The only question in this case is whether the canal board have power to appoint superintendents of repairs upon that portion of the canals of the State that have been completed, the repairs of which have been let by contract. The power to appoint this class of officers, was conferred upon the board by the Revised Statutes (vol. 1, p. 114, § 6). The duties of this class of officers are prescribed by statute (same vol., p. 269, 270). Their primary duties were to keep that portion of the canals committed to their care in repair, and to obey the orders of the commissioner in charge in respect thereto. This power of appointment continued in the board until 1857, and in that year an act was passed (Laws of 1857, vol. 2, p. 214), by the nineteenth section of which this power was taken away from the canal board. By the ninth section the power to appoint superintendents upon the unfinished portion of the canals was conferred upon the contracting board, and by the same section, it was made the duty of the latter board to dispense with the services of this class of officers in all cases where the repairs of the canals were placed under contract. This provision remained in force until 1860, when an act was passed (Laws of 1860, p. 152) repealing certain portions of the act of 1857, among which was section three, and expressly enacting that all laws and parts of laws repealed by the nineteenth section of said act (Act of 1857), which are not inconsistent with the unrepealed provisions of said act, shall be, and the same are, hereby revived, and shall be in full force after the passage of this act. There is nothing in the unrepealed portions of the act of 1857 inconsistent with the power of the canal board *Page 388 to appoint superintendents, unless it is certain provisions authorizing the contracting board to let the repairs upon the unfinished portions of the canals by contract. This furnishes no argument against the power of the canal board to appoint the officers in question, for the reason that section nine, which dispenses with their services in cases where the repairs were under contract, is expressly repealed. This shows that the legislature designed to and did authorize the employment of superintendents upon the canals, when the repairs were placed under contract. It thus appears that the power of appointment of superintendents was restored to the canal board. That such power was derived from the Revised Statutes, which in this respect, were revived by the act of 1860, supra. The only remaining statute claimed to have any bearing upon the question, is an act to amend an act, entitled an act to enlarge the powers and define the duties of the contracting board (being the act of 1857, above referred to). The only part of this statute having any relation to the question under consideration, is section twelve (Laws of 1867, vol. 2, p. 1544), which provides as follows: "Nothing herein contained, nor in the act hereby amended, shall authorize the appointment or continue in office beyond the first day of June next, any superintendent of repairs on the canals of this State." We have already seen that the power of appointment in question, was not at all given by the act of 1857 (the act amended by that of 1867), but that, on the contrary, it was given by the Revised Statutes and taken away from the canal board by section nineteen of the act of 1857. That by the act of 1860, section nineteen was modified, and the power of appointment, conferred by the Revised Statutes upon the canal board, of this class of officers, was restored by reviving the laws repealed by that section. It follows, that the above clause in the act of 1867 does not at all touch the power of appointment by the canal board, because its language is expressly confined to that and the act of 1857, from neither of which statutes is the power derived, but it is derived from other and independent statutes, which are, by the very language, excluded from the above clause in the act of 1867. *Page 389 It is argued, however, that the statutes, although not expressly so declaring, shows a clear intention in the legislature to abolish the office of superintendent of repairs. Had this been their intention, why was it not so declared? Why provide that no authority should be implied from that, and the act of 1857, for their continuance beyond the first of June, instead of saying that the office should be abolished from and after that date? Can it be supposed that the legislature was not aware that the authority of the canal board to make the appointment, was not at all derived from the act of 1857, and that the act then on its passage in no possible way could confer any such authority? The more reasonable presumption is, that, as, by the act of 1857, this authority was conferred upon the contracting board, the clause in the act of 1867 was inserted to prevent any implication of an intention to revive such authority in the latter board. It is further argued, that there could have been no intention to continue the office, for the reason that it has been rendered unnecessary, by the system of contracting for the repairs. The answer to this is, that, whether the office is or is not necessary is for the determination of the legislature and not for the courts; that the statutes confer the power of appointment upon the canal board, and, by not making its exercise imperative, have vested that body with a discretion to make the appointment. That body has duly appointed the relator, and the defendant must act as to the approval of his official bond, the want of power in the canal board to make the appointment being the only ground upon which the defendant refused to approve the bond.
The judgment of the Supreme Court awarding a mandamus to him to approve the same, must be affirmed.