The complaint alleges that the defendant was a contractor with the canal commissioners to keep in repair the first section of the Chenango canal, during the year 1856; that in September of that year the plaintiff was navigating the canal with his boat, the "B.F. Adams," and entered lock No. 30 on the section in question; that the lock-gates were old, rotten and insufficient, and gave way, causing great injury to the plaintiff's boat and furniture, and that the defendant had previous notice of the condition of the gates. The complaint further alleges that the defendant had charge, direction and control of the said section of the canal, and that it was his duty to keep the same, including the locks, in good repair and in navigable condition.
At the circuit the plaintiff was nonsuited upon his opening The general term reversed the decision of the judge at circuit. The defendant appeals to this court, stipulating that judgment final may be awarded against him, in case he is unsuccessful in his appeal.
The present case has been twice elaborately argued in this court, and similar cases have been twice carefully presented at the general terms of the Supreme Court.
The proposition is claimed to be well settled, that when a franchise is conferred by the sovereign power upon a corporation or individual, in consideration of which certain duties are required to be performed, such corporation or individual is liable in a civil action, to a party sustaining an injury peculiar to himself, from neglect of performance. To this are cited numerous cases, the most prominent of which *Page 397 is that of Mayor of Lyme Regis v. Henley (1 Bing., N.C., 232; 3 Bar. Ad., 77). It is claimed, on the other hand, that Chamberlain was simply a party to a contract with the canal commissioners, by which he undertook to keep certain locks in repair, and that, if he failed in the performance of his contract, he is liable to the other party only, and that strangers to the contract have no claim upon him for its breach. Many authorities are cited to this proposition, the general principle of which is not disputed.
Prior to the passage of the statutes of 1854, 1855 and 1857 hereafter to be mentioned, the repairs upon the canals of this State were made by officers appointed by the canal board, called superintendents of repairs. These officers were required to execute bonds for the faithful performance of their trusts, and it was their duty, under the direction of the canal commissioners, to keep in repair the sections of the canal and locks connected therewith, committed to their charge, to make all necessary contracts for that purpose, and faithfully to expend the moneys intrusted to them by the canal commissioners. (1 R.S., 236.)
The same statute (p. 250) provided that all suits for penalties and forfeitures, or for damages in behalf of the State, should be prosecuted in the name of the people of the State by such persons as the commissioners of the canal fund, in their regulations, should direct, and that the moneys received should be paid over to such commissioners. It was thereby also provided in numerous cases, for injuries to the canals and their structures, that the suits should be brought in the name of such superintendent.
In Adsit v. Brady (4 Hill, 630), it was held that this superintendent, under the statutes cited, was a public officer; that he had the care and control of the canals, subject only to the general direction of the canal commissioners, that it was his duty, without waiting for orders from the commissioners, to repair a breach in the canal or to remove obstructions from it; that, having left a rock remaining in the canal, after notice of its presence, by which the plaintiff's boat and cargo *Page 398 were injured, he was responsible in an action to recover damages for such injury.
The same principle was announced in the case of Shepherd v.Lincoln (17 Wend., 250), where the superintendent was engaged in repairing a bridge, and his workmen left it so insufficiently guarded at night that the plaintiff and his horse and wagon fell through the bridge and were seriously injured. The defendant was adjudged to be responsible for the damages. Both of these cases were determined by the late Supreme Court, the opinion in the first case being given by BRONSON, J., and in the last by COWEN, J., and are authority in this court. The superintendent was condemned on the ground that he was a public officer, and that he had neglected his duty.
What constituted him a public officer, or upon what principle was it claimed that he held a public office? An office is defined to be "that function by virtue whereof a man hath some employment in the affairs of another, as of the king or of another person." (COWELL, 2 Tomlin. Law Dic., "office.") "And every man is a public officer who hath any duty concerning the public, and he is not the less a public officer where his authority is confined to narrow limits; because it is the duty of the office and the nature of the duty which makes him a public officer, and not the extent of his authority." (Id., and Carth., 479.) This principle was applied to commissioners to lay out a road (People v.Hayes, 7 How. Pr., 248), who were held to be public officers. It was decided by the late chancellor, and by the late Court of Errors, that attorneys and counsellors at law were public officers, and held a public trust and office, within the meaning of the Constitution. (Seymour v. Ellinson, 2 Cow., 28, 29, and note; Case of Daniel Wood before the chancellor.)
Commissioners appointed by the governor under a statute, to superintend the construction of a building, are officers within section 16, article 4 of the Constitution, which provides that where the duration of an office is not prescribed by the Constitution, it may be declared by law, and when *Page 399 not so declared, shall be during the pleasure of the appointing power. (People v. Comptroller, 20 Wend., 595.)
The keeper of the Albany county penitentiary is a public officer, within section 124 of the Code, which enacts that actions against public officers for acts done by virtue of their office, shall be brought in particular counties. (Porter v.Pilsbury, 11 How. Pr., 240.) A collector of a village tax, appointed by the trustees of the village, is held to be a public officer, within the statute providing for the punishment of official delinquency. (The People v. Bedell, 2 Hill, 196.)
I conclude that the superintendent was a public officer, because he was intrusted with the public duty of the management, care and control of the canals of this State, or a portion of them, and was intrusted with the protection of its structures, with the power of directing the movements of those engaged in their navigation, and with the power to bring suits in behalf of the State. The fact that he was appointed by the canal board does not appear to be important. That board is itself but a subordinate creation, for the execution of certain specific duties. It is the character or duties of the position, and not the mode of appointment, that determines whether the position is an office or a simple employment. The superintendent, as stated, was appointed by the canal board. The keeper of the penitentiary, above mentioned, was appointed by the supervisors of Albany county, in conjunction with the mayor and recorder of the city. The village collector was appointed by the village trustees. The persons designated to superintend the construction of the public buildings were named by the governor. The commissioners to lay out a road were designated by an act of the legislature, while the office of an attorney and counsellor was within the possession of any person having the necessary qualifications.
I think the defendant in this action, as a contractor under the statutes of 1854, 1855 and 1857, was invested with the powers, and that he is subject to the liabilities of a public officer. *Page 400
By the act chapter 105, Laws of 1857, the canal board is authorized to let by contract, under such regulations as the board shall prescribe, any or all sections of the canals of this State, where, in their judgment, the repairs may be made more economically than by the superintendents. It is a mere change of instrumentalities; in each case, under the regulation of the board, and for the purpose of economy.
By section second of the act, the repairs are to be made under the supervision of the resident or division engineer, who is to determine whether they are promptly and properly made, and with suitable materials. This section also provides, in substance, that the contractor is intrusted with the management of the locks and the general care of navigation, as his compensation is to be withheld, if the engineer certifies that the locks are not well and properly attended, or the navigation is not kept free from jams from boats, timber or other obstructions, or that the feeders are neglected, or that there is not sufficient water for navigation.
By the fifth section of the same act the person so contracting for repairs is empowered to sue, in the name of the State, and recover for all trespasses upon the canal or other works, or upon any of its structures, and recover the same penalties imposed by law or by resolution of the canal board, as may be recovered by a superintendent; and this includes the power at his discretion to seize and detain all boats navigating the canals, until the determination of such suits. (Statute Powers and Duties of Canal Board, § 292, [171]; 1 R.S., 247.) By the same section of the statute he is authorized to sue in his own name and recover to his own use, all damages he may have sustained in consequence of such acts.
By section 5 of the act of 1860, ch. 213, it is provided that any officer, agent or employé of the State, contractor for canal repairs, any person in his employ and any other person having charge or control over the canals of the State, who shall directly or indirectly agree to receive any money, c., for the use of water, c., shall be deemed guilty of a misdemeanor.
In connection with the right to sue in the name of the *Page 401 State, heretofore granted, the contractor has authority to direct the floats which may be collected near a breach, to move backward or forward, or to lie in such place as he shall think advisable, and for a refusal to comply promptly with his directions, the person in charge of the float shall be subject to a penalty of ten dollars. (No. 42, Canal Reg.) So if any raft or tow of timber consists of too many sticks of timber, or extending too far outward, or approaches too near another tow, the owner is subject to a penalty of ten dollars, to be collected by the contractor. (Reg. 43.) By regulation No. 2, if a boat draws too much water, the contractor may immediately compel him to unload and to pay a fine of $25. So if she does not carry a proper light, or is not properly moored at a dock, or is too slow in entering or leaving a lock (36, 37, 38), or has not a proper rudder, or if her owner attempts to open a lock gate (44, 46), a like penalty is incurred, to be recovered by him.
It would be tedious to go through with the canal regulations or statutes in detail, and it is sufficient to say that the contractor is authorized to sue, in the name of the State, for breach of the canal regulations, from No. 2 to No. 58, with a few exceptions, and for breaches of the statute provisions from 152 to 182, with a few exceptions (see Canal Reg., 66), and that these contain the entire system for the government of the canals, their maintenance, their police regulations and their litigations.
This entire control of the great public works of the State, the power of instituting suits in the name of the people, of seizing and detaining every float, for what he may allege to be a breach of the law or of the canal regulations, the building, repairing and protecting all the canal structures, I think devolves upon him the duties of a public officer. Indeed, I am unable, upon a careful examination of the statutes, to find a single important power, formerly invested in the superintendent, of which the contractor is now deprived. They are all given to him affirmatively.
The chief difference in their positions arises from the circumstance, that the superintendent was appointed by *Page 402 the canal board at a fixed salary, and used the funds and the credit of the State in carrying on his operations, while the contractor is ascertained by a public bidding, subject to the discretion of the board, uses his own funds, furnishes his own materials, and may make or lose money on the result. This does not, in my judgment, affect his position as being charged with the duties of a public office.
I do not discover in these laws any provision that requires the contractor to take the oath required by the Revised Statutes to be taken by every public officer, nor am I aware of any portion of the statutes quoted which would render him indictable in the event of failure to perform his duties. It is possible that he may not, therefore, be technically a public officer. I have, however, endeavored to show that he is allowed to exercise the powers of such an officer, and that the substantial control and management of that great public interest known as the navigable canals of this State, with extraordinary powers, is intrusted to him. He is invested with the powers and duties of a public officer, and if he neglects to perform them, and an individual sustains damages thereby, I think he should be liable as a public officer.
The judgment should be affirmed.