*263 By the Court,
Mason, J.The important question presented on this appeal is, whether that portion of the act of December 14, 1847, (Laws of 1847, eh. 455,) which provides for the reassessment before a jury of the damages on the laying out of highways, where they shall have been assessed in the first instance by the three commissioners appointed by the county court as required by the said act, is in conflict with the constitution of the state, and consequently void.
The 7th section of the first article of the constitution of the state declares that “ when private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law.” (Canst, art. 1, § 7.)
The 5th section • of the act provides thatce whenever any damages are now allowed by law when any road or highway shall be laid out, altered or discontinued, in whole or in part, such damages shall be assessed by not less than three commissioners, to be appointed by the county court of the county in which such road or highway shall be,” &c. (Laws of 1847, eh. 581, § 5.)
The next section of the said act declares that any person considering himself aggrieved, or the commissioner or commissioners, on the part of the town, feeling dissatisfied by any such assessment, may, within twenty days after the filing of said assessment as aforesaid, signify the same by notice in writing and serving the same on the town clerk and the opposite party, that is, the persons for whom the assessments were made, or the commissioner or commissioners of highways, as the case may be, asking for a jury to reassess the damages and specifying a time not less than ten, nor more than twenty days from the time of filing said assessment, when such jury will be drawn at the clerk’s office of an adjoining town of the same county, by the town clerk thereof, which notice shall be served upon said opposite party *264■within three days after service upon the town clerk as aforesaid,” &c. (Laws of 1847, p. 582, § 3.)
The three next sections provide for the manner of drawing and summoning the jury, and of the hearing on the reassessment, and require the jury to take a view of the premises and to hear the parties and such witnesses as may be offered by the parties, and shall render their verdict in writing, &c. I do not think that these provisions for the reasssessment of these damages by a jury are in conflict with this 7th section of the 1st article of the constitution. I know that this section of the constitution declares that these damages ■ shall be ascertained by a jury, or by not less than three commissioners, appointed by a court of record, as shall be prescribed by law. The argument against the validity of these provisions is that the whole act, taken together, provides for the assessment of these damages, both before the commissioners named, and a jury also, and that the constitution seems to empower the legislature to provide for their assessment before one or the other; and it is contended that impliedly, therefore, it restricts the legislature from conferring this power of assessment upon both the commissioners and a jury.
The answer to this argument is, the legislature have provided for the assessment alone before the commissioners named in the act, and this is all; and to this extent they have kept strictly within the letter of the constitution. They have then set about providing for a mode of reassessment on the application' of either party, who conceives himself aggrieved by the assessment. This, I have no doubt, the legislature possessed ample power and authority to do. The theory of our state government is that the people have delegated to the legislature all the supreme power of legislation which resided in the body of the' sovereign authority, the people, only restricted by the negatives which they have placed in the constitution upon .the exercise of that power. The first section of article 3 of the constitution declares that the legislative power of this state shall be vested in a senate *265and assembly. This carries all the supreme and sovereign power of legislation only, as we have said, as it is limited by prohibitions in the constitution itself.
This brings us to the real question in this case. Is this 7th section of the first article of the constitution a restriction upon the legislative power to provide for a reassessment of damages in such a case before a jury ? I must say, it seems to me very clear that it is not. It is undoubtedly a restriction upon the legislative authority to provide for the assessment of damages in such cases in the first instance, as has been well held in several adjudged cases. (House v. The City of Rochester, 15 Barb. 517. Clark v. The City of Utica, 18 id. 451.) But I am not able to discover how it places any restriction upon the legislative authority to provide a mode of reassessing such damages on the application of an aggrieved party, where they have been once assessed, by a pi’ovision of the statute in stiict compliance with the constitutional direction.
If this seventh section of the first article of the constitution is considered as merely prescribing the mode in which the legislative authority shall be executed in providing for the assessment of these damages in the first instance, and not as a sole grant of legislative authority over the whole subject, then there is no difficulty in upholding this statute providing for this mode of reviewing the assessment. That such is the true construction to be put upon this 7th section, it seems to me, is too plain for any argument.
The 1st section of the third article of the constitution confers the supreme sovereign power of legislation and is unlimited, only by the express restrictions placed upon it in the constitution; -and as there is no restriction placed upon the power of the legislature to provide the mode of reviewing the assessment, the legislature could prescribe any mode or tribunal to review the same, which to them might seem proper; and the judicial tribunals of the state have no right *266to interfere in the matter, but are bound to enforce the law as given to them by the sovereign legislative authority.
[Broome General Term, July 12, 1864.The 23d section of this act, (Laws of 1847, p. 588,) declares that all damages which shall be finally assessed or agreed upon by the commissioners of highways for the- laying out of any road, except private roads, shall be laid before the board of supervisors by the supervisor of the town, to be audited with the charges of the commissioners, justices, surveyors and other persons and officers employed in making the assessment, and for whose services the town shall be liable, and the amount shall be levied and collected in the town in which the road is located, and the money so collected shall be paid to the commissioners of such town, who shall •pay to the owner the sum assessed to him and appropriate the residue to satisfy the charges aforesaid. (Lotos of 1847, p. 588, § 23.)
In the case at bar, the commissioners assessed the plaintiff’s damages, and the jury, on the defendant’s application for a reassessment, assessed them at $355, and their verdict was reduced to writing, signed and filed in the town clerk’s office as required by the statute, and the defendant, who was supervisor of the town, was requested by the plaintiff to lay the same before the board of supervisors of the county, to the end that the same might be assessed upon the town. The defendant refused to do this, but took the original assessment and laid that before the board of supervisors, and this sum, $185, was assessed upon the town instead of the $355; and for this refusal of the defendant to perform his duty in this respect, this action was brought. If I am right, it follows that the nonsuit was wrong, and a new trial should be granted; costs to abide the event of the action.
Campbell, Parker, Palconl and Mason, Justices.]