
    Philip Menges, Respondent, v. The City of Albany, Appellant.
    (Argued April 7, 1874;
    decided April 21, 1874.)
    Under provision of the State Constitution (§7, art. 1), providing that when private property shall be taken for public use the compensation to be made therefor, when not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, where a law provides for ascertaining the compensation by commissioners, their appointment must not only, in form, be made by the court, but its action must be left independent and untrammeled.
    Accordingly held, that the provisions of the act of 1870, in relation to the city of Albany (§1, tit. 7, chap. 77, Laws of 1870), prescribing that, for the purpose of ascertaining the compensation to be paid by said city to the owners of lands taken for streets, etc., the common council shall nominate twelve freeholders whose names, on separate ballots, are to be placed in a box, from whence are to be drawn three, who shall be appointed commissioners, etc., is unconstitutional, and proceedings taken thereunder void.
    Commissioners so selected cannot be regarded as a jury, as the legislature determined in this case that the compensation should be ascertained by commissioners, and a jury, therefore, has nothing to do with the question.
    Appeal from judgment of the General Term of the Supreme Court in the third judicial department, in favor of plaintiff, entered upon a statement submitted under section 372 of the Code.
    The plaintiff is the owner of certain real property in the city of Albany. On the 17th day of April, 1871, the common council of the defendant passed resolutions for the opening, continuing and widening of First street, and nominating twelve men, named in the resolutions as “ respectable and' disinterested freeholders,” as the persons from whom commissioners should be selected for inquiring into, assessing and apportioning the damages and recompense of the owners of the property to be taken. The common council thereupon caused to be published a notice of application to the Supreme Court, and on the 26th day of December, 1871, the day named in the notice, the court drew from a box containing, on separate ballots, the names of the persons so nominated, the names of three persons, as commissioners, and made and entered an order reciting the proceedings and appointing as commissioners the three persons, whose names were so drawn. The lands described in the resolutions and order included a portion of the real property of the plaintiff. The commissioners proceeded to assess the damages and recompense to which the owners were entitled, and, also, to apportion and assess such damages and recompense upon the owners of the property to be benefited by the public use of the ground. They awarded to the plaintiff $1,488.24. The total damages awarded, with the costs, charges and expenses, amounted to $89,163.07. Of this amount the sum of $3,389.06 was assessed upon the plaintiff, as owner of land to be benefited. The inquisition made and returned by the commissioners was, on the 18th day of March, 1872, confirmed by order of the court at Special Term. The plaintiff refused to pay the assessment upon him. The defendant threatened to enter upon the plaintiff’s lands and throw them open to the public as a highway or street, and, also, to advertise for sale the lands assessed, and to collect and enforce the same.
    Defendant’s proceedings were in accordance with the provisions of section 1, title 7, chapter 77, of the Laws of 1870, which provisions are quoted in the opinion. Plaintiff claimed that said provisions were violative of section 7, article 1, of the State Constitution, and all proceedings thereunder in consequence void.
    
      Nathaniel C. Moak for the appellant.
    The proceedings' herein are constitutional and valid. (Const. N. Y., art. 1, § 7; 1 Laws 1870, p. 180; Livingston v. Mayor, 8 Wend., 109; 12 N. Y., 195, 198, 199; Clark v. City of Utica, 1S Barb., 455; Laws 1847, chap. 455, pp. 581-583, §§ 2-7; Clark v. Miller, 42 Barb., 255; Cruger v. H. R. R. R. Co., 12 N. Y., 199; Laws 1834, chap. 249, pp. 440,441; Cawpau v. City of Detroit, 14 Mich., 276, 284; 1 Hough’s Am. Consts., 693; People v. Kerr, 27 N. Y., 198; People v. Smith, 21 id., 595, 598, 599.) It does not matter whether the persons drawn to assess the damages are called jurors or commissioners. (Cruger v. H. R. R. R. Co., 12 N. Y., 195, 197-200; Potter’s Dwarns, 397-400; Sedgw. on Stat. and Const. Law, 529, 530.) The act of 1870 was not unconstitutional, on the ground that the subject was not expressed in the title. (Const., art. 3, § 17; Laws 1870, 159; People v. Comrs., 47 N. Y., 504, §05; Brewster v. City of Syracuse, 19 id., 116; Litchfield v. Yernon, 41 id., 124, 139; Phillips v. Mayor., etc., 1 Hilt., 483.) The legislature had power to authorize the common council to act as highway commissioners and to select and take lands necessary for highway purposes. (People v. Smith, 21 N. Y., 595; Heywood v. Mayor, 7 id., 314; Buffalo, etc., v. Brainard, 9 id., 100.) And to assess the expense of such improvement upon the property benefited thereby. (Howell v. City of Buffalo, 3 N. Y., 267; Gordon v. Comrs., 47 id., 608; Striker v. Kelley, 7 Hill, 9; People v. Lawrence, 36 Barb., 177; Emery v. San Francisco Gas Co., 28 Cal., 345; Walsh v. Matthews, 29 id., 123.)
    
      Samuel Hand for the respondent.
    The provision of the act of 1870 (§1, tit. 7, chap. 77, Laws of 1870) authorizing the taking of private property for public use, is unconstitutional. (Const. N. Y., art. 1, § 7; Beekman v. S. and S. R. R. Co., 3 Paige, 45, 75; House v. City of Rochester, 15 Barb., 517; Clark v. City of Utica, 18 id., 451; Cruger v. H. R. R. R. Co., 2 Kern., 190; Rochester Water-works Co. v. Wood, 60 Barb., 137.) Chapter 77 of the Laws of 1870 is unconstitutional because it is local, and its title expresses two distinct subjects. (People v. Hills, 35 N. Y., 449; People v. O’Brien, 38 id., 193; Gaskin v. Meek, 42 id., 186; Const, of N. Y., § 16, art. 3.)
   Grover, J.

The question in this case is, whether the mode prescribed by section 1, title 7, chapter 177, Laws of 1870 (vol. 1, 179), for determining the compensation to be paid by the city of Albany to the owner of land taken for streets therein, is constitutional and valid.

The section provides that, for this purpose, the common council shall nominate twelve discreet and reputable persons, who shall be freeholders of the said city, and in nowise interested in the question of damages and recompense, and the apportionment and assessment thereof, and make application to the Supreme Court, or any judge thereof, or to the recorder of said city, for the appointment of three commissioners from the persons so nominated as aforesaid, and thereupon, the said court, judge or recorder, shall proceed to draw from a box, containing on separate ballots the names of the persons so nominated as aforesaid, the names of three persons, who, unless objected to or challenged on the ground or qualifications, shall be commissioners for inquiring into and assessing and apportioning the damages or recompense of the owner or owners of the property required to be taken; and in case any challenge, which shall be taken as aforesaid, shall be deemed valid by said court, or judge, or recorder, or in case any person so drawn shall fail to qualify, or refuse to serve, another name or names shall be drawn from said box, in place of the persons so challenged and set aside, or fail to qualify or serve.” The section then provides the mode of proceedings of the commissioners, in determining the compensation to be paid for the lands to be taken.

It is insisted by the counsel for the respondent, that this mode of appointment is in violation of section 7, article 1, of the Constitution, and that all proceedings founded thereon are therefore void. That section, among other things, provides : That when private property shall be taken for any

public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury or by not less than three commissioners, appointed by a court of record as shall be prescribed by law.

When the law provides for ascertaining the compensation to be made by commissioners, section 7 of the Constitution requires that the commissioners shall be appointed by a court of record. In making this appointment, the court is to exercise its judgment in the selection and appointment of such persons as will best secure and protect all the rights and interest of the parties and ensure a just determination of the questions upon which they are to pass. To secure this, the appointment must not only in form be made by the court, but it must be its independent untrammeled act in the exercise of judicial responsibility. It is entirely obvious, that commissioners selected as prescribed by section 1 of the act of 1870 (supra), are not so appointed. The court has nothing to do with the appointment, except to determine the validity of a challenge made to a person whose name is drawn, and in case the challenge is held valid, to draw another name from the box. This is in no sense an appointment by the court, and the persons so selected are not commissioners as required by section 7, article 1, of the Constitution.

The counsel for the appellant insists that if their selection as commissioners in that mode is not valid, still their proceedings should be held valid, for the reason that they should be regarded as a jury and the questions determined by them in that character. It is a sufficient answer to this, that the Constitution provides two tribunals, by either of whch the compensation may be determined, and confers power upon the legislature to determine by which it shall be done in the given case. That in the present case, _the legislature determined that it should be done by commissioners. A jury had therefore nothing to do with it. Had a common law jury been selected and unanimously agreed upon the amount in this case, the proceeding would have been void, for the reason that the statute had not provided for ascertaining the amount in this mode.

The counsel cites Cruger v. Hudson R. R. R. Co. (12 N. Y., 190), for the purpose of showing that the legislature may determine the number of persons required to constitute the jury authorized by section 7 of the Constitution to determine the compensation to be made, and may authorize a majority of the persons constituting the jury to determine the question. It is not necessary to determine these questions in the present case, nor was their determination necessary in giving the judgment in the case cited. The determination of the questions whether the jury authorized by the seventh section must be composed of the same number as the jury specified in section 2 of the same article, and whether a unanimous agreement is not alike essential to the validity of their action, will be reasonably made when necessary to a disposition of the case in which they are involved.

The judgment appealed from must be affirmed, with costs.

All concur.

Judgment affirmed.  