People Ex Rel. Cook v. Nearing

Davies, J. The certiorari avers, and it is admitted by the return, that the defendants have entered upon the relator’s land, and have caused and procured a ditch or drain to be cut or dug upon the said land, for the distance of about one hundred and seventy rods. The respondents claim the right so to do, under and by virtue of an act of the legislature passed April 16, 1858. (Laws of 1858, ch. 266.) This act was *308 amended in 1860. (Laws of 1860, ch. 258.) By the original act, the commissioners named therein were authorized to drain certain wet and swamp lands therein described, and for that purpose to- cut the necessary ditch and side drains of sufficient depth and width to drain the lands aforesaid. The commissioners were authorized to enter upon and occupy such lands as might be necessary for the execution of the work authorized by the act. In pursuance of such authority, they entered upon and occupied the lands of the relator, and dug thereon the ditch above mentioned. This, I think, may be regarded as a taking or appropriation of the relator’s lands for a public purpose, and’which could not be lawfully done without provision being made for a just recompense or compensation therefor. Accordingly, it was provided, by the seventh section of the act, that the expenses incurred by the commissioners in the performance of their duties, and any damages resulting as a consequence of such work, should be justly and equitably assessed by the said commissioners upon the owners of the lands benefited thereby. -This assessment for benefit could rightfully be made by the commissioners under the authority of the legislature. There is no constitutional provision having any application to such an assessment.’ The persons by whom, and the mode and manner of making it, are subject only to legislative discretion. The compensation for the land taken, or, in the language of the act authorizing this work to be done, the damage resulting as a consequence of performing it, must, in conformity with the provisions of the Constitution, be ascertained by a jury, or by not less than three commissioners, appointed by a court of record. (Cons, of 1846, §7, art. 1.) The compensation or damage, therefore, could only be fixed by a jury, or by the commissioners appointed by a court of record; and it was not competent for the legislature to appoint commissioners to fix the same, or devolve the duty upon any" body or set of men, other than those indicated by the Constitution. When such compensation or damage had been constitutionally fixed and ascertained, then the legislature might *309 lawfully direct the mode and manner of assessing or apportioning said damages upon the persons or property benefited thereby, and designate or appoint the persons to make such assessment or apportionment. (People v. Mayor of Brooklyn, 4 Comst., 419.) The act of 1860 does not obviate the difficulty and remove the objections suggested. By that act, provision is made that if any person shall deem himself aggrieved by the assessment made by the commissioners, that is, the assessment or apportionment of benefit made by.them, such person may appeal to the County Court, who shall, thereupon, appoint three commissioners to reassess the expenses of said improve • ment and such expenses. This is the only authority, conferred by the act of 1860, upon the commissioners appointed by the County Court, and therefore they could not, and we must assume that they did not, ascertain and fix any damages or compensation to the relator, for the taking and appropriating of his land for the purposes of such improvement. The acts in question having, therefore, made no legal provision for the ascertainment of the compensation to be paid to the relator, for the taking and appropriating of his land for the purposes of the act, or made any provision for the payment of such compensation or damage, they must be held to be unconstitutional in this respect, and the relator will have his legal remedy for the trespass, if any, which may have been committed. But it was perfectly competent, as has already been observed, for the commissioners appointed by the legislature, or those selected by the County Court, to make the assessment or apportionment of the expenses or damages incurred in performing the work, upon the persons and property benefited thereby. It is not suggested, that either set of commissioners have made such assessment upon any erroneous principle, or that any legal rules have been violated. It is not suggested, that such expenses or damages have not been assessed or apportioned upon all the lands benefited by the improvement, justly and reasonably; and there is, therefore, no legal reason appearing why this assessment should be vacated and set aside. The Supreme Court would have been fully authorized, by well *310 settled authority, upon the facts appearing in this case, to have quashed the certiorari issued therein. (People v. Mayor of N. Y., 5 Barb., 43, and cases there cited.) In my opinion, the assessment made, either by the commissioners appointed by the legislature, or that made by the commissioners selected by the County Court, is not shown to be illegal; and the judgment of the Supreme Court should be affirmed, with costs. All the judges were for affirmance. Denio, Ch. J., Selden, Emott, Rosekbans and Marvin, Js., thought the acts unconstitutional, in not providing for conipensation to .the owners of the' lands occupied by the ditches; Wright, J., thought otherwise; Balcom, J., reserved his opinion on that point; Rosekeans, J., thought that no assessment could be made under the acts, and was for affirmance on account of the defectiveness of the error book. Judgment affirmed.