It is said to be inherent in the nature of sovereignty not to be amenable to the suit of any private person without its own consent. This immunity is justified, not only by the impossibility of enforcing recoveries against the State, but the difficulty of guarding against fraudulent claims and embarrassing stale controversies, and also by the presumption that it never would be its interest or inclination to withhold a just debt from any citizen. The usage has been to do justice to the citizen in its dealings with him and his property. At first, upon petition addressed to the legislature, *Page 500 it provided either for direct payment of his demand, or a special tribunal to which it might be submitted, and afterward a board of audit (Laws of 1876, chap. 444), with power to hear all private claims against the State (except those then heard by the canal appraisers), and allow such as should equitably be paid to the claimants; and lastly (Laws of 1883, chap. 205), in place of the appraisers and board of audit, the board from whose decision this appeal has been taken. All these bodies acted under such limitations as the legislature imposed. But the legislature itself was subject to the people, and in 1874 (November 3), it was provided by amendment to the Constitution (Art. 7, § 14), that "neither the legislature, canal board, canal appraisers, nor any person or persons acting in behalf of the State, shall audit, allow, or pay any claim which, as between citizens of the State, would be barred by lapse of time. The limitation of existing claims shall begin to run from the adoption of this section; but this provision shall not be construed to revive claims already barred by existing statutes, nor to repeal any statute fixing the time within which claims shall be presented or allowed, nor shall it extend to any claims duly presented within the time allowed by law, and prosecuted with due diligence from the time of such presentment. But if the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." In view of these conditions we are required to uphold the conclusion of the board of claims, and if, in the result, there is seeming hardship, it is apparent the claimant alone is accountable for the delay which leads to the denial of his demand.
First. The statute (Laws of 1873, chap. 766, p. 1170), which required security from the contractor, declared that it should be deposited with the State treasurer as a special trust, to be returned "when the commissioner in charge and the State engineer should certify that the contractor had completed his contract and the State had no further claim upon the security." The same condition is contained in the act of 1872 (Laws of 1872, chap. 850, p. 2023), to which also the claimant refers. There is no suggestion in the statement of claim, nor *Page 501 evidence that these officers were ever asked for a certificate or in any way to act in the matter.
Second. The legislature passed several laws, now claimed by the appellant to include the claims in question; first in 1876 (Chap. 193, p. 194), and again in 1878 (Chap. 252, p. 322). By the first act a sum not exceeding $22,800 was appropriated to refund contractors the amounts deposited by them in pursuance of chapter 850 of the Laws of 1872, and chapter 876 of the Laws of 1873 (supra), to be paid to the contractors on the warrant of the comptroller upon the treasurer, certifying the amount to which the contractor was entitled. By the other $7,991.85 — being the unexpended balance of the former sum — was reappropriated for the same purpose.
The certificate of the treasurer was not obtained by this claimant, nor any proceedings instituted to compel it. In either case had the demand been made of the officers named in the foregoing statutes, and unreasonably refused, although the States could not be sued, each one of them was amenable for any act or omission of duty which he owed to the claimant, and in a proper case, he would be entitled to the writ of mandamus. But if for any reason the power of the judicial tribunal was insufficient, the claimant might still rely upon the justice of the State. From the moment of the completion of the work, the contractor had a just claim against it, and the remedy, by appeal to the legislature, was open to him. In a case (Lord v. Thomas,64 N.Y. 107) involving the same principle, the court, in denying the writ of injunction against a State officer through whose interference the plaintiff's contract was put an end to, said: "This remedy" (petition to the legislature) "is the only one provided in such case, and this is known to the party contracting with the State, and the courts cannot say that it is not certain, reasonable and adequate." The claim now in question never was presented to the legislature.
Third. In June, 1876, the board of audit was established, with jurisdiction, but the claim was not presented to it until after the expiration of more than six years from the time the cause of action had accrued, and when, as between citizens, it *Page 502 would have been barred by lapse of time. The claimant's counsel argues that until by the statute of 1876 (supra), that board was organized, an absolute disability existed. But the claimant was under no disability. As we have seen, he might at least have petitioned the legislature. The Constitution prohibits even that body from paying or allowing the claim after lapse of time. He could assert his rights no better before the board of audit than before the legislature. It had only a delegated power "to hear and allow such sums as it shall consider should equitably be paid by the State to the claimants." Payment was still a matter of grace on the part of the State after report made to it. (Lord v. Thomas, supra; Laws of 1876, supra.) It could no more be enforced after a hearing than before. Nor would it alter the case if it were otherwise. The want of a tribunal does not hinder time from running. The claim was existing and due when the constitutional provision took effect. As to it, therefore, the limitation began to run November 3, 1874, and was completed November 4, 1880, or two years before the claim was presented to the board of audit, unless as the appellant contends, it is within the saving clause which declares that the provision shall not "extend to any claims duly presented within the time allowed by law, and prosecuted with due diligence from the time of such presentment." The foundation for this assertion is laid in the petition to the board of audit, by the statement that the claim "was presented to the canal board several years ago, but at what particular time" the petitioner "cannot state, and payment requested, but no payment or award has ever been made, nor final action taken in reference thereto."
The proof is that on June 6, 1877, Corkings presented a petition to that board, stating that the contracts had been completed and settled for, and asking "that the security retained by the State for" their performance be returned to him; that a similar one was presented April 23, 1878, and again September 7, 1878. Action was had upon these petitions from time to time, and reports made concerning the matters involved, the last, March 13, 1879, showing that the sums paid the petitioner *Page 503 largely exceeded the contract price, and that the work was not properly performed, but no definite action was had. The petitions were neither granted nor rejected. Upon the evidence, of which this is a summary, the board of claims were asked by the claimant to find "that the claims for the amounts so deposited were duly presented within the time allowed by law, and were prosecuted with due diligence from the time of such presentment." They refused to do so and found the contrary, as above stated. This was probably because they deemed those proceedings absolutely unimportant upon any issue before them. Such too was the contention of the learned attorney-general. Yet in view of these facts, the appellant fails to cite any statute or authority showing the jurisdiction of the canal board; if they had no jurisdiction, then clearly what was done by them, or omitted to be done, was of no moment, nor was it important that their action was invoked. If on the other hand they had jurisdiction, then it may be conceded that so far as appears in this case, the restraining words of the Constitution (supra) do not apply to that proceeding, and the claimant would be entitled to their determination, and if in his favor, to such benefit (if any) as under the statute giving that jurisdiction, is prescribed for it. (Constitution, art. 5, § 6.) But even in such a case the saving words are limited. The claim must not only be duly presented within the time allowed by law, and prosecuted with due diligence, but it must be prosecuted with due diligence from the time of such presentment, thus introducing as to claims against the State a rule different from that prevailing in actions between citizens. In the latter cases such an action, once commenced, suspends the running of time, however great the delay in bringing it to a conclusion. (Evans v. Cleveland, 72 N.Y. 486. ) But the provision in question requires not only a timely commencement, but a diligent and continued prosecution of a claim against the State. Here, in any view, was a suspension of proceedings from March, 1879, to May, 1882 — more than three years. This need not be dwelt upon. It is only another feature, justifying if need be the refusal of the board to *Page 504 find that the claim had been diligently prosecuted from the time of its presentment to the canal board. Our decision need not be put on that ground. It may be put on the broader ground above mentioned, that the saving words apply only to the tribunal and the proceedings in which the claim has been presented or is being prosecuted, and enables that tribunal only to complete the work it has undertaken. Neither that presentment nor those proceedings avail the claimant in any manner when before another tribunal. There, as to then existing claims, limitation must be deemed to run from the time of the adoption of the provision (supra), and if it has expired, neither the legislature, nor other board or person can audit or allow, or pay.
That was the case below. The constitutional provision was adopted in November, 1874. The claim accrued before that time and was then existing. It was not presented to the board of audit until May, 1882. It might have been in June, 1876. Instead of appealing to that tribunal, the claim was presented to the canal board in 1877, and, as we have seen, in following years. If both boards had jurisdiction, the plaintiff must be deemed to have made his election, and can with no reason complain that the State did not sooner provide a body to hear him, nor can he with any reason ask for such a construction of the Constitution as will permit him not only to evade its directions, but have another hearing before another tribunal upon the ground that he had first petitioned the other.
I think the board of claims could come to no other conclusion than that the constitutional prohibition applied.
The appeal should therefore fail, and the judgment be affirmed, with costs.
RUGER, Ch. J., RAPALLO and FINCH, JJ., concur with EARL, J.; MILLER, J., concurs with DANFORTH, J.; ANDREWS, J., does not vote.
Judgment reversed. *Page 505