People Ex Rel. Whitlock v. Benton

27 N.Y. 387

• Court: New York Court of Appeals
• Decided: September 5, 1863
• Status: Published

Opinions

Rosekrans, J.

The'statute gives the canal board “power to appoint so many superintendents of repairs, and collectors of tolls on the canals, as they may deem necessary.” (1 R. S., 5th ed., § 135.) The words, “ superintendents of repairs on the canals,” and “ collectors of tolls on the canals,” in this section, are merely descriptive of the officers and their business, and have no reference to their places of residence, or the districts in which the business of their respective offices shall be conducted. They mean nothing more than “ superintendents of canal repairs,” and “ collectors of canal tolls.” These officers are indifferently spoken of in the statutes by these names and those used in the section first above referred to. In the list of administrative officers, “ superintendents of canal repairs ” are mentioned. (1 R. S., 381.) In the statute providing for the mode of their appointment and the tenure of their office, they are called by the same name. (1 R. S., 405, § 9.) In the same statute (§ 10), the collectors are called “collectors of canal tolls.” In the statute which confers upon the canal board the power tq appoint these officers and to prescribe their number, and giving the power of removal, they are called “ superintendents of repairs on the canals,” and “ collectors of tolls on the canals." These different names are intended to apply to and designate the same officers. It is evident that by the section first cited, the legislature did not intend to define the place or district in which these officers should discharge the duties of their respective offices. There is a general statute, requiring every officer included in the class of administrative officers, to be confined, in the execution of the duties of his office, to the district, &c., for which he shall be appointed, except when otherwise provided by law. (1 R. S., 5th ed., 383, § 14.) The districts in which the officers referred to are to perform their duties, is not specified in the statute.

The designation of these districts is left to be regulated by the canal board. It was evidently contemplated that numerous districts would be necessary, and it was intended to confer upon the canal board unlimited discretionary power as to the number, extent and location of such districts. The nature of the duties of superintendents of repairs is such as to require that their districts should be a part of the canals; and it would be absurd to suppose that the canal board would appoint a superintendent of canal repairs over any other district than a portion of the canals. But courts will take judicial notice of the general character of the business of the country, and the mode in which it is conducted. We know that canal boats, laden with the products of the west, pass through our canals, into the Hudson river, and thence to Hew York, without breaking bulk, and that they take return cargoes at Hew York, to be transported, without breaking bulk, to greater or less distances upon our canals. The convenience of having a collector of canal tolls in the city of Hew York, to whom the tolls on such return cargoes can be paid, and by whom clearances can be given, can be readily seen. Such tolls could, at least, be as conveniently collected at the city of Hew York as at any place on the canals; and if a collector is appointed in the city of Hew York, and is- confined to that district in the performance of his duties, such appointment is clearly within the power conferred upon the canal board.

There are some sections of the statute which assign duties to, and impose restrictions upon, collectors of canal tolls whose offices are upon the line of the canals, which are not applicable to the collector in the city of Hew York. Such are the sections which make it the duty of every collector of tolls to assign berths to all boats when loading or "unloading at any landing place on a canal where disputes shall arise. (1 R. S., 5th ed., p. 427, § 272.) Another is the section which prohibits the payment of office rent of a collector except upon the certificate of the canal commissioner having charge of the division of the canals on which such collector is appointed and where such office is located. (Laws of 1859, ch. 495, § 4.) But these sections do not limit the power of the canal board to appoint a collector elsewhere than upon the line of the canals.

We entertain no doubt that the canal board, in maldng the appointment of the relator as collector of canal tolls at the city of Hew York, acted in accordance with, and within, the power conferred upon it by statute, and thaf the order appealed from should be affirmed, with costs.

Davies, Selden, Emott and Marvin, Js., concurred.