
    John Garside, App’lt, v. The City of Cohoes, The Common Council of the City of Cohoes, John N. Haynes et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    1. Municipal corporations— Cohoes—Election op mayor.
    The common council of the city of Cohoes is not the judge of the election of the mayor. Although the power given to it to be the judge of the election of its own members includejwithin its letter the election of mayor, yet it is not within its spirit or intent.
    3. Same—Injunction.
    An injunction to restrain the council from proceeding wi h an investigation as to the election of the mayor should not be grantvd, as such investigation could not be made the basis of any valid resolution to oust the mayor, and if it should refuse to recognize him upon the basis of any invalid resolution, the aid of the court could be obtained.
    Appeal from an order of the special term denying plaintiff’s motion to.continue a preliminary injunction.
    At the charter election held in the city of Cohoes on the second Tuesday of April, 1890, the plaintiff and T. Campbell Collin were candidates for election to the office of mayor. The inspectors of election in their respective wards at the close of the polls made and certified a statement of the votes cast for the candidates for the various city and ward offices and delivered the several statements to the city clerk, as required by § 9 of title 3 of the charter. Chap. 912, Laws 1869, amended by chap. 79, Laws 1872. The city clerk delivered the statements to the common council, which body, as required by § 10 of the same title, at its meeting on the Tuesday following the election and two adjourned meetings, the last being on April 19tli, canvassed the said statements, and. finding therefrom that the plaintiff had received the greatest number of votes for the office of mayor, declared him elected and made and filed proper certificates thereof, whereupon the plaintiff took and filed the oath of office and entered upon its duties. Afterwards and at an adjourned meeting of the common council held on the 21st day of April, 1890, the said T. Campbell Collin presented a petition claiming to have been duly elected mayor, and praying the common council to make the proper investigation and so declare. The common council thereupon, by its resolution, ordered an investigation to be made and appointed a committee of its members to make it. The mayor on the same day vetoed the resolution. The next meeting of the common council was on April 29th. At that meeting the veto was not considered. Meantime the committee of investigation commenced its labors. This action was commenced May 6th. After it was commenced, on the evening of the same day, the common council, by a two-thirds vote, overruled the veto of the mayor.
    The plaintiff alleges in substance that the common council intend practically to oust him from his office and install Collin in his place, and that the investigation ordered is for that purpose. A preliminary injunction was granted, and from the order of the special term refusing to continue it this appeal is taken.
    
      R. A. Parmenter and J. F. Crawford, for app’lt; M. Fíale and Q. H. Fitts, for resp’ts.
   Landoh, J.

The charter of the city of Cohoes provides that “The mayor and aldermen of the city shall constitute the common council thereof.” It also provides that the common council “shall be judge of the election and qualification of its own members.”

If the common council is the judge of the election of the mayor then the execution of the resolution of that body directing such a preliminary investigation as would enable it to render the proper judgment ought not to be enjoined by the court. In such case the mayor’s attempted veto would be invalid, since that power is given him to be used for public purposes, and not for his personal advantage. The law upon grounds of public policy forbids him to act as an officer in a case in which his personal interest is presumed to be paramount to his sense of obligation to public duty. There may be cases in which a rigid insistence upon such a rule in the case of executive officers would result in a suspension of needful governmental acts and in such cases the rule must be relaxed. Foot v. Stiles, 57 N. Y., 399. But here the matter is between the people and the mayor, and it is better that the veto power for once be suspended, than that the mayor should decide the question in his own favor under the prostituting influence of personal interesL People v. Thomas, 33 Barb., 287.

But we do not think the common council is the judge of the election of the mayor. His membership of the common council is one of the least of the attributes of his office. He shall preside at all meetings of the common council when present; shall only vote when there is a tie, but may submit propositions in the common-council.” Charter, § 1, title 4, chap. 79, Laws 1872.

It will thus be seen that his active participation in the meetings of the common council is not strictly enjoined. It is a privilege which he enjoys if his other duties will permit. He is the chief executive officer of the city; has the general powers conferred by law upon mayors; he shall take care that the charter and ordinances of the city are faithfully executed; has the power to veto any ordinance or resolution of the common council; shall execute all deeds, bonds, leases, contracts, licenses and other papers as the act of the city when authorized by the common council; it is his duty to suppress riots; to submit annually a report -to the common council of the financial transactions of the city, charter, title 4; is ex officio member with full voting powers of the board of health, § 1, title 9, the board of education, § 8, title 4, the board of water commissioners, id.; the board of fire commissioners, chap 99, Laws 1879; and the board of police commissioners, chap. 692, Laws 1870.

Though the power given to the common council to be judge of the election of its pion members includes within its letter the election of mayor, yet it is not within its spirit or intent. Following the American system, the executive and legislative departments of the city government are co-ordinEite departments and fitted for the discharge of separate functions, although to some extent the mayor may participate in the legislative department, and the common council may independently of the mayor exercise specified executive and administrative functions.

The mayor is the chief officer in power and dignity. He is vested with the veto power, not absolutely, but suspensively. By his veto he checks for a time the action of the common council, he calls a halt, bids that body to take a fixed period for further consideration, and then to abandon their purpose unless it shall be supported by a vote of two-thirds of their number. He is in theory and should be in fact a conservative counterpoise upon the inconsiderate action of the common council. In this respect he is not one of their own members, but their superior, and it would be a lack of systematic proportion to vest in the aldermen the jurisdiction which the supreme court possesses, to judge of the election of the mayor. He may be a member of the common council, but not one of its own members,” in the sense in which an alderman is.

But it does not follow from these reasons that the injunction prayed for should be granted. The common council has only authorized an investigation. If the views we have expressed are correct, the common council cannot make the investigation the basis of any valid resolution to oust the mayor, and if it should refuse to recognize him upon the basis of any invalid resolution, it will then be timely to seek the aid of the court.

Order affirmed, without costs.

Mayham, J., concurs.

Learned, P. J.

The only question is whether an injunction pending the action should be granted. I think it should not, for the reasons stated by Mr. Justice Edwards in his opinion.

Without expressing any opinion on the question whether the mayor is or is not a member of the common council, or on any of the disputed questions of fight to office, I think this is not a case for an injunction. No such irreparable injury can be caused to the plaintiff by the investigation as would justify this remedy, especially pending the action. I, therefore, concur in the result of the within opinion.  