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the wharves, piers, and slips available for commercial pay an extortionate sum, or lose the use and profits of stringent rules on the subject, and clearly called for purposes is about equally divided between individuals his ontlay; and consequently too, that community
the sacrifice of private convenience. We cannot say and the Corporation, and that the acquisition of the would be deprived of important benefits.
that the assumption of private property under those former has been obtained on terms that the present Not having any counter statements, of course the circumstances was unjustifiable. Your committeo scale of whartage will neft to the proprietorsan incoine committee do not intend to prejudge any fact, but if fully subscribe to the doctrine, that it is incident to of 7 to 12 per cent. on the cost per annun. This por this be the truth of the case, such conduct is highly the sovereignty of every government, that it may take tion of the wharves and piers is principally devoted reprehensible and unworthy a good citizen. But private property for public use when public vecessity to the foreign trade, and if the income from it will your committee know no Legislative means of relief. demands it; of which the government must judge. pay the interest alluded to—there certainly appears In the language of one of our own jurists, “even to But it does not follow that property can always be to be no good reason for imposing further charges such a case the law cannot bend." No doubt bis neigh taken whenever it can be put to public use. That upon commerce, with no other result, than to augment bors in this respect have a strong claim upon him, wonld be intolerable. the value of property paying now a full and fair equiv which honor and sound morality require should be It is difficult to adopt any inflexible rule by which alent for the auiuit of money invested in it.
fulfilled; but when considered as a legal question, it to determine when the exigencies of the community That portion of the wharves and piers belonging to is believed to be an imperfect obligation, the enforce will justily the use of this power; as, how many, and the Corporation !! been almost exclusively appropri ment of which is left to the tribunals of conscience to what extent, others must be benefitted. Churches, priated to the vessels engaged in the River and inland and public opinion.
manufactories, printing-offices, mineral springs, ions, trade at an increased charge for exclusive privileges Iu some of the States, for the encouragement of
telegraphic stations, country stores, aud many other consequently any augmentation in the rates of wbart manufactures and for the accommodation of the pub matters, may be convenient to the people; but no age must be borne by the produce of the country, and lic, provision by law for similar cases has been made. one supposes it right to strip a citizen for their estabby articles of merchandize required for its consump But in this State a different view has been taken of lishment. Works purely public, owned and managed tion. private rights.
by the public officers, as our canals, highways, &c., Your Remonstrants further believe that the execution
A law transferring the property of one individual to seldom create a jealousy of this power, But in all of the plan proposed, would not only be attended another for the use of the latter without compensation,
cases where the public convenience is subserved only with great additional expense upon our commerce, all admit, would be unconstitutional and à nullity. incidentally, and the direct object is private advanbut with much embarrassment, inconvenience and
From the Magna Charta down, such a doctrine would tage, your committee think the rule should be strindelay, in as much as it would become necessary tu || be in direct derogation of our dearest rights. Indeed, gent, and has already been sufficiently relaxed. There employ persons to superintend the discharging and that would be a violation of a natural right, and con
is in all governments a tendency to monopoly and lading of each and every vessel—to take the measure sequently malum in se. But were compensation to
combination of power and wealth. The splendor and ment of every package, and to make the proper return be added, the objection of want of power is not there
eclat attached to great works, particularly those in and collections for the articles of produce and other by removed. The Romans held private property in some measure convenient to the public, are apt to merchandize so laden or discharged that the proposed such cases inviolate ; and even the wicked Ahab felt override the solitary right of the individual. Schemes increase of wharfage, would be no justification for the force of the rule. It is only when taken " for of aggrandizement, even though at public expense, the disadvantages to commerce that must necessarily public use," and upon rendering just compensation,
never want advocates. It is the duty of the states. follow the adoption of this innovation, upon the pres that the power exists. A more correct expression man to protect the rights of every private citizen, ent well approved, and long established system. perhaps is, when taken because the necessities of however humble, and then all will find protection.
The public absolutely require it." This would better The natural allies, franchise and associated wealth, IMPORTANT REPORT. accord with the best elementary writers on the subject.
will take care of themselves. It is only in accord The Hon. A. C. Hand, Chairman of the Judiciary It is clear that property cannot be so taken for orna
ance with the principle, “salus populi suprema lex," ment or pleasure. So the Romans understood it, and Committee of the Senate has made a Report known
that private property can be taken at all without the such is the plain meaning of our own Constitution, as Senate Document No. 49 of 1847, on a petition of
owner's consent. The exercise of this power beyond
that is unconstitutional. and of the “ Constitutional Charter" " given" by several citizens of Hastings, Oswego County, New
It is taking property "withYork, for legislative authority to raise a dam upon a
out due process of law," for the law does not allow Louis 18, in 1814, and “accepted" by Louis Phillipe stream to flood the land of another citizen.
it. Whether there is any tribunal empowered to rein 1830; and such too, nothwithstanding the oppres
This Report discusses important principles with great ability
view the decision of the Legislature, the only deposive contemporaneous forest laws of England, is the -it omits however one matter which is the effect
sitary of this power, is another question not affecting true reading of the Magna Charta of that country. which the flooding of land has upon public health.
the principle of the case. Still it cannot be denied that the general phrase, This Report should be extensively read—we have, “ public use," or “public utility," and perhaps “ mere
The true rule undoubtedly is, that the public good public convenience,” is well adapted in many respects therefore published it in a circular as well as in the
must be the direct and natural fruits of the exercise of
the right of eminent domain, and its only moving to the practice of the present day. New-York Municipal Gazette. This doctrine applies in all its force to the local Grave doubts have arisen whether the power must
cause wholly irrespective of any incidental private assessments in New-York, where the land of one citi
not be executed by the direct agency of the public emolument.
officers. But in this State, after the Legislature has zen is taken for a street, and the money of another
Your committee believe the class of cases to which exercised the right of sovereignty in deciding as to the the application referred to them belongs, at least at citizen is taken to make compensation for the land thus taken, and the assessments made a lien upon the
necessities of the public and the expediency of the this day and in this State, is clearly not within this
case, individuals, to whom a franchise for that purpose land of the assessed, and declared a prior lien, thus
rule. They have examined this subject more at length destroying a contract which existed in the shape of a has been granted, have been allowed to erect works
because of the principles adopted in some of our sister supposed to be beneficial to the public. mortgage prior to the making of the assessment.
States for whom they have great respect. But in
It is so with our railroads. After the Legislature has declared the their opinion the matter is very clear upon the soundIN SENATE,
road to be necessary and for the public good, the cor est principles of political economy and constitutional February 23, 1847. porators are allowed to enter upon the designated track,
law. and on making compensation, take private lands. In
They ask leave to offer the following resolution : REPORT this case the exercise of the right, both as to the man
Resolved, That “the petition of several citizens of Of the committee on the judiciary on the “ petition
ner and extent, has certainly been carried to the ut Hastings, Oswego ceunty, praying for a law to authorof several citizens of Hastings, Oswego county, for most verge of the power. The public, it is true, have
ise the overflowing of lands for hydraulic purposes," a law to authorize the overflowing certain lands." certain claims upon the company, and the road may
be denied. Mr. A. C. Hand, from the committee on the judi
be of great general convenience; but the agents, and ciary, to which was referred the “ petition of several the property, and the emoluments, do not belong to
THE $1500 VOTED TO THE CHARLESTOWN citizens of Hastings, Oswego county praying for a law the public, and the accommodations afforded to that
VOLUNTEERS. to authorize the overflowing certain lands for hy
public are left to the supervision of the company and draulic purposes” respectfully
We learn from the Bunker Hill Aurora that the meted out as its interests dictate. Your committee REPORTS: are not disposed to recommend that the exercise of
Supreme Court of Massachusetts, at Lowell, on Monday
last granted a temporary injunction, to be made perThat the committee have had said petition under this power be further extended, even could that be
petual at the October term, to restrain the present done. consideration. The petitioners, of whom there are a respectable
treasurer of the town of Charlestown, Mass., and his The important inquiry is, what shall be deemed
successors in office, from paying over the $1500 voted number, state that they are “living in the midst of a
such general advantage, and such sufficient “public
| by the town at the town meeting in January last, to timbered country, and where the timber will be the use," as are required to render the exercise of the
be distributed to Captain Barker's company of volunstaple of commerce if the water power of Blount's riglit of eminent domain justifiable and legal ? Or in
teers. This decision declares the vote of the town to creck, which is in the inmediate vicinity, can be used other words, when does the right exist.
be illegal and settles the matter as far as concerns the to manufacture the saine. That one of their fellow As to the particular case before us, it is believed
town. citizens has at great expense erected a mill on said that no State, except Massachusetts and Maine, has creek, but unfortunately the dain will uecessarily over carried the doctrine to the extent required to graut Earth quake at Martinique. On the 29th of October flow about six acres of the land of another, who de this petition. Some of the other States have made 1727, a dreadful earthquake happened here, which mands an exorbitant price for this privilege. They certain regulations in relation to the subject, but to a continued for 11 hours together, with very little interask for a law allowing this land to be overtlowed for very limited extent. The first statute in Massachu mission, and was felt several days after, whereby half the purpose above indicated, on paying for it a reason setts, and to which that of the State of Maine undoubt of St. Peter's Fort was shook down, one mountain able compensation.
edly owes its paternity, was passed nearly a century sunk, and another cleft in two so that a large stream From this ex parte statement, it clearly appears and a half ago, when mills and manufactories were of water issued from it, and above 200 sugar houses that this mill may be very advantageous to the petition scarce and matters of great public necessity, and land were destroyed by the shocks, besides churches, teneers, and that tho up-stream proprietor seeks to avail abundant and comparatively valueless. Perhaps atm ents, &c., and the loss of several lives.-Universal himself of his position to compel its owner, either to that day these erections would come within the most Magazine for Dec. 1758.
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