the owner such damages or compensation as they might, agree upon, and providing for an assessment in case of disagreement.

Some litigation grew out of this act, and there is one case reported in 10th Wendell 163; Baldwin vs. Calkins, but no question is made of its constitutionality.

Another law of that state entirely analagous to the proposed law, was the act passed in 1804 for draining swamps and bog meadows in in the counties of Orange and Dutchess, which enabled any one or more of the proprietors of such swamps and bog meadows to have them drained at the joint expense of all the proprietors, and permitted them to continue the ditches dug for that purpose, through the lands of the persons adjoining such swamps, paying the owners of said lands the damage, and providing for an appraisal in case they could not a gree. A case of litigation arising under this act is reported in 2 Johnson's Ch. Reports 463; Belknap vs. Belknap, but its constitu tionality is not questioned. That state also passed a similar act in 1825 for draining marshes on the Seneca river.

In Maine the statuary provisions are similar to those of Massachu setts, and also in Rhode Island.

In North Carolina every water grist mill or wind mill which grinds for toll, is by law, a public mill. Where a person owning land upon only one side of a stream, wishes to erect such mill, he may petition the county court, who shall notify the opposite owner, and cause to be laid off sn acre of land on each side, by commissioners. If it can be done without taking away houses, orchards, gardens or other immediate conveniences, the petitioner may have leave to erect a mill, paying the valuation money for the acre of land, and procuring a record thereof, which gives him a title in fee simple.

In Virginia also, the statute makes a similar provision where a person owning lands on one side of a stream, but does not own the opposite lands, and desires to build "a water grist mill or other machine or engine of public utility."

In Kentucky the same provisions exist, extending to any kind of water works.

In Mississippi also, the provisions of the statute are nearly the same as in Virginia.

In Alabama every water grist mill which grinds for toll is also de

clared a public mill, and contains similar provisions with the act of Virginia.

In Tennessee, the provisions for the erection of mills, are the same as in North Carolina.

In Missouri, Illinois and Indiana, similar provisions also exist.

Such is a brief review of the laws of some of the States on this subject, and not in a single adjudicated case, so far as your committee can ascertain, have either of them been adjudged unconstitutional.

In our own State, notwithstanding the want of such a law as those above mentioned, mills are nevertheless recognized as having a public character, and are subjected to peculiar liabilities as resulting from that character. Thus, they are compelled to grind for every body— the rate of toll is regulated by law-are compelled to provide sealed measures; and regulations are made for rebuilding or repairing mills at the joint expense of all the owners on the rate of a majority in interest. The minority in interest are thus compellable to sustain their share of the expense, though such re-building or repairing may be against their will-a provision which your committee submit, is quite as liable to the objection of unconstitutionality as the proposed law, and which can only be sustained on the principle contended for-the public utility and advantage of mills.

It is on this principle, and this alone, that the proposed law rests its claims. The public benefit is the basis on which it rests, and not the advantage that individuals may derive from it. The latter, as your committee have before remarked, is a mere incident, and not the primary object of the bill, and therefore does not affect the question of the validity of the law. The bill which your committee report, it will be seen, provides that the public utility of any proposed mill shall first be determined by a jury, before the person erecting it shall be authorized to appropriate the property of others. In this respect, it does not go the length of the laws in either of the other States above referred to, which allow such appropriation for any mill without any such previous enquiry; nor does it propose to divest the owner of the land of the fee, as is done in some States-but only to create an easement, so that on the discontinuance of the dam, the entire dominion of the soil will revert to such owner, and leaving him, even during

the continuance of the dam, at liberty to make any use of the land, not inconsistent with the existence of such easement.

One other consideration your committee think goes very far to settle the question of the constitutionality of the law, and which your committee think should be regarded as decisive, and with this they will close. It is the length of time that such laws have existed and have been acted upon, in so many.States, beginning as we have seen, with Mass., as early as 1714; and yet, during all this time, within which so many cases must have arisen, and so many persons have been interested to contest their validity, their constitutionality have never as we have seen, in a single instance, been shaken. In the language of the eminent counsel in the case of Beekman vs. the Saratoga and Schenectady Rail Road Company, before referred to, "the construction given to the constitution by the nation, ought to be received as the true construction; the general usage of the States is the best interpreter of the constitution." This is the best mode of arriving at the intention of the people, who are supposed to have made the constitution. In Stuart vs. Laird, (1 Cranch 229) it was held that a contemporary exposition of the constitution, adopted and acquiesced in for a period of years, fixes the construction.

On the whole, your committee are satisfied that no constitutional obstacle exists to the proposed law, and that sound policy and the best interets of the state demand its passage.

It will be remarked that the bill does not propose to take private property without a full remuneration to the owners. He is not to be put in any worse condition, while at the same time a great public benifit is to be secured. If it be not competent for a government to do this, your committee submit that government might as well not exist. The first and most important object of government is to secure the general good; its primary duty is to promote the best interests of the whole, though it be at the expense of what would, but for such public interest, be the absolute rights of individuals.

No. 12.

1

1845.

INTERNAL IMPROVEMENT OFFICE,
Detroit, March 3d, 1845.

To the President of the Senate:

SIR:-The undersigned has the honor to acknowledge the receipt of the following resolution:

Resolved, That the acting Commissioner of Internal Improvement be requested to report to the Senate at an early day, the receipts upon the Southern and Central Railroads, for the months of December 1844, and January and February 1845, with the amount of all expenditures and expenses (including salaries paid officers,) on the same during said months, with a like statement for the corresponding months of the last year.

The following table of receipts and expenditures upon the Southern and Central Railroads for the three first months of the last fiscal year, and the two first months of the present fiscal year, is all that can be communicated at this time, the amount for February not yet being perfected. All of which is respectfully submitted.

O. C. COMSTOCK, Jr.,

Acting Commissioner.