
    In the Matter of Michael W. Roche, Respondent, v. Frank T. Lamb et al., as Members of the Common Council of the City of Rochester, Appellants, et al.
    Argued May 14, 1970;
    decided June 3, 1970.
    
      
      John Manning Regan for appellants.
    I. The City Council of the City of Rochester may investigate the eligibility of a councilman-elect under the authority of the General City Law and the City Charter. (People ex rel. Krulish v. Fornes, 175 N. Y. 114.) II. That part of the resolution which bars the clerk from accepting Roche’s oath of office is within the plenary power of a city council. (Powell v. McCormack, 395 U. S. 486; People ex rel. Krulish v. Fornes, 79 App. Div. 618; City of New York v. Wilson & Co., 278 N. Y. 86.) III. The City Council of the City of Rochester is a continuing body so that its resolutions continue in force until rescinded, and its powers reside continuously in it despite periodic changes in part of its membership. (People ex rel. Lazarus v. Coleman, 99 App. Div. 88.) TV. The Appellate Division has no judicial power to decree facts without a record in support of those findings. V. The issues are not legally moot. VI. The actions of the courts below violate the doctrine of separation of powers.
    
      John B. McCrory for respondent.
    I. Respondent Roche was a councilman-elect of the incoming council, and it is this council and not the outgoing council which has the power to judge the qualifications of its members. II. The council is not a continuing body for the purpose of organizing and determining the qualification of its members. (People ex rel. Lazarus v. Coleman, 99 App. Div. 88.) III. Section 20, (subd. 21) of the General Municipal Law, empowering a city to investigate matters of concern to the city or its inhabitants, does not enable the outgoing council to usurp the function of the incoming council to judge the qualifications of its members. (Matter of Dairymen's League Co-op. Assn. v. Murtagh, 274 App. Div. 591.) IV. The outgoing City Council had no power to direct the City Clerk to refuse to accept for filing the constitutional oath of office of respondent Boche. (People ex rel. Young v. Straight, 128 N. Y. 545; Ex Parte Health & Roome, 3 Hill 42, 53.) V. The power of a city council to judge the qualifications of its members does not include the power to exclude a member prior to the adjudication of his qualifications. VI. The issues involved in this appeal are now moot and the appeal should be dismissed.
   Per Curiam.

The question presented is whether an outgoing legislative body, whose members were elected on a staggered basis, has power to challenge the residence qualifications of a member-elect of the incoming council.

Appellants, some of whom were members of the tal. Council of the City of Rochester for terms ending Dece_ er 1969 and on that date ceased to be members, when, too, the political complexion of the council changed, assert that power as a corollary to their contention that the election of members for terms expiring in successive years constitutes the council a continuing body. The Rochester City Charter (L. 1907, ch. 755, as amd.; and art. V, as added by Local Laws 1958, No. 8) provides, in section 5-7, that: The council may determine the rules of its own proceedings and is the judge of the election and qualification of its members.” It is the action of the 1969 council with which the case is concerned and, certainly, plaintiff was not one of “ its members ”. Section 5-5 of the Charter provides that the couneilmen shall meet “ on the first business day in each January, following a general municipal election, and organize as the council of the City of Rochester ” and “ [a]t each such meeting ” shall select a mayor and other designated officers. Certainly, the device of staggered elections guarantees continuity in a legislative body, for routine purposes at least; but the quoted provisions of sections 5-5 and 5-7 make it clear that following each annual election the Rochester council and its administrative arm are alike reconstituted and reorganized, and that necessarily incidental to the reorganization of the council is the power explicitly conferred upon it to inspect the credentials and qualifications of its members. (And see 3 McQuillin, Municipal Corporations [3d ed., rev.], § 12.93, p. 406: ‘ * The legislative body to which a member is elected is the tribunal to try [his qualifications], and not the body in office at the time of the election. ”)

The order of the Appellate Division should be affirmed, without costs.

Chief Judge Fuld and Judges Soileppi, Bergan, Breitel, Jasen and Gibson concur in Per Curiam opinion; Judge Burke taking no part.

Order affirmed, without costs.  