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In re Caffrey.

adopting the profile was enacted. And it is sought to raise this question by a review of the decision of the commissioners upon the said motion made before them for a dismissal of the proceedings. But the commissioners had Section 159 prono power to entertain such a motion.

vides in part:

"A person claiming damages from such change of grade must present to the board of trustees a verified claim therefor, within sixty days after such change of grade is effected. The board may agree with such owner upon the amount of damages to be allowed to him. If no agreement be made, within thirty days after the presentation of the claim, the person presenting it may apply to the supreme court for the appointment of three commissioners to determine the compensation to which he is entitled. Notice of the application must be served upon the board of trustees at least ten days before the hearing thereof. All proceedings subsequent to the appointment of the commis sioners shall be taken in accordance with the provisions of the condemnation law, so far as applicable, except that the commissioners in fixing their award may make an allowance for benefits derived by the claimant from such improvement."

The commissioners under the condemnation law are appointed "to ascertain the compensation to be made to the owners for the property to be taken for the public use specified." Section 3369, Code Civ. Proc. Their duties are to view the premises; to hear the proof and allegations of the parties; to reduce the testimony, if any be taken to writing; to ascertain and determine the compensation which ought justly to be made to the owners of the property appraised by them; and to report to the court. Section 3370, Id. Under the statute, plainly the sole power conferred upon these commissioners was to assess the damages. The constitution that authorizes such a tribunal limits its functions to the ascertainment of compensation (section 7, art. 1); and, if any further power is to

In re Caffrey.

be conferred upon it, it must be done by the legislature alone, within any prohibition of the organic law (In re Village of Middletown, 82 N. Y. 196, 201).

But it is contended that the power to determine the regularity of the proceedings was vested in this commission by the stipulation of the parties. The plain purpose of the statute is to constitute a tribunal to assess damages like unto a jury. The plain purpose of the stipulation is to confer powers upon the tribunal like unto those conferred upon a judge. The statute provides that they shall act as commissioners of condemnation act, whose powers are prescribed by section 3370 of the Code of Civil Procedure. The stipulation would confer the powers defined by section 3367 of that Code, which in express terms confers such powers upon the court or its referee. This question is not even embarrassed by any action of the court below; for it does not appear that the question now up was ever raised before the court, or even mentioned in the report of the commissioners or in the order of confirmation. Judge Cooley, in his Constitutional Limitations (page 491), writes:

"It is a maxim in the law that consent can never confer jurisdiction; by which is meant that the consent of parties cannot empower a court to act upon subjects which are not submitted to its determination and judgment by the law. **Consent is sometimes implied from failure to object, but there can be no waiver of rights by laches in a case where consent would be altogether nugatory."

*

I am dealing now with jurisdiction not of the person, but of the subject-matter, a distinction to be kept in mind, but which seems to have been lost sight of by the learned counsel in the case at bar.

In Dudley v. Mayhew, 3 N. Y. 9, the court said:

"It has been long and correctly settled that not even a direct assent by the parties can confer jurisdiction, or render the judgment of a tribunal, in a matter over which it has not by law any cognizance, effectual. Coffin v.

In re Caffrey.

Tracy, 3 Caines, 129; Davis v. Packard, 7 Pet. 276, 8 L. Ed. 684."

In Oakley v. Aspinwall, 3 N. Y., at page 552, the court

say:

"But where no jurisdiction exists by law it cannot be conferred by consent, especially against the prohibitions of a law which was not designed merely for the protection of the party to a suit, but for the general interest of justice (citing authorities).'

I note that the dissent expressed by Bronson, C. J., did not quarrel with the principle, inasmuch as he wrote, "And, besides, this is not a question of jurisdiction."

In Davidsburgh v. Insurance Co., 90 N. Y., 530, court say:

the

"There are, no doubt, many cases where the court having jurisdiction over the subject-matter may proceed against a defendant who voluntarily submits to its decision, but where the state prescribes conditions under which a court may act those conditions cannot be dispensed with by litigants; for in such a case the particular condition or status of the defendant is made a jurisdictional fact.”

See, too, Dakin v. Demming, 6 Paige, 95.

A stipulation or consent may effect jurisdiction of the person, but it cannot cover the action or the subject thereof. Parkhurst v. Machine Co., 65 Hun, 489, 20 N. Y. Supp. 395; Burckle v. Eckhart, 3 N. Y., 132. See, too, Landers v. Railroad Co., 53 N. Y. 450, 460; Wheelock v. Lee, 74 N. Y. 495. If a If a plaintiff, upon defeat, should raise the objection of nonjurisdiction, the court in Sentenis v. Ladew, 140 N. Y., 463, 35 N. E. 650, were inclined to the opinion that even he might prevail if the court was one where jurisdiction was expressly limited by statute, or if there was some statutory exhibition of jurisdiction in a given case or class of cases. But the case at bar is more flagrant than some of the cases in the authorities, for here is an attempt to transform a jury into judges, and not merely an effort to extend the jurisdiction of a court.

In re Caffrey.

Andrews v. Wheaton, 23 Conn. 114; Bishop v. Nelson, S3 Ill. 601; Hoagland v. Creed, 81 Ill. 506. None of the cases cited by the learned counsel for the appellant is at war with the principle applicable to this case. Brady v. Nally, 151 N. Y. 258, 45 N. E. 547, concerned the waiver of incompetency of oral testimony. In Deul v. Trustees, etc., 3 N. Y. 197, the court expressly said that the requirement was not a jurisdictional one. In Sherman v. McKeon, 38 N. Y. 266, the owner of certain premises accepted payment of an award, and was held thereby to renounce the objection that the taking of the property was unconstitutional. Allen v. Commissioners, Id. 312, holds that the state may waive a statutory provision as to payments upon a tax sale within a certain time, as it was a matter of convenience and for the advantage of the state only. Vose v. Cockcroft, 44 N. Y. 415, was an action on a bond given to relieve an attachment under an unconstitutional statute, where it was held that the conduct of the obligor was a waiver. In Phyfe v. Eimer, 45 N. Y. 102, there was a payment under a lease where the statute had protected the tenant against his agreement to pay rent, but the court held that the tenant could, by his agreement, waive a statutory provision in his favor that affected simply his property, and did not involve any consideration of public policy. I fail to see any apparent bearing of De Grove v. Insurance Co., 61 N. Y. 594. Ogdensburgh & L. C. R. Co. v. Vermont & C. R. Co., 63 N. Y. 176, holds that a party may waive his right to appeal, or be deprived of it by stipulation, if that waiver be based upon some consideration or upon estoppel. Wilkinson v Insurance Co., 72 N. Y. 499, holds that parties to a contract may agree upon a shorter limitation to actions upon it than is fixed by general law. Baird v. Mavor, etc., 74 N. Y., 382, holds that a party may waive his "private individual right" to a trial by jury instead of by a referee. The principle enunciated in Hilton v. Fonda, 86 N. Y. 339, is that a private person may waive compliance by of

In re Caffrey.

ficals with a statute for his help. Steen v. Insurance Co., 89 N. Y. 315, holds that the consent of the parties could create a new contract of insurance unaffected by the forfeiture of the original contract. In Re Cooper, 93 N. Y. 507, the landowner joined in the application for the appointment of a commissioner, and after the termination of the proceedings moved to vacate them as unconstitutional, and as not complying with the statute, and it was held that there was a waiver of provisions for his benefit upon the principle of election. Sledeker v. Bernard, Id. 589. holds that binding effect of a stipulation not to appeal. The learned counsel, as I have said, fails to mark the distinction between jurisdiction of the person and jurisdiction of the subject-matter. The former may be acquired by consent or by conduct tantamount thereto (McCormick v. Railroad Co., 49 N. Y. 303); not so as to jurisdiction of the subject-matter (authorities supra, and see Wheelock v. Lee, supra).

I need not dwell upon the danger of permitting parties to create tribunals, and thereby to recognize that private compact may have the force of public statute. Private judgment might thus reconstitute the judicial system of the state, and confer upon inferior courts or bodies powers that were never contemplated when they were authorized, but which were, in effect, withheld from them by the wise or the wisdom of the people of the state. I have no doubt that the appellant deemed that it was acting wisely in the public interests of the village in seeking a speedy adjudication, but the public interests of a locality must give way before the public policy of the state. If the petitioner could not avail himself of the statute, the village should have raised that question upon his application for the appointment of the commission; for the statute requires 10 days' notice of the application for the appointment of the commissioners. The petition shows, somewhat vaguely, that the grade was changed during the year 1898, and this is denied by the answer. The petition also shows that a

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