The opinion of the court was delivered by
Beasley, Chief Justice.This controversy arises out of -this state of facts. On the 2d day of May, 1889, an order was *192made by a justice of the Supreme Court appointing three commissioners in condemnation proceedings to appraise the damages of the Pennsylvania Railroad Company from a proposed under-grade crossing of its road by the defendant in error. These three commissioners were chosen on a day and at a place, of which the parties in interest had due notice according to the statute. These commissioners were sworn and had fixed a day on which to view the premises when they were stayed by a certiorari, the object of which was to review the appointment, and the result of that course of law was an affirmance of it. Pending this litigation, which was somewhat protracted, one of the commissioners died, whose place was supplied on application made to the same justice who had made the original order. This supplementary order was dated May 16th, 1891.
It is this latter order which is in contestation before this court.
The appointment thus challenged was made in pursuance of an act of the legislature, approved March 11th, 1891, which is in the following words, viz.:
An act relative to commissioners for taking lands for public use.
1. Be it enacted by the Senate and General Assembly of the State of New Jersey, That in all cases where commissioners have been or shall be appointed pursuant to any law of this state, to appraise the value and damages for the taking of lands for public use, if it shall appear that any one or more of the said commissioners has died pending the proceedings, or is disqualified, or is unable to act, or has failed or refused to act and perform the duties of the appointment, and there is no law providing for the appointment of other commissioners in such cases, a vacancy shall be deemed to exist, and it shall be the duty of the justice, or other authority appointing said commissioner’s, to fill the vacancy, on such notice as such justice or other appointing power shall direct, and when the vacancy shall be filled the commissioners shall *193proceed to perform the duties of their appointment with the same powers as if all the commissioners had been appointed under the original order of appointment.
2. And be it enacted, That this act shall take effect imme-. diately.
The first objection to the procedure under consideration urged by the counsel of the plaintiffs in error is, that the second appointment above described was not warranted by the act thus recited.
In the first place, it is said that the present proceeding is one inter partes and between private corporations, and that by the title of this statute its operation is confined to the juncture when land is to be condemned for the purposes of public corporations.
But this view will not square either With the language of the title-of the law nor with the intent exhibited in its provisions. The title declares in the clearest possible terms that it relates “to commissioners for taking lands for public use,” and most certainly it will not be denied that these commissioners fall literally within such description. They have been appointed at the instance of a private corporation, but the land and right to be condemned are for a “public use;” for otherwise they would not be liable to condemnation in any possible mode of procedure.
Nor has it been perceived that there is even the faintest expression or indication in this statute that it was the legislative purpose to restrict its operations to these instances in which a public corporation stood upon the record as the applicant. The statute is remedial; the mischief was the expense and vexation that sometimes ensued from the death of a commissioner before the fulfillment of his function, and this was a mischief that was as likely to afflict a private as a public applicant; the statutory words are general, and, consequently, the remedy must be deemed to have been meant to be coextensive with the mischief.
*194With regard to the remaining exception, that upon the death of one of these commissioners the proceedings abated and that they could not be revived by the legislature against the plaintiff in error, these subjects have been considered, but their legal force has not been disclosed. We cannot hold that this statute of 1891 is not retrospective, unless we shut our eyes to its language; nor can we hold that a retrospective law of this character cannot be legally enacted, unless we shut our eyes to all known decisions upon' the subject. It will be observed that it is not claimed that the plaintiff in error, by reason of this supplementary legislation, has been deprived of any vested right or of any legal remedy that antecedently existed. What is claimed is, that the right to protract the proceeding and vex his adversary should not be taken away. The three commissioners now in office have been appointed by a judicial officer upon notice and hearing; the plaintiff in error has had the opportunity of canvassing the fitness of each for the function assigned to him. Such a board, so constituted, must be deemed to be above objection, and, in the opinion of this court, it has been legally constituted.
Let the judgment be affirmed.
For affirmance — The Chancellor, Chief Justice, Magie, Van Sycicel, Bogert, Brown, Clement, Krueger, Smith. 9.
For reversal — None.