
    PEOPLE ex rel. WRIGHT v. COMMON COUNCIL OF BUFFALO.
    
      N. Y. Supreme Court, Eighth District ; Special Term,
    
    1884.
    Mandamus to compel official action upon estimates.—Civil Service Act. —Municipal Corporations ; liability for services.
    The provision of the civil service act, L. 1884, c. 410, § 2,—amending L. 1883, c. 354, so as to make mandatory the employment of suitable persons to conduct the inquiries and make the examinations which are necessary for regulation of the civil service and promotions and employments,—implies that compensation is to be made for services rendered by such persons.*
    Persons rendering services to a municipal corporation pursuant to law are entitled to be compensated for the value of such services, although no specific provision of law has been made declaratory of the right or of the extent of the compensation.
    Under tiie charter of the city of Buffalo it is proper for the mayor to estimate sucli expenses and communicate his estimate to the common council, and they cannot wholly reject it, although they may alter it.†
    A citizen and tax-payer of the city has a right, by virtue of his interest in the order and maintenance of the government, and the enforcement of law, to institute proceedings by mandamus to compel the performance of this duty. It is only where some personal or private redress is sought that the relator must be shown to be interested personally. ‡
    * Compare People ex rel. Deane v. Supervisors of Greene, 14 Abb. N. C. 29; People ex rel. Hall v. The same, 13 Id. 421.
    † On the validity and effect of the civil service acts, see U. S. v. Curtis, 11 Abb. N. C. 1; confirmed on habeas corpus proceedings, Ex parte Curtis, 106 U. S. (16 Otto) 371; Southan v. Commonwealth, (Va. July, 1884), 17 Chic. Leg. News, 75.
    
      ‡ See, beside the cases cited in the opinion, People ex rel. Lawrence v. Supervisors of Westchester, 11 Hun, 306; People ex rel. Robinson v. Supervisors of Ontario, 17 Id. 501; People ex rel. Waller v. Supervisors of Sullivan, 56 N. Y. 249; and People ex rel. Garbutt v. Rochester, &c. R. R. Co., 14 Hun, 371, as contrasted with People ex rel. Stevens v. Hayt, 66 N. Y. 606; rev’g 7 Hun, 39.
    
      Motion for mandamus.
    Alfred P. Wright applied to the supreme court, at the Erie special term, for a peremptory writ of mandamus to be directed to the common council of the city of Buffalo, commanding that body to consider and pass upon the estimate made by the mayor for salaries and expenses of executing the civil service law, so far as it has been made applicable to the city of Buffalo.
    The allegations of the relator’s affidavit were as follows, some of them, however, being on information, and belief:
    That he is a resident of the city of Buffalo, and a citizen of the State of Hew York, and a freeholder and tax-payer of said city, and as such is interested in the due enforcement of the laws regulating the civil service of the State of Hew York and the city of Buffalo, and particularly of the acts of the legislature hereinafter mentioned.
    I. That the city of Buffalo is a municipal corporation organized and existing under and in pursuance of an act of the legislature of the State of Hew York, entitled ; “An act to revise the charter of the city of Buffalo,” passed April 28, 1870, and the acts amendatory thereof and supplementary thereto ; that at all the times hereafter mentioned, said city has had a population of over 50,000 inhabitants, and that Jonathan Scoville is, and at all the times hereinafter mentioned has been, the mayor of the said city.
    II. That under and in pursuance of an act of the legislature of the State of New York, entitled “an act to regulate and improve the civil service of the State of New York, passed May 4, 1883, known as chapter 354 of the laws of 1883, the mayor of said city of Buffalo was authorized to prescribe such regulations for the admission of persons into the civil service of said city as might best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of the service into which they seek to enter; and for this purpose he was authorized to employ suitable persons to conduct such inquiries, and to prescribe their duties, and establish regulations for the conduct of the ^ persons who might receive appointments in the said service ; and the board of police, being the head of the police department of said city of Buffalo was given in respect to those seeking to enter, or serving under the said police department, the same kind and measure of authority which was by said act conferred upon the mayor in regard to certain other officers of said city of Buffalo, which authority was required to be exercised after consultation with the mayor. And it was made the duty of those in the official service of said city, to aid and facilitate in all reasonable and proper ways the enforcement of all regulations, and the holding of all examinations which might be required under the authority conferred by this section.
    III. That under and in pursuance of the authority conferred by said statute, the mayor of the city of Buffalo, on or about. January 22, 1884, prescribed, and caused to be published, certain regulations for the admission of persons into the civil service of the city of Buffalo, a copy of which is hereto annexed and marked schedule-“A,” and made a part of this affidavit
    IY. That on or about February 21, 1884, the board of police of said city of Buffalo, after consultation with the mayor of said city, duly prescribed, and caused to be published, certain rules and regulations, concerning the examination of applicants, for appointment upon the police force of the city of Buffalo, a copy of which is hereto annexed and marked schedule “ B and made a part of this affidavit.
    Y. That under and in pursuance of an act of the legislature of the State of New York, entitled “ An act to amend chapter 354 of the Laws of 1883, entitled An act to regulate and improve the civil service of the State of New York,’ ” passed May 29,1884, and known as chapter 410 of the Laws of 1884, it became and was the duty of the mayor of the city of Buffalo, and the said mayor was directed and commanded, to prescribe such regulations for the admission of persons into the civil service of said city, as might best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of the service into which they seek to enter ;  and for this purpose the said mayor was directed and commanded from time to time employ suitable persons to conduct such inquiries, to make examinations and to prescribe their duties and establishregnlations for the conduct of persons who might receive appointments in the said service. It was further made the duty of said mayor, within two months after the passage of said act to cause to be arranged in classes, the several clerks and persons employed, or being in the public service of the city, and to include in one or more of said classes, all subordinate clerks and officials in said public service, to whom his power under said act extends. It was further provided, that after the termination of three months from the passage of said act, no officer or clerk should be appointed, and no person should be admitted to, or promoted in, either of the said classes now existing, or that might thereafter be arranged under said statute, and the rules provided for thereby, until he had passed an examination, or was shown to be exempt from such examination and such regulations. It was further made the duty of all those in the official service of said city, to conform to, and comply with, any regulations made pursuant to said act, and to aid and facilitate in all reasonable and proper ways the enforcement of all regulations, and holding of all examinations which might be required under the authority conferred by said act.
    11 was further prescribed in and by said act that where, before the passage thereof, the mayor of any city had prescribed regulations pursuant to the provisions of said chapter of the Laws of 1888, such regulations should be deemed to be established and prescribed, and to be operative as if established, prescribed and approved under the provisions of said chapter 410 of the Laws of 1884, and that the examiners who before the passage of said last mentioned act, had been appointed or designated under the provisions of said chapter 354 of the Laws of 1883, should be deemed to be appointed under the provision of said chapter 410, of the Laws of 1884.
    VI. That under and in pursuance of the several statutes hereinbefore set forth, the mayor of the city of Buffalo, on or about the 36th of January, 1885, duly prescribed and caused to be published, certain amendments to the regulations for the admission of persons into the civil service of the city of Buffalo, which were prescribed by him January 33,1884, a copy of which amendment is hereunto-annexed and marked schedule “ C,” and made a part of this affidavit.
    VIL That on or about the 36th day of January, 1885, the mayor of the city of Buffalo, in pursuance of the statutes hereinbefore set forth, duly prescribed and caused to be published certain rules and regulations governing the examination of applicants to appointment to service in the fire department of the city of Buffalo, a copy of which rules and regulations is hereto annexed and marked schedule “D,” and made a part of this affidavit.
    VIII. That thereafter all of the said rules and regulations, hereinbefore- referred to, were duly submitted to the New York Civil Service Commission, as required by law, and were duly approved by said New York Civil Service Commission, under the seal of said Commission, and that on and prior to the 1st day of March, 1885, and at all times subsequent thereto, all of said rules and regulations hereinbefore set forth, were in existence and in force, and were binding upon all persons in the official service of the city of Buffalo.
    
      IX. That prior to the said 1st day of March, 1885, the mayor of the city of Buffalo, under and in pursuance of the said statutes, and of the rules and regulations hereinbefore set forth, did appoint suitable and proper persons to conduct inquiries and make examinations into the fitness of candidates in respect to character, knowledge, and ability for the civil service of the city of Buffalo, and did prescribe their duties, that such persons had proceeded to hold and had held examinations of candidates for offices, and the said laws and regulations were in full force and operation in said city of Buffalo, and that said persons so appointed are still examiners acting under and in pursuance of said statutes, and the said rules and regulations.
    X. That under and in pursuance of the charter of the city of Buffalo, it was the duty of the mayor of said city, before the 1st day of March, 1885, to deliver to the comptroller a full and detailed estimate of the expenses and the amount of money required in Ms department for the ensuing fiscal year; and that on or before the first day of April, in said year, it was the duty of the comptroller of said city of Buffalo, to present to the common council of said city, an estimate of the amount necessary to be raised by general tax to carrying on the city government and to meet all the expenses and liabilities of the city for the fiscal year, specifiying in detail, and under separate and appropriate heads, the amount estimated for each, department, or each office, or other purpose.
    That it was further provided in and by said charter,, that after the expiration of one week from, the presentation of such estimate, the common council shall proceed to consider the same, and by a vote of two-thirds of all the members, and may alter or amend the same, and shall, on or before the first day of May, finally pass upon it; that the estimate as made by the comptroller, or as altered or amended by the common council, may be adopted by a majority vote, and if altered or amended, shall, upon its adoption, be entered at large upon the journal, and that the sum total of the adopted estimate shall be raised by a general tax.
    It is further provided in and by said charter, that the expenditures for each department, office or other purpose during the fiscal year, shall be kept within the estimate made for it; that for this purpose each department, office or other purpose, shall be credited with the amount included in the estimate for it, and shall be debited for the salaries, and the certain and fixed sums to be paid out of it, and the other expenditures shall not exceed the balance remaining of the estimate; that contracts made in any form or manner for an amount exceeding such balance, shall not be binding on the city beyond such balance ; that when liabilities to the amount of such balance shall have been credited, all contracts made in any form, or money for further expenditures or liabilities shall not be binding on the city of Buffalo.
    XI. That under and in pursuance of the provisions of said charter, Jonathan Scoville, the mayor of the city of Buffalo, prior to the first day of March, 1885, did deliver to the comptroller, a full detailed estimate of the expenses, and the amount of money required in this department, for the ensuing fiscal year, which estimate was as follows: [A copy of the estimates was then set forth.]
    And that on March 80, 1885, the comptroller of the city of Buffalo duly presented to the common council of said city, his estimate of the amount necessary to be raised by general tax to carry on the city government, and to meet all expenses and liabilities of the city for the ensuing fiscal year, specifying in detail the amount estimated for each department, or office, or other purpose, and that in the said estimate the comptroller included the estimates submitted to him by the mayor, as hereinbefore stated in the form hereinbefore set forth, and that in his communication to the said common council accompanying the several estimates, the said comptroller also inserted the following:
    “The attention of your honorable body is directed to the following items :
    In the mayor’s department.
    For salaries and expenses of executing the civil service law, • §1,250.”
    Deponent further alleges, that the said item was inserted by the mayor in the estimates of his department, and was so submitted to the comptroller, solely for the purpose of convenience, and because no express provision was made by law, as to the manner in which an estimate of the expense of executing the civil service law, should be presented to the common council; but that the said expense is not merely one of the incidental expenses of the mayor’s department, bat is a necessary expense of the whole city government of the city of Buffalo, without which examinations for office under the statutes and rules and regulations hereinbefore set forth can not be held, and appointments to office can not be made, and the government of the city of Buffalo can not actually be carried on ; that of the other items included by the mayor and the comptroller, in the estimate for the mayor’s department, the items for the salary of mayor or mayor’s clerk, for the rent of the telephone, and for services of Merrit Brooks, amounting in all to §7,275, represent obligations fixed by the charter of the city of Buffalo, and on contracts actually made in pursuance of law, and which are binding on the city of Buffalo, and which must necessarily be paid by the city of Buffalo, and which can not be legally or properly be paid out of any other funds than those appropriated for the mayor’s department; and that the other items included by the mayor and by the comptroller in their estimates for the mayor’s department, being for printing and advertising, for stationery, postage-stamps, cards and contingencies, and for copies of revised reported city charter, amounting in all to §780.50, represent necessary expenses of the mayor’s department, without which the business of said department cannot practically be carried on, and which can not be' met or paid for out of any other funds than those appropriated for the mayor’s department.
    Here followed a statement of the proceedings of the aldermen, showing that they had, in committee of the whole, refused to allow anything of this item, with facts in detail to show reason to believe that the aider-men would, as threatened, make no provision on the subject; that if the item was struck out and no provision made, if would be impossible for the mayor to execute the law, although he was willing to do so ; and that the person who had previously acted as clerk and secretary to the Board of Examiners without compensation had declined to do so further; with other details as to the necessity of suitable provision being made for the expense of carrying out the law, and as to there being no other remedy.
    An affidavit of the mayor was annexed ; also an affidavit to the fact that one of relator’s counsel had asked the attorney of the city of Buffalo to take.proceedings by mandamus, and that he had declined, regarding it his duty to appear for the common council should any such mandamus issue.
    The answering affidavit by one of the aldermen alleged that the common council had not yet fully considered nor finally passed upon the estimate, nor had it refused to include or insert in said estimate the specified sum ; that such sum was not necessary, that the civil service officers of Buffalo served without, and were not entitled to, any compensation, and that, as deponent was informed and believes, the city would not incur any expense in executing the statute.
    
      Ansley Wilcox, E. C. Sprague and Sherman S. Rogers, for applicant.
    
      Herman Hennig, city attorney, for the common council.
    
      
       The -most material part of the statute here referred to is the fint part of section 8, which is as follows: “ The mayor of each city in this State having a population of fifty thousand or over, as shown by the last census, is authorized to prescribe such regulations for the admission of persons into the civil service of such city as may best promote the efficiency thereof, and ascertain the fitness of candidates in respect to character, knowledge and ability for the branch of the service into which they seek to enter, and for this purpose he may employ suitable persons to conduct such inquiries, and may prescribe their duties, and establish regulations for the conduct of the persons who may receive appointments in the said service. Said regulations, however, shall not exlend to any elective officer, or to those in or seeking to enter said service under the police, health, fire, educational or law department of any city, nor to any officer having immediate custody of public moneys, for the safe-keeping of which any head of an office has given bonds, and is thereunder responsible, nor shall any regulation be incompatible with any existing law as to entrance to said service. And each of the boards (or the officer, as the case may be, at the head of each said department) is hereby given in respect to those seeking to enter, or serving in the same, the same kind and measure of authority which is hereby conferred upon the mayor in regard to certain other officials, which authority shall be exercised by the said boards or officers after consultation with the mayor. It shall be the duty of all those in the official service of any said city to aid and facilitate, in all reasonable and proper ways, the enforcement of all regulations, and the holding of all examinations which may be required under the authority conferred by this section.”
    
    
      
       Section 8 of the act of 1883, c. 354 (before quoted), was amended by L. 1884, c. 410, as follows :
      The words “ having a population of fifty thousand or over, as shown by the last census,” are omitted. The persons appointed by the mayor to ascertain the fitness of candidates for the civil service, are also directed to make examinations.
      After the end of the first sentence in section 8, the following clauses are inserted :
      “ And the regulations so to be prescribed shall, among other things, provide and declare as in the second subdivision of the second section of this act is provided and declared in reference to regulations for admission to the civil service of the State. Within two months after the passage of this act, it shall be the duty of each of said mayors in and by such regulations to cause to be arranged in classes the several clerks and persons employed, or being in the public service of the city of which he is a mayor, and he shall include in one or more of such classes, so far as practicable for the purposes of the examination herein provided for, all subordinate clerks and officers in the public service of the said city, to whom his power under this act extends. After the termination of three months from the passage of this act, no officer or clerk shall be appointed, and no person shall be admitted to or be promoted in either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examination, or is shown to be exempted from such examination, in conformity with such regulations.”
      For the remainder of the section quoted in preceding foot-note, the following clauses are substituted :
      “ Such regulations hereafter prescribed and established, and any subsequent modification thereof, shall take effect upon the approval of the New York Civil Service Commission. Officers elected by the people, and the subordinates of any such officer for whose errors or violation of duty such officer is financially responsible, and the head or heads of any department of the city government, and persons employed in, or who seek to enter the public service under the educational departments of any city, and any subordinate officer who, by virtue of his office, has personal custody of public moneys or public securities, for the safe keeping of which the head of an office is under official bonds, shall not be subject to the regulations prescribed pursuant to this section, nor shall any regulations contravene an existing statute relating to entrance to said service. It shall be the duty of all those in the official service of any such city to conform to and comply with any regulations made pursuant to this act, and to aid and facilitate in all reasonable and proper ways the enforcement of all regulations, and the holding of all examinations which may be required under the authority conferred by this section.”
    
   Daniels, J.

The mayor of the city, in submitting to the common council the estimates for Ms department, included the sum of twelve hundred and fifty dollars for salaries and expenses of executing the civil service law. This item was considered by the common council at its regular meeting held on the 6th day of April, 1885, when by its action as a committee of the whole it was stricken out of the estimate. And it has been stated in one of the affidavits on which the application has been made, that the common council in its action was controlled by the determination to make no provision for salaries and expenses of executing the civil service laws, and designed thereby to nullify and prevent their execution. This has not been denied ; and the action taken by that body or its members, tends to either sustain this conclusion, or that the common council are acting under a misapprehension concerning their duties and obligations under the law. And it is to correct their action in this respect that the writ of mandamus has been applied for, directing the common council to make and sustain the estimate so far as it was made by the mayor, or may be required for the execution of the provisions of the law relating to the city of Buffalo.

The application has been resisted on the ground that the action which was taken was not that of the common council but of its committee ; but an answer to the objection is presented by the circumstance that the committee of the whole, by which the action was taken, was made up of the members of the common council, and in their action they officiated as the common council of the city. Their powers and duties in this respect have been prescribed by section 6, title 5, of the charter of the city of Buffalo, and that requires when the estimates shall be made and submitted, that the common council shall proceed to consider the same, and whether it does so nominally as a committee, or as the common council itself, the exercise of the authority will be precisely the same. The power has been conferred alone upon the common council, and whether its members act under that name or under the name of a committee of the whole can make no substantial difference in the exercise of this authority. It will still be under this section the action of the common council, although it may not be so final in its character as to render further consideration needless. That further consideration by the members of the common council, as such, or acting as a committee of the whole, would change the result, is extremely improbable, inasmuch as the estimate was stricken out by the decisive vote of thirteen to one. The probabilities, on the contrary, are so decided, arising out of the action which has been taken, as probably to support the conclusion asserted in the affidavit, that it is the design of the common council to reject the estimated item, and in that manner prevent the law from being carried into effect. And these facts are sufficient to entitle the application to be sustained if a legal right to the writ has been made out, and the applicant is authorized by law to maintain the proceeding.

It is true, as it has been argued on behalf of the common council, that the writ is not to be" issued in a doubtful case, or where any other remedy for adequate redress shall be found to exist. But no other remedy has been prescribed or provided by law, for the redress of the wrong complained of as the foundation of this action. And if the right is to be clearly derived from the law, then neither of these objections stand upon any legal foundation.

The right to the allowance of the estimate, or of some other proper and adequate amount, depends upon the construction which shall be given to chapter 354 of the Laws of 1883 as it has been amended by chapter 410 of the Laws of 1884. By these acts very definite and broad provisions were first made to regulate the civil service of the State, and to provide for promotions and appointments to certain public offices of the State. This, so far as the laws were rendered applicable, was to be done by open and competitive examinations, testing the fitness of the applicants for appointment in the public service. It was not in the first instance rendered obligatory upon the city, but the mayor was vested with the authority to provide rules and regulations for carrying its provisions into effect in the official civil service of the city so far as the offices designated and mentioned in it were referred to. The mayor of the city, it has been made to appear, did provide such rules and regulations, and persons were employed and selected to make the investigations and examinations authorized by the law, and they have to the present time been conducted without subjecting the city to expense. But by section 2 of chapter 410 of the Laws of 1884, the mayor of the city was no longer left at liberty to exercise his volition upon this subject, but the duty was made mandatory, and he was not only authorized, but thereby directed to prescribe such regulations as had previously been indicated in the law of 1883, or to continue and carry those into effect which had been previously adopted. And to carry out the design and intention of the law, it was provided that the mayor “ shall from time to time employ suitable persons to conduct such inquiries and make .examinations, and shall prescribe their duties and establish regulations for the conduct of persons who may receive appointments in the said service” (Laws 1884, 410, § 2). And to render the observance of this duty still, more imperative, if that could be done after the employment of this positively mandatory language, it was further declared in the same section, that “after the termination of three months from the passage of this act (which took place on May 29, 1884), no officer or clerk shall be appointed, and no person shall be admitted to, or be promoted in either of the said classes now existing or that may be arranged hereunder pursuant to said rules, until he has passed an examination or is shown to be exempted from such examination in conformity with such regulations.” These directions are so clear and positive as to leave the mayor no discretion upon the subject, but he must from time to time employ suitable persons to conduct the examinations and make the inquiries required. But neither this act nor the one preceding it contains any express provision for compensating the persons to be so employed by the mayor, and for that reason it has been urged that their services were intended to be obtained gratuitously. But the act has not so declared or provided ; and by requiring the mayor to employ suitable persons to perform these services, it is to be implied from that language that it was intended that they should be reasonably remunerated for such services. For in no other manner can persons be ordinarily induced to render services of the description of those prescribed by the law. What the mayor has been required to do is to employ suitable persons, and the power to employ others to render services on behalf of the municipality includes the obligation to provide for their compensation. The employment can usually be expected to be secured in no other way ; and when a person or persons are employed, it is a reasonable, as well as a natural implication, that the services rendered in the course of the employment shall be reasonably or correspondingly rewarded. This is the effect of employing others to render services in the ordinary relations of business ; and as the city has not been exonerated from that effect, it may be assumed that it was designed that it should observe and fulfill the ordinary obligation arising out of the act of employment. In no other way can the services of others be ordinarily secured. It is true that they have been otherwise secured up to the present time under the authority contained in the preceding law. But there is no expectation that gratuitous services will be further rendered for the city under this statute by persons whom the mayor shall consider it his duty to employ. It has been intimated that persons may be found who would be willing to render the same service without compensation, but they may not be persons whom the mayor in the exercise of this,authority would be willing to select or appoint. That certainly is his judgment, for he made this estimated amount upon the apparent understanding that it would become necessary to enable him to carry into effect these provisions of the statute. And where an appropriation of money is essential for that purpose, although not so declared in the law itself, the obligation to make it is to be derived by implication from it. The rule upon this subject is that “ whenever a power is given by statute everything necessary to make it effectual or requisite to attain the end is implied,” and “where the law requires a thing to be done, it authorizes the performance of whatever may be necessary for executing its commands” (Sedgw. on Statutory, &c. Law, 92 ; 1 Kent, 7th ed. 513, m. p. 464; Stief v. Hart, 1 N. Y. 20, 30); and the case of Baker v. City of Utica, 19 W. Y. 326, requires no different construction to be placed upon the statute. It is, on the contrary, an authority in favor of the right of persons rendering services to a municipal corporation to be compensated for the value of such services where no specific provision of law has been made declaratory of the right or extent of compensation. In that class of cases, the compensation is to be a reasonable remuneration for the services rendered, and it would be the' duty of the mayor within these statutes to confine the compensation to such limits. What the law intended was, that the mayor should be obliged to employ the persons whose services should be requisite to carry out its provisions and to exercise all the authority which should become necessary to attain that end. And as the persons employed would be entitled to be reasonably compensated for the services rendered by them, the obligation to provide for the payment of that compensation has been included in the law.

By omitting to provide the manner in which the money should be obtained to make this compensation, the end and purpose of the law are not to be defeated. For as the services are to be rendered in the employment of the mayor and on behalf of the city, the funds required to remunerate the employment are necessarily a charge upon the city as all other expenses of the municipal government have been made by the charter. Whatever may be required to meet these obligations, has been directed, by title 5 of the charter, to be estimated by the heads of the departments. This includes ail expenditures considered to be necessary for the ensuing fiscal year, in the administration of the affairs of the city government. This is such an expenditure, and under this portion of the charter it was a proper subject to be estimated—and estimated by the mayor, inasmuch as he is the person who was to exercise this authority and employ the persons requirecl to render these legal services. Pnrsnant to this obligation the mayor made the estimate for what he considered would be the necessary expenses of carrying these provisions of the laws of the State into execution, and communicated and presented the estimate to the common council. This body has been authorized by section 6 of title 5 of the charter, by a vote of two-thirds of all the members elected, to alter or amend the estimate. But where it has been made pursuant to the direction of a positive statute, as it has been in this instance, the common council has not been invested with the power of wholly rejecting the estimate. It may, under the authority to alter or amend the estimate, extend, modify or limit it, as that may appear to be be justified by the facts ; but the common council has no authority arbitrarily to reject the estimate. Its legal, as well as its absolute duty, is, on the contrary, to consider it in good faith, with sound judgment and discretion, and if any misapprehension has intervened in its amount, to correct it and apportion it to the probable necessities of the' service for which may be designed. This, according to the papers which have been produced upon the-application, has not been done. The estimate was not considered, but it was arbitrarily rejected, for the purpose, as it has been stated, of defeating the execution of the law. That, neither the members of the common council nor any other official of the State or city, has the right or power to do. The government, whether general or local, is one of laws, and when a law has been constitutionally enacted, it is the imperative duty of all public officers, and was expressly made so by the act itself, to carry its provisions into effect. Every public officer is required, before he can enter upon the discharge of his dirties, to take his official oath, that he will discharge the duties of his office according to the best of his ability; and no official duty is more imperative or important than those which the positive laws of the State have declared shall be observed and performed. Beyond this, the law has further reenforced this obligation by a very general provision declaring that ‘ á public officer or person holding a. public trust or employment, upon whom any duty is enjoined by law, who willfully neglects to perform the duty, is guilty of a misdemeanor ” (Penal Code, § 117). No public officer has been invested with the discretion to omit to carry into effect a law of the State, for the reason that he may not approve of its object or policy, or for any other reason. He is allowed to exercise no such choice or authority, but the obligation is general and imperative to carry the laws of the State into execution according to their fair import to be derived from the language employed in their enactment.

By rejecting the estimate in this manner communicated to the common council, the authority of the mayor to^execute this mandatory provision of the act of 1884 may be practically nullified. For no balance it has been shown will remain of the estimates submitted for the expenditure of his own department in other respects which could be appropriated to the payment of persons employed by the mayor under the authority of the law of 1884. And where that is the fact, and no appropriation exists out of which payment can be made, by section 9 of title 5. of the charter, contracts have been prohibited from being made, and no liability for payment can be created when they may be made. And no warrant for the expenditure to be incurred in the performance of any such contract, if it should be made, is allowed to be paid by the treasurer of the city. By striking out this item from the estimate of the mayor, therefore, he will be deprived of the ability to perform the duty which the act has declared shall be performed by him, and in that manner this provision oí the law will be wholly defeated and rendered nugatory. And that the members of the common council of the city cannot, in the exercise of any legal authority with which they have been invested, accomplish. The authority which has been given them has been designed to promote and secure the execution of the laws, and not their nullification by their failure or refusal to act.

The case is not within section 4 of title 3 of the charter of the city, for the reason that the persons to be selected and employed by the mayor will not be persons elected or appointed under the charter of the city, but the power to appoint them is wholly derived from the acts of 1883 and 1884 which have already been mentioned.

That the writ of mandamus is the appropriate remedy by which the common council may be required to exercise the authority conferred upon it by law for the benefit of the public cannot admit of any serious question. It was employed to secure the observance of a duty enjoined upon the common council of the city of New York, in People v. Common Council, etc., 45 Barb. 473, which was afterwards affirmed by the court of appeals, 3 Keyes, 81. And as the case presented by the facts supported by the affidavits has been made out, the right disclosed by it may be enforced and maintained through the instrumentality of this writ under this authority.

The remaining objection to be considered is that involving the power or right of the present applicant to apply for the issuing of the writ. He is shown to be a citizen and tax-payer of the city, interested therefore in the orderly maintenance of its government. That result can only be secured, so far as these legislative acts extend, by observing and conforming to their provisions. If they are not complied with, then, so far as public offices are to be filed to which they relate, they cannot be supplied, and the government of the city to that extent will be subverted. And every citizen has such an interest in its affairs as to be entitled by a proper application to the court to avert the occurrence of these consequences. It is only when the application for the writ is made to secure some personal or private redress that t he applicant must be shown to be interested in obtaining it, before the writ can be directed to issue. Where the act omitted to be performed affects the public interests generally, and all citizens are equally concerned in securing its performance, and that has been enjoined by a law of the State, a different rule prevails. There it is sufficient to support the application that the applicant is a citizen, and entitled to insist upon the execution of the laws of the State. These laws are made for the promotion of public order and individual security, and accordingly, every citizen has a sufficient interest in their execution to entitle him to prosecute an application of the description. Laws are enacted for the well being, good order and security of the community, and of its constituent members. Public officers are provided for, elected and appointed to execute their provisions, and where they designedly fail, or intentionally omit to do that, every citizen has the inherent right to apply to this court, and insist upon it that the writ of mandamus shall issue in such a form as to secure the observance of that duty. The authorities in this and several other States, and those also of the court of king's bench in England, have gone very far in supporting this proposition. In fact, the utmost limit of judicial interference has been reached, for the purpose of sustaining the right of private persons to insist upon the performance of public duties by public officers. An extreme case was that of the King y. Brown, a note of which will be found in 3 T. U. 574, under the title of Rex y. Smith, where an application of filis nature was sustained against the common councilmen of York, because they had failed to observe t.he requirement of an act of parliament, declaring that corporate officers generally, as a qualification for holding their offices, should receive the sacrament within six months. The interest of the applicant in the observance of this duty was extremely insignificant, and yet the application was sustained, because it was made to enforce the observance of an act of parliament which interested all the corporations in the kingdom. This authority, as well as others maintaining the same general conclusion, were fully approved in the case of People v. Collins, 19 Wend. 56, and in the case of People v. Halsey, 37 N. Y. 344, it was also held to be a matter of- but slight importance whom the applicant or relator should be, so long as he does not officiously intermeddle in a matter with which he has no concern. The rule, it was said, that a relator in a writ of mandamus, must show an individual right to the thing asked, must be taken to apply to cases where an individual interest is alone involved, and not to cases where the interest is common to the whole community (Id. 348); High on Extraordinary Remedies, § 431, and cases cited in note). The rule is different in some of the States, but here it has become fixed and established, allowing every citizen the right to compel public officers, whose duty it had been made to do so, to execute the laws of the State, enacted for the benefit of the com muni fy, and where the government is solely one of laws,—as that of the State and the city most clearly are,—the rule is one of a salutary and beneficial character.

Neither of the objections which have been taken to the application are capable of being maintained, and as the case had been held over-with the> expectation that the action of the common council might be voluntarily re-considered in such a manner as to secure the observance of the law, without a resort to this remedy, and that has not been done, no other alternative remains but to direct that the writ of mandamus shall be issued. This writ will require the common council to proceed in good faith to the consideration of the estimate submitted for this contemplated expenditure by the mayor, and to allow it and include it in the estimates for the ensuing fiscal year, so far as it may be found requisite to do so for the maintenance and execution of the law. What the common council will be required to do is to consider and dispose of the estimate precisely the same as it does any other lawful estimate submitted for its action; to exercise its judgment carefully and intelligently upon the subject, and to allow the estimate as it may have been submitted, or as it may be altered or amended- solely pursuant to the exercise of that judgment guided by the facts which in the faithful discharge of its duty may be found to exist. The order to be entered will be settled on notice to the city attorney. 
      
       The following was the order entered (after the usual recitals):
      “It is ordered: that a peremptory writ of mandamus be issued out of and under the seal of this court, directed to the defendant, the common council of the city of Buffalo, and to the members of said common council, commanding and directing the said common council and the individual members thereof to proceed in good faith to a consideration of the estimate made by the mayor and submitted to them by the comptroller of the city of Buffalo on March 30, 1885, for salaries and expenses of executing the civil service law, said estimate being the sum of §1,250, and to adopt and allow the said sum and include it in the estimates for the ensuing fiscal year, so far as it may be found requisite to do so for the maintenance "and execution of the said law, and commanding and directing that the said common council, and the individual members thereof, adopt and allow the said estimate as it was submitted to them, or in case the said estimate is altered or amended, that it be altered or amended only by said common council in the exercise of their judgment, guided by the facts which, in the faithful discharge of their duty, may be found to exist; and that in any event, the said common council adopt and allow, and include in said estimates, a reasonable and sufficient sum for the salaries and expenses of executing the civil service law of the State, and the rules and regulations prescribed by the mayor of the city of Buffalo in pursuance thereof.”
     