Second class cities charter (L. 1898, ch. 182), § 26.

fourths of all the members, specifying by items the amount thereof and the department or specific purpose for which the appropriation is made; and no ordinance shall be passed making or authorizing a sale or lease of city real estate or of any franchise belonging to or under the control of the city, except by a vote of three-fourths of all the members of the common council; and in case of the proposed sale of real estate or the proposed sale or proposed lease of a franchise, except as hereinafter provided, the ordinance must provide for a disposition, under proper regulations for the protection of the city, at public auction, after public notice for at least three weeks, to the highest bidder; and a proposed sale or proposed lease thus originated shall not be valid nor take effect, unless the aforesaid notice shall have been given and the aforesaid disposition, namely, a sale at public auction to the highest bidder shall have been had, and unless subsequently approved by a resolution of the board of estimate and apportionment. No such franchise shall be granted or be operated for a period longer than fifty years. The common council may, however, grant to the owner or lessees of an existing franchise, under which operations are being actually carried on, such additional rights or extensions, in the street or streets in which the said franchise now exists, upon such terms as the interests of the city may require, with or without sale and advertisement, as said common council may determine; provided, however, that no such grant shall be operative unless subsequently approved by resolution of the board of estimate and apportionment, and also by the mayor. (Amended by L. 1902, ch. 177, and L. 1904, ch. 454, in effect April 28, 1904.)

$ 26. Temporary and funded debt. The common council is authorized to create temporary and funded debts on the part of the city for the various purposes authorized or contemplated by this act and otherwise by law. The creation of temporary and funded debts is governed by the provisions of the municipal law, being chapter six hundred and eighty-five of the laws of eighteen hundred and ninety-two and the amendments thereto, except as otherwise provided by this act. An ordinance authorizing a funded debt shall, before it can take effect, be submitted to and approved by the board of estimate and apportionment by an affirmative vote of at least four members of the board. Every funded debt shall be issued in such amounts and shall fall due at such times that the principal of the same shall be fully paid in twenty equal annual

Second class cities charter (L. 1898, ch. 182), § 29.

payments, the last of which shall become due at the end of twenty years after its issue. Nor shall any such annual payment, nor all of them, be refunded, but provisions shall be made for their payment in the year in which each shall be due, by insertion of the proper sum in the annual estimates for the year in question. All bonds of the city, for whatever purpose issued, shall be advertised for sale and sold by the comptroller. He shall cause to be published in each of the official papers, daily for not less than five successive days, a notice containing a description of the bonds to be sold, the manner and place of sale, and the time when the same will be sold, which shall be not less than ten days from the first publication of said notice. When bonds are sold by sealed bids, no bid shall be opened until one hour after the time specified has elapsed, and all bids shall be opened in public. The award shall be made to the highest bidder. At any sale of bonds either by auction or by sealed bids, the comptroller may reject all bids and readvertise, if in his opinion the price offered is inadequate. Said bonds shall be signed in the name of the city by the mayor and treasurer and countersigned by the comptroller. But nothing in this section shall apply to the issuance or sale of any bonds of the city of Rochester heretofore or hereafter authorized by any local or special act of the legislature. (Amended by L. 1899, ch. 581; L. 1904, ch. 98, in effect March 18, 1904, and by L. 1904, ch. 616, in effect May 6, 1904.)

$29. Official newspaper; bills for printing. At the first. meeting of the common council after the election of its members, it shall, by a viva voce vote, designate two daily newspapers published in the city to be the official papers of the city. Each member shall be entitled to vote for one of the papers, and the two papers having the highest number of votes shall be the official papers for two years and until others are designated. Such papers shall publish the proceedings and ordinances of the common council and all other matters required by law or by ordinances of the city to be published. In case any of the official papers shall refuse or fail to act or perform as such, the common council may designate another paper in its place. Provided that if any city contains a population of less than ninety thousand inhabitants as appears by the last state enumeration, instead of the proceedings above set forth, the common council shall, within thirty days after the first meeting of its members, meet and designate by viva voce vote the two daily

Second class cities charter (L. 1898, ch. 182), §§ 49, 65. newspapers published in the said city which have the largest circulation and are of opposite political faith, and also the two weekly newspapers published in the said city which have the largest circulation and are of opposite political faith as the official newspapers of the city, for two years and until others are designated. The official newspapers heretofore designated in a city which contains a population of less than ninety thousand inhabitants as aforesaid, shall continue as such until the day herein fixed for the first designation of official newspapers and shall then cease to be the official newspapers unless again designated as herein provided. All bills and accounts for publication in official newspapers, and all city printing and advertising shall be a city charge, and shall be paid by the treasurer upon the audit of the comptroller. (Amended by L. 1899, ch. 581, and L. 1903, ch. 182, in effect April 15, 1903.

§ 49. Appointment of officers. (C. & G. Gen. Laws, p. 684.)

Review of determination.- The removal of a school commissioner of the city of Troy by the mayor "for the good of the department of public instruction of the city of Troy," without charges or a hearing or any proceeding of a judicial nature, cannot be reviewed by a writ of certiorari. The office of this writ is confined to the review of judicial proceedings of inferior bodies. The arbitrary removal of a public officer under a power conferred by statute is not a judicial proceeding. People ex rel. Howe v. Conway, 59 App. Div. 329; 69 N. Y. Supp. 837.

§ 65. Claims against city; lists of bonds issued. The comptroller shall prescribe the form of all claims to be presented against the city, and the form and substance of the affidavit to be appended thereto and sworn to by the claimant. Whenever any person intends to present for payment a claim against the city, he shall prepare and verify it, and then procure the approval as to the form thereof, in writing, of the department or officer whose action gave rise or origin to the claim, and the same shall then be presented to the comptroller for his examination and audit; but this shall not be required as to a claim for a fixed salary, for the principal or interest on a bonded or funded debt, or for the regular or stated compensation of the clerks, teachers, police officers, firemen or appointees in any of the departments, or for work performed or material furnished under contract with the board of contract and supply, or as to claims or bills audited and allowed by the department of public instruction. The comptroller shall, once in every two weeks, cause all claims which have been presented to him for

Second class cities charter (L. 1898, ch. 182), § 65.

audit to be printed and numbered, and copies thereof to be distributed to the mayor, to each member of the common council, to the head of each department and to every taxpayer entitled thereto under section four hundred and seventy-two of this act. He shall take no action upon any claim until five days after such distribution, and when he shall have taken action thereon, he shall cause copies of all claims and his action upon them, with any reason for such action which he may have to give, to be sent to each, the claimant and the common council. If the claimant be dissatisfied with the audit, he may appeal to the board of estimate and apportionment, by serving notice of appeal in writing, upon the comptroller within five days after he receives the comptroller's audit. If the common council, or the mayor, or the city treasurer, or the corporation counsel, or any taxpayer be dissatisfied with such audit, it or he may appeal to the same board, on behalf of the city, in like manner, by serving notice of appeal upon the claimant and the comptroller and the treasurer within ten days after the meeting of the common council at which such claims shall have been repórted by the comptroller. The board of estimate and apportionment shall make rules for the procedure upon the hearing of such appeals, and the decision and audit of that board, after hearing upon the appeal to it, shall be final and conclusive as to the amount of the claim, but if there be no appeal from the original audit, it shall in like manner be final and conclusive. Upon the appeal herein provided for, the treasurer shall take the place of the comptroller as a member of the board. The comptroller and the board of estimate and apportionment upon appeal to it as herein provided, shall have authority to take evidence and examine witnesses in reference to the claim, and for that purpose may issue subpoenas for the attendance of witnesses; and the comptroller and each member of the board of estimate and apportionment is hereby declared to be exofficio a commissioner of deeds. When a claim has been finally audited, it, with the certificate of the comptroller, or in case of appeal, with the certificate of the board of estimate and apportionment endorsed thereon, shall be filed in the office of the treasurer, and remain a record therein. All claims and bills which are audited by any board or department which has power to audit bills, and all warrants and drafts drawn in payment of any claims or bills against the city, must be presented to the comptroller to be countersigned by him before they are paid from the city treasury; and the treasurer shall not pay any such claims, bills, warrants or

Second class cities charter (L. 1898, ch. 182), $$ 98, 109. drafts unless they are countersigned by the comptroller. A list of all bonds issued by the city shall be kept in the comptroller's office where it shall be open to the inspection of any citizen; and when any bonds are paid by the treasurer, they shall be presented by him to the comptroller for cancellation. (Amended by L. 1899, ch, 581, and L. 1903, ch. 529, in effect May 9, 1903.)

§ 98. Authority to fix salaries. (C. & G. Gen. Laws, p. 696.) Salary of deputy comptroller; power of common council. The power of the board of estimate and apportionment to fix the salary of a deputy comptroller under this section, is absolute, and no authority is conferred upon the common council by section 96 of the second class city charter, requiring the submission of the estimate to it, and providing that the common council after a hearing may reject or adopt any "item" therein, since such power is limited to items which are estimated and does not include those which are fixed by or under any other positive provision of statute. Pryor v. City of Rochester, 166 N. Y. 548, mod'g 57 App. Div. 486, 68 N. Y. Supp. 86.

Salary of commissioner of public works. The board of estimate and apportionment may fix absolutely the salary of the commissioner of public works and the common council is not authorized to reduce it. An agreement between the commissioner and mayor by which the commissioner agreed to accept the salary as fixed by the common council will not preclude the commissioner from recovering from the city the difference between the salary as fixed by the board of estimate and apportionment and that as fixed by the common council, nor will such right be affected by his including in his statement of the amount which should be appropriated for his department, the amount of his salary as fixed by the common council, nor by the further fact that he accepted monthly from the city treasurer a check for his salary at the reduced rate which stated on its face that it was in full for his salary for the month. Grant v. City of Rochester, 79 App. Div. 460, 80 N. Y. Supp. 522, affirmed, 175 N. Y. 473.

§ 109. Powers and duties of commissioner of public works; repair and grade of sidewalks. The commissioner, subject to the provisions of this act, the other laws of the state and the ordinances of the common council, has cognizance, direction and control of the construction, alteration, repair, care, cleaning, paving, flagging, lighting and improving streets, ways and sidewalks; of the construction, alteration and repair of all city buildings, and of all docks and bridges belonging to the city; of all public sewers and drains in the city; of the construction, maintenance, extension and repair of the city water-works; and has the care, superintendence and management of all grounds belonging to the city. But in the exercise of his powers and the discharge of his duties, he