
    The People of the State of New York ex rel. James P. Hayes and Others, Respondents, v. Edward F. Brush, as Mayor of the City of Mount Vernon, Appellant.
    Second Department,
    January 5, 1906.
    Mandamus— when writ lies to compel presiding officer of city common • -council to put motion.
    'The mayor of. a city who, vx officio, is the presiding,. officer of the common ' -council,, a body of certain legislative powers empowered to determine the rules of its proceédings, may be compelled by mandamus to put a motion oflered at ■a meeting of that body,, when his duty to put such motion dties.not involve the exercise of any discretion, but is purely ministerial, and whén the refusal is - x not based on a claim that the same was technically out of order, hut óñ the claim-that it contemplated an ultra Vires action by the common council.
    . ■ Appeal by the defendant, Edward F. Brush, as mayor of the city of Mount Vernon, fro$p an order of the Supreme ’ Court, made' at , the Kings County Special Term and entered in the office of the clerk-of the county of Westchester on the 24th day -of November, 1905, granting the relator’s motion for a peremptory writ df- mandamus
    
      
      David Swits, for the appellant.
    
      Arthur M. Johnson, for the respondents.
   Jenks, J.:

The major of the city of Mount Vernon is ex officio the presiding officer of the common council, a body having certain legislative powers,, empowered to determine the rules of its proceedings. (City charter [Laws of 1892, chap. 182], §§ 34, 162; Id. § 158, as amd. by Laws of 1901, chap. 329.) At a meeting ■ of that body the rules of the last common council were adopted, including one that the standing committees shall be appointed by a majority vote. Thereafter it was duly moved that the common council proceed to appoint such committees in accord with that rule. The said presiding officer declared this motion out of order and refused to submit it. The mover then appealed from this .decision, but the presiding officer further refused to put the appeal to vote, stating that the mover had his remedy in the courts. The return shows that the refusal was based upon the proposition that the presiding officer, not the-common council, was empowered by the charter to appoint these standing committees, under the charter, and particularly section 36 thereof, which provides that “ It shall be the duty of every' alderman * * * to act upon committees when there unto appointed by the mayor or common council.”

. I shall not decide upon this appeal where the power to appoint such standing committees is lodged. Mr. Spelling, in his Injunctions and Other Extraordinary Kennedies, writes (2d ed. § 1369): To justify the issuance of the writ does not always or necessarily require that it should finally settle or determine the controversy.” L shall confine n^self to the question whether mandamus lies to this, presiding officer to put the motion that the common council proceed to appoint the standing committees.. The duty of -this'presiding officer to put such motion did not involve the exercise of any discretion, but it was purely ministerial. (Tennant v. Crocker, 85 Mich. 328 ; State ex rel. North & S. Ry. Co. v. Meier, 143 Mo. 448, 449.) And in this proceeding he is before the court simply as such presiding officer. In Marbury v. Madison (1 Cranch, 137, 170) Marshall, Ch. J., says : “ It is not by the office of the person to whom the writ is directed, but the nature of the thing to be doné that the propriety or impropriety of issuing a mandamus is to be .determined.” Peremptory Writ of mandamus often issues to such local bodies having legislative powers and to the officers thereof, to act in matters which- are in their nature ministerial. (Smith Mod. Mun. Corp. § 303, and authorities cited ; State ex rel. North & S. Ry. Co. v. Meier, 72 Mo. App. 618, 620, and also supra ; People ex rel. Wooster v. Maher, 141 N. Y. 330, 336 ; People ex rel. Kelly v. Common Council, 77 id. 510 ; 19 Am. & Eng. Ency. of Law [2d ed.], 867.)

In effect,: tlie proposition of the presiding officer is that he. may refuse to put the motion if he think that it contemplates action which is ultra vires the,body over which he presides.- ■ If he can thus prevent action, lib practically exercises a veto power which; is-not conferred oil him by statute and is not inherent in him as a mere presiding officer. For, in effect, this would make. him,- by virtue of his right to preside, a co-ordinate,or -a .superior branch of .the local legislative body. (See State ex rel. North & S. Ry. Co. v. Meier, 143 Mo. supra.)

I am not unmindful that" the matter went beyond the mere 'refusal to put the question to -the refusal to entertain the appeal.But the return- show-s that the presiding officer declared the motion out of order on the' ground that it contemplated the exercise of powers conferred on him and not on the common council. I think that: this- objection in the imnd of the presiding officer did -not constitute a question of order. Cushing on the -Law and Practice of 'Legislative Assemblies (§ 1463) says: “ It then becomes important, in certain cases, especially when the question arises on the. suggestion of an individual member,.to determine what are questions of order, for the decision of the presiding officer; and, herein, no other ' general fule -can be laid down, than- that a question of order, always, • whatever other effect it "may have, is one which affects the .-present state of the business of the assembly;. but the present effect of a motion,, as to its' subject-matter; or its prospective operation, as a matter of order, on the business of the house; or whether the assembly is dissolved or not "by the lapse of time; is, not' a. question of order.” . ■

.Hone will dispute the general-power.-pf a presiding-officer,, at the objection of a member of the body, or sua, sjponte, to pass upon the question of the order of a motion under the tules of the body, subject to its review upon appeal from his decision, but in my view of this case this presiding officer could not declare the motion out of order and refuse to put it to a vote on the ground that it contemplated action ultra vires the body. ' •

I advise that that part of the order, which grants a peremptory writ to the presiding officer to put a motion duly made for the appointment of the standing committees be affirmed, without costs of this appeal.

Hirschberg, P. J., Woodward, Hooker and G-aynor, JJ., concurred.

Order, so far as it grants a peremptory writ of mandamus to Edward F. Brush, as mayor and as presiding officer of the common council of the city of Mount Vernon, at any meeting of said common council at which he acts as presiding officer, to put any motion that allows and permits the said common council by its majority vote to appoint its standing committees,-affirmed, without costs.  