People ex rel. Dawley v. Wilson

Van Kirk, J.: The relator was the owner .of Karakul fur-bearing sheep. In November, 1917, these sheep were worried, damaged and some of them killed, by dogs, and again in May, 1918, and September, 1918. Within the time limited claims were filed in accordance with the statute, and in due course a hearing was had before the Commissioner of the Division of Agriculture, and an award made for the damages. Thereafter the relator filed a petition with the Council of Farms and Markets for a review of this decision of the Commissioner of Agriculture. After hearing, and in October, 1919, the council rendered its decision, substantially approving and making the same decision as the Commissioner of Agriculture; and thereafter the relator applied for the writ of certiorari herein to review the said decision of the Council of Farms and Markets. It is from the decision of the court in this certiorari proceeding that this appeal is taken. The claims are as follows: Allowed by Claimed. council. November 8, 1917....... $3,097 $907 May 18, 1918........... 4,718 394 September 18, 1918...... 1,120 320 Total amount claimed____ $8,935 Total allowed.. $1,621 The claim of $7,150 for supplemental damages arising from the harrying of the sheep in November, 1917, was disallowed [160] and no appeal is taken by the relator. It is claimed that authority for the review by the courts of the decisions of the Commissioner of Agriculture and the Council of Farms and Markets is found in section 56 of article 3 of chapter 69 of the Consolidated Laws, the Farms and Markets Law. Chapter 800 of the Laws of 1917, an act amending the Agricultural Law by adding article 5-B thereto, provides for the licensing of dogs and compensating the owners of domestic animals and fowls for injuries done by dogs. Under section 139f of the Agricultural Law, as thus added, the owner of domestic animals' which have been injured by dogs is required to present within sixty days to the Commissioner of Agriculture a verified claim, setting forth the damage so done. Provision is then made for investigation of the vahdity of the claim and for determination of the amount of damages by the Commissioner of Agriculture. The damages are to be paid by the State Treasurer on the warrant of the Comptroller, provided the certificate or decision shall be duly presented for payment within the time limited and as prescribed by the statute. This proceeding was regularly taken with reference to the damages done in 1917. There is no provision in this act of 1917, or in any statute, for a review of the determination of the Commissioner. This law was amended by chapter 439 of the Laws of 1918, and under section 139f of the Agricultural Law, as thus amended, the owner of domestic animals injured or killed by dogs must give notice of his claim to an assessor of the city or town within ten days after discovery of the damage done; and it is provided that the assessors shall “ inquire into the matter ” and if they determine the claim valid they shall certify their determination and the amount of damages, and such certificate shall be filed in the office of the Department of Farms and Markets, which department “ may approve, reject- or modify the determination of the assessors.” After passing on the claim the department shall issue duplicate certificates, showing the amount of damages ascertained, one of which shall be filed with the Comptroller and the other delivered to the owner. Within twenty days from the date of mailing such certificate, if the claimant feels aggrieved, he may file a petition with the Department of Farms and Markets for a review of the determina [161] tion of the assessors and the department shall cause an investigation to be made and render its decision, within sixty days from the date of the filing of the petition, one copy of which shall go to the petitioner and the other be filed with t'he Comptroller. A person to whom such a certificate or decision shall be issued, or his assignee or legal representative, may present the same for payment and shall be paid by the State Treasurer on the warrant of the Comptroller out of any moneys available therefor, provided" the certificate or decision shall be d.uly presented for payment within the time limited and as prescribed by the statute. This section, 139f, of the Agricultural Law was amended by chapter 464 of the Laws of 1919, and again by chapter 767 of the Laws of 1920. Section 139c of said article 5-B, relating to a “ dog killed on order of court or justice,” as amended by act of 1918, was also amended by chapter 461 of the Laws of 1919. The amendment of 1920 also repealed said article 5-B and added a new article 5-B to the Agricultural Law, which new article contained practically the same section numbers. It has been amended by chapter 628 of the Laws of 1921. These amendments do not affect either of these claims, but it is of interest to note that, under the amendment in 1920, the license fees for dogs are to be paid to the city or town clerk and by him remitted to the county treasurer, except as therein provided, and claims for damages done to domestic animals by dogs are to be paid for by the counties and no longer by the State. There is no provision for a review by the courts of the determination under the above act of 1917, or the act as amended in 19-18. The entire proceeding for realizing on a claim for damages to domestic animals done by dogs is a statutory creation. The Agricultural Law is chapter 1 of the Consolidated Laws (Laws of 1909, chap. 9, as amd.). The Farms and Markets Law is chapter 69 of the Consolidated Laws (Laws of 1917, chap. 802, as amd.). Each is a complete and distinct law from the other. There is under the Agricultural Law no provision for reviewing any decision or determination therein provided for in the courts. The Farms and Markets Law, however, after providing for certain hearings and proceedings, does provide for a review by the courts of a decision [162] of the council in section 56 thereof, which contains this: “ Any person affected by a decision of the council^ rendered as provided in the preceding section may institute a proceeding for the review thereof in the Supreme Court of the county of Albany or any county in which the council shall have established a branch office; ” and the “ preceding section ” (§ 55, subd. 1) provides: “ Any person, association or corporation claiming to be adversely affected by a rule or order of. the council, a committee thereof or a commissioner enacted or executed under this chapter may, at any time, apply to the department by verified petition for a review of the reasonableness or validity of such rule or order.” So the review of the rule or order provided for in sections 55 and 56 is one “ enacted or executed under this chapter,” namely, chapter 69 of the- Consolidated Laws, the Farms and Markets Law. (See People ex rel. New York, N. H. & H. R. R. Co. v. Willcox, 200 N. Y. 423.) Said sections 55 and 56 of the Farms and Markets Lajv have been amended by chapter 475 of the Laws of 1921. The Farms and Markets Law does not provide for a review of any order enacted or executed under any other chapter, or under any «other .law, and is not authority for the proceeding in court had herein. While the State by name is not a party in this proceeding, yet, when an award is made by a commissioner or council under the Agricultural Law, such award is to be paid by the State Treasurer out of any funds available *therefor; that is, out of funds which belong to the State and which it alone has the power to disburse. Such a claim can only be enforced with the consent of the State and in the manner provided for by the State. (See Buckles v. State of New York, 221 N. Y. 418, 423.) It seems plain that section 56 of the Farms and Markets Law is not authority for this proceeding. Our attention has not been called to any other statute, and we have not been able to find any other statute, which confers the authority upon the court to review a determination made under the Agricultural Law. The only other similar legislation to which our attention has been called was article 7 of the County Law, as amended, which was repealed by chapter 800 of the Laws of 1917 (adding to Agricultural Law, art. 5-B). Without such statutory authority the proceeding by writ of [163] certiorari cannot be prosecuted. (See Code Civ. Proc. § 2120 et seq.) It is true that, in the amendment of the Agricultural Law in 1918 above referred to, a review of the decision of the assessors may be had by the Department of Farms and Markets. The certificate of the assessors shall be filed in the office of the Department of Farms and Markets, which department may approve, reject or modify the determination of the assessors; and, therefore, the determination of the department is made by authority of the Agricultural Law, but not by authority of any provision of the Farms and Markets Law. It is a power of review only conferred by the Agricultural Law upon the Department of Farms and Markets and is not a power exercised under the provisions of the Farms and Markets Law; and it seems to us that it would be a very strained construction to hold that such determination, made .under the authority of the Agricultural Law, should be considered as a rule or order of the council, “ enacted or executed under this chapter,” namely, the Farms and Markets Law. If we are right in this conclusion, that there is no authority in the statute for a review of the awards made herein; then it will be of no advantage to review the other questions presented on this appeal. The orders appealed from are, therefore, reversed and the proceeding should be dismissed, with costs. All concur, except Kiley, J., dissenting, with a memorandum.