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Board of Commissioners of Pilots v. Vanderbilt

25 N.Y. Super. Ct. 367 2 Rob. 367 Court N.Y. Super. Ct. Decision date 1864-05-21 English

Delivered by McCunn, J.

Contents

Majority

p. 367
The Board of Commissioners of Pilots, plaintiffs and appellants, vs. Cornelius Vanderbilt, defendant and respondent.

Headnote

1. The notice required by the act of 1860, (lam of 1860, A. 522, % 2,) to be given by the Board of Commissioners of Pilots to persons erecting structures beyond the exterior line defined by the commissioners for the preservation of New York harbor, must be a notice from the board itself; and should show on its face that it is such a notice.
2. A notice given by the president of the board, in pursuance of verbal authority from the board, merely signed “ R. Sturges, president,” with nothing on its face to show that it emanated from the board, will be deemed the act of an individual, and will not subject the person upon whom it is served to the penalty mentioned in the statute, for continuing a structure after notice.
(Before Moxcbief, Mokeli, and McCnra. JJ.)
Heard April 12,1864;
decided May 21, 1864.
This action was brought to recover a penalty of $25 per day, from November 10, 1860, to the day of trial, for a violation, by the defendant, of the provisions of section 2 of the act “ to prevent encroachments and obstructions in the harbor of New York, and to authorize their removal,” &c. passed April 27, 1860, being chapter 522 of the session laws of 1860, (_p. 1063.) The section is as follows : “ It shall not be lawful for any person to build, erect or maintain any pier, bulkhead, or other structure, or to fill in with earth or other material, in the waters of the harbor of New York, beyond the exterior line defined and recommended by the commissioners for the preservation of the harbor of New York, and established in and by chapter 763 of the session laws of 1857; and in case of the building or erection of any such pier, bulkhead or other structure, or of maintaining of any such pier, bulkhead or other structure, whether now existing or hereafter erected, the Board of Commissioners of Pilots shall notify the person or persons building, erecting or maintaining the same, within a time to be prescribed and specified in their notice ; and in case of failure to comply with such notice, the said Board of Commissioners of Pilots shall have the power to cause so much of such
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pier, bulkhead or structure, as is beyond the exterior line so defined and established, to be forthwith removed, and the person or persons who built or maintained the same shall be liable to pay all expenses of such removal, to he recoverable by and in the name of the Board of Commissioners of Pilots, and shall also pay a fine of twenty-five dollars a day for each and every day which such obstruction shall remain after such notice, and until such pier, bulkhead or other encroachment shall have been removed, as herein provided. This section shall not apply to piers or bulkheads built before the establishment of said exterior line.”
The complaint alleged that the defendant in the year 1860, built and maintained a certain structure, being the section of a pier, in the waters of the harbor, at a point south of pier No. 1 North river, wholly outside of the exterior line established in the aforesaid act of April 27, 1860. That the plaintiff, on the 10th day of November, 1860, notified the defendant, pursuant to the act, to remove the said structure within five days from the date of the notice ; that the defendant wholly failed and neglected to comply with ■ the notice ; judgment demanded for the penalty, &c.
The answer set up several separate defenses, alleging that the structure complained of was built under authority of the mayor, aldermen and commonalty of the city of New York, denying that it was an obstruction, denying the constitutionality of the law,' &c. &c. ; and in respect to the allegations of the complaint touching the notice, denied any knowledge or information sufficient to form a belief respecting the same, or any of them. The answer .contained no other allegation or statement of defense touching the notice.
The cause was tried before Justice Robertson and a jury, November 20, 1863. The leading facts established at the trial were as follows : The structure in question, being a “ crib” or section of a pier, was sunk in the harbor at a point 150 feet south of pier .No. 1, and 160 or 170 feet west of the battery line and of the pier line, as established by law. It was a block forty feet square, extending seventeen or eighteen feet above the bed of the river when first sunk, a portion of it having
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been since removed, leaving it about eight feet above the bed of the river. It was wholly outside of the pier line. The Board of Commissioners of Pilots, at a meeting held December 7, 1858, (present a full board,) passed a. resolution adjudging the proposed construction of a pier at the place in question to be contrary to the act establishing pier and bulkhead lines for the port of New York. The board held regular meetings every week. ■ They watched the subject of the proposed pier with vigilance. It was a constant subject of discussion. As soon as the crib was .sunk the board acted promptly to remove it; “there was not a moment lost.” At a regular meeting, at which there was a quorum present, the board determined to notify the defendant to remove it. The matter was'discussed, and after discussion the unanimous action of the board was to notify the defendant to have the obstruction removed. No entry was made on the minutes, but three of the five, commissioners testified to the fact. The' president was directed by the board to fix the time within which the structure was to be removed. This was according to the general rule and practice of the board. The question of time was always left to the discretion of the president. He fixed what he considered a reasonable time. In pursuance of this authority, the president of the board did give notice in writing, which prescribed and specified five days as the time within which the structure should be removed. That notice was as follows :
“ Office of Commissioners of Pilots, 69 South Street, )
New York, November 10th, 18.60. )
T.o Cornelius Vanderbilt :
You are hereby notified to remove the block, crib or structure now in course of erection in the waters of the harbor of New York, at the foot of Battery Place, and south of pier No. 1 North river, within five days from the date hereof, and to commence such removal forthwith, the said crib or structure being wholly beyond the exterior line defined and recommended by the commissioners for the preservation of the harbor of New York, and established in and by chapter 763 of the session laws of 1857. R. Sturgis, President.”
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It was served personally on the defendant on the 10th November, 1860, and shortly afterwards on the contractor who was building the pier. The defendant made no objection to the time specified in the notice. He paid no' attention to the notice, but proceeded in the erection of the pier. The Board of Commissioners of Pilots, on the 4th December, 1860, directed the president to advertise for proposals for the removal of the structure, and after receiving and rejecting as informal and unsatisfactory various bids, finally, September 7,1861, accepted proposals of Morris & Cummins, and entered into a contract with them for its removal, to be done and performed pusuant to section 2 of chapter 522 of the laws of 1860. In the meantime an action had been commenced by the people of the state of New York against the defendant, to perpetually enjoin thfurther building of the pier, which was pending at the time of the making of the above contract, and in which an injunction had been granted. The contractors, Morris & Cummins, commenced the removal of the pier about October 12, 1861, and the defendant procured an injunction in the suit of The People v. Vanderbilt, restraining the commissioners of pilots and the contractors from proceeding under their contract, which injunction was not dissolved until the final decision by the Court of Appeals of the case of The People v. Vanderbilt, April 11, 1863. The present action for the penalty was commenced May 15, 1863.
At the close of the plaintiff’s case, the defendant moved for a dismissal of the complaint upon four specified grounds, three of which related solely to a supposed want of validity in the notice of the defendants to remove the obstruction ; the fourth ground was, that the notice was not the act of the board.
The plaintiff’s counsel opposed, the motion, and insisted that the case should go to the jury upon the question of fact whether the notice was the act of the board. The court refused to submit any question of fact to the jury, and granted the motion to dismiss the complaint, ordering the exceptions to be heard in the first instance at the general term, and judgment in tlie
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meantime suspended. The plaintiffs duly excepted, and appealed.
William Allen Butler, for the appellants.
I. The structure in question being wholly outside of the pier line established by law, and being built and maintained by the defendant, without any authority of law, was a public nuisance in the navigable waters of the harbor. It was condemned as such in the case of The People of the State of New York v. Cornelius Vanderbilt, by the court of last resort. (People v. Vanderbilt, 38 Barb. 282 . See opinions of Allen and Ingraham, JJ. pp. 286, 291. S. C. in Court of Appeals, 25 How. Pr. 140 .)
II. The act of April 27, 1860, being a remedial statute designed for the protection and preservation of the harbor of New York for the public benefit, is to be construed with reference to the mischiefs and abuses it was intended to prevent. Although the act denounces a penalty, and is in this respect a penal statute, yet the provision in respect to notice to the" offender is for his benefit. The whole object of the act is satisfied by actual notice, prescribing a reasonable time. (Taylor v. U. S. 3 How. 197 , per Story, J. p. 210. Sickles v. Sharp, 13 John. 497 .)
■ III. The notice to the defendant was sufficient, and the action of the plaintiffs fully complied with the requirements of the law.
1. The defendant was actually notified by a formal notice in writing, issued from the office of the commissioners of pilots, and signed by the president in his official character and with his official designation. It pointed out with precision the illegality of the act of the defendant, called his attention to the fact that he was building a structure in a prohibited place, and required him to remove it.
2. The time within which the removal was to be made was actually “ prescribed and specified in the notice. The requirement of the law in this respect was fulfilled by the terms of the notice, and the defendant was allowed the locus penitentice
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which the provision as to time was intended to secure to him. He raised no objection as to the reasonableness of the time prescribed, but resisted the board on other grounds.
3. The notice itself being by its terms a compliance with the law, and fully apprising the defendant of all that he was entitled to be iriformed of, the sole question which can be raised is whether the giving of the notice was the act of the plaintiff, or, in other words, whether the notice was “ their notice,” within the meaning of the act.
4. The words of the section drawn in question by this inquiry are as follows : “ In case of the building or erection of any such pier, &c. the Board of Commissioners of Pilots shall notify the person or persons building, or erecting, or maintaining the same within a time to be prescribed and specified in their notice, and in case of failure to comply, &c.”
The proof shows conclusively that the giving of the notice was the act of the board. They formally decided as a board that any structure in that part of the harbor would be illegal; they exercised constant watchfulness as a board to prevent its erection; and when the erection was commenced they determined, as a board, to notify the defendant to remove it.
5. The notice was thus “ their notice,” and as it did “ prescribe and specify ” a time within which the removal should be made, it is wholly immaterial whether the time was fixed by vote of the board or arrived at in any other way. The law is silent as to the method of arriving at the time ; it simply requires a time to be prescribed and specified in the notice.
6. The act does not require any formal determination of the board as a prerequisite to the notice, or “ to set the statute in operation.” The fact of the violation is the basis of the notice, and, if that existed, any action of the board, however informal, to effect the removal of the encroachment, was sufficient.
7. Nor does the act require any entry to be made or minutes to be kept of the action of the board in order to make their notice effectual. There is no law requiring the board to
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keep any record of this part of their proceedings in order to give validity to a notice to remove an illegal obstruction. The provisions of the pilotage law of June 28, 1853, (Laws of 1853, p. 921,) do not apply. They relate solely to the government and discipline of pilots. The commissioners act in reference to harbor obstructions under the later acts relating to that new branch of their duties, and the provisions of these acts are all that apply here. (See Striker v. Kelly, 2 Denio, 323 .)
8. But there was, in fact, an adjudication by the board, in their resolution of December 7, 1858, against any structure in this part of the harbor, and there was formal' action of the board, in its corporate capacity, at the meeting at which it was resolved to give the notice. Such action was properly proved by parol, in the absence of any entry on the minutes. (Trustees of St. Mary’s Church v. Cagger, 6 Barb. 576 . Magill v. Kauffman, 4 Serg. & Rawle, 307 .)
9. The time specified in the notice was “ prescribed” by the board. The act of the president in fixing it, pursuant to the authority and direction of the board, was the act of the board. There was nothing to prevent them from exercising this power through their executive officer, and they did so exercise it by a valid delegation to him.
10. The action of the board, subsequent to the giving of the notice, in proceeding to effect the removal, and in going on with it until stopped by the defendant’s injunction, was a ratification of the acts of the president, and if any thing were needed in respect thereto, operated to give effect to the notice as the act of the plaintiffs.
IY. There being no statutory requirement as to the manner in which the board were to proceed, the question whether or not the giving of the notice was their act, was one of fact for the jury, and the judge, at the trial, erred in refusing to submit it to the jury, as requested by plaintiffs’ counsel.
Y. The case is not analogous to those in which private fights are adjudged, or sought to be affected by the action of public authorities, in reference to alleged nuisances, where the question of nuisance depends on extraneous facts, the structure
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in question was a public nuisance per se, which any one had a right to abate, and in respect to which the provisions of the act in question were police regulations to effect their summary removal, and the duties imposed on the Board of Commissioners of Pilots were ministerial and' not judicial. (See Hart v. Mayor, &c. of Albany, 9 Wend. 571 ; Rogers v. Barker, 31 Barb. 447 ; Coates v. The Mayor., &c. 7 Cowen, 585.)
Wm. Curtis Noyes, for the respondent.
I. The penalty is not imposed by the statute for erecting or maintaining the prohibited structure, but for omitting to remove it after a notice from the Board of Commissioners of Pilots, and within such time as the board shall have prescribed and specified in “ their notice.”
II. The said penalty does not commence to run until after the expiration of the time prescribed and specified in the notice of the board. The prescribing, of the time, and a notice thereof, given by the board, are therefore conditions precedent to the accruing of the penalty.
III. These acts must be done by the board in its collective capacity, when legally convened and acting as a board, and cannpt be done by the individuals composing the board when not acting as a board. (2 R. S. 555, § 27. Walker v. Dunspaugh, 20 N. Y. Rep. 170 . People v. Supervisors of Chenango, 1 Kern. 571. Horton v. Garrison, 23 Barb. 176 . Downing v. Rugar, 21 Wend. 178 .)
IV. The necessary action of the board should be shown, and can only be shown, by the minutes of its proceedings.
' V. The power to prescribe the time to be specified in the notice is vested by the act exclusively in the board of commissioners. It is judicial in its charactor; it involves the exercise of discretion, and cannot be delegated by the board to its president. Rogers v. Barker, 31 Barb. 447 .)
VI. The board of commissioners failed in this case to do the acts necessary to subject the defendant to the penalty claimed.
Assuming for the moment that the informal' direction of the members of the board to the president to give the notice was a
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valid exercise by the board of its power to notify, the omission of the board to determine and prescribe the time to be allowed for the removal was fatal, and could not be supplied by the president, either under any express or implied delegation of power.
VII. The insertion by the president in the notice of removal of the words, “ within five days from the date hereof,” was unauthorized. He had no power under the statute to fix that or any other time ; the board could not give him that power ; they were bound to fix the time themselves. For these reasons, the notice was not the notice of the “ board,” but simply the act of the president.
VIII. If the president had executed the direction of the board, he would simply have given a notice to the defendant to remove the crib. That notice, if given in the name of the board, would have been the notice of the board, but it would not have subjected the defendant to the penalty, for want of a determination and specification of the time allowed for the removal. The president had no power to substitute his discretion or judgment in fixing.his time for that of the board, and thus supply the deficiency in their action. No usage of the board, even if clearly proven, could give validity to such a proceeding.
IX. The notice, obedience to which is enforced under the penalty in question, must be the notice of “ the Board of Commissioners of Pilots.” It must be given by them as a board, and it should show on its face that it is so given. The notice proved is not and does not purport to be a notice from the “board.” It is dated, “Office of Commissioners of Pilots.” It is signed “ R. Sturgis, President.” It is not even signed “ by order of the board," nor is there the slightest word to indicate that it is given by authority or with the sanction of the board. The “ board ” is not even mentioned in it,- nor is the act of 1860 referred to. It is, to all appearances, the act of the president alone, and the defendant was not legally subject to the penalty for disregarding it.
X. The only proof of any action of the board in the matter
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consists of evidence of informal directions of some members not named, and alleged acquiescence of others, not entered on the minutes nor put in the form of resolutions, nor having received even the formality of a vote. The official action of a board of public officers seriously affecting private rights cannot be proved in this loose and unreliable manner. There was, therefore, no competent proof in the case of the requisite action of the board.
XI. There was no adjudication by the board prior to the notice given by the president, and after the crib was sunk, which set the statute in operation.
XII. An action for the penalty in question can only be maintained after a removal -by the board of commissioners of the structure complained of. (See §2 of act of 1860.)
XIII. The complaint was properly dismissed.

In this case, I think there is but a sir/gle question for us to pass upon, and that is, “ Was the notice given on the 10th day of Xovember, 1860, signed E. Sturgis, President, and the action of the board bringing such notice into existence, such as the law contemplates, and such as would enable the penalty mentioned, in the act of 1860, to attach ?” And in order to ascertain this, it is necessary to examine the several acts passed in relation to the board of pilot commissioners.

The language of the act, section 2, is as follows : “ The Board of Commissioners of Pilots shall notify the person or persons building, erecting or maintaining the same, within a time to be prescribed and specified in the notice.”

And the same section, at another place, provides that such person or persons shall also pay a fine of $25 a day for each and every day during which such obstructions shall remain after such notice. The plaintiff, after putting in evidence the act creating said board, and the several acts passed subsequently in relation thereto, together with the act imposing the penalty^ and giving evidence showing that said structure had been erected outside the pier line, and proving the service of the notice, per

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sonally, rested his case. The defendant’s counsel thereupon moved for, and obtained, a dismissal of the complaint upon the following grounds :

1. That the order directing the crib or structure to be removed was not in writing, entered in the minutes of the board, of commissioners, and was invalid.

2. That the time within which the removal should be made was not fixed or prescribed by the said board.

3. That there was no adjudication by said board prior to the notice given by the president, and after the obstruction was there, which set the statute in operation.

4. That the notice served upon the defendant was not the act of the board.

For the purpose of determining whether all or any of the grounds taken by the defendant’s counsel are good and valid, it may be necessary to examine at some length what duties are imposed upon said board of commissioners by the act creating them, in connection with the law which confers jurisdiction upon them in this case.

Section 8, of the act passed June 25, 1853, imposes on the commissioners the duty of requiring their secretary in person, or by deputy, not only to be in daily attendance at their office on all ordinary business days, during reasonable office hours, but he shall keep a proper book, or books, in which shall be written by him all the rules and regulations made by them, and all their official transactions and proceedings, and whatever else may be deemed by them proper and useful and immediately pertaining to their duties, or to the pilot service.

It may be said that the alternative conjunction, “ or,” as used here, would permit them the exercise of the alternative of compelling him to enter in said book or books, either, all their official transactions and proceedings, and whatever else may be deemed by them proper and useful, and immediately pertaining to their duties, or to the pilot service ; this would simply be absurd, and the word “ or” has been improperly used for the absolute conjunction “ and,” and he is, therefore, compelled to enter all the proceedings of their official trans

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actions, &c., &c., and also all that thrqugh them pertains to the pilot service. The 'entire sentence must be taken as absolutely conjunctive. To permit the exercise of such a discretion would defeat the entire act.

It clearly was intended that whatever duties section 2, of' the act of 1860, imposed upon the board, should be performed by them in conformity with the act creating said board, and under which they perform all their ministerial and judicial duties. For instance, if the legislature was to take away from one court a certain class of cases over which it'had exclusive jurisdiction and confer such jurisdiction upon another tribunal, and there stopped without providing how such duties should be performed, certainly, in the absence of such provision, the duty so imposed would have to be performed by the tribunal upon whom the new jurisdiction was conferred, according to the rules and practice existing in said court before such duties were imposed.

It cannot be reasonably contended that the giving effect to a statute which entitles this board to prosecute to judgment, and thus deprive an individual of his property under a penal act, is not an “official transaction and proceeding.” And section 25 of said law provides : “ That before any person shall be proceeded against, on any complaint, such person shall be notified in writing, signed by the secretary, and requesting him to appear before said commissioners, specifying the nature and substance of such complaint; and that said notice should be served personally, at least five days before the time fixed for appearance.” The commissioners have a right to postpone and adjourn such hearing; and this section goes further, and says, that the proof of such service of notice “ shall only be prima facie, but not conclusive evidence of his liability to pay such fine or penalty.” And the 26th section gives the commissioner power to issue subpoenas, and subjects the parties, disobeying such subpoenas to the fines and penalties of witnesses in civil suits at law. The board thus created and constituted must, in all its proceedings, strictly comply with the acts relating to it, and cannot, at informal meetings, and in a

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loose manner, mulct a person in a penalty. On the contrary, they must hold formal meetings of the hoard; that such meetings must be regularly convened; and that minutes of such meetings must be kept, and entered in their books.

It is quite clear, to my mind, that the members of the board themselves, when acting upon the subject of this crib, deemed it necessary to hold sessions, and keep regular minutes of the proceedings, because we find Mr. Nash, the clerk, or secretary of the board, testified “ that a resolution was offered and passed, to watch a proceeding introduced in the board of councilmen, allowing Mr. Vanderbilt to erect the pier in question, and then and there passed a resolution, and entered the same fully upon their minutes, to instruct their counsel, if the resolution passed the board of councilmen, to resist the building of said pier.” That other resolutions were passed by the board at different times, about matters connected with this pier or crib, but he says that he never drew or entered any resolution of the board about notifying Mr. Vanderbilt in regard to the removal of the crib, and further that there is no such entry in the book of minutes, so that we find formal meetings of the board of commissioners, and the entry of the same in their minutes about other matters connected with this dock, but no entry whatever about this notice; nor can I find, from the testimony, that any regular session of the board took place in regard to the removal of this crib, or the notice to remove the same ; nor can I find that the board, at any of its sessions, nor in any manner whatever, prescribed or fixed a time for its removal.

Now, of all other resolutions to be passed or entered by the board of commissioners in their minutes, the one that by virtue of its own force and power attaches a penalty,"and through and by virtue of which they seek to deprive a person of his' .property, is the most important, and, to my mind, the resolution of all others that should have been passed by the board, at their regular meeting, and entered at length upon their minutes. Indeed, it is only through a resolution passed by their board, regularly organized, and fixing and prescribing the time

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of the removal and the form of' notice, and entered fully upon the minutes of its session, and after all this, the proper service of such resolution, and notice upon the defendant in this case, can they seek to enforce this penalty ?

They must pursue the strict letter of the statute before they can impose a penalty, or deprive a person of his property.

Statutes, penal in their nature, must be strictly construed. (3 Comst. 405. Culver v. Haydn, 1 Ver. Rep. 359. Spear v. Dietz, 9 id. 382. And Adriance v. McCafferty, ante, p. 153.)

The power to prescribe the time to be specified in the notice, is vested in the board- of pilot commissioners, exclusively; it involves the exercise of a judicial discretion, which cannot be delegated.

If a statute confers certain powers upon certain officers, created under such statute, such powers cannot be delegated by such officers.

A statute always limits the powers it confers, and a strict compliance must always be’accorded to such statute. (Shankland v. The Corporation of Washington, 5 Peters, 593.) So with the Board of Commissioners of Pilots, certain powers are conferred upon them, which they cannot delegate.

I am clearly of opinion that the board failed to perform the acts necessary to subject the defendant to the penalty claimed. The notice was not the notice of the board, in proper form, but the notice of an individual; and the fact of his adding “president” to his name gives it no more virtue than it would have without such appendage.

The notice must be a notice from the Board of Commissioners of Pilots, and it should show on its face that it was such a notice.

The notice in question is signed by “ E. Sturges, President.” President of what ? It is not signed by order of the board,' nor is there any thing on its face to show it emanated from the board ; it is to all appearance the act of an individual.

In the case of Mygatt v. The Supervisors of Chenango Co., (1 Kern. 563,) it was held that one of a board of assessors

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could not make the assessment.; the assessment should he made by the board. (Powell v. Tuttle, 3 Comst. 396.) It was held, in the case of Horton v. Garrison, ( 23 Barb. 179 ,) that where an authority is to be exercised by several of a firm, they must all concur or meet and consent, and majority agree to the act.

It is a well settled principle of law, that in the exercise of public as well as private authority, either ministerial or judicial, all persons to whom such power is given must act together. In answer to the points urged by the counsel for the plaintiffs, that this structure was a nuisance per se, and that the plaintiffs had a right, consequently, to remove the same, I would simply say, that the rule of law laid down in the case of Rogers v. Baker, in 31st Barb, that the rights of property of every description are qualified and restricted by the well settled rule that they shall be so exercised as not to injure others, but in cases of great and imminent danger and emergency ; and the fact that they are injurious to others, must be first established by the usual and customary proceedings of a trial in a competent tribunal, before they can be taken away or destroyed. Even if the board had the right to exercise this power, it must be exercised in subordination to the judicial authority of the statute, and before this board could proceed to remove the obstructions, they would be first compelled to call together the board, and upon the proper proof adjudicate upon the same, and thus should state in the adjudication, most specifically, what the nuisance is.

The exceptions must be overruled, and judgment directed to be entered, dismissing the complaint.

Moncrief, J. The right to take private property, in any form, without the consent of the owner, is a high prerogative of sovereignty which no person, either individual or corporation, can exercise without an express graph

Every statute derogatory to the rights of property, or that takes away the estate of a citizen ought to be construed strictly; a corporation created, or a grantee of a power conferred, by statute, is strictly limited to the exercise of those powers which

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are specially conferred upon.it or him. ( 7 Hill, 433 . 4 Peters, 152.)

Section 1 of the act in question prescribes and limits the time for removal of certain specified nuisances, and directs that the plaintiffs notify the owner, &c. to remove the same within three days after such notice.

The second section, under which the defendant is Sought to be charged, requires the Board of Commissioners of Pilots to notify the person or persons * * within a time to be prescribed and specified in their notice.” This provision plainly contemplated the presence and participation of the board of commissioners of pilots as a corporate body, in the official act committed to their several and united discretion and judgment, to determine in each instance not provided for in the first section what time should be fixed within which the removal should be made. It is well established that in the exercise of a public as well as private authority, whether it be ministerial or judicial, all the persons to whom it is committed must confer and act together, unless there be a provision that a less number may proceed. (Powell v. Tuttle, 3 Comst. 401. App. 1 Seld. 144.)

The plaintiffs were called upon formally and deliberately in the exercise of a fair, just, legal discretion, to affix and appoint a reasonable time within which the defendant should be required to remove the obstruction. If this were not so, the legislature would have specified a time, as in the first section,

This was a judicial act to be performed by them, for an error of judgment in which they are not responsible, and the execution or direction issuing after a proper adjudication and the service of notice and expiration of the time limited thereby, would be a justification to the person removing the obstruction. (14 E. L. and Eq. 145. 29 id. 131. 3 Term Rep. 380.) The latter is a ministerial or mechanical act and analogous to the serving of a notice, which could be performed by any stranger to the board.

The board never did determine or prescribe the time within which the defendant should remove the obstruction ; there was discussion, and it is said a unanimous action of the board to

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notify the removal. This is not what the law demands or Avhat the alleged wrongdoer is entitled to ; there must he an adjudication by the board as a corporate body that a notice requiring the defendant to remove his obstruction within a certain specified time, should be given to him. How otherwise could they notify him to remove, &c. within a time to be prescribed and specified in their notice ? Unless they fixed and appointed the time, it would not be their notice. The power conferred upon the board could not be delegated. The legislature, it must be assumed, confided in the intelligence, prudence and integrity of the respective members of this body when the power was entrusted to them of summarily disposing of property or individual interests ; and it is quite enough tha such a body, although acting arbitrarily and without a previous hearing of the party to be affected thereby, are shielded by law for their proper acts under its sanction, without saying that they can delegate their power to one of their number or to a stranger. The public as well as those to be affected thereby are entitled to the best individual intelligence in discussing and the Avisest joint discretion in arriving at a conclusion upon each particular case coming before the board. (3 Comst. 401.) Whenever a statute gives a discretionary power to. any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts. ( 20 Barb. 620 . Hart v. Mayor of the city of Albany, 9 Wend. 594 .) There is no suggestion in the statute as to the mode of ascertaining the “time” to be given to the owner—whether by ocular view by all, or by some of the commissioners reporting the facts, or by the inherent knowledge of the respective persons named as that body; it is clear that, by some means presumed not to be in possession of the law makers, these gentlemen, residents of this city, were expected to ascertain and determine and specify a limit for removal which should be reasonabble, just and proper. Again : the action, if any, of the board of commissioners, even if the power to prescribe and specify the time, could be delegated to another, rested wholly
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upon tradition—the memory of the members present at its meetings. It was held in Meeker v. Van Rensselaer, ( 15 Wend. 399 , affirmed in 18 id. 169,) that “ the Board of Health is a tribunal created by statute, clothed with large discretionary powers ; and being a public body, its acts should be proved by the highest and best evidence which the nature of the case admits of. Every proceeding of a judicial character must be in writing. It is not to be presumed that minutes of their proceedings are not kept by such a body, and that determinations which seriously affect the property of individuals were not reduced to writing, but rest in parol.” In the case of Van Wormer v. The City of Albany, (Id. 262,) the minutes of the board were incorporated with the proceedings of the corporation of which the board of health were members, &c. The plaintiffs were proven to have kept minutes of other transactions and proceedings, and there was no entry of any action whatever relating to a notice to be given to the defendant, or of a time being prescribed or specified or directed to be prescribed or specified for the removal of the obstruction in question. The conclusion of law upon such facts, must arise that none was made, directed or given, and it would be absurd to submit to a jury in the face of such entries, the question whether the statements of individual members constituted the action of the board. Suppose that after the alleged time of giving the supposed direction to the president, all the members of the board had departed this life, could it be proven by some one accidentally present at a meeting or who overheard the statements of members ?

Mere parol evidence of occurrences at meetings, but not entered upon the minutes of the proceedings of the board, and without any formal adoption of a course of action, was therefore not admissible to establish as a fact that the time was prescribed by it in the manner intended by the statute.

I therefore concur in holding that the proper steps were not taken judicially in the manner prescribed by the statute, to. compel the defendant to remove the supposed obstruction. I

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do not deem it necessary, therefore, to discuss the other questions in the case.

Monell, J. also concurred in overruling the exceptions, and for judgment of dismissal of the complaint.[1]

(a) (a) The above judgment was affirmed by the Court of Appeals. (See 31 N. T. Rep. 265.)

Cases cited

Statutes and regulations cited