Appeal of S. O. Houghton

By the Court, Crockett, J.:

The motion to dismiss the appeal in this case must be controlled in its decision by a solution of the following questions:

First—Does the special Act of February 1st, 1870 (Stats. 1869-70, p. 41), by necessary implication, or reasonable intendment, prohibit an appeal in this case?

Second—If not, does section three hundred and fifty-nine of the code authorize an appeal in this class of cases ?

If the first question shall be answered in the affirmative, it may be necessary to consider the further question, whether the Constitution has conferred upon this Court appellate jurisdiction in cases of this character, in which event the Legislature would not have the power to take it away, or to prohibit us from exercising it.

In considering the first question it is our duty so to inter *52 pret the Act of February 1st, 1870, if practicable, as to uphold the right of appeal; for it is not lightly to be assumed that the Legislature intended to deny a right of appeal in a ease involving so large an amount and affecting the interests of so many persons. If, therefore, the statute is capable of being so construed as to maintain the right of appeal without violating the well established rules for construing statutes, I should deem it to be my duty to give it that construction.

On the other hand, if the Legislature has clearly expressed its intention that there shall be no appeal in this case, the Courts have no right to defeat this manifest intention by torturing or disregarding the language of the statute. One of the rules for construing statutes is, that the words are to be taken in their usual and popular sense, unless they have a well understood technical meaning; and another rule is, that, if practicable, effect shall be given to all the words and provisions of the statute.

It is not to be presumed that the Legislature employed language which was intended to be meaningless, and to perform no useful office. Section thirteen of the Act under consideration, after providing for a, publication of notice of the filing of the report of the Commissioners, provides that within twenty days after the publication of the notice, any person interested may file in the County Court objections to the report; and if no such objections are filed within that period, the report “ shall be final and conclusive on all parties interested; and all assessments made and set forth in said report shall be a lien upon the respective parcels of land and property in said district upon which said assessments are charged by said report.”

If the proceedings had stopped here, and no objections to the report had been filed within the twenty days, it is clear that all parties would have been concluded, and the report could not have been reviewed, either by the County Court *53 or on appeal. The meaning of the words “ final and conclusive,” as here employed, is unmistakable. But this section further provides that if objections are filed within the twenty days, the County Court shall proceed to hear them, and may either set aside or modify the report, or may recommit it to the Commissioners with instructions, in which latter event a new, or amended report, shall be made; on the coming in of which “the same right of objection by any party interested shall exist, as to said second, or amended report, as 'herein-before provided as to said first report.”

But the power of the County Court over the second report is limited to the rendering of “ a judgment as to said report, or as to any of the matters therein contained, and such judgment of said County Court, as to the premises, shall be final and conclusive; and upon the final judgment of said County Court, as to the premises, all assessments made and set forth in said report shall, from and after said final judgment, be a lien upon the respective lands and property in the district upon which said assessments are charged by said report.”

On the hearing of the objections to the second report the County Court could either confirm it or set it aside entirely, and perhaps might modify it, but had no power to recommit it with instructions for another report. This is perfectly obvious, from the fact that whilst the power to recommit the first report is expressly given, the statute is not only silent in this respect as to the second report, but limits the power of the Court to the rendering of “a judgment as to said report, or as to any of the matters therein contained.” If the second report had been set aside by the. judgment of the Court, the proceedings for the assessment must have been commenced de novo. Nor could there have been any appeal from the judgment. The objecting parties could not have appealed from a judgment in their favor, relieving them entirely from the assessment, and the city and county has no interest in the question of the assessments. The judgment, *54 in the language of the statute, would have been “ final and conclusive.” But the Court confirmed the second report, and the appellant, Houghton, one of the objectors, has appealed. It is urged on his behalf, that when the Act of February 1st, 1870, declares that the judgment of the County Court on the second report shall be “final and conclusive,” it was not thereby intended that it should be absolutely final and conclusive for all purposes, so as to prohibit an appeal, but only that it should be the final action of the County Court in the matter; that it should conclude and terminate the proceedings before that tribunalso completely that it could take no further step in them, not even for the purpose of hearing and deciding an application for a new trial of the objections to the report. But I think it could not have been the intention of the Legislature to deny to the County Court the power to hear and decide a motion for a new trial. If the objectors had discovered, for the first time, after the trial, that the Commissioners had been bribed, and had made a fraudulent report, or new and material evidence, showing the report to be clearly erroneous, or if the objectors and their counsel had been prevented by inevitable accident from attending the trial and offering evidence in support of the objections, I cannot attribute to the Legislature the intention to prohibit them by statute from setting up these facts on a motion for a new trial. In my opinion, the provision as to the final and conclusive effect of the judgment has no reference whatever to a motion for a new trial, and I have no doubt whatever that it was competent for the County Court to hear and decide a motion of that character, and if the motion was granted to retry the cause. What, then, does the statute mean when it- declares that the judgment of the County Court on the second report shall be “final and conclusive?” It is apparent that if these words had been wholly omitted the judgment would have been “final” in that Court. It would *55 have ended the proceeding before that tribunal, which had no power to recommit the report with a view to further action in the matter. When it rendered a judgment on the second report its power was exhausted, except to grant a new trial, which the statute was not intended to prohibit. The judgment, therefore, was "final” in that Court, even though the Act had not so pronounced , it. But the statute provides that it shall not only be final but “ conclusive” On whom, and for what purposes? In that Court, being a final judgment, it was “conclusive,” propño vigore, on the Court and the parties, so long as it remained in force; and it would have been a work of supererogation for the Legislature to declare that a judgment should be final and conclusive in that Court, when it would have been equally so without the declaration. To give to these words so limited an effect would be to impute to the Legislature the folly of incorporating into the statute a meaningless phrase, without force or effect, and accomplishing nothing. This would be to disregard one of the most thoroughly established rules for construing statutes. It is our duty to give effect, if practicable, to every portion of the statute; and we cannot presume that, in declaring the final and conclusive effect of the judgment, the Legislature intended to announce only what would have been equally apparent without that clause. We must seek for some other and more effective meaning in the phrase “final and conclusive,” and none other has been suggested or occurs to me than that the judgment shall be final and conclusive for all purposes whatsoever, and shall end the litigation. This, in effect, is to deny an appeal from the judgment, and to make it absolutely conclusive on the parties. It is not our province to discuss the wisdom and policy of such legislation. This belongs solely to the legislative department, whose enactments it is our duty to expound, in accordance with the expressed will of the Legislature. In support of this construction of the statute I refer to the *56 following adjudged cases, which, though founded on statutes perhaps not strictly analagous to ours, nevertheless strongly support the views here expressed. (McAllister et al., Commissioners, v. Albion Plank Road Company, 10 N. Y., 6 Seld. 353; King et al. v. Mayor of New York, 36 N. Y., 9 Tif. 182; New York Central Railroad Company v. Marvin, 11 N. Y., 1 Kern. 277; Matter of Extending Canal and Widening Walker Streets, 12 N. Y., 2 Kern. 406; Matter of Widening Wall Street, 17 Barb., 617.)

But it is claimed by the appellant that, if the statute be construed as prohibiting an appeal, it is, pro tanto, unconstitutional, inasmuch as the Constitution confers upon this Court appellate jurisdiction in this class of cases. The Constitution, Art. VI, section four, confers upon this Court appellate jurisdiction “in all cases in equity; also, in all cases at law which involve the title or possession of real estate, or the legality of any tax, impost, assessment, toll, or municipal fine.” Section six confers upon the District Courts original jurisdiction in all these cases, in precisely the same language; and section eight confers upon the County Courts original jurisdiction “of all such special cases and proceedings as are not otherwise provided for.” The argument is that this is a “ case at law,” which involves the legality of an assessment, in the true sense of Article VI, section four, of the Constitution, and not a “special proceeding,” in the proper sense of section eight. But it is too plain to admit of debate that this is not a “ case at law,” within the meaning of section four, and that it is a “special proceeding,” within section eight, of which the County Court has original jurisdiction. From an early period in the history of the State down to the present time proceedings for the opening, grading, extension, paving, and alteration of streets, and the assessment of damages caused thereby, have been treated by the Legislature and the Courts as “special proceedings,” and not as “ cases at law.” This Court, in numerous de *57 cisions, has acquiesced in and directly affirmed this view of these cases; and the doctrine has become too firmly established to be open to discussion at this late day. This, therefore, must be deemed a “ special proceeding,” of which the County Court could properly take jurisdiction, and not a “ case at law,” involving the legality of an assessment, of which the Constitution confers upon this Court appellate jurisdiction. But if it were otherwise, and if this were to be deemed a case at law, involving the legality of an assessment, I do not perceive how it would benefit the appellant in respect to the damages which he claims. For, if this be a case of that character, it was not competent for the Legislature to confer jurisdiction of it upon the County Court, inasmuch as the Constitution, in express terms, confers upon the District Courts original jurisdiction in that class of cases; and it is well settled that the jurisdiction in such cases is exclusive, unless there be something in the instrument evincing a contrary intent. If the appellant had succeeded in convincing us that this is a case at law, involving the legality of an assessment, we would have been constrained to hold that the Act conferring jurisdiction on the County Court was unconstitutional and void, and the whole machinery for enforcing the assessment would have fallen with the Act.

If the appellant and other property owners have suffered the grievous damage of which they complain, from reducing the grade of Second street, it has doubtless resulted from faulty legislation; but in the present condition of the case, their only resource would appear to be an appeal to the Legislature for the appropriate relief.

Appeal dismissed.