Hill v. Town of Sunderland

• Decision Date: 01 February 1831
• Parties: ABNER HILL et al. appellees v. THE TOWN OF SUNDERLAND appellants
• Court: Vermont Supreme Court

3 Vt. 507

ABNER HILL et al. appellees v. THE TOWN OF SUNDERLAND appellants

Supreme Court of Vermont, Bennington

February, 1831

[Syllabus Material] [Syllabus Material]

The appellees were petitioners to the road commissioners for the laying out of a public highway through the town of Sunderland. The highway was laid out, and cost taxed in favor of the petitioners against the town of Sunderland; and the survey of the road was regularly recorded. All this was done as early as September, 1828. On the thirtieth of October 1828, the legislature passed an act, allowing an appeal, in certain cases, from the decisions of the road commissioners; and one section of the act allowed an appeal from decisions already made, if applied for within ninety days from the passing of the act. Under this section, the select men of Sunderland entered their appeal to the county court. The counsel for the appellees filed their written motion, praying the county court to dismiss the appeal, and take no further cognizance of it. The county court overruled this motion, and appointed a committee under the directions of said new act, and according to the request of said appellants. The appellees filed exceptions to this decision, which were allowed, and the question directed to pass to the Supreme Court for a rehearing.

The counsel for the appellees.--1. By the act of 1827, the commissioners are required to make personal inspection of the subject matter of the petition, and " to adjudicate and make order thereon, which shall be final and conclusive; and to tax costs for the successful party," and issue execution therefor. The adjudication and decision of the commissioners laying the road, their assessment of damages, their taxation of cost, indeed, all their acts, under this statute, were final and conclusive. By these proceedings of the commissioners, the several land owners were immediately vested with a right to recover their damages, the petitioners freed from a liability for costs, and vested with a right to the costs taxed, and Sunderland charged with the payment of these damages and cost. By the law then in force these rights and liabilities were conclusively fixed.

2. Any act, subsequently passed, authorizing these rights to be divested, is retrospective in its operation and void.--Bates v. Kimball, 2 D. Chipman's Rep. 77; 7 Johns. Rep. 502; 2 Aikens' Rep. 284. The effect now attempted to be given to the act of 1828, we claim, comes within this principle. And, in this respect, it is analogous to acts granting appeals and new trials in special cases, where by the general law, no such rights existed.--See 1 N.H. 199.

3. But it has been said, that, though the legislature could not, by a subsequent act, divest individuals of rights acquired under the act of 1827, yet, so far as the interest of the public is concerned in the right of way, and in the continuance of this easement, effect may be given to the act of 1828, in this case. Grant that the easement is at all times under the controul of the public, and may at any time be discontinued at their option; still it is perfectly apparent, that a bare discontinuance of the easement, was not the object of the act of 1828; and, as we think, cannot be its effect. This could have been done, by calling out the commissioners in the ordinary course of proceedings, for that purpose; or, perhaps, by an act of the legislature, going only to a discontinuance of the public highway. The object of calling out the committee under this appeal is, to revise the adjudication and decision of the commissioners, and to affirm or reverse it as they shall think the public good requires. The committee, on appeal, are required by the act, " in all cases to tax cost to the successful party" In case of a reversal of the decision of the commissioners, the committee must therefore tax costs against the petitioners, who were before entitled to costs. And the necessary consequence of such reversal must be, to vacate and annul the judgement of the commissioners, awarding damages to the land owners and costs to the petitioners. Another consequence e of such reversal would be to protect Sunderland from paying damages and costs, assessed and taxed by the commissioners, if not paid, and to entitle the town to recover back the monies if collected.--Feltham v. Terry, B. N. P. 131; Cowp. 416; and 1 D. & E. 387; Lazell v. Miller, 15 Mass. 207 These, at any rate, would be the legitimate consequences of a reversal on an appeal taken from the decision of commissioners, made since the passing of the act of 1828; and we cannot perceive why they would not be in the present case. But one course of proceeding is pointed out for the two cases.

It is further to be remarked, that the public has no pecuniary interest whatever in this proceeding. The only certain interest is between the parties; to wit, the petitioners and the town of Sunderland. In a certain event the land owners acquire a pecuniary interest in the proceedings. And here the event had happened, and the interest accrued, prior to the appeal. We think it quite clear, that this appeal cannot be sustained, so as to divest and jeopard the vested pecuniary interest; and in what way these rights shall be secured, and the appeal permitted to go on, so that it shall affect the public interest, alone, without touching the private rights, we are unable to devise.

The counsel for the appellants, contra.--It will probably not be denied, that the whole subject of public highways is exclusively under the control of the state; and that, in all cases, the legislature has power, either directly, or through the instrumentality of its agents, to direct the laying, opening, repairing, making and discontinuing, any and every highway in the government. No one can doubt but this authority must rest somewhere; and where will it be found if not in the legislature? The public roads, which have, at any time, been laid under the authority of the legislature, are constantly and daily altered and discontinued, under the same authority; and no one ever doubted the right. If roads, already laid, made and improved, may be thus altered or discontinued, surely such, as have not been made, may be discontinued and forborne. As to the form or manner of effecting this end, it cannot be material, whether it is done by petition direct to the court for that purpose, or by appeal from the road commissioners. It may be urged, that the cost allowed and taxed by the road commissioners, and the damages assessed to the proprietors, through whose land the road is laid, were, by the decision of the road commissioners, according to the then existing law, finally determined, and that no subsequent statute can affect them. We submit, whether the right of the petitioners and proprietors, arising under the decision of the road commissioners, is involved in the question before the Court. The commissioners are presumed to have done their duty, in making orders for damages, and issuing executions for costs--and whether, if the money has been paid, it may be retained, or, if not paid, it may be recovered, may or may not be the subject of future enquiry between the parties.

Admitting the legislature have not the power to vacate the orders or the executions, or to direct the money refunded, if paid (upon which, it is to be noticed, the act is entirely silent.) yet there can be no objection to the appeal. If the town be remediless, as to their damages and costs, and are disposed to submit to this evil, they ought not to be deprived of the privilege of attempting to show the injustice of subjecting them to a greater evil, in being compelled to make, and maintain, a useless road. But, if the consequences should be otherwise, it is insisted that the law is not unconstitutional, as opposed to the constitution of this or the U. States. It is not an ex post facto law, in as much as the subject matter has no reference to crimes and misdemeanors. It is not a law impairing the obligation of contracts; as no contract can be affected thereby. It is indeed intimated, in the opinion given in the case of Bates v. Kimball, 2 D. Chip. Rep. 77, that a judgement of a court is a contract of the nature contemplated in the constitution. This is unsupported by any authority, and opposed to the opinions of the most enlightened jurists. The decision, in that case, does not rest upon that ground. That principle is not alluded to in the case of Staniford v. Barry. The term contract, in the constitution, is to be understood in its ordinary acceptation, and may apply to covenants, agreements, grants and undertakings, in which the mind and will of the parties are supposed to have been exercised. Chief Justice Marshall and judge Washington define it to be a compact between two or more parties. It is not perceived how the act in question can be regarded as the exercise of judicial power, or of individual legislation; that is, an attempt to give to, or take from, particular individuals, rights and privileges to the exclusion of all others in like circumstances. The law is general in its application to all cases of the like nature existing in the state. Is the act retrospective in its operation, and are vested rights thereby changed or affected? Although some acts, having this effect, have been severely censured by judges of courts, yet, it is believed, no case is to be found, in which a statute has been held void upon this principle alone. Neither the constitution of this state, nor of the U. States, imposes any restraint upon the legislature in this particular. Many laws of this character are to be found in every statute book, and some the most salutary. No restraint of this kind would be safe. The people have left the subject to the discretion of their...