8 How. Pr. 367 | N.Y. Sup. Ct. | 1853
This application is made under a provision of the Revised Statutes, (1 R. S., 3d ed., 128, § 54,) which declares that whenever any person shall be removed from office,
It is claimed by the counsel for Davis that these provisions are not applicable to officers employed on the canals, and that they can only be proceeded against for withholding books and papers before a justice of the peace, and after seven days notice shall have been served by the acting canal commissioner. This objection involves the question of my jurisdiction to entertain this proceeding, as well as that of the necessity for a notice from the canal commissioner, which it appears in this case has not been given. In support of this position, the counsel relies on certain statutory provisions enacted in 1820, (Laws of 1820, p. 188, § 12; 2 R. S., 3d ed. 280, § 231,) which it is necessary to consider. By those enactments it is made the duty of every agent, toll collector, book keeper, or superintendent employed on any canal, and occupying any house, office, building or land belonging thereto, who shall be discharged from his em-pk yment, and of the wife and family of any such person, who shall die in such employment, to deliver up the possession of the premises so occunied, and of all books, papers, matters or
It is true, these provisions thus relied upon, are specially applicable to officers on the canals, and to them alone; but they by no means exempt such officers from the operation of the general statute, ■under which this proceeding is instituted,, and which was first enacted in 1830, ten years after the act referred to, and was made applicable to all officers in the State, holding over, whether they had held by election or by appointment. (See Revisor’s notes, 3 R. S., 2d ed., 144; 5 Hill, 632—note.) Indeed the remedies could hardly be considered as concurrent, or if so, to but a very limited extent ; for they depend generally upon different circumstances, and have different objects in' view. In this proceeding the application is made by the successor in office, and the question is between him and his predecessor. Under the act of 1820, the successor is in no respect a party, but the proceeding is instituted by the canal commissioner alone, with a view to the preservation of the public property. Under that act this complainant could have no relief. It is not adapted to his case, and was not intended to be. Nor could the canal commissioner obtain possession of any books, papers, or other canal property under the provisions authorizing proceedings in this case. They are equally inapplicable. I do not mean to say that the canal commissioner may not proceed under the act of 1820, m cases where there has been a removal and a successor appointed, to obtain books and papers with a view to deliver them to
The language of the statute under which this proceeding is instituted, clearly shows, that its object was to protect a party elected or appointed to ofiice, against an unlawful withholding, by his predecessors, of the books and papers of the office; and I think it is equally clear, that the object of the other statute was to give to the canal commissioner the custody and control of property belonging to the canals.
In its terms, the statute is not made applicable to cases where a successor has been appointed, but only to cases where the officer is discharged from employment on the canals, or dies in such employment. Nor could it have been intended to apply except where the office is vacant, for in case of the appointment of a successor, the possession of the property would belong -to him and not to the canal commissioner, to whom alone it is required to be delivered by that statute.
This .view of the purpose and scope of that statute is confirmed by the consideration, that it is only made applicable to officers occupying a house, office, building or land belonging to the canals; and the principal object of the proceeding is to obtain possession of the premises so occupied, and of other property belonging to the canals. The obtaining of books and
If I am right in this view of the case, the complainant is entitled to relief under the general act, and the objection to the jurisdiction, and that to the want of notice from the canal commissioner, are equally untenable.
It is further objected on the part of the party resisting, tnat he could only be removed by the Canal Board for cause, and that he is, therefore, at this time, the lawful incumbent of the office. It does not appear before me on what ground he was removed, though it is shown by his affidavit that no notice of any charges was served upon him, and that no charges of dereliction of duty had been made against him. But we have nothing to do here with the ground of removal. The statute confers the most ample powers on the Canal Board to remove superintendents of repairs and collectors of tolls “ when they judge such removal proper.” (1 R. S. 260, 3d ed., § 95.) That Board alone has the right to decide upon the propriety of such removal, and its action in the matter is final and conclusive.
It does not detract from this estimate of the power of the Canal Board, that it is authorized by the next section, to direct the district attorney to conduct an inquiry into the truth of any charges made against any collector, or any officer appointed by the Canal Board. It is in the discretion of the board to direct such inquiry, or to act without it.
This case is one in which, I think, the complainant’s title to the office is “ clear and free from reasonable doubt,” (People agt. Stevens, 5 Hill, 610,) and it is therefore a proper case for enforcing the delivery of the books and papers under the statute