article it is provided, 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. Private roads may be opened, in a manner to be prescribed by law; but in every case the necessity of the road, and the amount of all damages to be sustained by the opening thereof, shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the persons to be benefited;" and by the 9th section of the eighth article, that "it shall be the duty of the legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in as sessments, and in contracting debt by such municipal corporations."

These provisions of the constitution for the most part remain yet to be acted on. Seeing therefore that laws on this subject must speedily be made; that whenever made they must prescribe a course of proceeding in the courts; we could not submit to the legislature a complete code of procedure, without including this subject also.

It will not be supposed, that the few provisions which follow, provide for the whole subject of assessments. On the contrary there are many others necessary, to specify the kind of improvements for which assessments may be made, the persons who may be assessed, the extent of the assessments, and the rules by which the commissioners are to be governed, in their estimates. These must be the subject of particular legislation.

The law passed in the session of 1848, on the subject of private roads, (chap. 77,) and the 10th section of an act passed in 1847, (chap. 455,) will of course be repealed, upon the adoption of these provisions. The title of the Revised Statutes on the draining of swamps, marshes and other low lands (2 R.

S. § 548,) has not been incorporated into this, because it has been declared by the supreme court to be unconstitutional.

§ 1484. Assessments, whether for benefit or damage, authorised by any statute of this state, must, in the first instance, be made by three commissioners appointed by the county court of the county, in the following ca

ses:

1. When specific property, real or personal, is taken from the owner and appropriated to public purposes:

2. When the owner of property is required to use, or dispose of, it in a particular manner, for the public benefit; and

3. When a contribution in money is required, towards the expense of local improvement.

Though, as has been said in the last note, it would be leading us too far to enter upon an examination of the right of government, to impose some of the assessments, which are laid under existing laws, about which, however, grave doubts have been expressed, yet the remark may not be out of place, that the cases enumerated in this section are all in effect, whatever they may be in name, cases of appropriation of private property. There should seem to be little difference in principle, between a direct sequestration of property for the use of the state, or the compelling of the owner to use or change it himself for a similar purpose, or what is the same thing, compelling him to pay for it, when others do it. It matters little to the proprietor of a city lot, whether he is required to surrender half of it to public officers for public purposes, or to sink half of it in making a change, by the orders of the same officers.

Two things are certain that private property may be assumed by the state, by virtue of the right of eminent domain, when the state requires it; and also that whenever the owner of property cannot have the full enjoyment of it, with

out reaching beyond it upon his neighbor's property, the state may authorize a qualified interference with his neighbor, applying to him in his turn the same rule. This last rule applies in the case of fences, roads, bridges, aud sewers. No man can enjoy his property wholly by himself. The full enjoyment of his own requires, that he should give to his neighbor and take from him, to a certain extent. Upon this ground, contribution between coterminous or joint owners, is required. So far as assessments are covered by these principles, they are rightful beyond dispute ; whether they are defensible, if they go further, is a question into which we cannot go.

§ 1485. The appointment of commissioners must be made upon a previous notice from the party, in whose name the application is made; and none but freehold ers of the county can be appointed.

§ 1486. The notice must be given by advertisement, published in a newspaper of the county, not less than once a week for three weeks.

1487. From the time of their appointment, the commissioners, and all their proceedings, shall be under the control of the court, which may, in its discretion, direct the time and place of meeting of the commissioners, and the time of making their report. The court also has control over all the proceedings subsequent to the report of the commissioners including the sale for the assessment, if a sale be made.

§ 1488. Any person, interested in the assessment, may make himself a party to the proceedings, by giving to the commissioners written notice of his wish to be made a party, stating his name and address; and thereafter is entitled to have at least six days notice of the meeting of the commissioners, of the time of presenting their report, and of the sale, if any. The notice must be served by delivering it to him personally, or sending the same through the post office to his address; except that when a party comes in after notice already given to the existing parties, a new notice to him is not necessary. But the failure to give the notice required by this section, does not affect the jurisdiction of the court.

§ 1489. The report of the commissioners may refer to a map annexed, accurately tracing the boundaries of property taken or assessed, and need not otherwise describe such property in detail. On receiving the report, the court may confirm or modify it, or may reject it, and order a new report to be made by the same or other commissioners.

§ 1490. Any person interested, may present in writing objections to the report, the facts stated in such objections being verified by oath. The court must decide upon the objections, but if it appear to the court, that there is a fact in dispute between the parties, whether such fact be the amount of damages or otherwise, and a trial thereof by jury be demanded by either party, such trial must be ordered.

§ 1491. When there is a trial by jury, the court may exercise the same control over the jury and the verdict, that is exercised in civil actions, and may thereupon make a final order in the case.

§ 1492. Any sale or lease made for the purpose of satisfying the assessments, mentioned in the third subdivision of section 1484, must be made within three year after the confirmation of the report of the commissioners. Such sale must be reported to the court, which may confirm it, or for good cause order a re-sale, but no sale can in any case be made, or lease granted, for a longer period than twelve years.

§ 1493. The commissioners are entitled for their services, to the same fees as referees, but such fees, in the aggregate, can never exceed one hundred dollars to each commissioner. Necessary surveyor's fees, no texceeding two hundred dollars, and clerk's fees, for copies of papers, at the rate of five cents for every hundred words, may also be included in the assessment. No other fees, costs or expenses of any kind, for any local improve