State v. Halsted

*643 The opinion of the court was delivered by Dixon, J.

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 *644 consists with the taking of the land, the public agent should have an election to take the land or not, after the price is settled. In the case cited, the confirmation of the report is considered as terminating the right of choice; but the fact that the statute now under review establishes no such period, does not prevent the application of the principle. Perhaps, under this act, the limit may be fixed by the'expiration of the time for an appeal, or by the judgment, if appeal be made; but, as the legislature has not expressly taken away the option, the right must be conceded, to some reasonable extent. This court is not alone in recognition of this principle ; Judge Dillon deduces it as the general rule applied by many tribunals. Dillon on Mun. Corp., § 473.

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 *645 eminent domain, if it still subsisted under the statute, must be wielded anew, through the forms which the statute prescribed, and not by mere resolution. Hence these resolves of March 15th created no duty on the part of the owners, and no right on the part of the county, either of themselves or by force of the legislative act. Whatever efficacy is to be ascribed to them must spring from their expressing the consent of the board to a purchase of the lands by contract. Viewed in this aspect, I think that, even if the board had power so. to purchase, yet as, on the face of the resolutions, it is apparent that they were passed for the purpose, not of expressing a present consent to a contract, but of carrying out what were erroneously believed to be subsisting legal obligations, this, court should not enforce by mandamus the performance of a contract so made by a public corporation ; the private party should be left to his remedy by action for damages. But, in my judgment, the board had not the power to make the contract. The act of 1874 gives power to “ take by condemnation ” only. It confers no power to contract for the purchase and the latter power is not included in the former—they are quite dissimilar. The legislature, in this act, did not indicate its willingness to enable the board to prescribe the terms on which the acquisition of the lands should be made, but. required those terms to be fixed by another tribunal, giving to the board simply a discretion to accept or reject. The power to issue bonds, granted by this act, must likewise be confined to the purpose for which it was conferred—the purpose of paying for lands so taken by condemnation. Hence-this statute does not legalize the purchase or the issue of bonds for such purchase.- If we look beyond this statute, we are confronted by the act of February 7th, 1876, (Pamph. Laws, p. 16,) which prohibits the disbursement of public moneys and the incurring of obligations, by boards of chosen freeholders, in excess of the appropriations provided. From the resolutions before us, it is to be inferred that no appropriation existed adequate to meet the price named, since the amount was to be raised by the issuance of twenty-year bonds,, *646 and the board had no legal authority to make an appropriation to meet a debt maturing at so distant a day. State v. Halsted, ante p. 402.

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.