
    PEOPLE, &c., ex rel. THEODORE ROOSEVELT, et al., Respondents, v. FRANKLIN EDSON, Impleaded, et al., Appellant.
    
      Injunction exparte—power to grant.—Common Pleas and judges—not county court or county judges.-—-Injunction order—when void, and effect as to contempt for violating.—Executive officer—power of courts to control—Power of mayor to appoint is executive.
    
    An injunction can only be granted ex parte, by the court in which the action is brought, or a judge thereof, or a county judge. The provisions of section 606 of the Code of Civil Procedure alone apply; those of sections 277 and 772 do not.
    The court of common pleas of the city and county of New York is not a county court, and the judges thereof are not county judges.
    Consequently held, an expande injunction order made in an action pending in this court by a judge of the court of common pleas of the city and county of New York, is without jurisdiction and void.
    A violation of a void injunction order is not punishable as contempt.
    The power of a court of equity to control the acts of an executive officer is limited to such acts and duties as are merely ministerial, and involve no exercise of discretion (by Ingraham, J.).
    The power of the mayor of the city of New York to appoint a commissioner of public works and a counsel to the corporation, is an executive power of the state vested in him by the constitution and laws, and involves the exercise of discretion. An ex parte injunction restraining him from exercising, or controlling him in the exercise of such powers of appointment is therefore void; and his disregard of it is not a contempt (by Ingraham, J.).
    Chapter 531, laws "1881, has no application to such a case, the action of the mayor not being an act on behalf of a county, town, village . or municipal corporation (by Ingraham. J.).
    People v. Dwyer (90 W. Y. 402); People v. Sturtevant (9 lb. 263), distinguished (by Ingraham, J.).
    Before Sedgwick, Oh. J., O’Gorman and Ingraham, JJ.
    
      Decided April 13, 1885.
    Appeal from an order convicting defendant Franklin Edson, of contempt in disobeying an ex parte injunction-order.
    The injunction order was made to accompany a summons in an action brought, or about to be brought, in this court. The order was signed by a judge of the common pleas for the city and county of New York. The defendant disregarded the order by doing what the terms of the order enjoined him from doing, and, in certain proceedings to punish him therefor, was held to be in contempt.
    Further facts appear in the opinions.
    For decision below by Freedman, J., see 51 Super. Ct. 238.
    For decision dissolving the injunction order, by Trtjax, J., see Ib. 22T.
    
      Sewell, Pierce & Sheldon, attorneys, David Dudley Field and Robert Sewell, of counsel for appellant,
    on the questions considered in the opinion, argued :
    I. The first question which arises in this controversy, is as to the authority of Hon. Miles Beach, judge of the court of common pleas for the city and county of New York, to grant an injunction order in a case pending in the superior court. The only authority which exists for the granting of injunctions is section 606 of the Code, which provides that “ an injunction order may be granted by the court in which the action is brought, or by a judge thereof, or by any county judge, and where it is granted by a judge, it may be enforced as the order of the court.” Now, this order, to begin with, was not granted by the court. It was not granted by a judge of the court, and the question is, whether or not it was granted by a county judge. And then the question further arises, whether the word “ judge” in the last clause of the section, is tobe confined to a judge of the court, or whether it includes a county judge, and also what is meant,- by its being enforced as the order of the court.
    And first, it is very clear that the Honorable Miles Beach did not, when he granted this order, purport to act as a county judge; he did not sign his name as a county judge, but, on the contrary, described himself as a “ judge of the court of common pleas for the city and county of New York.” We are to suppose from this signature, that he thought that he was granting the injunction out of the court of common pleas, because he signed himself as a judicial officer of that tribunal. If he supposed or thought that he was acting as a county judge, he should have so designated himself in his signature, so that he would inform the persons to whom his mandate might come, what his official authority was for issuing such an order.
    It seems clear that no judge of the court of common pleas, as such, has any right to grant an order in a cause depending in the superior court, and that it is only by virtue of an extra-judicial authority as county judge, that he has any right to sign an order of the superior court. If, then, his right depends upon such official designation, is it not clear that he should have set forth the capacity in which he was acting, by such an addition to his signature, as would convey to the person sought to be enjoined, information respecting the jurisdiction of the person who sought to enjoin him %
    
    The language of the section referred to, “ where it is granted by a judge, ” refers undoubtedly to the preceding portion of the sentence ; whether it includes only judges of the court, where they act out of court and make the order, or 'whether it includes also an order granted by any county judge, is open to discussion; and the further suggestion that the order may be enforced as an order of the court when so made, is one which opens up a branch of inquiry as to the meaning of the word “ enforced ” in this section.
    Is this proceeding taken for the purpose of enforcing that order ? If it is, then the answer to it is explicit and plain, and ought not to take ten minutes to argue and decide. The order is dead and gone ; the court has decided that it ought not to have been issued ; the court has refused to continue it; how, then, can any action be taken to enforce it ? This is the only authority which can be cited for this proceeding. There is no power in this court to punish for contempt, committed with respect to the order of any other court but this, or any other judge than the six judges composing this tribunal, except this last clause of section 606, which says that the order may be enforced as the order of the court. It may be, that if this order was still in force, and that the defendants contemptuously refused to obey it, proceedings for its enforcement in the nature of a proceeding to punish for contempt, might be brought within the section; but in the present aspect of this case, with the order gone, wiped out, declared null and void, and no order remaining calling for enforcement, it would seem as if this court, were deprived of any authority whatever, to punish for disobedience of such a vacated order.
    The proceeding is for a criminal contempt. A perusal of section 8 of the Code of Civil Procedure will show that the court has power to punish for a criminal contempt, a person guilty of either of the following acts and no others. It then recites certain acts which are so punishable, and among them is, “ willful disobedience to its lawful mandate and this is tho only act which can possibly be made the basis of a proceeding to punish the defendant for contempt ; because the court has no power to punish for any other contempts than those contained in the eighth section, and this is the only one contained in the eighth section about which any question is made.
    Now, it will be observed, that the power of the court is limited to punish a person for willful disobedience to its lawful mandate. What lawful mandate of this court has Mr. Edson violated ? Can it be said that an order signed by Miles Beach, as judge of the court of common pleas, for the city and county of New York, upon a day, when—this court will take judicial cognizance—its six judges in full health, in the enjoyment of their physical and mental powers, were here in the city, ready to discharge all their lawful obligations—can it be said that this order so signed, is a lawful mandate of this court ?
    It will not do to say that it is a lawful mandate—it must be a lawful mandate of this court, before this court can punish for contempt; and while a county judge has the undoubted authority to sign an injunction in an action in tho superior court, it cannot for a moment be pretended, that if a county judge should sign such an injunction, and should not describe himself as a county judge, anybody could be punished for contempt for disobeying an order so issued. Now, that is just this case. Miles Beach does not describe himself as a county judge, does not pretend to act in such a faculty, but signs himself as if he were granting an order in the court of common pleas, which probably he thought he was granting, when he signed the paper in question.
    If any contempt has been committed here, it has been a contempt against the court of common pleas, and this court is not authorized by law to punish such a contempt. And, as we have said before, the order cannot be enforced as the order of the court, because it has been set aside and vacated. There is no order of the court left to enforce.
    It has been repeatedly held in this state, that no proceedings to punish for a contempt could be taken, after the order which was disobeyed was set aside. It may be that while an order is in full force, in a case where the court or judge granting it had jurisdiction to make it, it is entitled to obedience, and that while in such force, proceedings for disobeying it might be entertained by the court. But the principle upon which this stands, is, that the orders of the court while in force are entitled to consideration, and that the court will see that they are obeyed. But the principle does not hold after a full argument is had, and it is found that the order ought never to have been granted, and that the act which was forbidden by the order, was an act which the defendant had an undoubted legal right to perform, and which the order wrongfully interfered with.
    So, too, if an injunction order is too broad, it is said that notwithstanding that, it ought to be obeyed. And we accede to this ■ doctrine ; but if it is modified, no proceeding can be taken to punish for contempt in disobeying it, with respect to the modification after the modification has been made, because the court has confessed, by the modification, that the order was too broad, and ought never to have been granted to that extent. To punish for contempt after the order violated has been vacated, is for the court to say to the person charged with contempt : “ It is true we have made an order that we never ought to have made ; it is true that we have commanded you to refrain from doing an act, which we ought never to have commanded you to refrain from doing, and that our action in that respect was improvident, unwise and illegal; but, notwithstanding that, we will punish you for daring to set your private judgment up against the judgment of the court, and doing that which we forbade you to do. ” It is submitted that this doctrine can find no place in the enlightened jurisprudence of the nineteenth century.
    The following cases sustain our proposition under this head : Robertson v. Bingley, 1 McCord Ch. 333 ; Peck v. Yorks, 32 How. Pr. 409 ; Chapman v. Dyett, 11 Wend. 31; Moat v. Holbein, 2 Edw. Ch. 188 ; Money v. Jorden, 1 Eng. L. & Eq. 146.
    This proposition was presented to the learned judge below, but he answered it on the argument by saying, that this court in the case of the Atlantic, &c. Tel. Co. v. Baltimore, &c. R. R. Co. (46 Super. Ct. 377), has decided that a violation of an order of injunction might be punished, after the order had been vacated. A reference to this case shows that the learned judge’s memory of it was not accurate. As we read the case, it simply decides, that an injunction order which is too broad, should nevertheless be obeyed, and that a violation of the plaintiff’s rights by the defendant, within the scope of that part of the order which is upheld by the court, may be punished. This is exactly the doctrine we contend for here. If the court has in that case, or in any other case, decided, that it will punish disobedience of every order made in a case in which the court has jurisdiction, as a criminal contempt, irrespective of the question of legal right to make, such an order ; then we respectfully suggested, that this is a favorable opportunity of retreating from an untenable position.
    A criminal contempt of necessity supposes, that a lawful order of the court has been willfully disobeyed. How can that be criminal which the ' court itself decides is justifiable, when it decides that the order never should have been granted % Again, if there is- a technical disobedience to an order, how can it be held to be criminal, when the court decides, no matter for what reason, that the judge should not have granted the order ?
    II. We say, too, that this injunction is void, because the plaintiffs have no capacity to sue ; the court did not have jurisdiction of the persons of the plaintiffs for the purpose of granting an injunction. It is not necessary to remark to this court, that a tax-payer of the city of New York, has no authority to maintain an action to set right the municipal government of this city, or even to restrain waste in the city property or funds. The appropriate officer to bring such an action is the attorney-general ; it is a public wrong, and it ought to be vindicated by a public officer. The authorities for this are so numerous that they must be familiar to all. It was settled in this state as long back as the cases of Wetmore v. Story, 22 Barb. 484; De Baun v. Mayor, 16 Ib. 393; Ely v. Connolly, 7 Abb. N. S. 8 ; Doolittle v. Supervisors of Broome, 18 N. Y. 155.
    The question is whether the order commanding him to desist from filling the vacancies, was within the jurisdiction of the superior court. To put the question is to answer it. The order was no more within its jurisdiction on December 30, 1884, than it would have been on December 30, 1883. If valid, it would make the court, and not the mayor, judge of the fitness of persons to be nominated, and if he wished to nominate he would have to ask the court, and it would answer of its own knowledge or appoint a referee.
    The plaintiffs, then, had no standing in court to ask for the injunction, unless they have gotten it by virtue of some legislative act; and in accordance with these views, it will be seen, from the papers, that they seek to get their authority from the act of 1881 (chapter 528), which is itself an amendment to the act of 1880. A bare reading of the act will show that the intention of the legislature was to give to citizens of New York, who were tax-payers, and who had paid taxes for a certain' time, the right, which they did not have before, to maintain actions to restrain' or prevent improper expenditure of the public funds, or wasteful interference with the public property. The words “illegal act ” contained in the statute, must be construed in connection with all the other words of the statute, and must be construed to mean an illegal act, in connection with the property of the city.
    It cannot be imagined that the legislature intended to interfere with the discretionary powers of the mayor of the city of New York, and to give any citizen the right to enjoin him from the exercise of his discretion, whenever, in the views of that citizen, he was about to exercise it unlawfully. The law imposed upon the mayor of the city of New York, the duty and the power of making appointments to office ; that law cannot be repealed by implication, and the statute in question gives these plaintiffs not any color of right to maintain an action, to prevent the mayor from exercising his lawful authority. Where the law gives to officers powers which require the exercise of sound judgment, the correction of any errors that they may make in the exercise of their functions, belongs to some other tribunal than a court of equity, and belongs to some other plaintiff to set them right, than a tax-payer of the city of New York, acting under the authority of this statute ; no matter who the plaintiff is, chancery has no jurisdiction to interfere by injunction. To suppose that this act, by the use of the words ‘ ‘ any illegal act, ” intended to reach the executive acts of appointment of officers, conferred upon the mayors of cities by the legislature, is to disturb the well-settled rules of construction of statutes, and to increase enormously the powers of courts of equity, sheerly by implication, beyond those powers which centuries of undisturbed judgments had rendered settled and definite. Such a construction can never be put upon a statute, unless the language of it leaves no other alternative to the court.
    The counsel here commented on and distinguished People v. Sturtevant (9 N. Y. 263); Hunt v. Hunt (72 Ib. 217); Lange v. Benedict (73 Ib. 12); Mayor v. N. Y. & Staten Island Ferry Co. (64 Ib. 232).
    The doctrine, that any order of a court which has jurisdiction of the subject matter of the action, must be obeyed by the citizen, is one inimical to freedom, and to the just rights of the people. It is entering into a position open to the most serious abuses, as to the exercise of the powers of the judges of the courts. It places it in the power of a man, simply because he happens to be a judge, to thwart the administration of high municipal officers, of the matters confided to their charge by the people of this state. It interferes with them in them obligations to the law, and comes between them and their consciences in the discharge of their duties.
    The mayor was advised by counsel that the injunction was void. He, believing the advice of his counsel, acted upon it, and now it is sought, by the order of the judge below, to turn that action into a criminal offense, which we say is a monstrous doctrine, that calls for interference from this appellate tribunal (Mooers v. Smedley, 6 Johns. Ch. 28 ; Leroy v. Mayor, 4 Ib. 352 ; Patterson v. Mayor, 1 Paige, 114 ; Atty. General v. Mid. Kent R. Co., L. R. Ch. 100 ; Atty. General v. Gt. N. R. R., 4 De Gex & Sm. 75 ; Atty. General v. R. R. Co., 35 Wis. 425; Atty. General v. Utica Ins. Co., 2 Johns. Ch. 371; Whitney v. Mayor, 1 Paige, 548 ; Mayor v. Messerole, 26 Wend. 132 ; N. Y. Life Insurance Co. v. Supervisors of New York, 4 
      Duer, 192 ; Walker v. Davisson, 4 Paige, 229 ; Clark v. Brooklyn Bank, 1 Edw. 361; Ward v. Kelsey, 14 Abb. Pr. 106).
    
      Charles P. Miller, attorney, and of counsel for respondents, on the questions considered in' the opinion, argued:
    I. A judge of the court of common pleas for the city and county of Mew York, has the powers of a county judge, and as such is authorized to issue an injunction in an action pending in the superior court (Wood v. Kelly, 2 Hilt. 334; Lang v. Brown, 6 Hun, 256 ; Matter Morgan, 56 N. Y. 629 ; Code Civ. Pro. §§ 606, 772, 277, 3343).
    II. Chapter 531 of the laws of 1881 authorizes the plaintiffs to bring this action. An examination of these acts will show that the statutes were originally confined to actions preventing waste of public property ; but that the act of 1881 gives a new right in allowing the action to be brought to restrain “ any illegal official act on the "part of such officers,” as well as to prevent waste, &c., which alone was permitted by the former statutes.
    III. The court had power to enjoin a corrupt and illegal exercise of the appointing power by the mayor (Laws 1881, chap. 531; Opinion of Truax, J., 51 Super. Ct. 227 ; Opinion of Freedman, J., Ib. 238). The argument, that the acts enjoined were legislative powers, or statutory duties, beyond the control of any corut, proceeds on the theory that a mayor and board of aldermen within their statutory powers are analogous to a state legislature, federal congress, parliament or other sovereign legislative body. This idea is wholly erroneous. There is nothing sovereign about the powers of ■ a mayor and board of aldermen. . Such officers or board are merely a part of the directorate of a corporation, of a public corporation it is true, but of a kind which, from time immemorial, has, in all its functions, been peculiarly subject to judicial control (Davis v. Mayor, &c., 1 Duer, 450 ; People v. Sturtevant, supra; People v. Dwyer, supra). The meaning of the statement that a court will not interfere with the exercise of a discretionary power lodged in a person or corporation, is that it will not substitute its own discretion for that of the person or corporation, and exercise the power. But it will restrain an illegal or improper exercise of the discretion in either. In the application of these rules there is no difference between municipal and private corporations (Davis v. Mayor, &c., 1 Duer, 497).
    IV. That the injunction was vacated before the motion to punish for contempt was argued did not deprive the court of power to punish the contempt. This court has not followed Moat v. Holbein (2 Edw. Ch. 188), or Peck v. Yorks (32 How. Pr. 409). See Atlantic Tel. Co. v. B. & O. Tel. Co. (46 Super. Ct. 377). Even if Moat v. Holbein is good law, it refers only to a case in which the contempt proceeding is begun after the injunction has been vacated (Cook v. People, 16 Ill. 534). This proceeding was begun before the injunction was vacated.
   By the Court.—Sedgwick, Ch. J.

The judge of the common pleas who made the injunction order in this case had not a legal power to make it. The validity of the exercise of such a power, if it exist, must be found in some section of the Code of Civil Procedure. It will be necessary to examine only sections 277, 606 and 772. It will be expedient to examine section 772 in the first place. It occurs in title V. with the heading “motions and orders generally.” Section 772 is headed, “What judges may make orders out of court without notice.” It proceeds to declare that where an order in an action may be made by a judge of the court out of the court, and without notice,, and the particular judge is not specially designated by law, it, except it be to stay proceedings after verdict, report or decision, may be made by a justice of the supreme court,or by a judge of a superior city court, within the city where his court is located, or by the county judge of the county where the action is triable, or in which the attorney for the applicant resides. If an injunction order is within the meaning of the clause that has been cited, then the order in this case had validity, not because the judge signing the order was a county judge, but because he was a judge of a superior city court. The clause was not meant to embrace an injunction order. It was a provision that respected orders in general, without a specific reference to any class of orders with peculiar characteristics. The general class of orders was those that might be made by a judge out of court without notice.

It is a familiar rule of statutory construction, that a statute that provides in respect of a particular case, is not repealed by a statute that describes a general class, although the particular case would be verbally within the general terms, unless an intention to repeal is otherwise manifested (Matter Comm’rs Central Park, 50 N. Y. 493 ; Van Denburgh v. Village of Greenbush, 66 Ib. 1 ; People ex rel. Ross v. City of Brooklyn, 69 Ib. 605). The principle is applicable a fortiori, to different sections of one act, the whole of which becomes a law at one time. And therefore, if there be elsewhere in the Code, a special provision as to injunction orders, that special provision controls.

As to orders granting provisional remedies, and that may be made by a judge out of court, without notice, the Code has made special or particular provisions, which it was unnecessary to make if section 773 was meant to be the enactment as to them. By section 556, an order of arrest, except, &c., must be obtained from a judge of the court in which the action is pending, or from any county judge. By section 638, a warrant of attachment may be made by a judge of the court or by any county judge. By section 606, an injunction order may be granted by the court in which the action is brought, or by a judge thereof, or by any county judge. No one can fail to observe that in these several cases the limitation of the powers to grant the orders have been made with some purpose that relates to the character of the remedy. If these special provisions had been placed in section 772 at the end of the general words that have been given, it would at once be seen that there was no inconsistency, and that the special provisions were to be followed according to their own terms. The separation of them by intervening sections, does not make them not to be the law, or prevent the application of the rule of construction that has been adverted to.

It is argued that a part of section 772, and not yet noticed, shows that the intention was that the general language "should refer to injunction orders. Such an order grants a provisional remedy. That part immediately follows what has been quoted, and is, “ Where such an order grants a provisional remedy, it can be vacated only in the manner specially prescribed by law,” &c. The argument is that the words “such an order,” recognize that the general words as to orders before used, embrace orders granting provisional remedies. It is certainly true that orders for provisional remedies may be made by a judge out of court, and it must be supposed that the lawmakers did not lose sight of this when the general words were used. This is not all that needs consideration here. The law-makers also knew that the general words did not exclude the operation of special provisions as to the granting of particular kinds of orders. These special provisions were to be combined with the general provision, and it was in reference to all of them together, as being the law, that the part now under consideration proceeds. Therefore the words “such an order” must not be held to repeal any provision that had been specially made as to certain classes of orders, or, in other words, to affect any provision as to the court or judge authorized to make orders. It was an independent provision, as if made in another section, and meant that where an order that may be made by a judge out of court (which is the meaning of. “ such an order ”), grants a provisional remedy, it can be vacated only, &c.

The construction now given to section 606 gains strength from these words in it: “ except where it is otherwise specially prescribed.” There is a special prescription in section 605. There is no special prescription in section 772, which is in general terms. Therefore, there is almost an explicit declaration that section 606 furnishes the only rule as to the power to make injunction orders.

What is the difference between the respective applications of sections 772 and 606 ? By section 772, other orders than injunction orders may be made by the judges of the supreme court, or of the common pleas, or of a superior court, or by a county judge, with indifference as to the particular court in which the action may be. By section 606, such an order can only be granted by a judge of the Court where the action is, or by that court, or by a county judge. It is not necessary to state the reasons for these varying limitations. It is enough to perceive that the limitations are so marked, that they cannot be supposed to be absent from the intention of the legislature.

The inquiry remains, whether, within the meaning of section 606, a judge of the common pleas is a county judge. A county judge is a specific title used in the constitution and statutes to identify a certain judicial officer, with peculiar powers, and the head of a county court. Section 14, article 6, Constitution of 1846, says there shall be elected in each of the counties, except the city and county of New York, one county judge. He shall hold the county court, &c. Section 15 of the same article, as amended December 9, 1869, continued county courts and county judges by these titles. The Code of Civil Procedure so classifies these courts and officers as courts of common pleas, superior courts, county judges and county courts, in such an exact way, that they cannot be confused, and it must be said that the one is not the other.

It may be argued that a judge of the common pleas has the power of a county judge. No statute to such an effect has been cited. If there were one, it would not avail against a statute, which in respect of a particular class of orders in effect names a judge of the court of common pleas and a county judge, allowing the former to grant the order, if the action be in his court, or if it be not, then by a county judge, or a judge of the court in which the action is.

This, however, by no means exhausts the discriminations of the statute. The following is significant : There are three classes of authorized makers of injunction orders. The system of classification had some ground which calls for respect as much as does the meaning of words. The first class is of courts in which the action may be, the second is of the judges of such courts, the third is of county judges. There is no other class of judges than those of the court where the action is. If a judge who is not a county judge, but is assumed to have the power of a county judge, is for that reason by construction authorized to make the order, not being a judge of the court where the action is, the second class, and its reason, are obliterated.

The subject matter of such an inquiry as the present is in every case, what do the words mean, in the particular act or section where they occur ? It is a rule of general application that legal terms have their legal meaning, unless there be some indication to the contrary. Under these propositions, the cases that have been cited to show that a judge of the common pleas has the power of a county judge, or is a county judge, should be examined.

Morgan’s case (56 N. Y. 629), is not reported in full. The digests give no reference to the decision below. A memorandum only of the case in the court of appeals is made, and the head-note alone gives information as to the decision. It is, “The term ‘county judge,’as employed in the act of 1860, ‘ to secure to creditors, a just division of the estate of debtors who convey to assignees,’ &c. (chap. 348, laws of 1860), and the various acts amendatory (chap. 860, laws of 1867 ; chap. 92, laws of 1879 ; chap. 838, laws of 1872, and chap. 363, laws 1873) includes the judges of the court of common pleas for the city and county of New York, and the jurisdiction conferred by said acts upon the county judge is rightfully exercised by the judges of the said court of common pleas, when the debtor resides in the city of New York.”

The acts, outside of the words to be construed in them, namely, “county court” and “county judge,” provided beyond controversy for the regulation of assignments for benefit of creditors in every county of the state. It would be inconceivable that it was not intended to apply to the county of New York. The judicial agents for the enforcement of the acts, were described as county court and county judge. The particular question was, when the acts applied to all of the counties of the state, what did they mean by county judge as applied to the county of New York, when there was no county judge proper ? The conclusion was that from the history of the common pleas and its former jurisdiction and nomenclature, the act meant that court, for the purposes of the enforcement of the act in the county of New York. This did not involve that in the county of New York, the common pleas or its judges, acted because they had the power of a county court in a proper sense, or were county judges proper, but they acted as a court of common pleas, or a judge of it, proprio vigore. Such a result was inevitable, after it had been held that the face of the acts showed that the words county judge were used, not in a restricted legal and technical way, but in a general sense.

When the acts referred to were repealed by section 28, chapter 466, laws of 1877, it was deemed prudent to enact, by section 24, that a judge of the common pleas of the city óf New York, “may exercise all the powers of a county judge for said county for the purposes of this act.”

In Wood v. Kelly (2 Hilt. 337), the only remark that could apply to the subject, was made by a single judge as an additional reason to those given by another judge for affirming an order allowing an amendment. There is no doubt that the remark was correct. It, however, only applied to the court possessing the power of a county court, and not to any judge of either court. It was based upon section 6 of the laws of 1854, chapter 198, entitled An act in relation to the court of common pleas for the city and county of New York.” Section 6 was repealed by chapter 417 of the laws of 1877.

Lang v. Brown (6 Hun, 256), is cited. It states that judges of the common pleas are county judges on the authority of Matter of Morgan (56 N. Y. 629). We have seen that that case only declares that within the meaning of the acts then involved, county judges indicated judges of the common pleas. To maintain the proposition under the Code of Civil Procedure would be to disregard fundamental distinctions very carefully made in it. The statute before the court was a section of the revised statutes. The opinion there says that by section 27, laws of 1847, p. 638 (the judiciary act) county judges are clothed with the powers that a judge of the court of common pleas, being, &c., could exercise. This does not show that a judge of the common pleas is clothed with the powers of a county judge. The section could not be read by substituting for county, judge, a judge of common pleas, without considering it the equivalent of an enactment that a judge of the common pleas is clothed with the powers of a judge of the common pleas. In fact, the section has been repealed by chapter 417 of the laws of 1877.

In People ex rel. Ireland v. Donohue (15 Hun, 446), it was held that under section 556 of the Code of Civil Procedure,—which provides that an order of arrest may be granted by a judge of the court where the action is brought, or by the county judge,—a judge of the common pleas is a county judge. The making of the order was not said to be valid under section 772, and no particular examination of the question was made, but the decision was placed upon Matter of Morgan (56 N. Y. 629). It is therefore to be deemed but a reiteration of the ruling in that case, the effect of which has been examined.

Nor does section 277 support the order. That provides that in an action or special proceeding, brought in a superior city court, an order may be made without notice by the county judge of the county where the court is situated, or of the county where the attorney for the applicant resides, in a case where a judge of the superior city court might make the same out of court. It seems to be clear that the judge who made the order is not the county judge of this county, nor did he make it as such. It would seem only necessary to say that the section refers to the power of the county judge, and not to the power of a superior city court judge.

As the making of the order was not authorized by law, the appellant was not bound to obey it, and was not in contempt for disregarding it.

The order appealed from should be reversed, and an order entered dismissing all proceedings, with costs.

O’Gorman, J., concurred.

Ingraham, J.—[Concurring in result.]

The action in which the injunction order hereinafter mentioned was granted, was commenced by the service of the summons on the defendants. No complaint was served or presented to the court.

It appears, however, from the affidavit on which the injunction was granted, that the action was brought for the purpose of preventing the appointment, by the mayor and board of aldermen of the city of New York, of a counsel to the corporation, the head of the law department of the said city, and of a commissioner of public works of said city, on the ground that the appointment was about to be made in pursuance of a corrupt combination between the defendants in the said action and others.

On presentation to a judge of the court of common j>leas of the summons in the action, and certain affidavits and an undertaking, an order was granted, providing that the defendant Edson, the mayor of the city of New York, be enjoined, restrained and commanded to desist from appointing, nominating or confirming the nomination of any person to the office of commissioner of public works, or of counsel to the corporation, of and for the said city of Yew York, until the entry and service of an order therein, changing or modifying the force of the said order.

By section 21 of the charter of 1830 (Laws 1830, p. 125), it was provided that the executive business of the corporation of Yew York should thereafter be performed by distinct departments, which it should be the duty of the common council to re-organize and appoint for that purpose. In pursuance of the direction contained in this section, ordinances were adopted by the common council creating the street commissioners’ department, and the office of attorney and counsel to the corporation, and prescribing the duties of the officers thereof, and by the revision of the ordinance of 1845, the said departments were continued and the duty of the heads of the departments defined.

The powers and duties of the street commissioner under the revised ordinance of 1845, were, by section 316 of chapter 410, of the acts of 1882, known as the consolidation act, given to the department of public works, and by section 38 of the said act, the head of the department of public works was called the commissioner of public works, and was to hold office for four years, and until his successor shall be appointed and qualified.

By the same act, it was provided that the head of the law department should be called counsel to the corporation, and the duties performed by the counsel and attorney to the common council under the ordinance of the common council before mentioned were given to the law department.

By section 106 of the same act, it was provided that the mayor sliall nominate and, by and with the consent of the board of aldermen, appoint the heads of departments and all commissioners.

By the constitution of 1846, which took effect on January 1, 1841, it was provided by section 2, article 10, that “all city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and vil¡ages or of some division .thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose.” At the time this provision went into effect, there were in existence officers of the corporation of the city of New York, performing most of the duties now performed by the commissioner of public works and the counsel to the corporation.

The provision of section 2, of article 10, of the constitution, applied to such officers as were in existence at the time of the adoption of the constitution (Devoy v. Mayor, &c., 36 N. Y. 449 ; People v. Draper, 15 Ib. 532; People v. Albertson, 55 Ib. 50).

If the legislature had provided that the commissioner of public works and counsel to the corporation should be elected by the people, it could not be said that the people, in voting for such an officer, acted on behalf of the corporation of the city of New York. If, in the absence of the constitutional provision, the legislature had created the office of commissioner of public works, and either appointed an individual to fill that office, or authorized the governor to appoint the officer, it could not be said that the legislature or governor, in making the appointment, acted on behalf of the municipal corporation ; and yet the act of appointment would be the same.

' It appeai-s, therefore, that the mayor of New York, in appointing the commissioner of public works and the counsel to the corporation, acted not on behalf of the municipal corporation, but under the authority conferred on him by the act of the legislature designating him as the officer to carry into effect the provisions of the constitution.

The power of a court of equity to control the acts of an executive officer was early presented to the supreme court of the United States in the case of Marbury v. Madison (1 Cranch, 137), and Chief Justice Marshall, in delivering the opinion of the court in that case, limits the power of the court to control an officer of the government to such duties as are merely ministerial and involve no exercise of discretion. In discussing this question, he says : “ It is not wonderful that in such case as this, the assertion by an individual of his legal claims in a court of justice, to which claims it is the duty of that court to attend, should, at first view, be considered by some as an attempt to intrude into the cabinet and intermeddle with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.”

In the case of Decauter v. Spaulding (14 Peters, 515), Chief Justice Taney, in delivering the opinion of the court, says : “ The interference of a court with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief, and we are quite satisfied that no such power was ever intended to be given to them, . . . and in such a case (one involving judgment and discretion), the circuit court had no right by mandamus to control his judgment and guide him in the discretion which the law had confided to him. We are, therefore, of the opinion that the court below was not authorized by law to issue the mandamus, and committed no error in refusing it, and as we have no jurisdiction of the acts of the secretary in this respect, we forbear to express any opinion of the construction of the legislation in question.”

In Gaines v. Thompson (1 Wall. 341), which was an action for an injunction to restrain the secretary of the interior and the commissioner of the land-office from canceling an entry of certain lands in Arkansas, in which the plaintiff and others claimed an equitable right, the supreme court of the United States, on the authority of the cases above cited, held that a public officer to whom public duties are confided by law, is not subject to the control of the court in the exercise of the judgment and discretion which the law reposes in him as a part of his official functions. Certain powers and duties are confided to those officers, and to them alone, and, however the court, in ascertaining the rights of parties in suits properly before them, may pass upon the legality of their acts after the matter has once passed from their control, there exists no power in the court by any process to act upon the officer so as to interfere with the exercise of that judgment, while the matter is properly before' him for action. The reason for this is, that the law reposes this discretion in him for that occasion, and not in the courts. The doctrine is therefore as applicable to the right of injunction as it is to the right of mandamus.

The principle discussed in the foregoing cases is one of power, and in all the cases that I have examined in which this question has been discussed, the courts have refused to grant such relief, on the ground of the want of power to interfere in any way, or that the court had no jurisdiction over such an officer, and in no case has the power .of the court to interfere been admitted.

The same principle has been recognized by the court of appeals of this state. In the case of People v. Canal Board (55 N. Y. 390), the court says, “ to the extent that public officers and public bodies are trustees, either of franchises or property for the benefit of the public, they are amenable to the jurisdiction of courts of equity in the administration of such trusts, at the suit of the people, if the people of the state at large are the cestuis que trust, or of the particular municipality interested, or of individuals having a special interest in the execution of the trusts, or in preventing the acts sought to be enjoined. . .” A court of equity exercises its peculiar jurisdiction over public officers, to control their action, only to prevent a breach of trust affecting public franchises or some illegal act under color or claim of right affecting injuriously the property rights of individuals. A court of equity has, as such, no supervisory power or jurisdiction over public officials or public bodies, and only takes cognizance of actions against or concerning them when a case is made, coming within one of the acknowledged heads of equity jurisdiction.”

In the case of People v. Sturtevant (9 N. Y. 263), relied on by the relator, the injunction restrained the board of aldermen from passing a resolution authorizing a railroad in Broadway. The court held, that the act passing the resolution was in the nature of a grant, and it was alleged there, that to carry out the grant would authorize a public nuisance ; that a court of equity had jurisdiction in respect to public nuisances, or at any rate the question whether or not the act was an act of municipal legislation, was one that must be determined by the court; and that the court had jurisdiction of the parties to the action and of the subject matter of the action, and the injunction order was not void.

In People v. Dwyer (90 N. Y. 402), the court said, “ whether the act sought to be enjoined was, or was not, of a legislative character, was a judicial question to be disposed of by the court acting upon the facts, and it could prohibit action until it could investigate and finally decide the question.”

In each of the last two cases, facts were alleged tending to show that the defendants were, on behalf of the municipal corporation, about to do an act that would be illegal—in the People v. Sturtevant, to authorize a nuisance, and in People v. Dwyer, to commit a breach of trust; —but in the case at bar, no question was presented as to the character of the act sought to be enjoined. Ho right of property was involved, no damage to the plaintiff was alleged, no fact was alleged to bring the action within any of the heads of equity jurisdiction. The fact was alleged that an officer, on whom the constitution and the law had conferred power to do an act resting entirely within his discretion, had acted, or was about to act, from improper motives.

The presentation of this fqct gave the court no jurisdiction to act. The power to be exercised by the respondent was, as we have seen, one of the executive powers of •the state,- vested by the constitution -and law in him. That power is entirely distinct from the judicial power vested, in the courts. To hold that the judicial body could inquire into the motives of the executive in the exercise of the power conferred on him, and control him in the exercise of such power, would be to transfer the power from the executive in whom it is vested, to the judicial body.

On the presentation to the court of an affidavit that the governor of the state was about to make an appointment from corrupt or other illegal motives, would it be claimed for a moment that the court would have power- to enjoin him from making such an appointment ?■ Yet the act is not essentially different in that case, from the act of the mayor of the city of New York in the case at bar. Such acts are executive acts, vested by the organic law of the state in the officer appointed to perform them, and both are beyond the jurisdiction, power and control of the judicial power.

The relator claims that chapter 531, of the laws of 1881, gave the court jurisdiction to grant the injunction in this action. Section 1 of that act provides that, all officers, agents, commissioners and other persons acting for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action or actions may be maintained against them to prevent any illegal official act on the part of such officers,” &c. The actions authorized by this act, are limited to those against officers acting on behalf of a “county, town, village or municipal corporation.” As before stated, the respondent, in making the appointments sought to be enjoined, did not act on behalf of the municipal corporation. No authority for the exercise of the jurisdiction claimed can therefore be claimed in the act of 1881.

I am of the opinion, therefore, that the court having no jurisdiction of the subject matter of the action, had no power to grant the injunction. The order was void, and the respondent was not in contempt.

The order appealed from should be reversed, with §10 costs and disbursements, and the motion denied, with costs.  