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TITLE 9. pose, by themselves or their agents, to take possession of, and use, all lands, waters or streams, of which the occupation and use, in their judgment, may be necessary to enable them to discharge such duties.1
Altering roads, &c.
Power of canal com
$20. [Sec. 19.] Whenever for the purpose of constructing a canal, or making any extraordinary repairs or improvements, it shall be deemed necessary by the canal commissioner having charge of the work, to discontinue or alter any part of a public road, on account of its interference with the proper location or construction of such work, he shall make, or direct to be made, such discontinuance or alteration.2
S21. [Sec. 20.] It shall be his duty to draw up in writing and figures, a true description of all such parts of a public road as shall be so discontinued and new laid, and to file such description in the town clerk's office of the town in which such parts may be situate, and from the time of such filing, such discontinuance and alterations shall be valid in law.2
$22. [Sec. 21.] The canal commissioners shall not, however, obstruct the passage of any part of a public road so discontinued or altered, until they shall have opened and worked, so as to render passable such part of such road as shall have been new laid by their engineer; and the certificate in writing of any justice of the peace in the county where such road shall be situated, that the part so new laid has been so opened and worked, shall be their sufficient justification.2
$23. [Sec. 22.] Every alteration heretofore made by any engineer, in any public road on either of the canals, shall, from the time of such alteration, be deemed valid in law.2
*S 24. The canal commissioners are hereby invested with a missioners. general and supervisory power over so much of any railroad as passes over any canal or feeder belonging to this state, or approaches within ten rods of such canal or feeder, so far as such power may be necessary to preserve the free and perfect use of the canals or feeders of this state, and. necesary for making any repairs, improvements or alterations in the same; and said company shall not construct their railroad over or at any place within ten rods of any canal or feeder belonging to this state, unless said company shall lay before the commissioners aforesaid, a map, plan and profile, as well of the canal or feeder as of the route designated for their railroad, exhibiting distinctly and accurately the relation of each to the other, at all the places within the limits of ten rods as aforesaid; and shall thereupon obtain the written permission of said canal commissioners, with such conditions, instructions and limitations, as in the judgment of said canal commissioners, the free and perfect use of any such canal or feeder may require. [1834, ch. 276, § 17.]3
Injuries to canals.
$25. [Sec. 23.] Whenever the navigation of any of the canals shall be interrupted or endangered, it shall be the duty of the commissioners, without delay, to repair the injury causing or threaten
1 Laws of 1817, p. 302, § 3. 2 Laws of 1820, p. 190, § 21. "An act to incorporate the Medina and Darien Railroad Company." The language of the first part of the above section seems to be general · and applicable to all railroads, and perhaps that of the latter part is susceptible of the same construction. Note to revisor's 2d ed.
ing such interruption, and for that purpose, they shall have power, by themselves or their agents, to enter upon and use any contiguous lands, and to procure therefrom all such materials as in their judgment may be necessary or proper to be used in making such repairs.1
S26. Whenever the navigation of any of the canals shall be Duty of interrupted or endangered by reason of a deficiency of water, it shall canal com be the duty of the canal commissioners, without delay, to supply such deficiency; and for that purpose they shall, by themselves or their agents, resume the temporary use of all the surplus waters which shall have been leased upon the level of the canal where such deficiency exists; and in such case, if there shall be a deficiency of water, then they shall have power to enter upon and use all lands, streams and waters, which in their judgment may be necessary or proper to be used, to procure a temporary supply of water for such canals. [1833, ch. 196, § 1.]
27. When damages shall be claimed by the owner of any lands, streams or waters, which shall have been used for temporary purposes under the authority given in the preceding section, such damages shall be agreed upon, or appraised and paid, in the same manner as is provided for the agreement or appraisal and payment of damages, in cases where land shall have been occupied for temporary purposes, or from which materials shall have been obtained for repairs; but no damages shall in any case be allowed for resuming the use of any surplus waters of the canals leased to any individuals. [Same ch, §2]
$28. [Sec. 24.] It shall be the duty of the canal commissioners,  to keep in complete repair, all toll houses, weighing scales, offices Toll houses, and other edifices, already built or purchased, for the use of the canals; and at such times and places as the canal board may direct, to erect such further toll houses, weighing scales, offices and other edifices, and purchase such ground for the convenience thereof, as may be deemed necessary for the profitable use of the canals.2
by the cana
$29. [Sec. 25.] They shall, from time to time, make such rules To make and regulations, not inconsistent with the laws of the state, in res- They are pect to the size and structure of boats, rafts and other floats, on how made the waters of the canals, and the weighing and inspecting of boats board, see and their lading, and in respect to all matters connected with the navigation thereof, and impose such forfeitures of money for the breach of such rules and regulations, as they may judge reasonable; but no forfeiture so imposed, shall, for a single offense, exceed the sum of twenty-five dollars.2
$30. [Sec. 26.] They shall cause a sufficient number of copies Notice of of all such rules and regulations, including the forfeitures for the breach thereof, to be printed, and shall distribute the same to the superintendents of repairs, the collectors of tolls and lockkeepers, to be kept in their respective offices for public inspection.
$31. [Sec. 27.] All rules, regulations and forfeitures established How auby them in relation to the management and navigation of the canals, shall be filed in the office of the comptroller, and a copy
1 Laws of 1820, p. 183, § 3. 2 Id., p. 189, § 20. See Laws of 1848 ch, 162, § 2, in relation to powers and duties of auditor.
TITLE 9. thereof, certified by the comptroller, under his hand and the seal of his office, shall be received in all courts of law as due proof that such rules, regulations and forfeitures were by them established.1
Special charge of canals.
S32. [Sec. 28.] The board shall from time to time assign to each acting commissioner, in special charge, the line or portion of the line of one or more of the canals.
$33. [Sec. 29.] It shall be the duty of each acting commissioners. missioner,
1. To examine frequently and carefully into the state of the canals and works committed to his charge.
2. To direct and cause to be made such ordinary repairs as he shall perceive to be necessary.
3. To superintend and cause to be made such extraordinary repairs or improvements as shall be ordered.
4. To make, by himself or a superintendent of repairs, all necessary contracts for the supply of materials and the performance of labor.
5. To inquire into the official conduct of all superintendents of repairs, collectors of tolls, lock keepers and other subordinate agents, and to receive and hear all complaints that may be preferred against them.
And generally to enforce the faithful execution, by all persons concerned, of the provisions of this title.
S 34. It shall be the duty of each acting canal commissioner, visit line of at least once in thirty days during the season of canal navigation, to visit and examine every part of the line of canal assigned to his special charge, and as often as three times in each season to give public notice of such visitation, and that he will attend to such complaints as may be made under the fifth subdivision, section twenty-nine, article two, title nine of chapter nine of the first part of the Revised Statutes, and for the service required in this section the commissioner shall be allowed six cents for each mile traveled on the line of his division of the canals; but the aggregate mileage in one year to any commissioner shall not exceed the sum of two hundred dollars. And if from sickness or any other cause the acting commissioner on any division cannot or does not attend to this duty, the service shall be performed by the state engineer and surveyor or the chief engineer at the same rate of compensation. [1847, ch. 278, § 14.]
Copies of them.
$35. [Sec. 30.] It shall be the duty of each acting commissioner to take duplicate receipts for all moneys advanced or paid by him.2
$36. [Sec. 31.] All contracts for the construction of a canal, and for the making of any repairs or improvements in the canals, directed by the legislature or canal board, shall be made in writing, and of each contract, three copies shall be executed by the parties.3
$37. [Sec. 32.] One of such copies shall be retained by the board of canal commissioners, or the acting commissioner having
1 Laws of 1827, p. 224, § 15. 2 Laws of 1821, p. 26, § 5. Laws of 1825, p. 401, § 4; 1827, p. 229, § 36 Laws of 1828, ch. 321, §3, April 21, 1828.
the charge of such repairs or improvements; another shall be de- ART. 2. posited with the comptroller.1
$38. [Sec. 33.] Public notice shall be given of the time and Notice for place at which sealed proposals will be received for entering into contracts, under the thirty-first section, which notice shall be published for three weeks in succession in the state paper, and in one or more of the newspapers of each county, in which the work to be performed, or any part thereof, is to be made.1
$39. [Sec. 34.] All proposals for contracts, for which sealed Requisites proposals are to be offered, shall be for a sum certain, as to the price to be paid or received; and no proposition which is not thus definite and certain, or which contains any alternative condition or limitation, as to such price, shall be received or acted on.2
$ 40, [Sec. 35.] No more than one proposition shall be received Ib. from any one person for the same contract, and all the propositions of the person offering more than one, for the same object, shall be rejected.2
$41. [Sec. 36.] Every person who shall enter into any contract Security. for the supply of materials or the performance of labor, on any canal shall give satisfactory security to the canal commissioners, for the faithful performance of his contract, according to its terms; and if any person, having given such security, shall neglect or refuse to perform his contract, he shall be excluded from any interest in any future contract, in relation to the same object.3
$42. Before any work is contracted upon any of the public Embank works of this state, the quantity of embankment, excavation, ma- cavations, sonry and all other structures, and the quantity and quality of all &c., to be materials to be used in such work or structure, shall be ascertained before con and determined with all practicable accuracy, and the work shall tracte are be done according to the plans and specifications exhibited at the letting of the contracts, and no alterations shall be made therein, except by the consent and approval of the commissioner in charge of the division upon which such work is located, nor unless such alteration and approval be reduced to writing, and signed by the parties making the same. [1848, ch. 72, § 9.]
&c., to be
$ 43. Before the canal commissioners shall contract for any Maps, plans, work that may hereafter be authorized by law, the maps, plans, submitted. profiles and estimates thereof shall be submitted to the state engineer and surveyor, who shall report to said commissioners his opinion thereon. [Same ch., § 10.]
*S44. No alteration shall hereafter be made in the manner of Provision executing or performing the work under any contract, which shall the manner materially increase or diminish the quantity of material to be fur- the work nished or work done under such contract, unless such alteration shall be expressed in a writing signed by the parties to the contracts, or by the canal commissioners in pursuance of the provisions of the contract, of which writing there shall be made the same number of copies to be deposited in the same places as is provided in relation to contracts on the public works. [1849, ch. 348, § 2.]
1 Laws of 1825, p. 401, §4; 1827, p. 229, § 36; Laws of 1828, ch. 321, § 3, April 21, 1828. 2 Laws of 1826, p. 363, § 32. Laws of 1827, p. 229, § 35.
Certain materials exempt
$45. [Sec. 37.] No allowance over and above the contract price shall be made by the canal commissioners to any contractor, uuless such extra allowance shall be directed by the canal board.1
$46. [Sec. 38.] All materials procured, or partially procured, under a contract with the canal commissioners, shall be exempt from execution; but it shall be the duty of the canal commissioners, to pay the moneys due for such materials to the judgment creditor of the contractor, under whose execution such materials might otherwise have been sold, upon his producing to them due proof that his execution would have so attached; and such payment shall be held a valid payment on the contract.2
Payment of S 47. ]Sec. 39.] Either of the canal commissioners may draw upon the commissioners of the canal fund, for any sum to be paid to a contractor, upon his contract; and if a copy of such contract shall have been duly filed in the office of the comptroller, and a receipt of the contractor for such draft shall also be filed in the same office, it shall be the duty of the commissioners of the canal fund to pay the draft.3
Money when to be
$48. No money shall hereafter be advanced or paid to any paid to con- canal contractor on his contract except on the sworn certificate of an engineer, in such form as the canal board shall prescribe, that he has actually measured the work or material included in the certificate, and believes that the quantities therein stated do not exceed the amounts actually performed or delivered by the contractor, which certificate shall be sworn to before either of the canal commissioners or any judge or justice of the peace. [1847, ch. 278, §2.] *S49. The sworn measurement referred to in the preceding accompany section shall be given to the canal commissioner, and shall accompany the receipt of the contractor when presented at the canal department for final audit. [Same ch., S 3.]
to record measurements.
Contractors to give
S50. Every engineer on whose certificate payments are made for any public work, shall enter in a book to be kept for that purpose every measurement made by himself or his assistant, with such explanation in regard to the location and character of the material, if the same has not been placed in the public work as will enable his successor to identify and secure the material for the use of the state, and on leaving the public service, such book of measurements shall be deposited with the secretary of the board of canal commissioners. Same ch., § 4.]
* S 51. It shall be the duty of any canal commissioner or other bonds to pay officer having charge of the letting of any contract for work on any of the canals or other public works of this state, to require and take, in addition to the bond now required by law for the security of the state, a bond with good and sufficient sureties not less than two, conditioned that such contractor shall well and truly pay in full, at least once in each month, all laborers employed by him on the work specified in such contract, which bond shall be duly acknowledged before an officer authorized to take acknowledgment of deeds, and filed by the officer taking the same, in the office
1 Laws of 1826, p. 363, § 33. By ch. 348 of 1849, the canal board are prohibited from making extra allowances to contractors whose contracts shall have been made since the passage of the act. See post, title 9. Laws of 1822, p. 321, § 6. 3 Laws of 1826, p. 361, § 20; 1827, p. 229, § 36.