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the wharves, piers, and slips available for commercial purposes is about equally divided between individuals and the Corporation, and that the acquisition of the former has been obtained on terms that the present scale of wharfage will nett to the proprietors an income of 7 to 12 per cent. on the cost per annum. This por tion of the wharves and piers is principally devoted to the foreign trade, and if the income from it will pay the interest alluded to-there certainly appears to be no good reason for imposing further charges upon commerce, with no other result, than to augment the value of property paying now a full and fair equivalent for the aunt of money invested in it.

That portion of the wharves and piers belonging to the Corporation ! been almost exclusively appropripriated to the vessels engaged in the River and inland trade at an increased charge for exclusive privileges consequently any augmentation in the rates of wharfage must be borne by the produce of the country, and by articles of merchandize required for its consump

tion.

Your Remonstrants further believe that the execution of the plan proposed, would not only be attended with great additional expense upon our commerce, but with much embarrassment, inconvenience and delay, in as much as it would become necessary to employ persons to superintend the discharging and lading of each and every vessel-to take the measurement of every package, and to make the proper return and collections for the articles of produce and other merchandize so laden or discharged that the proposed increase of wharfage, would be no justification for the disadvantages to commerce that inust necessarily follow the adoption of this innovation, upon the present well approved, and long established system.

IMPORTANT REPORT.

The HON. A. C. HAND, Chairman of the Judiciary Committee of the Senate has made a Report known as Senate Document No. 49 of 1847, on a petition of several citizens of Hastings, Oswego County, NewYork, for legislative authority to raise a dam upon a stream to flood the land of another citizen. This Report discusses important principles with great ability -it omits however one matter which is the effect which the flooding of land has upon public health. This Report should be extensively read-we have, therefore published it in a circular as well as in the New-York Municipal Gazette.

This doctrine applies in all its force to the local assessments in New-York, where the land of one citizen is taken for a street, and the money of another citizen is taken to make compensation for the land thus taken, and the assessments made a lien upon the land of the assessed, and declared a prior lien, thus destroying a contract which existed in the shape of a mortgage prior to the making of the assessment. IN SENATE,

REPORT

February 23, 1847.

Of the committee on the judiciary on the "petition of several citizens of Hastings, Oswego county, for a law to authorize the overflowing certain lands." Mr. A. C. Hand, from the committee on the judiciary, to which was referred the "petition of several citizens of Hastings, Oswego county praying for a law to authorize the overflowing certain lands for hydraulic purposes" respectfully

REPORTS:

That the committee have had said petition under consideration.

The petitioners, of whom there are a respectable number, state that they are "living in the midst of a timbered country," and where the timber will be the staple of commerce if the water power of Blount's creek, which is in the immediate vicinity, can be used to manufacture the same. That one of their fellow citizens has at great expense erected a mill on said creek, but unfortunately the dam will necessarily overflow about six acres of the land of another, who demands an exorbitant price for this privilege. They ask for a law allowing this land to be overflowed for the purpose above indicated, on paying for it a reasonable compensation.

From this ex parte statement, it clearly appears that this mill may be very advantageous to the petitioners, and that the up-stream proprietor seeks to avail himself of his position to compel its owner, either to

pay an extortionate sum, or lose the use and profits of his outlay; and consequently too, that community would be deprived of important benefits.

Not having any counter statements, of course the committee do not intend to prejudge any fact, but if this be the truth of the case, such conduct is highly reprehensible and unworthy a good citizen. But your committee know no Legislative means of relief. In the language of one of our own jurists, "even to such a case the law cannot bend." No doubt his neighbors in this respect have a strong claim upon him, which honor and sound morality require should be fulfilled; but when considered as a legal question, it is believed to be an imperfect obligation, the enforcement of which is left to the tribunals of conscience and public opinion.

In some of the States, for the encouragement of manufactures and for the accommodation of the public, provision by law for similar cases has been made. But in this State a different view has been taken of private rights.

A law transferring the property of one individual to another for the use of the latter without compensation, all admit, would be unconstitutional and a nullity. From the Magna Charta down, such a doctrine would be in direct derogation of our dearest rights. Indeed, that would be a violation of a natural right, and consequently malum in se. But were compensation to be added, the objection of want of power is not thereby removed. The Romans held private property in such cases inviolate; and even the wicked Ahab felt the force of the rule. It is only when taken "for public use," and upon rendering just compensation, that the power exists. A more correct expression perhaps is, when taken because the necessities of the public absolutely require it." This would better accord with the best elementary writers on the subject. It is clear that property cannot be so taken for ornament or pleasure. So the Romans understood it, and such is the plain meaning of our own Constitution, and of the "Constitutional Charter" 66 given" by Louis 18, in 1814, and "accepted" by Louis Phillipe in 1830; and such too, nothwithstanding the oppressive contemporaneous forest laws of England, is the true reading of the Magna Charta of that country. Still it cannot be denied that the general phrase, "public use," or "public utility," and perhaps "mere public convenience," is well adapted in many respects to the practice of the present day.

Grave doubts have arisen whether the power must not be executed by the direct agency of the public officers. But in this State, after the Legislature has exercised the right of sovereignty in deciding as to the necessities of the public and the expediency of the case, individuals, to whom a franchise for that purpose has been granted, have been allowed to erect works supposed to be beneficial to the public. It is so with our railroads. After the Legislature has declared the road to be necessary and for the public good, the corporators are allowed to enter upon the designated track, and on making compensation, take private lands. In this case the exercise of the right, both as to the manner and extent, has certainly been carried to the utmost verge of the power. The public, it is true, have certain claims upon the company, and the road may be of great general convenience; but the agents, and the property, and the emoluments, do not belong to the public, and the accommodations afforded to that public are left to the supervision of the company and meted out as its interests dictate. Your committee are not disposed to recommend that he exercise of this power be further extended, even could that be done.

The important inquiry is, what shall be deemed such general advantage, and such sufficient "public use," as are required to render the exercise of the right of eminent domain justifiable and legal? Or in other words, when does the right exist.

As to the particular case before us, it is believed that no State, except Massachusetts and Maine, has carried the doctrine to the extent required to graut this petition. Some of the other States have made certain regulations in relation to the subject, but to a very limited extent. The first statute in Massachu setts, and to which that of the State of Maine undoubt edly owes its paternity, was passed nearly a century and a half ago, when mills and manufactories were scarce and matters of great public necessity, and land abundant and comparatively valueless. Perhaps at that day these erections would come within the most

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It is difficult to adopt any inflexible rule by which to determine when the exigencies of the community will justify the use of this power; as, how many, and to what extent, others must be benefitted. Churches, manufactories, printing-offices, mineral springs, inns, telegraphic stations, country stores, aud many other matters, may be convenient to the people; but no one supposes it right to strip a citizen for their establishment. Works purely public, owned and managed by the public officers, as our canals, highways, &c., seldom create a jealousy of this power, But in all cases where the public convenience is subserved only incidentally, and the direct object is private advantage, your committee think the rule should be stringent, and has already been sufficiently relaxed. There is in all governments a tendency to monopoly and combination of power and wealth. The splendor and eclat attached to great works, particularly those in some measure convenient to the public, are apt to override the solitary right of the individual. Schemes of aggrandizement, even though at public expense, never want advocates. It is the duty of the statesman to protect the rights of every private citizen, however humble, and then all will find protection. The natural allies, franchise and associated wealth, will take care of themselves. It is only in accordance with the principle, "salus populi suprema lex," that private property can be taken at all without the owner's consent. The exercise of this power beyond that is unconstitutional. It is taking property "without due process of law," for the law does not allow it. Whether there is any tribunal empowered to review the decision of the Legislature, the only depositary of this power, is another question not affecting the principle of the case.

The true rule undoubtedly is, that the public good must be the direct and natural fruits of the exercise of the right of eminent domain, and its only moving cause wholly irrespective of any incidental private emolument.

Your committee believe the class of cases to which the application referred to them belongs, at least at this day and in this State, is clearly not within this rule. They have examined this subject more at length because of the principles adopted in some of our sister States for whom they have great respect. But in their opinion the matter is very clear upon the soundest principles of political economy and constitutional law.

They ask leave to offer the following resolution: Resolved, That "the petition of several citizens of Hastings, Oswego ceunty, praying for a law to authorise the overflowing of lands for hydraulic purposes," be denied.

THE $1500 VOTED TO THE CHARLESTOWN VOLUNTEERS.

We learn from the Bunker Hill Aurora that the Supreme Court of Massachusetts, at Lowell, on Monday last granted a temporary injunction, to be made perpetual at the October term, to restrain the present treasurer of the town of Charlestown, Mass., and his successors in office, from paying over the $1500 voted by the town at the town meeting in January last, to be distributed to Captain Barker's company of volunteers. This decision declares the vote of the town to be illegal and settles the matter as far as concerns the

town.

Earthquake at Martinique.-On the 29th of October 1727, a dreadful earthquake happened here, which continued for 11 hours together, with very little intermission, and was felt several days after, whereby half of St. Peter's Fort was shook down, one mountain sunk, and another cleft in two so that a large stream of water issued from it, and above 200 sugar houses were destroyed by the shocks, besides churches, tenements, &c., and the loss of several lives.-Universal Magazine for Dec. 1758.

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