I assume that the order of the canal board of the 29th December, 1859, was legally valid, although it did not set forth, as the act requires, the grounds of the change which the board had made in the award of the canal appraisers. I am inclined to think the provision in that respect may be regarded as directory, as was held by the Supreme Court. But the board had a clear right, under the act of 1840 (ch. 201), to grant one rehearing, and it was their duty to do so, if, in their judgment, the justice of the case required it. The board did grant a rehearing by its order of the 10th January, 1860, and that order was a complete answer to the application for a mandamus to carry into effect the award of damages made by the board on the 29th December preceding, unless it was void. It is alleged that it was void for several reasons, the first of which is that it professes to vacate the former resolution upon an ex parte application and before the party claiming damages had been heard. The analogy between these proceedings and suits and proceedings in courts of law is not very close; but some general principles are, no doubt, applicable to both, and it would be clearly illegal to finally annul a determination made upon a hearing of the parties, under which one had acquired rights, without affording him an opportunity to be heard upon the question. But such was not the course proposed by the board. It had been suggested by the canal commissioner, whose duty it was to attend to the *Page 590 interest of the State in the matter, that justice required a further examination of the case; and the effect of their determination was that an opportunity should be afforded for such further examination, and of this Mr. Barnes was to have ample notice by the service upon him of a copy of the order. The statute does not require that the party who had prevailed upon the former hearing should have notice of the application for a rehearing; and there is nothing in the nature of the case making it indispensable that such notice should be given. If he has a full opportunity to appear and contest the matter on the further hearing, he has no ground for complaint. Besides, it is to be intended that the act has imposed all the conditions to obtain a rehearing which the legislature thought it suitable to impose. It declares that there shall be an application, and that it shall be in writing. Of course, the only party to whom an application can be addressed is the board. Then the application must be made in sixty days after the adjudication which is sought to be reconsidered. If, besides these formalities, it had been intended that notice should be given to the other party, it is to be presumed that it would have been so specified. If there was an error in declaring the former resolution vacated before the rehearing took place, still that would not prevent the rehearing, but would be in furtherance of it. So far as the order professed to set aside what had been done, it might be void, and yet the mandate for a rehearing, being within the competency of the board, might be legal and valid. But I think the vacatur was right. The nature of a rehearing, stripped of all technicalities, is a proceeding by which the complaint, or claim for the original adjudication, is to be again heard and considered. The matter, in such a case, is to be taken up anew, without prejudice on account of the former order. The order is in the nature of an award of a new trial in an action at law, which presupposes that the original trial has been vacated and annulled.
But the objection most strongly urged to prove the order for a rehearing void is, that there was no written application. My opinion is, that the board was competent to waive that *Page 591 formality, and that, by making an order in writing vacating the former order and directing a rehearing, the board did effectually waive all objections to the manner in which the question was brought before them. The application was required to be made to the board, and not to the opposite party. The motive for requiring a written application, and for limiting the time within which it should be made, was, doubtless, to enable the board, the public officers and the claimant to know when the original adjudication had become perfect and absolute. It was important, after the sixty days mentioned in the act had elapsed without any rehearing being granted, that there should be some authentic means of determining whether an application had been made within that time. If an oral application should have been made, more or less uncertainty would have arisen as to its existence, which would not be likely to be the case if a written application was the only manner in which the motion could be made. But these reasons have no force where the board has entertained the application, and has actually made an order in writing for a rehearing within the sixty days. No better evidence could be needed that the party seeking a rehearing had applied to the board for that purpose, than a formal order granting the application and directing a rehearing entered in their minutes. Again, the resolution was reduced to writing and presented to the board by the canal commissioner who applied to open the adjudication. It set forth the order which he asked for, and recited the reasons why it should be granted. It was in itself an application in writing, and would alone be a sufficient answer to the objection.
These proceedings are administrative in their character, and the statutes regulating them should be construed with liberality. I am satisfied that an order for a rehearing, made in the manner disclosed in these papers, entered within the sixty days, accomplishes all the objects of a written application, so far as the party opposing the rehearing is concerned.
I am, therefore, of opinion that the judgment of the Supreme Court should be reversed, with costs, and that judgment *Page 592 should be rendered in favor of the canal commissioner against whom the alternative mandamus was sued out.
ALLEN, J., concurred in this opinion; and a majority of the judges agreed that the offering of the resolution by Mr. Gardner was a sufficient application in writing.
Judgment reversed, and judgment for the defendant ordered.