
    Town of Wirt, Pl’ff, v. Board of Supervisors of Allegany County, Def’t. Town of Belfast, Pl’ff, v. Same, Def’t. Town of Friendship., Pl'flf, v. Same, Def’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    
      1. Statutes—Repeal .
    The omission of a provision of an act ‘ amended unconditionally repeals such provision.
    2. Same.
    The right of action is a matter of remedy merely, and any remedy given by a statute may be repealed by a statute.
    3. Same.
    A right given by the legislature through a statute can be divested by the legislature at will.
    4. Bridges—Liability of county to towns.
    Where the claims against a county under section 130, chapter 568 of 1890, are rejected by the county supervisors, and an agreed submission of facts for a test case is not filed until after the provision of section 130 has been unconditionally repealed, such claims are not perfected within section 31, chapter 677 of 1892.
    5. Same—Proceedings before supervisors.
    Where the supervisor of the town participates in the proceedings of the board of supervisors, postponing, without prejudice, the consideration of such town’s claims against the county, and adopting on the same day a resolution asking the legislature to repeal the statute under which the claim arose, such town will be presumed to have had notice of the proceedings.
    6. Statutes—Repeal—Revival.
    The retention in section 130, chapter 568 of 1890, of the provisions for the allowance of claims did not save those claims arising under the portion of the act omitted by chapter 416 of 1895, which were not perfected before its repeal.
    Controversy submitted without action on an agreed statement of facts, under section 1279 of the Code.
    
      S. M. Norton, for pl’ffs; Charles H. Brown, for def’t.
   Ward, J.

The towns of Wirt, Belfast and Friendship, in the county of Allegany, in December, 1894, respectively presented to the board of supervisors of Allegany county a verified petition through the supervisors of their respective towns setting forth that in several years mentioned the expense for the construction, care maintenance, and repair of its bridges Had exceeded one-sixth of one.per centum on the. assessed valuation of the taxable property of the town for that year, and claiming that the county should pay not less than one-third part of such excess. These claims were under section 130 of chapter 568 of the Laws of 1890, known as the “Highway Law,” which was as follows : ■

“The towns of this state, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its public free bridges constructed over streams or other waters within their bounds, and their just and equitable share of s.uch expenses when so constructed over streams or other waters upon their boundaries, except between the counties of Westchester and New York; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall - be jointly liable to pay such expenses, except that when the whole expense in any one town, for any one year, for the construction, care, maintenance, preservation and repair of its bridges, shall exceed one-sixth of one per centum of the assessed valuation of the taxable property of the town for that year, the county' in which such town is located shall pay not less than one-third part of such excess.Bach of the counties of this state shall also be liable to pay for the construction, care, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary line, not less than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair.”

The petition of the town of Wirt simply set forth that from the 1st day of March, 1894, to the 8th day of November in that year, the expense of the town in the construction, repair, and maintenance of its bridges was $2,193.20, and exceeded one-sixth of one per centum of the assessed valuation of the town for that year in the sum of $1,365.89, and prayed that one-third of such excess should be spread by the board of supervisors of the county upon the county. The bridge or bridges upon which this expenditure was made were not described in the petition, nor was the expense incurred given in items, as required by section 132 of the act quoted, which section is as follows:

“ The commissioners of highways of every town in which the whole or any part of any free bridge may be, shall make and deliver to the supervisor of the town, on or before the first day of November in each year, a written statement, verified by one of them, containing a description of such bridge, the whole expense in1 items'iucurred by the town during the year preceding for its construction or repair.”

The petition of the town of Friendship set forth that between the 1st of-March and November, 1892, the town expended in building an iron bridge at the foot of Belmont Hill, known as “Dayton Bridge,” $4,002.46 ; repairing Pierce bridge, $5.00; repairing. bridge at Nile, $40 ; making an excess of expenses above the one-sixtii of one per centum of the assessed valuation of the town for the year 1892 in .the sum of $2,702.82. No further items were given of the expenses or description of the bridges.

The town of Belfast presented four separate claims for construction and repairs of bridges within that town for the years 1891, 1892, 1893, and 1894. In these claims the bridges upon which the expenditures properly made out in items, as required by the statute. The éxcess of the one-fourth of one per centum* of the assessed valuation of the town for 1891 was claimed to be $2,-277.88 ; in 1892 such excess was claimed to be $885.10 ; in 1893, $1,132.44; apd in 1894 such excess was $3,076.43. All of these claims were presented after the 1st day of November, 1894.

Upon the presentation of these claims the chairman of the board of supervisors, as the case disclosed, was duly authorized by the board by resolution to execute the statement of facts contained in the submission. The submission recites that a controversy existed between the plaintiffs and defendant pursuant to section 1279 of the Code of Civil Procedure, and contained a statement of the facts above briefly referred to, and was verified pursuant to the statute on the 11th day of April, 1895. On the 30th day of April, 1895, the submission was filed in the Alleghany county clerk’s office. The counsel produced upon the argument a paper which they treated as a part of the case on submission, being in the form of a stipulation, which was as follows :

“The Town of Writ, Belfast, and Friendship vs. The Board of Supervisors of Alleghany County.

“On December 12, 1894,. the following resolutions were adopted by the board of supervisors of Alleghany county : “Whereas, certain claims for the repair, maintenance,, and building of bridges in some of the towns of Alleghany county have been, presented or may be presented, such claims arising under the Laws of 1890, § 130, chap. 568 ; and whereas, it is thought advisable on the part of the board of supervisors, as such, not to audit any such claim or claims for such purposes prior to 1894, and, there being no decision of the courts on such claims prior to said date, a test case must be had: Therefore, resolved, that the chairman of the board of supervisors be authorized to enter into an agreement with a representative of the several towns, and submit a test case, and that the chairman be authorized to employ an attorney. Resolved, that the action of the board of supervisors on all claims presented by towns for money expended for bridge work be postponed until the annual session in 1895, and that no claim heretofore presented shall be prejudiced, and no advantage shall be taken or objection made by the supervisors of Alleghany county to any such claims by reason of such postponement, and the said claims shall be taken up and acted upon the session in 1895 with the same effect as though disposed of at the annual session of 1894.’ On the evening of the same day, and after the passage of the above resolution, the following resolutions were adopted: ‘Resolved, that the supervisor of Alleghany county do respectfully ask our senator from this district and member of assembly from this county to use their influence to secure the repeal of the Laws of 1890, chap. 568, § 130, in so far as it may create a liability on the part ofá county to reimburse any town therein for the building, maintaining, constructing, or repairing of public bridges within the bounds of said town. Resolved, that in case there is a mandamus served upon the board relative to the claims presented against the county for building bridges in certain of the towns, that the chairman of the board be hereby empowered to employ counsel for the board to defend the county against any and all of such claims in such manner and to such an extent as he may deem for the best interests of the county. ’

“It is hereby stipulated that the following statement and resolutions be added to the agreed case hereinbefore made herein, and filed m Alleghany county clerk’s office.

“Dated August 15,1895.”

This paper was filed in the Alleghany county clerk’s office August 15, 1895. It is doubtful whether this last paper should be considered by us at all, as section 1281 of the Code of Civil Procedure provides that, the action .instituted by the filing of the submission “ must be .tried by the court upon the case alone; and the case, submission, affidavit, and a certified copy of the judgment, and of any order or paper necessarily affecting the judgment constitutes the judgment roll.” But perhaps it may be treated as an additional statement, under the latter clause of section 1289. On the 26th day of April, 1895,—four days prior to the filing of the submission in the clerk’s office,—an amendment to section 130, above quoted, took effect, being chapter 416 of the Laws of 1895,, and entitled “An act to amend the highway law relating to liability of towns for construction and care of public bridges,” and provided :

“Sec. 130 of chap. 19 of the general law known as the ‘Highway Law’ is hereby amended so as to read as follows: Sec. 130. The towns of this state except as otherwise herein provided shall, be liable to pay the expenses for the construction and repair of its public free bridgtes constructed over streams or other waters within their bounds, and their just and equitable share of such expenses when so constructed over streams or other waters upon their boundaries, except between the counties of Westchester and Mew York; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties such towns shall be jointly liable to pay such expenses. Bach of the counties of this state shall also be liable to pay for the construction, care, maintenance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its boundary lines, not less than one-sixth part of the expense of such construction, care, maintenance, preservation and repair. ”

Thus eliminating entirely from the statute the provision upon which the claims of the plaintiffs in this action were predicated, so that at the time of the filing of this submission the law upon which the claims of the plaintiffs were founded had no existence, but' was repealed. In re Prime's Estate, 136 N. Y. 335 ; 49 St. Rep. 658 ; People v. Wilmerding, 136 N. Y. 363 ; 49 St. Rep. 651; McDonald Railroad Co., 63 St. Rep. 803; 32 N. Y. Supp. 884.

The defendant contends, first, that the claim of the town of Wirt should be rejected because it is not in conformity with the statute in not describing the bridge, and in not setting forth the items of expenditure. The same objections are made to the claim of the town of Friendship so far as the items not being set forth, and, further, that it was not presented in time. As to all the claims of' the town of Belfast the defendant objects that they were not presented in time, with some other objections, which will not be considered. And, finally, the defendent contends that, the law upon which all these claims were founded having been repeated prior to the commencement of this action, none of them are valid, or can be enforced and asserts the principle that a right of action is a matter of remedy merely, and arty remedy given by a statute may be repealed by a statute. This proposition seems to be well supported by authority. Butler v. Palmer, 1 Hill 324; Church v. Rhodes, 6 How. Prac. 281; Washburn v. Franklin, 35 Barb. 600; Curtis v. Leavitt, 15 N. Y. 153; McCotter v. Hooker, 8 id. 506; Hartung v. People, 22 id. 103; Smith v. People, 47 id. 338; Smith v. Banker, 3 How. Prac. 142; Manufacturing Co. v. Beecher, 25 Hun, 49; Board of Health v. City of Rochester, 1 N. Y. Supp. 726.

Prior to the act of 1890, the burden of supporting the bridges within the towns was cast • upon the town alone. The counties could not be compelled fo contribute towards such support. The remedy, therefore, given the towns in 1890 was purely statutory, and the principle is a familiar one that a right given by the legislature through a statute can be divided by the legislature at will. Sometimes the repeal is conditional, reserving rights of action that had accrued under the repealed statute. There was no saving clause in this case. The repeal was unconditional. Ho right by contract existed in these towns against the county. The inchoate right under the statute to contribution from the county to the expenses.incurred about the bridges had not ripened into a perfect claim. The claim had simply been presented, and upon being disputed, papers were executed looking towards a submission of the controversy to the court. Ho action had been commenced. By section 1280 of the Code of Civil Procedure it is provided :

■í‘ The case, submission, and affidavit must be filed in the office of the clerk of the court, to which the submission is made. * * * The filing is a presentation of the submission; and thenceforth the controversy becomes an action.”

But the learned counsel for the plaintiffs cites sectiqn 31 of the statutory construction act, being chapter 677 of the Laws of 1892, which provides that:

“ The repeal of the statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such repeal takes effect, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such repeal had not been, effected; and all actions and proceedings, civil or criminal, commenced under or by virtue of any provision of a statute so repealed, and pending immediately prior to the taking effect of such repeal, may be prosecuted and defended to final effect in the same manner as they might be if such provisions were not' so repealed.”

The precise effect that is to be given to this statute seems not to have been passed upon to. any extent by the courts. It seems to be intended as a legislative panacea for many judicial ills. In the section quoted it not only assumes to voice the intent of all subsequent legislatures in repealing statutes, but to assume the function of the court in construing them. Our.attention has not been called to a similar statute in this state except chapter 21 of the Laws of 1828, which repeals numerous statutes, and adds (section 6):

“No offense committed and no penalty or forfeiture incurred; previous to the time when any statutory provision shall be repealed shall be affected by such repeal.”

This statute was passed upon in Mongeon v. People, 55 N. Y. 613, 618, 619, where the court confines the effect of this saving •clause to the statutes repealed by said5aot, and the court (Allen, J.) significantly adds:

“ The legislature could not declare in advance the intent of subsequent legislatures or the effect of subsequent legislation upon •existing statutes.”

There is appended to the statutory construction law a statement of laws and statutes repealed thereby, and whether section 31 above quoted, under the authority of Mongeon v. People, should not be limited to the statutes repealed by the statutory construction lawj—query.

The legislature may properly, as it often does, define the meaning of the terms used, and the purposes and objects of particular statutes that are in force, to take effect- contemporaneously with the statute of definitions; but it is difficult to see how the legislature of one year can so far comprehend the nature, extent, and purposes of statutes to be thereafter enacted, and by other legislatures, as to prescribe a rule iu advance for their construction -and operation. But, assuming that the saving clause of the statutory construction act is to .be 'regarded as attached to and made a part of the repealing act (chapter' 415, Laws 1895), does it aid the plaintiffs? No action had been commenced when the repeal took effect, or any légal proceedings, in the proper sense; nor had any vested rights accrued or been acquired, or act done, further than as we have stated, to present the claims to the board of supervisors, and have them rejected. If it be said that the towns may have incurred increased expenditures in regard to their bridges after the passage of the original act, and before it was repealed, upon the faith thereof, and therefore the repeal impaired an act done or right accruing, the answer is that no such presumption can be indulged- in, because it will not be assumed that the town authorities expended any more money upon their bridges than was actually necessary, or what they would have been compelled to have done at all events. In-any view of the case, therefore, the repeal of this statute is fatal to the plaintiffs’ case.

But the learned counsel for the plaintiffs further insists that the defendant is not in- a position to assert the defense of the repeal of this statute ; that it is estopped from so doing, or has waived the right to insist upon such a defense, by reason of the resolution of the defendant, above quoted, postponing the consideration of the plaintiffs’ claims until the annual session of 1895; and that such postponement should not prejudice the claims, and that no advantage should be taken or objection made by the defendant by -reason of such postponement. Assuming that the bear’d could waive the effect of a statutory repeal,—which is exceedingly -doubtful,—the most that can be said of this resolution in connection with the subsequent' resolutions is that it waived the objection as to time because the statute required that the claims should be presented and acted upon the same year that they accrued, and the resolution postponed the matter a year. But the v/cry same day of the passage of this resolution the board (including the supervisors) from the plaintiff towns) passed a further resolution, asking the legislature to repeal the very act under which the plaintiffs claim, and providing, further, that in case of any attempt by way of mandamus to compel the board to pay the claims in question, the chairman of the board was empowered to employ counsel to defend the county against such proceedings. Of this resolution the' plaintiffs had notice through their supervisors, who participated in the proceedings, as we assume so that it is difficult to see how this contention can prevail, or how the defendant can be charged with any bad faith in procuring the repeal of the statute under which the plaintiffs claim.

It is also urged by the plaintiffs’ counsel that the omission of the legislature to repeal sections 132 and 133 of chapter 568 of the Laws of 1890, which point out the mode of procedure in procuring the allowance of claims, and the imposition by the supervisor of the tax therefor, indicated an intention to leave the supervisors free to act in all cases which had previously accrued; thus amounting to a saving clause in the repeal. It will be seen that these sections were necessarily retained to carry out the statute as it existed after the repeal in 1895, because then, in certain cases, the counties were liable to pay not less than one-sixth part of the expense for the construction, care, and maintenance and preservation of public bridges lawfully constructed over streams forming its boundary lines, which would, of course, be the boundary lines of towns as well. When a statute is revised, and parts of the former statute omitted from the statute revising it, the part so omitted cannot be revived by construction. In re Southworth, 5 Hun, 55.

These conclusions render it unnecessary to consider the other objections raised by the defendant to the enforcement of these claims.

Judgment should be rendered upon the several claims enumerated in the submission in favor of the defendant, but without costs to either party

All concur.  