McDougall v. State

The claim of the appellant seems to have been a meritorious one in its origin, and, except for his inexplicable laches, would, from a consideration of its circumstances, naturally induce a court to afford relief, if it was in their power to grant.

We are, however, of the opinion, from a careful examination of the Constitution and statutes, that relief cannot legally be given to him. The claim was, in brief, for damages for

By chapter 231 of the Laws of 1870, passed April twenty-seventh of that year, the canal appraisers were authorized'to hear and determine claims of this character arising within two years. before the presentation of the claim, and award such damages, subject to an appeal to the Canal Board, as should be just and equitable, in cases where the evidence would create a liability, as against an individual or corporation. In the case of claims arising more than one year previous to the passage of the act, the claimant was required to present his claim within one year thereafter. The jurisdiction of the appraisers over such claims continued until 1883, when the offices of canal appraisers and of the state board of audit were abolished by section 12, chapter 206 of the laws of that year, and the Board of Claims was established and was given authority to “ hear, audit and determine all private claims against the state, which shall have accrued within two years prior to the time when such claim is filed, where such claim shall not have been determined on the 1st day of June, 1883, nor be barred by any existing statute.” It was further provided that “ all claims against the state then pending before the canal appraisers or before the state board of audit shall be and hereby are transferred to the Board of Claims.”

The state board of audit was created by chapter 444 of the Laws of 1876, but this claim was never filed before that board. The claim in question was, however, filed before the canal appraisers on June 11, 1870, and came to a hearing

Nothing further was done by the claimant in the prosecution of the claim until the year 1886, when he procured the passage of chapter 510 of the laws of that year, by which the Board of Claims was given “ jurisdiction to rehear, audit and determine the claim of John A. McDougall against the state in like manner as though said claim had been filed within the time limited by section 7 of chapter 205 of the Laws of 1883, and the said claim is hereby exempted from the limitation contained in said section.” This act did not attempt to create any new limitation upon such claim, or abolish any old one except the two years hmitation contained in the act of 1883. It did not purport to amend the statute of 1870, which alone creates a liability for such injuries on the part of the state, or to repeal the provision therein which restricts such liability to damages occurring within two years previous to the presentation of the claim. The plain meaning and effect of the act was, therefore, merely to confer authority upon the Board of Claims to rehear the claim of McDougall, notwithstanding the limitation in the act organizing the board, subject to the application thereto of such other existing statutory or consti

It was assumed on the argument that the period of statutory limitation for actions of this character as between citizens of the state, would be six years. A plain enumeration of the dates of the several proceedings taken by the claimant after his claim arose, shows that more than six years elapsed between the time when/no prosecution was pending against the state, and the passage of the act of 1886, and that such a claim as between citizens of the state would then have been effectually barred. Giving the most favorable effect for the claimant to the proceedings taken by him before the canal appraisers and the Oanal Board, and holding that he was at liberty, as he undoubtedly was, to prosecute his claim against the state after the final award made by the Oanal Board in 1877, nine years elapsed before he took any steps in that direction.

It is urged by the claimant that this claim, was exempted from the operation of the constitutional amendment of 1874 by the provision therein that it should not “ extend to any claims duly presented within the time allowed by law and prosecuted with due diligence from the time of such presentment.” It is not claimed even by the appellant that the claim was prosecuted with due diligence after its presentation, and if such claim should be made it would be nugatory, as there is no support for it in the evidence. But we are further of the opinion that having withdrawn his claim in 1873 from the board of appraisers the statute of limitations then began to run agamst it, and that the subsequent ineffectual proceedings therein did not revive the claim or suspend the running of the statute. They would certainly have constituted no bar to an action by one citizen agamst another, and by the express language of the Constitution would, therefore, be inoperative as a bar in favor of the state. (Code of Civil Pro., § 1209; Wheeler v. Ruckman, 51 N. Y. 391 .)

It is also argued by the claimant, in analogy to the practice of courts of law in opening judgments, and authorizing further proceedmgs in the action, that the act of 1886 should be construed as reopening the hearing before the Canal Board and authorizing a new hearing before the Board of Claims which should be in the nature of a continuance of the original claim. But it would seem to be a great stretch of authority to give such a construction to the act, and would require us to hold that the prosecution has been always pending after its presentation, although there has been a final determination upon the claim which has never been set aside, opened or disturbed by the tribunal rendering it. There is but little analogy between the proceedings and practice of courts of law and proceedings

We are further of the opinion if the act intended to authorize, directly or indirectly, the audit or allowance of a claim against which the statute had once run, that it exceeded the constitutional power of the legislature to enact it. It would seem to be the obvious intention of this constitutional' amendment to place in the fundamental law of the land an effectual bar against the prosecution of any claim against the state unless it was preferred and presented within the periods of limitation, applicable to claims between citizens. At the time of its adoption there was already a provision of the Constitution (§ 19, art. 3) which forbid the legislature from auditing or allowing any private claim or account against the state, and the amendment was evidently intended to reach another class of cases and prohibited not only the legislature, but the Canal Board, canal appraisers or any person or persons acting in behalf of the state from auditing, allowing or paying any claim, which, as between citizens of the state, would be barred by lapse of time. If by this act the legislature intended to confer upon the Board of Claims power to hear and audit or allow a claim which was already barred by existing statutes, it would be a clear and palpable violation of the constitutional provision, but well settled rules of construction forbid us from giving such effect to the act of 1886.

All concur.

Award affirmed.