CASES

IN THE

SUPREME COURT

OF

PENNSYLVANIA.

HALEY et al., plaintiffs in error, v. CITY OF PHILADELPHIA.

The supreme court of Pennsylvania decided that under the laws, as to the opening of roads in Philadelphia, interest was to be allowed on an award from the date of the assessment. By the act of 1867, the legislature provided that the award should be enforced “in the same manner as provided by law in the opening of roads in the city of Philadelphia." By the act of 1869, the legislature declared that the true intent and meaning of the act of 1867 were "that no interest shall be allowed on damages for ground taken, up to the time of their payment on the issue of any warrant for their payment by the city of Philadelphia." In a case arising under the act of 1867, held, that the act of 1869, an expository act, was destitute of retroactive force, because it was an act of judicial power, and was in contravention of the constitution of the State, which declares that no man can be deprived of his property "unless by the judgment of his peers or the law of the land." (See note, p. 156.)

ACTION upon an award brought by Haley et al. against the city of Philadelphia. Under the act of March 26, 1867, plaintiffs' property was appropriated for a park and vested in the city. The report of the jury assessing damages was filed April 14, 1868, but it was not confirmed until May 9, 1868. The principal sum, $45,746.74, was

Haley v. City of Philadelphia.

paid April 3, 1869, and was received by plaintiffs under an agreement that their claim to interest should not be prejudiced.

The plaintiffs' points were:

1. The plaintiffs are entitled to recover interest on the amount >warded them from the day upon which the jury returned and filed their report, to wit, from April 14, 1868.

2. The plaintiffs are entitled to recover interest upon the amount due and unpaid from the date of the payment of the principal, to wit, from April 3, 1869.

The court (HARE, P. J.) instructed the jury to find the full amount of the plaintiffs' claim, and reserved the points.

The jury found for the plaintiffs $2,842.62.

Judgment was afterward entered on the reserved points for $2,504.91, being interest from the confirmation of the report.

The plaintiffs took a writ of error and assigned for error; not entering judgment for the amount of the verdict.

By the act of April 14, 1868 (a supplement to act of March 26, 1867), § 10, Pamph. Laws 1086, it is provided, among other things, that "whenever any report of the commissioners or jury shall have been confirmed by the court, the valuation shall be forthwith payable by the city of Philadelphia." By another supplement, April 21, 1869, § 9, Pamph. Laws, 1196, it is enacted that "the true intent and meaning" of the acts of 1867 and 1868 were, "that no interest shall be allowed on damages for ground taken, up to the time of their payment on the issue of any warrant, for their payment by the city of Philadelphia.'

J. Parsons (with whom was J. C. Bullitt), for plaintiffs in error.

C. H. Jones (with whom was T. J. Barger, city solicitor), for defendant in error.

SHARSWOOD, J. It was undoubtedly competent for the legislature, in providing for the ascertainment and payment of damages for property taken and appropriated for public use, as in this case of the Fairmount Park, to direct at what time the amount should be payable, and a jury in assessing the damages must govern itself accordingly. It might be a more just provision to direct in every case interest from the date of the assessment. We must look to and be governed by the law as it stood at the time when the jury

Haley v. City of Philadelphia.

made the assessment. The 10th section of the act of April 14, 1868, Pamph. Laws, 1086, has no application to this case, because, although the report of the jury was filed on the 14th day of April, 1868, the day the act was approved by the governor, and became a law, yet the jury had been appointed, proceeded and found their verdict under the previous act of March 26, 1867, Pamph. Laws, 547. By the 3d section of that act it was provided that owners of ground taken should be paid according to the value to be ascertained by a jury: "And said jury shall proceed, and their award shall be reviewed and enforced, in the same manner as provided by law in the opening of roads in the city of Philadelphia." It was settled by this court in The City of Philadelphia v. Dyer, 41 Penn. 463, that under the laws, as to the opening of roads in the city of Philadelphia, interest is to be allowed from the date of the assessment. We are of opinion that the court below erred in reducing the amount of the verdict and entering judgment for such reduced amount under the reserved point.

The only other question which can arise upon this record is, as to the effect of the act of April 21, 1869, § 9, Pamph. Laws, 1194. This section is a legislative declaration that the true intent and meaning of the acts of 1867 and 1868 were, "that no interest shall be allowed on damages for ground taken, up to the time of their payment on the issue of any warrant for their payment by the city of Philadel. phia." In connection with this act, much reliance is placed upon the case of O'Connor v. Warner, 4 W. & S. 223, in which it was held by this court that, until the judiciary has fixed the meaning of a doubtful law upon which rights have become vested, it may be explained by legislative enactment. It is clear that this principle was only intended to apply to a law the construction of which was really doubtful. Chief Justice GIBSON, in that case, declares that "a legislative direction to perform a judicial function in a particular way would be a direct violation of the constitution, which assigns to each organ of the government its exclusive function and a limited space of action." Lambertson v. Hogan, 2 Barr, 25; Greenough v. Greenough, 11 Penn. St. 495. It would be monstrous to maintain that, where the words and intention of an act were so plain that no court had ever been appealed to for the purpose of declaring their meaning, it was, therefore, in the power of the legislature, by a retrospective law, to put a construction upon them, contrary to their obvious letter and spirit. Reiser v. The William Tell Saving Fund Associa

Haley v. City of Philadelphia.

tion, 39 Penn. St. 137, is an authority in point against such a doctrine. An expository act of assembly is destitute of retroactive force, because it is an act of judicial power, and is in contravention of the ninth section of the ninth article of the constitution, which declares that no man can be deprived of his property, "unless by the judgment of his peers or the law of the land."

Judgment reversed, and now judgment for the plaintiff for the amount found by the verdict.

Judgment accordingly.

NOTE.-In People v. Supervisors of New York, 16 N. Y. 424, the legislature, after the courts had decided that insurance companies were taxable at a certain rate under an existing statute, passed an act declaring it to have been the intention and the true construction of such existing statute, that insurance companies should be taxable only at a certain other rate, and the court of appeals held that, while the declaratory act might introduce a new rule for the taxation of such companies after its passage, it was ineffectual in regard to the interpretation of the prior statute in controversies pending in court, and that the legislature cannot control the courts in respect to the construction of statutes, in cases arising before the declaratory statute. To the same effect is Greenough v. Greenough, 11 Penn. St. 494; Dash v. Van Kleek, 7 Johns. 498; Governor v. Porter, 5 Humph. 165. It is beyond the legislative power to set aside the judgments of the courts, to require them to grant new trials, or to do any other particular act in the progress of a judicial inquiry. State v. Fleming, 7 Humph. 152; Dorr's Case, 3 R. I. 291; Picqua's Case, 5 Pick. 64.

Thus the legislature cannot grant the right to appeal a case after it was gone under the general statute. Burch v. Newberry, 10 N. Y. 374; Hill v. Sunderland, 3 Vt. 507. But see Prout v. Berry, 2 Gill. 147, and State v. Northern Central R. R. Co., 18 Md. 193, wherein It was held that the legislature could allow an appeal in a particular case.

So it is beyond the legislative power to revive a commission for proving clains against an estate after it has once expired (Bradford v. Brooks, 2 Ark. 284), or to grant a continuance in a pending case (Burt v. Williams, 24 id. 91), or to forbid an appellate court to reverse a decision of the court below, without a vote of the majority of the judges competent to sit. Clapp v. Ely, 3 Dutch. 622.

Nor has the legislature power to grant a new trial. Lewis v. Webb, 3 Greenl. 326; Durham v. Lewiston, 4 id. 140; Weaver v. Lapsley, 43 Ala. 224; Dechastellux v. Fairchilds, 15 Penn. St. 18; Taylor v. Place, 4 R. I. 324; Miller v. State, 8 Gill. 145; Atkinson v. Dunlop, 50 Me. 111; Young v. State Bank, 4 Ind. 301.

For a full discussion of the subject of declaratory legislation, see Cooley's Const. Lim. 93, et seq. — REP.

Day v. Zimmerman.

DAY, plaintiff in error, v. ZIMMERMAN.

(68 Penn St. 72.)

Promissory note. Attachment. Garnishment.

▲, on the 1st of March, 1866, gave his negotiable promissory note to B, payable in two years. C, a creditor of B, served an attachment on A, as garnishee, in November, 1867. B indorsed the note February 22, 1868, to D, bona fide for value, D having no notice of the attachment, but having heard that B had failed. After maturity, A paid the amount of the note to D. Held, that the note was discharged, and that A was not liable under the attachment

SCIRE FACIAS in a foreign attachment by Peter Zimmerman against Israel L. Day, garnishee of Depue S. Miller, issued September 7, 1868. It appeared that, on the 1st of March, 1866, Day gave his negotiable promissory note, payable in two years, to Miller, and that the foreign attachment was issued and served November 8, 1867, at the suit of Zimmerman, a creditor of Miller. On the 22d of Feb ruary, 1868, Miller indorsed the note to Yohe & Depue bona fide for value, the purchasers having no notice of the attachment, but having heard that Miller had failed. After maturity, Day paid the amount of the note to Yohe & Depue, the holders.

The defendant submitted these points, which the court refused: 1. If Yohe & Depue bought the note of the defendant without actual notice of the attachment before its maturity, the payment to them by defendant was a good and valid defense to this attachment, and their verdict must be for the defendant.

2. There is no evidence that the defendant Day in any way assisted Miller in passing the note in question to Yohe & Depue.

The verdict was for the plaintiff against the garnishee, for $416.83.

The garnishee removed the case to the supreme court, and, among others, assigned for error the refusal to affirm his points.

G. Junkin, for plaintiff in error. The presumption is, that an indorsee has received the note in the usual course of business. Snyder v. Riley, 6 Penn. St. 164. The doctrine of implied notice by lis vendens is not applicable in such cases. Kieffer v. Ehler, 18 Penn. St.