
    Charles H. Armatage, Resp’t, v. Joseph Fisher et al., App’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    1. Cebtiorari—When not to issue.
    A writ of certiorari cannot issue until the final determination of the body to whom the writ is directed.
    3. Quo warranto—When maintainable.
    An action in the nature of quo warranto cannot be maintained, where the object of the action is to prevent the removal of the plaintiff and the appointment of another person in his place.
    3. Common council—Rules.
    In the absence of any rule prohibiting such a course, the common council can, by a majority vote, adopt new rules, unless forbidden by statute.
    4. Same.
    The rules adopted by a legislature or municipal body cannot be deemed ordinances.
    5. Same—Removal of president.
    In order to empower the common council to remove its president, no rule.as to the course of procedure is necessary to be adopted prior to such removal.
    6. Same.
    The common council has power to remove its president, at least, for cause.
    7. Same.
    In the absence of any statutory prohibition, a majority vote is sufficient for this purpose.
    8. Pleading—Demurrer.
    An allegation in the complaint that “ certain rules of order in the common council were and have been in force ” is not admitted on demurrer.
    Appeal from an order granting an injunction.
    
      John A. Delehanty, for app’lts; Stedman, Thompson & Andrews {C.L. Stedman, of counsel), for resp’t.
   Putnam, J.

The plaintiff claims that the defendants as members of the common council of the city of Albany, on June 5, 1893, illegally altered rule 33 as previously adopted, and under said rule as so altered at the time the action was commenced in violation of law, were proceeding to remove the plaintiff from his office of president. An order was made granting a temporary injunction restraining the defendants during the pendency of the action from taking any steps toward removing the plaintiff from his said office, from which said order the appeal was taken.

It is conceded in the respondent’s brief that the object of the injunction was not to restrain the removal of the plaintiff as member of the common council, which under the statute and rules can be done, and only done, by a vote of two-thirds of the members of said council. The object is to prevent his removal as president, the defendants claiming that he can be so removed by a majority vote. It is alleged by appellant that plaintiff's remedy, if any, for the alleged violation of law by the defendants, is by writ of certiorari under the provisions of the Code of Civil Procedure. § 2140. This position would probably be well taken had the defendants at the time the action was commenced actually removed the plaintiff from his office. But a writ of certiorari cannot issue until the final determination of the body to whom the writ is directed. When the action was commenced, therefore, plaintiff could not have resorted to this remedy. Nor could the ' plaintiff have obtained relief by an action in the nature of a quo warranto. Plaintiff is yet president. No other person has been appointed in his place. This case is not like that of Johnston v. Carside, 20 N. Y. Supp., 327; 47 St. Rep., 526, and kindred cases. The object of the action is to prevent the removal of the plaintiff and the appointment of another person in his place. It is to prevent a state of affairs, which, if brought about, would probably render an .action in the nature of quo warranto proper.

If in this case the papers show that defendants, as members of the common council of the city of Albany, without authority of law, are proceeding to remove plaintiff from his office of president, we are inclined to think they show plaintiff is about to suffer an irreparable injury. The loss of the office may be deemed such. We are, hence, not prepared to say that if the proposed action of defendants as to removing the plaintiff was or is without jurisdiction, that this equitable action cannot be maintained, or that the temporary injunction was improperly granted.

• We proceed, therefore, to examine the alleged illegal acts of defendants as stated in the complaint and papers before us. It is claimed that on June 5, 1893, while rule No. 34 was in force, providing that: “ No rule of this council, shall be altered, suspended or rescinded except by a two-thirds vote of all the members elected, and no motion to alter, suspend or receive any (such) rule shall be in order without the unanimous consent of the council, unless notice thereof shall have been given at the previous rugular meeting, and no motion to suspend shall embrace more than one rule, or relate to anv other subject than the one specified " in said motion;” the defendants, by only a majority vote and without any notice having been given at a previous meeting, assumed to alter and amend rule 33 in violation of the provisions of law, and of rule 34 {supra). The original rule was as follows, except the part in italics, which part contains the amendment or alteration alleged to be unlawfully made : “ 33. When any member of the common council shall be charged (which charge shall be in writing and presented at a meeting of the common council) with any violation of any law or ordinance of said city, or resolution, rule or regulation of said council, the matter shall be referred at said meeting to a committee of investigation of not less than five. In .case the charge is preferred against the president of the common council,'such committee shall be named and appointed by the vote of the common council; except in case the committee is named by the common council, the member (charged) shall have the right to object to hot more than two members named on said committee, and the members complaining or charging shall have the same privilege, and other members shall be appointed to fill the vacancy thus created. The member charged shall be served with a copy of said charges and notice when said committee shall hear the same (at said time), or the time or times to which it shall be adjourned (shall) to examine the same, and 'of when it shall report to the council. When the report of any committee of investigation shall be considered, the council may order a secret session for that purpose.”

It is urged by plaintiff that rule 33 could not on June 5, 1893, be changed as above except by a two-thirds vote and after notice of the proposed change having been given at a previous meeting as provided by rule 34, then in force. We doubt whether this position is well taken. It appears by the affidavit of Craven, the clerk of the common council, that on May 3,1892, when the plaintiff was elected president-, he appointed three persons to report rules for the transaction of the business of the board, and it was then resolved that the rules of the last board be adopted until said committee reported. Said committee reported on June 5, 1893, and before the change was made in 2'ule 33. Therefore, when the change was made rule 34 was riot in force. There was then no rule. In the absence of any rule prohibiting such a coui'se it is clear that the common council could by a majority vote adopt new rules, unless prohibited by statute. Therefore, the transaction of June 5, 1893, was not an amendment of the rules, but the adoption of new rules, none then being in force. The allegation in the complaint that “certain rules of order of the common council were and have been in foi’ce,” is an allegation of a legal conclusion, and not a statement of. facts, and hence not admitted in the demurrer. There was no allegation that such rules were ever enacted by the common council. The defendants could, therefore, on the motion for an injunction prove the l'esolution that was in fact passed in i'egard to the adoption of the old rules and the facts as to the making of the new ones.

It is doubtful whether rule 34 as existing prior to the report of the committee, if deemed in force at the time in question, prohibited the making of an additional new rule unless by vote of two-thirds of all the members of the common council and unless notice should have been given at a previous meeting. The prohibition is against altering, suspending or rescinding. The so-called alteration leaves the original rule in force. It makes a provision for a case not provided for in the former rule. The alteration is, in fact, a new provision, which might have been contained in a new or separate rule, and which does not alter, suspend or rescind the provisions of rule 38 as in force on or before June 5, 1893. The transaction of June 5, 1893, was not, we think, prohibited by § 34, chapter 298, Laws of 1883, providing that no ordinances shall be adopted and no by-laws rescinded or repealed unless by a two-thirds vote. The rules adopted by a legislative or municipal body cannot be deemed ordinances. Such bodies adopt rules for their guidance in making ordinances or laws. A rule is defined to be “ the regulation adopted by a deliberative body for the conduct of its proceedings.” The word “ ordinance ” as applicable to the action of a municipal corporation should be deemed to mean the local laws .passed by the governing body. The legislature of the state pass laws and make rules for the government of its procedure. So a municipal corporation passes laws, called “ ordinances,” and enacts rules. The same distinction that exists between laws and rules made by the legislature should be held to exist between rules and ordinances. enacted by a municipal corporation.

We, therefore, incline to the opinion, that the defendants did not do an illegal act in making new rule Ho. 33 by a majority vote and without previous notice, there being no statutory or other prohibition against the act. But assuming that our views above stated are erroneous, and that the new rule as far as it alters or adds to the old one wás enacted without authority, and that in fact the old rule, Ho. 83, is in force unchanged, it remains to be seen in what regard the plaintiff is injured by the illegal action of defendants.

It requires no argument to show that if plaintiff’s only grievance was the alleged unlawful enactment of the new rule 85, and defendants, after such enactment, have done no act in violation of plaintiff’s rights, that this equitable action could not be maintained. In that case plaintiff’s remedy, if any, would be by a certiorari It will not be claimed that this court should, by injunction, restrain the action of a municipal corporation in the adoption of rules, whether such rules are regularly enacted or not. But the position of plaintiff is that defendants have not only made the new rule, but under and by virtue thereof they are proceeding to remove plaintiff. The assumption is that, without the rule, the removal would not take place.

As we have seen, the injunction is not sought to prevent the removal of plaintiff as a member of the common council, but to restrain the action of the defendants looking to his removal as president. Heither § 3 of chap. 286, Laws of 1892, amending § 7 of the act of 1883, nor rule 33, as in force on and prior to JuneS, 1893, apply to the removal of the president. Hence, at the time the charges were preferred against plaintiff there was no statute or rule providing for the procedure to be adopted by the common council in such a case, unless the new rule 33 was in force. Assuming that the common council has, in any event, power to remove the president, we are unable to see that any rule as to the course of procedure was necessary to be adopted prior to such removal. In other words, if the defendants have the power to remove the plaintiff, they can do so as well without the adoption of a new rule as with it. It is true that § 3, supra, gives the common council the right to determine the rules of its own procedure, but it is not bound to establish general rules of, procedure, and the failure to make such general rules does not invalidate its action if otherwise legal. Doubtless, on the charges against the president being preferred, the common council should furnish him a copy of the same, notice of the hearing thereon before the board or its committee, and an opportunity to examine and cross-examine witnesses, and to offer evidence on his own behalf, as was done in this case. The proceedings after the charge and before the committee seem to have been fairly conducted; plaintiff appears to have had a reasonable opportunity to protect himself, appearing by counsel and cross-examining witnesses produced by the defendants. (

Therefore, as the proceedings of defendants, based on the charges made against plaintiff, were as much authorized without a previous rule establishing the course of procedure, as if such a rule had been adopted, it is not important whether the new rule 33 was properly adopted or not. Hence, if it was within the power of the common council to remove the president, it not being essential that it should enact before the trial of the charges against him a rule or rules as to the procedure to be adopted, and as the proceedings, as far as they have gone, appear to have been fairly conducted, this action to restrain such proceedings cannot' be maintained.

The real question in the case, then, is whether the common council have or have not the right to 2’emove the president at pleasure or for cause, and if so, whether he can be removed by a majority vote. In this case the removal is sought for cause. As we have suggested, if such a removal is beyond the power of the defendants it may be a proper case for a court of equity to grant an injunction restraining an act, that, it may be deemed, would produce irreparable injury by depriving him of his office.' And in that event a temporary injunction was properly granted.

By § 3, chapter 286, Laws of 1891, supra, it is provided that the common council shall biennially elect from its own body a president, etc. The plaintiff insists that this language indicates a legislative intent that the term of one elected to said office shall be two years, or the same time as the clerk and the members of the common council. We think the statute rather indicates a contrary intent. It provides that the alderman -shall be elected for two years, and that the clerk shall hold his office for the same period. If it was the intent that the president should hold his office for two years also, the act would doubtless have so provided. The absence of a provision in the statute determining the period of time for which the president shall hold his office we think indicates a contrary intent from that suggested by respondent. In People ex rel. McCann v. Kilbourn, 68 N. Y., 479, the court of appeals has determined that the words “ shall be biennially appointed ” relates to the time when the appointment shall be made and was not intended to fix the term of office of the appointee.

We, therefore, incline to agree with the view of the appellants that the duration of the office held by plaintiff, not being provided for by the constitution or by statute, is held during the pleasure of the common council. See Constitution, art. 10. § 30; People v. Mayor of New York, 5 Barb., 43—46—47; People ex rel. Sims v. The Erie Com., 73 N. Y., 437; People ex rel. Cline v. Robb & Ors., 126 N. Y., 180; 37 St. Rep., 8.

The common council, having the power of appointment, should also have the power of removal. Such a power seems necessary. A president, after his appointment, might become entirely incompetent, insane, unable to perform the duties of his office. It is reasonable that the body that made the appointment should have the right to remove the appointee, at least, for cause, as the defendants are seeking to do in this case.

A majority of the common council can elect a president, and unless prohibited by some statute can generally pass any resolution for the government of the corporation. So, in the absence of any statutory prohibition, we think, a majority, in a proper case, can remove its president as well as appoint him. The acts of 1883 and 1891 require a two-thirds vote to remove a member of the board, but are silent on the subject of the removal of the president. It would seem to follow that the majority of the board of aldermen, who unless prohibited by statute, can enact any resolution, in the absence of any prohibition in that regard, can legally make such remaval.

When the action was commenced, therefore, the aldermen on the charges preferred against the plaintiff were proceeding to investigate the same. They had appointed a committee of five before whom plaintiff appeared with his counsel. Much evidence was taken and the papers show that the committee had returned the evidence to the board without any recommendation. We think the board had the legal right to investigate such charges, and the right if the evidence sustained them, to remove the plaintiff. To what conclusion they will come, and whether they will reach such conclusion by a majority or a two-thirds vote, it is impossible to say. Whether the evidence established the charges is not for us to determine. The question for us to consider is whether the common council had jurisdiction to remove the plaintiff for cause or otherwise. As they have that power, whether new rule 33 was properly adopted or not, we cannot by injunction restrain their action in a matter so within their jurisdiction, and in which they appear to be proceeding in an orderly manner.

Other questions are raised in the case, which we deem unnecessary to discuss.

Our conclusion is that the order should be reversed with costs and disbursements, and the motion for an injunction denied, with costs.

Herrick, J., concurs.  