101 N.E. 462 | NY | 1913
Under section
The first question to be determined is whether by the statute an approval of the purchase is made mandatory or discretionary in the board. The words "shall" and "must" when found in a statute are not always imperative. (Matter of Thurber,
This view, in which we all concur, narrows the further questions in the case to one merely of procedure. The attorney-general objects to the confirmation of the report because after that confirmation the compensation awarded may, in ordinary cases, under section 3373 of the Code of Civil Procedure, be enforced as a judgment, which is true. But, also, the Code of Civil Procedure (Section 3371) provides that any party may move to confirm the report. Therefore, if the action of the board of supervisors is discretionary it is impossible to carry through this proceeding in literal compliance with the Code of Civil Procedure, and the question is at what point a departure from the Code should be made. The award of commissioners is not conclusive until confirmed by the court, for under section 3371 it may be set aside for irregularity or errors in proceedings before the commission, or upon the ground that the award is excessive or insufficient. The price necessary to be paid may be, and often will be, the controlling factor in the action of a board of supervisors either in approval or disapproval of a purchase, and it should not be called upon to approve or disapprove until that price is definitely settled. The determination of the value of the bridge by the commissioners, which it is made the duty of the attorney-general to certify to the board of supervisors, is the determination when confirmed and made final. The provisions of the Code for entering judgment of the amount of the award against the petitioners in the enforcement by execution *587 can have no application to this case. The method in which the award can be collected is exclusively that pointed out by the statute, one-half upon the warrant of the comptroller on the state treasurer, and the other half on the county treasurer by the requisition of the same officer, dependent, however, upon the approval of the purchase by the board of supervisors.
The order appealed from should be affirmed, with costs.
WERNER, WILLARD BARTLETT, HISCOCK, CHASE and HOGAN, JJ., concur; COLLIN, J., not sitting.
Order affirmed.