Hutchinson, C. J.
It is a conceded point, that public highways, so far as regards those interests, which are common to all the citizens, are subject to the control of the legislature, and may be altered or discontinued by force of statutes, from time to time enacted. But the appellees contend, that their individual interests are affected, in this case, and, therefore, that the section in question has an unconstitutional operation upon these interests. The parties, in argument, seem to consider this section necessarily either constitutional and binding, or unconstitutional and void. This view is correct, it there is no distinction in the cases, upon which it may operate. That is, if all these cases alike involve the interests of individuals, or alike the interests common to community. The road commissioners have no power to lay out a road, till they receive a petition for that purpose, signed by a given number of freeholders. Then a citation issues to, and is served upon, the towns interested, or who would be liable to make the ^•o'ad, if laid out by the commissioners. The commissioners in[512]*512spect the rout, and decide, whether to lay out the road or not. If they lay it, they tax costs for the petitioners against the towns, and issue execution for the same. If they decide not to lay the road, they tax costs for the towns against the petitioners, and issue execution for the same. Again, if they establish the road, they make order for the towns to make and open the same by a given time. If not then made, they fix the sum necessary to be expended in making the road, and issue execution for the same. Again, if they assess damages for any individual, through whose land the road runs, they make order for the town to pay it, and, if necessary, issue execution against the towns for the same, in the same manner as the county courts could before do in cases before them. And whatever the road commissioners do in all these particulars, under the statute of 1827, is final and conclusive. The words of the second section are .very emphatical. “ The said road commissioners shall make personal inspection of the subjects of the. petition made to them,and adjudicate and make order thereon, which shall be final and conclusive, and shall tax costs for the successful party, in the same manner as are now taxed by the county court, and issue execution therefor ; and all orders, judge-ments, assessments of damages, and taxation of costs, by said road commissioners on petitions before them, shall be as conclusive as could, heretofore, be made by the county court.”
Under the faith of this statute, the appellees became petitioners for the laying out of a road; the road commissioners proceeded regularly, and laid out and established the'road, according to the prayer of the petition ; and taxed costs for the petitioners against the town of Sunderland, and, also, made an order for said town to open and make said road by a given time. These proceedings all appear regular, and were all completed as early as September, 1828. The appellees were then as fully entitled to their execution for their costs, as if they had recovered the same before the county court, and they were, also, as fully absolved from all liability to pay costs to the town, as if they had such judgement in their favor before the county court, under the .former system. On the thirtieth of October, 1828, the act passed under which this appeal was taken. The statute gives no appeal to the petitioners if they be ever so much aggrieved; but makes a general provision for towns, that may be dissatisfied with the laying of the road, and the individuals aggrieved by the assessment of damages, to appeal, within twenty days, to the county court, who shall, at their first session, appoint a committee of three [513]*513judicious and disinterested freeholders, who shall be sworn, &c. J . . This statute points out the duties and powers of this committee, which, so far as pertinent to the case under consideration, are as follows : “ They shall have power to reverse or affirm the de-e'ision of the road commissioners, as the public interest shall require ; and in all cases of an appeal, their decision shall be final •; and they shall tax cost for the successful party.” Then, in the sixth section,, this statute gives the same right to either party, to appeal in all cases, where roads had then been laid under said act of 1827, and had not been made ; provided, said appeal be applied for within ninety days after the passing of said act.
Under this statute, which clearly undertakes to give the right in a case like the present, the town of Sunderland took this appeal. And, if the committee, appointed by the county court, should reverse the proceedings of the road commissioners, and if this statute is operative as applied to such case, instead of the appellees collecting and retaining the costs awarded them by the road commissioners, the town of Sunderland must recover their costs against these appellees. The -effect of the statute would then be, to provide a course of proceedings, by which .a judgement, final and conclusive between the parties long before the statute had existence, might be reversed, and the opposite party recover costs. The very supposition, that a statute could have such a deleterious efiect to unsettle controversies, long settled according to existing laws, exhibits the doctrine of nullification in a form by no means pleasant or useful. As well might a succeeding legislature create a statute provision for the proceedings of this last committee, long before rendered complete, to be carried before the Supreme Court, for the appointment of another committee with dernier powers of reversal. I ought not to use the word dernier. Upon this principle, noihing would be . dernier, but the loss of faith in our government. From this there would -be no appeal, that would restore the confidence of our citizens. As well might the legislature have passed a law, at the same session, granting new trials, before new panels of jurors, in all actions tried by jury, for the year next preceding. The judgements, in all those cases, were no more final between the parties, than was this judgement in favor of the appellees, and against the town of Sunderland, fortheir costs. We might say the same of all judgements, rendered by single magistrates, in any given year: so of all judgements rendered by any courts whatever ; and that, whether on trial or by default. The truth is, there must be an [514]*514end of strife, somewhere. And where will it be, if not when a' judgement is recovered, which is final by the laws then existing? What, indeed, makes a judgement final, but its being declared so Uws then existing ? Now the terms of the road commissioner act,'of 1827, render their doings under it as final and conclusive, as any laws whatever render the judgements of the county court, or even of the Supreme Court. Upon the faith of this statute, the appellees became petitioners before said commissioners, which, in a very substantial sense, was commencing an action against the town of Sunderland. This, while no other law intervened, they prosecuted to final judgement. They might well rely upon the faith of government to protect this judgement, when obtained. They might well rely upon the stability of our judiciary,to pro-Sect such a judgement against any later statute, so framedasto effect it.
In this Court, at several different periods-, the cases cited, of Bates vs. Kimball, and Ward vs. Barnard, and Staniford vs. Barry,
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Hutchinson, C. J.
It is a conceded point, that public highways, so far as regards those interests, which are common to all the citizens, are subject to the control of the legislature, and may be altered or discontinued by force of statutes, from time to time enacted. But the appellees contend, that their individual interests are affected, in this case, and, therefore, that the section in question has an unconstitutional operation upon these interests. The parties, in argument, seem to consider this section necessarily either constitutional and binding, or unconstitutional and void. This view is correct, it there is no distinction in the cases, upon which it may operate. That is, if all these cases alike involve the interests of individuals, or alike the interests common to community. The road commissioners have no power to lay out a road, till they receive a petition for that purpose, signed by a given number of freeholders. Then a citation issues to, and is served upon, the towns interested, or who would be liable to make the ^•o'ad, if laid out by the commissioners. The commissioners in[512]*512spect the rout, and decide, whether to lay out the road or not. If they lay it, they tax costs for the petitioners against the towns, and issue execution for the same. If they decide not to lay the road, they tax costs for the towns against the petitioners, and issue execution for the same. Again, if they establish the road, they make order for the towns to make and open the same by a given time. If not then made, they fix the sum necessary to be expended in making the road, and issue execution for the same. Again, if they assess damages for any individual, through whose land the road runs, they make order for the town to pay it, and, if necessary, issue execution against the towns for the same, in the same manner as the county courts could before do in cases before them. And whatever the road commissioners do in all these particulars, under the statute of 1827, is final and conclusive. The words of the second section are .very emphatical. “ The said road commissioners shall make personal inspection of the subjects of the. petition made to them,and adjudicate and make order thereon, which shall be final and conclusive, and shall tax costs for the successful party, in the same manner as are now taxed by the county court, and issue execution therefor ; and all orders, judge-ments, assessments of damages, and taxation of costs, by said road commissioners on petitions before them, shall be as conclusive as could, heretofore, be made by the county court.”
Under the faith of this statute, the appellees became petitioners for the laying out of a road; the road commissioners proceeded regularly, and laid out and established the'road, according to the prayer of the petition ; and taxed costs for the petitioners against the town of Sunderland, and, also, made an order for said town to open and make said road by a given time. These proceedings all appear regular, and were all completed as early as September, 1828. The appellees were then as fully entitled to their execution for their costs, as if they had recovered the same before the county court, and they were, also, as fully absolved from all liability to pay costs to the town, as if they had such judgement in their favor before the county court, under the .former system. On the thirtieth of October, 1828, the act passed under which this appeal was taken. The statute gives no appeal to the petitioners if they be ever so much aggrieved; but makes a general provision for towns, that may be dissatisfied with the laying of the road, and the individuals aggrieved by the assessment of damages, to appeal, within twenty days, to the county court, who shall, at their first session, appoint a committee of three [513]*513judicious and disinterested freeholders, who shall be sworn, &c. J . . This statute points out the duties and powers of this committee, which, so far as pertinent to the case under consideration, are as follows : “ They shall have power to reverse or affirm the de-e'ision of the road commissioners, as the public interest shall require ; and in all cases of an appeal, their decision shall be final •; and they shall tax cost for the successful party.” Then, in the sixth section,, this statute gives the same right to either party, to appeal in all cases, where roads had then been laid under said act of 1827, and had not been made ; provided, said appeal be applied for within ninety days after the passing of said act.
Under this statute, which clearly undertakes to give the right in a case like the present, the town of Sunderland took this appeal. And, if the committee, appointed by the county court, should reverse the proceedings of the road commissioners, and if this statute is operative as applied to such case, instead of the appellees collecting and retaining the costs awarded them by the road commissioners, the town of Sunderland must recover their costs against these appellees. The -effect of the statute would then be, to provide a course of proceedings, by which .a judgement, final and conclusive between the parties long before the statute had existence, might be reversed, and the opposite party recover costs. The very supposition, that a statute could have such a deleterious efiect to unsettle controversies, long settled according to existing laws, exhibits the doctrine of nullification in a form by no means pleasant or useful. As well might a succeeding legislature create a statute provision for the proceedings of this last committee, long before rendered complete, to be carried before the Supreme Court, for the appointment of another committee with dernier powers of reversal. I ought not to use the word dernier. Upon this principle, noihing would be . dernier, but the loss of faith in our government. From this there would -be no appeal, that would restore the confidence of our citizens. As well might the legislature have passed a law, at the same session, granting new trials, before new panels of jurors, in all actions tried by jury, for the year next preceding. The judgements, in all those cases, were no more final between the parties, than was this judgement in favor of the appellees, and against the town of Sunderland, fortheir costs. We might say the same of all judgements, rendered by single magistrates, in any given year: so of all judgements rendered by any courts whatever ; and that, whether on trial or by default. The truth is, there must be an [514]*514end of strife, somewhere. And where will it be, if not when a' judgement is recovered, which is final by the laws then existing? What, indeed, makes a judgement final, but its being declared so Uws then existing ? Now the terms of the road commissioner act,'of 1827, render their doings under it as final and conclusive, as any laws whatever render the judgements of the county court, or even of the Supreme Court. Upon the faith of this statute, the appellees became petitioners before said commissioners, which, in a very substantial sense, was commencing an action against the town of Sunderland. This, while no other law intervened, they prosecuted to final judgement. They might well rely upon the faith of government to protect this judgement, when obtained. They might well rely upon the stability of our judiciary,to pro-Sect such a judgement against any later statute, so framedasto effect it.
In this Court, at several different periods-, the cases cited, of Bates vs. Kimball, and Ward vs. Barnard, and Staniford vs. Barry, and others, not reported, adopted the same principle though they differed in this, that the statutes then in question were made for the particular cases,and were not general laws. Still the grand principle relied on was, that those statutes affected individual rights,already so established,that the legislature could not intermeddle with them. Statutes, which grant individual relief, are not, for iha-t reason,void. It is their taking rights from other individuals, that renders them void. A general statute, with this effect, iis void also.
Had this statute- only made provision for the discontinuing of this road, on the terms of the costs taxed for the appellees being paid, and the appellants, recovering no costs, its operation would have been to affect the public, and the -appellees as a portion of the public, on one part, and the town of Sunderland, on the other, No individual'could complain that his private interests were-invaded. But, in-this case, if the new committee decide favorably .to the appellants, the law attaches the consequence, that the appellees lose the costs they'had fairly recovered, and must have execution against them for the costs of the other party.
The road commissioners always have power to -discontinue a road, krthe' eases within their jurisdiction; but, in doing this, they cannot reverse- their former decision with regard to costs. They can relieve the town from the claim of the public, but cannot discharge the debts the town may owe individuals, without providing for their payment. Much moréis it out'of their power, to turn those debts about, and make them become debts due from those [515]*515'individuals to the town. The statute of 1828 undertakes to give these extraordinary powers to the new committee. This is not the .proper business of legislation ; it exceeds the authority of the legislature. 1 have no idea that the legislature intended to convey such power. While they intended this new committee should have power to act between the public and the several towns, with regard to the road itself, they, probably, lost sight of the consequences to individuals, which the former part of the act attaches to their doings, in cases tfben past. Those who made application to the road commissioners to lay out roads, after the act of 1828, knew they were subject to this right of appeal j and it is what they must risk. But not so of those, who made their application, and got their business completed, while there was no such statute.
Bennett & Aiken, for appellees.
Skinner & Sargeant, for appellants.
The observations apply with equal force, mutatis mutandis, to appeals from the assessment of damages. A landholder appeals for the purpose of obtaining higher damages. This claims a new decision upon the same question decided by the commissioners, at a timé when no appeal was allowed, and when the statute,' then in force, made the decision as final as can be made by any .statute. In such a case, the town have a right to object to the operation of such a new statute.
The reasoning here adopted, necessarily leads to the conclur sion, that the judgement of the county court, which overruled the motion of the appellees to dismiss the appeal, and appointed a committee under the act of October SO, 1828, must be reversed and holden for nought; and
The appeal must be dismissed.
Williams, J., dissented.