By the Court, Babculo, J.
The question arises whether the board of supervisors can be compelled by mandamus to direct the levy and collection of the damages assessed to the relators under the act of 1845. In discussing this question, I shall assume that a mandamus is the proper remedy for the enforcement of the relators’ rights, if any they have; and that their rights are cut off and annulled by the repealing acts, if the legislature had the power thus to cut them off.
The case then involves the consideration of the following propositions: I. The general power of the legislature to destroy vested rights by a repeal of the statute under which they were acquired. II. How far the repealing acts in question conflict with the provision of the constitution of this state which forbids the taking of private property for public use, without just compensation. III. How far they fall within the inhibition contained in the constitution of the United States against passing laws impairing the obligation of contracts.
I. By the theory of the English government, the law-making power is omnipotent. An act,of parliament in plain and distinct terms, however unjust or oppressive, is binding upon individuals and courts of justice. It is the supreme law of the land, and demands perfect obedience. It has been said by an eminent jurist of this country, that, “ if there be no constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power, under any other form of government.” (1 Kents Com. 448.) In its broad and unlimited sense, I cannot subscribe to this doctrine, as applicable to republican governments. Here the legislature is not supreme; it is not the highest authority recognized. “It [71] is only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other departments of government, it can only exercise such powers as have been delegated to it; and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the state, who transcends his jurisdiction, are utterly void.” We have written constitutions which limit and control the legislative power: and although, in the absence of a constitutional inhibition, the legislature may be presumed to have the power it exercises, in most cases, still I apprehend that this is not universally true. The constitution declares that “ the legislative power of this state shall be vested in a senate and assembly.” This is the authority under which our legislature acts; and under this clause it has the power of legislation within the fair scope of legislation, except so far as it is restricted by other provisions of the constitution. But it can hardly be said that under this general power of legislation it is omnipotent: that it can pass acts against natural right and justice, and subversive of decency and good order. Such power is the prerogative of despotism—not of free government. To suppose that the people have clothed their representatives with absolute and despotic power, under the general grant of legislative authority, is to presume them incapable of self-government and unworthy the name of freemen.
Protection to life, liberty, and property, is the great object of human governments. Whatever tends to this end is within the scope of legislative authority: whatever plainly destroys this, is beyond its legitimate scope. The legislature has full power to enact laws for the punishment of crimes : but suppose it should prescribe a uniformity of dress, or the quantity and quality of food for each person, or regulate the hours which every citizen should devote to labor and to sleep ; and, attempt to enforce such arbitrary interference with individual affairs, by pains and penalties; would such laws be valid? Could any court be found to enforce them ? I am aware that these may be called “ extreme casesand that it cannot be presumed that the representatives of the people will so far forget their [72] position, as to enter upon such fields of unauthorized legislation ; still, experience warns us not to be too sanguine even' upon this point. The past admonishes us of the necessity of guarding individual right against the encroachments of the law-making power. Our records show that several instances have occurred, within a few years, of laws being made in violation of the express provisions of the constitution. ( Warren v. The People, 2 Denio, 272. Quackenbush v. Danks, 1 Id. 128.)
It cannot be denied that excessive legislation is the great legal curse of the age. It is the mighty vortex which is drawing every thing within its grasp. So long as it keeps within the constitutional bounds and legitimate scope of its authority, it is our duty to enforce the laws : but when it transcends these, it is equally our duty to declare them null and void. (Kent's Com. lect. 20.) As this doctrine, limiting the omnipotence of the legislative power, by judicial interposition, has been recently denied by a learned member of the court of errors, in the case of Cochran v. Van Surlay, (20 Wend. 382,) it may be well to see how it stands upon authority.
In Gardner v. The Village of Newburgh, (2 John. Ch. 162,) Chancellor Kent had occasion to discuss the power of the state to take private property for public purposes without making recompense therefor; and he held that this power could not be legally exercised, and accordingly granted an injunction restraining the defendants from proceeding under the act, until it should be so amended as to give the plaintiff a just compensation for his property. This it will be remembered was in the absence of any constitutional restriction: as the first incorporation of that principle into our state constitutions was in 1821. In his commentaries, this eminent jurist reviews the American authorities on this subject, and declares that the principle exists with stringent force, independent of any positive (constitutional provision, “ and is laid down by jurists as an Acknowledged principle of universal law.” (2 Kent's Com. 339, and note.)
In Bradshaw v. Rogers, (20 John. 103,) Chief Justice Spencer declared that the taking of private property without making [73] compensation was contrary to a great and fundamental principle of government; and any law violating that principle must be deemed a nullity, as it is against natural right and justice. Although the decision in this case was reversed, it was upon a ground that left this doctrine undisturbed. In Varíele v. Smith, (5 Paige, 137,) Chancellor Walworth says, “In a state which is governed by a written constitution, like ours, if the legislature should so far forget its duty, and the natural rights of an individual, as to take his private property and transfer it to another when there was no foundation for a pretence that the public was to be benefited thereby, I should not hesitate to declare that such an abuse of the right of eminent domain was an infringement of the spirit of the constitution ; and, therefore, not. within the general powers delegated by the people to the legislature.” (See also the remarks of the Chancellor in Beekman v. The Saratoga and Schenectady Rail-Road Company, 3 Paige, 45 ; and in Bloodgood v. Mohawk and Hudson RailRoad Company, 18 Wend. 9.) In Clarke v. Van Surley, (15 Wend. 435,) Justice Bronson alludes to this subject in these words : “ Whether, upon general principles, such a law would not be void, as beyond the scope of legislative power, need not now be discussed.” But in Taylor v. Porter, (4 Hill, 140,) the same learned judge discusses the effect to be given to the general grant of legislative power by art. 1, sec. 1 of the constitution, and concludes by saying, “ If there was not one word of qualification in the whole instrument, I should feel great difficulty in bringing myself to the conclusion that the clause under consideration had clothed the legislature with despotic power: and such is the extent of their authority, if they can take the property of A., either with or without compensation, and give it to B. The legislative power of this stale does not reach to such an unwarrantable extent. Neither life, liberty nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of the power. Such, at least, are my present impressions.”
The same principle has been repeatedly recognized by the judges and courts of the United States. Judge Story speaks [74] of it. in his Commentaries on the Const. U. S. & 1784, as a great doctrine established by the common law for the protection of private property, and as indispensable to a free government. And at section 1393 he says, “ it seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the transcendental sovereignty, to take away vested rights of property; to take the property of A. and transfer it to B. by mere legislative act. That government can scarcely be deemed to be free where the rights of property are left solely dependent upon a legislative body, without any restraint.” Again, in Wilkinson v. Leland, (2 Peters, 657,) the same learned judge .holds the following language: “ The fundamental maxims of a free government seem to require that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming that the power to violate and disregard them—a power so repugnant to the common principles of justice and civil liberty—lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people.”
So in the case of Bonaparte v. The Camden and Amboy Rail-Road Company, (1 Baldwin’s C. C. Rep. 205,) the court say “it is an incident to the sovereignty of every government, that it may take private property for public use; of the necessity or expediency of which, the government must judge, but the obligation to make just compensation is concomitant with the right. (Vattel, 112. Ruth. 43. Burl. 150. Puff. 829. Gro. 333.) The obligation attaches to the exercise of the power, though it is not provided for by the state constitution, or that of the United States.”
The supreme court of South Carolina, in 1792, set aside an act of the colonial legislature, which took away the freehold of one man and gave it to another without compensation, although the act was not prohibited by any express constitutional provision. They declared the act to be void, as being against common right. (Bowman v. Middleton, 1 Bay, 252. See also [75] Dash v. Van Kleeek, 7 John. Rep. 477; Osborn v. Huger, 1 Bay, 179 ; Ogden v. Blackledge, 2 Cranch, 272; Bedford v. Skilling, 4 Serg. & Rawle, 401; Brunswick v. Litchfield, 2 Greenl. 28.) In The University of Maryland v. Williams, (9 Gill & John. —,) the court held an act of the legislature void as impairing the obligation of contracts and as opposed to the fundamental principles of right and justice inherent in the nature and spirit of the social compact.
The counsel for the defence cited Butler v. Palmer, (1 Hill, 324,) as to the effect of the repeal of a statute. This court there decided that the act of April 18, 1838, repealing the act authorizing the redemption of mortgaged premises within one year after a sale, passed May 12,1837—the repeal to take effect on the first day of November, 1838—cut off the right to redeem beyond that day, although the year had not expired. This decision was upon the ground that the repealing act was in the nature of a statute of limitations, affecting the remedy only, and therefore without the constitution. It might have been put upon the ground of the unconstitutionality of the original act. (Bronson v. Kenzie, 1 How. U. S. Rep. 311.) So far, however, as the reasoning in that case may tend to the conclusion that a repeal can divest rights and interests in property which have become vested under a statute, it was unnecessary to the decision, and runs counter to the general current of American authorities. But even in that case Justice Cowen admits that “ a right carried into judgment, or taking the form of an express executory contract under a repealed statute might standan admission broad enough, I think, to cover the present case.
My conclusion is that, upon principle, as well as upon authority, a legislative act, whether it be a positive enactment or a repealing statute, which takes away the vested rights of property of an individual for any purpose (except where property is taken for public use and upon a just compensation,) is to be adjudged invalid, as being above the power, and beyond the scope, of legislative authority.
In the case before us, the commissioners proceeded, under [76] the act of May 13, 1845, to lay out and designate the several alterations in the road : and in August, 1835, the damages of the relators were regularly assessed. In November following, the verdicts were laid before the boards of supervisors, who, after examining into the matter and reducing the amount of the assessment in three cases, finally settled the amount of damages due to the relators respectively, pursuant to 1 R. S. 516, §§ 69, 70. It then became the duty of the board to cause such damages to' be levied and collected in the town in which that portion of the road was situated. (§ 70.) Instead of doing so, the matter was delayed until the legislature repealed the act. Now, as I view this subject, when the supervisors liquidated the amount of the damages, the relators obtained a vested right to the sums awarded to them respectively. It was such a right as this court has enforced by mandamus. (5 Cowen, 292.) It was a right as clear and as valid as if they had held bonds against the county for those amounts. It was a right which could be sold, assigned and transferred; and which, by our practice, could have been reached by a creditor’s bill, or by proceedings under the non-imprisonment act, and applied in the payment of a judgment.
If an authority is necessary on this point, the case of Harrington v. The County Commissioners of Berkshire, (22 Pick. 263,) may be deemed such. There the county commissioners laid out a highway and passed the usual orders for making it, and the owner of the land, over which it was laid out, obtained a verdict for his damages, which was accepted by the court of common pleas and certified to the commissioners: but before the proper time arrived for granting an order on the county treasury for the payment of such damages, measures were taken to discontinue the highway, and soon after an order was passed to discontinue it, and the land was never entered upon. The commissioners refused to give the owner an order for the payment of the damages found by the verdict. He thereupon applied to the court for a mandamus. The court held that he had a vested right to such damages, and was entitled to a writ of mandamus to compel the commissioners to order the pay[77] ment thereof. Chief Justice Shaw, in delivering the opinion of the court, says, “ when the highway is once completely established, and the damages to the land once settled by the modes pointed out by law, the right of the public to a perpetual easement in the land for a highway, till the public shall see fit for any cause to discontinue it, becomes complete, and the right of the owner to his damages or compensation for the lien or qualified right acquired by the public in his land becomes vested.” The case before us is stronger in favor of the right than the one above cited, in two particulars. There no possession of the land was taken ; here the relators removed their fences and gave up the land to the public. There the day of payment had not arrived when the highway was discontinued ; here the time for payment had elapsed long before the proceedings were discontinued by the repealing acts.
It may not be improper here to refer to the peculiar nature of the proceedings before the supervisors, under our statute, relative to these assessments. The board is to examine into the principles of the assessment, and their determination is termed a final settlement of the amount to be allowed, from which there is no appeal. The better opinion seems also to be , that this is the only tribunal for liquidating the claim. It is, at least, doubtful whether any action at law will lie against the county, by which a judgment can be obtained; and if a judgment at law could be obtained, there would be no mode of collecting it, except by mandamus. These considerations would seem to give the decision of the board of supervisors, on the final settlement of the amount, something of the character of a judgment; and if so, the repeal could not divest the relators’ rights, even according to the rigid rule laid down in Butler v. Palmer, which I consider applicable only to statutes giving penalties and conferring jurisdiction.
In the case of penal statutes, it is conceded that a repeal destroys the penalty, although suits are pending for its recovery. The reason is plain; the penalty, in theory at least, is due to the public, by way of punishment for some offence; and therefore the legislature, as the organ of the public will, has an un[78] doubted right to remit. (State of Maryland v. Baltimore and Ohio Rail-Road, 3 How. 354.) But even in such a case, where the penalty is to benefit an individual, it seems, from a decision in a neighboring state, that a judgment vests it, beyond the power of a repeal. (Oriental Bank v. Feeze, 6 Shepley, 109.)
II. I will next briefly consider the objection to the validity of the repealing acts, founded upon that clause in the constitution of the state which forbids the taking of private property for public use, without just compensation. The view taken of the first point, renders it unnecessary to examine this at length.
The original act plainly contemplated the taking of property under this clause, and accordingly it made provision for the payment of damages. Hence it follows that if any damages have been sustained, or in other words, if any property of the relators has been taken, the constitution requires that compensation should be made; and any subsequent act of the legislature, which tends to deprive them of compensation, is void, From the return it appears, that after the alterations were laid out and designated, by the commissioners, the relators removed their fences and gave up a portion of their lands to the public use. That this was done pursuant to notice given by the commissioners appointed by the act, and not by the commissioners of highways, cannot in any degree impair its effect. The relators thereby became entitled to a just compensation; the amount of which was determined by the jury, and board of supervisors. The repealing acts then come in and declare that this joint compensation shall be withheld, and “ shall not be sued for or recovered in any court of law or equity.” That this is a palpable violation of the constitution cannot, I think, for a moment be doubted.
It is urged for the defence that the contemplated alterations of the road were abandoned, and- that therefore the damages assessed were not in fact sustained, but the property, in substance, was restored to the relators. It is very possible that this consideration might have authorized the legislature, .so far as this constitutional question is concerned, to incorporate in the repealing act a provision for a reassessment of the damages [79] which had been actually sustained. But that was not done. The repeal is total, and is accompanied, not by the usual clause saving the rights acquired under the first act, but by a most unequivocal and extraordinary attempt to destroy the rights secured to the land owners by the original act, and guaranteed by the constitution.
It is to be borne in mind, that the public does not obtain the fee of the lands over which highways pass. The public use is but an easement, subject to which, the owner retains his title. There is, therefore, always a contingency by which the owner may return into the full possession of the land, on its being no longer required by the public. When this contingent event will happen is ordinarily unknown, and wholly immaterial, as regards the rights of the landholder. Whether the public retains the use of it, for a century, or for a year, or but for a single day, cannot affect his title to a compensation. That becomes fixed and vested, the instant his property is taken for public use.
III. In regard to the third point, the argument on the part of the relators may be thus stated : A contract is a compact between two or more parties. A state cannot, by mere legislative act, make a contract, in the ordinary acceptation, although it may authorize its agents to enter into a final contract. The state may however, by enactment, make that which is equivalent to a contract, as by conferring a charter or grant, in which, although there are no words of covenant, there is - an implied agreement that the rights given shall not be destroyed nor the grant resumed. If the act is in the nature of an executed contract, whatever rights are created cannot be impaired by subsequent legislation. If the law is in the nature of an executory contract, and is supported by a sufficient consideration, it cannot be annulled by the legislature. If however, the act contemplates some further action on the part of the state or its agents as the consideration or execution, then it may, prior to such action be repealed. The law of 1845 authorized the agents of the state to take the property of the relators, and provided a constitutional compensation. It was equivalent to an agreement on the part of the state to take as [80] much of the property as might be necessary for the public use, and to pay the owners such damages as should be assessed by a jury. The assent of the owners is compelled, in which respect it differs from a contract between individuals. The transaction is in the nature of an executory contract forced upon the relators by the state. Before any further action, the law might have been repealed, and things would have been in statu quo ; but as soon as the commissioners proceeded to take the land, a consideration passed, rights accrued, and the contract became sacred, in the view of the federal constitution. The legislature says to the owners, “ we will take your land and pay you for it.” They may change their intentions before the land is taken ; but after the land is taken, the contract is so far executed as to be unrepealable, as to those whose rights are affected. This reasoning seems to be, to some extent, sustained by the following authorities: (Fletcher v. Peck, 6 Cranch, 87. New Jersey v. Wilson, 7 Id. 164. Terrett v. Taylor, 9 Id. 43. Dartmouth College v. Woodward, 4 Wheat. 518. People v. Platt, 17 John. Rep. 195. Trustees of the Bishop’s Fund v. Rider, 13 Conn. 87.)
It is, however, unnecessary to discuss this subject more fully, or to express a more decided opinion upon this point. We are all disposed to place our decision mainly upon the first ground.
The relators are entitled to judgment on the demurrer, with costs, and to a peremptory mandamus.