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the wharves, piers, and slips available for commercial
That portion of the wharves and piers belonging to the Corporation !!: a boon 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 wbarfage must be borne by the produce of the country, and by articles of merchandize required for its consumption.
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 must 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.
February 23, 1847.
of several citizens of Hastings, Oswego county, for
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 hy. draulic 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 inmediate vicinity, can be used to manufacture the saine. That one of their fellow citizens has at great expense erected a mill on said creek, but unfortunately the dain 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 overtlowed 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 tho up-stream proprietor seeks to avail himsell of his position to compel its owuer, either to
pay an extortionate sum, or lose the use and profits of stringent rules on the subject, and clearly called for his ontlay; and consequently too, that community the sacrifice of private convenience. We cannot say would be deprived of important benefits.
that the assumption of private property under those Not having any counter statements, of course the circumstances was unjustifiable. Your committee committee do not intend to prejudge any fact, but if
fully subscribe to the doctrine, that it is incident to this be the truth of the case, such conduct is highly the sovereignty of every government, that it may take reprehensible and unworthy a good citizen. But private property for public use when public vecessity your committee know no Legislative means of relief.
demands it; of which the government must judge. In the language of one of our own jurists, " even to
But it does not follow that property can always be such a case the law cannot bend." No doubt bis neigh
taken whenever it can be put to public use. That bors in this respect have a strong claim upon him,
wonld be intolerable. which honor and sound morality require should be It is difficult to adopt any inflexible rule by which fulblled; but when considered as a legal question, it to determine when the exigencies of the community is believed to be an imperfect obligation, the enforce- will justily the use of this power; as, how many, and ment of which is left to the tribunals of conscience to what extent, others must be benefitted. Churches, and public opinion.
manufactories, printing-offices, mineral springs, inns, In some of the States, for the encouragement of telegraphic stations, country stores, aud many other manufactures and for the accommodation of the pub- matters, may be convenient to the people; but no lic, provision by law for similar cases has been made. one supposes it right to strip a citizen for their estabBut in this State a different view has been taken of lishment. Works purely public, owned and managed private rights.
by the public officers, as our canals, highways, &c., A law transferring the property of one individual to seldom create a jealousy of this power, But in all another for the use of the latter without compensation,
cases where the public convenience is subserved only all admit, would be unconstitutional and a nullity.
incidentally, and the direct object is private advanFrom the Magna Charta down, such a doctrine would tage, your committee think the rule should be strinbe in direct derogation of our dearest rights. Indeed, gent, and has already been sufficiently relaxed. There that would be a violation of a natural right, and con
is in all governments a tendency to monopoly and sequently malum in se. But were compensation to
combination of power and wealth. The splendor and be added, the objection of want of power is not there
eclat attached to great works, particularly those in by removed. The Romans held private property in
some measure convenient to the public, are apt to such cases inviolate ; and even the wicked Ahab felt override the solitary right of the individual. Schemes the force of the rule. It is only when taken " for
of aggrandizement, even though at public expense, public use," and upon rendering just compensation,
never want advocates. It is the duty of the states. that the power exists. A more correct expression man to protect the rights of every private citizen, 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, accord with the best elementary writers on the subject.
will take care of themselves. It is only in accord 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 that private property can be taken at all without the such is the plain meaning of our own Constitution,
owner's consent. The exercise of this power beyond and of the “ Constitutional Charter"_“ given" by
that is unconstitutional. It is taking property " withLouis 18, in 1814, and “accepted” by Louis Phillipe
out due process of law,” for the law does not allow in 1830; and such too, nothwithstanding the oppres
it. Whether there is any tribunal empowered to resive contemporaneous forest laws of England, is the
view the decision of the Legislature, the only depotrue reading of the Magna Charta of that country. sitary of this power, is another question not affecting Still it cannot be denied that the general phrase,
the principle of the case. “ 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
must be the direct and natural fruits of the exercise of to the practice of the present day.
the right of eminent domain, and its only moving Grave doubts have arisen whether the power must
cause wholly irrespective of any incidental private not be executed by the direct agency of the public
emolument. officers. But in this State, after the Legislature has
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 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
rule. They have examined this subject more at length 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. It is so with
States for whom they have great respect. But in our railroads. After the Legislature bas declared the their opinion the matter is very clear upon the soundroad to be necessary and for the public good, the cor
est principles of political economy and constitutional 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: this case the exercise of the right, both as to the man- Resolved, That “the petition of several citizens of ner and extent, has certainly been carried lo the ut- Hastings, Oswego ceunty, praying for a law to authormost verge of the power. The public, it is true, have
ise the overflowing of lands for hydraulic purposes," certain claims upon the company, and the road may
THE $1500 VOTED TO THE CHARLESTOWN the public, and the accommodations afforded to that
VOLUNTEERS. public are left to the supervision of the company and
We learn from the Bunker Hill Aurora that the meted out as its interests dictate. Your committee are not disposed to recommend that the exercise of
Supreme Courtof Massachusetts, at Lowell, on Monday
last granted a temporary injunction, to be made perthis power be further extended, even could that be
petual at the October term, to restrain the present done. The important inquiry is, what shall be deemed
treasurer of the town of Charlestown, Mass., and his such general advantage, and such sufficient “public
successors in office, from paying over the $1500 voted
by the town at the town meeting in January last, to use, as are required to render the exercise of the
be distributed to Captain Barker's company of volunright of eminent domain justifiable and legal ? Or in
teers. This decision declares the vote of the town to other words, when does the right exist.
be illegal and settles the matter as far as concerns the 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 Earthquake at Martinique.-On the 29th of October this petition. Some of the other States have made 1727, a dreadful earthquake happened here, which certain regulations in relation to the subject, but to a continued for 11 hours together, with very little intervery limited extent. The first statute in Massachu mission, and was felt several days after, whereby half setts, and to which that of the State of Maine undoubt of St. Peter's Fort was shook down, one mountain edly owes its paternity, was passed nearly a century sunk, and another cleft in two so that a large stream and a half ago, when mills and manufactories were of water issued from it, and above 200 sugar houses scarce and matters of great public necessity, and land were destroyed by the shocks, besides churches, teneabundant and comparatively valueless. Perhaps at ments, &c., and the loss of several lives.-Universal that day these erections would come within the most Magazine for Dec. 1758.
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