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Vol. II.]

SOUTHERN EXPRESS Co. v. CALDWELL.

[No. 4.

in hand the agreement allowed ninety days from the delivery of the parcel to the company, within which the claim might be made, and no claim was made until four years thereafter. Possibly such a condition might be regarded as unreasonable, if an insufficient time were allowed for the shipper to learn whether the carrier's contract had been performed. But that cannot be claimed here. The parcel was received at Jackson, Tennessee, for delivery at New Orleans. The transit required only about one day. We think, therefore, the limitation of the defendant's common law liability to which the parties agreed, as averred in the plea, was a reasonable one, and that the plea set up a sufficient defence to the action.

We have been referred to one case which seems to intimate, and perhaps should be regarded as deciding that a stipulation somewhat like that pleaded here is insufficient to protect the carrier. It is the Southern Express Company v. Caperton, 44 Ala. 101. There the receipts for the goods contained a provision that there should be no liability for any loss unless the claim therefor should be made in writing, at the office of the company at Stevenson, within thirty days from the date of the receipt, in a statement to which the receipt should be annexed. The receipt was signed by the agent of the company alone. It will be observed that it was a much more onerous requirement of the shipper than that made in the present case, and more than was necessary to give notice of the loss to the carrier. The court, after remarking that a carrier cannot avoid his responsibility by any mere general notice, nor contract for exemption from liability for his negligence or that of his servants, added that he could not be allowed to make a statute of limitations so short as to be capable of becoming a means of fraud; that it was the duty of the "defendant to deliver the package to the consignee, and that it was more than unreasonable to allow it to appropriate the property of another by a failure to perform a duty, and that too under the protection of a writing signed only by its agent, the assent to which by the other party was only proven by his acceptance of the paper." This case is a very unsatisfactory one. It appears to have regarded the stipulation as a statute of limitations, which it clearly was not, and it leaves us in doubt whether the decision was not rested on the ground that there was no sufficient evidence of a contract. The case cited from 36 Ga. 532, has no relation to the question before us. It has reference to the inquiry, what is sufficient proof of an agreement between the shipper and the carrier, — an inquiry that does not arise in the present case, for the demurrer admits an express agreement.

Our conclusion, then, founded upon the analogous decisions of courts, as well as upon sound reason, is that the express agreement between the parties averred in the plea was a reasonable one, and hence that it was not against the policy of the law. It purported to relieve the defendants from no part of the obligations of a common carrier. They were bound to the same diligence, fidelity and care as they would have been required to exercise if no such agreement had been made. All that the stipulation required was that the shipper, in case the package was lost or damaged, should assert his claim in season to enable the defendants to ascertain the facts; in other words, that he should assert it within ninety days. It

Vol. II.]

GARRISON V. THE MAYOR OF NEW YORK.

[No. 4.

follows that the circuit court erred in sustaining the plaintiff's demurrer to the plea.

The second assignment of error we need not consider. If it is one that can properly be made, which is at least doubtful, it is unimportant in view of our judgment upon the first.

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings in conformity with this opinion.

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1. An act of the Legislature of the State of New York, passed in 1871, in relation to the widening and straightening of Broadway, in the city of New York, authorizing the supreme court of the state to vacate an order made in 1870, confirming the report of commissioners of estimate and assessment respecting the property taken, from which order no appeal was allowable, if error, mistake, irregularity, or illegal acts appeared in the proceedings of the commissioners, or the assessments for benefit or the awards for damage, or either of them, had been unfair and unjust, or inequitable or oppressive as respects the city or any person affected thereby, and to refer the matter back to new commissioners to amend or correct the report, or to make a new assessment, is not unconstitutional as impairing the obligation of contracts, or depriving a person of a vested right without due process of law.

2. In the proceeding to condemn property for public use there is nothing in the nature of a contract between the owner and the state, or the corporation which the state in virtue of her right of eminent domain authorizes to take the property; all that the Constitution of the state or of the United States or justice requires in such cases being that a just compensation shall be made to the owner; his property can then be taken without his assent.

3. The proceeding to ascertain the compensation to be made to the owner of property taken for public use is in the nature of an inquest on the part of the state and is under her control; and to secure a just estimate of the compensation to be made, she can vacate or authorize the vacation of any inquest taken by her direction where the proceeding has been irregularly or fraudulently conducted, or in which error has intervened, and order a new inquest, provided such methods of procedure be observed as will secure a fair hearing from the parties interested in the property. Until the property is actually taken and the compensation is made or provided, the power of the state over the matter is not ended.

MR. JUSTICE FIELD delivered the opinion of the court.

In May, 1869, the Legislature of the State of New York passed an act entitled "An act to alter the map or plan of the city of New York and to carry the alterations into effect." Providing for the widening and straightening of Broadway, in the city of New York, between 34th and 59th streets. It required the commissioners of the Central Park of the city, within four months after its passage, to lay out and establish the

Vol. II.]

GARRISON V. THE MAYOR OF NEW YORK.

[No. 4.

lines of the street, so as to widen and straighten it, and to cause certificates and maps of the location of the new lines to be filed in certain public offices of the city, and declared that such certificates and maps should be final and conclusive as to the extent and boundaries of the proposed improvement; and that the part of Broadway thus laid out and established should be one of the public streets of the city, in like manner and with the same effect as if it had been so laid out on the plan of the city under an act passed in 1807, entitled "An act relative to improvements touching the laying out of streets and roads in the city of New York, and for other purposes. also provided that any part of the street not embraced within the new lines should be closed, and that the acts of the legislature in force relating to the opening, widening, and improving of streets in the city should apply to that part of Broadway thus laid out, and to proceedings under the act so far as they were applicable.

It

And the act required the corporation council, when the commissioners had filed their maps and certificates, to take the proper steps on behalf of the city to acquire title to the lands needed, and for that purpose to apply to the supreme court, at any special term thereof, for the appointment of commissioners of estimate and assessment, who were authorized to assess upon the city such part of the expenses of the improvement as in their opinion would be just and equitable, not exceeding one third of the whole, and to designate in their report, which was to be made within eight months after their appointment, the time for the opening of the street.

The commissioners thus appointed were required to make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage, or of the benefit and advantage, if any, over and above the loss and damage, as the case might be, to the respective owners, lessees, occupants, or owners, and persons entitled to or interested in the lands and premises required, or affected by the proceedings, the assessment for benefit and advantage to be confined within certain designated limits.

The act further provided that all awards to the city should be placed by the chamberlain (the treasurer of the city) to the credit of the sinking fund, and that all other awards should be paid by him to the parties entitled thereto.

Under this act the measures authorized were taken, and three commissioners of estimate and assessment were appointed by the supreme court, who made a report of their proceedings, which was confirmed by order of the court on the 28th of December, 1870.

The report included, among numerous other awards, an award of $40,000 to the plaintiff, as his damages for taking a portion of a leasehold estate held by him on Broadway, and it fixed the time for the actual opening of the new street at the 31st of December, 1870.

On the 27th of February, 1871, nearly two months after the confirmation of the report, the legislature passed an act authorizing an appeal from the order of confirmation on behalf of the city to be taken at any time within four months from the date of its entry. The act also provided that within this period, notwithstanding the pendency of the appeal, a motion might be made on behalf of the city to any justice of the supreme court, at a special term or chambers, to vacate the order; and

Vol. II.]

GARRISON V. THE MAYOR OF NEW YORK.

[No. 4.

made it the duty of the court or justice to hear the same, and declared that if it should appear that there was any error, mistake, or irregularity, or illegal act in the proceedings at any stage, or that the assessments for benefit, or the awards for damage, or either of them, had been unfair and unjust, or inequitable and oppressive, as respects the city or any person affected thereby, the court or justice should vacate the order of confirmation, which should then be void, and refer the matter back to new commissioners, who should proceed to amend and correct the report, or to make a new assessment, in whole or in part, as the court or justice should direct.

Under this act, upon notice to the parties interested, a motion was made on behalf of the city at a special term of the supreme court to vacate the order. Upon this motion affidavits were read and the parties were heard by counsel. The court vacated the order of confirmation, and appointed new commissioners to amend and correct the report and make a new award of damage and assessment. In its order vacating the confirmation, and as a basis for the order, the court declared that it appeared that there had been error, mistake, irregularity, and illegal acts in the proceedings, and that the assessments for benefit and the award for damages had been unfair, unjust, inequitable, and oppressive, as respects the city and others.

The present action is brought to recover the award of $40,000 made to the plaintiff by the report of the first commissioners, the plaintiff alleging in his complaint the ownership of the leasehold estate taken, the proceedings for the estimate and assessment of damages, and the confirmation of the report by the supreme court on the 28th of December, 1870, and insisting that by force of the act of the legislature, and the laws therein referred to, the proceedings were final and conclusive, and that the fee of the property had vested in the city, and the right to the payment of the award had vested in the plaintiff.

In answer to this action the city set up the proceedings by which the award was vacated, and insisted that the title to the premises mentioned had not vested in the city, and that the right to the amount awarded had not vested in the plaintiff.

To this plea the plaintiff demurred, on the ground that the act of February 27, 1871, was repugnant to the Constitution of the United States, in that it impairs the obligation of a contract, and to the Constitution of the state, in that it undertakes to divest a vested right contrary to the law of the land and without due process of law.

The court overruled the demurrer, sustained the plea as a bar to the action, and gave judgment for the defendant. To reverse that judgment the case is brought to this court, and here the plaintiff renews the same objections urged on the demurrer in the court below. As a basis for his argument in their support, he assumes that under the statute of the state relating to the opening and improvement of streets in the city of New York, passed in 1813, and which is one of the laws referred to in the act of 1869, and made applicable to the improvement authorized, the proceedings of the commissioners, when their report was confirmed by the supreme court, were so far final and conclusive of the right of the city to the property, and of the plaintiff to the award, that neither were subject to any legislative or judicial interference.

Vol. II.]

GARRISON v. THE MAYOR OF NEW YORK.

[No. 4.

The same positions here urged were relied upon in the supreme court and the court of appeals of the state on the appeal from the order vacating the confirmation taken by one of the parties to whom an award had been rendered. In the matter of widening Broadway, 61 Barb. 483, and 49 N. Y. Rep. 150.

And in both courts it was held that the provision in the statute of 1813, which declares that the report of the commissioners of estimate and assessment, when confirmed by the court, shall be "final and conclusive," only meant that no appeal should lie from the order to a higher court, and that it did not preclude an application to the court to vacate the order for mistake, irregularity, or fraud in the proceedings; that the supreme court had power to hear such motions in ordinary cases of judgments and orders in suits there pending, and that no reason existed against the possession or exercise of the power in cases of this character. The provision in question, said the court of appeals, "plainly never intended to give a vested interest in a mistake and irregularity, or fraud, whereby important rights of property were acquired or lost. It had reference simply to an appeal upon the merits, and is satisfied with that. All judgments are liable to be set aside for fraud, mistake, or irregularity, and a vested interest therein is subject to that liability."

The supreme court held that the act of 1871 was constitutional. The court of appeals held that, independent of the act and without passing upon its validity, the supreme court had authority to set aside the order upon the grounds stated.

If the views of either of these courts be correct, they dispose of the questions in this case. And the construction of the statute of the state by the court of appeals, and its decision as to the powers of the supreme court of the state to correct or set aside its own judgments, upon application within reasonable time, for mistake, irregularity, or fraud, are conclusive upon us.

There is, therefore, no case presented in which it can be justly contended that a contract has been impaired. It may be doubted whether a judgment not founded upon an agreement, express or implied, is a contract within the meaning of the constitutional prohibition. It is sometimes called by text writers a contract of record, because it establishes a legal obligation to pay the amount recovered, and, by fiction of law, where there is a legal obligation to pay, a promise to pay is implied. It is upon this principle, says Chitty, that an action in form ex contractu will lie on a judgment of a court of record. Chitty on Contracts, Perkins's edition, page 87. But it is not perceived how this fiction can convert the result of a proceeding not founded upon an agreement express or implied, but upon a transaction wanting the assent of the parties, into a contract within the meaning of the clause of the federal Constitution which forbids any legislation impairing its obligation. The purpose of the constitutional prohibition was the maintenance of good faith in the stipulations of parties against any state interference. If no assent be given to a transaction no faith is pledged in respect to it, and there would seem in such case to be no room for the operation of the prohibition.

In the proceeding to condemn the property of the plaintiff for a public

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