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trade. There is not an appearance of a purpose on the part of the defendants to increase their own business, but only to crush out a rival who would not join with them, or some of them, in an asserted illegal purpose. I am therefore of the opinion-simply passing upon this complaint, and nothing else—that its allegations are sufficient, and that the demurrer should be overruled, with costs, with leave to the defendant demurring to withdraw the demurrer, and answer over, on the payment of costs within 20 days.
(4 Misc. Rep. 315.)
ARMITAGE v. FISHER et al. (Supreme Court, Special Term, Schoharie County. July, 1893.) 1. CITY COUNCIL-ADOPTION OF RULES-NOTICE-Two-THIRDS VOTE.
Laws 1883, c. 298, $ 34, provides that no by-law of the council shall be repealed or rescinded unless by a two-thirds vote of all the members of the council of the city of Albany. Section 7 of said act, as amended by Law's 1886, c. 444, Laws 1891, c. 286, provides that the common council of such city shall determine its own rules, and may expel a member under certain circumstances. Rule 34 provides that no rule shall be altered, suspended, or rescinded except by a two-thirds vote of all the members elected, and no motion for such purpose shall be considered until after notice at a previous meeting, unless by unaminous consent. Held, that a rule could not be amended by a majority vote of the council, no notice
of the application having been given at a previous meeting. 2. SAME_OVERRULING DECISION OF PRESIDENT.
The fact that the decision of the president th the rule had not been adopted for vint of a two-thirds vote in its favor was overruled on appeal by a majority vote of the council will not render the amendment
valid. 3. SAME.
The appointment of a committee to investigate and report on the conduct of the president, under the amended rule, was in violation of the
rules of the council and the rights of the president. 4. EQUITY JURISDICTION-CONTROL OF COUNCIL.
Equity will restrain the council from acting through a committee so appointed for the purpose of investigating the conduct of the president. and expelling bim from the council.
Bill by Armitage, president of the board of aldermen of the city of Albany, against Fisher and others, members of the common council, enjoining them from acting on a repeal of a committee. Plaintiff moves to continue an injunction pendente lite. Granted.
Stedman, Thompson & Andrews, for plaintiff.
MAYHAM, J. This is an application upon an order to show cause why a pendente lite injunction heretofore granted in this action should not be continued until the final hearing and determination of the same. The action is prosecuted by the plaintiff, who is an alderman and president of the board of alderen of the city of Albany, against the other members of the common council of the city of Albany, to restrain and enjoin them from act. ing upon any report of a committee appointed to consider and report upon charges made against the plaintiff in such wise as to
remove the plaintiff from his office and position as president of the common council, or otherwise to interefere with the plaintiff in the execution of his duties as president of the common council, ind that it may be adjudged that the rules purporting and pretending to have been adopted by said common council on the 5th day of June, 1893, are not the rules of said common council, and that the said common council be enjoined and restrained from acting upon such pretended rules, or from taking any action or proceeding against the plaintiff, based upon said pretended rules, or from removing the plaintiff from his office and position as president of the common council of the city of Albany upon any pretended proceeding or authority given by such pretended rules.
The complaint alleges that the plaintiff was elected president of the common council on the 3d day of May, 1892, and at the time of said election he was an alderman at large of the city of Albany. The complaint also alleges that the plaintiff and defendants constitute the members of the common council of the city of Albany, and that the city of Albany is a municipal corporation, and duly incorporated under the laws of the state of New York. The complaint sets forth in haec verba section 7 of title 3 of chapter 298 of the Laws of 1883, as amended by Laws 1886, c. 444, Laws 1891, c. 286, entitled "An act to provide for the government of the city of Albany.” That section provides that the common council shall biennially elect a president from its own body, and, in his absence, a president for the time being. The section also provides for a clerk, and that the common council shall hold regular meetings on the first Tuesday of May in each year. It also provides that the common council “shall determine the rules of its own proceedings, except as herein otherwise provided; be the sole judge of the qualifications and election of its members; keep a journal of its proceedings; and may punish or expel a member for discrderly conduct or a violation of its rules, or declare his seat vacated by reason of absence, provided such absence be continued for the space of two months. But no expulsion shall take place except by the vote of two-thirds of all members elected, nor until the delinquent member shall have had an opportunity to be heard in his defense.” The complaint also alleges that the plaintiff has, from the time of his election up to the time of the commencement of this action, acted as alderman at large and president of the common council, and is still so acting; and that ever since his election certain rules for the government of the common council have been in force, among which there was included rule 34, as follows:
"No rule of this counsel shall be altered, suspended or rescinded, unless by a two-thirds vote of all the members elected, and no motion to alter, suspend, or rescind any such rule shall be in order without the unanimous consent of the council, unless notice thereof shall have been given at the previous regular meeting, and no motion to suspend shall embrace more than the one specified in said motion."
The complaint also alleges that at a meeting of the common council, held on the 3d day of June, 1893, the committee on rules of that body made a report recommending the adoption of certain rules, among others, rule 34, as above recited. The complaint also alleges that rule 33 was attempted to be amended or modified and changed so as to read as follows:
“When any member of the common council shall be charged (which charge shall be in writing and presented at a meeting of the common council) with any violation of law or ordinance of said city, or resolution, rule, or regulation of said council, the matter shall be referred at said meeting to a committee of investigation of not less than five. In case the charge is preferred against the president of the common council, said committee shall be named and appointed by a vote of the common council; except in case the committee is named by the common council, the member shall have the right to object to not more than two members named on said committee, and the member complaining or charging shall have the same privilege, and other members shall be appointed to fill the vacancy thus created. The member charged shall be served with a copy of said charges, and notice when said committee shall hear the same, or the time to which it shall be adjourned, to examine the same, and of whom it shall report to the council. When the report of any committee of investigation shall be considered, the council may order a secret session for that purpose."
The complaint also alleges that a resolution was offered at said meeting by Alderman Brown that such report be accepted, and the rules as reported be adopted as the rules of the council, and that the plaintiff, as president, put the motion on the adoption of the resolution, on which motion 11 of the aldermen voted in the affirmative and 7 in the negative, and the president declared the resolution lost, two-thirds not having voted in its favor. That upon this an. nouncement by the president, an appeal was taken by an alderman from the decision of the chair, whereupon the president put the question, “Shall the decision of the chair stand as the decision of the board ?" upon which question 7 aldermen voted in the affirmative and 11 in the negative. The complaint also alleges that this plaintiff, the president of the common council, ruled and decided, notwithstanding the appeal from his decision was sustained, that the new rules proposed by the committee had not been adopted, for the reason that two-thirds of the members elected had not voted for the same. The complaint also alleges that rule 33, before said attempted amendment thereof, simply provided for the hearing of charges against the members of the common council as such, (and not as president thereof,) and that such rules, as well as section 7 of the charter, required a two-thirds vote of all the members elected to the common council in order to expel a member, but that the present amended rules purport to authorize the making of charges against the president of the common council as such, as to which it is claimed that a majority vote of the members of the common council is sufficient to justify the expulsion of the president from the presi. dency of the said common council. The complaint also alleges that at the same meeting charges were preferred by an alderman against the plaintiff, as alderman at large and as president of the common council, and such proceedings were taken under such charges preferred against this plaintiff; that a copy of the notice of hearing, a copy of the resolution of the common council, together with a copy of the charges against the plaintiff, were served upon him. The complaint also alleges that at the time fixed in said notice of hearing the
plaintiff appeared specially before the committee of the common council named in said resolution, for the sole purpose of making certain objections to such proceedings and to the right of the committee to entertain the same, and made such objection. The complaint also alleges that certain documents and records were offered in evidence before said committee, in support of the charges, and certain oral evidence was taken in support thereof, and charges that the plaintiff was deprived of the privilege of a full and complete cross-examination of the witnesses offered and who gave oral testimony. The complainant denies the authority of the common council to delegate this power to a committee of investigation, and alleges that the common council, in its rules, provided for a secret session for the consideration of the report of the committee; thus excluding and preventing the plaintiff from appearing before said committee and common council by counsel. The complaint also alleges and charges that the president of the common council is by the law and the rules of the common council ex officio a member of the board of finance, the board of contract and apportionment of the city, and was invested with several powers and rights devolved by the charter of the city of Albany upon said president, and has since enjoyed and been entitled to said rights and powers and to certain rights of succession to the mayoralty of said city, and is a member of the board of election commissioners, which has the power to appoint inspectors of election, poll clerks, and ballot clerks to act at the election for public officers, which may be held pursuant to law in the city of Albany; that the other members of the board of election commissioners at the time specified in the complaint were James H. Manning, mayor of the city of Albany, and Clifford D. Gregory, a member of the republican members, representing the political minority of the common council. The complaint also alleges a disagree ment between the plaintiff and the mayor in the selection of inspectors, poll clerks, and ballot clerks, and charges, among other things, that the object of the preferred charges against him, and his removal from the position as president of the board, is to deprive him of the power of acting as such election commissioner.
Upon this complaint, the substance of which we have recited, the plaintiff asks a perpetual injunction, and upon the complaint and affidavits in support thereof obtained an injunction and order to show cause, which injunction is sought to be continued pendente lite by this motion. Affidavits have been presented on this motion in support of and in opposition thereto, involving to some extent the merits of the action and the rights of the plaintiff to the ultimate relief sought; but in the consideration of this motion we are not called upon to pass upon the merits of the controversy. The principal legal questions which seem to be presented for our consideration are: First. Whether the common council in this case, under the charter and rules adopted by it, had the power, in the manner indicated by the proceedings in this case, to change its rules, and pass a valid resolution to investigate the action of the plaintiff, as president of the common council, with a view or purpose to de
pose him from his position as president, or removing him as alderman from the board of the common council, without first giving notice of an application to change the by-laws, and without a twothirds vote of all the members elected to the common council. Second. Whether a party can properly invoke the extraordinary powers of a court of equity by way of injunction to restrain the action of a municipal body in dealing with its individual members.
It is quite apparent that the provisions of rule 34, prescribing the method in which the rules of the common council, which by statute they are authorized to make, were proposed to be amended in this case, have not been complied with. No notice of an application to change the rules was given at the previous meeting, as required by rule 34; and the rule which was adopted as an amendment of rule 33 by the common council was adopted only by a majority, and not by a two-thirds vote, as prescribed by rule 34. The amend ment which was proposed to be incorporated in rule 33 by the action of the common council related exclusively to the president of the common council, of which this plaintiff was the incumbent, and in corporated in it a provision authorizing charges to be preferred against the president of the common council as such, and the appointment of a committee to investigate such charges by the common council, without extending to the person so charged the privi. lege of objecting to two members of the committee, as could be done by any other member of the common council not acting as president. This, it seems to us, was a clear violation of the rule which required a previous notice of the application, and which also required the adoption of an amendment to the rule by a two-thirds vote; and also a violation of the provisions of section 34 of chapter 298 of the Laws of 1883, which provides as follows:
“No ordinance shall be adopted, and no law, ordinance, or by-law shall be rescinded or repealed, unless by a two-thirds vote of all the members elected to the common council; nor shall any such adoption or repeal be valid unless notice of such intended action shall bave been given at the previous regular meeting of the common council."
It is true that the decision of the president of the board that the amendment had not been adopted for the want of a two-thirds vote, as required by rule 34, was, on appeal, overruled by a majority vote of the members of the common council, but it can hardly be successfully maintained, we think, that by overruling the decision of the chair the vote so overruling the president can be held to have legally adopted by a majority vote an amendment to the rules requiring a two-thirds vote for its adoption. It would seem to follow, therefore, that the attempted amendment of the rules failed for the want of the requisite vote; and the original rules, under which the common council had been acting, remain in force, unaltered and unaffected by the proposed amendment.
But it is insisted by the learned counsel for the defendant that by the peculiar language of the resolution under which the existing rules of the common council were adopted, they remained in force only until a committee appointed to report upon rules should