In re City of Rochester

• Decision Date: 12 November 1918
• Citation: 121 N.E. 102,224 N.Y. 386
• Parties: In re CITY OF ROCHESTER.
• Court: New York Court of Appeals Court of Appeals

224 N.Y. 386

121 N.E. 102

In re CITY OF ROCHESTER.

Court of Appeals of New York.

Nov. 12, 1918.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Application by the City of Rochester to acquire for municipal purposes lands in the town of Canadice, Ontario County. N. Y., belonging to Alexander M. Holden and wife. From an order of the Appellate Division of the Supreme Court, Fourth Judicial Department, entered May 7, 1918 (170 N. Y. Supp. 1072), reversing an order of the Special Term (100 Misc. Rep. 421,165 N. Y. Supp. 1026) overruling owner's objections to appointment of commissioners for appraisal of damages and dismissing the proceeding, the city appeals. Order affirmed.

B. B. Cunningham, of Rochester, for appellant.

Fred A. Robbins, of Hornell, and James S. Havens, of Rochester, for respondents.

COLLIN, J.

The city of Rochester, the appellant here, under and by virtue of provisions of its revised or re-enacted charter (Laws of 1907, c. 755), applied to the Special Term of the Supreme Court for the appointment of commissioners to ascertain and report the compensation which Alexander M. Holden and his wife, the respondents here, were entitled to as owners of lands to be taken by the city for municipal purposes. The Special Term, after a hearing, granted the application and appointed three persons commissioners. The Appellate Division, upon the appeal of the landowners, reversed the order and dismissed the proceedings upon the grounds that certain of the enactments of the charter, invoked by the city or involved in the proceeding, were violative of provisions of the Constitution of the state or of the United States.

[1][2][3] The respondents own lands in the town of Canadice, Ontario county, N. Y. The lands are not within the city of Rochester. The city of Rochester desired, and was unable, to acquire by purchase the lands for municipal purposes. Its charter contained provisions which, if valid, authorized it to acquire them through the right of eminent domain. Laws of 1907, c. 755, §§ 88, 89, 436-455. The city, we have concluded, complied with the requirements precedent to its right to apply for the appointment of commissioners. We have decided, however, that certain of the provisions authorizing the taking of the lands by the city are invalid.

A provision is:

‘Whenever the common council determines to authorize the purchase of any real estate or rights or easements therein, it must pass an ordinance containing a description of the real estate, rights or easements to be acquired, and declaring its intention to acquire the same and that it deems the same necessary for municipal purposes, and directing the commissioner of public works to purchase the same at a price approved by the board of estimate and apportionment, and directing the corporation counsel in case the commissioner of public works is unable to purchase such real estate, rights or easements at a price approved by the board of estimate and apportionment, to institute condemnation proceedings for the acquirement of the same.’ Section 89.

The respondents assert and argue that the empowerment of the common council to conclusively determine that lands, which are without the city, are necessary for municipal purposes violates the provision of the federal Constitution that no person shall be deprived of property without due process of law. Article 5, Amend. In this they err. Whether the public exigency requires the taking of private property for public use is a legislative question, the determination of which by the Legislature is, generally speaking, final and conclusive. Whether the use for which such taking is authorized is a public use is a judicial question for the determination of the court. That the taking, in the instant case, is for a public use, is not denied. The Legislature has the right to designate officers, bodies, or tribunals to determine the question of exigency or necessity. The territorial limitations of the general authority or jurisdiction of the designated tribunal is immaterial. The state has the inherent power to take the private property it requires for the use of the public, wherever it may be located, and in the taking may act directly or through a local agency authorized to exercise its power in whole or in part. Board of Water Commissioners v. Johnson, 86 Conn. 151, 84 Atl. 727,41 L. R. A. (N. S.) 1024;Sears v. City of Akron, 246 U. S. 242, 38 Sup. Ct. 245, 62 L. Ed. 688;Joslin Manufacturing Co. v. Clarke (R. I.) 103 Atl. 935 (June, 1918); Matter of Application of the Mayor, etc., of N. Y., 99 N. Y. 569, 2 N. E. 642; Matter of Application of Fowler, 53 N. Y. 60;People ex rel. Herrick v. Smith, 21 N. Y. 595. The action of the common council, in determining the question of necessity, was within the authority inherent in and lawfully delegated by the state to it and was conclusive. The provision of the charter under consideration is valid.

[4][5] It is further enacted: The corporation counsel must cause to be published as prescribed a notice stating among other things, that an application will be made, at a time specified in the notice, to the County Court of the County of Monroe, or to the Supreme Court at a Special Term thereof, held in the judicial district in which the real estate sought to be taken is situate, for the appointment of commissioners to ascertain and determine the just compensation to the owners of the real estate; a notice must also be served as prescribed. Section 437. At the specified or the adjourned time, the court ‘may appoint three commissioners of appraisal who are residents and freeholders of the city if the real estate, rights or easements sought to be taken are situate in the city, and if situate without the city, who are freeholders of the judicial district in which the real estate, rights or easements sought to be taken are situate and at least one of whom is a resident and freeholder of the city, not interested in any of the real estate, rights or easements sought to be taken nor of kin to any owner thereof or to any person having any estate, right or interest therein or lien, charge in incumbrance thereon.’ Section 438. The commissioners must, as soon as convenient, make their report to the common council of the city and record a duplicate of it in the office of the clerk of the county in which is the real estate sought. Section 442. The common council upon receiving the report must, at a time to be fixed by them for hearing objections to the confirmation of it, hear the allegations of all persons interested who appear and may take proof in relation thereto and may confirm, disapprove or reject it; in case it is rejected the proceedings shall thereupon be abandoned and discontinued and through the period of the next year the city cannot commence a condemnation proceedings for the acquisition of the same real estate. Section 444. ‘Any person aggrieved by the report or award of the commissioners may within thirty days after the confirmation by the common council, appeal therefrom to the Appellate Division of the Supreme Court, and must file in the county clerk's office, with the notice of appeal, a bond executed by two or more sureties, approved by a judge of the Supreme Court or the county judge of Monroe county, in the penal sum of one thousand dollars, conditioned for the diligent prosecution of the appeal and for the payment of all costs and charges which may be awarded against the appellant.’ The city within 30 days after the disapproval of the report by the common council may appeal therefrom to the Appellate Division of the Supreme Court. Section 446.

Two fundamental principles underlie the exercise of the right of eminent domain. The one, the obligation to make just compensation for the property taken attaches to the exercise of the power to take it, even though it were not constitutionally created. The power to take private property, contrary to the decision of the owner, for a public use reaches back of all constitutional provisions. It is, however, a settled principle of universal law that the right to just and equitable compensation for the taking is an inseparable incident to the exercise of the power. The other, the Legislature must provide an impartial and disinterested tribunal to ascertain the amount of the compensation, and a reasonable opportunity for the parties interested to be heard before such tribunal. The proceeding is judicial in its character, and a party in interest is entitled to have an impartial tribunal and the usual rights and privileges which attend judicial investigations. ‘Due process of law,’ within the constitutional meaning of the term, requires notice and an opportunity to be heard before such a tribunal. The provisions of the Constitution of the state are in accord with those principles. They are:

‘When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained...