Opinion
Argued March 27, 1877
Decided April 10, 1877
E.W. Paige, for the appellant.
Eugene Burlingame, for the respondents.
The order appealed from must be reversed. The canal appraisers exceeded the jurisdiction conferred upon them by chapter 520 of Laws of 1868. That empowered them to hear and determine claims of Voorhees for damages sustained by the appropriation of land for the deposit of shale and stone. They did entertain, determine, and make an award, for the destruction by fire of fence, and rails and timber. There is nothing in the testimony taken by them to show that this was a damage from the appropriation of the land; clearly it was not. So it did not fall within the scope of the authority given to them by the act.
The judgment in the action of The People v. Wasson, ( 64 N Y, 167,) does not conclude the defendant. The opinion rendered in this court is the reason of that judgment. One of the grounds there taken is, that the auditor may make all needful defence in such an application as this.
Nor is it an answer to the lack of jurisdiction to say that the legislature has, since the making of the award, made appropriations of money to pay awards in general. It does not appear that this award was in the intention of the legislature, or that if all the facts had been made known, it would have provided for the payment of it.
The orders of the Special and General Terms should be reversed.
RAPALLO, ANDREWS, MILLER and EARL, J.J., concur.
ALLEN and FOLGER, J.J., dissented, on the ground that as the attorney-general had made no point either in his printed brief or in oral argument, that there was fraud or collusion, the court would not raise it; and that, whether on question of jurisdiction or not, the appraisers had jurisdiction to hear and determine the matter of damages arising from the appropriation, and to decide what were and what were not such damages; and that if it be conceded that the destruction by fire was not a proper item of damage to be allowed, still the appraisers had jurisdiction to decide, and if the decision was wrong, the remedy was by appeal to the canal board. They cited Miller v. Brinkerhoff (4 Denio, 118); "a mistake concerning the just weight and importance of evidence, only makes the act erroneous, and it will stand good until reversed."
They also thought that Roderigas v. East River Savings Institution ( 63 N.Y., 460), was inconsistent with the conclusion reached by the majority of the court.
CHURCH, Ch. J., did not vote.
Orders reversed.
Upon a motion subsequently made for reargument, the following decision was handed down, and order modified in accordance therewith.
The importance of this case has led us, upon this motion, to review our former decision, and to express more fully the views which induced the same. In 1853, a law was passed (chap. 178) authorizing and directing the Canal Commissioners to drain the Cayuga marshes. The work was in no way for the benefit of the State, but for the benefit of the private owners of the land to be improved, and the scheme of the law was to assess the cost of the work upon the lands to be benefited thereby. In 1854 the officers of the State were engaged in prosecuting the work, and took from the bed of the Seneca river rock and shale, and deposited them upon the land of Peter Voorhees, covering nearly seven acres thereof. In 1868, nearly fourteen years after the damage was done, the Legislature passed an act (chap. 520) authorizing the canal appraisers to hear and determine the claims of Voorhees for damages sustained by him, "by the appropriation of his land to deposit the rock and shale taken from Seneca river," and directing the State Treasurer, on the warrant of the Auditor, to pay him the amount which might be awarded out of money appropriated for the payment of canal damages. Under this act, in February, 1869, Voorhees presented to the appraisers a verified claim for $1,200 for nearly seven acres of land. The appraisers met to hear the claim in September, 1869, at which time the claimant presented an amended claim, in
which he claimed for the same land — — — $2,755 08 For interest on same, — — — — 2,892 83 For damages to crops four years, during progress of work, — — — — — — 1,800 00 For damage done by fire, — — — — 1,500 00 The appraisers, after hearing no evidence but that of the claimant, awarded him for temporary occupation of land, — — — — 2,050 00 For destruction of rails and fences, — — 115 00 For destruction of timber — — — — 1,000 00 For interest on above items, — — — 3,325 25
The timber destroyed was not upon the land appropriated, but was upon other portions of claimant's farm, and was burned by fire accidentally or negligently set by men employed upon the work. Neither were the rails and fences upon the land appropriated. It did not appear before the appraisers, nor does it appear in the record before us, how they were destroyed.
The only authority conferred upon the appraisers by the act of 1868, was to hear and determine a claim for the appropriation of land in a particular way, that is, to deposit rock and shale thereon. And the only claim at first presented was for land so appropriated. In the amended claim presented a few months later, the first two items are for the value of the land thus appropriated, and the interest thereon, and the last two items do not purport to have any connection with the land appropriated. In the award as made, the first item is for the appropriation of the land and the other two items do not appear upon their face to have any connection with the land appropriated, and the appraisers did not determine that there was any such connection. After the appraisers had determined the amount to be awarded for the appropriation of the land, they had discharged their whole duty and exercised all their powers under the act. They had no jurisdiction to award upon any other items, and as to such other items their award is absolutely void. While the appraisers exercise judicial functions, they are not a court, and their award when attacked collaterally must not be treated in all respects like a judgment of a regular court. They are officers of very special and limited jurisdiction, but while they keep within their jurisdiction their awards cannot be attacked collaterally for mere errors of judgment. Their functions are analogous to those of arbitrators, and it may always be shown by parol, in defence or avoidance of an award, that arbitrators have acted without or in excess of their jurisdiction. (Watson on Arb. and Award, 179; Morse on Arb. and Award, 178; Butler v. Mayor, etc., 7 Hill, 329; Cook v. Carpenter, 34 Vt., 121.)
Arbitrators, assessors, ( Nat'l Bank of Chemung v. City of Elmira, 53 N.Y., 49,) and all such officers exercising judicial functions cannot take jurisdiction by simply determining that they have it, but they must in fact have it before their decisions can have any validity, and the fact is always, everywhere, when their decisions are challenged, open to inquiry. But as these two items have no connection with the first, and are entirely independent, the whole award is not void in consequence of the excess of jurisdiction exercised. Such is the rule in reference to the award of arbitrators, and we can perceive no reason for not applying it to this case. (Watson on Arb. and Award, 238; Morse on Arb. and Award, 452; Jackson v. Ambler, 14 J.R., 96.)
The Supreme Court therefore erred in granting a peremptory mandamus, requiring payment of the whole award, and its order must be reversed. An alternative mandamus for the payment of $2,050 and the interest thereon, would have been proper, and as this court can now grant such an order as the Supreme Court should upon the facts before it have granted, an order should be entered for the issuing of an alternative mandamus for the payment of the sum named, and upon his return thereto, the auditor may interpose such defence as he may be advised.
Our former order must therefore be corrected in accordance herewith.
All concur.
CHURCH, Ch. J., ALLEN and FOLGER, J.J., being of the opinion that the award of the appraisers was conclusive as to the whole amount claimed, and that the mandamus should go for the same.
Ordered in accordance with the opinion.