65 N.Y.S. 308 | N.Y. App. Div. | 1900
Lead Opinion
This case comes before us on an appeal from an interlocutory judgment overruling a demurrer to an amended complaint, the ground of demurrer being that the complaint does' not state facts, sufficient
The plaintiff’s right to recover is asserted under the provision of ^section 2 of chapter 385 of the Laws of 1870, as amended by chapter •622 of the Laws of 1894, which was in full force and operation during the whole of the period of employment of the plaintiff’s intestate as set forth in the complaint. It was enacted by that 2d section that the act should apply to all mechanics, workingmen and laborers “ now or hereafter employed ” by the State, or any municipal corporation therein, through its agents or officers, or in the employ of persons contracting with the State for the performance of public work, “ and all such mechanics, workingmen and laborers so employed shall receive not less than the prevailing rate of wages in the respective trades or callings in which such mechanics, workingmen and laborers are employed in said locality.” That jaro vision of law continued in
We are not-called upon to decide in this particular case whether the legislation of 1899 repealed prior provisions of law above referred •to. Even if by a reasonable construction of section 3 of the act off 1897, as amended, re-cast ,or re-arranged by the act of 1899, it may be held that the Legislature intended that the requirement as to the-prevailing rate of wages should no longer apply to employees of the State or of a municipality, that change could not operate to defeat this plaintiff’s action. This results from two controlling- consideratians.: First. Because the plaintiff’s right is a vested one resting in contract. Second. Because the right is expressly reserved by law.
The argument in support of the demurrer proceeds upon the-theory that although the plaintiff’s intestate rendered the service- and performed the work before any change was made in the law-relating to compensation, yet inasmuch as the action was not instituted before a change was made his right was destroyed. It is not. to be' controverted that the right arose- out of a statute nor is it to-be doubted that if the right were merely an inchoate one it-could be taken away before enforcement by a subsequent statute repealing that which conferred the right. Retrospective State laws whicli do-not impair the obligation of contracts are not invalid simply because-they may disturb vested rights, “ but a law subsequent to the contract directly annulling it or changing its terms by adding or releas
Second. But the right of the plaintiff’s intestate," whether it was •complete and vested or only inchoate, was preserved by the 31st section of the Statutory Construction Act (Laws of 1892, chap. 677), read in connection with the 1st section of that act. By that 31st section it is, among other things, enacted that “ the repeal of a statute, or part thereof, shall not affect or impair any act done or right .accruing, accrued or acquired * .* * prior to the time such repeal takes effect, but the same may be asserted (and) enforced '* * * as fully and to the same extent as if such repeal had not been effected.’.’ This is in the nature of a general saving clause; but it is urged that it does not operate to preserve the plaintiff’s right, because the Statutory Construction Act was passed in 1892, and the statute which is claimed in this case to operate as a repeal of pre-existing laws was passed in 1899. It is suggested that the Legislature of 1892 had no power to trammel or impair the action' of subsequent Legislatures, but, as was said in the case of People v. England (91 Hun, 155), in considering the effect of this very section of the Statutory Construction Act upon acts passed at sessions of the Legislature in subsequent years, “ the Legislature, therefore, by the act of 1892, laid down a rule.of statutory construction applicable to all future statutes. The act did not attempt to interfere in any manner with future legislation, but simply prescribed a rule of construction applicable when not inconsistent with the general object of the subsequent statute or the context of the language construed or •other provision of the repealing law indicating a different intent.” In analyzing the act of 1899 we find no expression of an intent on the part of the Legislature to extinguish rights acquired under the act of 1894. When the act of 1899 was passed there stood upon the statute book this general Statutory Construction Law, and it is fair to .assume that the act of 1899 was passed with the intent of the Legislature that it should be construed in accordance with existing rules of construction as prescribed by statute, and if it had been the intention to affect accrued rights that intention in some way would have been made manifest. As is further said' in the case last cited, the act of 1892 was not binding upon subsequent Legislatures. They could
We think the general saving clause of the Statutory Construction Act saved the plaintiff’s right from- any possible retroactive effect of the act of 1899.
The interlocutory judgment should be affirmed, with costs, but "with leave to the defendant within twenty days to withdraw demurrer and answer Upon payment of costs in this court and in the court below.
Van Brunt, P. J., and Hatch, J.j concurred.
Concurrence Opinion
(concurring)-:
As we are concluded by McMahon v. Mayor (22 App. Div. 113) and McCunney v. City of New York (40 id. 482) I concur in the affirmance of this judgment. If the question were an open one in this court, I should have difficulty in arriving at that conclusion. I fully concur with Mr. Justice. Patterson in his opinion upon the question discussed by him, and concur in the affirmance of the judg- . ment as controlled by the cases before cited. , '
Judgment affirmed, with costs, with' leave to defendant within twenty days to withdraw demurrer and answer on payment of costs in this court and in the court below.