The People v. Bristol. 66 credit of the treasurer of this State, at least once in two weeks, in such of the banks as may from time to time be designated by the canal board, as near to the collectors as may be convenient." This provision of the statute was, in part at least, for the convenience of depositors; at the same time recognizing the authority of the treasurer as the officer entitled to the custody and control of such fund. Laws 1826, chapter 314, section 9, provides as follows: "The said collectors shall deposit the moneys received by them for tolls, to the credit of the treasurer of the State, at least once in two weeks, in such of the banks as may from time to time be designated by the canal board, as near to the collectors as may be convenient." In 1831 the legislature passed another statute in regard to the moneys belonging to the canal fund. Laws 1831, chapter 286: "§ 1. The commissioners of the canal fund may deposit the moneys belonging to said fund with any safe incorporated moneyed institutions in this State, and may make such contracts with such institutions, for the interest on and duration of such deposits, as shall be most promotive of the interest of said fund." While this statute conferred upon the commissioners of the canal fund the authority to contract for the deposit of the moneys belonging to that fund, it did not, in terms, at least, direct in what name such deposit should be made, nor by whom it should be drawn. In 1848 the statute was passed which created the office of auditor. Laws 1848, chapter 162, and the 1st and 2d sections of that act, define the power and duties of that officer as follows: "§ 1. There shall be an auditor of the canal department, who shall be appointed in the same manner and receive the same compensation as is now provided by law in relation to the chief clerk of the canal department, and the said office of chief clerk of the canal department is hereby abolished. § 2. All the powers and duties of the chief clerk of the canal department and all the powers and duties of the comptroller in relation to the canals (except his powers and duties as commissioner of the canal fund) are hereby transferred to and vested in LANSING-VOL. I. 7 The People v. Bristol. the said auditor; and the said auditor shall also be secretary of the commissioners of the canal fund, and of the canal board." Subsequent sections of said statute provide that the auditor shall have the care of the books and records, and be authorized to employ clerks, &c. By this statute there is conferred upon the auditor all the powers and duties of the chief clerk of the canal department, in relation to the canal fund, except his powers and duties as commissioner of the canal fund. The office of chief clerk was created by the statute of 1840 (see Laws, 1840, chapter 288). The 12th section of that statute provides: "The chief clerk shall also be clerk of the canal board, and shall receive the compensation, possess all the powers, and perform all the duties of the second deputy comptroller, as now provided by law; and the said office of second deputy comptroller is hereby abolished." The office of second deputy comptroller was created by the statute 1833 (Laws 1833, chapter 56), and his duties are defined as follows: "§ 2. The deputy to be appointed pursuant to this act may perform any of the duties of the comptroller in relation to the canals, except as a commissioner of the canal fund. § 3. Such deputy shall be the clerk of the commissioners of the canal fund, and of the canal board." We perceive the auditor is not created a commissioner of the canal fund, but is expressly excluded from discharging the duties of the comptroller as such commissioner. I do not understand that the auditor was clothed with any additional powers by the statute of 1857 (Laws 1857, chapter 783), which affects this question. แ From an examination of the statutes in regard to the powers and duties of the comptroller, (other than those which he performs as commissioner of the canal fund), and the powers and duties which were conferred by statute upon the chief clerk of the canal department; and upon the second deputy comptroller; and of all the statutes to which my attention has been directed, I fail to discover any statute which authorizes the auditor to direct by his warrant the bank from which the moneys of the State, belong. The People v. Bristol. 66 ing to the canal fund, shall be drawn upon the check of the treasurer. Nor do I perceive anything in the nature of his office, or the duties incident thereto, from which such authority can be implied. It is obvious, from the provisions of the statute of 1848, which created the office of auditor, that the legislature did not intend thereby to place the canal fund beyond the control of the treasurer. Section 8 of that statute provides as follows: "§ 8. Dues of the State which have heretofore been paid to the commissioners of the canal fund shall, on and after the 1st day of October next, be paid into the State treasury. § 9. All balances standing to the credit of the commissioners of the canal fund on the 1st day of October next, in any depository, shall as of that date be transferred by the said commissioners to the credit of the treasurer of the State." There is no provision of that statute which directly in terms, or by fair implication, confers upon the auditor the authority which he claims to exercise. The 11th section of that statute contains the direction in regard to drawing money from the canal fund, and is as follows: "All moneys now authorized by law to be paid or advanced by the commissioners of the canal fund, and all moneys which shall hereafter be authorized to be paid or advanced from the canal fund, shall, on and after the 1st day of October next, be paid by the treasurer, on the warrant of the auditor; but no warrant shall be drawn unless authorized by law, and every warrant shall refer to the law under which it is drawn." There is nothing in said section which even intimates that the auditor should indicate in his warrant the bank from which the money shall be drawn. Considering the nature of the office of treasurer, and the duties imposed by law, and the various statutes to which we have referred, I am convinced that the treasurer has the custody and control of the fund in question, subject only to such power over the same as is by law vested in the commissioners of the canal fund (which will be considered hereafter), and that the treasurer has therefore the right to determine from what bank, having on leposit such fund, money shall be drawn to satisfy any amount The People v. Bristol. required by the warrant of the auditor. It is unnecessary to determine which officer is superior in rank; all that we desire to ascertain is, which is authorized to perform the particular duty in question; and beyond that we do not desire to inquire or speculate, or to endeavor to settle any question of etiquette. The fact that the moneys of the State are applicable to a variety of objects, and constitute separate funds, does not, in my judgment, militate against the views above expressed, as that consideration only affects the manner in which the accounts are to be kept, the money deposited, and the purposes to which the same is applied. The defendant further insists that the right which he claims to exercise has the support of the action of the commissioners of the canal fund. Article 5, section 5, of the constitution of the State, provides: "The lieutenantgovernor, secretary of State, comptroller, treasurer, and attorney-general shall be the commissioners of the canal fund." Section 6 of same article provides, in regard to the powers and duties of such board, as follows: "The powers and duties of the respective boards, and of the several officers in this article mentioned, shall be such as were, are, and hereafter may be prescribed by law." The Revised Statutes, volume 1, page 193, section 4 (Edmonds' edition), provides as follows: "The canal fund shall continue to be superintended and managed by the commissioners of the canal fund," etc. Section 5 provides: "It shall be the duty of the commissioners of the canal fund to manage, to the best advantage, all things belonging to that fund." The 10th section of the statute of 1858, above referred to, provides: "Whenever directed by the commissioners of the canal fund, the treasurer shall transfer from one depository to another, by a draft to be countersigned and entered by said auditor, any canal fund moneys standing to his credit; and no such moneys shall be transferred by the treasurer from one depository to another unless by such direction." We have already referred to several other statutes relating to the power conferred upon the commissioners of the canal fund to direct in regard to the depositing of moneys belonging to that fund; and we are The People v. Bristol. inclined to the opinion that authority to direct the treasurer by the commissioners of the canal fund, as to which bank moneys shall be drawn from to satisfy claims against such fund, may be more satisfactorily implied from the general powers conferred by law upon such commissioners of the canal fund, than such authority in the auditor can be implied from the nature of the office of auditor and the duties which by law are devolved upon that officer. It appears that at a meeting of the commissioners of the canal fund, held October 10th, 1862, the following resolution was adopted: Resolved, That the form of the warrants upon the treasurer used by the auditor designating the canal deposit banks on which the treasurer shall draw his checks in payment of claims payable out of the canal fund, and which have been in use since the 1st day of October, 1848, be and the same is hereby approved by this board. At a meeting of the commissioners of the canal fund, held April 16th, 1868, the following resolution was adopted: Resolved, That the resolution adopted October 10, 1862, authorizing the auditor to select the banks from which money shall be drawn in payment of dues from the canal fund, be and is hereby rescinded. At a meeting of the commissioners of the canal fund, held April 28, 1868, the following resolutions were adopted: "Resolved, That moneys payable into the treasury belonging to the canal fund shall be paid to the treasurer, who shall give a proper receipt therefor, which receipt shall be countersigned by the auditor of the canal department, who shall also keep the proper accounts of such moneys in books to be kept by him in the canal department. The treasurer shall deposit all such moneys received by him in one of the banks in the city of Albany, designated by the commissioners of the canal fund for the deposit of moneys belonging to the canal fund, and procure an entry of said deposit to be made by the bank officers in a pass-book to be kept by him. Each of said banks of deposit shall also furnish |