205 N.Y. 301 | NY | 1912
Lead Opinion
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The question presented by this appeal is whether the Appellate Division had power to review the amount of the award in question. The award rests wholly on the act of 1905, because damages arising from a change of grade in a public highway cannot be recovered at common law. (Radcliff's Exrs. v. Mayor, etc., ofBrooklyn,
The learned Appellate Division was of the opinion that owing to those words the statute did not involve the discharge of a judicial duty by the board of assessors and that in estimating the damages there was no rule to be followed other than the principle of good conscience and good morals which brought them into being. (
During the hearing which took place before the board of assessors evidence was given in behalf of the relators tending to show that the damages sustained amounted *306 to upwards of $60,000, while evidence was given in behalf of the city tending to show that the damages were at least the sum of $29,471. That was the lowest estimate made by any witness on either side. The amount of the award as made was $15,000. It is obvious that if the assessors acted judicially a question was presented for determination by the Appellate Division in relation to the amount of the award. If, on the other hand, as claimed by the respondents, the discretion of the board as to the amount of damages was so absolute that it could disregard the evidence and arbitrarily fix a sum without any evidence to support it or to award one owner generous if not excessive compensation and another no compensation at all, then they did not act judicially, and no question was presented for review.
The statute should receive a reasonable construction, so as to give effect to the object of the legislature, and if the meaning is doubtful, such a construction, if possible, as will not lead to unreasonable results. (East v. Brooklyn Heights R.R. Co.,
The board, therefore, had power to take up the claims or not, in its discretion, and if it had refused, the landowners would have been without remedy, as the discretion expressly given to the assessors would have excluded review by the courts. The claims, however, were in fact taken up and thus the question arises whether the action of the assessors in making awards was judicial in its *308
nature. While neither notice nor hearing was expressly required by the statute, I think that both were required by implication from the nature of the duty to make an award of damages and the established practice in such matters which the legislature is presumed to have had in mind and in the light of which it passed the act. (People ex rel. Heiser v. Gilon,
We recently had before us a similar statute, which authorized an award but was silent as to the procedure, neither notice nor hearing being expressly required in estimating the damages. (L. 1872, ch. 729.) After the damages were awarded, however, they were to be assessed upon the property benefited according to the provisions of another statute, which required notice and a hearing. (L. 1882, ch. 410, § 871.) We held that "there were two distinct and separate proceedings before the board, the result of which is expressed in two papers, namely, the certificate of award as to the damages, and the assessment list as to the expenses and benefits." All the judges united in saying: "After the damages to the property owners had been ascertained, then the assessors were to proceed in assessing them upon the property benefited, according to the procedure prescribed" by another act. "The statute, however, is silent as to how the assessors were to proceed in ascertaining the damages which the *309
property owners had sustained, and no provision is made for notice to them or for a hearing. The duties which the board was required to perform were essentially judicial in their nature and character. The power and duty to determine the amount of loss or injury, which the owner of real estate had sustained, involved the exercise of judgment and discretion, and the hearing of such proof as the property owners had to offer, and as was pertinent to the inquiry." (People ex rel. Heiser v. Gilon,
I think that after the assessors assumed jurisdiction their action was judicial in nature, and, therefore, subject to review by the Appellate Division as to the amount of the damages awarded. While that learned court might not have been bound even by the lowest estimate of any witness called by the city, it was its duty to review the question of fact decided by the assessors as to the amount and to reverse their determination if it was regarded as wrong under all the circumstances. (People ex rel.McAleer v. French,
Dissenting Opinion
The relators, appellants upon this appeal, were the owners of property upon Vernon avenue and Newtown creek at the time when a new bridge was constructed by the city over the creek. The approach to the old bridge was raised about four feet above Vernon avenue; but that to the new bridge consisted in a steel viaduct, about twenty-two feet above the roadway and about 1,050 feet in length. The new bridge was completed in 1905 and these relators presented to the board of assessors of the city of New York a claim for damages, as owners *310
of the lands and buildings abutting upon Vernon avenue. This claim was made under the provisions of chapter 582 of the Laws of 1905, which had been enacted with relation to any claims based upon the effect of the new construction. The board gave a hearing upon the claim and made an award of $15,000. This was not satisfactory to the relators, who sued out a writ of certiorari to review the determination of the board; alleging the inadequacy of the award upon the evidence of damage. The Appellate Division, in the second judicial department, before which court the matter came on to be heard, dismissed the writ; as matter of law and not of discretion. It was considered by that learned court that the determination of the board of assessors was not the subject of review by the courts; inasmuch as the statute did not cast upon that body "the discharge of a judicial duty." The question, therefore, which this appeal, alone, presents, is whether the proceeding before the board was of that judicial character, which rendered the determination reached reviewable by writ of certiorari, and, in order to ascertain that, the language of the statute must be resorted to and not those general principles, which pertain to the procedure of tribunals of a judicial, or quasi judicial, nature. (Matter of Fitch,
The relators not having suffered from any actual invasion, or taking, of their lands, had no enforcible claim against the municipality for any damage resulting from the change of the grade of the street. Their ownership was subject to the public right to make the change, when deemed a necessary improvement of the street. (Sauer v. City of N.Y.,
In Matter of Fitch, (supra), a review by certiorari of the determination of commissioners appointed to estimate the damages of abutting owners, resulting from changes of grades of streets, in the city of New York, was upheld upon the language of chapter 567 of the Laws of 1894, in question there. The particular language under consideration was that conferring "exclusive jurisdiction to estimate the loss and damage" upon the commissioners and it was argued that, thereby, their award was not subject to review. It was decided that, under the act, this language, while giving exclusive jurisdiction to estimate the loss, must be considered in connection with *313
other requirements as to procedure. The act provided that it should be the duty of the commissioners "to inquire into the facts or circumstances relating to any claim * * * to hear the evidence in support thereof or in opposition thereto, and on every such inquiry and hearing to administer oaths or affirmations to all persons testifying, and after duly considering the evidence, to award such damages * * * as shall be under the circumstances, and on the evidence presented, just and equitable," etc. These requirements of the act were deemed to be significant and exclusiveness of jurisdiction, therefore, related only to the power to estimate. In People ex rel. Heiser v.Gilon, (
I think that, in authorizing and empowering the board "in its discretion to estimate and determine the damage," the legislature made its determination conclusive; whether that determination was to refuse to consider a claim, or whether it was one fixing the amount of an award.
I think the order appealed from should be affirmed, with costs.
Dissenting Opinion
While I concur in the opinion of Judge GRAY for the affirmance of the order before us, I appreciate that there can be different views entertained as to the effect of the discretionary power granted by the statute to the board of assessors upon the question whether the award made by that body is subject to review. But from the theory upon which the reversal of the order of the court below is about to proceed — that the discretion vested by the statute is as to the question whether the board of assessors should entertain the claim of the relator, not as to the decision of the claim after it has been entertained — I wholly dissent. The location of the words "in its discretion" in the sentence of the statute which confers authority upon the board is not controlling. We at times read and quite often hear that a murderer "was sentenced to be hanged by Judge A." The statement may provoke a smile from the grammarian, but there can be no doubt as to what function is intended to be attributed to the judge. If the statute is to be construed as contended, I have grave doubts of its constitutionality. It is said that as the *315 statute clothed the respondents with power to act on the claim in their discretion, if they had refused to take action thereon, such determination would not be subject to review. But it is further said that if they entertain a claim the determination of it is a judicial proceeding as to which the statute confers no discretion. It is also said that the action of the legislature in authorizing an award of damages for property injured by the change in the approach to the bridge, was not the conferring of a gratuity, but the recognition of a moral claim which it was within the power of the legislature to do. If these three propositions are correct, the result is that by the statute the legislature has not recognized the equitable claims to compensation of the parties injured by the improvements, but has left it to the discretion of the respondents to determine, not whether the claims are meritorious and equitable, but whether even if both, they shall be entertained at all. In other words, the legislature itself does not enact that equitable rights shall become legal claims, but has committed that to the board of assessors. This seems to be a delegation of legislative authority which is unauthorized. The case is not similar to that of a statute which grants to municipalities administrative powers to be exercised or not in the discretion of the municipal officers, such as authority to buy a park. The view of the statute before us sought to be maintained is that the statute creates a legal right, provides a tribunal to hear and determine it, and, therefore, such hearing and determination is necessarily judicial, while at the same time the legal existence of the claim is left to the arbitrary discretion of the board of assessors.
The suggestion that this objection will apply with the same force to one construction of the statute as to the other ignores the distinction between two different functions: One, that of the recognition of an equitable claim and the direction for its payment if established, which is *316
a legislative act (Cole v. State of N.Y.,
As already said, I have doubts as to the constitutionality of the statute under such a construction, but granting that under that construction the statute would be constitutional, it seems to me it is an unnatural construction to be given it. It seems a much more reasonable construction that the discretion given the board of assessors relates to the determination of the claim, its justice and amount, and not to the duty of the board to entertain it. The general principle of statutory construction is well settled. A statute permissive in terms will be construed as mandatory where there is a duty to exercise the power conferred. (Potter's Dwarris on Statutes, p. 220; Sutherland on Stat. Construction [1st ed.], sec. 460.) In Mayor, etc., of N.Y. v.Furze (3 Hill, 612, 615) Chief Justice NELSON said: "Where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though *317
the phraseology of the statute be permissive merely, and not peremptory." (See, also, People ex rel. Otsego Co. Bank v.Supervisors of Otsego Co,
WERNER, HISCOCK and COLLIN, JJ., concur with VANN, J.; HAIGHT, J., concurs with CULLEN, Ch. J., and GRAY, J.
Order reversed, etc.