Ex parte Common Council , 3 Cow. 358 ( 1824 )

Sutherland, J.

delivered the opinión of the Court, to the following effect. The act under which the Common Council made this order, so far as form is concerned, has beent strictly Complied With ; and the only question submitted to us relates to their power. This law gives, in terms, full authority to do precisely what they have done ; to order the levying of these monies by the board of supervisors. Then have the latter any discretion, whether they- shall comply with the- order? The provision as to raising money for the support of the poor is couched in very positive language. It is, that the Common Council shall yearly determine the sum necessary to be raised for this purpose ; and the supervisors j being served zoilh a copy of the corporate resolution, “ shall cause the same to be raised, assessed and collected according to Zazo.” Here a power is given without limitaticn’or control, to direct such sums to be raised as the Council may think proper ; and it is imperiously made the duty of the supervisors to raise that sum. The provision as to the city watch confers the power in the same terms, limiting it to the compass of $15,000 per annum. This, by the 21st section, is to be raised in the same manner. Both provisions are equally imperative, m terms, upon the supervisors. I hey? however, contend that they have a discretion in this business ; that they are not mere ministerial officers ; that they are authorized to judge whether the sums, heretofore raised for specific objects, have been properly expended ; that otherwise they might be made the instruments of oppression ; and they show by extracts from the books of the Common Council, that large sums heretofore raised for specific objects have not been expended for these purposes. From the statement made by the committee, in their report, this would seem to be so, to the amount of 20 or $30,000. They insist on a power, implied by law, to guard against such excesses; and demand that this sum should be carried to the credit of the city in account with their officers. This may all be very proper ; but I am satisfied that no such discretion is conferred by the law, either in its terms or the general provisions and policy of the act, under which the board of supervisors proceed. The contrary is rather tó be implied from various provisions similar to those under consideration, to which we were referred at the bar. The council, like the legislature, are responsible to their constituents only for the manner in which they discharge these duties, so long as they act within the scope of their authority. The course is for1 the former to take the remedy into their own hands ; and remove their public agents, if they have abused their authority, which we do not pretend to say is the case. The statute is imperative upon the supervisors. They cannot exercise the least control, in determining the amount to be raised. The sums sought to be levied are for the use of the citizens of Albany ; to be paid by them. We grant an alternative mandamus.

Rule accordingly.