In the matter of extending Canal and widening Walker streets

In the matter of extending Canal and widening Walker streets The statute. (2 R. L. p. 409, § 17.8) confers the jurisdiction, and. authority to review the report of commissioners, of estimate and assessment for opening a street in the city of. New-York, upon, the supreme court; and the powers conferred are exercised by it as.such court, and not as a tribunal of inferior jurisdiction created by the statute, or by its justices as commissioners appointed by the legislature By virtue of chapter. 270. of the Baws of 1854, an appeal lies.to-the supreme court at general term from an order made by the same court at special term, confirming a report of the commissioners. But no appeal lies to this court from the order of the supreme court made at a general term, confirming the report of the commissioners. The statute (2-R. L., 413, § 178), which declares that the report of the commissioners, when confirmed by the supreme court, shall be final and conclusive upon-all persons, takes away the right of. appeal which, would otherwise exist. Motion to dismiss an appeal taken to this court from an. order of the supreme court, confirming certain reports of commissioners of estimate and assessment, made in proceedings for the extension of Canal and the widening of Walker streets, in the city of New-York. The original order of confirmation was- made on the 3d of December, 1853,. at á special term of the supreme court. ' An appeal was taken, and" in September, 1854, the court at a general term in the 1st district made an order affirming the order of the court at special term. From this order of affirmance certain persons interested and who opposed the confirmation of the reports of the commission appealed to this court. A motion was made on behalf of the mayor, &c., of New-York and of- certain individuals interested in sustaining the report of the commissioners to dismiss the appeal on the ground that the order was not appealable. Robert J. Dillon, for the mayor, &c., of New-York. A. L. Robertson, for the other respondents. N. Hill. Jr., for the appellants. I. The order appealed from is one affecting a substantial right, made in a special proceeding, and is therefore within the very words of the statutes securing the right of review. (Voorhies' Code, §§ 2, 3, 11, 333; N. Y. Central R. R. v. Marvin, 1 Ker. R., 276, 277; Laws of 1854, p. 592, 593, §§ 1 to 4.) II. The statutes, embrace every actual determination in any special proceeding, using the most comprehensive terms; and no exception can be interpolated without legislating. (Voorhies’ Code, §§ 11, 333; Laws of 1854, p. 592, 593; Jones v. Jones, 6 Shepl. R., 313; Purdy v. People, 4 Hill's R., 384, 413, 414; S. C., 2 Hill's R., 35, 36, per Bronson, J.; The People v. Newell, 3 Seld. R., 97, 98.) III. The act under which the present proceeding was instituted recognizes the right of review, and the right has always been recognized and acted on by the courts. (Laws of 1839, p. 185, § 9; Striker v. Kelly, 7 Hill's R., 20; S. C. in Error, 2 Denio's R., 323; Livingston v. Mayor, &c., 8 Wend. R., 85; Matter of Carlton-street, 20 Wend. R., 685.) IV. The act of April 15th, 1854, was passed for the express purpose of securing a review by appeal, without resorting to the mere ceremonial of a certiorari in the first instance. (Laws of 1854, p. 592, 593; see the cases last above cited; Matter of Carlton-street, 20 Wend. R., 685; 2 Denio's R., 334, 335, Gardiner, Pres.) V. The above eases proceed on the principle that the right of review, being a fundamental one, is always deemed to exist, unless the intent to destroy it is expressed with irresistible clearness. (2 Cranch's R., 390, Marshall, C. J.; Lawton v. Comm'rs, 2 Caine's R., 179, 181; Rex v. Comm'rs, 2 Keeble's R., 43, Rex v. Morley, 2 Burr. R., 1040, 1042; 3 Hill's R., 564, Cowen, J.; Starr v. Trustees, 6 Wend. R., 564.) VI. Even if the order appealed from should be held conclusive as to mere valuations or estimates, it would not be so as to questions of regularity, and clearly not as to jurisdictional matters. (See points third and fifth, supra, and cases; 1 Kern. R., 338, Denio, J.; 5 Wend. R., 157, 8, Marcy, J., 4 Hill's R., 598, 599, Bronson, J.; 3 Comst. R., 523, Jewett, J.; Thatcher v. Powell, 6 Wheat. R., 119 ; Foot v. Stevens, 17 Wend. R., 488; Rex v. Croke, Cowp. R., 26; Sharp v. Spier, 4 Hill's R., 76, 88; Sharp v. Johnson, 4 Hill's R., 92, 98.) VII. The case of the N. Y. Central Railroad v. Marvin (1 Kern. R., 276), which has induced this experiment on the right of review, furnishes no warrant for the motion (see Laws of 1850, p. 219, 220): 1. The general term there had no right to review the order on appeal; there being no provision made for appealing from the special term (1 Kern., 277, 278, Parker, J.; Laws of 1850, p. 220, § 1; Voorhies' Code, §§ 11, 348, 349; Laws of 1854, p. 592, 593); 2. There, too, the appellant had brought the case into court by appeal from the appraisement, and could raise no jurisdictional question (1 Kern. R., 276; Laws of 1850, p. 220, § 18; Murray v. Wilson, 1 Wils. R., 319, 320; Read v. Pope, 1 Prompt., Mees. & Rosc., 305, 306); 3. Indeed the case assumes that the appeal brought up no question except such as rested in discretion, or related to mere matter of fact (1 Kern. R., 278, 279, Parker, J.); 4. It is far from deciding that one who has done nothing but oppose the action of the court, cannot question the legality of it (see points third, fifth and sixth, supra, and, cases cited); 5. Nor does it profess to overrule the previous adjudications recognizing and affirming the right of review in cases like the present (see points third, and fifth, supra, and cases cited). VIII. The appeal in this case brings under review not only the final order, but every “ intermediate order involving the merits, and necessarily affecting the judgment.” (Laws of 1854, p. 592, 593, § 2; Voorhies’ Code, § 329.) [MAJORITY — Gardiner, Ch. J.,] Gardiner, Ch. J., delivered the opinion of the court. The validity of the appeal in this case depends upon the act of 1854, “in relation to special proceedings.” (Laws of 1854, p. 592.) Independently of that statute, the general term acquired no jurisdiction of the proceedings; and, according to the principle settled in Gracie v. Freeland (1 Const., 228), there was consequently nothing for review in this court. By the first section of the act above mentioned, “ an appeal may be taken to the general term of the supreme court, from any judgment, order or final determination made at the special term of said court, in any special proceeding therein.” The court here referred to is the supreme court, having general jurisdiction in law and equity. In designating it, the legislature have adopted the language of the constitution. (Const. 1846, art. 6, §§ 3 and 6.) Now if the order of the special term, confirming the assessment in this case, and which constituted the subject of appeal to the general term, was made by a tribunal pro hac vice of inferior and subordinate jurisdiction, it was not the order of the supreme court and the act of 1854 has no application. However comprehensive the language of the statute may be, the universality of its provisions demonstrates that the orders, judgments and final determinations mentioned, were supposed by the legislature to proceed from the same corporate body a court, cue end individual whatever might be the. subject of its adjudication. Indeed; the- whole question on. this branch of the case is, whether the law of 1813, relative to. streets,in the city of New-York, merely enlarged the jurisdiction of the supreme court, or whether it established a subordinate, tribunal with a special and limited jurisdiction to. be administered by those who were ex-officio judges of that court. In Striker v. Kelly (7 Hill, 9), Judge Bronson maintained the latter proposition and if his assumption founded upon, the decisions of his. court and the dicta of the judges was correct his conclusion was inevitable; and the practice of allowing a certiorari as a court to remove their own proceedings as commissioners was regular and appropriate. To this effect were the numerous decisions referred to upon the argument by the counsel for the appellants. But in that case a majority of his associates differed from Judge Bronson and held that the powers conferred by the act vested in and were to be: exercised by the supreme court and this view was concurred; in by the, court for the correction of errors although the judgment was reversed on another ground (2 Denio, 323.) If the law of 1813 enlarged the jurisdiction of the supreme court which in effect was decided in Striker v. Kelly, no other change was produced. The powers incident, to its general jurisdiction so far as applicable at once attached' to the new subject. In administering this law as every other the court could require the services of its officers punish, for contempt, issue attachments, use the buildings appropriated to the ordinary business of the court and set aside the proceedings on sufficient cause. The contrary was determined I am aware by the former court but upon the hypothesis that they acud as commissioners, and not as the supreme court in executing this statute. ,When the former court granted a. discovery, in pursuance, of a statute- authority for that purpose, it was never- sup-, posed that, in-affording-that relief, the court lost its identity,, and became either the- court of chancery or: an inferior-court of 'equity, whose decisions, could, be reviewed by the chancellor. The class of cases and the mode of proceeding, however, were prescribed, by the law, which was so far special and; limited. Yet in. this form.it became, a part of the- jurisdiction of the court, and on the proper occasion relief was afforded in the same way, as a rule would be granted to vacate a default, or set. aside an execution. There is no difference in this respect between a. jurisdiction conferred by legislation and that granted by the constitution. Had the law in question constituted a portion of that' mass, of powers delegated to. and recognized as pertaining to the. supreme court by the organic law, the mode of its administration, the immunity of the judges, the presumption in. favor of the regularity of the proceedings and the effect of the decisions under it would be precisely what they now are. We are all, therefore, of opinion that the supreme- court, in reviewing the report of the commissioners, of assessment at the special term, and in determining the questions of fact and law then presented, and. in confirming that report, acted as, the. supreme court of the constitution, and not as a subordinate tribunal. That the appeal authorized by the act of 1854 was to the. same court in. general term; and that the final order of affirmance, the subject of this appeal, was made by the supreme court having “jurisdiction in law and equity,” and not otherwise. That the appellants are consequently entitled to. a hearing in, this court, unless the right of appeal, is taken away by the statute under which the proceedings originated.; which declares “ that the report of the commissioners, when confirmed by the supreme court,» shall be final and conclusive upon all the parties interested, and upon all other persons whomsoever. ’' This- presents the second, and only remaining question discussed upon the argument. The authorities then cited by the counsel for the appellants fully establish the position that, in respect to inferior jurisdictions, the right to review their proceedings cannot be taken away without an unequivocal declaration to that effect by the legislature. They show that the superior courts in England, and in this state, have disregarded the strongest intimations of the legislative will, unless they came up to this standard; and the law may be considered as settled, that language as emphatic as that contained in this statute will not deprive a party of the right of review. (2 Keeble's R., 43; 2 Burr., 1040; 2 Caine's R., 179, 181.) In justification of this strictness, it has been alleged that administrative and judicial, or quasi judicial powers, are frequently delegated to. men without legal experience, who may err through ignorance, or abuse their trust from interested motives. It has, therefore, been deemed indispensable to the security of the citizen, that a superintending power should exist somewhere, over inferior courts and officers, to restrain irregularities, and to correct errors of law and, above all, errors of jurisdiction. These are cogent reasons in favor of the power of review and control, and would be conclusive if, as the appellants insist, the order appealed from had proceeded from a subordinate court. The question, however, here is, whether they apply to the decisions of the supreme court; the'tribunal which is made by the constitution, what the king’s bench is in England, the conservator of the rights of the citizen, by supervising and keeping within their assigned limits all inferior jurisdictions whatever. The presumption certainly would be, that a court, whose peculiar office was to supervise others, would not transcend its own jurisdiction; while the parties interested would have the judgment of men selected .for their experience and legal knowledge, acting in view of a high official responsibility, with reference to what was due to their position, to the public, and to the opinion of an intelligent profession. The language of the statute in reference to a court clothed with such authority would be senseless, if not construed as it reads; that in cases of assessment for opening and widening streets, their orders and judgments should be final and conclusive' upon all persons interested, whomsoever.” Such is the case before us. The assessment made, as we are informed, exceeds five hundred thousand dollars, and directly affects, the interest of at least three thousand persons. That all should have been satisfied was not to be expected. But those who felt themselves aggrieved have had one or more hearings before the commissioners, another before the supreme court at special term, and a review of the whole proceeding before a full bench at the general term of the same court. In a great majority of these street cases, the controversy does not originate in a difference of views as to the laws of property or those affecting the jurisdiction of the court, but in reference to the apportionment of the burden imposed in carrying out the improvement. These last present questions of fact almost exclusively, which cannot be reviewed here ; and if they could, the chances of a correct decision would not be increased by a farther departure from the source of the evidence. There is nothing, therefore, in the character of the court pronouncing the judgment appealed from, or in the nature of the proceeding itself, that indicates improvidence or inattention to the rights of parties by the legislature in declaring that the decision of the supreme court should be “final and conclusive.” And there is nothing in either consideration to justify us in departing from the plain import of the provision, in order to sustain our own jurisdiction. We have accordingly held (1 Kern., 276) that the right of review was taken away by a provision of a similar character, making the decision of the supreme court final as to appraisments under the general railroad act. The appeal must be dismissed. Denio, J., being interested, took no part in the decision. Appeal dismissed.