
    The People ex rel. Amelia E. Reynolds, Resp’t, v. The Common Council of the City of Buffalo, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 5, 1893.)
    
    1. Res adjtjdicata.
    Relator’s claim for compensation for injury to her property in the opening of a street was denied and she thereafter released such claim to the city for a valuable consideration. Thereafter the legislature passed an act authorizing the common council to audit and allow her claim, to be appraised by commissioners. An award was made, which was confirmed by the court, and an appeal was taken from the order of confirmation to the general term, where it was affirmed, and no further appeal taken, llel'd, that the judgment, in effect, affirmed the power of the legislature to pass-the law and held that the release was not an obstacle to the enforcement of the claim, and as long as such judgment remained unreversed, its validity and binding effect could not be questioned collaterally or in a proceeding, for its collection or enforcement.
    
      2. Statutes — Construction.
    Permissive words in statutes conferring power or authority upon public officers or bodies will be held to be mandatory where the act authorized to-be done concerns the public interest or the rights of individuals.
    8. Same—Repeal op remedial statute.
    An award made by commissioners under a remedial statute, which is confirmed by the court, has all the force and effect of a judgment creating an obligation on the part of the city to pay, and in this sense is a contract of the highest nature, which cannot be impaired by the repeal of the statute.
    Appeal from order of the superior court of Buffalo, general term, affirming order granting writ of peremptory mandamus.
    
    
      W. F. Mackey, for app’lt; O. O. Cottle, for resp't.
    
      
      Affirming 49 St. Rep., 576.
    
   O’Brien, J.

The order appealed from awarded to the relator a peremptory writ of mandamus, directed to the common council of the city of Buffalo, commanding them forthwith to audit and adjust the damages sustained by the relator, which had been appraised at $5,500, in proceedings for opening and regulating a street, and to cause that sum to be raised by a local assessment upon the property benefited by the improvement. The following facts appeared upon the application : In the year 1885 the city of Buffalo instituted proceedings under its charter for the extension of Elmwood avenue and took property for that purpose, the same having been appraised by commissioners duly appointed, and payment therefor was made by local assessment. The. relator appeared before the commissioners and offered to-prove that her property would be damaged by the removal of some buildings adjoining or near her premises. The commissioners refused to allow the proof for the reason, apparently, that the damages claimed were incidental and consequential, and that as none of her lands were actually taken there was no power to make an award in her favor. The report of the commissioners was confirmed by the common council May 11, 1886, and the assessment was directed. The relator appeared before the common council and by petition setting forth her claim asked that compensation be made to her for the damage which she alleged would result to her property. Her petition was heard but not granted, and the common council passed a resolution, which was approved by the mayor, requesting the legislature to authorize by law the payment of a just compensation to her. The legislature did not then act upon the resolution. On the 28th of July, 1887, the city and the relator entered into an agreement in writing whereby the relator, in consideration of the transfer to her by the city of certain building and furnishing material, released her claim and agreed to waive all objections on her part to the validity of the assessment made against her property to pay for the improvement.

The matter seems to have rested on this arrangement till the passage by the legislature of chapter 89S of the Laws of 1890, which authorized the common council to audit and allow the claim when appraised, and to raise the amount by local assessment and pay the same to her. The act provided that the damages should be appraised by three commissioners to be appointed by the superior court of Buffalo, upon notice to the city, and their report approved by the court, before presenting it to the common council for audit. The commissioners were appointed, heard the claim, and made an award for damages. On the 18th of February, 1891, the court, by its order, duly entered, confirmed the report. On the Sd of March, 1891, the legislature passed chapter 42 of the laws of that year, whereby the act of 1890, authorizing the audit and payment of the claim, was repealed. Moth withstanding this repeal the relator presented the claim to the common council for audit, and upon their refusal to allow it or to take any proceedings to provide for its payment by assessment, applied to the court for the writ of mandamus. After the confirmation of the report of the commissioners appointed to-appraise the damages under 'the act of 1890, by the special term of the superior court, the city appealed from the order to the general term, where the order was affirmed and no appeal to this court from that order was taken. The city now claims that the act of 1890, which authorized the audit of the relator’s claims, was unconstitutional because it impaired the obligations of the contract between the city and the relator, whereby she agreed to and did release all of her claims, and the relator insists that the repealing act of 1891 is void as to her, for the reason that the legislature had no power to affect the right which became vested by the confirmation of the report. As to the contention in behalf of the city, it is not necessary to inquire with respect to the power of the legislature to authorize claims founded in justice and equity to be paid by local assessment or otherwise, for the reason that it is not now in any position to question the award. It was made by commissioners appointed under a statute duly enacted. It was confirmed by the court at special term and that order affirmed at general term.

It has thus been adjudged that the relator has a valid claim, and this judgment involves the effect of the release as well as the power of the legislature to pass the statute. The questions which the city now seeks to raise against the award have all been passed upon adversely to its present contention in another proceeding between the same parties, and so long as that judgment remains -of record, unreversed and not set aside, its validity and binding effect upon all parties cannot be questioned collaterally, or in a proceeding for its collection or enforcement. The order of the superior court could not have been made without Affirming the power of the legislature to pass the law and, in effect, holding that the release was no obstacle to the enforcement of the relator’s claim. The city has acquiesced in the adjudication and in this proceeding is concluded. The right of the relator to the writ of mandamus for the enforcement of the award and the effect of the repealing act remains to be considered. It is contended that the act of 1890 simply conferred power upon the common council to audit the claim, leaving it to their discretion whether it should be exercised or not. The words are, that the common council “is authorized to audit and adjust the amount of damages ” and when appraised “ the same shall be raised * * * and the amount * * * paid over,” etc. It would be a liberal construction of this language in favor of the city to say that it was simply permissive, but assuming that it was, the rights of the parties must be governed by the rule of law that permissive words used in statutes conferring power or authority upon public officers or bodies will be held to be mandatory where the act authorized to be done concerns the public interest or the rights of individuals. People ex rel., etc., v. Suprs. of Livingston Co., 68 N. Y., 114; People ex rel., etc., v. Supervisors Otsego Co., 51 id., 401; People v. Common Council of Syracuse, 78 id., 56; Mayor, etc., v. Furze, 3 Hill, 612 ; Lower v. U. S., 91 U. S., 536 ; Barnes v. Dist. Col., id., 540.

We have seen that the report of the commissioners under the statute, awarding damages to the relator in the sum of $5,500, confirmed by an order of the court, had all the force and effect of a judgment creating an obligation on the part of the city to pay. Woodhull v. Little, 102 N. Y., 165; 1 St. Rep., 342; People v. C. C. of Syracuse, supra. It vested in the relator, when the order of confirmation was entered, an absolute right to receive the amount. It created an obligation on the part of the city to pay, and in this sense was a contract of the highest nature. Cornell v. Donovan, 14 Daly, 295; 14 St. Rep., 687.

All contract obligations are protected from impairment by state legislation by the provisions of the federal constitution. The obligation of a contract is impaired in the constitutional sense by any law which prevents its enfoVcement. or which materially abridges the remedy for enforcing it which existed when it was contracted, and does not supply an alternative remedy equally adequate and efficacious. McGahey v. Virginia, 135 U. S., 662. No property right acquired under a state statute can be divested by repeal. People v. O'Brien, 111 N. Y., 1; 19 St. Rep., 173.

The remedy subsisting in a state when and where an obligation is made or created and is to be performed is a part of the obligation, and any subsequent law of the state which so affects that remedy as substantially to impair and lessen the value of the contract is forbidden by the constitution, and is, therefore, void. Edwards v. Kearzey, 96 U. S., 595.

• This provision of the constitution cannot be evaded by indirect methods. The obligation of a municipal corporation cannot be impaired by restraining its power of taxation to the point of disabling it from performance, or by a repeal of the law under which the obligation was to be enforced, or by enacting statutes of limitation that do not allow a reasonable time for bringing the action, any more than by open and avowed assaults upon the contract itself. In this case the repealing act could have no other purpose than to prevent the audit and payment of the relator’s claim, but, whatever the motive which prompted the legislation, it is clearly inoperative and void as to the award made by the commissioners and confirmed by the court.

The order should, therefore, be affirmed, with costs.

All concur, except Gray, J., not voting.  