
    The County of Orange, Respondent, v. Edward Ellsworth, Appellant, Impleaded with Sarah E. H. Bennett, Defendant.
    
      Eminent domain — highways—improvement of, and, securing a right of way by boa/rds of supervisors—chapter 240 of the Laws of 1901 is constitutional — an appearance gives jurisdiction of the person and waives defects in a published notice — an allegation “ that all the preliminary steps required by law have been taken ” is sufficient — repeal of a statute by implication — two acts designed to operate on the same subject.
    
    The fact that chapter 240 of the Laws of 1901, as amended by chapter 510 of the Laws of 1902, which is entitled “ An act supplementary to chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, entitled ‘An act to provide for the improvement of public highways/ relative to securing the requisite right of way by the boards of supervisors of counties in which public highways are improved pursuant to said chapter,” does not, when read in connection with chapter 115 of the Laws of 1898, in terms, provide that the defendant landowner shall have an opportunity to deny or controvert the petition or to interpose any pleading or defense or to litigate the right of the plaintiff to maintain the proceeding, does not render the statute open to the constitutional objection that it deprives the landowner of his property without due process of law, for the reason that the provisions of the act of 1901 are supplemented and explained by the Condemnation Law (Code Civ. Proc. chap. 28), and the two acts standing together sufficiently protect the rights of the defendant landowner in the particulars mentioned.
    The general appearance of a defendant landowner in a proceeding instituted under the act of 1901 operates to confer jurisdiction of his person upon the court, and is a waiver by him of any question as to the sufficiency of the published notice by which the proceeding was instituted.
    The objection that the petition in a proceeding instituted under the act of 1901 failed to allege that the proceeding was authorized by the board of supervisors is not tenable as a preliminary objection, where the petition avers “that all the preliminary steps required by law have been taken to entitle your petitioner to institute this proceeding,” but may be raised by answer.
    The repeal of a statute by implication is never favored by the courts.
    Where some office or function can, by fair construction, be assigned to two acts, which, although they were designed to operate on the same general subject, confer different powers to be exercised for different purposes, both acts must stand.
    Appeal by the defendant, Edward Ellsworth, from an order of the County Court of Orange county, entered in the office of the clerk of the county of Orange on the 11th day of January, 1904, confirming the report of commissioners of appraisal appointed in a condemnation proceeding, with notice of an intention to bring up for review upon such appeal a judgment entered on the 29th day of August, 1903, appointing such commissioners of appraisal.
    
      Joseph W. Gott, for the appellant.
    
      Graham Witschief, for the respondent.
   Woodward, J.:

Chapter 240 of the Laws of 1901, entitled An act supplementary to chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, entitled 6 An act to provide for the improvement of public highways/ relative to securing the requisite right of way by the boards of supervisors of counties in which public highways are improved pursuant to said chapter,” is challenged upon this appeal as being in violation of the Constitutions of this State and of the United States. (U. S. Const. 5th amendt.; Id. 14th amendt. § 1; State Const, art. 1, §§ 1, 6.) This act provides in section 2 (as amd. by Laws of 1902, chap. 510) that the board of supervisors of a county in which the highways are to be improved under the provisions of chapter 115 of the Laws of 1898, as amended, may provide for the purchase of any right of way necessary to such work, provided that in no single instance more than $200 shall be thus expended unless the written approval of the county judge and county treasurer shall first be obtained, in which case no more than $1,000 shall be thus expended. Section 3 provides as follows: “ In case the board of supervisors may not be able to acquire the land "by purchase as provided for in the last section the board of supervisors may present to the County Court of the county or to the Supreme Court, at a Special Term thereof, * * * a petition for the appointment of three commissioners of appraisal to ascertain and determine the compensation to be made to the owners and all other persons in any manner interested in any and all real estate over which such right of way is required. Such petition shall describe the land to be acquired, a reference to the map upon which the same is shown, and shall have annexed thereto said map or diagram showing the land to be acquired. Such petition shall be signed in the name of the board of supervisors by the chairman thereof * * * and shall be verified by the said chairman * * * as aforesaid. Notice of presentation of such petition to such court shall be given by the petitioner by publishing such notice in two newspapers published in such county, once in each week for two weeks successively preceding the day of such presentation, and also by posting a copy of said notice in not less than three public places in each town in which property to be acquired is located, at least eight days preceding the day of such presentation.” Section 4, so far as it has any bearing upon the question presented on this appeal, provides that “ upon such presentation, such court shall, after hearing any person interested or claiming to be interested in any land to be acquired in such proceeding who may appear, appoint three disinterested persons as commissioners.”

The county of Orange, through its board of supervisors, has sought to take the lands of the defendant under the provisions of this act. It presented a petition to the County Court, and upon the day named in the published notice for the presentation of such petition the defendant Ellsworth appeared by his attorney and filed written objections to the proceeding, without suggesting any limitation upon the appearance, so far as appears from the record, or by anything now urged upon the consideration of this court. By this general appearance the court unquestionably gained jurisdiction of the person of the defendant (Heed v. Chilson, 142 N. Y. 152,155, and authorities there cited), who must be deemed to have waived any question of the sufficiency of the notice published ; and if the objections then urged are untenable, and the statute is not open to the objection of unconstitutionality, the appeal must fail and the order be affirmed, unless there was error calling for reversal in the conduct of the appraisers, whose report has been confirmed.

The objections stated, upon which no ruling appears to have been asked for or made, are as follows: I. Chapter 240, Laws of 1901, and the amendments thereto by Chapter 510, Laws of 1902, are unconstitutional. A. The Statute fails to provide for personal service of notice of application, or for a proper publication of notice of application. B. That the owners, whose lands are sought to be acquired herein, are not properly before the Court, and any and all proceedings taken herein are wholly inoperative to cut off defendants’ interests, and are null and void. C. That no provision is made in said Act for denying or controverting the petition or for making any pleading or defense; and that defendant land owner is not permitted on the return of the petition, or at any subsequent time, to litigate the question of the right to maintain the proceeding or to raise the issue of the use and necessity requiring the condemnation of the lands herein. D. That the lands in question are not sought for public purposes. II. That the petition herein is fatally defective, in that it does not state the specific purposes for which the lands in question are to be used. III. The petition fails to allege that this proceeding was authorized by the Board of Supervisors as prescribed by Chapter 240, Laws of 1901, and the amendments thereto, but, on the other hand, it affirmatively appears that it was only authorized by resolution of a sub-committee thereof, and such failure renders this proceeding void. IY. The verification is defective in that it does not state authority to make such verification, nor does it anywhere appear in the petition that such verification is authorized.”

The objections under clauses A and B are disposed of by'the fact that the defendant voluntarily appeared and submitted to the jurisdiction, of the court. If the defendant is correct in his assumptions under clause C, that there is no provision for denying or controverting the petition or making any pleading or defense, and no opportunity to litigate the right of the plaintiff to maintain the proceeding, etc., a more serious question is presented, and the defendant’s objections having been ignored, we are disposed to consider this question. It is important at the outset to determine the question whether the defendant is denied these rights, for

there can be no doubt that, if the law deprives him of an opportunity to have a judicial determination of the questions suggested, it operates to deprive him of his property without due process of law. It is true, we believe, that the statute (Laws of 1901, chap. 240, as amd. by Laws of 1902, chap. 510, read and construed in connection with Laws of 1898, chap. 115, as amd.) does not in terms provide for the judicial determination of any of these questions, but it does not necessarily follow that the law is thus unmindful of his rights. Chapter 115 of the Laws of 1898 made no provision for a county to take private property for public purposes. It provided in section 7 that “ in case the boundaries of such proposed highway shall deviate from the existing highway, the board of supervisors must make provision for securing the requisite right of way prior to the actual commencement of the work of improvement,” and chapter 240 of the Laws of 1901, being supplemental to this act, was designed to provide the board of supervisors, as the official representative of the county in its corporate capacity, with the power of eminent domain. Neither of these acts contains a repealing clause, and repeal by implication is never favored by the courts (Woods v. Supervisors, etc., 136 N. Y. 403, 409), so that unless we find these acts to be so repugnant to the Condemnation Law (Code Civ. Proc. chap. 23; tit. 1) that both cannot operate together, or that these later statutes were evidently intended to furnish the whole law on the particular subject (Woods v. Supervisors, etc., supra, 409, and authority there cited; Coxe v. State, 144 N. Y. 396, 411, and authorities there cited), we must read and construe chapter 240 of the Laws of 1901, as amended by chapter 510 of the Laws of 1902, in connection with the general laws of the State. The rule is well established that when some office or function can by fair construction be assigned to both acts, and they confer different powers to be exercised for different purposes, both must stand, though they were designed to operate upon.the same general subject (Woods v. Supervisors, etc., supra, 409, and authority there cited), and this rule is in entire harmony with, and, indeed, is in effect the same as that rule which requires that constitutional or statutory provisions which relate to the same subject, being in pari materia, shall be construed together. (Cooper Manufacturing Co. v. Ferguson, 113 U. S. 727, 733, and authority there cited; 26 Am. & Eng. Ency. of Law [2d ed.], 620; Matter of Livingston, 121 N. Y. 94,104; People ex rel. Jackson v. Potter, 47 id. 375, 380, and authorities there cited; Matter of Rapid Transit Commissioners, 147 id. 260, 267.) In Matter of Livingston (supra), supported by the authorities last above cited, it was said, in determining the intention of the Legislature : “ Words absolute in themselves and language the most broad and comprehensive may be qualified and restricted by reference to other parts of the same statute and to other acts on the same subject, passed before or after, and to the conditions and circumstances to which the legislation relates.” (See Blaschko v. Wurster, 156 N. Y. 437, 443, and authorities cited.) It is plain, therefore, that unless chapter 240 of the Laws of 1901 (as amd. supra) is in such direct antagonism as to prevent the possibility of harmonizing it with the provisions of the Condemnation Law, the latter must be deemed to have been left in full force and effect. A careful examination of the statutes convinces us that both may be read together, and that they may easily stand together without any serious clash or conflict, and where that can be done our duty is to reconcile them and give to each its operative force. (People ex rel. Van Heck v. New York Catholic Protectory, 101 N. Y. 195, 200; Woods v. Supervisors, etc., supra, 409.)

If, under the rules to which we have called attention, the provisions of the Condemnation Law are permitted to supplement and explain those of chapter 240 of the Laws of 1901 (as amd. supra), and the two acts, standing together, provide the defendant an opportunity to litigate any question relating to his property rights, it is clear that this court is not called upon to declare the latter act unconstitutional. (People v. Rosenberg, 138 N. Y. 410, 415, and authorities there cited; People v. Lochmer, 177 id. 145, 158, 159, and authorities there cited.) That it was the purpose of the Legislature, in enacting the Condemnation Law, to supplement all laws in reference to the taking of private property for public purposes is clearly evidenced by its language, for it is provided that “ whenever any person ” (“person” being defined to include natural persons, “ the State and a political division thereof,” Code Civ. Proc. § 3358) “ is authorized to acquire title to real property, for a public use by condemnation, the proceeding for that purpose shall be taken in the manner prescribed in this title.” (Code Civ. Proc. § 3359.) It related, not to any particular act, but to all acts; whenever the Legislature authorized any person or corporation to take private property for public purposes, this act was to come into operation and provide the method of procedure. It does not authorize the taking of the property of any one. It merely prescribes the method of judicial procedure (the “ due process of law ”) in those cases where by virtue of the provisions of some other law the exercise of the right of eminent domain has been conferred for public purposes. (Rochester Railway Co. v. Robinson, 133 N. Y. 242, 247.) And the purpose of this enactment was to establish one rule throughout the State by which the rights of persons in their property should be determined; it was a formulation of the law of the land, which means a “ general and public law, equally binding upon every member of the community” (Vanzant v. Waddel, 2 Yerg. 260, 270; see Cotting v. Kansas City Stock Yards Co., 183 U. S. 79), and we are of the opinion that it accomplishes the purpose for which it was designed. Section 3360 of the Code of Civil Procedure provides that the proceeding shall be by petition to the Supreme Court, setting forth certain facts, enumerated under seven subdivisions, including “a specific description of the property to be condemned, and its location by metes and bounds,” in substantial harmony with the provisions of section 3 of chapter 240 of the Laws of 1901. Section 3361 of said Code provides for giving notice of the time and place when the petition will be presented to the court, this notice being required to be given at least eight days before such presentation by a personal service of the notice with a copy of the petition. Section 3 of chapter 240 of the Laws of 1901 provides for giving this notice by publication in two newspapers published in the county, once in each week for the two weeks prior to the presentation of the petition and also by posting a copy of said notice in not less than three public places in each town in which property to be acquired is located, at least eight days preceding the day of such presentation, but as we have already suggested, the defendant is in no position to raise any question under this head, for he has voluntarily come in and submitted himself to the jurisdiction of the court. Whether a notice by publication is sufficient, without the service of a copy of the petition upon the person whose property is to be taken, is not necessary to be determined here, for the Condemnation Law provides for such service, and if necessary to support the statute this might be construed to be in addition to the publication required, there being no inconsistency between the requirement that a notice shall be published of the action of a representative body and a personal service upon the individual whose property rights are to be affected. Section 3362 of the Code of Civil Procedure provides the method of serving these papers, and the same subject is continued in the following section, while section 3364 provides for the appearance of parties, conforming the practice to that of actions in the Supreme Court. Section 3365 provides that “upon presentation of the petition and notice with proof of service thereof, an owner of the property may appear and interpose an answer, which must contain a general or specific denial of each material allegation of the petition controverted by him, or of any knowledge or information thereof sufficient to form a belief, or a statement of new matter constituting a defense to the proceeding.” Subsequent sections provide for the verification of the pleadings, for the trial of the issues raised by the petition and answer, and generally for the conduct of the entire proceeding before the court, which is made to conform substantially to the proceedings in an action.

The petition in the present proceeding conforms to the requirements of section 3360 of the Code of Civil Procedure, as well as to some of the provisions of section 3 of chapter 240 of the Laws of 1901, and if the defendant had interposed an answer he would have been entitled under the law to a trial of any of the questions which would have been open to any citizen whose property was being taken under the power of eminent domain. The law provided due process ; it opened the way to him to litigate any issue which he might have desired to raise, and having neglected to answer, he must be deemed to have waived any of the issues which he now seeks to review upon this appeal.

It may be proper to point out that the objection that the petition fails to allege that this proceeding was authorized by the board of supervisors, etc., was one which could have been raised by answer, but that it is not tenable as a preliminary objection, as the petition recites, in substance in the language of section 3360 of the Code of Civil Procedure “that all the preliminary steps required by law have been taken to entitle your petitioner to institute this proceeding,” and the fact that the petition contains a more or less ambiguous recital, not required by the statute, which might be construed to contradict the averment, is not available to defeat the action which has been taken. . (See Rochester Railway Co. v. Robinson, supra; Williamson v. Wager, 90 App. Div. 186,190, and authorities there cited.)

The commissioners viewed the premises, and it not appearing that they were governed by any erroneous theory, we are of opinion that the judgment, confirming the report of the commissioners, should be affirmed, with costs.

The order appealed from should be affirmed, with costs.

All concurred.

Order of the County Court of Orange county affirmed, with costs.  