
    The State of New-York vs. The City of Buffalo.
    The commissary general has no authority to loan the arms of the state, or to • make any other disposition of them save such as is specially authorized by statute.
    Nor can the commissary general appoint a deputy ; and hence, one doting under him, as the keeper of an arsenal, is to be regarded as his mere private agent or servant and not as a public officer.
    In general, no officer can appoint a deputy, unless specially authorized so to do; particularly where the duties of the station involve trust, confidence and skill.
    Where arms belonging to the state were loaned to a city by the keeper of an arsenal, who took a bond to.the state conditioned for their return on demand; held, that though the loan was unauthorized, the state might waive the tort and have a remedy upon the bond.
    
      Semble, that even had the loan been made by the commissary general himself, instead of his agent, the state would have had a right to affirm the transaction and sue upon the bond, or to disaffirm it and proceed directly for the property.
    The common council of the city of Buffalo passed .a' resolution empowering the acting mayor to take such measures as he might deem necessary for the safety and defence of the city, in order to guard against any incendiary attempts upon the persons, &c. of the citizens, and to bind the city by bond or otherwise, to procure arms, &c.: Held, that the common council were authorized, under the city charter and the general powers conferred upon all corporations, to pass the resolution, and that the acts of the mayor in procuring arms and giving a bond for their return were binding upon the city.
    Where the charter of a city declared that no alderman should be appointed to the office of mayor, but by an amendment of the charter it was provided that the presiding officer of the common council during a vacancy in the office of mayor should possess all the powers of that officer ; held, that an alderman who was appointed chairman of the common council when the mayoralty was vacant, might legally perform the duties of that office.
    Debt, tried at the Genesee circuit in September, 1840, before Dayton, C. Judge. The action was upon a bond executed to the State of New-York in the penalty of $6000, dated December 29th, 1837, signed by P. A. Barker, acting mayor of the city of Buffalo, and attested by the clerk under the corporate seal. The bond contained the following recitals and condition : “ Whereas, by a resolution passed by the common council of said city of Buffalo, at a meeting held the 29th day of December, 1837, it was resolved that the acting mayor be, and he is hereby authorized to take such measures as he may deem necessary for the safety and defence of the city, and to guard against any incendiary or other illegal attempts against the persons and property of our citizens; and that one. thousand dollars be placed at his disposal for the purpose specified in this resolution; and that he shall have power to bind the city by bond or otherwise, to procure arms or to obtain any thing by him deemed necessary to carry this resolution into effect: And whereas the said acting mayor considers it necessary that two hundred stands of arms should be obtained, for the defence and preservation of said city, from the state arsenal: Now therefore, the condition of this bond is such, that if the said arms be returned to the arsenal aforesaid, when the city shall be called upon to return them, then the obligation to be void; otherwise to remain in full force and virtue.” The breach of condition assigned was, that the arms had not been returned. The defendants pleaded non est factum, and gave a notice of special matter embracing the defence which was interposed at the trial. On the trial, the execution of the bond was proved: it also appeared that the resolution recited in the bond was duly passed by the common council of Buffalo; and that ■ Barker, an alderman, was appointed chairman of the board of common council at the meeting at which the resolution was passed, the mayor having resigned previous to that time. Evidence was then given of the delivery of the 200 stands of arms to the agent of the defendants, by one Follett, the keeper of the state arsenal at Batavia, and that the guns were worth from $8 to $10 each. The plaintiffs here rested, and the counsel for the defendants moved for a nonsuit upon the following among other grounds: 1. That the keeper of.the arsenal had no right to loan the guns or take the bond in question; that in doing so he was guilty of a breach of duty and a violation of law, and that therefore the act could not be made the foundation of an action; that the court ought not to presume, from the mere fact that a suit had been commenced upon the bond, that the act of loaning the guns had been adopted by the state ; 2. That by the charter of Buffalo no power was given to the mayor or common council to bind the city by bond, and that the corporation had no powers but what were specifically granted or necessarily implied in order to carry into effect such as were expressly conferred; and 3. That Barker, being an alderman, was ineligible to the office of mayor," and could not act as such; and that therefore his acts were not binding upon the corporation. The motion for a nonsuit was denied, and the defendants’ counsel excepted. The defendants then proved that 112 of the guns loaned were returned to the arsenal in the spring of 1839, and some two or three witnesses testified that the guns were worth little or nothing— from $1 to $3 each. Several exceptions were taken to the rejection of evidence offered by the defendant, but they were considered by the court to be so clearly untenable that it is not deemed necessary to present them. The jury found a verdict for the plaintiffs of $6000 debt, and assessed the damages at $269,63. The defendants now moved for a new trial upon a bill of exceptions.
    
      M. Fillmore, for the defendants.
    
      M. Taggart, for the plaintiffs.
   By the Court,

Nelson, Ch. J.

The statute (1. R. S. 315, 9 8, 2d ed.) provides that the commissary general shall keep in good repair, the arsenals and magazines of the state, and attend to the due preservation, safe-keeping, &c. of arms, accoutrements, ammunition, &c.; and shall at all times have the control and disposition of the same for that purpose. By the next two sections he is authorized, under certain limitations, to sell out of the arsenals to any citizen of this state belonging to the militia, a musket and bayonet, with the necessary equipments ; and generally, to sell all damaged powder, arms and munitions of war, deemed unsuitable for the use of the state. Beyond this, he has no authority to sell, or otherwise dispose of the public property in his custody.

Conceding then, that the loan of the arms to the plaintiffs was made without authority and in violation of the law, does this make the bond given to the state for their return, illegal and void 1 All contracts which have for their object any thing repugnant to justice, or against the general policy of the common law, or contrary to the provisions of any statute, are void. Ex turpi contractu, actio non oritur.

In this case it will be seen, that the act of loaning the arms was not against any positive statute. The ground of defence must, therefore, rest mainly upon the violation of official duty by the commissary general, he having no right by law to do the act. Thei’e is nothing on the face of the instrument, that necessarily leads to this result. It imports, that arms have been procured for temporary use, from the state, by the authorities of the city, for the defence and preservation of the latter; and contains a stipulation for replacing them in the public arsenal, when demanded. If, therefore, there be any authority in any department of the government thus to accommodate the plaintiffs, we are bound to assume the act of loaning to have been lawful, unless we go out of the bond, for the purpose of ascertaining the true state of the transaction, which, I admit, is always competent when illegality of consideration is urged in defence. On going out of the bond then, we find that the arms were not loaned by the commissary general, but by the agent who had the immediate charge of the property, and who is not a public officer. The statute makes no provision for the appointment of deputies by the commissary general; and as a general rule, that authority does not exist unless specially conferred; (1 Tomlins' Law Diet. 542, tit. Deputy ;) particularly not, where the duties of the office involve trust, skill and confidence. (5 Com. Dig. tit. Officer, D. 2; 5 Bac. Abr. tit. Offices and Of. ficers, L; Earl of Shrevjsbury's case, 9 Co. 48, 49.) Even if the act of loaning by the commissary general himself, therefore, would have been such a flagrant, violation of law, and of his official oath, as not to have afforded ground for a valid contract, upon the principle that ex dola malo ñon oritur actio (in regard to which point we give no opinion) the rule has no application here; for in this case the loan was but the' act of a private individual, dealing with the property of another without authority, and taking a bond to the owner, by way of security for its re-delivery. There can be no doubt, in such a case, that the real owner may waive the tort committed upon the property, and seek a remedy upon the bond.

Independently of this view, if it be conceded that the loan was made by the commissary general, inasmuch as there is no statute prohibiting the act, I very much doubt if it can be regarded' as belonging to that species of illegality which would necessarily avoid the contract, and prevent the state from recovering upon it. The act is a clear excess of authority, but not a violation of any posh tive law. Being clearly beyond the scope of the powers of the officer, the state might have avoided the contract and sued directly for the property; but, if only voidable, she may affirm the act, and take her remedy accordingly. The loan, under the circumstances, might well, I think, be regarded simply in the light of an excess of authority, rather than a criminal and corrupt violation of law and duty. (Nobree v. Napier, 2 Bing. N. C. 796; Chitty on Cont. 657, 3d Bond, ed.) But it is unnecessary to express any definitive opinion upon this point.

It is said, that the common, council of the city had no power to authorize their agents to bind the corporation by bond in this case. The general power conferred upon all corporations in the state, includes that of purchasing and holding such personal estate as the purposes of the body shall require; (1 R. S. 602, § 1, sub. 4, 2d ed.;) and by the charter of the city of Buffalo, (Sess. Laws 1832, p. 303, § 31,) the common council have the control of all such property belonging to the corporation. They have power to make and establish rules and by-laws for the purpose, among other things, of preventing any riot, noise, disturbance, or disorderly assemblages; (id. p. 304, § 31, sub. 7;) and also possess a general power to make all such ordinances, by-laws, and police regulations, not contrary to the laws of the state, for the good government of the city, &c. and as may be necessary to carry into effect the powers conferred by the charter. (Id. p. 306, § 33.) It cannot, I think, be doubted that abundant authority may be found in the above provisions, to justify the common council in passing the resolution of the 29th December, 1837, by which they authorized the acting mayor to take such measures as he might deem necessary for the safety and defence of the city, with a view of guarding against any incendiary or other attempts upon the persons and property of the citizens, and to bind the city by bond or otherwise, to procure arms or obtain any thing by him deemed necessary to carry the resolution into effect. These arms, it appears, were deemed essential at the time, by the public authorities of Buffalo, to preserve the peace and security of the city, and to protect the lives and property of its inhabitants from incendiary and predatory attacks; or,, in the language of the charter, “to prevent disturbances and disorderly assemblages, and maintain the good government of the city.”

It is also urged that Barker,"who signed the bond as acting mayor, was ineligible to that office, and disabled from acting as such at the time, for the reason that the charter prohibits the appointment of an alderman to that office. (JSess. Laws 1832, p. 301, § 20.) A sufficient answer to this argument is, that the act to amend the charter, (iSess. L. of 1835, p. 94, § 1,) provides, that the presiding officer' of the common council, during a vacancy in the office of mayor, &c. shall possess all the powers, and perform ail the duties of that office. He was not appointed mayor, but acted by virtue of the powers 'thus conferred upon him as presiding officer of the board.

I am. therefore of opinion that the judge properly refused to nonsuit the plaintiffs, and that the motion for a new trial should be denied.

New trial denied.  