
    In the Matter of the proceedings to extend South Market Street in the Village of Johnstown, etc., James Younglove, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed March 1, 1894.)
    
    I. Municipal Cobfoeations—Villages—Eminent Domain.
    In the exercise of their extraordinary power of taking private property for public uses against the will of the owner, trustees of the village of Johnstown must follow strictly the course pointed out by statute.
    3. Same—Commissionbbs.
    If they do not comply, they acquire no jurisdiction and their resolutions do not empower the court to appoint commissioners.
    8. Same—Delay.
    A failure of the commissioners to report within the statutory time does not ipso facto vitiate or annul their appointment.
    4. Same—Bab.
    The pendency of proceedings for the condemnation of land is a bar to the right to institute other proceedings for the same purpose.
    5. Same—Discontinuance.
    The right to discontinue such proceedings rests in the sound discretion of the court, when applied to for that purpose.
    Appeal by James Younglove, a land owner, from an order of the special term appointing commissioners, to assess the damages claimed by land owners, for the opening and extending of South Market street in the village of Johnstown.
    
      Edwin Baylies (John M. Carroll, of counsel) for app’lt; Andrew J. Nellis for Village, resp’t.
   Mayham, P. J.,

The first objection to the validity of the order sought to be reversed, urged upon this appeal, is based upon the contention that the papers used on this motion were insufficient to to confer jurisdiction, or authority upon the court to grant the order.

. The papers used by the respondents in support of this motion consist of a certified copy of a series of resolutions relating to the extension of said street, purporting to have been adopted at a meeting of the board of trustees of the village of Johnstown on the 22nd day of May, 1893.

The record shows that on these papers the special term of this court setting at Amsterdam on 12th day of June, 1893, made an order appointing three commissioners, to assess such damages and benefits if any, awarded on the real estate in the village, effected by the extension of South Market street in the village of Johns-town. But no action by such commissioners appears to have-been taken thereon prior to the 4th day of September, 1893.

On that day as appears from certified copies of the minutes of the proceedings of the board of trustees of the village, another series of resolutions was adopted, looking to the appointment of other commissioners to assess the damages and benefits to land owners, by extention of South Market street, which resolutions- and proceedings taken thereunder, constitute the basis of the order from which the appeal was taken.

The first resolution provided for the extension of Market street and fixed the extent and boundaries of the proposed extension. The next resolution contained the names of the persons whose-lands were proposed to be taken for such extention. The third, resolution contained the names of residénts and land owners of the village adjudged by the trustees as likely to be benefited by by the improvements. The fourth resolution provided for the assessment of benefits on such real property, as commissioners to-be appointed, shall determine were to benefited thereby.

The fifth resolution required the land owners to file claims for damages. The sixth resolution directed the clerk of the village to publish notice of the extent of the improvement and giving notice to the claimants for damages of the time and place of applying to the court for the appointment of commissioners to assess the benefit to land owners. The seventh resolution required the clerk to serve copies of said notice on land owners.

These resolutions which are set out in full are authenticated by the village clerk, attested by the village seal.

These resolutions were followed by a copy of the notice published by the village clerk, certified in like manner, and authenticated by the village seal. The moving papers also contained, the names of claimants for damages with the amounts claimed by them respectively.

Appended to the papers above referred to, is the affidavit of. the village clerk of the village of Johnstown as follows—

James D. Rogers, being duly sworn, says that he is the Clerk of the village of Johnstown and has been for some months past that at a regular meeting of the Board of Trustees of said village,, held on the 4th day of Sept. 1893, the resolutions hereunto annexed were offered by Mr. Maylender, a trustee of said village,, were regularly voted upon and said vote was recorded as follows (“ all voting aye ”) and that said record is now deposited in deponent’s office and is a regular record of said village.

Sworn to before me James D. Rogers,

this 30th day of Oct. 1893.

W. P. Butlar

Notary Public.

This affidavit is the only evidence in the papers of the vote ofi the village trustees upon the adoption of the resolution and it appears by the affidavit used in opposition to the motion, that the records of the proceedings as kept by the village clerk does not show that the board of village trustees ever voted on the resolutions to extend South Market street at the meeting of the Board, on the 4th day of Sept. 1893; but it appears by the affidavit of the clerk, that the vote on the same was recorded as follows “ all voting aye.”

It is insisted by the appellant that this is not sufficient; that the record does not disclose that there was a majority of the trustees of the village present or acting on these resolutions or that any vote of the trustees was legally taken.

Section 18 of chapter 78 of the Laws of 1890 purports to amend § 103 of chapter 303 of the Laws of 1881, so as to read as follows—Section 103. “All notices, motions or. resolutions offered by any member of the board of trustees, board of water commissioners, or board of health of said village, shall be entered upon the minutes or journal of proceedings, together with the name of the member offering the same; all votes upon such motions and resolutions, and all votes for appointments made by any of the above named boards shall be by calling of the roll, the members voting aye or nay; the vote of each member shall be recorded in the minutes or journal of proceedings.”

It is true that an examination of chapter 303 discloses that there are but 102 sections in that chapter, and that therefore § 103 is not an amendment of that section in the original act, it is nevertheless a valid provision of law relating to the village of Johnstown, and binding upon the village authorities as a part-of its charter. Section 21 of chapter 303 of Laws of 1881 re quires the village Clerk to attend all meeting of the trustees of the village, and record their proceedings; and § 86 of that chapter makes the minutes of such proceedings evidence in all courts, of the acts of the board of village trustees, as such.

The power sought to be exercised in this proceeding is that of condemnation of private property for public purposes, under the right of eminent domain vested in the sovereign prerogative of government; but that power cannot be exercised except in conformity to law, The board of trustees are creations of the statute with no inherent powers except such as are derived from the statute, and it seem to be the policy of the law that in the exercise of their extraordinary power of taking private property for public uses against the will of the owner they must follow strictly the course pointed out by statute.

It has long been the settled doctrine, that those claiming rights under inferior and limited jurisdictions must show affirmatively the facts upon which such jurisdiction rests. Dakin v. Hudson, 6 Cow., 221; Cornell et al. v. Barnes, 7 Hill, 35; People v. Koeber, 7 Hill, 40; Corwin v. Merritt, 3 Barb., 343. In the last cited case Mason, J., in discussing this question uses this language: “ It is a familiar principal that every statutory authority, in derogation of the common law to divest the title of one person and transfer it to another, must be strictly pursued, or the title will not pass.”

In Sharp v. Johnson, 4 Hill, 99, Bronson, J., uses this language : “ Where lands are to be taken under a statute authority, in derogation of the common law, every requisite, of the statute having the semblance of benefit to the owner, must be strictly comnlied with.”

The principals enunciated in these cases have been strictly adhered to so far as we know, inall the cases involving similar questions which have subsequently come before the courts in this state.

In the Matter of Widening Carlton Street in Buffalo, 16 Hun, 497-499, the failure to comply with the technical requirements of the statute by the common council in taking, and recording the vote on the resolution to widen the street, was passed upon by the supreme court in the fourth department.

That charter provided that the common council in authorizing the taking of land for the widening of a street “May declare by a resolution adopted by more than two-thirds of its members.”

The charter also provided that when by its provisions, “ A vote of more than a majority is required it shall be taken by the yeas and nays, which shall be entered in the journal, etc.”

Under these provisions it was held, that to render a resolution declaring that the city had determined to take.land, valid it must appear from the journal itself, that it was adopted by a two-third vote and that such fact could not be proved by extrinsic evidence. In discussing that question, Talcott, J., says: “ But no parol or other evidence, other than the journal of the proceedings of the common council, is admissible, to establish the fact that the vote was a two-thirds vote. The statute in order to render this matter certain has provided, that in such case the vote shall be taken by yeas and nays, and that such vote shall be entered on the journal, and unless this thing is done the proceeding is void, and the only legal evidence that the resolution was passed by the requisite vote, is the record of the proceedings of the common council kept according to law.”

To the same effect is the decision of the court of appeals, 78 N. Y., 362, affirming above case.

Ror can it be held that this requirement of the statute is immaterial. It was evidently enacted as an amendment to the original charter, to cure some supposed defect in that charter; but whatever the object, it is sufficient that the law requires the name of the mover of these resolutions to be entered upon the journal and that the vote taken upon them shall be by yeas and nays, and that the vote of each member shall be recorded in the journal kept by the clerk, which, in this case, seems to have been omitted.

In Merritt v. Village of Port Chester, 71 N. Y. 309, which was a proceeding to charge the property of an individual with the expense of a local improvement, Allen, J. says: “ It is a statutory proceeding effecting the property of the citizen, and by which it may be taken from him, and therefore within well settled rules of law, the statute must be strictly pursued, and any departure in substance from the formula prescribed by law, vitiates the proceedings.” It would seem to follow, therefore, that the board of trustees, by failing to comply with the provisions of the statute above quoted, did not acquire jurisdiction, and that their resolutions conferred no authority upon the special term to make the order appealed from. Nor do I see by what statutory right or authority these proceedings were instituted, so long as other proceedings of a similar character were pending for the condemnation of land proposed to be taken for the extension of this street.

No direct action seems to have been taken for the discontinuance of the former proceedings, and the former commissioners seem to have met and qualified and fixed a time for a hearing, but had made no report. It is true that the statute (§ 48 of chap. 303, Laws of 1881) requires that the determination and assessment of the commissioners shall be returned to the trustees within sixty days, and while an omission on their part to comply with that provision of the statute, might in a proper motion have subjected them to removal, I do not think an order of the court by which they were appointed was ipso facto vitiated or annulled by that delay.

The right to discontinue proceedings for the condemnation of property under the law of eminent domain seems to rest in the sound discretion of the court, when applied to for that purpose. Matter of Waverly Water Works Co., 85 N. Y. 478; Matter of Commissioners of Washington Park,. 56 N. Y. 144; Carleton v. Darcy, 75 N. Y. 375; People ex rel. Gas Light Co. v. Common Council, 78 N. Y. 56.

We are inclined, therefore, to the opinion that the objection made by the appellant upon the record, that there was another proceeding pending for the same matter, was well taken and that the order in the matter should not, for that reason, be sustained.

The view we have taken of the case renders it unnecessary for us to examine the constitutional question raised by the appellant

The order of special term reversed with ten dollars ($10.00) costs and printing disbursements.

Herrick, J. concurs in result; Putnam, J. not acting.  