In Re Dyer Street

11 R.I. 166, 1875 R.I. LEXIS 19

Opinion

Dukfjee, C. J.

These are motions to vacate a decree of the court confirming a report of commissioners in the matter of the widening of Dyer Street, in the city of Providence. The motions are made in behalf of certain persons whose estates were assessed for benefit by the commissioners. The commissioners were appointed March 25, 1873; they qualified March 29, 1873 ; they reported August 1, 1873 ; the decree confirming their report in part was entered January 20, 1874. They were appointed under an act passed in 1854. 1 The act of 1854, as amended, 2 authorizes an assessment of three quarters of the cost of opening or altering streets in the city of Providence upon estates benefited thereby. The commissioners are charged by the act with the double duty of estimating for damages and assessing for benefits; and they are required by it, in case any person at the same time suffers loss and receives benefit, to offset the one against the other, and report for or against him the excess only. They are to report directly to the Supreme Court, and their report, unless exception is taken to it or a jury trial is claimed, is to be confirmed. In the case at bar the proceeding was throughout according to the act of 1854, and the amendments made thereto previous to the appointment of the commissioners. On the 28th March, 1873, being three days after the commissioners were appointed and the day before they qualified, an act (cap. 313 Public Laws) was passed, which it is claimed so far altered the previous acts as to render the proceedings of the commissioners and the court under them invalid.

The new act establishes a board of public works in the city of Providence, to be composed of three persons, who are to be elected by the city council, and to hold their offices for three, two, and one years, respectively, from the first Monday in January in the year 1873. The language used is, “ A board of public works is hereby established,” &e. The seventh section is as follows: —

“ The board of public works shall make all assessments for benefits under the act entitled ‘ An act in relation to the laying out, enlarging, straightening, and otherwise altering streets in the city of Providence,’ and the commissioners hereafter appointed under the provisions of said act shall estimate only the loss and damage to the respective owners of lands and estates taken under the provisions of said act, without deduction for benefits, and shall transmit to said board a certified copy of such estimate at the time of filing a copy of such estimate with the city clerk.”

Section 13 declares “ all acts and parts of acts inconsistent with the provisions of this act are hereby repealed.” Section 14 provides that the act shall take effect from and after its passage.

It is claimed that the effect of the new act was to repeal the previous acts in so far as they are inconsistent with it, and consequently to take away from commissioners appointed under the previous acts all power to assess for benefits, and to confer it upon the board of public works. It is also claimed that the new act has this effect even in the case of commissioners appointed previous to its passage. Can this claim be sustained ? Or rather, to confine the question to the case before us, can it be sustained in regard to a proceeding in which the commissioners were appointed before the new act went into effect ?

This question is to be considered in view of the provision of the Gen. Stat. R. I. cap. 22, § 16. The provision is, that “ the repeal of any statute shall in no case affect .... any suit or proceeding had or commenced in any civil case before the time when such repeal shall take effect.” The proceeding in which these motions are made is a proceeding in a civil case. The new act therefore cannot affect it unless it does more than merely repeal acts or parts of acts previously in force. It does do more than this: it enacts provisions conflicting with them. The question therefore arises whether the rule of cap. 22, § 16, applies to such a case, or is to be confined to the case of a naked repeal. We think it applies, unless language is used which indicates that it was meant not to apply. To confine the rule to the case of a naked repeal would, in our opinion, unnecessarily restrict its-beneficial operation. The rule, however, is merely a statutory rule, and as such does not bind the General Assembly. If the General Assembly pass an act which expressly puts an end to pending proceedings, or which prescribes for them a new course of procedure, — where at least they are such as the proceeding in which these motions are made, — we must obey the new act and disregard the rule.- But we are to construe the new act in the light of the rule, and not to construe it as made in derogation of the rule if we can fairly avoid it. Can the act establishing a board of public works be so construed as not to affect the proceeding in which these motions are made ? The act creates the board, declares that it shall make all assessments for benefits, and that commissioners thereafter appointed shall only estimate for loss and damage, and repeals inconsistent acts and parts of acts. This would, perhaps, take away from commissioners, even though previously appointed, the power to assess for benefits, but for cap. 22, § 16. Is it to be construed as having this effect notwithstanding cap. 22, § 16 ? And is it to be so construed in regard to a proceeding in which the commissioners were appointed before it went into effect ? If it is to be so construed, it is because of the words : “ The board of public works shall make all assessments for benefits.” The words, taken by themselves and without reference to cap. 22, § 16, doubtless imply that assessments for benefits can only be made after the passage of the act by the board of public works. But they cannot be so taken. They are to be construed with reference to the rule of cap. 22, § 16, and consequently are not to affect a pending proceeding unless they appear to have been intended to affect it. Now whatever may be said in regard to proceedings in which commissioners were appointed after the new act went into effect, we do not think it is clear that the new act, construed by the light of the rule of cap. 22, § 16, was intended to affect any proceeding which had reached the stage in which commissioners had already been appointed. Indeed, the fact that a course of procedure is prescribed for commissioners subsequently appointed, and for them only, favors the view that the new act was not designed to affect any proceeding in which commissioners were previously appointed. For if such was the design, why was no course prescribed for them ? Why was work already done by them permitted to come to naught ? And so also the fact that the board of public works, though established, still remained to be elected, favors the same view. The words “ all assessments,” construed under the rule of cap. 22, § 16, which conserves pending proceedings, mean all assessments in proceedings afterwards commenced; or, if the words are to be construed as qualified still further by the language prescribing the course to be pursued by commissioners subsequently appointed, they mean all assessments unless made in some proceeding which has progressed so far that commissioners have already been appointed therein.

In the case at bar the commissioners were appointed before, but did not take their engagements until after the new act went into effect. The delay was in our opinion immaterial. We do not find the proceeding invalid for the reasons which have been urged in support of the motions, and therefore, without considering other points which have been discussed, we dismiss the motions. Motions dismissed.

1 This act is printed in 4 R. I. 230 sq., In the Matter of Dorrance Street.

2 By cap. 921 of Public Laws, passed March 24, 1871.