Orange Cnty. v. Storm King Stone Co.

• Decision Date: 19 October 1920
• Citation: 128 N.E. 677,229 N.Y. 460
• Parties: ORANGE COUNTY v. STORM KING STONE CO. et al.
• Court: New York Court of Appeals Court of Appeals

229 N.Y. 460

128 N.E. 677

ORANGE COUNTY

v.STORM KING STONE CO. et al.

Court of Appeals of New York.

Oct. 19, 1920.

Condemnation proceedings by the County of Orange against the Storm King Stone Company and Philip A. Mosman, as trustee, impleaded with the Columbia Trust Company. From an order of the Appellate Division (191 App. Div. 329,181 N. Y. Supp. 660), reversing final order of confirmation in condemnation proceedings made by the Special Term, and sending the matter back for new trial before new commissioners, complainant appeals by permission.

Order of the Appellate Division reversed, and order of the Special Term affirmed.Appeal from Supreme Court, Appellate Division, Second department.

Joseph W. Gott, of Goshen (George A. Blauvelt, of New York City, and Percy V. D. Gott, of Goshen, of counsel), for appellant.

Guggenheimer, Untermyer & Marshall, of New York City (Louis Marshall, of New York City, of counsel), for respondents.

CRANE, J.

This proceeding was commenced under the provisions of the Highway Law (Consol. Laws, c. 25) for the purpose of acquiring a right of way across the lands of the defendant Storm King Stone Company, in the town of Cornwall, county of Orange, for state highway No. 5498, commonly known as the Storm King road, being a part of route No. 3 of the state trunk line highway system.

The proceeding conformed not only to the provisions of the Highway Law, but by reason of the omissions in that law to all the requirements of the General Condemnation Law (Code Civ. Proc. §§ 3357-3384) applicable thereto.

Judgment of condemnation was entered February 4, 1915, after a contested trial of the issue of necessity. The commissioners of appraisal were appointed and their final report made on the 31st day of July, 1916. The award to the defendant for damages was $48,475. The confirmation of the report was opposed at Special Term because one of the commissioners, Edward J. Collins, of Newburgh, was the owner of a farm in the town of Montgomery, Orange county, worth about $3,000.

As the award would be assessed upon the county, it was claimed that he as a taxpayer was so interested as to disqualify him as a matter of law from sitting upon the commission. It was also claimed that this disqualification could not be waived by the action or consent of the parties. The Special Term overruled the objection and confirmed the report. The Appellate Division reversed the Special Term and remitted the matter to new commissioners for reappraisal, stating in its opinion that Commissioner Collins was disqualified. Two of the justices dissented from this conclusion. Thereupon the Appellate Division certified to this court the following questions (182 N. Y. Supp. 940):

‘(1) Was Edward J. Collins, of Newburgh, N. Y., who during all the time he acted as commissioner of appraisal in this proceeding was the owner of real estate in and a taxpayer of the county of Orange, a disinterested person and qualified to act as such commissioner, within the meaning of section 151 of the Highway Law?

‘(2) If the status of Edward J. Collins as a taxpayer of Orange county disqualified him to act as a commissioner of appraisal herein, was it competent for the defendant to waive such disqualification?

‘(3) Do the acts of the defendant, as shown by the record, constiture a waiver of such disqualification?’

The main authority for the conclusion reached by the Appellate Division was said to be our decision in Matter of City of Rochester, 208 N. Y. 188, 101 N. E. 875,47 L. R. A. (N. S.) 284. That proceeding was instituted under the provisions of the charter of the city of Rochester to acquire lands for the widening of Frank street in that city. The common council directed that the expense of the public improvement be assessed upon all the lands located in nine designated wards of the city. There were in the city 22 wards. Two of the commissioners appointed owned land in this limited district to be assessed, that is, within the 9 wards of the city charged with the costs of improvement. Here was a direct financial interest arising out of ownership of land to be assessed in a small and limited territory, and it was held that the commissioners could not act and were disqualified.

[1] There is, however, a marked distinction recognized in all the cases between a local and direct interest and the general interest of a taxpayer of the whole city or county. It is very doubtful whether the Legislature would have the power to remove the disqualification of a direct and immediate interest. It could not make a man a judge in his own case. The provisions of the Constitution of the state of New York, section 6 of the first article, providing that no person shall be deprived of property without due process of law, and that private property shall not be taken for public use without just compensation, would, in my opinion, prevent the Legislature from authorizing a person to serve as judge, juror, or commissioner in a case or matter in which he was directly, substantially, and vitally interested. A legislative act which should undertake to make a judge the arbiter in his own cause would be void. Matter of Ryers, 72 N. Y. 1, 13,28 Am. Rep. 88;Wynehamer v. People, 13 N. Y. 378, 447;People v. Sickles, 156 N. Y. 541, 51 N. E. 288.

In this Rochester Case the commissioner was directly interested.

It was very early recognized in this state and elsewhere that the interest of a general taxpayer of a city, town, or county was so remote as to be the subject of legislation, and that a freeholding judge or juror could be authorized to sit in cases where his municipality was a party.

Judge Andrews in Hildreth v. City of Troy, 101 N. Y. 234, 236,4 N. E. 559, 560 (54 Am. Rep. 686) says:

‘The common law has been modified in this state by general statutes making the inhabitants of a town or county competent jurors in suits brought by or against such town or county (1 R. S. 357, § 4; Id., 384, § 4; 2 R. S. 420, § 58), and as to the inhabitants of cities, by special provision, inserted in nearly all cases, in the charters of incorporation.’

That it is competent for the Legislature to provide that a taxpayer of a municipal corporation is not disqualified from being a juror, judge, or commissioner in an action where the corporation is a party has been held in City of Minneapolis v. Wilkin, 30 Minn. 140, 14 N. W. 581;City of Bridgeport v. Giddings, 43 Conn. 304, 307; Matter of Ryers, supra; Inhabitants of Wilbraham v. County Commissioners of Hampden, 11 Pick. (Mass.) 322;Bowker, Prosecutrix, v. Wright, 54 N. J. Law, 130, 23 Atl. 116;Brittain v. Monroe Co., 214 Pa. 648, 63 Atl. 1076,6 Ann. Cas. 617;Commonwealth v. Tuttle, 12 Cush. (Mass.) 502.

Winans et al., Prosecutors, v. Crane, Collector of Cranford Township, 36 N. J. Law, 394, well marks out this distinction. Referring to a commissioner named Hammer, who was directly affected by the damages and benefits in laying out a road, the court said:

‘This interest is very different from that of a mere general taxpayer, which, in some cases, from the necessity of things, might be disregarded, or, if not so, could be relieved against by the Legislature. [Page 398.] * * * It may therefore be considered as settled that disqualifications for such interests as are common to all taxpayers may be removed by the Legislature. [Page 401.]’

[2] We may therefore approach the decision of this question certified to us by the Appellate Division by assuming that the Legislature had power to remove any disqualification of a commissioner where the county was a party arising out of the fact that he was a general taxpayer of the county. The next question is, Has the Legislature done it?

[3] The Highway Law (Const. Laws, c. 25) § 151, says that upon the presentation of the petition the court shall, after hearing the persons having an interest in the lands to be acquired, appoint three disinterested persons as commissioners. The General Condemnation Law, under which this proceeding was also taken, provides (section 3369 of the Code of Civil Procedure):

‘Judgment shall be entered, adjudging that the condemnation of the real property described is necessary for the public use * * * and the court shall thereupon appoint three disinterested and competent freeholders, residents of the judicial district embracing the county where the real property or some part of it is situated.’

What is the meaning of the words ‘disinterested’ and ‘competent freeholders' as used in these statutes? Shall we look solely to the common law as it was years ago or shall we interpret the interest in the light of legislation touching the trial of every disputed question of fact arising in judicial proceedings? Is the position of a commissioner to assess damages an anomaly; is he singled out from the law which touches judges and jurors, the triers of fact in general?

By section 7 of the first article of the state Constitution it is provided:

‘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 the Supreme Court with or without a jury, but not with a referee, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.’

Under this Constitution, as amended in 1919 (see Laws 1919, p. 1789) a judge of the Supreme Court could have assessed the damages. By section 16 of the Judiciary Law (Consol. Laws, c. 30) he would not be disqualified by reason of being a resident or taxpayer of the county of Orange. If it were stated, then, that the judge before whom such a proceeding comes must be disinterested and competent to act, ‘interest’ would mean something more than being a taxpayer in a county by or against whom the action is brought. But it is said that a jury may also assess the damages. Section 1179 of the Code of Civil Procedure, as amended by the Laws of 1903, chapter 294, provides that in an action...