By the Court, Welles, P. J. The constitution of this 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.” {Const, of 1846, art. 1, § 7.) The 193d

section of the act entitled, “

an act to amend and consolidate the several acts relating to the city of Rochester,” passed April 10th, 1850, {ch. 262, of Bess. L. of 1850,) provides that “ the damages and recompense to be paid to owners of lands taken by the city for public improvements, shall be assessed by three assessors assigned by the common council,” &c. The damages and recompense to the owners of the lands taken for the improvement in question, was ascertained by assessors assigned by the common council in pursuance of the

section of the charter referred to. That

section is plainly in conflict with the constitution, and the assessment based upon it was unauthorized and void. That the defendant afterwards paid the owners of the lands taken, the amounts ascertained by the assessors for their damages and recompense, and received conveyances of the lands, cannot have a retroactive operation so as to heal the defect and make valid a proceeding which was merely void..

At the time the .assessment was made, there was no legal basis for it to rest upon; and the subsequent purchase by the defendant, and conveyance by the owners of the land taken, could, at most, be the foundation of a new or subsequent assessment, but would not authorize the issuing a warrant to collect the previous void assessments. For these reasons the plaintiffs should have judgment on the demurrer. [Cayuga General Term, June 6, 1853. Welles, Johnson and T. R. Strong, Justices.]