#### The People of the State of New York ex rel. Isaac N. Stillwell, Relator, *v.*John H. Gunner and Others, Comprising the Board of Port Wardens of the Port of New York, Respondents.

First Department,

February 7, 1908.

Certiorari—adoption of rules by port wardens—executive not judicial act — objections to rules stated and examined.

The exercise by the board of port wardens of -the authority conferred by section 2126 of the Consolidation Act which .gives them power to make and .establish such rules, orders and regulations not inconsistent “with the Constitution and laws of this State or of the United States or thé provisions of this title,” is an executive or administrative act, not judicial, and is not subject to review by certiorari although the act of the board in enforcing an .unauthorized rule would be subject to such review.

The objections to the rules adopted by the board examined for the-purpose of showing the impropriety of attempting such a review by certiorari and also for the purpose of showing that they are without merit.

*154Cebtiobabi issued out of the Supreme Court and attested on the 39th. day of May, 1906, directed to John H. Gunner and others, comprising the board of port wardens of the port of New York, commanding them to certify and return, to the office of the clerk of the county of. New York all and singular their proceedings had in relation.to the adoption and enforcement of certain amendments to their rules governing Hell Gate. . ,

*John F.*Fdley, for the relator.

■ *James A.*Donnelly, *Deputy Attorney -*General, for the respondents. '

Ingbaham, , J.:

By section 2126 of the Consolidation Act (Laws of 1882, chap. 41Ó) the board of port wardens of the port of New York was authorized to make and establish “ such rules, orders and regulations, not inconsistent with the Constitution and laws of this State or of the United States or of the provisions of this title,, for the better government of said pilots, and with such fines and penalties for the breach thereof as the said board of wardens may from time to- time direct, and to revoke, annul or alter the same as often as they may deem proper and"expedient.” By section 2124 of the act the appointment of Hell Gate pilots was provided for; the pilots appointed were to hold their offices.,during good behavior. By section 2125.these pilots were to be appointed by t-lie Governor, with the consent of the Senate, from a list of persons recommended by the board of port wardens of the port of New York. By section 2127 of the act the board of port wardens Was given cognizance of- all complaints made against said pilots for official misconduct. By section 2135 it was provided that the board bf port wardens, after a hearing, may fine any such pilot for any misconduct in a sum not exceeding twentyfivé dollaré or suspend him for any term which said board may think proper. Section' 2125 was amended by chapter 513 of the Laws bf 1903, but such amendment is not material.

.On February 27, .1906, the board of .port wardens made certain amendments to its rules and regulations, and by this writ-.of certioráfi the relator attémpts to review the action of the board in adopting these rules and regulations,'relator claiming that some, of *155these rules are in violation of the Constitution and are inconsistent with the Constitution and laws of this State, or of the United States.

I do not think that the action of the board of port wardens in adopting these rules can be reviewed by certiorari. The making of rules, orders and regulations was confided to the discretion of the board of port wardens; the act was not in any sense judicial, but was an ordinary administrative or executive act vested by the Legislature in this board charged with the government of pilots. If the board in attempting to enforce a rule which it had made, but which was in excess of the authority conferred upon it by the Legislature, fined or convicted a pilot, its action could be reviewed by certiorari; but the making of the rule is not a judicial act. The writ of certiorari, as authorized by section 2120 of the Code of Civil Procedure, is issued “ to review the determination of a body or officer.” And by section 2140 of the Code of Civil Procedure the determination which can be reviewed by the court relates entirely to particular determinations of a body or officer. It speaks of the “ parties thereto ” and competent proof of all the facts necessary to be proved in order to authorize the making of the determination, and whether there was upon all the evidence such a preponderance of proof “against the existence of any of those facts that the verdict of a jury affirming the existence thereof rendered in an action in the Supreme Court triable by a jury would be set aside by the court as against the weight of evidence.” And section 2141, in speaking of the final order, provides that the court may make a final order annulling or confirming, wholly or partly, or modifying, the determination reviewed therein as to any or all of the parties. It is a familiar rule which has always been applied that to justify the review of an action of a body or officer by a writ of certiorari, the action-sought to be reviewed must be in its nature a judicial determination in a particular case which affects the rights of the relator suing out the writ. It is not applicable to a review of the exercise of the discretion of bodies or officers vested by law with discretion in relation to a particular subject-matter, even though the act sought to be reviewed be in excess of the power granted to the board or officer.

The authority, under which the defendants acted is conferred by section. 2126 of the Consolidation Act, which gives them the *156“ power and.authority to .make and establish such rules, orders and regulations,-not inconsistent with the-Constitution and laws of this State or of the United States or of the provisions of this title, for the better government of. said -pilots;” In the.-exercise of - this power there is nothing judicial. If ■ such proceeding should be countenanced, every administrative or executive act of State boards or officers and every legislative act of the Legislature could be reviewed by the courts, a proposition which would involve the interference of the judicial power with the executive and legislative power of. the State.

The impropriety of attempting such a review by this writ is shown by the points of the relator. He asks to have a determination as to whether or not these amended rules, orders and regulations had ever been adopted by the board. If the board had not . adopted .them there were no official acts to review, and a failure of the board to adopt the rules cannot be the basis of awrit to review the action'of the board in adopting them. If we could review the acts of the defendants in adopting these rules the objections are without merits.

The relator objects to the first rule which provides that the business of pilotage is to be carried on by a single.deck sailing vessel of not less than twenty-five tons net, which is to be in active commission at all times on the eastern stations, and to be known as the Hell -Gate pilot station boat. The objection is that there is no legal authority for the rule that the business should be -carried.on by one pilot boat, because of section 2125 of the Consolidation Act (as amd. by Laws of 1903, chap. 513) which necessarily requires more than one boat, as by that section apprentices are to serve one year on a station boat and the other year with a pilot en duty,.and there must, therefore, be two.boats. It is difficult to.understand this.objection. The pilot boat is one boat and the .pilot is on duty when he.is upon vessels that "he is piloting.

-It .is also claimed that the rules are illegal and in derogation of the rights of the relator, as it places a limit to the distance eastward of Execution* Eoclc from which the relator might speak and board a vessel. The rule requires that all inward bound vessels shall be spoken and-boarded by pilots from the station boat which-is to be .situated within a radius of three.miles to the eastward of Execution *157Bock, and provides a penalty for any pilot speaking a vessel outside of that limit. How that is illegal it is difficult to see. It is a mere regulation as to the station of the boat from which the pilots are to board inward bound vessels. Certainly under the broad authority vested in the defendants, they had the power to regulate the position óf the station boat and the circumstances under which and the locality at which pilots should oifer their services to incoming vessels. Such a rule was necessary to secure to each incoming vessel a pilot.

The second rule is objected to by. the relator, for the reason that it compels the pilots to remain on the station boat inactive and that they should not be asked to take their turn with other pilots on the station boat. The rule endeavors to provide that there should be always pilots on the station boat so that an incoming vessel could be sure of obtaining a pilot. The rule does not provide that a pilot should refuse to pilot an incoming vessel if his so acting would reduce the number of pilots below three. But in such a case the pilot must immediately return to the station boat so as to be ready to pilot other vessels. The idea that this rule- requires a pilot to stay on the station boat forty-eight hours without piloting any vessel that wants his services is absurd. What it requires is that no pilot should be required to remain longer than forty-eight hours on the station boat in case his services during that time are not required.

The relator objects to rule 3 on the ground that there is no provision in law which requires the pilot to do what rule 3 requires ; but if there was such a provision of law rule 3 would b.e entirely unnecessary. Eule 4 is also objected to because that requires that disputes between any two or more pilots should be referred to the board of port wardens. The reason announced wliy this rule is illegal or contrary to law and in violation of the Constitution of the State of Hew York is not apparent. What was evidently intended by this rule was that a dispute or controversy, in relation to the performance of their duties should be determined by the board of port wardens, which is certainly a very proper rule. Eule 6 is objected to because it states that the board bf port wardens have leased a schooner, the *George*Temple, for a station boat. Such lease of a schooner may be illegal, but the leasing is not a part of rule 6, and we certainly cannot determine upon a writ of certiorari whether the *158board of port wardens violated the law in leasing á schooner. The objections show how perfectly inadequate such a writ of certiorari is to review the exercise by the. board of port wardens of the discretion vested in them by the statute.

It follows that the writ must be dismissed, with fifty dollars costs and disbursements.

Patterson, P. J., Clarke and Houghton, JJ., concurred.

Writ dismissed, with fifty dollars costs and disbursements.