2 Denio 323 | N.Y. Sup. Ct. | 1845
The first inquiry in this case is, whether the statutes concerning the opening of streets in the city of New-York confer upon the justices of the supreme court an office or place of trust other than that which they hold as such’ justices. In determining this question, it is important to consider the nature of the authority which these statutes confer on the judges, and the character of the jurisdiction which appertains to the court which they are appointed to hold. If the powers respecting streets which are devolved upon the judges are such in their nature as properly belong to the court, there can be no objection to their being thus lodged; otherwise I apprehend they belong to another office or public trust.
The supreme court has repeatedly determined that in this whole class of cases the judges act as commissioners, and not in the execution of their judicial office, and that they derive all their authority from the statute referred to. In the matter of Beekman-street, (20 John. 269,) Spencer, C. J. said: “ It is true we act collectively and in term' time, and a majority present
is argued that the acts of the court under these statutes are of a judicial character, and that the cases referred to proceed upon the distinction between the general and ordinary jurisdiction of the court and the special and limited authority which is conferred upon it by the statutes. It need not be denied that the court in these matters acts judicially; for the admission of that position will not sustain the decision under consideration. There are many judicial duties which cannot constitutionally be thrown upon the supreme court. The surrogate in his court, the recorder’s court, and courts martial proceed judicially, but
Again, the admitted fact that these proceedings are not of such a nature that they can be revised until they are brought before the court by a certiorari, and again passed upon and made a matter of record in that court, proves to my mind that these judges are executing some other trusts and duties than such as belong to the court. Indeed the prevailing opinion in the supreme court seems to concede that while performing the duties in question, the court is acting as “an inferior and limited Court.” This -is also necessarily implied from the consideration that it is subject to the command contained in the certiorari to make return of their proceedings into the supreme court. This liability to review in the supreme court can only exist in the case of a subordinate tribunal, and of itself proves that it is a distinct jurisdiction. If then the judges While performing those duties of commissioners, form a distinct, inferior and subordinate tribunal, it follows necessarily that it must be another tribunal than the supreme court. If another tribunal, and the officers composing it are in fact the judges of the supreme court, how can it be said that they hold no “ other office or public-trust?” While executing that commission they are compelled to lay aside their character, and divest themselves of their powers as judges, and assume those of commissioners clothed with special and limited powers. There is no difficulty in the same individual holding two offices at the same time. The same person may be first judge of a county, and also surrogate of the same county; and he may hold different Courts and exercise different powers without causing any confusion of ideas or of business. In the same manner the judges of the supreme court, if they were not prohibited by the constitution, might sit in and exércise all the powers of any inferior judicial tribunal. But while performing those duties, it would be a misnomer to call that
I cannot therefore come to any other conclusion than that the statutes which confer upon the judges of the supreme court the powers in question do profess to give them another office or public trust than that of judges of that court: and in this respect I am of opinion that they violate the constitution, and are void.
It remains to consider whether in other respects the sale of the demised premises was legal. The statute, (Laws of 1816, p. 114, § 2,) provides that when an assessment shall not be collected “ and the Collector shall make affidavit of his demanding the money two several times of such owner or owners of the said lands as may reside in the said city, and that they have neglected or refused to pay the same, &C. then and in any such case it shall and maybe lawful for the mayor, &c. to take Order for advertising the said lands and tenements, or any of them, for sale,” &c.
Gardiner, President. The constitutional question presented in this case is one of great importance. The authority of the supreme court, which is now challenged, has been exercised for nearly forty years. Interests to an extent at this time difficult to estimate, have originated in and depend upon proceedings under statutes, the validity of which is now for the first time questioned. The high tribunal upon which these peculiar powers have been conferred, although at different times entertaining different opinions as to the character in which it acted, has uniformly assumed the constitutionality of the laws, and that it could rightfully exercise the powers thereby conferred. It is now, however, insisted that the act of 1813 authorizing an application by the corporation of the city of New-York to the supreme court for the appointment of commissioners of estimate and assessment is unconstitutional and void.
All it is presumed will agree, that the constitutional restriction relied upon on behalf of the plaintiff in error refers to the judges as individuals, and not to the court of which they are the officers. The object for which it was introduced into the constitution undoubtedly was to confine the individual to the discharge of his duties as a member of the court, and to prevent his being burthened with those of other offices or public trusts. It however left the legislature free to confer such additional powers upon the court as the exigencies of the public might require. Accordingly the chief justice, in the dissenting opinion, admits that if the case could be regarded as enlarging the jurisdiction of the court by conferring new judicial powers, it would be unobjectionable. The question would therefore seem to be whether the authority conferred by the statute was bestowed upon the supreme court, or upon the individuals who might happen from time to time to be the judges, to be executed by them as
The power in question is emphatically a judicial one, for it is an authority td hear, try and adjudge. I am aware that in one part of the act of 1818, (Stat. p. 205, § 5,) an application respecting these Commissioners of estimate and assessment is authorized to be made to the supreme Court “ or any one of the justices thereof but the statute being in pari materia, it was not seriously contended that a different tribunal Was indicated than that referred td in the former statutes. Besides, one of the justices may prop-erly discharge these duties, because by the constitution one judge is competent to hold the cdürt. The statute relating to referees confers upon the court powers in many respects similar to those under consideration. The court is authorized without the consent of the parties to appoint referees, who are to hear the evidence ahd in the first instance determine the questions of law and fact. Their decision may be reviewed by the court at the instance of either of the parties, and it may confirm the report and give judgment upon it, or may send it back for another trial. It might be objected with equal plausibility that the appointment of referees Was an executive and not a judicial act, and that to countenance its validity would sanction an act of legislative encroachment. In the case of referees it may be said that the litigant parties are in
That the legislature has a right to confer jurisdiction upon the supreme court to conduct proceedings of the nature indicated in this act cannot, it appears to me, be questioned. They are analogous to proceedings in rem in admiralty, where the only notice to the parties interested in the property is by advertisement in a newspaper. Again, the practice under the statute shews that the judges must have acted as a court. The commissioners were appointed by rule entered in the minutes of the supreme court, reciting that a petition had béen presented to the court, and the order purports to be made'by the court. The report is to the court, and the order of confirmation is made by it and is entered in the minutes; and it has the same effect as a rule for final judgment in other cases in that court. In addition to this the papers are placed on its files and certified by its clerk under its seal. The same practice prevails in all the other proceedings under the act. It would be an extraordinary and peculiar feature, if mere statutory commissioners should not only use the office, books, clerk and seal of the supreme court, but should • also assume the official designation and act in the name of that tribunal. The practice however, in my judgment, is entirely consistent with the provisions of the statute, and I cannot doubt but that the sound conclusion upon the whole matter is, that new powers of a judicial nature have been conferred upon the supreme court to.be executed by that court and its judges and other officers in the same legal character in which they transact their other judicial business.
The practice prevailing in the supreme court of issuing a
I am satisfied also that the order confirming the report of the commissioners of estimate and assessment was, under the circumstances disclosed at the trial, conclusive evidence of the regularity of the prior proceedings; and I should vote for the affirmance of the judgment of the supreme court but for the defect in the defendant’s evidence, to which I will now advert.
The authority to sell on account of the non-payment of an assessment depends upon the performance of certain preliminary acts, which must in all cases be shewn to have been performed where title is sought to be established under such sale. It is indispensable that an affidavit should be made by the collector pursuant to the act of 1816, (Stat. 1816, p. 114, § 2.) The reasoning of the chief justice in the dissenting opinion given in the bourt below, seems to me so conclusive upon this branch of the base, that I do not think it necessary to add any further remarks, li’or this reason alone I think the judgment of the supreme jourt should be reversed.
Senators Lester and Lott delivered written opinions in favor of reversing the judgment of the supreme court upon the last point mentioned in the opinion of the president; and Senator Lott declared that he concurred in other respects in the opinion delivered by Mr. Justice Beardsley in the court below.
Senator Jones delivered a written opinion in favor of affirmance.
For reversal: The President, and Senators Backus, Beekman, Beers, Bockee, Deyo, Emmons, Hand, Hard, Lester, Lott, Porter, Sedgwick, Smith, Yarney and Wright—16.
For affirmance: Senator Jones.
Senator Lott then proposed the following resolution: 'Resolved, .That the making of the affidavit by the collector, as required by the act of 12th April, 1816, for the more effectual collection of taxes and assessments in the city of New-York, is an essential part of the power to sell for assessments or taxes under the provisions of that act; and that the lease, given by the corporation is not evidence that such an affidavit has been made so as to support the sale, without proof of the making of such affidavit before the premises were advertised for sale.
On the question being put upon adopting said resolution, all the members of the court present and voting, to wit, The President, and Senators Backus, Beekman, Beers, Bockee, Deyo, Folsom, Hand, Lester, Lott, Porter, ^Sedgwick, Varney and Wright, (14) voted in the affirmative, and the resolution was .accordingly adopted
Judgment reversed.
If the owner cannot be found in the city an affidavit to that effect is to be made.