
    MATTER OF HARTMAN.
    
      Supreme Court, Fourth Department; Seventh District, General Term,
    
    
      September, 1870.
    Proceedings under Railroad Act.—Appointment qe Commissioners to change Location.— Ajppeal.
    Under the general railroad law {Laws of 1850, 221, ch. 140, § 22),— which allows a party aggrieved by the proposed location of a railroad to apply to a justice of the supreme court for the appointment of commissioners to examine the proposed route, and, after hearing the parties, to affirm or alter the same,—it is not necessary for the petitioner to give to the railroad company notice of the presentation of his petition for the appointment of commissioners, nor have the railroad company the right to appear and litigate before the judge the question of such appointment. Notice of the hearing before the commissioners is the only notice which need be given.
    Where a motion is made at special term to set aside, for irregularity, an order made by a justice out of court in a special proceeding, and is denied, the order may on appeal be affirmed, if correct, irrespective of the question whether the original order sought to be set aside was the subject of an appeal or not.
    Appeal from an order.
    The Erie and Genesee Valley Railroad Company having laid out their proposed route under the general railroad act of 1850 (Laws of 1850, ch. 140), the written notice required by section 33 of the act, to be served by the company upon all actual occupants of land over which'the route of its road is designated, was served upon the petitioners in this matter, on May 18, 1870. On May 36, 1870, the petitions of William Hartman and George Hartman, of North Dansville, and of William Driesbach, of Sparta, in Livingston county, were presented at Rochester, to Mr. Justice E. Darwin Smith, out of court, the petitions being duly verified, and stating the objections of the petitioners to the proposed route, and praying the appointment of commissioners, pursuant to section 33, “to examine the said proposed route, and, after hearing the parties, to alter or affirm the same as might be just to all parties and the public.” Thereupon, Justice Smith, being satisfied that such commissioners should be appointed, made an order appointing Hezekiah Allen, of Geneseo, John R. Marsh, of Avon, and J. Nelson Tubbs, of Rochester (the last named being a practical civil engineer), such commissioners.
    On June 6,1870, the same justice made an order, on the application of John A. Van Derlip, attorney for the company, directing the petitioners “to show cause at an adjourned special term of the supreme court, to be held at the court house in the city of Rochester, on June 13, 1870, at ten o’clock A. M., why the order made in this matter on May 36, 1870, appointing commissioners to determine upon the propriety of altering the
    
      route of said railroad should not be vacated and set aside as irregular, for want of notice to said railroad company and parties interested, of the application for said order, and that a copy of said affidavit (sworn to. on June 4, 1870, and read on the application for the order to show cause,'and averring the want of notice to the company), and of the order, be served upon S. D. Faulkner, Esq., attorney for the petitioners, on or before June 9, 1870, and that, in the mean time, all proceedings upon said order be stayed.”
    On June 13, 1870, after hearing. John A. Van Derlip, attorney for the company, and Lester B. Faulkner, attorney for the petitioners, Justice Smith denied, with costs, the motion to vacate and set aside the order appointing the commissioners.
    From this order the company appealed to the general term of this court.
    
      John A. Van Derlip, for the appellants.
    I. The power to be exercised, or the duty to be performed by the “justice of the supreme court,” pursuant to the foregoing provision, is neither ministerial nor administrative. It is wholly judicial. (1.) He acts judicially in determining whether “sufficient cause” exists for the appointment of the commission. If he “ considers” that such cause does exist, he “may ” appoint, &c.; and in determining this, he is to exercise a judicial discretion. (2.) He acts judicially in selecting “three disinterested persons” as commissioners.
    II. Ho notice of the application for thé appointment of commissioners having been given to the railroad company whose rights were involved, the. order appointing commissioners was irregular and void. Every person whose rights are to be affected by a judicial determination, or the exercise of a judicial discretion, is entitled to be heard before the court or officer who is to pass upon his rights. This is a natural and fundamental right, and if, in authorizing any special proceedings, the legislature omits to protect this right, the court will supply the omission (Bouton v. Neilson, 3 Johns., 474; Harper v. Carr, 7 T. R., 286; Beach v. Furman, 9 Johns., 229; Rathbun v. Miller, 6 Id., 281; Commissioners of Highways of the Town of Kinderhook v. Claw, 15 Johns., 537; Peters v. Newkirk, 6 Cow., 103; Elmendorf v. Harris, 23 Wend., 632, 633; Doubleday v. Newton, 9 How. Pr., 71; Rex v. Bagshaw, 7 T. R., 363; People v. Talman, 36 Barb., 222; Hickock v. Scribner, 3 Johns. Cas., 311, 315; McDermott v. Metropolitan Police, 5 Abb. Pr., 422; 4 Blacks. Com., 283; Cow. & H. Notes to Phill. Ev., 998, and cases cited; People v. Osborn, 20 Wend., 186). The cases of People ex rel. Herrick v. Smith, 21 N. Y., 595, and Metropolitan Board of Health v. Heister, 37 N. Y., 661, do not conflict with these views of the law. (1.) The Code expressly provides in those cases for proceeding ex-parte. (2.) The necessity of the cases required that no notice should be given. (3.) The legislature provides that the court shall require ample security for all damages which the defendant may sustain, before allowing the process.
    HI. These positions are not answered by saying that the State does not provide for notice, because all these authorities hold that the right to notice is a “fundamental principle,” a principle of “natural justice,” one that the courts will protect, if the legislature has omitted to do so. Hor is it an answer to say that because the statute gives but fifteen days to procure the appointment of commissioners, it is therefore inferrable the legislature • intended the proceedings to be ex-parte. The evident purpose of the legislature was to prevent an obstruction of a' public enterprise for an unreasonable time, and to compel parties complaining to be prompt and vigilant. Occupants of land are presumed to know where the engineers of the company have run the line of the road, and to know their objection to it; and are given a week to put their objections in form, and serve the usual (eight days’) notice upon the company. Delay is no objection to the other party; but to save the rights of both, it is provided that the applica1 tion may be made to a judge “ out of court, ’ ’ to avoid " the delay of waiting for a term of the court. It is a general rule for the construction of a statute that it will not be deemed to be in derogation of the common law, unless its language is so explicit as to indicate that intention in the legislature. On the contrary, it will be construed to aid, not to repeal, the common law. Construing this statute according to this principle, the mere silence of the act preserves the common law right of notice. Neither is it an answer to say that, by implication, the company is entitled to notice of the time and place of meeting of the commissioners. The most important step in the proceeding is the selection of “disinterested personsand upon that' appointment the company had a right to be heard (Rathbone v. Miller, supra). It is of small consequence that a party has notice of an opportunity to be heard before a tribunal selected by his adversary, or even appointed by the court, without an opportunity of being heard as to their fitness or disinterestedness. Without imputing any want of consideration to the judge who appointed the commissioners, it is not too much to say, judging from the ordinary practice on ex-parte applications, that the petitioners had the selection of them. To say ' the least, the company had no opportunity to object to their appointment, or suggest others.
    IY. In making the order appointing commissioners, the judge was acting as a court, not as a subordinate or inferior tribunal. For a time the courts held that in all special proceedings authorized by statute, the court and its judges acted quasi commissioners, and not as a court, and that their proceedings could not be reviewed or questioned by the ordinary methods fixed by the practice of the court. This doctrine was elaborately considered and overruled by the supreme court in the case of Striker v. Kelly (7 Hill, 9), in which Beardsley, J., in an exhaustive opinion, concurred in by Nelsost, Ch. J., establishes the doctrine that these statutes, requiring certain acts to be performed by the supreme court and its judges, confer no new office upon the judges, and are not in conflict with the provision of the Constitution that “ neither the chancellor, nor justices of the supreme court, nor any circuit judge shall hold any other office or public trustbut that they merely extend and enlarge the powers and jurisdiction of the court and its officers (see Grah. on Juris., 140; 2 Rev. Stat., 196, § 1; 2 Rev. Laws, 409, 411,. § 178; Patchin v. Trustees of Brooklyn, 2 Wend., 377, 384; 2 Den., 323, 331-335; Matter of Canalstreet, 12 N. Y. [2 Kern.], 406; Bangs v. Duckinfield, 18 N. Y., 596; Matter of Cooper, 22 Id., 83;. Matter of Dodd, 27 Id., 632; King v. Mayor of N. Y., 36 Id., 188). The expression used in some of the cases,—for instance, New York Central R. R. Co. v. Marvin (11 N. Y. [1 Kern.], 276), that the statutes instituting special proceedings are designed to form a. complete system of practice,—in no wise contravenes1 this doctrine. Properly understood, it is correct. So far as the statute establishes a practice, it must be pursued instead of the general practice of the court; but to construe it to mean that if a wrong is perpetrated by reason of the silence of the statute, the court can afford" no remedy, because the statute provided none, is not tolerable. The legislature contemplated no wrong, and, therefore, provided no remedy. The court, by the enforcement of its ordinary rules, will prevent or redress injustice in its administration of the law, though the legislature may have failed to. foresee or provide for it.
    
      
      S. D. <6 L. B. Faulkner, for the respondents.—
    Fibstly. The appeal from the order of Justice E. D. Smith should be dismissed.
    I. (1.) Where a motion is made to vacate an order, obtained ex-parte, for irregularity in respect to the want of notice, and, on hearing the parties, the court declines to vacate the order, the defect, if any, is cured, and an appeal from the second order is not well taken (Culver v. Hollister, 17 Abb. Pr., 405; Clumpha v. Whiting, 10 Id., 448). (2.) This is not a proceeding in court. The petition is presented only to a justice of the supreme court, out of court. He acts as a ministerial officer, under. direction of the statute. It is a power that might have been conferred by the legislature upon the sheriff, or other officer of the county, as the sheriff in Livingston county is authorized to appoint, upon stated conditions, railroad commissioners for certain towns (Laws of 1868, p. 896, ch. 442; Metropolitan Board of Health v. Heister, 37 N. Y., 672; United States v. Ferreira, 13 How. U. S., 40). (3.) The statute particularly directs that the appointment of the commissioners shall not be a proceeding in court. Its language is equivalent to saying, “The petition shall not be presented to the supreme court, but, out of court, to one of the justices thereof.” This statute, when it designs to put a special proceeding under it into court, plainly expresses that design. For instance: “ The .said company may present a petition, praying for the appointment of commissioners of appraisal, to the supreme court, at any general or special term thereof,”. •and in the same section requires that “notice of the •time and place the same will be presented shall be .served upon all persons whose interests are to be affected by the proceedings” (see General Railroad Act, 1850, §§ 14, 22). This has, therefore, never been a proceeding in court, and cannot be brought there on a motion, in disregard of the statute. A motion is an incident to an action or proceeding already in court, and in court by reason of a statute. The statute under which this matter arose, has been held to be an entire system in itself, and is to be strictly administered (New York Central R. R. Co. v. Marvin, 11 N. Y. [1 Kern.], 279; Dyckman v. Mayor, &c. of N. Y., 5 Id. [1 Seld..], 439; People v. Kelley, 35 Barb., 446). (4.) This proceeding having been, pursuant to statute, begun before a justice out of court, could not be transferred by him into court. The justice at special term, therefore, never acquired jurisdiction in this matter. The whole law of appeals applies to matters pending in court (People v. Brennan, 45 Barb., 345). (5.) The legislature may invoke the aid of a judicial officer for the regulation of an administrative proceeding, without organizing a special proceeding in a court of justice (Matter of Dodd, 27 N. Y., 629). (6.) It is not necessary for the legislature, in the exercise of the right of eminent domain, either directly, or indirectly through public officers or agents, to invest the proceedings with the forms or substance of judicial process (People v. Smith, 21 N. Y., 599). (7.) Even if the appointment of the commissioners were a judicial act, an order could not properly be made by a justice out of court, in this district, returnable at special term (Merritt v. Slocum, 6 How. Pr., 350; Hasbrouck v. Ehrich, 7 Abb. Pr., 76). If not properly an order of the court, the order is not appealable. (8.) This is not a special proceeding in court, and, therefore, not appealable under the act of 1854 (Laws of 1854, ch. 270), relative to appeals in special proceedings, and no provision for such appeal is made by the general railroad act, which has been- defined'to be a complete system of itself (United States v. Ferreira, 13 How. U. S., 40; New York Central R. R. Co. v. Marvin, 11 N. Y. [1 Kern.], 279). (9.) The order appealed from determined that the company was not entitled to notice of the1 presentation of the petitions. At the Livingston special term, July 25, 1870, the same question between the same parties was decided adversely to the claim here made. This matter is, therefore, res adjudicóla, and the appeal should be dismissed.
    Secondly. If the appeal in this matter be entertained, the order appealed from should be affirmed.
    I. (1.) It is provided by the rules of the supreme court {Rule 39) that “an order to show cause (under section 403 of the Code of Procedure) shall only be granted when a special reason for a notice of less than eight days appears on the papers presented.” It appears by the affidavit on which, in this matter, the order to show cause was made, not only that no special reason for a notice of less than eight days was averred, but that the affidavit was sworn to on June 4,1870, and when eight days still remained before the adjourned day of the special term at which the order to show cause was returnable. Therefore, if this matter was properly at the special term, the motion was properly denied for this reason. (3.). The papers on which a motion is made to vacate an order for the alleged irregularity of a want of notice should show that the moving party has been prejudiced. The authorities cited by the appellant, in each instance, show that the complaining party had been prejudiced in his rights by the want of notice, while, in the case at bar, no prejudice is averred or shown.
    II. (1.) The company was not entitled to notice of the presentation of the petitions for the appointment of the commissioners (People ex rel. Herrick v. Smith, 21 N. Y., 598; Metropolitan Board of Health v. Heister, 37 N. Y., 671). It is admitted that the statute is silent as to such notice (of the presentation of the petitions to the justice), though treating of the subject of notice in the same section (General Railroad Act of 1850, § 33). (3.) The appellant, instead'of directly appealing to the general term, made a motion at the Livingston special term, July 25,1870, to vacate the order appointing the commissioners, on the ground, among others, that the company was entitled to notice of the presentation of the petitions. His Honor Justice Smith, denied the motion with costs. (3.) The case of People v. Smith, above cited, related to the acquisition of private property for public use, and arose under Laws of 1830, ch. 56, p. 55). In that case the question of notice was the only one at issue, and the only one discussed. In this case, the complaint of the appellant is founded solely on the want of notice. In that case, the statute under which the issue arose, was silent on the subject of notice of a judicial proceeding to the parties complaining, though treating of notices in various steps of the proceedings. In this case, the statute is silent on the subject of notice to the company, though treating of the subject of notice in the very section of the statute (22) under which this proceeding arose. In that case, it was claimed that, though the statute was silent on the subject, notice was requisite on general principles of law ; and some of the same authorities were cited as are relied upon by the appellant, in this case, and are there overruled. In this case, the same claim is put forth. If the act complained of in this matter was a judicial determination, the act complained of, in that case, was more clearly so; but, in that case, the court says, “if we should think it discreet that the landholder should have been furnished with notice, and allowed to participate, still the act furnishes the rule, and the court has no power to change it” ; and adds, “it is a subject of legislative discretion to deteimine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority ” (to take private property for public use). (4.) The case of Metropolitan Board of Health v. Heister (supra), arose under Laws of 1866, § 14, ch. 74. The act provided for a preliminary determination of the board, without notice, that, upon what it might deem sufficient proof, it might declare certain matters and things a nuisance; but, before executing the order of removal or abatement, the board was required to serve the order upon the owner and give him a hearing; and the board might, thereafter, rescind, modify, or affirm its order or declaration. In that case, the court says, “In substance, the board, upon the evidence before it, determine that a prima facie case exists requiring its action.” Subsequently notice was served upon Heister, whose business, that of a butcher, had been declared a nuisance, and he refused to appear, alleging that the board had acquired no jurisdiction; but the court, referring to the notice given Heister to appear with his proof says, “ This gave the same protection to all his rights, as if notice had been served upon him before any preliminary proceeding had been taken” (p. 671). If such has been the fact in this case, there was a judicial determination without notice in that case and upon evidence, affecting property, and the court held that the property owner was not entitled to notice. (5.) The act of the justice, in appointing the commissioners, was not a judicial determination (United States v. Ferreira, 13 How. U. S., 30; Matter of Dodd, 27 N. Y.. 629; Metropolitan Board of Health v. Heister, 37 N. Y., 671). In the case of Metropolitan Board of Health v. Heister, the court, in a very exhaustive opinion by Chief Judge Huxt, discusses the nature of such acts, declaring them ministerial merely, and aptly comparing them to the action of various classes of commissiohers. (6.) If the act of the justice was not a judicial act, then, in the absence of express provision of the statute, it would not be pretended that the appellant had a right to notice. If the act of the justice was a judicial act, then the right to notice could only be inferred from principles of the common law; but at common law, the company would have no right to any step in the proceeding towards the taking of land, in inmtum. The rights of the company, in this respect, are wholly statutory, and the statute is to be strictly construed against the company. The right to notice cannot be inferred (Doughty v. Hope, 1 N. Y. [1 Comst.], 79; Dyckman v. Mayor, &c. of N. Y., 5 N. Y. [1 Seld.], 439). The authorities and practice of the law furnish abundant instances of even judicial determination, affecting the rights of parties, without notice ; as orders of arrest, in civil actions, injunctions, stay of proceedings, orders extending time to answer, and these vacated ex-parte, and others that might be cited.
    III. (1.) It is not necessary that the legislature should, in direct terms, constitute an inferior tribunal for the determination of questions arising under a statute. It is sufficient if a way of disposing of such questions is provided, in case they shall arise. In the statute under which this matter arose, the legislature has designated a justice of this court, out of court, as the officer to appoint commissioners to examine the route proposed by railroad companies, if necessity therefor should arise. It is held, in Matter of Dodd (supra), that it is entirely competent for the legislature to do this, and, in the case of People v. Smith (supra), that it depends upon the legislature to establish proper prudential regulations touching the appointment of such commissioners. In providing for the appointment of such commissioners, it has manifestly not seemed proper to the legislature to provide for notice of the presentation of the petitions—“to provide for a judicial contest” upon the question of the landholder’s right to an impartial hearing in the matter of his own freehold—to subject his application for an opportunity to be heard, to the danger of defeat by contesting affidavits. His objections are to be tried before the commissioners, on evidence, and not before the justice, by affidavits, on a motion. The appointing of the commissioners is merely the establishment of the tribunal—a determination by the justice that a case has ■ arisen upon which such a tribunal may properly act. It is true the commissioners may not act without notice to the company, but, on cause shown, the landholder’s right to the tribunal is absolute. (3.) It was manifestly the intention of the legislature to commit the rights of the landholder, in this matter, to the supervising care of the justice, and to furnish him with a summary means of protecting them, beyond the limit of the actual public need, as defined by commissioners before whom, when appointed, all parties have a right to be heard. Yet the legislature, while permitting the company, in the first instance, to adopt any route it may select, and the landholder to contest that route only upon sworn objections, has, nevertheless, in the regulations provided for the appointment and action of the commissioners, erected many important safeguards for.the company. The justice must be satisfied, upon the sworn proof presented, that such objections exist as call for the appointment of commissioners. That the commissioners, if appointed, shall be disinterested. Thát the landholder’s objections shall be sustained by the civil engineer of the commissioners, on the one hand, and thus, on the other, that the company shall not be put upon an impracticable route. That the company shall have notice to appear before the commissioners and contest the landholder’s objections. That the company shall be put to expense, on account of such hearing, only in case the proposed route shall be altered; and that the company shall be subjected to no greater delay than fifteen days for the presentation of the petitions, and thirty days for filing the determination of the commissioners. Yet, in establishing these safeguards for the company, .all in one section of the statute, among them the subject of notice twice occurring, the legislature did not provide for that notice, the want of which is here objected to (See General Railroad Act, § 22). (3.) The landholder, if aggrieved, is required by the statute (section 22) to present his objections, under oath, within fifteen days after the service upon him of the statutory notice by the company. If any party be entitled to notice, then all parties in any way interested are so entitled. Not considering the impossibility, in the absence of statutory directions therefor, of serving such notice upon “the public,” upon non-residents, and upon persons who could not be found, it is manifest that the legislature, in thus restricting the landholder to fifteen days, did not intend that the brief time allotted should be consumed, and his remedy lost, in giving such notices. (4.) It would clearly be impossible to specify, with the reliable accuracy of a legal notice, the time and place at which, out of court, a justice could be found to whom the petitions for the appointment of commissioners would be presented.
   Johnson, J.

The motion to set aside the .order appointing three commissioners on the petition of the respondents, was made upon the ground that the order was irregular, having been made ex-parte, without any notice to the appellants. The appellants had located their railroad through the lands of the respondents, and filed their map and profile as required by the railroad act, and given notice to the respondents of the route so designated by the appellants over the respondents’ lands. By the statute (section 22), “Any party feeling himself aggrieved by the proposed location may, within fifteen days after receiving notice as aforesaid, apply to a justice of the supreme court out of court, by petition, duly verified, setting forth his objections to the route designated; and the said justice may, if he consider sufficient cause therefor to exist, appoint three disinterested persons, one of whom must be a practical engineer, to examine the proposed route, and, after hearing the parties, to affirm or alter the same, as may be consistent with the just rights of all parties and the public.”

The statute does not require any notice to be given of the application for the appointment of the commissioners, and we think the legislature did not intend that notice should be given, nor to give the corporation the right to appear and litigate before the judge the question of such appointment.

The statute provides for a hearing of all parties interested before the commissioners, before they can act, and this we think is all the notice or hearing the legislature intended to allow the corporation on the subject. The statute evidently was intended to give the landholder who felt aggrieved by the proposed location over his land, the absolute right to have commissioners of review appointed, and a hearing of the whole question of location before them.

It requires him to act promptly, and make his application within fifteen days from the service of the notice upon him, and evidently does not contemplate any hearing of the adverse party on such application. ¡No objection can be raised to the validity of the statute on this ground, as it was not necessary to make provision for a judicial contest upon that question. It does provide for notice and a hearing before the rights or interests of the parties concerned can be affected (People v. Smith, 21 N. Y., 595).

Having come to the conclusion that no notice is provided for by statute, and that none was necessary, the question, whether the order appointing the commissioners is only reviewable upon a common law certiorari,, or whether it is the subject of an appeal on motion in the supreme court at special term, is of no consequence, and need not be decided here. The order wag regular, and the court at special term properly refuged to get it agide for irregularity.

The order appealed from ig, therefore, affirmed, with ten dollars cogtg of appeal.

Talcott, J., concurred.

Mtjllln", P. J., digsented.

Order affirmed, with cogtg.  