
    William F. Smith, Plaintiff, v. The City of Buffalo et al., Defendants. Charles Kuhn, Plaintiff, v. Erastus C. Knight, as Mayor of the City of Buffalo, et al., Defendants.
    (Supreme Court, Erie Special Term,
    June, 1906.)
    Municipal corporations — Remedies of taxpayers — Right of taxpayer to interfere in corporate management — Preliminary injunction.
    Injunction — Preliminary injunction — Dissolution, etc.— Grounds for continuing.
    In an action brought by a taxpayer of the city of Buffalo to have adjudged illegal a proposed franchise -to a street railway company to construct a railroad in streets a part of which constitute park approaches, where a motion is made that a preliminary injunction against the park board be continued during the pend-ency of the action, it appearing that the board failed to give public notice of the application for the franchise as required by section 92 of the Railroad Act (L. 1890, ch. 565) and is about to give its consent to the construction of the railroad without having given such notice, the injunction against the board will be continued until after such notice shall have been given by the park board as required by law.
    The, common council having passed the proposed franchise, the exercise of the mayor’s executive function of approving or vetoing such action should not be anticipated or interfered with upon a general statement that he threatens to approve the action of the common council without giving reasons for such surmise and an injunction against him should be dissolved.
    Motion to dissolve preliminary injunctions obtained by plaintiffs against defendants in taxpayers’ actions.
    Lewis Stockton, Frank 0. Ferguson and William B. Wright, Jr., for plaintiffs.
    . Porter ¡Norton, for International ¡Railway Company.
    Louis E. Desbecker, Corporation Counsel of city of Buffalo, for Park Board.
   Marcus, J.

These actions are brought by two taxpayers of the city of Buffalo to obtain judgments declaring illegal a proposed grant or franchise to the International Railway Company to construct a double-track street railroad in Fillmore avenue and in other streets, a portion of which constitute park approaches, and to restrain the mayor and the park commissioners of the city from making, signing, approving or authorizing, or in any way executing such proposed grant or franchise.

A preliminary injunction was granted in each of the above actions, after the common council had passed the proposed franchise and before the mayor or park board had acted thereon, restraining the mayor and the members of the park board from taking further action thereon.

The preliminary injunction granted in the Smith case required the defendants to show cause, at a Special Term of the court, why said preliminary injunction should not he continued during the pendency of this action.

The preliminary injunction in the Kuhn case contained no return order to show cause.

Upon the hearing of this motion, I came to the conclusion that the preliminary injunction should be dissolved as against the mayor of the city, in any event, and an order was made dissolving the same in both actions as against the mayor.

As the mayor is given the power to approve or veto all acts of the common council, it seems to me- that the exercise of this executive function should not be anticipated nor interfered with. Moreover, the court should not assume, from a general statement in the complaint to the effect that the mayor threatens to approve the action of the common council, without giving reasons for such surmise, that he would approve it, especially if it was illegal. Even if the mayor should approve such action when it was illegal in the steps preceding its adoption by the council, his ap- ’ proval would not give it validity; and hoth of these taxpayers’ actions can still proceed to final judgment and the franchises can be declared illegal and void. Should the ■ railroad company, in the meantime, assume to act under its franchise, if it is void, it would do so at its peril and could readily be evicted from possession of all streets that it may occupy. Further, the action of the common council has properly been described as embryonic, until approved by the mayor, and courts should await the action of the mayor thereon before interfering with its enforcement. Dailey v. City of New Haven, 60 Conn. 314; New Orleans R. Co. v. Mayor, 39 La. Ann. 127.

The motions for dissolution of the injunctions in so far as they restrained the park board were adjourned for further hearing and consideration, as presenting a somewhat different question, in view of the fact that the action of the park board is final, without approval by the mayor or any other executive officer.

The principal point of alleged illegality, as against the park board, lies in the fact that that board failed to give public notice of the application of the railway company for a franchise and of the time and place when it would be first considered, and failed to publish the same in any newspaper whatsoever, as required by section 92 of the Railroad Act, and that said board is about to give its consent to the construction of the railway in question without public notice. Section 92 of the Railroad Act provides that, before the local authorities shall act upon an application for their consent to construct a street railroad, they shall give public notice thereof and of the time and place when it will first be considered by publishing such notice for at least fourteen days in two daily newspapers.

Under various provisions of the Railroad Law of the State and of the charter of the city of Buffalo, it is perhaps a debatable question whether the park board is required to give such public notice, and whether such provision, requiring notice, does not relate solely to the common council which did give proper notice of the application pending before it for this franchise.

It seems to me the interest of all parties concerned will be best subserved by so modifying the injunction as to have this notice given, so that this question affecting the validity of the grant may be eliminated. The delay thereby involved, of fourteen days, cannot seriously embarrass any of the parties to the action. I have come to this conclusion from a brief consideration of the law applicable to the present situation.

Section 91 of the Railroad Law provides that, if in any city the exclusive control of any street or avenue which is to be used or occupied By any such railroad, extension or branch is vested in any other authority than the common council, the consent of such other authority shall also be first obtained.

Under section 310 of the charter of the city of Buffalo, the park board has sole and exclusive power over the construction and maintenance of park roads and park approaches; and under section 314 of the charter the park board has power, upon certain stated terms, to grant to any street railroad company the privilege of laying down and operating a railway in park approaches.

It is claimed by the railway company and park board that, under sections 91 and 92 of the Bailroad Law, the local authorities referred to, who are required to give and publish public notice of the time when they will consider such an application, are only the common council of the city of Buffalo; while the. plaintiffs claim that such requirement must also relate to- the park board. It seems to me that there is much force in the plaintiffs’ contention'; for, if the notice so given by the common council should be deemed sufficient, it would amount to holding that the common council had some jurisdiction over the park avenues and approaches, which is clearly denied to the council by the charter. If the park board has such exclusive control and its consent is necessary to the laying of tracks in its streets and approaches, it would seem reasonable that it should publish the notice required before giving its consent, in view of section .91 of the Bailroad Law, already quoted, providing that, where the exclusive control of such' street is vested in another authority than the common council, the consent of such other authority must also be obtained. The publication of such a notice, if required, is clearly an administrative and probably a jurisdictional act and a condition precedent to the granting of the park board’s consent.

‘ I, therefore, think that, under the Taxpayers’ Act, the court can exercise its restraining power to prevent the giving of the consent by the park board, where a statutory preliminary step has not been taken, or that at- least the court has power, in its discretion; to grant a preliminary injunction under such circumstances. As" a practical proposition it would also seem reasonable to conclude that neither the city, nor the citizens of Buffalo, nor the railway company should wish to take chances on the validity of so important a grant, where the objection can be avoided with so little trouble and delay.

I have, therefore, concluded that the injunctions against the park board, in both actions, should be so modified as to restrain the park hoard from taking any action, or any further action, toward granting its consent to the International Railway Company to construct this railway in the streets, avenues or approaches of the park, until after it shall have published public notice thereof, and of the time and place when the application of said railway company will first be considered by said park board — such notice to be published daily, for at least fourteen days, in two of the daily newspapers of Buffalo — and that said injunctions be, in all other respects, vacated.

Ordered accordingly.  