Executive Law §§ 73, 135, 139(1), 142; Judiciary Law §117; Session Laws L. 1920,
CH. 1099, L. 1920, CH. 1117

The mayor and members of the council can administer oaths and take affidavits and
acknowledgments within the city as authorized by the City’s charter.

                                November 4, 2016

John C. Rossi                                             Informal Opinion
Corporation Counsel                                       No. 2016-2
City of Auburn
Memorial City Hall
24 South Street
Auburn, New York 13021-3832

Dear Mr. Rossi:

       You have requested an opinion as to whether the mayor and members of the
city council may exercise specific powers granted to them by the City’s charter. The
charter grants the mayor and members of the council, along with several appointive
city officers, “the power to administer oaths and take affidavits and
acknowledgments within the City, the same as Commissioners of Deeds.” Auburn
City Charter § C-28. Your question is whether that grant of power to the mayor
and council members is invalid on the ground that it conflicts with Executive Law
§ 139(1), which provides that commissioners of deeds are appointed by the common
council, and you see a potential inconsistency between Executive Law § 139(1) and
the city charter’s language that the mayor and council members are granted certain
powers “the same as Commissioners of Deeds.” As explained below, we are of the
opinion that section C-28 of the City’s charter validly authorizes the mayor and
council members to administer oaths and take affidavits and acknowledgements
within the city.

       First, we are of the view that Executive Law § 139(1) and section C-28 of the
charter are not inconsistent. Executive Law § 142 provides that commissioners of
deeds, who are appointed in a manner specified by Executive Law § 139(1), are
authorized to administer oaths and take affidavits and acknowledgments within the
city, but it does not purport to make them the only officials who may do so. Indeed,
these powers are also held by notaries, see Executive Law § 135, and others, see,
e.g., Executive Law § 73 (Attorney General and qualified deputies and assistants);
Judiciary Law § 117 (court referees). Charter section C-28 does not purport to make
the mayor or anyone else a commissioner of deeds, but rather to confer upon certain
individuals specified powers relating to oaths, affidavits, and acknowledgments,
using the shorthand term “the same as Commissioners of Deeds” to describe the
relevant powers. Indeed, the charter specifically provides for the appointment of
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   commissioners of deeds, see Auburn City Charter § C-25(A)(12), confirming that the
   mayor and other officers named in section C-28 are not commissioners of deeds
   themselves. Thus, the fact that their mode of selection is different from that
   required by Executive Law § 139(1) is of no practical significance to their authority
   to exercise the powers granted by section C-28.

          Second, if there were some inconsistency between the provisions—which
   there is not—then, because they were both enacted by the State Legislature, the
   charter, as the later-enacted provision, would supersede the Executive Law. The
   predecessor to Executive Law § 139(1) was enacted in 1909. L. 1909, ch. 23,
   reprinted in Executive Law § 106 (McKinney 1917). The predecessor to section C-28
   was enacted by the Legislature in 1920. See L. 1920, ch. 438, § 29; 1920 N.Y. Laws
   1099, 1117. Thus, if the provisions of the Executive Law and the charter were
   inconsistent, the charter provisions enacted by the Legislature would have
   superseded the existing Executive Law provisions insofar as they applied to the
   City. See Bloom v. Town Bd. of Town of Yorktown, 80 A.D.2d 823, 824 (2d Dep’t
   1981).

          For these reasons, we are of the opinion that the mayor and members of the
   council can administer oaths and take affidavits and acknowledgments within the
   city as authorized by section C-28 of the City’s charter.

          The Attorney General issues formal opinions only to officers and departments
   of state government. Thus, this is an informal opinion rendered to assist you in
   advising the municipality you represent.

                                          Very truly yours,

                                          KATHRYN SHEINGOLD
                                          Assistant Solicitor General
                                           in Charge of Opinions
