63 Barb. 83 | N.Y. Sup. Ct. | 1872
This proceeding originated under the act of the legislature of 1871, chapter 695, entitled “ An act to amend an act entitled, ‘ an act to extend the powers of boards of supervisors, except in the counties of Kew York and Kings,’ passed May 11, 1869.” s
By the 5th section of this act, as amended, the board of supervisors of any county (except the counties of Kew York and Kings) are authorized by a vote of two-thirds of all the members, to legalize the irregular acts of any town officer, performed in good faith, and within the
The defendants claim that the statute in question is only prospective, in effect; that it does not have a retroactive effect, so as to include the taxes in question.
We have looked at the adjudications of the courts upon the interpretation to be given to the statute in question. There is‘nothing in the terms of the statute itself which necessarily makes it retro-active in effect. The case, therefore, depends entirely upon the rule of construction to be applied to it.
In the matter of The Oliver Lee Bank, (21 N. Y. 12,) the court recognize the rule of construction laid down in Dash v. Van Kleeck, (7 John. 477,) to be the true rule. They say, by that and other cases, the courts are admonished to avoid, if possible, such an interpretation as would give a statute a retrospective operation. The rule as laid down by Kent, Ch. J., in Dash v. Van Kleeck, (7 John. 582, 583,) is as follows: “We are to presume, out of respect to the law-givers, that the statute was not meant to operate retrospectively ; and if we call to our attention the general sense of mankind on the subject of retrospective laws, it will afford us the best reason to conclude that the legislature did not intend to set so pernicious an example.”
This rule was applied to a case of mandamus against The Board of Supervisors of Columbia County, (10 Wend. 365,) where Chief Justice Savage said: “The Revised Statutes, like all others, are prospective and so are to be construed, unless otherwise expressed, or unless they cannot have the intended operation by any other than a retrospective construction.” (See 12 Wend. 490; 3 Barb. 306.)
. Among other provisions of the Eevised Statutes was a new one applying to justices’ courts, &c., as follows: “Every judgment of which a transcript shall be filed and docketed as herein directed, may be reviewed by scire facias,” &c. This was held not to apply to judgments entered prior to 1830. Johnson v. Burrell, (2 Hill, 239.) Cowen, J., said, in that case, “It is a general rule that a statute, affecting rights and liabilities, should not be so construed as to act upon those already existing. To give it that effect, the statute should, in terms, declare an intention so to act. Here it does not, but the language is prospective.” (See 1 Hill, 335.)
Eetrospective statutes are not forbidden by the constitution, in cases in which they do not impair the obligation of contracts, or partake of the character of ex post facto laws ; and such statutes may be made, by express language, to have that effect. Yet unless they are so expressed, by necessary implication, they will be interpreted otherwise, and so that they shall not operate to change the existing state of things, or the common law.
The only exception to this rule is that referred to by
In all such cases, the acts, must, of necessity, be interpreted retrospectively. But upon the authority of the cases cited, in this State and in England, unless the act contains, in terms or by necessary implication, language of intent to apply retrospectively, must be held to apply prospectively, only.
It thus appears, from the cases reviewed, that even remedial statutes are not excepted from the general rule, except in those cases where no other construction can be given without leaving the enactment of no effect; or where such a retrospective construction .is a necessary implication from the language employed. This is not such a case.
In view o‘f the cases examined, and the universality of the principle settled by the courts, I think the act in question is to be held as prospective only; and that the order of the special term must be reversed, with $10 costs, and the motion before the special term denied, with $10 costs.
Miller, P. Potter and Balcom, Justices.]