In re Tuthill

• Decision Date: 15 May 1900
• Citation: 57 N.E. 303,163 N.Y. 133
• Parties: In re TUTHILL et al.
• Court: New York Court of Appeals Court of Appeals

163 N.Y. 133

57 N.E. 303

In re TUTHILL et al.

Court of Appeals of New York.

May 15, 1900.

Appeal from supreme court, appellate division, Second department.

Application by John B. Tuthill and others for the appointment of commissioners to drain certain wet and law lands in the towns of Chester and Blooming Grove, in Orange county. The county court made an order directing the clerk to docket a judgment in favor of commissioners against Mary Rowe and others, from which order, and the judgments entered thereon, William R. Conklin and others appealed to the appellate division. From an order reversing such judgment and orders, and dismissing the proceedings (55 N. Y. Supp. 657), John B. Tuthill and others appeal. Affirmed.

John G. Milburn, for appellants.

Henry Bacon, for respondents.

GRAY, J.

This was a proceeding instituted by the petitioners for the purpose of causing certain low and wet lands in the county of Orange, in this state, of which they were the owners, to be drained through ditches to be constructed over the lands of others; and the warrant for its commencement, and for the various steps which have been taken, is claimed to be found in chapter 384 of the Laws of 1895. The act provided, in its first section, that ‘a person owning agricultural lands within this state may institute proceedings for the drainage of such lands or the protection thereof from overflow, by the construction and maintenance of a drain or dyke, on the lands of another person, or the use of mechanical devices, by presenting a verified petition to the county court of the county in which such lands are located, or, if in more than one county, to a special term of the supreme court of the district where the lands or a part thereof are situated, setting forth a general description of the lands to be drained or protected,the names and places of residence of the owners of all lands affected by the proceeding, so far as the same can with reasonable diligence be ascertained, and a prayer for the appointment of three commissioners.’ Other sections provide for the service of a notice of the time and place of the presentation of the petition, and regulate matters of procedure. They provide for the appointment of three disinterested and resident commissioners, who are to hear the parties and determine whether the lands shall be drained; whether for that purpose it is necessary that a drain shall be opened through the lands of another; what the amount of damage, if any, sustained by other landowners by reason of the opening of the drain; and any other and further steps with reference to the proceeding. They provide for the organization of the commissioners as a board, and, after viewing the premises, and taking proofs, for a determination as to the necessity for the opening of the drain as prayed; for the filing of that determination, and for publication of a notice thereof; for further proceedings thereafter in the making of maps and surveys; for the construction of the work; and, in the case of an inability to agree upon the amount of compensation and damages, for the determination thereof by the commissioners, and an assessment upon the lands to be benefited. The commissioners are to take into account any benefits accrued, and may deduct the amount of the benefit from the amount of the damage. The damages and expenses are to be assessed in proportion to the amount of benefit received. Notice is to be given to the persons whose lands are affected and who have appeared on a hearing upon the assessment, and thereafter a corrected assessment roll is to be filed, and personal notice thereof given. Provision is made for an application by the commissioners for judgments against any persons not having paid the assessment, and such judgments shall be docketed and become a lien upon lands, enforceable as provided in such cases by the Code of Civil Procedure. As briefly as possible, this survey of the act presents its principal features. The petitioners in this proceeding followed the procedure of the act, and commissioners were appointed by the county court, who determined in favor of the drainage prayed for and as to its manner, and who borrowed moneys, under orders of the county court, and caused the ditches to be constructed. They made an assessment of the damages and expenses upon the lands of various persons, including these respondents, and gave notice of a hearing of any person aggrieved by the same, which was had, and a corrected assessment roll was thereafter made and filed. Subsequently an application was made by the commissioners to the county judge for an order directing the entry of judgments against various landowners who had not paid their assessments, which was granted. These respondents, who opposed the assessment and the application of the commissioners for the judgments, appealed from the order of the county judge and from the judgments entered thereupon to the appellate division, where the order and the judgments were reversed and the proceeding was dismissed, upon the ground, in substance, that the act of 1895 was unconstitutional for authorizing the exercise of the power of taxation in favor of a single person. The commissioners and certain of the petitioners then appealed to this court.

The question which we have before us involves primarily the consideration of the amendment of section 7 of article 1 of the state constitution adopted in 1894, which is relied upon as validating the enactment by the legislature of the drainage act of 1895. The section of the constitution referred to reads in its entirety as follows: ‘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 by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes.’ The portion of the section underscored contains the amendment in question, and it is objected to it that it is violative of the federal constitution, in that the taking of private property for a use not public, but strictly private, is authorized, by the exercise of the right of eminent domain. If the amendment is in conflict with any of the provisions of the federal constitution, it must fail; for, within its sphere of operation, that instrument is supreme, and no more by constitutional provisions than by legislation can the states of the Union override its prohibitions. It is an ancient principle, which entered into our social compact, that the use for which private property may be taken must be a public one, whether the taking be by the exercise of the right of eminent domain, or by that of taxation. The sovereign power is incapable of conferring any right to interfere with private property, except it be needed for public objects. To take land for any other than a public use; to take it from one citizen and to transfer it to another, even for full compensation,-would be to violate the contract by which the land was originally granted by government. Beekman v. Railroad Co., 3 Paige, 44, 73;Bloodgood v. Railroad Co., 18 Wend. 9. The fourteenth amendment of the federal constitution, in prohibiting a state from depriving any person of life, liberty, or property without due process of law, protects the citizen against the taking of his property for any other than a public use, either under the guise of taxation, or by the assumption of the right of eminent domain. Fallbrook Irr. Dist. v. Bradley, 164 U. S. 158, 17 Sup. Ct. 56, 41 L. Ed. 369. It is a security against the arbitrary spoliation of property, or any abridgment of the immunities of citizens of the United States. The state constitution,from the beginning, by authorizing the appropriation of private property for public use, impliedly declared that for any other use private property should not be taken from one, and applied to the private use of another. In re Albany St., 11 Wend. 149. It was observed by Judge denio in People v. Smith, 21 N. Y., at page 598, that it would not be due process of law to ‘appropriate the property of one citizen for the use of another, or to confiscate the property of one person or a class of persons, or a particular description of property, upon some view of public policy, where it could not be said to be taken for a public use.’ Whether that is a public use, for which private property is authorized to be taken, will depend upon the object aimed at, and whether the plan has such an obvious or recognized character of public utility as to justify the exercise of the right of eminent domain or of the power of taxation in its favor. I suppose, in that consideration, when some new constitutional provision is in question, regard should be had to prior conditions in the laws and in the decisions of the courts of the state upon the subject, which illustrate some settled policy of the community. That can be understood by reference to the cases which arose under the mill acts in the New England states, the irrigation acts in the Western states, and the drainage statute of New Jersey. Head v. Manufacturing Co., 113 U. S. 9, 5 Sup. Ct. 441, 9 L. Ed. 28, 889; Wurts v. Hoagland, 114 U. S. 606, 5 Sup. Ct. 1086, 29 L. Ed. 229;Fallbrook Irr. Dist. v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369. The...