People v. Calabro
| Decision Date | 01 November 1957 |
| Citation | 7 Misc.2d 732,170 N.Y.S.2d 876 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Joseph S. CALABRO, Defendant. Recorder's Court of City of Albany |
| Court | New York Recorder's Court |
George Meyl, Dist. Atty., Albany (Condon Lyons, Albany, of counsel), for plaintiff.
Donald Gallagher, Albany, for defendant.
The information herein charges the defendant with a violation of section 3 of article 3 of the Thruway Rules and Regulations of the State of New York promulgated by the New York State Thruway Authority pursuant to subdivision 1 of section 361 of the Public Authorities Law of the State of New York.
Such section authorizes the Authority, which is elsewhere defined as a body corporate and politic, constituting a public corporation, to promulgate rules and regulations with respect to the use of the Thruway. Section 3 of article 3, in essence, prohibits commercial transactions on the Thruway except by persons or corporations specifically authorized by the Authority to enter such transactions.
The People offered proof to the effect that the defendant, acting without the sanction of the Thruway Authority, had, at the request of a motorist sold gasoline on Thruway property at the Washington Avenue interchange in Albany. No proof was offered concerning the existence of section 3 of article 3, and, at the close of the People's case, the defendant moved for dismissal of the charge on the ground that there had been no proof that the Thruway Authority had filed the rule with the Secretary of State.
The question then arose as to whether the court should take judicial notice of the existence of the rule.
Section 8 of article IV of the State Constitution provides as follows:
It should be noted that there is no definition of what constitutes a 'rule or regulation' and there is no mandate directed to the administrative agency to file anything with the Department of State. There is simply a provision that 'No rule or regulation * * * shall be effective until it is filed.' The operative effect of the provision seems clear. The administrative agency need not file anything with the Department of State, but anything which the agency does not file and which the courts hold to be a 'rule and regulation' will be denied by the courts the legal effect that would be accorded to it if it were filed. (1 Benjamin on Administrative Adjudication in the State of New York ...
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...that the rules and regulations of a department head to be effective and enforceable must be published."); ( People v. Calabro, 7 Misc.2d 732, 732-734, 170 N.Y.S.2d 876 [Recorder's Ct., Albany City 1957] ) (dismissing charge against motorist because rule premising offense had not been filed ......
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... ... Edwards, 280 N.Y. 361, 364, 21 N.E.2d 353; Andresen v. Rice, 277 N.Y. 271, 282, 14 N.E.2d 65, 70; People ex rel. Desiderio v. Conolly, 238 N.Y. 326, 332, 333, 144 N.E. 629, 630, 631 ... A public body cannot be commanded to perform an ... See People v. Calabro, 7 Misc.2d 732, 170 N.Y.S.2d 876. Pursuant to this constitutional mandate, the Commissioner of Education has filed extensive regulations ... ...
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The People Of The State Of N.Y. v. Walters
...established that the rules and regulations of a department head to be effective and enforceable must be published."); (People v Calabro, 7 Misc 2d 732, 732-734 [Recorder's Ct, Albany City 1957]) (dismissing charge against motorist because rule premising offense had not been filed with the S......