When a party has been elected or appointed to an office, and his predecessor in such office refuses to deliver up the books and papers belonging to such office, an application may be made under the statute referred to, to a justice of the supreme court, who is authorized in case the party complained against refuses, without satisfactory reason, to deliver to his successor such books and papers, to direct such delivery, and to commit such party to the jail of the county, there to remain until he complies with such, order or is discharged according to law. This proceeding is sum mary and severe, and hence should be enforced with reasonable caution. It is- nevertheless a salutary provision in a proper case, and furnishes an adequate and expeditious remedy against a party who, through ignorance, wantonness or malice, undertakes to deprive an officer duly elected or appointed of the possession of the books and papers belonging to such office. This statute is not adapted to, nor was it intended to try the title to an office, when there were adverse claimants. In such case the remedy is by quo warranto. People v. Stevens, 5 Hill, 617; People, v. Allen, 42 Barb. 203; Devlin’s Case, 5 Abb. 281; Matter of Carpenter, 7 Barb. 30.
It is, nevertheless, the province and duty of the judge to examine the facts and claims of the respective parties so far as to ascertain whether the person claiming the office, and the delivery of the books and papers, shows a clear right to such office and to the possession of such books and papers, and whether or not the party refusing such delivery establishes a reasonable doubt in regard to the right of the applicant to the possession of such books and papers. It is quite obvious that the legislature never intended that such remedy should .be defeated, and an officer deprived of the possession of the books and papers of an office to which he has been regularly elected or appointed, simply because another party claims to retain the same upon grounds which are frivolous or creating no reasonable doubt in regard to the right of such officer. Such a construction would
Having said thus much in regard to the extent to which such conflicting claims should he examined under this statute, it remains to be considered, whether, upon all the facts submitted upon this application, Mr. North is entitled to the order for which he applies. North was appointed chamberlain by the common council, at a regular meeting thereof, held on the 18th day of March, 1874, at which Mr. Bogue, the mayor, presided, and declared the result. It is not disputed but that Mr. Cary was entitled to the custody of- such books and papers until his successor in office should be regularly appointed, and give the requisite security. Section 21 of title 3 of the charter of said city (Laws 1869, chap. 912) provides that before the chamberlain shall enter upon the duties of the office, he shall execute and file with the clerk a bond in the penalty of at least the amount of the general city taxes, and that sureties thereto shall he approved hy the mayor and common council, conditioned that he will faithfully discharge the duties of the office, and pay over all moneys received by him. I am of opinion that a fair and reasonable construction of said provision leads to the conclusion that the approval of the bond was indispensable to North’s legal right to enter upon the duties of such office. The reason for the rule is quite apparent in this particular case, because as chamberlain he would become the financial officer of the city, and as such entitled to the custody of its finances to a very large amount. The bond was incomplete until approved by proper authority. Who then could approve the same according to the.charter? Section 21, above referred to, declares that it shall be approved hy the mayor and common council. Title 4 of the charter provides that the mayor shall be the chief executive Officer of the city, and defines his duties, some of which are to be discharged in conjunction with the common council when in session ; others to be performed independently of that body. Section 1 of title 5 declares that the mayor and aldermen of the city shall constitute the common. council. Whatever duties are discharged by the mayor when in actual session with the aldermen he performs as a part of the common council. Wé have seen that said section 21 requires the approval of the sureties to such bond not by the mayor and aldermen, but by the mayor and common council, which last-named body is declared by the charter to be composed of the mayor and aldermen. The approval by the common council,
I conclude that the appointment of North was not affected by the veto of the mayor. The veto power is conferred upon the mayor by section 19, title 4 of the charter, and the provision upon that subject is as follows: “He shall have the power to veto any resolution or ordinance of the common council.” It'is not pretended but that North received the number of votes of the members of the common council required for his appointment. The proceeding at which the veto was aimed was an appointment to office, and not a resolution or ordinance adopted in the transaction of the ordinary business of the common council. This distinction can be more readily conceived than accurately described; When we speak of an appointment to office a very, different idea is con- • veyed to the mind than when the mere adoption of a resolution or ordinance by a public body is spoken of. It is proper for us to inquire again, what was the intention of the legislature in this particular? Was it the design to confer upon the mayor such control over appointments to office, made by the common council as would necessarily .follow if the veto power was possessed by the mayor to the extent claimed by him ? If he possesses the power to the extent claimed, then the mayor may, by veto, necessitate a vote of two-thirds of all the members of the common council to make a * valid appointment to office. Section 1, of title 4 of the charter, after conferring the veto power upon the mayor, próceeds as follows: “The common council may at their next regular meeting proceed to reconsider the same; if two-thirds of all the members elected then agree to pass the same, it shall take effect as a law.”
The language thus employed seems inappropriate, when applied to an appointment to office, but quite proper when applied to an ordinary resolution or ordinance. But aside from the technical language employed it seems quite clear from the charter and the nature of the proceeding that no such power was intended to be conferred upon the mayor. The result would be, possibly and even probably, to deprive a party of an office, by such indirect means, by requiring a two-third vote to overcome the veto of the mayor, when only a majority vote would make the appointment in the first instance. The adjudications to which we have referred justify a construction which seems in accordance with the intention of the
It is further contended that the meeting of the common council of March 18, at which the bond was approved by that body, was irregular, not having been held pursuant to an adjournment, or the call of the mayor, or three aldermen, as required by the charter for a special meeting. The answer made to this position is, that such meeting was held at the time and place specified in the rules of the common council adopted in 1873, and not subsequently changed or vacated, but, on the contrary, adhered to in 1873 and 1873. The question thus presented for determination is, whether these rules and regulations adopted by the common council as to all subjects and for. all purposes cease to have any binding force, when the terms of office of the members of said body, who adopted such rules expire, although other persons are elected to fill their places.
The common council continues from its first organization until the charter expires, although the individual members thereof change. Section 6 of title 5 provides as follows: “The common council shall determine the rules of its own proceedings.” Section 5 of title 5 provides: “The common council shall hold stated meetings, at least once in each month, and the mayor or, in his absence, any three aider-men may call special meetings by notice in writing served personally upon the other members of the council, or left at their usual place of abode.” It is not left to the common council to fix the number of the regular meetingsj by the charter they must hold at least one each month. They are authorized to designate the day of the month on which such meetings shall be held. That was done by rule adopted by the common council in 1873, and followed during that year and also in 1873 without adopting a new rule. Nor did the common council as at present constituted, at the annual meeting or at any adjourned meeting of the present year, make any change in regard to the time of holding the regular monthly meetings. It may therefore be fairly assumed that the appointments of the common council made in 1873 and subsequently followed were in effect adopted by that body as at present constituted, and will continue until changed by a new rule. So long as such appointments continued satisfactory, as to the time of holding the regular meetings, it would seem a useless ceremony to repeat the appoint
No provision of the charter in express terms requires' a new appointment, and a rulé entered upon the minutes. When the rule was adopted in 1872 fixing the time of holding the-meetings, I think it continued in force until changed. At all events such rule should be considered, under the circumstances, in force by adoption, as the common council have not changed the same, although several meetings have been held at which such change might have been made. It would be a great hardship to hold that all the monthly meetings held since 1872 are irregular, because a new rule has not been entered from year to year. This question does not involve the determination — whether when a common council, composed of one set of members, enter upon the performance of a piece of business, and fail to complete it before the terms of office of its members expire, the same common council, composed of members newly elected, can complete such unfinished work.
The two cases suggested should' not be confounded, as they are entirely different. The common council locates the place of holding its regular meetings, and, year after year, continue to occupy the same.building, and it would seem to be an idle ceremony to enter a rule upon its records every year that the regular meetings would be ■ held at such place. The same principle should apply in regard to the time of holding the monthly meetings. There is certainly no hardship in such a construction, and I think it should be adopted.
Mr. North is not entitled to the order for which he applies, because he has omitted to present the bond to Mayor Bogue-for his approval; and until such approval of the sureties he is not entitled to the possession of the books and papers of the office. The proceedings are therefore discharged. It is to be hoped that this unfortunate controversy in regard to the government of the city may terminate, as it can but prove disastrous to all its interests, if continued, and reflect no credit upon those engaged in the struggle. The welfare of the entire community should be regarded paramount to mere individual interest, prejudice, or feeling.
Application denied.