133 N.E. 45 | NY | 1921
The first question that presents itself is whether the order is appealable. It dismisses a certiorari proceeding. The order is silent as to the reason. The opinion indicates that it was dismissed as matter of law and not in the exercise of discretion. The order is *15
appealable. (People ex rel. Flynn v. Woods,
Relator presented a claim for $3,097 to the commissioner of agriculture under chapter 800, Laws of 1917, amending the Agricultural Law (Cons. Laws, ch. 1), section 139-f of which provided that the owner of domestic animals killed by dogs might present a verified claim for the damages caused thereby; that the commissioner should investigate the same and if it appeared that the alleged damages were caused by dogs, determine the amount of damages and issue duplicate certificates to the owner upon which the comptroller should issue his warrant to the state treasurer for the payment of the claim. The commissioner allowed this claim at $907.
Relator thereafter presented an additional claim for $4,718 under section 139-f of the Agricultural Law as amended by chapter 439, Laws of 1918. This claim went first to the assessors of the town of Manlius, Onondaga county, who filed their certificate with the department of farms and markets. The amended section, provided that "the department may approve, reject or modify the determination of the assessors." This claim was allowed by the council of farms and markets at $394. A third claim of like nature for $1,120 was allowed by the council at $320. The council also reviewed and approved the determination of the commissioner of agriculture on the first claim. The commissioner and the council proceeded on the theory that as matter of law no awards should be made for valuable domestic animals in excess of the value of ordinary animals of the same species. The difference in the amount claimed and the amount allowed is thus explained. The animals of claimant which were killed were of the Karakul breed of fur-bearing sheep which are said to be rare and valuable. No evidence was offered to the contrary.
The Special Term granted a writ of certiorari under section 56 of the Farms and Markets Law and on the *16 return of such writ allowed the claims as presented. The question is whether such determinations are reviewable by certiorari.
The Agricultural Law contains no provision for a judicial review of the determination of such claims by the assessors, the commissioner of agriculture or the department of farms and markets, nor is there any provision therein making such determination final. The Farms and Markets Law (Laws of 1917, ch. 802, Cons. Laws. ch. 69), which became a law June 9, 1917, made substantial changes in the status of the department of agriculture and the commissioner of agriculture and in the administration and enforcement of the Agricultural Law. The former department of agriculture is now the division of agriculture in the department of farms and markets. Article 3 of the Farms and Markets Law provides also for a division of farms and markets; for investigation and proceeding by the council of farms and markets, its committees or commissioners; for the attendance and examination of witnesses, and for reports, rules and orders on matters within the jurisdiction of the department. Section 55 of the law provides for a review of such rules and orders by the department on a hearing before the council and section 56 provides for a court review of any "decision of the council rendered as provided in the preceding section." Clearly this provision for judicial review does not in terms cover the determinations of the commissioner of agriculture or the determinations of the department of farms and markets under section 139-f of the Agricultural Law.
The Appellate Division held that no express authority was to be found in the statute for a review of the awards made herein. It thereupon declined further to review the awards and dismissed the proceeding. But even if its construction of the statutes was correct, this result was erroneous.
Certiorari may be issued at common law where the *17
power of the court to issue it is not expressly taken away by statute. (Code Civ. Pro. § 2120.) We must assume that the legislature had this method of review in mind when it adopted the provisions of the Agricultural Law which provided for the assessment of damages to domestic animals. Otherwise we would expect to find in the statute an express provision that the decision of the commissioner or the council should be final. The act of determining such damages is quasi judicial, rather than purely administrative or ministerial. The question of fact should be decided judicially and not arbitrarily. (People ex rel.Steward v. Board of Railroad Commissioners,
Domestic animals of peculiar qualities, breeding and type such as the Karakul breed of fur-bearing sheep are said to have a greater value than the common varieties. The legislature has not qualified its declared purpose to make full compensation by limitations on the amount to be awarded. "The amount of the damages" is to be determined and that amount is to be paid. (Agricultural Law, § 139-f.) Neither the commissioner nor the court may limit the language of the law by general notions of legislative wisdom or policy.
The final question is what disposition should be made of the appeal. The opinion indicates that the question of jurisdiction alone was considered by the Appellate Division. *18
The order of the Appellate Division should be reversed and the appeal remitted thereto for consideration on the merits, with costs.
HISCOCK, Ch. J., HOGAN, CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Order reversed, etc.