
    The People ex rel. Benjamin W. Wooster, Resp’t, v. Edward A. Maher, Mayor, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 2, 1892.)
    
    1. Municipal corporations — Albany — Obstructions in streets — Mandamus.
    The common council of the city of Albany passed an ordinance requesting the mayor to direct the city engineer to serve notice on the owners of certain premises to remove a portico which encroached on the street, or in case of neglect or refusal to do so, to causejts removal. Held, under the city charter, upon the adoption of such ordinance, it was no longer discretionary with the mayor to give such direction, but became a positive legal executive duty, which could be compelled by mandamus.
    
    2. Same—Expiration op term op mayor.
    The fact that the term of the mayor in office when the proceeding-commenced has expired is no defense to the proceeding for mandamus in such a case, as the proceeding may be regarded as brought against the mayor as such, and not against the incumbent of that office individually, and hence the mandamus when granted will operate upon the office in the possession of the present incumbent.
    Appeal from a final order granting a peremptory mandamus, and the judgment in favor of the relator entered thereon.
    The appeal brings up for review the order granting an alternative writ, and the alternative writ, together with the verdict, report and decision thereon, and the final order directing a peremptory writ, and the judgment for costs.
    
      Hale & Bulkeley (Matthew Hale, of counsel), for app’lt; Franklin M. Danaher, for resp’t.
   Mayhan, P. J.

On the petition of the relator a writ of alternative mandamus was issued reciting that the defendant being mayor of the city of Albany, and having the power and duty in the premises, has unjustly refused, after due demand made upon him, to cause a certain obstruction in North Pearl street to be removed pursuant to § 10 of title 13 of chapter 298 of the Laws of 1883, as amended by chapter 398 of the Laws of 1888, and requiring the defendant, on the receipt of the writ, to send written directions to the city engineer of the city of Albany to send written notice to the owner, or person who erected, or who is now maintaining, the porch or building in question, within ten days, to remove said porch or building under and pursuant to the provisions of the acts above referred to, or show cause why the command of said writ ought not to be obeyed.

The defendant answered such alternative writ and admits that the Albany Female Academy, a domestic corporation, has erected and now maintains a building, porch or portico, which stands upon and projects thirteen feet easterly from the front of the building of the store adjoining thereto occupied by the relator, but as to whether such erection and maintenance by the said Albany Female Academy is unlawful and as to whether the said porch or portico projects thirteen feet beyond the range of the west side of North Pearl street as laid out, and whether the same is a public nuisance, or whether the same causes loss, inconvenience or damage to the relator in his business, the defendant denies any knowledge sufficient to form a belief.

The answer also alleges that the Female Academy has maintained this building and portico as described in the alternative writ of mandamus for more than forty years in its present condition and has as against the city of Albany acquired by prescription and long user a right to maintain such building and portico in its present location.

The defendant by his answer admits that he is mayor of the city of Albany, but denies that he has the power and duty of giving directions to the city engineer as stated in the alternative writ of mandamus. The issue joined by the alternative writ and answer was tried by the court, a jury having been waived by the parties, and the court ordered a peremptory writ of mandamus to issue and from the judgment and order the defendant appeals. The case discloses that before the trial the official term of Edward A. Maher as mayor of the city of Albany had expired by its own limitation, and his successor had been chosen and qualified, but had not by any order of court been substituted as defendant in this action. The appellant insists that the statute under which the relator prosecuted this action does not justify the court in granting a writ of mandamus against the mayor to compel him to give a written notice to the city engineer under § 10 of title 18 of chap. 398 of the Laws of 1888. That section is as follows. “ If any building now' erected or hereafter to be erected shall stand upon or project beyond the range of the street, the city engineer shall, upon receipt of written directions from the mayor, send written notice thereof to the owner, or person erecting or maintaining the same, who shall within ten days remove said building, etc.”

It is insisted that this statute imposes no absolute duty upon the mayor, and that it is a matter resting in the discretion of that officer whether or not he will require, by written direction from him, the engineer to give the written notice to the owner, or person erecting or maintaining an encroachment beyond the line of the street, and that there is no power in the court to compel the mayor to give such direction, or to set in motion the exercise of that discretion on the part of the mayor, and that the mandatory power of the court cannot be invoked to compel the performance of a discretionary act; and that proposition seems in the abstract, to be sound both upon principle and authority.

If the court can control the exercise of a purely discretionary pow'er vested in an executive or administrative officer, then such power would cease to be discretionary in the officer, and would vest in the court. The boundary line of discretion must be passed, and the domain of clear, legal official duty of such officer must be' reached, before the court can exercise its coercive power to compel a ministerial, executive or administrative officer to act.

In People ex rel. Demarest v. Fairchild, Att’y Gen., 67 N. Y., 336, the relator sought by mandamus to compel the Attorney General to bring an action in the nature of a quo warranta to test the title to an office. Allen, J., in delivering the opinion of the court, says: “ The control over the action, and the right to bring it, is with the Attorney General, and the court cannot sit in judgment upon the exercise of his discretion, or coerce his action.” So, also, in People ex rel. Hammond v. Leonard, Overseer, 74 N. Y., 443, Church, Ch. J., says: “While a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, it is well settled that it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion.”

But the respondent, in answer to this contention of the appellant, insists that the duty of the mayor was not discretionary, but peremptory; a duty imposed upon him as the chief executive officer of the city by statute, and that by not giving the direction to the engineer referred to in § 10 of title 13 of chapter 398 of the Laws of 1888, above referred to, he failed in the performance of this statutory requirement and duty, and thereby subjected himself to the coercive mandate of this court.

The statute relied upon by the relator in support of this contention is § 9 of title 4 of chapter 298 of the Laws of 1883, which in part defines the powers and duties of the mayor of the city of Albany. In defining the powers and duties of the mayor, that section provides that, “ He shall be vigilant and active in causing ordinances of the city and laws of the state to be executed and enforced, and the affairs of the city to be well administered.”

This section also gives the mayor the right to exercise a sort of supervision over other and subordinate officers, and to suspend them for non- perform anee of official duties. Section 17, of the same title, provides that: “He shall perform all such duties as may be prescribed for him by the city ordinance and the laws of the state, and be responsible for the good and efficient government of the city.”

Section 14, of the same title, makes the common council commissioners of highways with power to prevent and remove encroachments upon the public streets, and by § 9 of title 3 of the same act, an ordinance of the common council passed in pursuance of the charter becomes binding in ten days after its passage without the signature of the mayor. On the 21st of January, 1889, the common council of the city of Albany referred to the law department of that body a resolution as follows: •

Resolved, That the mayor be, and he hereby is, requested to direct the city engineer to send a written notice to the trustees of the Albany Female Academy to remove the porch of the building owned by them, which projects beyond the range of North Pearl street, on the west side thereof, between Maiden lane and Steuben streets, and in case of their neglect or refusal to remove the same, to cause such removal to be made pursuant to § 10 of title 13 of chapter 298 of the Laws of 1883, as amended by chapter 398 of the Laws of 1888.”

The law committee of the board of common council reported favorably on such resolution and recommended its passage, and the 15th day of April, 1889, the common council duly adopted such resolution.

While it is true that § 10 of title 13 of chapter 298 of the Laws of 1883, as amended by chapter 398 of the Laws of 1888, does not in terms make the action of the mayor in giving the written direction to the city engineer to depend upon the action of the common council of the city, yet when the common council of the city under their authority as commissioners of highways, coupled with their legislative authority to pass a city ordinance, do give such direction which by the lapse of ten days is permitted to become an ordinance, it would seem to follow that the mayor, under the provisions of § 17 of title 4 of chapter 298 of the Laws' of 1883, which provides “ that he shall perform all such duties as may be prescribed for him by the city ordinance and laws of the state,” would be' bound to give such order to the engineer.

The ordinance having been adopted, it was no longer a discretionary power, to be exercised or not according to the volition of the mayor, but became a positive legal executive duty, which may be compelled by mandamus.

The appellant also insists that the peremptory writ should not have been granted, for the reason that at the time of granting the same the official term of Edward A. Maher as mayor had expired and his successor had assumed the duties of the office, and that the appellant as mayor was functus officio and powerless to obey the mandate of the writ. Unless this writ runs against the office of mayor and not the individual disconnected from the office, this objection is sound and fatal to these proceedings. Clearly a peremptory mandamus could not compel Edward A. Maher after the expiration of his official term as mayor to do an act that could by law be done only by the mayor, and direction from him to the engineer would be unofficial and wholly impotent to put the engineer in motion and compel him to serve the written notice on.the owner required by the statute. Mo order of this court could galvanize into life the official functions of mayor in the defendant, Maher; once out of office he is powerless to resume his official functions or perform official duties, and the court has no power to rehabilitate him in office or reinvest him with official power. This must be so upon principle and has been frequently so held upon authority.

In People ex rel. Gaige v. Reardon, 49 Hun, 425; 22 St. Rep., 629, the court held: “ The board of inspectors (of election) upon making and filing its certificate had fully discharged its official duty and therefore became functus officio as a board. A writ directed to them would be of no effect since they could not legally again convene as a body and undo an act done at a prior time and when in the proper discharge of official duty.”

In People ex rel. Bailey v. The Supervisors of Greene County, 12 Barb., 222, Harris, J., in discússing the power of the court to compel by mandamus the performance of an official act when the body or officer sought to be compelled to act is out of office, uses this language: “But when the board having performed the office for which it was constituted, whether legally or not, has been dissolved it is incapable of being reanimated. Any act it should attempt to perform, even though it be done in obedience to the mandate of this court, would be extra official and nugatory.” In People ex rel. Stevens v. Hayt, 66 N. Y., 607, the court of appeals in discussing the power of the court to grant a writ of mandamus and its effect upon the board or officer sought to be commanded, uses this language and adopts this rule: “ First, that to entitle a relator to the writ, he must show himself legally and equitably entitled to some right properly the subject of the writ, and that it is legally demandadle from the person to whom the writ was directed; also that such person still has it in his power to perform that duty.”

Further citations of authority upon this subject are unnecessary, and it remains for us to examine whether this writ can be held to have been directed to the the Mayor of Albany or to Edward A. Maher. If to the latter then, as we have seen, the writ cannot be upheld. If to the former, then change of the incumbency of the office would leave its mandate to operate on the incumbent as mayor, whoever he may be, and the writ so far as the question now under consideration can be upheld.

By § 1 of title 4 of chap. 298 of the Laws of 1883, the mayor is made the chief executive officer of the city of Albany, and §§ 6, 7 and 8 of that title provide for the succession of the executive functions, in case pf death, removal from office, or the expiration of the term of the incumbent of that office.

From these provisions it appears that official functions vested in the mayor are continuous, and do not terminate with the end of the official term of any incumbent.

If, therefore, this action can be held to have been prosecuted against the mayor a change in the incumbency of that office would not terminate the action, or the effect of the writ, but the same would continue to operate upon the office and the duties and obligations imposed by it would attach to the incoming incumbent and acting mayor.

In determining whether the writ operates upon the office through the incumbent, or only on the incumbent it is important to consider whether the duty enjoined would be incumbent on the successor in office. If it would, then it would seem that it is the performance of the official duty that is commanded to be performed without regard to the name of the incumbent, and in such case the writ may proceed against the office by name without the name of the incumbent appearing in the proceedings.

In the case of the People ex rel. Shaut v. Champion et al., Commissioners of Highways, 16 Johns., 61, Spencer, J., in delivering the opinion of the court, says: “ It is urged that non constat the commissioners to whom the alternative mandamus was directed are now in office; and that if they are not the peremptory mandamus will be unavailing. It is not necessary in the first instance to issue the writ to any persons by name; for this is not a proceeding against any individual until an attachment issues. The relator might omit the names and proceed against the commissioners of the town, whoever they may be, and if as commissioners they disobeyed our mandate they would incur 'personal responsibility.”

In the case of the People ex rel. Case v. Collins et al., Commis sioners of Highways, 19 Wend., 56, it was held that a mandamus to the defendants, commissioners of highways, to open and work a road, will be granted without regard to the near approach of the expiration of their offices. When the terms of office expire their successors must obey the command of the writ, and the court says: “ The obligation sought to be enforced devolves on no particular set of commissioners and no right is in question which will expire with the year. The duty is perpetual upon the present commissioners of Smyrna and their successors, and the peremptory writ may be directed to, and enforced upon the commissioners generally. To say otherwise would be to sacrifice the substance for the form.” These cases seem to have been approved and followed not only in this state, but in many of the sister states and in the federal courts.

In the People ex rel. Scott v. The Supervisors of Chenango County, 4 Seld., 317, it was held that when the supervisors neglected to perform the duty of levying ■ military tax required by statute, a mandamus would lie to compel them to reconvene and perform that duty, and Willard, J., in pronouncing the opinion of the court, uses this language: “ Their neglect to perform their duty at the time required cannot nullify the statute. They or their successors were bound to do what was required, and on failure to perform it may be compelled by mandamus.”

In Thompson v. The United States, 103 U. S., 480, the court says: But we cannot accede to the proposition that proceedings in mandamus abate by the expiration of office of the defendant, where, as in this case, there is a continuing duty irrespective of the incumbent and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached. The contrary has been held on very high authority,” citing 16 Johns., 61, and 19 Wend., 56, supra. But it is urged that in the cases above cited some public or municipal duty’ was involved and not one personal to the officer, and that in that particular those cases are distinguishable from the one at bar. In the leading cases to which reference has been made, the commissioners of highways refused to carry out an order made by commissioners on appeal directing them to cause the highway to be opened and worked. Without obedience to that order by the commissioners the alleged public improvement could not be completed.

In the case at bar the common council by an ordinance requested the mayor to direct the engineer to notify the owners t© remove the alleged encroaching portico. Without the giving of such notice, the commissioners or common council were under the law powerless to make the alleged public improvement, in removing this portico. Both are claimed to be public duties, which cannot be accomplished but by the active operation of the public officers charged with the performance of the alleged duty. The alleged duties in both cases were continuous, and could be performed by the then incumbents of the office, or by their successors in office.

Nor do I see how the present incumbent can be injured or damaged by these proceedings being continued against him as the present incumbent of the office into which he had been inducted as the successor of Mayor Maher, or how he can claim immunity from the operation of this writ, by reason of any assertion of want of notice or knowledge of these proceedings. The new incumbent of an office assumes the duties charged with knowledge of the official acts of his predecessor and must take up and complete the unfinished business of his predecessor, whether they be official financial obligations of the municipality or official] legal controversies in which it may be involved.

We are, therefore, inclined to the opinion that, under the authorities, the mayor of Albany may be regarded as before the court in these proceedings, and that the peremptory mandamus must be regarded as operating upon the office in the possession of the present incumbent. We have examined the various questions raised by the appellant upon the admission and rejection of evidence on the trial, and the exceptions taken by the defendant to findings and refusals to find by the learned court, ancj find no error for which this writ should be quashed or judgment reversed.

Order and writ of mandamus confirmed, but without costs to either party as against the other of this appeal.

Putnam, J., concurs; Herrick, J., not acting.  