[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 267
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 268 The action is for a penalty prescribed by a positive statute; and the conditions upon which the penalty attaches must, therefore, be shown to have existed. The penalty imposed by the act is a fine of twenty-five dollars for every day which the obstruction shall remain after a notice from the board of commissioners of pilots to the person erecting or maintaining the obstruction. The object of the notice, *Page 269 and the act to be performed under it, are very imperfectly described in the statute — so imperfectly, indeed, that I have great doubts whether the act is of any legal effect in regard to the imposition of a penalty. The person offending is to be notified; and it is obvious that he is intended to be notified to do something, and to do this something within a time to be prescribed and specified in the notice; but what this something is, is not stated, and can only be conjectured from other parts of the section. It is inferable that he is to be notified to remove the obstruction, because the fine of twenty-five dollars attaches every day until it is removed. But I doubt very much whether the inference or implication as to the act to be done is as clear as if it were expressly written in the statute; and unless the implication exists to nearly that degree of certainty, I think the act is radically defective. In case of failure to comply with the notice, the board of commissioners may cause the obstruction to be removed, and the offender becomes liable for the expenses of the removal, and to the fine in question. But to subject a party to consequences so highly penal, the contents of the notice should be plainly prescribed in the act, so as to make a compliance with it, and the consequent avoidance of the penalty, practicable. I have, therefore, great doubt whether there is not a radical and fatal omission in the terms of the act in regard to the contents of this notice.
But, waiving this question, and assuming that the notice is to require the removal of the obstruction, I am of opinion there is another difficulty in the plaintiffs' case which is insuperable. The board of commissioners have never given the notice required by the act. There was a notice from the president of the board, and that did not purport to be the act of the board, nor pursuant to their direction, nor was it given in their name; and, possibly, it might have been disregarded for that reason. But, if we may presume, in the absence of evidence, that it was given under the authority of the board, in the manner required by the law, the presumption is effectually repelled by the positive proof in the case. It affirmatively appears, not only that there was no written resolution *Page 270 or order of the board directing the notice, and no record of their proceedings, but that, while the board verbally ordered a notice to be given by their president, they did not, verbally or otherwise, prescribe the form or substance of the notice, and especially they did not prescribe or specify the time, or any time, for removal, which was contained, or to be contained, in the notice. I am of opinion that this was a fatal defect in their proceedings. The act required it to be their notice, and not the notice of the president. They were to prescribe the time, and not their president. The time was discretionary with them, and their judgment in regard to its period and duration was exacted by the act. The notice was, by law, to be reasonable, and susceptible of being obeyed. The obstruction could not be removed in a minute or an hour, probably not in a day. These circumstances — the nature of the obstruction, the time required for its removal, the impediments to navigation arising from its continuance — were all proper for their consideration, and the consideration of them in effect vested in them by the terms of the act. This was, in its nature, a judicial act, that is, one calling for the exercise of judgment and sound discretion. It was, therefore, to be exercised personally by them, and could not be delegated to a third person, or one of their own number.
It is no sufficient answer to this view of the case, in my judgment, to say that the defendant had no legal rights and no lawful property in this structure which were capable of violation by a short or insufficient notice, and, therefore, that he has no right to complain in regard to the nature, terms or origin of the notice. The contrary is plainly to be gathered from the terms of the act. It was designed that the notice should be reasonable, in view of all the circumstances of the case — the magnitude of the structure, the time it would take to remove it, the dangers or inconveniences arising from its presence in the river, and, perhaps, the good or bad faith under which it had been erected. We may infer that a considerable amount of labor and a considerable quantity of valuable material had been expended in its construction; that these were of some value to the defendant, and were not *Page 271 intended by the legislature to be needlessly or arbitrarily sacrificed. And, whatever may be our opinion of the motives which induced the erection of this nuisance (and we are not here sufficiently in possession of all the facts of the case intelligently to judge of them), the construction of the act must be determined upon general considerations growing out of its language and apparent spirit and intent.
I am of opinion that the complaint was properly dismissed; that the judgment of the court below was right, and should be affirmed.
DENIO, Ch. J., WRIGHT, JOHNSON, SELDEN, and MULLIN, JJ., affirm on the last ground stated; all concur in affirming the judgment.
*Page 273Judgment affirmed. *Page 272