
    John A. McDougall, App'lt, v. The State of New York, Resp’t.
    
      (Court of Appeals,
    
    
      Filed April 10, 1888.)
    
    1. Canals—Claim against state for injuries—Negligence of officers —Canal board—Statute of Limitations.
    The claim in question was filed before the canal appraisers on June 11, 1870, and came to a hearing before them on May 17, 1873, whereupon the claimant personally in open board declared the claim withdrawn. No objection to this course was taken by the state, and no further proceedings wefe then had. The appraisers without any submission of the claim by the claimant and without notice to him.of a further hearing on May 27, 1875, made an award by which they decided that nothing was due the claimant. On the 11th of December, thereafter, the claimant appealed to the canal board from the determination of the appraisers, and at a meeting of such board held January 80, 1877, the appeal was called and the claimant not appearing, it was dismissed. Held, that the Statute of Limitations began to run against the said claim when it was withdrawn in 1873, and that the subsequent ineffectual proceedings therein did not revive the claim or suspend the running of the statute.
    2. Same—Laws 1886, Chap. 510—Effect of—Constitution, art. 7, § 14.
    The claimant procured to be passd Laws 1886, chap. 510, by which the board of claims was given “ jurisdiction to re-hear, audit and determine the claim of John A. McDougall against the state, in like manner as though said claim had been filed within the time limited by section 7 of chapter 205 of the Laws of 1883, and the said claim is hereby exempted from the limitation contained in said section." Held, that this act did not attempt to create any new limitation upon said claim, or abolish any old one, except the two years limitation contained in the act of 1883, That if the act intended to authorize directly or indirectly the audit or allowance of a claim against which the statute had once run, it would have been unconstitutional.
    3. Same—Power of canal board.
    The canal board do not possess the authority belonging to courts, and have no power to re-open an award after a final determination has been made and announced.
    Appeal from an award of the board of claims in favor of the state, on the ground that the claim was barred by the 'Statute of Limitations.
    
      George W. Cothran, for app’lt; Charles F. Tabor, attorney-general, for resp’t.
   Ruger, Ch. J.

The claim of the appellant seems to have been a meritorious one in its origin, and, except for his inexplicable loches, would, from a consideration of its circumstances, naturally induce a court to afford relief, if it was in their power to grant.

We are, however, of the opinion, from a careful examination of the constitution and statutes, that relief cannot legally be given to him. The claim was, in brief, for damages for injuries inflicted upon certain real and personal • property belonging to the claimant, through the negli-' gence of the state officers in charge of the canals, by improperly opening its lock gates at Tonawanda, and causing the water therein to flood the claimant’s premises and injure his property.- The damages were claimed to have been inflicted in April, 1869, at which time the state had provided neither a tribunal for the trial of such cases nor a law fixing the liability of the state therefor, and parties in-. jured in the manner referred to had no relief, except by an appeal to the legislature. Lewis v. State, 96 N. Y., 71.

By chapter 231, of the Laws of 1870, passed April 27th of that year, the canal appraisers were authorized to hear and determine claims of this character arising within two-years before the presentation of the claim, and award such damages, subject to an appeal to the canal board, as should be just and equitable, in cases where the evidence would create a liability ás against an individual or corporation.

In the case • of claims arising more than one year previous to the passage of the act, the claimant was required to present bis claim within one year thereafter. The jurisdiction of the appraisers over such claims continued until 1883, when the offices of canal appraisers and of the state board of audit were abolished by section 12, chapter 206, of the Laws of that year, and the board of claims was-established and was given authority to hear, audit and determine all private claims against the state which shall have accrued within two years prior to the time when such claim is filed, where such claim shall not have been determined on the 1st day of June, 1883, nor be barred by any existing statute. It was further provided that-“all claims against the state then pending before the canal appraisers or before the state board of audit shall be and are hereby transferred to the board of claims.”

The state board of audit was created by chapter 444 of the Laws of 1876, and had authority to hear and determine claims of this character, but this claim was never filed before that board. The claim in question was, however, filed before the canal appraisers on June 11, 1870, and came to a hearing before them on May 17, 1873. After some documentary evidence had been given in favor of the' claim the counsel for the state raised a question that one Vincent was a joint owner with the claimant of the property damaged; whereupon the claimant personally, in open board, declared the claim withdrawn. No objection to this course was taken by counsel for the state and no further proceedings were then had. The appraisers, however, without any submission of the claim by the claimant and without notice to him of a further hearing, on May 27, 1875, made an award by which they determined that nothing was due the claimant. This, award did not proceed upon the merits, and operated to sanction the action of the claimant in withdrawing his claim. On the 11th of December thereafter the claimant appealed to the canal board from the determination of the appraisers, and at a meeting of such board held January 30, 1877, the appeal was called and the claimant not appearing, it was dismissed.

Nothing further was done by the claimant in the prosecution of the claim until the year 1886, when he procured the passage of chapter 510 of the Laws of that year, by which the board of claims was given “jurisdiction to rehear, audit and determine the claim of John A. McDougall against the state in like manner as though said claim had been filed within the time limited by section 7 of chapter 205 of the Laws of 1883, and the said claim is hereby exempted from the limitation contained in said section.

This act did not attempt to create any new limitation upon such claim, or abolish any old one, except the two years limitation contained in the act of 1885. It did not purport to amend the statute of 1870, which alone creates a liability for such injuries on the part of the state, or to repeal the provision therein which restricts such liability to damages occurring within two years previous to the presentation of the claim. The plain meaning and effect of the act was, therefore, merely to confer authority upon the board of claims to rehear the claim of McDougall, notwithstanding the limitation in the act authorizing the board, subject to the application thereto of such other existing statutory or constitutional limitations as would bar an action or claim between individuals, or an individual and the state, and subject also to any legal defense to a claim of that character. The claim was on June 7, 1885, refiled before the board of claims, and a rehearing was had thereon before such board; whereupon they held that it was barred by the statute of limitations, and made their award in favor of the state. From this award an appeal is taken by the claimant to this court.

In support of the award it is argued by the attorney-gene • rai that at the time of the hearing, the claim was barred by the provisions of section 14, article 7, of the constitution, adopted in 1874, as an amendment thereof, and reading as-follows: “Neither the legislature, canal board, canal appraisers, nor any person or persons acting in behalf of the state, shall audit, or allow, or pay, any claim which as between citizens of the state would be barred by lapse of time. The limitation of existing claims shall begin to run from the adoption of this section, but this provision shall not be deemed to renew claims already barred by existing statutes, nor to repeal any statute fixing the time within which claims shall be presented or allowed, nor shall it extend te any claim duly presented within the time allowed by law, and prosecuted with due diligence from the time of such presentment.”

It was assumed on the argument that the period of statutory limitation for actions of this character as between citizens of this state would be six years. A plain enumeration of the dates of the several proceeedings taken by the claimant after his claim arose, shows that more than six' years elapsed between the time when no prosecution was binding against the state, and it was open to the claimant to pursue it for his claim, and the passage of the act of ■1886, and that such a claim as between citizens of the state would, then have been effectually barred.

Giving the most favorable effect for the claimant to the proceedings taken by him before the canal appraisers and the canal board, and holding that he was at liberty, as he undoubtedly was, to prosecute his claim against the state after the final award made by the canal board in 1877, nine years elapsed before he took any steps in that direction. J

Assuming that his action in withdrawing his claim from the canal appraisers in 1875, deprived them of jurisdiction to make any award thereon and left him then at liberty to prosecute his claim through other proceedings, a still longer time elapsed in which he was guilty of loches in its prosecution.

It is urged by the claimant that this claim was exempted from the operation of the constitutional amendment of 1874, by the provision therein, that it should not ‘ extend to any claims duly presented within the time allowed by law and prosecuted with due diligence from the time of such presentment.” It is not claimed even by the appellant that the claim was prosecuted with due diligence after its presentation, and if such claim should be made, it would be nugatory as there is no support for it in the evidence. But we are further of the opinion that having withdrawn his claim in 1873 from the board of appraisers, the statute of limitations then began to run against it, and that the subsequent ineffectual proceedings therein did not revive the claim or suspend the running of the statute. They would certainly have constituted no bar to an action by one citizen against another, and by the express language of the constitution, would, therefore, be inoperative as a bar in favor of the state. Section 1209, Code of Civil Prodedure Wheeler v. Ruckman, 51 N. Y., 391.

It is, also, argued by the claimant in analogy to the practice of courts of law in opening judgments and authorizing further proceeding in the action, that the act of 1886, should be construed as re-ópening the hearing before the canal board and authorizing a new hearing before the board of claims, which should be in the nature of a continuance of the original claim. But it would seem to be a great stretch of authority to give such a construction to the act and would require us to hold that the prosecution has been always pending after its presentation, although there has been a final determination upon the claim, which has never been set aside, opened or disturbed by the tribunal rendering it.

There is but little analogy between the proceedings and practice of courts of law, and proceedings before the canal board. The former are permanent tribunals having a perpetual existence, governed by established principles of law, and proceeding upon settled rules of practice. The latter do not possess the authority belonging to courts and have nc power, so far as we can find, to re-open an award after 3 final determination has been made and announced. But even if they had power they have not exercised it, and the legislature did not assume to re-open the old prosecution, but simply conferred authority upon the board of claims to re-open the claim freed from a particular limitation. The effect of this provision would doubtless preclude the state from setting up the award of the canal board as a bar to the claim, but would have no other effect except such as was expressly provided by the act.

We are further of the opinion that, if the act intended to authorize directly or indirectly the audit or allowance of a claim against which the statute had once run, that it exceeded the constitutional power of the legislature to enact it It would seem to be the obvious intention of this constitutional amendment to place in the fundamental law of the land an effectual bar against the prosecution of any claim against the state unless it was preferred and presented within the periods of limitation applicable to claims between citizens. At the time of its adoption there was already a provision of the Constitution (section 19, article 3), which forbid the legislature from auditing or allowing any private claim or account against the state, and the amendment was evidently intended to reach another class of cases,, and prohibited not only the legislature but the canal board, canal appraisers or any person or persons acting in behalf of the state from auditing, allowing or paying any claim which as between citizens of the state would be barred by lapse of time. If by this act the legislature intended to confer upon the board of claims power to hear and audit or allow a claim which was already barred by existing statutes, it would be a clear and palpable violation of the constitutional provision, but well settled rules of construction forbid us from giving such effect to the act of 1886.

We are, therefore, of the opinion that the award appealed from should be affirmed.

All concur.  