People Ex Rel. Hallock v. . Hennessy , 205 N.Y. 301 ( 1912 )

While I concur in the opinion of Judge GRAY for the affirmance of the order before us, I appreciate that there can be different views entertained as to the effect of the discretionary power granted by the statute to the board of assessors upon the question whether the award made by that body is subject to review. But from the theory upon which the reversal of the order of the court below is about to proceed — that the discretion vested by the statute is as to the question whether the board of assessors should entertain the claim of the relator, not as to the decision of the claim after it has been entertained — I wholly dissent. The location of the words "in its discretion" in the sentence of the statute which confers authority upon the board is not controlling. We at times read and quite often hear that a murderer "was sentenced to be hanged by Judge A." The statement may provoke a smile from the grammarian, but there can be no doubt as to what function is intended to be attributed to the judge. If the statute is to be construed as contended, I have grave doubts of its constitutionality. It is said that as the statute clothed the respondents with power to act on the claim in their discretion, if they had refused to take action thereon, such determination would not be subject to review. But it is further said that if they entertain a claim the determination of it is a judicial proceeding as to which the statute confers no discretion. It is also said that the action of the legislature in authorizing an award of damages for property injured by the change in the approach to the bridge, was not the conferring of a gratuity, but the recognition of a moral claim which it was within the power of the legislature to do. If these three propositions are correct, the result is that by the statute the legislature has not recognized the equitable claims to compensation of the parties injured by the improvements, but has left it to the discretion of the respondents to determine, not whether the claims are meritorious and equitable, but whether even if both, they shall be entertained at all. In other words, the legislature itself does not enact that equitable rights shall become legal claims, but has committed that to the board of assessors. This seems to be a delegation of legislative authority which is unauthorized. The case is not similar to that of a statute which grants to municipalities administrative powers to be exercised or not in the discretion of the municipal officers, such as authority to buy a park. The view of the statute before us sought to be maintained is that the statute creates a legal right, provides a tribunal to hear and determine it, and, therefore, such hearing and determination is necessarily judicial, while at the same time the legal existence of the claim is left to the arbitrary discretion of the board of assessors.

The suggestion that this objection will apply with the same force to one construction of the statute as to the other ignores the distinction between two different functions: One, that of the recognition of an equitable claim and the direction for its payment if established, which is a legislative act (Cole v. State of N.Y., 102 N.Y. 48;O'Hara v. State of N.Y., 112 id. 146; Wrought Iron BridgeCo. v. Town of Attica, 119 id. 204), and the other, the audit and allowance of the claim, a function that always could be delegated and which under the present Constitution must be delegated, for article 3, section 19, forbids the legislature from auditing or allowing any private claim against the state, and its authority seems no greater against municipalities. (Matter of Greene, 166 N.Y. 485.) As to the further suggestion that the point was not raised in the court below, the answer is that it is not now contended that the statute is unconstitutional, but that the proposed construction would make it unconstitutional, and, therefore, must be rejected, which is a mere matter of argument. That an award of commissioners may be made conclusive and not subject to review is settled by the decision of this court in Matter of Prospect Park Coney IslandR.R. Co. (85 N.Y. 489). (See, also, Lewis on Eminent Domain [3d ed.], sec. 788.)

As already said, I have doubts as to the constitutionality of the statute under such a construction, but granting that under that construction the statute would be constitutional, it seems to me it is an unnatural construction to be given it. It seems a much more reasonable construction that the discretion given the board of assessors relates to the determination of the claim, its justice and amount, and not to the duty of the board to entertain it. The general principle of statutory construction is well settled. A statute permissive in terms will be construed as mandatory where there is a duty to exercise the power conferred. (Potter's Dwarris on Statutes, p. 220; Sutherland on Stat. Construction [1st ed.], sec. 460.) In Mayor, etc., of N.Y. v.Furze (3 Hill, 612, 615) Chief Justice NELSON said: "Where a public body or officer has been clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive merely, and not peremptory." (See, also, People ex rel. Otsego Co. Bank v.Supervisors of Otsego Co, 51 N.Y. 401.) Therefore according to well-settled canons of construction, the duty of the respondents to hear a claim should be considered mandatory and their determination of its justice and amount discretionary, and not the reverse. Judicial tribunals do at times decline to entertain certain controversies, as, for instance, a court of equity a case where there is an adequate remedy at law, or a case for an accounting of an estate where the Surrogate's Court can afford full relief; but the action of the court in refusing to entertain the case is just as much a judicial decision as would have been the determination of the merits of the controversy had the case been entertained.

WERNER, HISCOCK and COLLIN, JJ., concur with VANN, J.; HAIGHT, J., concurs with CULLEN, Ch. J., and GRAY, J.

Order reversed, etc.