Walsh v. Board of Education

Upon the case as stated above, the opinion of the court was delivered by Green, J. 1. Taking up, first, the second assignment of error, we observe that it was not urged by the plaintiffs in error on the argument, hence this court is not obliged to consider it. See Loper v. Somers, 42 Vroom 657 (1904), and cases cited at p. 661. Nevertheless, it may be remarked that if it had been so urged the allegation of error would have been found unmaintainable. To reach this conclusion it would not be necessary to distinguish between expert testimon3r and opinion evidence, which axe differentiated by Professor Wigmore in his philosophical work on evidence (1 Wigm. Evid., §§ 555, 557), and by Justice Garrison, in Koccis v. State, 27 Vroom 44, 47 (1893), inasmuch as both types of evidence require opportunity and observation extending beyond a single or particular instance. From the examination of Mr. Robotham, it appeared merely that he had owned the parcel of land in question for six or seven years, and had sold it a year before the trial for $1,200. Hence, to say nothing of personal capacity or of study or practice, there were shown on his part no opportunity to observe, and no actual observation, in the locality of the land which fitted him to speak of its value. The witness had no special knowledge of values, which, being imparted to the jurors, could aid them in the discharge of their duty. In ruling out the question which sought RobothanPs opinion as to the value of the land in December, 1904, the Circuit judge w'as fully justified by Riley v. Camden and Trenton Railway Co., decided a few months earlier in this court, and reported in 41 Vroom 289 et seq. See, also, Haulenbeck v. Cronkright, 8 C. E. Gr. 407 (1873) (at p. 413); Laing v. United New Jersey Railroad and Canal Co., 25 Vroom 576 (1892) (at p. 577). 2. Taking up the first assignment, we note that error is — 648 — alleged in the denial of the motion by the attorney of the board of education for leave to abandon the condemnation and to discontinue the proceedings upon payment of the owner’s costs and expenses. The legal argument in support of the allegation of error is that the board of education in taking the land is, or should be, acting for the public good, and should therefore have a right to say whether the price awarded should be paid; and that, if such right should be denied, detriment to the public might ensue. We would not forget that there may be weight}'' matters involved in this case, and we would never refrain from rightly conserving the public weal; but we remark that the argument made is, in form, simply the argument ab inconvenienti, and that, although we have the authority of Lord Coke (Co. Litt. 66) for saying “argumenlum ab inconvenienti plurimum valet in lege,” yet it must be borne in mind that “if the law be clear inconveniences afford no argument of weight with the judge; the legislature alone can remedy them.” See Broom Max. (7th Eng. ed.) 147; Pike v. Hoare, 2 Eden 182 (1763) (at p. 184). Neglecting, for the time, as elements of decision, that it nowhere appears in the record that the board of education had resolved to abandon the proceedings, or having so resolved had applied to a justice of the Supreme Court to determine the reasonable costs and expenses of the owner, or had filed or offered to file a discharge of her land from the lien of the uotice of Us pendens (all of which things might be worthy of consideration), we entertain the opinion that there is a law which is applicable to the case in hand, and that its meaning is clear. The situation at the time of the motion was that a petition had been presented for the appointment of commissioners to fix the compensation to be paid for the land, and such proceedings had been had thereupon that Ihe report of the commissioners had been made and filed, and that an appeal had been taken from this report and an isstie between the parties framed for trial; nevertheless, that the value of the land and the damages for the taking stood, prima facie, at least (see Pamph. L. 1900, p. 85, § 14), at the sum ascertained by the commissioners — : — 649 — $1,000. The statute was, at the time of the motion, and still is, as follows: “Any proceeding to condemn, taken under this act, may he abandoned within twenty days after the filing of the report of the commissioners, upon payment to the owners and other parties who have appeared before the commissioners of their reasonable costs and expenses,” &c. See Pamph. L. 1900, p. 85, § 15, at middle. The counsel for the plaintiffs in error, pursuing his argument already referred to, insists that the time limit of twenty days prescribed by this statute is applicable only in cases where no appeal is taken from the report and award of the commissioners, but we cannot agree with his reading of the act; we think it applicable to the present case, and we think its meaning plain. The statute conserves the public weal, in that it permits a public agent, empowered to purchase for the public use, to abandon all proceedings when it becomes apparent that- the project is to the public detriment, but it fixes a reasonable period within which the power of determination must be exercised, and that period, in the situation disclosed by the present record, is twenty days after the filing of the commissioners’ report. . If it be necessary to pass beyond the mere interpretation of this statute, it may be said that our view of its -meaning puts it in harmony with previous decisions. In the matter of the Water Commissioners of Jersey City, 2 Vroom 72 (1864), it was held that when public officers, acting under statutory authority, have' proceeded to condemn lands for public uses, and an appraisement of damages has been made but not confirmed, such proceeding's may be discontinued without the assent of the landowners. This decision is put upon the ground (see p. 75) that “if it should turn out, before the transaction is closed, that the interests of the public will not be promoted, but, on the contrary, will be impaired by concluding the purchase, it would seem to follow that the public agent ought not to be compelled to proceed.” Nevertheless, the decision concedes that there is a point in the proceedings where the' rights of both parties are definitely established, and where the contract becomes obligatory; and, according — 650 — to- the statute then under consideration, the definitive act Avas held to be the confirmation of the commissioners’ report. In Mabon v. Halsted, Director, 10 Vroom 640 (1877), it Avas decided that a public agent should have a right of election, whether to take land or not, after the price is fixed, unless such right were expressly taken away by the legislature. This determination also went upon the ground of the public good, but it Avas admitted that the right of election Avas to be allowed only “to some reasonable extent.” In the statute then examined, no confirmation of the report Avas required, but either party was permitted to appeal within sixty days after the filing of the report, and a refusal to accept the land as condemned, by vote of the board of chosen freeholders of Hudson, at a meeting held Avithin the sixty days, was, in view of the statute, accounted reasonable, and effective. In O’Neill v. Freeholders of Hudson, 12 Vroom 161 (1879), the same proceedings were under review in this court, in a different suit or proceeding, and the unanimous opinion of this court upon the points considered was so far similar to the opinions expressed in the earlier cases in the Supreme Court that it would serve no good end to restate it even in a condensed form. .Reference may also be profitably made to Regina v. Commissioners of Woods and Forests, 15 Ad. & E. (N. S.) 761 (1850); 2 Lew. Em. Dom. (2d ed.), §§ 655, 657; 2 Dill. Mun. Corp. (4th ed.), §§ 608, 610, and note. We think that, on the case as it stood before him, the ruling of the Circuit judge upon the motion was right. The statute of March 20th, 1900 (Pamph. L., p. 85, § 15), already quoted, controlled his powers and action, and upon the record we also are thereby bound. 3. There are a few decisions of the courts of this state which in point of language seem at first sight to militate against our opinion, and they deserve some mention in the interest of clearness. These eases, we think, may easily be harmonized by the well-knoAra rule secundum subjectam materiam, verba intelligenda sunt. See 1 Bl. Com. *229; Maxw. Int. Stat. 50. It is not meant to intimate that any of the cases following Avere wrongly'decided, or to minimize — 651 — their 'value. Simply is it intended now to show that those past decisions, rightly considered, are not inconsistent with this, and that if any words or phrases .employed in them seem to be of wider import than the occasion of the employment demanded, they should be read in the light of the rule stated. In Browning v. Camden and Woodbury Railroad Co., 3 Gr. Ch. 47 (1837), it was said (at p. 55) that the very act of appealing sets aside the report of the commissioners; but that was said with a view to holding that a railroad company whose right to enter depended upon paying the value of the land and damages could not do so while as jret the value of the land and damages were entirely open, and without any such statute in mind as we have been interpreting. In Metler v. Easton and Amboy Railroad Co., 8 Vroom (37 N. J. Law) 222 (1874), it was said (at p. 226) that, by the company’s appeal, the award of the commissioners was superseded; but that was said when reasoning upon the effect of the appeal on the power of the owner to enforce payment of the compensation for his property, a question not now before us. In Henderson v. City of Orange, 9 N. J. L. J. (at p. 72) (1886), Justice Depue said that the appeal superseded the commissioners’ appraisement, but that statement merely introduced an instruction to the jurors that they were to make the assessment of damages as if the question had not been heard by the commissioners and without regard to the amount assessed by them. In Johnson v. Baltimore and Ohio Railway Co., 18 Stew. Eq. 454 (1889), cited and explained in Waite v. Port Reading Railway Co., 3 Dick. Ch. Rep. 346 (1891) (at p. 350), and in Packard v. Bergen Neck Railway Co., Id. 281 (1891) (at p. 286), per Vice Chancellor Pitney, it is said (see 18 Stew. Eq., at p. 459) that the appeal operates as a supersedeas upon the award of the commissioners; but this was so held in considering the force and effect of the General Railroad act of 1873, sections 12 and 13 (Rev. Stat. 1877, pp. 928, 929), which act is materially different from the statute now before the court. In Ringle v. Freeholders of Hudson, 27 Vroom 661 (1894), this court said (at p. 665) that, só long as the appeal stands, if it be concluded by judgment, it — 652 — supersedes the award of the commissioners; but these words are to be read in connection with the further statement that the appeal becomes a new means for the ascertainment of the just compensation which is to be made to the landowner. Furthermore, in weighing past cases, it must be remembered that the original actor in the present case was a public agent, and that the constitution of New Jersejq article 4, section 7, paragraph 8, has no applicability. Upon the case made by the record and bills of exception, our conclusion is that the judgment of the Circuit Court of Essex should be affirmed, with costs, and it is so ordered. 4-. We now depart from the custom of silence upon points not decided because we think that a departure may be for the public good. A question, which is not and cannot be settled in the present case, is this: May the original petitioners, notwithstanding the act of March 20th, 1900 (Pamph. L., p. 85, § 15), abandon the proceedings, under the act, upon the pa}mrent of the landowner’s costs and expenses, after the value of the land and the damages have been finally ascertained by the verdict of the jury? The point has been spoken to by counsel, but it is not within the case made by the record, and we intimate no opinion upon it. Nevertheless, we indicate the diverging lines of thought. In O'Neill v. Freeholders of Hudson, 12 Vroom 161 (1897), this court (at p. 172), announced as a judicial principle, founded in reason, “that whenever land is sought to be taken for a public purpose, the public authorities, in the absence of any statutory provision to the contrary, have a reasonable time given to them, after the ascertainment of the expense of the scheme, to decide whether to accept or refuse the land at the price fixed.” In the act of March ,20th, 1900, above cited, there is found a statutory provision bearing upon the matter, but how far does that provision extend? On one side, it may be urged that it is an expression of the legislative will covering the whole subject-matter, and that, when the twenty days shall have elapsed, it must be assumed and held that the condemning party, whether public agent or not, has decided to take the land, let — 653 — the verdict of the jury on the value and damages he what it may. On the other hand, it may be said that the expression of the legislative will applies in cases where a report is made and filed, and no appeal has been taken therefrom; but that, when an appeal has been taken, both reason and authority require that, after the value and damages shall have been ascertained by the verdict and judgment, the condemning party — especially a public agent — should have time for consideration and decision. Eor reasons already given, we intimate no opinion upon the question; nevertheless, it may well be that the public interest will be advanced by an authoritative solution of the difficulty. If this be true, it might be solved, for the future, in accordance with the wisdom of the legislature. For affirmance — Tim Chancellor, Ciiiee Justice, Dixon, Garrison, Fort, Gabretson, Pitney, Swayze, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill. 14. For reversal — None.