The first question arising upon the facts stated is, whether the board of freeholders was bound by the proceedings in condemnation to take the land at the price awarded.
The statute of March 18th, 1874, provides for no confirmation by any tribunal, of the commissioners’ report, but enacts 'that on its filing, and payment or tender of the sum awarded, the board of chosen freeholders shall be empowered to enter upon and take possession of the lands, and the report and proof of payment or tender shall be plenary evidence of the right of the board to have and enjoy the lands. Either party, feeling aggrieved by the report, was authorized to appeal, within sixty days after its filing, to the Circuit Court of Hudson county, where the assessment of value and damages was subjected to review by a jury, upon whose verdict judgment was to be rendered; but in no case could the freeholders enter upon lands until they had paid or tendered the sum awarded, cither by the commissioners or by the jury.
It is insisted that, under this act, the board of chosen freeholders had no option, save either to pay the award or to appeal; that it could not recede from the condemnation, after the report was filed.
In Matter of the Water Commissioners of Jersey City, 2 Vroom 72, upon a statute directing that the report of the commissioners should be made to and confirmed by the Circuit Court of Hudson county, it was held that the public authorities might withdraw from the condemnation at any time before the confirmation of the award. The decision was based upon public policy, and discriminated between proceedings initiated for the acquisition of lands by private companies and those where a merely public agent was the mover ; and as to the latter, it is said, “ empowered to make the purchase for the public good, he ought not to be forced to conclude it to the public detriment.” The principle which underlies the decision is this, that, inasmuch as the price is an important element in determining whether the public good
The next question, therefore, is, whether the board of freeholders exercised its right of choice; and, if it did, how ? The refusal of the board, on January 6th, 1876, to accept the purchase of the lands as condemned, was, I think, substantially an election not to pursue the right of condemnation ; or, at least, was a declaration that, unless the terms were modified, the purchase would not be completed; and when the power of legal modification was gone, through the expiration of the time to appeal, that declaration became an absolute and final refusal—a conclusive abandonment of the right to take under the proceedings that had been instituted.
I am, therefore, of opinion that these proceedings never ripened into an obligation on the part of the county to pay the sum awarded.
But it is further insisted that the adoption of the preambles and resolutions of March 15th, 1877, gave the relators a right to the amount awarded. Disregarding the questions raised as to whether these resolutions were ever legally passed, I think they do not entitle the relators to the relief sought. If the views already expressed are sound, then the condemnation proceedings, and all the rights and duties of the parties under them, were defunct; and nothing that either party could do would revivify them. No resolutions of the board could afterwards exact their lands from the owners. The power of
The issue of these bonds would, therefore, have been contrary to the policy of that statute, and the court should not permit, much less command it. Siedler v. Chosen Freeholders of Hudson, ante p. 632.
The mandamus prayed for should, therefore, be refused.