19 Barb. 657 | N.Y. Sup. Ct. | 1855
By the Court,
It is objected, preliminarily, that the appeal is improperly brought. It was taken under the statute of 1854, authorizing an appeal to the general term “ from any judgment, order or final determination made at any special term of the court, in any special proceeding therein.” (Laies ofl854, ch. 270.) The argument is that a mandamus is in the nature of an action, unaffected by the code of procedure, or its provisions relative to appeals, and is not a “ special proceeding,” within the meaning of the act of 1854. We are of the opinion that the law referred to authorizes the appeal.
In 1849 and 1850, John Post was the owner of a saw-mill on the Black river, some 14 miles below the state dam, which mill had been and was used and operated by him. For the purpose of supplying the Erie canal with water, the canal commissioner in charge caused the waters of the Black river to be totally diverted from Post’s saw-mill and the Black river, through the feeder of the Black river and Erie canals for the period of sixty days in the year 1849, and forty-eight days in the year 1850. There is nothing in the case showing an intention on the part of the officers of the state to make permanent appropriation of the Black river to the use of the state. It is true that a dam has been erected on the river with the view of raising the water and passing a portion of it on through a feeder to the summit level of the Black river canal, for the purpose of supplying in part the Black river and Erie canals. It is made the duty of the canal commissioners, whenever the navigation of any of the
The state officers have heretofore chosen not to permanently appropriate the Black river to the use of the state, and thus subject the state to heavy damages to be claimed by mill owners below the dam, but to make temporary appropriations of the water of the river, agreeing with the riparian owners as to the damages incurred by such temporary appropriation and use. In using the water, they have acted under the authority of the act of 1833, determining that the use was for a temporary purpose, and taking no steps or doing any act, showing a clear intention to permanently appropriate the river to the use of the state, to the destruction of the property and privileges of the riparian owners.
In this case, the acting canal commissioner treated the use of the water and the diversion of it from Post’s saw-mill as temporary and for a temporary purpose, authorized by the act of 1833, and indeed all the facts in the case show that there never has been an exclusive and permanent appropriation of the stream for state purposes. It must be conceded that if there was no permanent appropriation of the river to the use of the state, then the canal commissioner possessed the power, under the act of 1833, to use the waters, to divert them from the mill owners on the river to supply a deficiency of water in the Brie canal, as in this case, and to settle and adjust the damages of the riparian owners. That this power was possessed by the state officers under the act of 1833, seems to be the view hitherto taken of the question, and we see no reason to doubt its correctness.
Thus much has been said in justification and approval of the course of the state officers. There has been no usurpation of
It has been reserved to the secretary of those officers to discover, (arguing from what they were authorized to do in constructing a canal feeder, and what they have done to pass a portion of the waters of the river through such feeder,) that they have permanently appropriated the river to the use of the state, and hence, Avhen using the water and injuring the riparian owners by a temporary diversion of it, they have no power whatever to adjust and settle the damages sustained. But if there were really a serious question as to the authority of the canal commissioners to adjust and settle the damages accruing to the riparian owners, from a use of the waters of the Black river, when and from what source does the secretary of the canal board derive his power to sit in judgment on their acts ? Who has invested him with authority to determine whether the commissioners, in the discharge of their duty, have acted legally or illegally ? Was it ever intended by the legislature, to confer on the chief clerk of those functionaries having exclusive charge, the superintendence and management of the public works, the power to review their acts, and, as in this case, when the draft of a commissioner, regular on its face, is presented to him for payment, to look behind such draft and institute an inquisitorial and judicial examination into
The office of auditor was magnified beyond the intention of the legislature, not only into one of a ministerial -but of a judicial nature; assuming to judge and pass upon the legality of the . acts of the canal commissioners, and even of the commissioners of the canal fund and of the canal board, of which, by law, he was constituted the secretary.' The success which crowned this assumption of power has emboldened the secretary in this case to step out of the line of his duty and power to teach his superior that he has totally misapprehended his duty, and by a manifestation of what is popularly termed an “ obstinate integrity,” save and protect the state funds from the vandal devastation of those specially charged with their custody and disbursement, and who alone are accountable to the public for a legal and just disbursement of them. The act of 1848, creating the office of auditor, conferred upon him no power to look behind the draft and adjudge that the commissioner was without the authority to make it. If he may do this in the present case he may do it in all cases where he is called upon by the state officers to draw his warrant on the treasurer for money belonging to the canal fund. His powers are strictly ministerial. He has certainly no supervisory power over the acts of the canal commissioners ; nor is he invested with authority to decide upon the validity of those acts. If invalid he is not made responsible for them, and he requires nothing more as his protection in drawing the war
Harris, Wright and Watson, Justices.]
In this case the commissioner in charge of the canal adjudicated upon the claim of Post; he fixed and agreed upon a specific sum to be paid him as damages for a temporary diversion of water from his mill to supply a deficiency in the Erie canal during a'small part of the years 1849 and 1850. The commissioner made his draft upon the auditor of the canal department, to which was annexed Post’s receipt in full for such damages. It was the duty of the auditor to pay the draft. Possessing no authority to pass on the validity or invalidity of the act of the commissioner in determining that the damages accrued for a temporary purpose, payment was improperly refused. The order of the special term, awarding a peremptory mandamus, should be affirmed, with ten dollars costs.