Opinion
September Term, 1859
W.J. Street, for the appellant.
L.C. Clark, for the respondents.
By section 6 of chapter 274 of the Laws of 1844, the commissioners of highways of the town of Southfield were authorized to lay out a public highway to the State property and fortifications near the Narrows on Staten Island. The power conferred by this section being given to these officers by their name of office, and being exactly analogous to the general powers which they previously possessed by law, must be regarded as merely additional to those previous powers, and to be exercised under the same regulations, as to their modes of proceeding and further authority in respect to laying out this particular highway, which were prescribed by the existing laws relating to their general duties. It is objected that this construction will throw upon the locality where this highway is situated the expense of a road built for State purposes. But the conclusive answer is that the State may impose such a burden where, in the wisdom of the Legislature, it is considered that it ought to rest. The act ought to receive such a construction as will make it effectual for the purpose which its terms indicate, and it can only be effectual by referring to the general law for laying out highways and looking there to find how it shall be proceeded in and how compensation shall be made for lands taken in executing the act. From the terms of section 55 of the law relating to highways (1 R.S., 513), it is plain that the commissioners may proceed to lay out a highway without any application to them. Any person liable to assessment for highway labor may apply to them to proceed, or they may proceed on their own judgment of its propriety. ( Glass v. Gould, 19 Barb., 179.) The proceedings in this case are therefore not vitiated by an application from Commissary-General Storms. They are at least as good as if no one had applied.
The laying out of this highway and the assessment took place after chapter 180 of the Laws of 1845 was in force, which introduced considerable changes in the law on this topic. Under the provisions of that act it is insisted that the right officers did not act in making the assessment in question. By the Revised Statutes such assessments were to be made by a jury summoned on a warrant from two justices of the peace. (1 R.S., 515, §§ 64-69.) But under the act of 1845 the assessment was to be made by a commissioner of highways of the first class and any two assessors of the town. ( Laws of 1845, 183, 184, §§ 1-6.) It is insisted that the commissioner who acted in this case was not of the first class. In this the respondents are mistaken. The act provides that where three commissioners are elected, they shall be classified by ballot, and it also provides for filling by appointment any vacancies which should occur, but contains no provision for balloting among those appointed to fill vacancies. The reason is obvious. The original balloting was to settle the class of the commissioners, and an appointee would of course succeed to the class of the commissioner in whose place he was appointed. In this case the commissioners of the first and third classes failed to qualify themselves for the office, and the vacancies thus occasioned were filled by the proper authorities by appointing two persons, Jeremiah S. Silva and Joel Moore. The appointment fails to designate the class of either of the appointees, and unless it can be aided by construction the appointments would be inoperative. It seems to me a natural construction to place upon such an appointment to regard the first named appointee as appointed to the first class, and that construction I am, in the absence of any authority upon the subject, inclined to adopt rather than come to the conclusion that no effectual appointment was made. We have then in this case what is claimed to be an assessment made by Silva, the commissioner of the first class, and two assessors of the town. They were the officers charged by law with the duty of making assessments. The language of the paper called an assessment, states an agreement by these officers of the one part and Aspinwall, the owner of the property, on the other, fixing the value of the property. It is not signed, however, by Aspinwall; and as the statute calls for no particular language to be employed in the assessment, and as the substance of the assessment is found in the paper, which is a fixing of the amount of the damages sustained by opening the road, it must be regarded as sufficient. Comparing the provisions of the Revised Statutes with those of the act of 1845, the intervention of the two justices of the peace is not necessary under the latter act. They were to issue a warrant to summon a jury, and were to receive and certify their verdict under the Revised Statutes. Under the act of 1845 the assessment was to be made by designated officers, and the assessment was to be delivered to the commissioner who was required to file it with the town clerk in ten days. This assessment appears to have been so filed.
It was not presented to the board of supervisors till 1852, and in 1847 another law was enacted regulating the presentation of such claims. ( Laws of 1847, chap. 455, § 23.) They were only required to be presented by the supervisor of the town to the board, but no particular form was requisite. The claim in this case was so presented. It was not allowed nor disallowed by any formal action of the board. It was laid aside without other action, when the duty of the board was to proceed and act upon the claim. It is apparent that it was not allowed because the supervisors thought the expense should fall on the State and not on the town. In this they were in error; and we must hold their conduct to be equivalent to a rejection of the claim, or else leave it in the power of boards of supervisors to postpone action in all cases till such time as they think it fit to proceed.
The judgment should be reversed, and a new trial ordered.
SELDEN and STRONG, Js., took no part in the decision; all the other judges concurring,
Judgment reversed, and new trial ordered.