
    Henry Suydam, Respondent, v. John Smith, Appellant.
    (Argued February 24, 1873;
    decided April 1, 1873.)
    Inspectors of turnpikes, formerly appointed under the Revised Statutes, and now under the act of 1848, providing for such appointment (chap. 45, Laws of 1848), are the proper officers to inspect toll roads upon complaint that they are out of repair, and to serve notice to discontinue tolls in case of failure to repair.
    The inspectors mentioned in the act of 1847 providing for the incorporation of plank-road and turnpike road companies (§ 33, chap. 310, Laws of 1847), are confined to a preliminary inspection of toll roads before the companies are allowed to exact toll thereon. They have no power to act upon complaints for want of repair.
    Under the provision of the chapter of the Revised Statutes in reference to turnpike corporations (§ 44,1R. S., 586), which imposes a penalty of ten dollars upon every keeper of a toll-gate ordered by the inspectors to be thrown open, who shall not immediately obey such order, the party aggrieved is not limited to one penalty, hut may recover the same for each and every oifenee. (Grover, J., dissenting.)
    
      Msher v. N. T. O. S. JS. Oo. (46 R. Y., 644) and Washlurn v. Mclnroy (7 J. R., 135), distinguished.
    
      Appeal from judgment of the General Term of the Supreme Court in the second judicial department, affirming judgment of the County Court of Kings county in favor of plaintiff, entered upon a verdict.
    This action was brought originally in Justice’s Court to recover penalties alleged to have been incurred by taking toll at the gate of a plank-road company after notice from the inspectors of turnpikes to open the same. Judgment was rendered in favor of plaintiff, and the case was taken by appeal to the County Court. , '
    The gate kept by defendant was upon the Rlatbusb. planlcroad, a company organized under the plank-road act (chap. 210, Laws of 1847).
    Complaint was made by persons using the road to Abram Barre, an inspector of turnpikes, appointed under the act (chap. 45, Laws of 1848), who examined the road, and finding it out of repair, served a notice on defendant, ordering it to be repaired. After a lapse of thirty days "he examined it again, and finding it had not been repaired, served an order directing the, gates to be thrown open and no tolls taken. This order was disregarded. Plaintiff obtained a verdict for fourteen penalties, $140. • ,¡
    
      John U. Bergen for the appellant.
    The gate was not closed by competent authority, according to law. (People v. Barre, 37 Tr. Apps., 76.) Whether the road was a plank-road or a turnpike road, the commissioner (Barre)-was not authorized to inspect it. (Wilcox v. Smith, 5 Wend., 231, 235; People v. White, 24 id., 520, 539; Rex v. Vevelet, 3 Camp., 432; People ex rel. v. Nostrand, 46 N. Y., 375.) But one penalty can be recovered under section 44 of the turnpike act for taking toll when the gate is ordered open. (12 J. R., 122; 7 id., 135; 13 id., 253, 428; Cowp., 640; Washburn v. Mclnroy, 7 J. R., 135.)
    
      Benjamin G. Hitchings for the respondent.
    More than one penalty can be recovered. (Duyo v. Rood, 5 Hill, 527; 
      People v. N. Y. Cent., 25 Barb., 199; S. C. affirmed, 13 N. Y., 78; Plank-road Co. v. Chamberlain, 32 id., 668; People v. McFadden, 13 Wend., 396; Skinner v. Anderson, 12 Barb., 648.) Barre was de facto inspector of such roads, and as such his acts were as valid, so far as the public is concerned, as if he held the office de jv/re. (Cowen’s Treatise, § 1386; Berryman v. Wise, 4 T. R., 366; 2 Cow. & Hill’s Notes, 555, and cases cited; People v. White, 24 Wend., 525.) Where a person has acted in an office long enough to show an acquiescence of the public and a general reputation of holding the office, no appointment is necessary to give color of title. ( Wilcox v. Smith, 5 Wend., 231; People v. Cook, 14 Barb., 287, 317; S. C. affirmed, 8 N. Y., 6Y; Colton v. Beardsley, 38 Barb., 29.) Where the evidence is sufficient to establish that he is a de facto officer, it is conclusive. (Wilcox v. Smith, 5 Wend., 231; People v. Cook, 14 Barb., 287, 317; Colton v. Beardsley, 38 id., 29; Fowler v. Beebee, 9 Mass., 234; 4 Foster, 212; 20 Vt., 473; 7 N. H., 113; 1 Allen, 552; 48 Me., 80.)
   Rapallo, J.

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 other; Hunt, Commissioner, holding that Barre held the office of inspector of turnpikes under chapter 45 of the act of 1848, and was, as- such inspector, the proper officer to make the orderand Eabl, Commissioner, holding that the inspectors mentioned in section thirty-three of the act of 1847, and not those named in the act of 1848, were the proper officers to act in the matter, but that the evidence showed a valid appointment of Barre as inspector under the act of 1847, and also that he was, de facto, such inspector, and that in either view his order was binding upon the defendant.

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 three freeholders who, under the Revised Statutes, were, in the case of every new turnpike road, required to be appointed by the governor to inspect it and report whether it was completed in a workmanlike manner, and in accordance with the requirements of law, before the company was permitted to erect gates or take toll. (1 R. S., 584, § 32.) It is evident that the duties of this office are of a much higher grade, requiring a much greater degree of knowledge and skill than is required merely for the purpose of determining from time to time whether a road is kept in good traveling condition. These preliminary inspectors must not only be competent judges of the mechanical construction of the roads, but they must be familiar with the requirements ■Of the laws upon the subject, which are numerous and minute. These several duties were confided to different persons : the ordinary duty of seeing that the road is kept in repair to permanent officers, appointed for each county for a term of years; the duty of seeing that the road is constructed according to law, and in a workmanlike manner, to persons selected specially for the occasion by the governor as each road was built. By the act of 1847, which provided a general system for the formation of turnpike and plank-road companies, power of appointing these three preliminary inspectors was transferred from the governor to the supervisors of each county; and, instead of making a special appointment in case of every new road, the supervisors were authorized to appoint three persons, to hold office during their pleasure, to inspect all new roads that might be built in the county, and give the certificate which should entitle them to demand toll. But the language of the act of 1847 does not sanction the idea that, even as to roads built under that act, it was the intention of the legislature to amalgamate the offices or duties of these -two different classes of inspectors. Sections 34, 35 and 36 show clearly the functions of the inspectors mentioned in section 33, and that they were those which formerly appertained to the three freeholders selected by the governor, and which had always been treated as distinct from those of the ordinary and permanent inspectors, whose duty it was to entertain complaints of want of repair.

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 declares that the gate-keeper shall, for each offence,” forfeit ten dollars to the party aggrieved. But it is claimed by the appellant that, as the section imposing the penalty describes more than one offence, the words “each offence” relate to the description of the offence, and not to repetitions of either of the offences. In Washburn v. Mclnroy (7 J. R., 135) that construction was adopted, and, under an act similarly framed, it was held that but one penalty could be recovered. But in aid of that construction, in the case cited, the court referred to another section of the act which provided that a recovery of one penalty should bar prosecutions for-all penalties previously incurred. In the present ease there is no such restriction; and a majority of the court are of the opinion that the act imposes a penalty for every violation of either of the prohibitions contained in the section. If such be the true construction, it follows that all the penalties incurred may be recovered in one action. (Fisher v. N. Y. Central, 46 N. Y., 659, 660; 3 Hill, 527; 13 N. Y., 78.)

The judgment should be affirmed, with costs.

All concur, except Grover, J., dissenting.

Judgment affirmed.  