27 N.Y.S. 843 | N.Y. Sup. Ct. | 1894
The first objection to the validity of the order sought to be reversed, urged on this appeal, is based upon the contention that the papers used on this motion were insufficient to confer jurisdiction or authority upon the court to grant the order. The papers used by the respondent 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 22d day of May, 1893. The record shows that on these papers the special term of this court sitting at Amsterdam, on the 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
“State of New York, county of Saratoga—ss.: 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 September, 1893, the resolutions hereunto annexed were offered by Mr. Maylender, a trustee of said village, was 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 part of the regular record of said village. James D. Rogers.
“Sworn to before me this 30th day of October, 1893.
“W. P. Butler, Notary Public.”
This affidavit is the only evidence in the papers of the vote of the village trustees upon the adoption of the resolution, and it appears by the affidavit used in opposition to the motion that the record 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 September, 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
“Sec. 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 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, section 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 requires the village clerk to attend all meetings of the trustees of the village, and record their proceedings; and section 86 of that chapter makes the minutes of such proceedings evidence, in all courts, of the acts of the board of the 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 seems to be the policy of the law that, in the exercise of their extraordinary power of tailing 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 v. Barnes, 7 Hill, 35; People v. Koeber, Id. 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 principle 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 complied with.”
The principles enunciated in these cases have been strictly adhered to, so far as we know, in all the cases involving similar questions which have subsequently come before the courts of this state. In Re Widening Carlton St., 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
“But no paroi 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 ayes and neas, 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.
Nor 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 affecting 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 (Laws 1881, c. 303, § 48,) requires that the determination and assessment of the commissioners shall be returned to the trustees within 60 days; and while an omission on their part to comply with that provision of the statute might, in a proper action, have subjected them to removal, I do not think
HERRICK, J., concurs in result.