People ex rel. Raymond v. Connolly.

THE PEOPLE, ex rel. RAYMOND, against CONNOLLY.

Supreme Court, First District; Special Term, July, 1868.

SETTLEMENT OF ACCOUNTS AGAINST THE CITY OF NEW NEW YORK.-MANDATORY STATUTES.

The act of 1868 (2 Laws of 1868, 2022, ch. 853, § 7,)—which declares that the comptroller of the city of New York "is authorized, in order to save expense of litigation and interest," to adjust any claim on which suit is brought against the city, "and when adjusted, to duly provide for its payment,”—is mandatory in respect to providing for payment after such an adjustment of the amount has been had.

A mandamus may issue to compel the comptroller to provide for payment of a claim which he has adjusted under the act.

Motion for a mandamus.

This proceeding was taken by Henry J. Raymond and George Jones, proprietors of the New York Daily Times newspaper, against Richard B. Connolly, comptroller of the city of New York, to recover for advertising to the amount of $25,064.92, done for the corporation of the city of New York, between January 1, 1864 and June 1, 1868. And the plaintiff's now moved for the issuing of a mandamus to the said comptroller, commanding him to adjust the plaintiff's claim and provide for the payment of the same, pursuant to the provisions of section 7 of the act of June 3, 1868, ch. 853. In support of this motion the affidavit of George Jones, one of the plaintiffs, was read, which stated that the said claim was duly presented June 1, 1868, to the comptroller for adjustment; that upon the expiration of twenty days a second demand was made upon him for adjustment; and that, the comptroller neglecting such payment, suit was commenced by service of process upon him, against the mayor, aldermen and commonalty of the city of New York. It also appeared that,

People ex rel. Raymond v. Connolly.

subsequent to the commencement of said suit, the comptroller, upon application, admitted the legality and correctness of the account, and adjusted the amount, but refused to pay the same or provide for such payment.

The provision of the act of June 3, 1868, ch. 853, which was relied upon by the plaintiff (the act to make provision for the government of the city of New York, 2 Laws of 1868, 2022, § 7, latter clause), is as follows:

"Whenever any claim is put into suit against the said mayor, aldermen and commonalty, the said comptroller is authorized, in order to save expense of litigation and interest arising on said claim, to adjust the same, and when adjusted, to duly provide for its payment, and on payment, to obtain and file full releases and acquittances from claimants."

On July 22, 1868, the plaintiffs obtained an order requiring the comptroller to show cause why a writ of mandamus should not issue.

Marsh, Coe & Wallis, for the motion.

Richard O'Gorman, corporation counsel, opposed.

CARDOZO, J.-The authority vested in the comptroller by section 7 of the act of June 3, 1868, is an imperative authority, which he is bound to exercise. It has been from early time a well-settled principle, that a power and authority conferred on a public officer, and relating to a public duty, is mandatory (see Mayor, &c. of N. Y. v. Furze, 3 Hill, 612).

The question in that case arose under an act which provided that it should be lawful for the mayor, &c., to do certain things relating to sewers, &c. Chief Justice NELSON said, "This statute is one of public concern, relating exclusively to the public welfare; and though permissive merely in its terms, it must be regarded, upon well-settled rules of construction, as imperative and peremptory upon the corporation. When the public interest calls for the execution of the power thus conferred, the defendants are not at liberty arbitrarily to withhold it.

People ex rel. Raymond v. Connolly.

The exercise of the power becomes then a duty which the corporation are bound to fulfill.

In Wilson v. Mayor &c., of New York (1 Den., 595, 600), the court say, "Although the language of the statute which confers on the defendants power to make sewers and drains is that of permission and not of command, yet in its nature it is plainly imperative (3 Hill, 614). . It is equivalent to an express enactment that it shall be the duty of the mayor, aldermen, &c., to make all needful sewers and drains in said city."

In Hutson v. City of New York (5 Sandf., 289), the court quotes from the case in 3 Hill, the following among other remarks, "The inference deducible from the various cases on this subject seems to be that where a public body or officer has been clothed by statute with power to do an act which concerns the public interests, or the rights of third persons, the execution of the power may be insisted on as a duty, although the phraseology of the statute be permissive merely, and not peremptory.'

In 9 N. Y., 163, the court of appeals affirm the last mentioned decision.

In The People v. Supervisors of New York (11 Abb. Pr., 114), the general term of this district held to the same effect. There the tax levy "empowered" the supervisors to raise a sum not exceeding $80,000, to pay amount due to the contractors with the commissioners of record, and "authorized" the comptroller to pay the amount. Judge SUTHERLAND, at special term, granted the mandamus, commanding the supervisors to exercise the power thus conferred upon them; holding that the statute made it the duty of the board of supervisors to raise the amount by tax; and this decision was affirmed at the general term; the court holding that "the act is imperative, leaving no discretion in the defendants whether they will exercise the authority conferred. Although the language of the act is simply enabling, yet, as it confers a power which concerns the public as well as individuals, it is not merely permissive, but is mandatory."

Indeed, this rule is so well settled that it seems almost

Fisk v. Chicago, Rock Island & Pacific R. R. Co.

superfluous, at this late day, even to refer to the authorities, which are familiar to every lawyer.

The mandamus must issue.

FISK against THE CHICAGO, ROCK ISLAND, AND PACIFIC RAILROAD COMPANY.

Supreme Court, First District; Special Term, April, 1868. JURISDICTION.-FOREIGN CORPORATIONS.-CONFLICT

OF LAWS.

The supreme court of this State has jurisdiction of an action brought by a citizen of this State against a foreign corporation in which the plaintiff is a stockholder, to restrain illegal acts of the directors, when they are personally within the jurisdiction of the court.

The acts, ultra vires, of a foreign corporation, which is a creature of the laws of two different States, are not made valid by a confirmatory statute enacted by the legislature in one only of such States.*

An injunction against the directors of a corporation, who are charged with issuing illegal stock in excess of the actual capital, should not extend beyond the transaction in question, and enjoin dealings in the genuine stock, unless special necessity for such interference be shown,

Motions for receiver; and counter-motions to dissolve injunctions.

Four actions were brought against the Chicago, Rock Island & Pacific Railroad Company, and others; one by James Fisk, Jr., and others; the second, by Hatch; the third, by Fanshawe; and the fourth, by Belden.

The plaintiffs in these several cases sued as holders of original shares of the stock of the Chicago, Rock Island & Pacific Railroad Company, a corporation created by the States of Illinois and Iowa. The complaints alleged

* Compare O'Brien v. The same defendants, post, 381.

Fisk v. Chicago, Rock Island & Pacific R. R. Co.

that a new issue of 49,000 shares of stock was illegal and void, and demanded injunctions against the use of the proceeds of that issue, and the appointment of a receiver of such proceeds.

Motions were made by the plaintiffs for the appoinment of such receiver; and motions were made by the defendants to dissolve the pending injunctions against the use of the proceeds. All the motions came on to be heard together.

D. D. Field, J. E. Burrill, and J. K. Porter, for the plaintiffs.

C. Tracy, W. Fullerton, A. J. Vanderpoel, and J. N. Whiting, for the defendants.

CARDOZO, J.-I shall not follow the counsel over the extended field of discussion in which they indulged on the argument of the motion in these cases. The statement of a very few plain and well-recognized propositions is all that is necessary to dispose of the question really involved. My views may be briefly expressed, as follows:

1. Even if my reflection and examination led me to a different opinion, which they do not, I should not feel at liberty to deny the existence of the jurisdiction which it is sought to have the court entertain in these actions, since the point has been fully and distinctly decided by the general term of this court in Griffiths v. Scott, cited in the argument. My views accord with that decision, but, in any event, I should consider myself bound to follow it. In that case Judge INGRAHAM said: "I think there can be no doubt but that a citizen of this State can maintain an action against a foreign corporation for any cause connected with the recovery of or protection to his property or rights in said corporation. Judge LEONARD, in the same case, held that this court "has not the power to remove or appoint the trustees or directors of a foreign corporation, but it can enjoin their action when illegal, or when acting fraudulently or unlawfully, if they are personally within our jurisdiction." These remarks are apposite to the