
    The People ex rel. Amelia E. Reynolds v. The Common Council of the City of Buffalo.
    
      (Superior Court of Buffalo, Trial Term,
    
    
      Filed October 1, 1892.)
    
    Statutes—Repeal—Does not affect vested eights.
    Proceedings under an act for the relief of the relator resulted in an award to her, which was confirmed by the court. A few days later the act was repealed. Held, that the award was not affected by such repeal, and that it was the duty of the common council to audit ana adjust it.
    Trial upon the return to an alternative writ of mandamus directing defendant to audit and adjust the claim of Amelia E. Reynolds, arising out of the extension, by defendant, of Elmwood avenue in the city of Buffalo. In 1885 the city instituted proceedings to appropriate certain lands for an extension of a street called “ Elmwood avenue.” The relator was at this time the owner of the westerly part of a brick structure consisting of two dwelling houses joined together, constituting a double bouse. The portion of the land taken by defendant embraced that part upon which stood the easterly house, less about three feet of land, leaving, when the eastern house was torn down, the strip aforementioned, owned by the owner of the latter house. Ho part of relator’s land was taken under the proceeding, but the effect of the demolition of the house taken was to seriously impair the value of relator’s property. The commissioners appointed to appraise the value of the land taken, and award damages in the proceeding, determined that they had no power to award compensation for the damages to the property of relator, for the reason that her property did not abut upon the proposed avenue, and that none of it was taken for the pi’oposed improvement. This determination seems to have been acquiesced in by all parties. In 1886 the common council, recognizing the hardship and injustice worked by the determination of the commissioners, adopted a resolution requesting the legislature of the state to pass an act authorizing defendant to make just compensation for the injury inflicted by its public improvement. The legislature took no action thereon until May, 1890, when it passed a law providing for the relief of relator, being chapter 393, Laws of 1890. Thereafter the relator applied for the appointment of commissioners, in pursuance of said act. The city appeared upon such application, and commissioners were appointed, who entered upon the performance of their duties, and proceeded to take testimony.
    At about the time the commissioners were ready to make their report, the city, through its attorney, applied for a stay of all proceedings under said act, alleging upon said application that prior to the passage of the act heretofore mentioned the relator had entered into a contract with the city whereby, in consideration of the conveyance to her of all the material contained in the house taken by the city, and to be torn down, and certain trees and-shrubbery, she released the city from all liability for damage growing out of said street proceeding; that said contract had been overlooked theretofore, and that as soon as discovered a bill had been drafted and introduced in the legislature, then in session, for a repeal of the statute above mentioned. The court before whom the argument was had made an order, granting the stay, unless relator entered into a stipulation, in writing, that the commissioners, in making their appraisal of damage, ascertain and allow, in reduction of the award, the value of the property conveyed, under the contract by the city, above the expense of taking down the buildings and removing the materials and property, and if such stipulation was made the motion was denied. Relator entered into such stipulation and thereupon the said contract was presented to the commissioners, and considered by them, and proof was offered in connection therewith by both parties thereto, and the whole matter considered by the commissioners, who subsequently made their report, awarding relator damages in the sum -of $5,500. Thereafter, and on February 10, 1891, a motion was made before the court for a confirmation of the report, the same was granted and the report was in all respects confirmed. On the 14th of February following, an appeal was duly taken from this -order to the general term of this court." On March 3, 1891, an act was permitted to become a law, by the non-action of the governor thereon, which act repealed the act heretofore mentioned. Ohapter 42, Laws of 1891. This act was printed in the record on appeal to the general term and was considered by the court. The order appealed from was affirmed by the general term, and, thereupon, relator made application to defendant for payment of the award, payment was refused, and, thereupon, she sued out this writ of mandamus. The return to the writ sets out substantially the facts above named, and denies that defendant unjustly neglects and refuses to audit and adjust the said claim for damage. A trial having been had, the foregoing facts are found.
    
      O. O. Cottle, for relator; William F. Machey, for def’t.
   Hatch, J.

Upon the motion for a stay of proceedings, Judge Beckwith, in an elaborate and able opinion, determined that it was within the power of the legislature to pass an act for the relief of the relator, and that the facts of this case fully warranted its intervention. He farther held that the fact of the execution by her of the contract set out in the return, based upon the motion for a stay, and proved before the commissioners, did not work an estoppel of her right to have her claim for damage considered under the act, although being highly proper for consideration by the commissioners in determining the amount of loss she had sustained. All of these matters appeared in the record on appeal to the general term, they were considered by the court and the court concurred in the opinion of Judge Beckwith, as the court at special term had previously considered itself bound by the decision and its logic, on the motion to confirm the report from which the appeal was taken. See Matter of the Application for the Appointment of Commissioners, etc., to Assess Damage for the Extension of Emlwood avenue, ante, 627.

It follows, therefore, that as to these questions the decision is res adjudícala.

The act provides that when the award shall be made by the commissioners of the damage sustained, and the report approved by the court, “ the same shall be raised by the city by assessment upon the property benefited by the opening of Elmwood avenue from North street to Butler street," and the amount of such assessment, when collected, shall be paid over to Amelia E. Beynolds.” This provision of the act is mandatory and imposes a plain duty. The court has said by its several judgments that the award of the commissioners is in accordance with law, and creates a liability against the city. All of the facts alleged in the return have been considered. This determination, therefore, is. not an idle ceremony, but creates a mandate to be obeyed, and when defendant refused to obey it, it unjustly refused, and consequently must be compelled to act by the writ of the court, unless excused by other matters. It is, however, said that when the motion was argued before Judge Beckwith, and when the court confirmed the report, of the commissioners, the repealing statute had not been passed. This is true, but the act was before the general term, although objected to by the relator. As the general term expressed no written opinion, I have examined this question.

The effect of confirmation of the commissioners’ report was to determine that the relator was entitled to payment of the sum awarded, which the city was to collect and pay over; what before existed as a proceeding now ripened into a judgment, to be paid in the manner specified by the statute. Mayer v. Mayor, etc., 101 N. Y., 288; Reinhardt v. City of Buffalo, 39 St. Rep., 305.

It cannot, therefore, be attacked except in a direct proceeding, unless it be void. Matter of Ferris, 10 St. Rep., 483.

The latter is claimed upon the ground that there is now no law in existence upon which it can rest.

It was said by Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87-135:

“ If an act be done under a law, a succeeding legislature cannot undo it. The past cannot be recalled by the most absolute power. * * * When, then, a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights.” Cited with approval in People v. O'Brien, 111 N. Y., 48; 19 St. Rep., 173.

In Butler v. Palmer, 1 Hill, 324, the following language from Puffendorf is quoted with approval: “ The law itself may be disannulled by the author; but the right acquired by virtue of that law whilst in force must still remain." Id., 335.

Many other authorities might be cited to the same effect. It remains, therefore, to see whether the steps taken have vested in the relator a legal right

In Cornell v. Donovan, 14 Daly, 296; 14 St. Rep., 687, it is said that a judgment is a contract of the highest nature.

In Mahaney v. Penman, 4 Duer, 606, it was declared to be a contract within the meaning of that clause of the federal constitution which declares that “ Ho state shall pass any law impairing the obligation of contracts." A like rule was announced in Mather v Bush, 16 Johns., 233; Roosevelt v. Cebra, 17 id., 108.

Any law which impairs the obligation of a contract by preventing its enforcement or which materially abridges the remedy for enforcing it which existed at the time, without supplying an adequate remedy in substitution therefor, infringes the constitution. McGahey v. Virginia, 135 U. S., 662.

It matters not whether the judgment be treated either absolutely or technically as a contract, it is yet settled beyond dispute that the rights acquired thereunder are vested rights, and have been so held in proceedings of this character. Matter of Rhinebeck & Connecticut R. R. Co., 67 N. Y., 242; People ex rel. Gas Light Co. v. Common Council, 78 N. Y., 56.

In the latter case Church, Oh. J., said: “We are of opinion that the award in this case became at the expiration of ten days from the filing of the report of the commissioners final and conclusive upon both parties, and that the relator then had a legal right to compel the performance of the duties enjoined by statute upon the common council for the assessment and collection of the amount awarded. It follows that the common council could not by resolution or otherwise deprive the relator of that right, and that the resolution of rescission as to him was unauthorized and void." Id., 60, 61.

In Gilman v. Tucker, 128 N. Y., 204; 40 St. Rep.,.71, Ruger, Ch. J., said: “We must bear in mind that a judgment has here been rendered, and the rights flowing from it have passed beyond the legislative power, either directly or indirectly, to reach or destroy. After adjudication the fruits of the judgment become rights of property. These rights became vested by the action of the court, and were thereby placed beyond the reach of legislative power to affect”

The authorities cited by counsel for the city relate to actions-pending, or were to recover penalties, in which case the authorities are uniform in holding that a repeal of the statute wipes out the penalty, and even extends to a judgment obtained, which, after repeal, will be stayed in its execution. This distinction was noted in Van Dyck v. McQuade, 86 N. Y., 49.

It follows, from these authorities that the relator’s award remains unaffected by the repeal of the statute, and that it is the duty of the defendant to audit and adjust it. It is a mistaken view of the law upon which their refusal is based. Let a peremptory writ issue as prayed for, with costs to the relator.  