The decision of the Commission of Appeals in the case of Ryder v. Smith is directly in point upon the main question involved in the present appeal, viz., whether Abram Barre was the proper officer to give the notice and make the order for the disobedience of which the penalties were recovered in this action. The Commission of Appeals determined that question in the affirmative, and sustained a recovery against the same defendant, as in this action, for other penalties incurred by the disobedience of the same order. Very strong reasons are required to induce us to review a decision of the Commission of Appeals, when, as in this case, the same question subsequently arises upon the same state of facts. The ground upon which we are asked to re-examine the present case is, that the opinions delivered in the case of Ryder show that the learned commissioners, although concurring in the same final result, placed their decision upon different grounds, which are inconsistent with each
This difference of opinion has led us to examine with care the various statutes bearing upon the subject, and the result of our examination has been to satisfy us that the view taken by Hunt, Commissioner, of the effect of those statutes, is the correct one; that the inspectors mentioned in the thirty-third section of the act of 1847 are a different class of officers from, the inspectors of turnpikes mentioned in the Revised Statutes and in the act of 1848, chapter 45.
Those refered to in the act of 1847 are limited in number to three in each county; they hold office only during the pleasure of the board of supervisors; their duties relate to the construction of the road, and require a different degree of knowledge and skill from that which is required for the inspectors appointed under the Revised Statutes and the act of 1848, whose sole duty was and is to entertain and act upon complaints that the roads are out of repair.
These latter were, under the Revised Statutes, appointed by the governor, and under the act of 1848 by the supervisors. They are, in the Revised Statutes (1 R. S., 100), enumerated among the officers of the State. They are not less then three nor more than five in each county. (1 R. S., 100; id., 585, § 39; Laws of 1848, chap. 45.) Their term of office is two years. (1 R. S., 115, § 20; Laws of 1848, chap. 45.) Their duties áre prescribed by 1 R. S., §§ 40, 41, 42, and have relation solely to keeping the road in repair and unobstructed.
The inspectors mentioned in section thirty-three of the act of 1847 are a distinct class of officers, and take the place of
The argument that, by the act of 1847, the duties of these-permanent inspectors were cast upon the inspectors mentioned in section 33 is based wholly upon the -language of section 47 of the same act. In the construction of that section, we concur with the opinion of Hunt, Commissioner. The language of the section is rendered obscure by the interpolation, out of their proper connection, of the words “ and all inspectors and other- officers named therein;” but we think the, intention is apparent to apply to turnpike and plank-road companies, constructed under that act, the provisions of the. Revised Statutes respecting complaints against turnpike conn panies when out of repair, their inspection, and the throwing open of their gates in case of failure to repair. If it had been also the intention to transfer to the inspectors mentioned in section 33 the duties of the general turnpike inspectors, designated in the Revised Statutes, to act upon these complaints, such intention should have been distinctly expressed. Such an innovation upon the existing system ought not to be inferred from doubtful language; and, on a view of the whole act, the intention to- make it is not clearly apparent.
The reasoning of Hunt, Commissioner, upon the subject, and his references to other statutes in confirmation of this view, are so full that it is not necessary now to go further into detail.
The appellant makes the further point that but one penalty should have been recovered, and cites the case of Fisher v. The N. Y. Central R. R. Co. (46 N. Y., 644). That case was decided upon the peculiar phraseology of the statute, which was held to limit the recovery in any action to fifty dollars, in addition to the excess of fare paid, without regard to the number of times it had been exacted. The act did not contain the words “for each offence.” ¡Neither did those words occur in the act sued upon in the case of Sturgis v. Spofford (45 N. Y., 453).
In the present case the act does contain those words. It
The judgment should be affirmed, with costs.
All concur, except Grover, J., dissenting.
Judgment affirmed.