The question in this case is, whether the mode prescribed by section 1, title 7, chapter 177, Laws of 1870 (vol. 1, 179), for determining the compensation to be
The section provides that, for this purpose, the “ common council shall nominate twelve discreet and reputable persons, who shall be freeholders of the said city, and in nowise interested in the question of damages and recompense, and the apportionment and assessment thereof, and make application to the Supreme Court, or any judge thereof, or to the recorder of said city, for the appointment of three commissioners from the persons so nominated as aforesaid, and thereupon, the said court, judge or recorder, shall proceed to draw from a box, containing on separate ballots the names of the persons so nominated as aforesaid, the names of three persons, who, unless objected to or challenged on the ground or qualifications, shall be commissioners for inquiring into and assessing and apportioning the damages or recompense of the owner or owners of the property required to be taken; and in case any challenge, which shall be taken as aforesaid, shall be deemed valid by said court, or judge, or recorder, or in case any person so drawn shall fail to qualify, or refuse to serve, another name or names shall be drawn from said box, in place of the persons so challenged and set aside, or fail to qualify or serve.” The section then provides the mode of proceedings of the commissioners, in determining the compensation to be paid for the lands to be taken.
It is insisted by the counsel for the respondent, that this mode of appointment is in violation of section 7, article 1, of the Constitution, and that all proceedings founded thereon are therefore void. That section, among other things, provides : That when private property shall be taken for any
public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury or by not less than three commissioners, appointed by a court of record as shall be prescribed by law.
When the law provides for ascertaining the compensation to be made by commissioners, section 7 of the Constitution
The counsel for the appellant insists that if their selection as commissioners in that mode is not valid, still their proceedings should be held valid, for the reason that they should be regarded as a jury and the questions determined by them in that character. It is a sufficient answer to this, that the Constitution provides two tribunals, by either of whch the compensation may be determined, and confers power upon the legislature to determine by which it shall be done in the given case. That in the present case, _the legislature determined that it should be done by commissioners. A jury had therefore nothing to do with it. Had a common law jury been selected and unanimously agreed upon the amount in this case, the proceeding would have been void, for the reason that the statute had not provided for ascertaining the amount in this mode.
The counsel cites Cruger v. Hudson R. R. R. Co. (12 N. Y., 190), for the purpose of showing that the legislature may determine the number of persons required to constitute the jury authorized by section 7 of the Constitution to
The judgment appealed from must be affirmed, with costs.
All concur.
Judgment affirmed.