
    Matilda Schneider, Resp’t, v. City of Rochester, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Condemnation fboceedings—Constitutional law.
    Until the final confirmation of the report of commissioners in condemnation proceedings, the property owners acquire no vested rights in awards made to them. z
    
      2. Same.
    The charter of the city of Rochester, wherein it provides that the city council may confirm the report of commissioners appointed by the court to appraise the damage resulting to an owner from taking his property for public uses, or may reject it and order another appraisement by the same or new commissioners, does not violate section 7, article 1 of the state constitution.
    3. Same.
    Where a judicial officer has not such an interest in a cause or matter as that the result must necessarily affect his personal or pecuniary interest, or where his interest is minute and he has so exclusive a jurisdiction, by constitution or statute, that his refusal to act in the cause or matter will prevent any proceeding in it, he may act so far as there may not be a failure of remedy.
    Appeal from an order, enjoining the 'city of Rochester from proceeding to have commissioners appointed to appraise plaintiff’s damages by reason of the condemnation of certain property for street purposes in said city of Rochester.
    
      A. J. Bodenbeck, for app’lt; Mdridge L. Adams and Waldo T. Morse, for resp’t
   Ward, J.

The plaintiff is the owner of certain real estate in the city of Rochester, which the city sought to have condemned in opening a new street in the- city. Pursuant to the charter of the city, the common council, by ordinance, after the proper preliminary proceedings, determined to open said street, and to take proceedings to have the property of the plaintiff condemned for that purpose. The city charter provided that the common council or city attorney should cause to be published for ten days, in a daily newspaper published in said city, a notice specifying and describing the lands, or right or easement therein, desired, necessary for the street, and the portion of the city deemed to be benefited by reason thereof, and that an application would be made to the county court of Monroe county, or to a special term of the supreme court to be held in the Seventh -judicial district, at a time to be specified in such, notice, for the appointment of commissioners to ascertain and appraise the compensation which the owners, tenants, or occupants of sucli lands, or persons interested therein, desired to be taken, will be entitled to for the same. The common council or city attorney should also, at least ten days before the time named for such application, cause a notice to be served on each of the owners of the premises, etc., to be taken, who were residents of said county, provided that the fact of such residence be known or can by reasonable diligence be ascertained, or upon the occupants of said premises, either personally or by leaving the same at their several places of abode. At the time specified in said notice, or at such adjourned time as the court might direct, the court should appoint not more than five, nor less than three, commissioners of appraisal, who should be freeholders of the city, and not interested in any of the land sought to be taken, nor of kin to any owner or occupant thereof. The charter further provided that the commissioners, after taking the oath prescribed by the twelfth article of the constitution, should give public notice, publish daily, for ten days, in at least one of the daily newspapers, authorized to publish corporation notices, of the time when, and the place where, they should meet to enter upon their duties. At such time they should proceed to view the lands and premises proposed to be taken, hear the proofs and allegations of the parties, and after the testimony was closed they should appraise the damage which the owner or the person interested in the premises to be taken for such public improvent sustained thereby. The commissioners should make their report to the common council of the city, describing the' property taken, and stating the amount of damages. The charter further provided:

“ Upon the filing of such report the said common council shall assign a time for hearing objection to the confirmation thereof and at the time assigned shall hear the allegations of all persons interested and may take proof in relation thereto from time to time and shall confirm the said report of may set the same aside and refer the matter to the same or'new commissioners to be appointed by said court as before who shall thereupon proceed as hereinbefore provided, but the common council may set aside said report and abandon said improvement at any time before the final confirmation of the assessment roll hereinafter mentioned.” And “ if such report is not appealed from in thirty days'as hereinafter provided or whenever such report is finally confirmed the common council may take the lands and premises or rights or easements specified in the report of such commissioners and which have been determined by the common council to be necessary for such improvement on paying the amount of damages or compensation awarded to the owners (etc.), less the amount of any assessment made against' such owner or occupant or depositing the same in some bank in Rochester to the credit of the person to whom the same is awarded.”

And when such award was paid the city should become vested with.the title to the lands taken. And the charter further declared that any lands thus acquired by the city “shall be deemed to be acquired for public use." The charter further provided for an appeal by the party aggrieved, within thirty days after such confirmation, to the supreme court, from the report and determination of the commissioners, which appeal should stay proceedings upon the giving of a bond specified by the statute, and the appeal should be heard by any general or. special term in the seventh judicial district. If heard by the special term, an appeal from its order might be taken, within ten days, to the general term.

In pursuance of the authority thus given by the charter, on the 18th day of January, 1894, the county court of Monroe county, upon due notice, appointed three commissioners, that were qualified by the statute as such, to appraise the damages, and the compensation of the owners, for taking the lands necessary for such streets. The commissioners duly proceeded, after giving the notice required by the statute, and appraised the damages of the plaintiff at $40,000. Their report was presented to the common council-on the 29th day of March, 1894, and the council fixed the 3d of April following, as the time of hearing objections to the confirmation of the report; and at such time, it being a regular meeting ©f the common council, the report was presented for action. The plaintiff was present. No allegations were made against the confirmation of the report, except by the city attorney of Rochester, who made objections. The common council refused to confirm the report, but resolved that it be set aside, and referred back to new commissioners, to be appointed by the Monroe county court, as provided by the city charter, and the city attorney was directed to make the necessary application. In attempting to carry out that purpose, the'defendant was enjoined from proceeding therein by an order of the special term of Monroe county, and an appeal from that order brings the question before us that we will proceed to consider.

We are favored with an opinion from the learned judge who granted the order at special term, in which the reasons for the order are stated, and those reasons are supplemented by the points of the learned counsel for the respondent. They are, in effect, that the plaintiff had a vested interest in the award made by the commissioners, and had the right to have it enforced; that the provision of the charter permitting the common council to set aside the report, and to take proceedings for the appointment of new commissioners, was in violation of article 1, section 6 of the state constitution, which provides that “ no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for public use without just compensation,” and that inasmuch as the constitution provides (article 1, § 7) that, when private property shall be taken for public use, compensation shall be made therefor, which compensation shall be ascertained by a jury, or by not less than three commissioners, appointed by a court of record, as prescribed by iaw, and the power having been executed in the methods prescribed by the constitution, it was spent, and neither another nor successive commissions could be appointed at the instance of the defendant; that to permit the appointment of successive commissions, and the securing of successive awards, to be in turn rejected until one was obtained satisfactory to the defendant, was an oppression which violated the spirit of the constitution, and could not be sustained. It will be seen, therefore, that a grave question is presented, which requires our careful consideration. The duty of the court in passing upon the constitutionality of the act of a legislative branch of our state government cannot be better 'stated than to quote from the opinion of the learned judge at special term in which he says, “The court should not hastily, nor without careful deliberation, declare a statute unconstitutional,” and then quotes from People v. Albertson, 55 N. Y. 54:

“A law which has received the sanction of the legislature, and the approval of the executive, should only be held void, as repugant to the constitution, when the repugnancy ps clearly demonstrated. There should be no reasonable doubt of the unconstitutionality of the statute, before it should be annuled by judicial action.”

The legislature, in the domain of legislation, is supreme, except as limited by the constitution of the general or state government. He who assails the statute as unconstitutional must be able to point unerringly to the constitutional prohibition. Before the plaintiff can complain, she 'must have a vested right in'the award of the commissioners, or at least in the procedure creating it. The decisions of the courts of this state are uniform to the effect that, until the final confirmation of the report of commissioners in such cases, the property owners acquire no vested rights in awards made to them. In re Canal street, 11 Wend. 154; In re Anthony street, 20 id. 618; In re Department of Public Parks, 60 N. Y. 319; People v. President, etc., of Brooklyn, 1 Wend. 318; Corporation of New York v. Mapes, 6 Johns. Ch. 49; Martin v. Mayor, etc., of Brooklyn, 1 Hill, 545.

In Corporation of New York v. Mapes, supra, the corporation sought to restrain the landowner from making improvements upo.n the premises sought to be taken. The injunction was refused, and the chancellor says:

“ Perhaps the better opinion is that the corporation is not bound to go on, but may recede, and abandon its plain, at any time before the commissioners of assessment shall have reported, and their report shall have been confirmed.”

In re Commissioners of Washington Park, 56 N. Y. 144, the court, Rapadlo, J., reviewed the question with his usual clearness, saying:

“ There is a strong equity in the claim made by the appellants that the election to take their property, when once exercised in such a manner as to bind the owners, shall be equally binding upon those who are empowered and elect to take it, and the owners should not be exposed to repeated application for this purpose, which might result in not only keeping them in perpetual ownership, but might enable the other party to abuse the power intrusted to it, by repeatedly making and withdrawing application, until it shall obtain an appraisal satisfactory to itself, and thus deprive the owners of their just compensation for their property, which is guaranteed to them by the constitution of the state.”

In answer to the equitable consideration above quoted, which is substantially the 'argument of the respondent here, Judge Rapallo says: ,

“On the other hand; it must be considered whether the apprehension of siioh an abuse of power is sufficient ground, in the case of a public improvement carried on by public officers, to absolutely preclude them from discontinuing their proceedings on discovering that the expense involved, and which is to be defrayed by the public, or by assessment upon other property owners, would exceed the benefit to be derived from the improvement.”

And after stating that the English courts sustain the position contended for by the property owners in that case—that the corporation, having elected to take the property for the public purpose, could not recede—the court of appeals proceeds to assert, the doctrine that—

“A long series of decisions having established that in these street cases the corporation may be permitted to discontinue proceedings at any time before rights resulting therefrom have become vested in the property owners, they further hold—differing in this respect from the English cases—that no such rights are vested until the report0or the commissioners is finally confirmed, and there is final award in the nature of a judgment in favor of the property owners for their compensation.”

In that case (56 N. Y., supra) the commissioners of appraisal had met, and appraised the property, and had announced their determination, in several cases; and then the corporation instituted the proceeding for leave to discontinue the condemnation proceeding, and succeeded. The statute in this case, however, sets the question at -rest, as it does not permit the city to interfere with the possession of the landowner, or vest any title in the city until the compensation is paid. The policy of permitting the abandonment of proceedings, or of appointing new commissioners, in such cases, was inaugurated early in the history of his state. Section 178 of the Laws of 1813, relating to. New York city, provides, in this respect, that:

“ Upon the coming in of the said report signed by the commissioners or any two of them, the said court shall by rule or order, after hearing any matter which may be alleged against the- same, either confirm the said report or refer the same to the same commissioners for revisal and correction, or to new commissioners, to be appointed by the said court, to re-consider the subject matter thereof,” e'tc.

And in the Consolidated Laws relating to New York city, in section 1003, it is provided that, as to laying out arid opening certain streets and avenues in the city, the board of street opening of the City was authorized to discontinue any and all legal proceedings taken for laying out streets—

“At any time before the confirmation of the report of the commissioners of estimate and assessment in such proceedings, if, in the opinion of said board, the. public interests require such 'discontinuance, and with power to cause new proceedings to be taken in such cases for the appointment of new commissioners.”

The constitutionality of these new provisions never seems to have been assailed by the courts.

By chapter 360 of the Laws of 1867 (section 25), the trustees of the village of Rhinebeck were vested with a similar authority to that of the common council of the city of Rochester, in regard to laying out, extending, etc., streets and alleys in the village. Upon the coming in of the report of the commissioners of assessmént of damages, the trustees were empowered to annul the same, or “ they shall refer the matter back to the same commissioners, or to three others to be appointed on their application, without further notice by some court of record.” The constitutionality of this provision came before the court of appeal in Re Livingston street, 82 N. Y. 621, where the precise question as to the appointment of a second commission after the report of the first, and before the confirmation had taken place, was passed upon, and the court held the act constitutional, which would seem to dispose of the respondent’s contention in that regard. The land of the respondent cannot be taken, except upon payment of compensation to be finally fixed. Until the confirmation of the report of the commissioners, or of some commissioners, the proceedings are incomplete and initatory, and there is no invasion of the landowner’s possession ; and the statute provides for notice to him of the appointment of every commission, and of its sessions, so that he has his day in court in all important proceedings which have reference to his property. The commissioners are not appointed by either party to the proceeding, but by the court. The scheme of the statute seems to be that the corporation, representing the whole people of the municipality, the property owner, the taxpayer, and the interest involved in public improvements, shall not be bound by the action of the first commission, if that action be arbitrary, unjust, or award excessive damages, either through mistake, ignorance, or corruption. A corrective power exists in the court, not only on the application for the appointment of commissioners, but on appeal.

The plaintiff claims that this proceeding may deprive her of her property without due process of law. This provision of the constitution does not require legal proceeding according to the course of the common law, nor must there be a personal notice to the person whose property is in question. It is sufficient that if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be appraised of what is going on, and an opportunity offered him to defend (Happy v. Mosher, 48 N. Y. 313); and the legislature has the right to take away a particular form of remedy, and give a new one (People v. Board of Supervisors, 70 N. Y. 228; Stuart v. Palmer, 74 id. 183; In re Estate of Curry, 25 Hun, 321).

The contention of the plaintiff that, commissioners having been once appointed and having acted, the power was spent, under the constitution (article 1, § 7), which provides for the appointment of not less than three commissioners to appraise the damages, cannot be sustaind. The constitution requires that they shall be appointed by a court of record as required by law. We see nothing in this provision to prevent the appointment of a second commission, if the law so provides, if they are of the requisite number and appointed by the proper authority. It is a matter of constant practice by the courts to set aside the action of the commissioners of appraisal and appoint new ones. In the familiar proceedings to lay out highways, and to assess damages for taking the land of the owners through which the highway is laid out, the county court may appoint successive commissioners, until it is satisfied that the statute has been complied with. Section 89 of the highway law (chapter 568, Laws 1890). In actions of ejectment,—triable, by statute and under the constitution, by a jury,— after a verdict for the plaintiff the defendant may take a new trial, as of course, upon payment of costs, under section 1525 of the Code of Civil Procedure. Certainly the vested right of a plaintiff in ejectment to a verdict recovering real estate is as great as the vested right of a landowner in an unconfirmed report of conimissioners to assess damages. We entertain no doubt of the power of the court to appoint this second commission. If the statute authorizing it be oppressive and unjust,- it is not for the court to do away with it by judicial action, unless it violates the constitution. The remedy of a party complaining of" such a statute is to apply to the legislature, and not to the court. Mor is there any force in the position that the charter makes the city a judge in its own case, in the proceedings to assess damages, because the common council has power to reject an appraisal as well as confirm it. The common council, it is true, in a sense, represents the city, but it is charged with public duties. Its members have no pecuniary interests in the result of the proceedings to appraise damages, any more than any other citizen. The common council did not appoint the commissioners, as we have seen, and it is not to be assumed that the courts will appoint commissioners at any stage of the proceedings that would not perform their duties. Mor are we to assume that the common council, in the discharge of its duties, would persist in rejecting appraisals, to any unreasonable extent, because, until an appraisal is confirmed, the purpose of the common council in taking the lands for public purposes cannot be accomplished. Our judicial history, as far as our investigation discloses, fails to .show any abuse of the power in the court to appoint more than one commission. In condemnation proceedings, three separate commissions were appointed to one matter. See In re Corporation of City of New York, 18 Johns. 507. The legislature, in its discretion, has clothed these officers with this duty, and it can be exercised by no other person or tribunal. The duty must be performed by the common council, or not performed at all. Even in case of a judicial officer,, where he has not such an interest in a cause or matter as that the result must necessarily affect his personal or pecuniary interest, or where his interest is minute and he has so exclusive a jurisdiction, by constitution or statute, that his refusal to act in the cause or matter will prevent any proceeding in it, he may act so far as there may not-be a failure of remedy. In re Ryers, 72 N. Y. 1, and cases cited. Many other public officers are required by statute to pass upon matters involving their own pecuniary interests. A town assessor takes part in assessing his own property. Members of boards of supervisors and town auditors pass upon their own accounts. In re Ryers, 72 N. Y. 14, 15. Nor does the forming of an opinion as to the matter in hand disqualify the members of a common council of a city from discharging a duty imposed upon them by statute. People v. Common Council of City of Auburn, 85 Hun, 607 ; 67 St. Rep. 3.

These views lead to the conclusion that the statute referred to-is not in violation of the constitution, that the proceeding complained of was a valid and legal one, and that the preliminary injunction should be dissolved. The order for such injunction should be reversed, but without costs to either party.

All concur, except Lewis, J., not voting.  