to the order directing the return to be made, it is sufficient to say that a return was made aud filed, and that by the writ of prohibition heretofore granted in the case, the trial of the merits of the proceeding was sent to the proper tribunal. It, becomes quite unimportant to determine whether or not the judge should, under the circumstances, have directed a return to be made, and we think that a proper disposition of the case is made by dismissing the appeal from the order.

The motion to dismiss the appeal from the order allowing the writ should be denied, and the order should be affirmed.

No costs of appeal or of the motions to either party.

Present — Davis, P. J., Brady and Ingalls, JJ.

Motion to dismiss appeal from order allowing writ of certiorari' denied and order affirmed.

Appeal from order directing return to be made dismissed. No costs of appeal or of motion to either party.


source: Caselaw Access Project

author:
Barrett, J. :
      Per Curiam:

license: Public Domain

text:
      THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE NEW YORK ELEVATED RAILROAD COMPANY, Appellant, v. THE COMMISSIONERS OF TAXES AND ASSESSMENTS OF THE CITY OF NEW YORK, Respondents.

      Elevated railroads —foundations and svjperstrucbwres in streets — taxable as real estate— Valuation, how determined — Form of assessment — Exemption from taxation — what does not operate as —1868, chap. 855.
    'Foundations for piers or columns placed in a public street, by an elevated railroad, by legislative authority, whether standing alone, or with columns and a superstructure thereon, are properly taxable as real estate.
    The charter of the relator, chapter 855, of 1868, provided for the payment by it to the comptroller of the city of New York, of five per. cent of its net income to be expended in removing obstructions from the streets through which it ran, and in repairing and improving the appearance thereof; such payment to be “ the legal compensation in full for the use and occupancy of the streets by said railway as provided by law, and shall constitute an agreement in the nature of a contract between said city and constructing company, ■entitling the latter or its successors to the privileges and rates of fare heretofore or hereinafter legalized, which shall not be changed without the mutual •consent of the parties hereto as aforesaid.” The money received was not to be mingled with the general corporate funds, but was to be expended by commissioners for the aforesaid purposes, subject only to the approval of the mayor.

      Held, that this provision did uot operate to exempt from taxation the real or personal property of the company.
    That in assessing such foundations and superstructures the assessors were not confined to the consideration of the land covered thereby, but might consider their position and its incidents, and the business and profits to be derived therefrom.
    Presumption, in absence of proof to the contrary that property is assessed in the form prescribed by the statute, and the power of the court to correct certain irregularities in the assessment, considered.
    Appeal from a judgment entered herein, so far as it relates to the assessment laid upon the relator’s foundation and superstructure. The judgment was rendered on ihe return to a certiorari,. issued to review the action of the tax commissioners in assessing the relator for real and personal estate. The relator had acquired title by proceedings in foreclosure, and under the rapid transit act (chap. 606 of 1875), to the property and franchises of the West Side and Yonkers Patent Railway Company, incorporated by chapter 489 of 1867. The foundations, columns and superstructure of the relator's road, in New York, were assessed as real estate, for $1,504,500, and their personal property was assessed at $150,000.
    The relator claimed that the manner in which the assessment was made was not according to law ; that their foundations, columns and superstructure were not real estate, and that they were especially exempt from taxation by force of chapter 855 of 1868.
    The following opinion was delivered at the Special Term:

       Decided at General Term, May, 1879.

   Barrett, J. :

First. With respect to the foundations and superstructure the case is directly within the principle of People ex rel. D. and F. Railroad, Co. v. Cassity (46 N. Y., 46), and The People ex rel. Erie R. R. Co., v. Beardsley (52 Barb., 105).

The track of a railway company was there held to be taxable as ‘land’ under the statutory definition of that term, (1 R. S., 387, §§ 1, 2.)

It matters not that the easement is unaccompanied by the fee, nor even that the fee is vested hi the taxing authority. (Same cases.)

So far as this question is concerned, there is nc distinction.in principle between elevated and surface railways. One is as much within the statutory phrase, ‘ all buildings and other articles erected upon or affixed to the land,’ as the other. The columns of the elevated railway are ‘ articles ’ erected upon and affixed to the land ; so is the road-bed which rests upon the columns. The depot houses land stairways leading and attached thereto) are ‘ buildings.’ Time, they do not rest directly upon the surface, but they are 1 erected ’ thereon and ‘ affixed ’ thereto, in that particular differing only in degree from houses built upon spiles or other made foundation.

But even if such an elevated structure should be treated as in the nature of a bridge, that is a continuous railroad bridge, it is still taxable as real estate. (The Hudson River Bridge Co. v. Patterson, Court of Appeals, 74 N. Y., 365.).

Second. As to the foundations standing alone, they are clearly within the general common law rule as to fixtures. (Walker v. Sherman, 20 Wend., 655; Bishop v. Bishop, 11 N. Y., 123; Snedeker v. Warring, 12 id., 170.)

In the case last cited a statue which was not even fastened to the base on which it rested, and which could have been removed without fracture, was treated as between mortgagor and mortgagee as part of the realty.

It is ui’ged, however, that as the foundations do not rise above ’the surface, they arc not within the statute. The only authority to which wo have been referred in support of this proposition is The People ex rel. Citizens’ Gas-light Co. v. The Board of Assessors (39 N. Y., 81). It was there held that the mains of .a gas company, under the streets of the city, cannot be regarded as real estate within the statute for the purposes of taxation. But there is a plain distinction between pipes which are to remain permanently under ground, and the open foundation of an above ground structure. In the one case, the article ’ runs in and through, in the other it rests upon the earth. The land does not end at the surface. Affixing a thing to the bottom of an artificial depression of a few feet is as much an affixing to the land as though it had been placed upon the original surface. And upon what do these foundations rest if not upon the land ? And to what are they affixed ?

Further, they are to form part of the contemplated structure. 'The latter will rest primarily upon its foundation, yet in its entirety, foundation and all, it will clearly be ‘ erected upon and 1 affixed to the land. It would seem as though the part should be treated as having the same characteristics as the whole.

Third. The next consideration is, whether the relator has by .special statute been exempted from taxation upon its real estate. Such exemption is claimed under chapter 855 of the Laws of 1868. The second section of that act provides for the payment by the company to the comptroller, of ‘ five per cent of its net income for the purpose of being expended in the improvements of the condition or appearance of the streets or parts of streets or avenues, or places through which said railway shall be constructed, by preserving or transplanting shade trees, or by other embellishments •or improvements of awnings and sidewalk structures, which, may '•tend to render the general condition and appearance of the streets .aforesaid satisfactory to the citizens dwelling in or frequenting 'the same.’

The third section declares that the payment of the five per . cent shall be the legal compensation in full for the use and occupancy of the streets by said railway as provided by law, and shall constitute an agreement in the nature of a contract, between said city and constructing company, entitling the latter, or its successors, to the privileges and rates of fare heretofore or hereinafter legalized, which shall not be changed without the mutual consent iof the parties thereto as aforesaid.’

A further employment of the five per cent is indicated by the fourth section, which reads as follows :

“Section 4. The compensation mentioned in the preceding section shall bo considered as covering all claims for the removal of obstructions or structures, found upon the street line of said railway, owned by companies or individuals.”

Further, the five per cent is not to be mingled with the genenal corporate funds, nor is it to be expended by the regular officers of the municipality, but by certain commissioners, subject only to the approval of the mayor. The language of the act on this head is as follows :

“ To this end the commissioners aforesaid shall have power to expend revenues, received from the specified percentage, in such manner as they shall doom best to promote the object aforesaid, subject to the official approval of the mayor of the city of New York. The comptroller of said city is hereby directed to keep said revenue distinct and apart from all other funds, and to pay out of it warrants, when signed by the commissioners, and accompanied by vouchers for the expenditures indorsed as approved by the mayor, and the vouchers for the compensation of the commissioners when approved by the Governor, shall also be paid from the same fund in like manner.”

These provisions must.be considered in the light of the general principio, that exemption from taxation will not be lightly presumed. The intention to exempt must in every case be expressed in clear and unambiguous terms. (Cooley on Taxation, 146.)

It was said in The Mayor v. The Balt, and Ohio R. R. Co. (6 Gill., 288), that “ the right of taxation is never presumed to .be surrendered by the sovereign power; and such surrender is. never made, unless it be the result of express terms or necessary inference.” And see Hilliard on Taxation, 72; Gordon v. The Appeal Tax Court (3 How. U. S., 133); Delaware Railroad Tax (18 Wall., 224.)

Now, in the present instance, it will be observed that the five per cent is to be kept distinct and apart from all other funds, and is to be specially applied to the improvement of the streets- occupied by the railway, to the compensation of the commissioners, and certain contingent claims against the company. It will also, be noted that the five per cent is not only for the uso and occupancy of the streets, but for the privilege of charging certain rates of fare, in excess of that allowed to railroads in general.

These provisions are but apparently in the interest of the city. Closely scrutinized, their real character is evident. They are in the main in the interest of the relator. At all events their advantage to the city is remote and problematical. Certainly, there is nothing in them indicating an intention to exempt the relator from general taxation upon its structure for governmental purposes.

Again, the right to use and occupy the streets, to construct a railway thereon, and to charge certain rates of fare, is a franchise. For that franchise the Legislature required what, superficially considered, seems like the payment of a bonus in the shape of an annual proportion of net profit, the city being the nominal recipient, but the commissioners having substantially full control of its expenditure.

Assuming it, however, to be a valid and sufficient bonus, there is here no attempt to tax the franchise. Indeed, under the-laws of this State, a mere franchise is not taxable, except by special statute. Nor could it probably be taxed, even by special statute, in view of the contract which the Legislature has made for these parties. But it is perfectly well settled that the structure is taxable, although the franchise may be exempt.

The case of Smith v. The Mayor (68 N. Y., 555), is directly in point. The court there said that “ a person may have a franchise to build and maintain a bridge and take toll for its use. The bridge, as a structure, is not a franchise. He may not be taxed on his franchise, but he can be taxed upon the, structure or real estate. A railroad company has a franchise to construct and maintain a railroad. Its franchise cannot be taxed, but its road and other structures can be taxed as real estate.”

The relators contention is, that as the easement cannot be-enjoyed without the foundations and superstructure, the right to-the former carries with it the right to the latter also. “ To tax the. accessories,” says the learned counsel, “is to tax the principal,, which is contrary to contract.”

The answer to this may be given in the words of the Court of Appeals, in the Smith case : “ The bridge and railroad may not be of any use to their owners without the franchise pertaining or incident to them, and yet they may be taxed, and for the purpose of fixing their value, the uses to which they may be subjected must-be considered.” Citing as authority The People ex rel. B and S. L. R. R. Co. v. Barker (48 N. Y., 76).

That ease was stronger than the present, for there the contract was not made for the city by the Legislature, but was the direct act of the municipal authorities. The grantee had paid to the city the price agreed upon for the franchise. He argued just as the relator does here, that having paid for the use and occupancy of the land, the tax upou the structures was an attempt to pay twice for the same use. But the court said, in substance : “ No you are not taxed at all upon the franchise, but upon the structures. The latter may not be of any use to you without the franchise, and yet you may be taxed thereon.”

To the same effect is the case of The Hudson River Bridge Co. v. Patterson, ubi supra.

And this is just, for the structure, as such, should pay for governmental protection ; and that, independent of the bonus for the exceptional privilege of erecting such structure on city property, and for the substantia] monopoly of a lucrative business conducted, thereon. Were it otherwise we might, for but a small building right compensation, soon have in our midst a large class of privileged structures of enormous value.

Fourth. As to the amount of the tax, it is claimed that there was a gross over-valuation, and that the assessors should have confined themselves to the area covered by the foundation.

But it is not the' space in which the foundations rest that is taxed, but the foundations themselves, together with, the superstructure.

The value is left by the law to the judgment of the assessors (The People v. Barker, 48 N. Y., 76), subject to revision where they proceed upon an erroneous principle. No such erroneous principle has been pointed out. Indeed, even if the space occupied by the relator were in question, the case would be covered by ‘The People v. Barker; for it was there held that the assessors are not required to assess the real estate of a coiporation as “an isolated piece of land, hut each piece of property is to be estimated In connection with its position, its incidents and the business and profits to be derived therefrom.” (See also the quotation above from the opinion in Smith v. The Mayor.)

Fifth. It follows that the tax upon the relator’s personal property was erroneous. Indeed it is conceded, that if the structure be taxable as real, estate, the personal tax cannot be upheld. The reason is obvious. The relator’s capital stock (paid in or secured ¡to be paid in) amounts to $1,068,000. Even the assessors’ value of its real estate exceeds this sum. Consequently nothing. at present remains to tax. It will, therefore, be unnecessary to eon¡sider whether the methods adopted on this head were regular and an accordance with the terms of the statute.

Sixth. The remaining question is as to the procedure. The ¡point which the relator makes is, that the commissioners should Jiav.e arranged the assessment rolls in five columns, under 1 E. S., 415 as amended by chapter 654 of the Laws of 1853, and chapter 456 of the Laws of 1857. Without considering the quest;on whether these forms have been modified by the special statute lor ¡the-city of New York (chap. 302, Laws 1859), it is sufficient to say that there is nothing on the record to show that the methods ¡of the Revised Statutes have not been pursued.

The assessment roll 'is not before the court. It was not returned by the commissioners, for the reason that it was not in their hands at the time of the service of the writ, having already been delivered by them to the supervisors as required by law.

The books may have been kept, under chapter 302, of the Raws of 1859, and yet the assessment roll, prepared therefrom, may have been in the form prescribed by the Revised Statutes. ‘The books contained all the necessary information. Non constat, but such information was properly utilized.

But even if the assessment roll were not in precise conformity to the statute, it by no means follows that the entire proceedings should be set aside and the relator absolved from taxation. Even in The People v. Board of Assessors of Brooklyn (ubi sup.), where the court hold that the assessors had “ disregarded the mandate” of the statute, and had thus “put it out of the power of the supervisors to assess a proper tax,” the proceedings were corrected but not entirely reversed, and the assessment, as thus corrected, was directed to stand.

In other words, the relator must point out the particulars in which it has been prejudiced by non-compliance with statutory methods, and then the court will see that substantial justice is done

It is riot denied, however, that there may be such radical defects and irregularities as to render mere correction impossible, and that where such a case is presented the entire proceedings must necessarily be vacated. But nothing of the kind appears in the case at bar.

Lastly, the point taken upon the argument that the records do not give the street, ward and map numbers is not repeated in the printed brief which has been submitted. It will therefore be unnecessary to notice it further than to say that the statute of course refers only to property which has street, ward and map numbers, and not to the ‘ other assessable property which the deputy commissioners are also required to examine and assess.

The proceedings with respect to the foundation and superstructures must be affirmed; those with respect to the personalty must bo reversed.”

David Dudley Field, for the appellant. The foundations are not taxable within the decision in People v. Assessors of Brooklyn (39 N. Y., 81). The company having already paid five per cent of its net income into the city treasury, under an explicit provision of law (Laws of 1868, chap. 855, sec. 3), the city; has received from the company all that it is bound to pay for the use and occupancy of the streets. The agreement forbids the taxing-of the right of way. By necessary inference it forbids also the taxing of anything necessaiy to the enjoyment of that right. The easement cannot be enjoyed without the foundations and superstructure. The right to the easement carries with it the right to them also. To tax the accessories is to tax the principal, which is contrary to the contract. (Bangor R. R. v. Harris, 21 Maine, 533 ; Rome R. R. v. Mayor, 14 Geo., 275 ; Worcester v. Western R. R., 4 Met. 564; Mayor of Baltimore v. Balt, and O. R. R., 6 Gill, 278 ; Gordon v. Appeal Tax Comm., 3 How. U. S., 133.)

Hugh L. Oole, for the respondents.

The respondents properly-

assessed the foundations and superstructure of the relators as reaL estate. (1 R. S., 905 [5th ed.], §§ 1, 3.) These foundations and superstructure are fixtures, even according to the common law definition, and as such would, independently of the statute, be taxable as “land” or “real estate.” (Wallcer v. Sherman, 20 Wend., 655 [machinery in a woollen mill] ; Lajlin v. Griffiths, 35 Barb., 58 [machinery] ; Rotter v. Cromwell, 40 N. Y., 287 [portable grist mill affixed] ; Tabor v. Robinson, 36 Barb., 483 [shelves in a shop] ; Main v. Sehwartzwalder, 4 E. D. Smith, 273 [furnace] ; Goodrich v. Jones, 2 Hill, 142 [fences] ; Bishop v. Bishop, 11 N. Y., 123 [hop-poles] ; Suedelcer v. Warring, 12 N. Y., 170 [a statue].) A fortiori are these foundations and superstructure to be considered land or real estate, for purposes of taxation, under the provisions of the statute. (The Railroad Co. v. Gassity, 46 N. Y., 46 [street railroad] ; The People v. Beardsley, 52 Barb., 105 [railroad over Seneca reservation] ; Smith v. The Mayor, 68 N. Y., 555 [piers] ; The People ex rel. Smith v. The Gomrs. of Taxes, 10 Hun, 209 [piers] ; Hudson River Bridge Co. v. Patterson, 74 N. Y., 365 [bridge over Hudson river].'

Per Curiam:

We think that the conclusion arrived at by the learned justice who considered the questions involved upon this appeal must be sustained.

It is our judgment that the cases cited by him in his opinion demand such a result. Doubtless we could enlarge upon the subjects embraced in it, but we do not deem it proper to retain the case for that purpose, inasmuch as we are advised that an adjudication of the court of last resort will be asked by one party or the other according as this appeal may be determined.

The judgment ebould be affirmed, with costs.

Present — B?.ady, P. J., Ingalls and Daniels, JJ.

•Judgment affirmed, with costs.


author: Davis, P. J.,

text:
    In the Matter of the Petition of HENRY J. NEWTON to Vacate an Assessment.

      Section 91 of chap. 335 of ISTS — construction of — when work under, must be-done by contract.

    Appeal from an order vacating an assessment for regulating, grading and paving One Hundred and Twenty-third street, in the city of New York, on the ground that the commissioner of" public works was not authorized to make the improvement by days’ work, but should have done it by contract awarded to the lowest bidder.
    The argument depends upon the construction of the 91st section of the charter of the city of New York, of 1873, and of' the ordinance of the common council, under which the improvement was made by the commissioner of public works.
    The said section of the charter (chap. 335, Laws 1873) required all work, involving an expenditure of more than $1,000, to be let by contract, “ excepting such works now in progress as-are authorized by law or ordinance to be done otherwise than by contract; and unless otherwise ordered by a vote of three-fourths of the members elected to the .common council.”
    The ordinance of the common council is in these words :
    “Resolved, That the regulating, “grading, setting curb and gutter stones, flagging side-walks and the roadway or surface construction of the following named avenues and streets, to wit: * # * One Hundred and Twenty-third street, from the westerly line of New avenue on the westerly side of Mount Morris square to the easterly line of Ninth avenue, and from the westerly line of Tenth avenue to the Boulevard, * * '* be executed under the direction of the commissioner of public works, by days’ works, or in such manner as the said commissioner may deem expedient for the best interests of the city and property owners, and of such material and on such plans.as may be prescribed or determined by said commissioner of public works,” etc.
    The court, at General Term, said: “As an original question we should regard the ordinance of the common council directing that the work be done “ under the direction of the commissioner of public works by days’ work, or in such manner as the said commissioner may deem expedient for the best interests of the city and of the property pwners, and of such material, and on such plans as may lie prescribed or determined by the said commissioner of public works;”' adopted by a vote of three-fourths of the members elected to the common council, as a sufficient order, under section 91 of chapter 335 of the Laws of 1873, that the; work be done otherwise than by contract, as provided in said section 91.
    “It seems in fact to us to be a declaration of the common council, adopted by the large conservative vote required by the act, that the work be done by the commissioner of public works in such manner as he shall deem expedient for the best interests of the city and property owners, and by that officer only, in whatever manner it might be done.
    “There is no remission to him, of the duty of the common council, to determine whether it shall be by contract or not, but the' imperative imposition of a duty upon him to proceed to do the work himself according to his best judgment in respect of the. manner.
    “ It was, however, held otherwise in respect of this particular ordinance by the learned chief judge of the Court of Common. Pleas in the Matter of the Presbytery of New Pork, and his. opinion is now before us. Since this casé was argued, the General Term of that court has affirmed the decision of the chief judge, and adopted the opinion pronounced by him at Special Term, as the opinion of that court. The question involved has therefore been determined by the General Term of a court of concurrent jurisdiction in such cases ; and, under the circumstances, we feel bound to follow that decision until it be corrected by the Court of Appeals, if it shall appear to have been erroneous.
    “ This necessarily leads to an affirmance of the order below.
    “ The order should be affirmed, with ten dollars costs and disbursements.”

      Hugh L. Gole, for the appellant.

      J. A. Deering, for the respondent..
   Opinion by

Davis, P. J.,

Beady, J., concurred.

Present — Davis, P. J., Beady and Ingalls, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Smith, J. :

text:
    THOMAS RICHARDSON AND ANNIE WIGHTMAN, Administrators of JOSEPH N. WIGHTMAN, Deceased, Appellants, v. HUMPHREY G. ROOT and others, Respondents.

      Order drawn on a fund — vjhen valid as between drawer and payee — right of a creditor of an intestate to attack a transfer, made by such an order, by the intestate in his life-time to his wife —surrogate has no jurisdiction.

    Shortly before his death the plaintiff’s intestate delivered to his wife an order drawn by him on a firm in New York, who were indebted to him for services rendered in malting, by which he directed the firm to pay to his wife the balance due to him for malting after deducting all expenses, and charge to his account for malting. The order was forwarded to the fh-m the same day and the balance of the account subsequently paid by it to the wife. The wife, who was one of the administrators of her husband, did not credit the estate with the amount so received, but claimed that it was given to her by her husband in payment of a debt due from him. The personal estate was insufficient to pay the debts and the solvency of the estate was in dispute.
    "Upon an accounting before the surrogate, the account of the administrators was, upon the application of a creditor, surcharged with the amount so received.

      Held, that the order was valid as between the intestate and his wife, and operated as an equitable assignment of the fund.
    That having been accepted and paid by the drawee, its validity could only be challenged by a creditor of the intestate on the ground that, as to him, it was fraudulent.
    That the surrogate had no jurisdiction to pass upon this question, and that the creditor’s only remedy was to bring an action in a court having jurisdiction thereof.

      Appeal from a part of the decree of the surrogate of Herkimer comity, made on a final accounting by the appellants as administrators of, etc., of Joseph N. Wightman, deceased. The portion of the decree appealed from related to the surcharging of the administrators with the sum of $1,014, with interest.

      J. A. Steele, for the appellants.

      J. B. Rafter, for the respondents.
   Smith, J. :

The intestate, in his life-time, hold a claim against F. G. &r. L. N. Van Vliet, of New York city, for the sum of $1,014. On: the day before he died he delivered to his. wife, Annie Wightman, an order or draft upon the Van Vliets, of which the following is a copy :

“ Mohawk, April 29, 1873.

“ Please pay to my wife, Mrs. Annie Wightman, the balances due me for malting, up to the close of this season, after .deducting' all expenses which you may incur in shipping the malt; and please pay it in installments, if she wishes it, always saving yourself whole for said expense, and charge the same to account for-malting'. “ Yours, etc.,

“ J. N. WIGHTMAN.

“ To F. G. & L. N. Van Vliet,

“No. 5 Water street, New York City.”

The paper was delivered to Mrs. Wightman about one o’clock in the afternoon of the day on which it was drawn, and soon after-wards was sent to the drawees by mail. After the death of the intestate, Mrs. Wightman received from the Van Vliets $1,014 on account of the claim, $1,000 of which she placed with Mr. Richardson, her co-administrator, and she retained the remainder in her own hands. The personal estate ivas insufficient to pay the debts of the intestate. The intestate left a considerable real estate, parcels of which were mortgaged, and the testimony before the surrogate was conflicting as to the value of the real estate. One of the questions, litigated was whether the estate was insolvent.

Letters of administration were issued to Mrs. Wightman and Mr. Richardson, and upon their final accounting they did not include the money received by Mrs. Wightman from the Van Vliets, but Mrs. Wightman claimed it as her own. The respondents, two of the creditors of the intestate, • claimed that tha account should be surcharged with the amount so received, and. interest thereon from the time it was so received, and the surrogate allowed the claim and surcharged the account accordingly.. From that portion of the decree this appeal is taken.

Objection was made before the surrogate,' and is now urged,, that he had not jurisdiction to try the claim thus set up by the-, creditors. We think there is force in the objection. No question is or can be made by the creditors, but that' the draft or order was valid as between Wightman and his wife, and operated as an equitable assignment to her of the claim against the drawees. The only parties who could object that the instrument did net amount to an assignment of the claim were the drawees, and they having recognized its validity by paying it to Mrs. Wight-man, the question is foreclosed. The only ground on which the. respondents can attack the transfer is that although it ivas valid, as between the parties to the paper, it was fraudulent and void as. against the creditors of Wightman. Has the surrogate jurisdiction to try that question ? As between Mrs. Wightman and the? next of kin, the money is clearly hers. It would be so, as. between her and Wightman, if he were living. And if Wight-man were living, the only remedy of the creditors would be by an action against him and his wife to impeach the transfer as. fraudulent and to reach the fund. We are not aware of any authority for saying that the surrogate has jurisdiction to try such an issue. The cases, cited by the respondent’s counsel fail far short of it, In Merchant v. Merchant (2 Bradf., 447), the-question was whether an alleged gift to the executor by the testator had been revoked by him, so that the litigation was directly between the executor and the estate. There are numerous cases, in which it has been held that the surrogate has jurisdiction to-try claims of an executor or administrator against the estate. Such are the recent cases of Kyle v. Kyle (67 N. Y., 408) ; Shakespeare v. Markham (72 id., 400); and Boughton v. Flint (74 id., 476). They hold that the power is given by section 33 (2 R. S., 88), which abrogated the common law rule giving an .administrator’s debt preference over others, and allowing him to retain assets in payment, and provided that no part of the assets ;shall be retained by an executor or administrator in satisfaction of his own claim until it shall have been proved to and allowed by the surrogate. But here no claim is made by the administrator^ ;against the estate, and they do not seek to retain any of the .assets which were left by the intestate at the time of his death. The issue presented results from an effort of some of the creditors to overhaul a transfer made by the intestate during his life-dime to his wife, who happens to be the administratrix. It is said by the respondent’s counsel, that the transfer was a mere gift, causa mortis. But there was uncontradicted evidence tending to show that the intestate was indebted to his wife in the .amount of the claim transferred, for services rendered by her before their marriage ; and there was no evidence that the transfer was made in expectation of death, except so far as the fact might be inferred from the circumstance that the intestate had then been sick nearly a year, and that he died the next day. So far.as the question of jurisdiction is concerned, it is difficult to •see of what consequence it is whether the transfer was a gift, or a sale for a good and sufficient consideration; and- if a gift, whether it was or was not made in expectation of death, it not having been revoked. In either case, it would be competent for ■creditors to attack the transfer on the ground of fraud, and if the surrogate has jurisdiction to try that issue it would seem that the jurisdiction must extend to every like issue however large the amount of the consideration, or however considerable the length •of time intervening between the date of the transfer and the ■death of the intestate.

It has been frequently held, also, that the surrogate has jurisdiction upon the accounting of an executor or administrator, to try all claims against him in favor of the estate. (Gardner v. Gardner, 7 Paige, 112 ; Jumel v. Jumel, id., 591 ; Westfall v. Westfall, 16 Hun, 541.) But our attention has not been called to a reported case holding that the surrogate may try an issue as to the good faith of a transfer made by the deceased to the person who subsequently became the administrator of his estate, which. transfer was confessedly valid between the parties, and good and effectual as against the heirs and next of kin. Nor are we aware of any statute giving such jurisdiction to the surrogate. "We. think that the issue as to the good faith of the transfer can only be tried in an action brought in a court of competent jurisdiction.

The portion of the decree appealed from is reversed, with costs, of the appeal to the appellants.

Talcott, P. J., and Hardin, J., concurred.

That portion of the decree of the surrogate of Herkimer county which is appealed from reversed, and proceedings remitted, to said surrogate, with directions to amend his decree accordingly, with costs of the appeal to be paid by the respondents.


author: Smith, J.:

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    WILLIAM H. ROBINSON, Respondent, v. THE NATIONAL BANK OF NEW BERNE, Appellant.

      Non-resident national bank — right to issue attachment against, before final judgment— U. S. Reo. Stat., § 5242 — construction of.

    The last clause of section 5242, of the United States Revised Statutes, in relation to national banks, providing that, “ no attachment, injunction or execution shall be issued against such association or its property before final judgment in any suit, action or proceeding in any State, county or municipal court,” only applies to such national banks as are described in the preceding part of the section, that is to say, such as have committed or are contemplating an act of insolvency, and does not pi’ohibit the issuing of an attachment against the property of a solvent national bank, located and doing business in another State.

      The Central National Bank v. The Richland National Bank of Mansfield (52 How. Pr., 136), and Rhoner v. The First National Bank of Allentown (14 Hun, 126), distinguished and not followed.
    Appeal from an order of the Herkimer Special Term, denying the defendant’s motion to set aside a warrant of attachment.

      A. R. Dyett (R. W. Townsend, Att’y), for the appellant.

      T. G. Gronin, for the respondent.
   Smith, J.:

The defendant is a banking corporation, created under the national banking law of Congress, and located and doing business at New Berne, in the State of North Carolina. Upon an .affidavit showing these facts, and showing that the defendant ivas indebted to the plaintiff .on contract, and had personal property within this State, a warrant of attachment was issued by a justice of this court against the defendant before final judgment. 'The appellant contends that the attachment is void for want of jurisdiction in this court to issue it. The claim is based upon the last clause of section 5242 of the United States Revised Statutes (ed. of 1878), the whole of which section is as follows : “ § 5242. All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, .sureties on real estate or of judgments or decrees in its favor, all deposits of money, bullion or other valuable thing for its use, or for the use of any of its shareholders or creditors, and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or: with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction or execution shall be issued against such association or its property before .final judgment in any suit, action or proceeding in any State, •comity or municipal court.”

For the plaintiff, it is contended that the prohibition of the last clause applies only to such national banks as are described in the preceding part of the section ; that is to say, such as have committed, or are contemplating, an act of insolvency.

We are inclined to think that construction correct, and that the purpose of the clause is to prevent creditors of insolvent national banks from obtaining preferences before final judgment. The language certainly admits of that construction, and we should be unwilling to infer, from doubtful and ambiguous language, an intention, on the part of Congress, to divest the State courts of a pre-existing jurisdiction, even as to a provisional remedy merely. But under pur present Code, it would seem that if our State courts have not jurisdiction to attach the property of a foreign bank within the State, there is no mode in which jurisdiction can be acquired of such bank, unless one of its officers can be found within the State for the purpose of making personal service. Section 636 (Code of Civil Proceedure) provides, that a warrant of attachment may be issued against a foreign corporation (sub. 2), , and a bank created by act of Congress is a foreign corporation. (Lairs of N. Y., 1876, chap. 449, § 2, sub. 16, Temp. Act.) Section 707 (Code of Civil Proceedure) provides, that where a defendant, who has not appeared, is a foreign corporation, and the summons was served without the State, or by publication, the judgment can be enforced only against the property which has been levied upon, by virtue of the warrant of attachment, at the time when the judgment is entered. So, that if the clause under consideration applies to all national banks located without the State, it divests the courts of the State of all jurisdiction over such banks, so long as their officers keep without the limits of the state. A construction, leading to that result, ought not to be given to doubtful language. (Cooke v. State National Bank of Boston, 52 N. Y., 96.)

This view of the proper construction of the clause, is strengthened by the course of the legislation of Congress in respect to it. 'The original national bank act (U. S. Laws 1864, chap. 106) did not contain the clause in question. But section 57 of that act provided, that suits against any association under the act might be had in any circuit, district, or territorial court of the United States held within the district in which such association was established ; or in any State, county, or municipal court in the county or city in which said institution was located, having jurisdiction in similar cases. That section has been held by our Court of Appeals to be permissive and not mandatory. (Cooke v. State National Bank of Boston, supra.)

In March, 1873 (U. S. Laws 1873, chap. 269, § 2), section 57 was amended by adding to it the words : “Provided, further, that no attachment, injunction or execution, shall be issued against such association, or its property, before final judgment in any such suit, action, or proceeding in any State, county, or municipal court.” It was held by the General Term in the First Department, that the prohibition contained in that amendment related only to suits, etc., against associations located where the suit is brought, and not to-cases where the action is against a non-resident corporation. (Southwick v. The First National Bank of Memphis, 7 Hun, 96.) By the revision of 1874, the clause in question was detached from the section to which it was originally appended, and was placed in section 5242, above quoted, and the word “ such,” above italicised, was omitted. The remainder of the original section 57 has been added to section 5198 of the Revised Statutes. (Stat. at Large, 1873-1875, app. p. 1437; U. S. R. S. [2d ed.], § 5198.)

It is a circumstance of no little importance in determining the question of construction under consideration, that the section in which the clause referred to is now placed, forms a part of that chapter of the title relating to national banks, which treats of their “ dissolution and receivership.” And the remainder of the section clearly relates to insolvent associations only. Thus, the allocation of the clause in question, as well as its verbiage, and the general rule of interpretation, above mentioned, seem to indicate very clearly that the construction-contended for by the plaintiff is the true one.

The appellant’s counsel cites the case of The Central National Bank v. The Richland National Bank of Mansfield (52 How. Pr. R., 136), decided at Special Term by Mr. Justice Barrett, and the General Term case of Rhoner v. The First National Bank of Allentown (14 Hun, 126), which hold that an attachment cannot be issued against a national bank before final judgment, even though it has property within this State and is located and carries on business in another State. In the latter case, the court seem to have followed the reasoning of the judge at Special Term in the former case. In neither of the cases does it appear that the attention of the court was called to the fact that section 5242 is placed in the chapter relating to “ dissolution and receivership.” The opinions delivered do not advert to that circumstance, nor to the language of the remainder of the section in which the clause is found. Furthermore, in each case stress is laid upon the consideration that the prohibition did not interfere with the general jurisdiction of the State courts over national banks. Those cases appear to have arisen under the Code of Procedure, which did not contain the provision of section 707 of the present Code, already adverted to. That section contains the substance of rule 34, referred to by Judge Barrett. It is, also, to be observed, that for aught that appears in the report of those cases the defendants were insolvent. We think, therefore, those cases do not aid us in disposing of the present question.

Our conclusion is, that the order refusing to vacate the attachment should be affirmed, with ten dollars costs and disbursements.

Talcott, P. J., and Hardin, J., concurred.

Order of Special Term affirmed, with ten dollars costs and disbursements.