72 N.Y. 1 | NY | 1878
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *3
We think the order is appealable. The act of 1869 (Laws of 1869, chap. 888, p. 2223, § 12), gives an appeal on questions of law from the decision of any county judge to the Supreme Court. The act of 1871 (Laws of 1871, chap. 303, p. 603, § 4), which substituted the County Court for the county judge, brings, in effect, the order of the County Court under the same right of appeal. The provision in section twelve of the act of 1869, that the order made on application for an accounting is final, must be harmonized with the provision of the same section for an appeal on questions of law. The two provisions are to be construed as making the order final upon matters of fact, but liable to appeal upon any question of law, arising upon the whole act or upon any proceeding necessarily affecting that order. This comes from the peculiar provisions of the act, as was the case in N.Y.C.R.R.Co. v. Marvin (
This brings us to a consideration of the points made in this court by the appellants. The first point involves the consideration of whether the commissioners of drainage had their appointment from an authority constitutionally empowered to create them. It is easily conceded that they are not State officers in a sense which requires the appointment of them to come from a power, authorized to appoint what are known in the Constitution as State officers. It may be that they are not county officers, in a sense which will make the county, the judge of which appoints them, liable for their acts or omisions. (Maximilian v. The Mayor,
To notice a suggestion made upon the appellant's points; the question of the power of the commissioners to issue evidences of indebtedness for any municipality, or for any supposed principal of which or whom they are agents, is not now so directly before us, as that we must determine whether such evidences of indebtedness are valid obligations.
It is claimed that the General Drainage Act of 1869 is unconstitutional. The general act which appears in the Revised Statutes (2 R.S., 548), it seems, was declared by this court to be unconstitutional. (See White v. White, 5 Barb., 474, citing Gilbert v. Foote, so far as I find, never reported.) It is understood that the judgment of this court in Gilbert v.Foote, to that end, went mainly upon the ground that the act sought to permit the taking of private property for a private use, which was not a use for a private way. (See In re Drainage,etc., 5 Hun, 116.) For the years immediately before 1869, in consequence probably of that decision in Gilbert v. Foote,
the Legislature was burdened with proposed local bills, and enacted local laws, for drainage of lands; as the Session Laws and journals of the years will *7
show. In that year the Legislature sought for its own relief, and in the spirit of the Constitution averse to local and special legislation, to provide a general act for the drainage of swamps and the like. The power of the Legislature to enact these "Drainage Acts" has been put by some courts, on what is said to be a right to prescribe public regulations, for the more economical management of property of persons whose lands adjoin, or which for some reason can be better managed and improved by some joint operation. (Coster v. Tide-Water Company,
18 N.J. Eq. [3 C.E. Green], 54; O'Reiley v. Kankakee, Draining Co.,
It is further claimed that the act provides for taking away of property of a citizen without due process of law. The specific provisions of the act refute this allegation. The commissioners are to determine, by personal view, what lands are to be taken for ditches. (§ 4.) They are to file their determination in writing, and to give notice to all whom it may concern; and any person feeling aggrieved has a right of appeal therefrom to the County Court, which shall hear the appeal on notice to the appellant. (Act of 1869, § 5; Act of 1871, § 4.) The land taken for the construction of the drains shall be paid for to its value, and any other injury the owner may sustain, at the time when, or before, the work is begun (§ 9 of act of 1869); and the proceedings to reach the amount of compensation are the same as those provided by law in taking lands for railroad purposes. (Id.) The assessments to be laid on the lands claimed to be benefited are to be reviewed by the County Court, on the motion of any one interested. (§ 10.) Now, all this is in the line of legislation, which has been sanctioned for years, and held to be within the constitutional power of the Legislature over such *10
subjects. (The People v. The Mayor,
The next point of the appellants arises in this way: Judge METCALFE, the county judge of Richmond county, made the first order in these proceedings, that appointing the commissioners, whose official duty it was first to determine upon the necessity of the work, and then to carry it forward, and to determine what and whose lands were to be taken, what and whose lands were to be benefited, and the amount of the assessment upon the lands of each owner. It is urged that it was an important duty to make the selection of men for an office of so extensive powers as those appertaining to these commissioners; powers which, in their exercise, would affect every owner of land likely to fall or be brought within the scope of the undertaking. Now, it was upon the face of the petition, which was presented to Judge METCALFE, that he was interested in the matter as an owner of some of the lands to be affected. It is claimed that he was thereby disqualified from acting, and that his order appointing the commissioners was void, and that, as it was the base of the whole proceeding, it failing, the whole failed. It is a rule of the common law, that "no man can be a judge in his own cause." It has been said that this rule still prevails, though he be the only judge who can have jurisdiction of the case. (Anonymous, Salk., 396.) A reference to that case does not *11
show that such was the judgment of the court there, but that it was a remark of HOLT, C.J., which he also made in what would seem to be another case. (Salk. 201.) In another case, Mayor ofLondon v. Markwick (11 Mod., 164), HOLT, C.J., was of the same opinion; but POWELL, J., contra, said, "he agreed that, regularly, a man cannot be judge and party; but in a case of necessity he may; as if a real action be brought against all the judges of the C.B." In that case it appeared that the mayor was not a necessary part of the inferior court, and it also not appearing that he gave the judgment, the action of the inferior court was held good. So, too, in The Matter of the Parishes ofGreat Charte and Kennington (2 Strange, 1173), it was said, that as to the case of corporations, if it appeared that there were no other justices, a party interested might be a judge, to prevent a failure of justice. And to the same effect is Comm. v. Ryan
(
It is, however, objected that, though this may be so, where exclusive jurisdiction is conferred by the constitution, it is not so where the power is given by statute general or specific. True, it is said in books of high repute, that "a legislative act, which should undertake to make a judge the arbiter in his own cause, would be void" (Cooley on Const. Lim., *175); and so has Lord COKE said (Co. Lit., § 212); and so is the utterance inDay v. Savadge (Hobart, 212-218), [85-*87 b]. How this may be in an action at law or suit in equity, in which the judge was a party named or a party in fact, and where his interest was so close and immediate that there would be a direct pecuniary gain or loss, or direct personal triumph or defeat, to him by the result, we are not now called upon to say. For one I should loathe to hold, that by force of a legislative act, one could bring an action in which his interests were involved, in a court of which he was the sole judge, and could sit alone to hear and decide it. But we know that in cases in which the interest is not direct but remote; is not certain and palpable, but contingent and problematical; is not great and important, but minute; statutes, not specific but general, which have had the effect to confer exclusive jurisdiction, where there was an interest in the result, have been upheld as valid. In Strange, 1173, (supra), we are referred to the act of 16 Geo. II, c. 18, which was passed to remedy the difficulty arising from the decision there reported, which act gave power to all and every justice or justices of the peace to act in matters concerning parochial rates, notwithstanding they or he were chargeable therewith. (7 Evans Coll. Stats. p. 476.) I do not find any adjudication upon this act upholding or denying the validity of it. From the fact that it was passed as early as 1744, and the case above cited from Strange, with the reference therein to the act, appears in the third edition of those reports published *14
in 1792, without note of any judicial disapprobation; and from the further fact that another act of Parliament of like effect was passed (the 30 31 of Vict. [c. 115, § 2,]; see Fisher's Digest, vol. iii, p. 5107); I infer that the character, object and effect of the enactment did not meet with judicial reprobation. But we are not left to inferences. There have been adjudications upon statutes conferring exclusive jurisdiction in general terms, wherein it has been held that the force of the enactment over-rode the rule which disqualified by reason of interest. In Massachusetts it has been held that the interest which a justice of the peace has in a penalty payable to his town, though minute, takes away his jurisdiction of the offense. (Pearce v. Atwood, supra.) Yet the Supreme Court of that State has repeatedly held, that where there is but one tribunal authorized by statute to take cognizance of the offense, such interest does not disqualify. (Comm. v. Ryan, supra; Hill v.Wells. 6 Pick., 104; see remarks of SHAW, Ch. J., in Comm. v.Emery, 11 Cush., 406; Comm. v. Burding, 12 id., 506;Hanscomb v. Russell, 11 Gray, 373.) In this State we have statutes relieving jurors, witnesses and certain officers from the disqualification of being interested in the penalties going into the county treasury or for the benefit of a town. (2 R.S. p. 420, § 58; p,, 551, § 2; 1 id., 357, § 4; see Wood v. Rice, 6 Hill, 59.) These enactments were not new in principle, but copied from prior statutes, and which had been passed probably to meet cases, in which it had been adjudged that there was a disqualifying interest. (See Wood v. Stoddard, 2 J.R., 195.) The interest of an assessor of taxes in a town, is very like that which is attributed to Judge METCALFE in the case in hand, save that the official action which may be influenced by it is more direct. An assessor has a voice himself in fixing the valuation of his own land, and that of all other owners in the town. It is a judicial act. (Swift. v. City of Poughkeepsie,
I think, then, that upon the facts of this case, as already stated, we may formulate a rule thus: That where a judicial officer has not so direct an interest in the cause or matter as that the result must necessarily affect him to his personal or pecuniary loss or gain, or where his personal or pecuniary interest is minute, and he has so exclusive jurisdiction of the cause or matter by Constitution or by statute, as that his refusal to act will prevent any proceeding in it, then he may act so far as that there may not be a failure of remedy, or, as it is sometimes expressed, a failure of justice.
We have, so far, spoken of the question of interest only as it existed at common law. It is not different as it exists by statute. Our Revised Statutes (2 R.S., 275) declare that no judge shall sit in a cause in which he is interested. It is obvious that this rule of statute law is as well affected by the necessity existing or created by the conferment of exclusive jurisdiction by another statute, as is the rule of common law. In the case in hand, this exclusive jurisdiction was created by statute. The act of 1869 put upon a county judge the power to appoint commissioners in a proceeding to drain lands in his county, and put it upon him alone. He had no authority to call in another county judge or other officer to act in his place. The judiciary article adopted in 1869-70, and in force when Judge METCALFE made his *16
order, provided (Const., art. 6, § 15) that the county judge of any county might preside at courts of sessions or hold countycourts in any other county, except New York and Kings, when requested by the judge of such other county. But it was not until in 1871, and after the making of the order by Judge METCALFE, that jurisdiction was given to county courts in drainage proceedings (Laws of 1871, vol. 1, p. 607, § 20); and until then, the county judge of Richmond county could not request the county judge of another county, to act in this matter by holding the Richmond County Court. For the same reason, section 30, subdivision 13 of the Code of Procedure, did not apply. That provides only for the case of an action or proceeding pending in the County Court. As this was before the county judge, he could not, under that subdivision, certify the case to the Supreme Court. When the jurisdiction was, by act of 1871, transferred to the County Court, Judge METCALFE had as much right, by that act and the constitutional provision above cited, to call in Judge MOORE from Kings county as he had by the Code to certify the proceeding to the Supreme Court. So that when the order appointing the commissioners was made there did exist the necessity which we have spoken of, and which saved the order made from being void or voidable, by reason of any disqualifying interest existing in Henry B.Metcalfe, the county judge of Richmond county. If, then, we assume that there was a disqualifying interest, as to which courts differ (Foot v.Stiles,
There are some minor points made by the appellants. We cannot notice them seriatim. They have all been examined and considered. Either it does not appear from the record that the facts exist, which are needed to sustain them, or they are not well taken as legal propositions at this time.
The order appealed from should be affirmed.
All concur, except CHURCH, Ch. J., dissenting.
Order affirmed.