Dyer v. City of Belfast

• Decision Date: 18 June 1895
• Citation: 33 A. 790,88 Me. 140
• Parties: DYER v. CITY OF BELFAST.
• Court: Maine Supreme Court

33 A. 790

88 Me. 140

DYER

v. CITY OF BELFAST.

Supreme Judicial Court of Maine.

June 18, 1895.

(Official.)

Exceptions from supreme judicial court, Waldo county.

Action by David W. Dyer against the city of Belfast. Judgment for plaintiff, and defendant excepts. Exceptions overruled.

Joseph Williamson and Joseph Williamson, Jr., for petitioner.

J. S. Harriman and R. F. Dunton, for the city.

WISWELL, J. On the 5th of September, 1892, the city council of the city of Belfast laid out a street in that city across the land of the petitioner, and awarded him $500, as the damages sustained thereby.

The statute in force at that time (Rev. St. c. 18, § 18, as amended by chapter 359, Pub. Laws 1885) provided, in substance, that any person aggrieved by the estimate of damages might have them determined by a written complaint to the supreme judicial court, "returnable at the term thereof next to be held within the county where the land lies, after sixty days from the date of the laying out, alteration or discontinuance of such way by the town." Under this statute, the petitioner should have made his complaint returnable at the January term, 1893, of this court in Waldo county; and, having failed to do this, his right to appeal was barred.

But an act of the legislature approved March 29, 1893 (chapter 297, Laws 1893), provides that: "When any person aggrieved by the estimate of damages for his land taken for a town or private way, honestly intended to appeal therefrom and has by accident or mistake omitted to take his appeal within the time provided by law, he may at any time within six months after the expiration of the time when said appeal might have been taken, apply to any judge of the supreme judicial court in term time or vacation, stating in his said application the facts of his case and said judge after due notice and hearing may grant to such petitioner permission to take his said appeal to such term of said court as said judge shall direct," etc.

Within the time limited by this act, the petitioner applied to a justice of this court for permission to take his appeal from the assessment of damages of the city council to such term of the court as said justice should direct. The justice ruled that the act above quoted applied to this case, and granted the permission requested, to which ruling exception is taken.

The question presented, then, is whether or not the act of March 29, 1893, passed after the right of appeal had become barred by limitation, applied to this case, so that the petitioner, after his right had once been barred, but within the six months' extension allowed by the act, could apply to a justice of this court for permission to take an appeal.

It is unnecessary to decide whether or not the legislature has the power to make a remedial act of this nature retroactive. It may be argued with much force that no person has a vested right in a statute of limitation, unless, by virtue of such statute, he has acquired the title to real or personal property (see Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209), although courts have often held otherwise; and this court, in Atkinson v. Dunlap, 50 Me. 111, held that, after all existing remedies had been exhausted and rights had become permanently vested, all further interference is prohibited, and that a statute designed to retroact on a case by reviving the right of review, after the time for a review had expired, was unconstitutional and void.

We think the decisive question in this case is whether, applying the universally adopted rules of construction of statutes, the legislature intended that this statute should have a retroactive effect. Statutes are always to have a prospective operation unless the intention of the legislature is clearly expressed, or it is clearly to be implied from their provisions that they shall apply to past transactions. Bryant v. Merrill, 55 Me. 515. In Rogers v. Greenbush, 58 Me. 397, it is said: "There is no language in the new statute which indicates any intention in the legislature to make it retrospective, or to apply it to past transactions, or to interfere with actions pending. We never hold an act to be retrospective unless it is plain that no other construction can be fairly given." See, also, the case of Appeal of Deake, 80 Me. 50, 12 Atl. 790.

"And the general rule is laid down, as one not subject to any exception, that they [statutes] are never to be allowed to have a retroactive operation where it is not required either by the express command of the legislature, or by an unavoidable implication arising from the necessity of adopting such a construction in order to give plenary effect to their provisions." Gerry v. Stoneham, 1 Allen, 322; Garfield v. Bemis, 2 Allen, 445.

The case of Garfield v. Bemis, supra, is very much in point. The legislature of Massachusetts passed an act to the effect that, whenever any one has a claim against the...