FIRST DEPARTMENT, JANUARY TERM, 1885. isfactory. And in support of their objections they will undoubtedly be at liberty to offer such proofs, by way of affidavits, as may, in their judgment, sustain the propriety of their objections. For where the right to object is reserved, as it has been in this manner, the right to make the objection intelligible and effectual is also included. It is no fatal objection to the proceeding that it has been provided that it shall take place after the commissioners have made their estimates of the compensation to be allowed. In that respect the proceeding is similar to that required to be followed by assessors throughout the State in making their assessments for the purposes of taxation. For they proceed, in the first instance, entirely upon their own judgment, and fix or set down what may be considered by them as proper valuations of the property to be assessed. And it is only after that has been done that the public notice has been required to be given, under which the owners of the property assessed may appear and object to the assessments. (1 R. S. [6th ed.], 937, § 18.) And the proceedings which may be taken by the owner of the property, after the publication of such notice, has invariably been considered to secure to him all necessary protection against improper assessments on the part of the assessors. The fact that they had already designated the value of the property was not, in judgment of law, a circumstance affecting their qualification to reconsider their action upon the appearance and hearing of the owner of the property. The same theory has been followed in the enactment. of the third section of the act of 1884. By its provisions all persons interested in the lands are secured an opportunity for appearing before the commissioners in support of what they may deem to be their own proper claims for the taking of their property. But if the commissioners themselves, upon the reconsideration provided for, fail to adjust their estimates as the owners affected by them may deem to be just, they are provided with a still further hearing before the court. The notice directed to be published, in addition to a statement of the fact of the report or transcript of the estimates being deposited in the office of the commissioners of public works, is also required to state the day on which the commissioners' report will be presented to the court. The object of this part of the notice is to enable the owners of the property to appear before the court and there contest the action of the commissioners. And the court FIRST DEPARTMENT, JANUARY TERM, 1885. is required to hear "any matter which may be alleged against the same." (Laws 1884, chap. 522, p. 630.) This provision is precisely the same as was contained in the act of 1813, already referred to. That provided in the same terms for the confirmation of the report, or a reference of it to the same or other commissioners for revisal and correction, "after hearing any matter which may be alleged against the same." (2 Revised Laws, 1813, 413.) And the practice followed under that authority was the same as has already been suggested, that of presenting affidavits by the owners of the property contesting the correctness of the conclusions adopted by the commissioners. That was done, upon this subject of value, In Matter of Fourth Avenue, etc. (3 Wend., 452), where it was said in the opinion that one of the contestants "produced the affidavits of several respectable and intelligent men who appear to be well acquainted with the value of real estate in this part of the city of New York and to be capable of estimating correctly the effect of the proposed improvements." Similar proofs were presented and acted upon In Matter of John and Cherry Streets (19 Wend., 658, 662), and also In Matter of Thirty-ninth Street (1 Hill, 191, 193). To allow such proofs this authority must have been considered so broad as to entitle the parties to bring to the attention of the court all such information as may be necessary to enable it to determine whether any of the matters alleged against the report or estimates shall be well founded or no. And if it could be done, as it has been under the same provision contained in the act of 1813, it certainly can be under the broader authority of the act of 1884, expressly providing for objections to be presented to the commissioners and a reconsideration by them and a subsequent hearing before the court, in which is to be considered any matter which may be alleged against the report. These provisions, under the authorities, secure to the owners of the property a very complete right to be heard upon the propriety of the estimates, which may be adopted by the commissioners. And if they can be shown to be erroneous, ample provision is made in this manner for their correction. The case is, therefore, in a marked manner distinguishable from that of Stuart v. Palmer (74 N. Y., 183), where, by the act under which the assessment was made no hearing whatever was provided for the owners of the property, who FIRST DEPARTMENT, JANUARY TERM, 1885. were to be subjected to the assessment. While in this instance they have been secured a hearing before the commissioners themselves, after their own inspection and observation of the property, and the acquisition of such information as may be obtained by them, to guide them in making proper and suitable estimates. By the twenty days notice of the application for the appointment of commissioners required to be first published, and the notice of the deposit of the report, or a transcript thereof, in the office of the commissioner of public works, and of the time when the report will be presented to the court, and the opportunity secured for making objections, and their subsequent consideration by the commissioners, and the still later hearing before the court, as complete an opportunity has been secured to the owners of the property for their protection as could reasonably be required, under these provi sions of the Constitution of the State. The authority of the act has been further assailed upon the ground that the legislature could not authorize a majority of the commissioners to conclude the owners in their estimates of value and their report to the court. But the Constitution has in no manner required the concurrence of the three commissioners in the estimates to be made by them. It has not prescribed what their proceeding should be in this particular, and, accordingly, it was within the power of the legislature to designate and direct it. In this respect they have done no more than was directed by the statutes for the incorporation and acquisition of property by railroad companies. They proceed, in all cases, under the same authority of the Constitution, and yet a majority of them has been empowered by the statute to deter mine the compensation which ought to be made to the owner for the property taken from him for the construction of a railroad. (2 R. S. [6th ed.], 525, § 18.) This course of proceeding has been followed for many years without serious doubt being suggested as to the power of the legislature to prescribe it. And precisely the same provision has been made by section 20 of chapter 606 of the Laws of 1875, for the construction and operation of other steam railways. Prior to the adoption of the present Constitution, the determination of a majority of the persons selected to appraise property taken for public purposes had been frequently authorized by the legislature. And in Cruger v. FIRST DEPARTMENT, JANUARY TERM, 1885. Hudson River Railroad Company (2 Kernan, 190) it was considered and held that it had not been superseded by this Constitution. The same point arose in Matter of Fourth Avenue (11 Abb., 189), where a like provision was held to be valid. And that view was followed in Astor v. Mayor (62 N. Y., 580, 586). The directions contained in section 8 of the act of 1884, authorizing two of the commissioners to perform the trust and duties of their appointments, was not probably designed to empower them to exercise their authority independently of the third. To determine its signification and effect, the other provisions of the act are also required to be considered, and those contained in section 2 plainly directs all three of the commissioners to act together in making the estimates. They are all required to take the oath, and all are directed to proceed with due diligence to make a just and equitable estimate of the loss and damage of the owners, and they are all required to listen to and consider the objections authorized to be made by section 3 of the act, and all are to join in the notice of the deposit of the report, or a transcript thereof, and of the time when it is to be presented to the court, and in case either of the three shall resign, become disqualified, or refuse to act, provision has been made by section 7 for the appointment of another commissioner in his place. These parts of the act very clearly render it their duty to act together, and it is only when they shall be unable to reach an unanimous agreement, or estimate, that two have been authorized to act, and this section should be considered and construed as only a further direction intended more fully to carry out that authority. For it is not to be presumed, unless the conclusion is very clearly maintained, that the legislature intended to violate the Constitution, as it would have done in the enactment of this provision, if two of the commissioners could proceed without the other in the discharge of the duties required to be performed by the three. A legislative act is never to be condemned upon a doubtful construction of its provisions. "It is only in cases of clear and substantial departure from the provisions of the fundamental law that courts will declare acts of the legislature invalid." (Gilbert Elevated R. R. Co., 3 Abb. N. C., 434, 439.) To avoid that result the provisions made by section 8 must be construed with those contained in the second FIRST DEPARTMENT, JANUARY TERM, 1885. section of the act, and as so construed may be rendered entirely harmonious with that section, as well as with the requirement made in the Constitution The act also provides that "all leases and other contracts in regard to said lands so taken for said park, or park-ways, or any part thereof, and all covenants, contracts or engagements, between landlord and tenant, or any other contracting parties, shall upon the confirmation of such report respectfully cease and determine and be absolutely discharged, according to law." And for that reason it has been urged that it is in violation of so much of the Constitution of the United States as prohibits the States from passing any law imparing the obligation of contracts. But this restraint has not been considered as one affecting the right to take private property for public uses. It has, on the contrary, been held that all contracts and obligations relating to property must be regarded as having been entered into in subordination to that right, and to the duty to make compensation upon which it has been rendered dependent. (Brown v. Corey, 43 Penn. 495, 504; West River Bridge Co. v. Town of Brattleboro 6 How. [U. S.], 507, 532, 533, 538.) This objection, like the others to which attention has been directed, is therefore not entitled to be sustained. The act has also been resisted upon the further ground that no proper provision has been made for the payment of the estimates. But in this respect it is precisely the same as the provision made by section 183 of the act of 1813, already mentioned, for it has been provided by section 4 of the act of 1884 that within four calendar months after the confirmation of the report of the commissioners the mayor, aldermen, etc., shall pay to the parties entitled thereto the respective sums, estimated and reported in their favor, respectively, or in default thereof the right, to sue for and recover the amount from the city, has been given. This is an absolute and unqualified obligation providing for payment to be made, or in default of it an adequate remedy for its recovery; for if judgments should be recovered against the city for the compensation its authorities would be obliged, by the proper proceeding applicable to the object, to levy and collect by way of taxation the amount required to make the payment. And that is all that is necessary by way of providing for the making of compensation to the owner |