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is well that the Convention should think for a moment of the history of this proposed amendment in its various forms. In the first place, the amendment was proposed by Mr. Marks, which provided that in all cases where land was taken by private corporations, that the value of the land should be determined by a jury. That amendment was referred to the Judiciary Committee. The Judiciary Committee having it under consideration, I presume, seeing that in that form it would be for the interests of the elevated railroads in the city of New York, reported it adversely; but the Judiciary Committee made the mistake of not telling the Convention why they reported it adversely. They kept that information to themselves, and so, without having any opportunity whatever to amend this proposed amendment, so that it would not be for the benefit of the elevated railroads of New York city, the amendment was voted down. Now, I ask the gentlemen of the Convention to look at the question for one moment in another light, and see if this proposed amendment is not fair. Bear in mind, that while this gives to the owner of lands the selection of the tribunal which shall determine its value, the owner of the land never has any choice as to what property shall be taken away from him by the private corporation. We will suppose I own a farm, and some railroad enterprise comes along and proposes to run this railroad through my farm. Do they ask me where they shall be permitted to go through my farm? Do they make any bargain with me? Will they consult me at all? Not so. They simply send their engineers and surveyors upon my land, and if they want to run through my house, they run through it; and if they want to go through my barn, they go through that, and they cut their road through any part of my property that they see fit. Gentlemen, give to the corporation that power to select just what it may see fit to take from my property, giving me no voice whatever in the matter, is it not fair, is it not just, that in determining the value of what they have taken, I shall have the right of selecting the tribunal? And after we have glorified the jury in the manner that we have done, is it not my privilege, as a citizen of the State, if I see fit, to demand that those damages shall be determined by a jury? Now, gentlemen, this proposed amendment has created some little comment on the part of the press, and it has been insinuated that when it was first brought in it was proposed for the benefit of the elevated railways of the city of New York. Possibly in the form in which it was introduced, it might have inured to their benefit, but such I know was not the intention of the introducer. Now, however, it comes before this Convention in a different form, robbed of anything in it of that character which might have made it repellant to
us or repugnant to the people who are to pass upon it. I read just a few words from the "Mail and Express," which devoted a long editorial to the consideration of this proposed amendment. Referring to commissions appointed by the courts to determine the value of property taken by private corporations, it uses this language: "Such boards are, of course, appointed with a view to the special fitness of their members to pass upon questions of values, which are not by any means easy to present to a jury or easy for an ordinary jury to determine." Selected, mark you, for their special fitness. I emphasized those words. They have been selected apparently in the city of Brooklyn for their special fitness, and these commissions have gone to certain parts of the city of Brooklyn condemning easements which had been taken away by the elevated roads, and in case after case have given to the property owners six cents damages; and the wrong has been so flagrant that our judges in the county of Kings have not hesitated in every instance where the matter has been brought before them, to set aside the award of the commissioners, and every action has in every instance where it has been carried to the General Term been sustained by that appellate body. It is also suggested in this same article, that "the result of sending condemnation proceedings to a jury would be to overcrowd the court calendars, which are already crowded enough, and to give the Manhattan Railway Company still more time for the payment of damages due sixteen years ago. Gentlemen, if it is necessary, to do justice to the citizens of this State, to crowd our court calendars, then let us crowd them, and if they become too crowded, then let us increase the number of our judges. Let us, above all things, do justice to the people. I also find this: " Anyone can see how entirely unsuitable a jury is for the trial of such questions; " that is merely a bit of special pleading. If the railroad or any other corporation takes away a part of your property, is there any tribunal more competent to decide its value than a jury of twelve men from the vicinage? I submit not; and I believe, too, if we fail to pass this amendment in its present form, that the charge will be laid at our door that we favor legislation of a discriminating character in the interests of private corporations; and, for that reason, I sincerely hope that we shall adopt this amendment and submit it to the people.
Mr. Dickey- Mr. Chairman, when this amendment was considered before this Convention on the question of agreeing with the report of the committee, I voted to sustain the report of the committee and against the amendment then proposed. As I am about to vote otherwise now, in its new form, I rise to state my reasons briefly. Commissions in condemnations proceedings in the main
have worked well in our part of the country. Our judges have appointed good commissioners. Ordinarily, we agree upon them, and when we cannot agree, our judges have no specal favorites. and appoint good, fair, competent men to discharge the duties of commissioners; so that we have no grievance with respect to commissioners passing upon the questions of taking private property for public uses. The amendment as then proposed gave either party the right to call a jury. As I desire to retain to our people the right to have a commissioner when they prefer, rather than a jury trial, I then voted against the proposition; but, as I understand it now, and in the amendment as now proposed by Mr. Marks, not in the bill as reported, but as he proposes to amend it, it gives the land owner alone a right to choose a jury in cases when he wants to, I am in favor of that proposition for the reason that in any such contingency, a man whose property is taken against his will, an unwilling seller, ought to have the right to have the question passed upon by a jury, if he elects so to do. Therefore, in the amended form, I am in favor of the amendments as proposed by Mr. Marks.
Mr. Marks Mr. Chairman, the Committee on Preamble have reported this amendment to the Convention as I introduced it. They have come to the conclusion that it is right that the right to a trial by jury should be had when the owner of the property requires it. That is the report of the Committee on Preamble, and I have not now taken the time of this committee to discuss the question all over again; I spent nearly two hours when this question was up before; and I shall not repeat all of my reasons then given for making this change in the Constitution. I presume the gentlemen remember them. I have not stated all my reasons to-day for exempting municipal corporations. They are fully and completely set out in my argument made when the question was here before, and I do not want to burden this Convention with repeating them. The reasons which I gave, when this question was last before you, I consider are sufficient for embodying this principle in our Constitution. You will thus secure to the people the right to a jury trial, and prevent private corporations from selecting their commissioners to give six cent awards, when they should, and a jury would, give substantial damages; you will thus stop the practice of private corporations suggesting to the judge the name of one commissioner, and the party the other, and the judge the third. Two out of these three commissioners are permitted by law to fix the compensation, and the influences which may be and have been charged have been brought to bear by the corporations on the commissioner appointed by the judge to obtain small awards, are familiar to us. I have gone
all over the subject before, and I do not think you want me to go over it again. I submit the amendment in the form in which I believe it ought to be passed to secure the people their substantial right of a jury trial. I have taken from the Code of Civil Procedure the exceptions made there.
Mr. Ackerly Mr. Chairman, the amendment that has been proposed here, I think, has been discussed principally in regard to its relations to city property. It occurs to me that this is going to have quite an effect upon matters throughout the country districts especially. Previous to about two years ago, juries were permitted in all cases of taking lands for road purposes. In the revision that occurred then, that was abolished, and it was established that the commission should be appointed by the County Court. The jury system was found to be cumbersome. It was found that on many occasions it was advisable to adjourn the case over, and the substitution of a commission in such contingencies had been found, at least in our county, to work well. We found no complaint against it. It occurs to me that if this is adopted here, perhaps it would be taken advantage of by some captious owner of property for the sake of delay, and I suggest whether there ought not to be an exception made here as to land taken for highway purposes.
Mr. Marks Will the gentleman allow the Secretary to read the amendment as I have proposed it? I have excepted every division of the State that the Code excepts at present, and have only applied it to private corporations, and if this amendment is adopted it will not affect any proceeding to take property for a highway or public place in any city or village. It applies only to private corporations, such as railroads and any other private corporation which is permitted by law to take property for so-called public use.
Mr. Ackerly-It would require, also, an entire revision of the present method of getting a jury.
Vice-President Alvord here took the chair and announced that the hour of five o'clock having arrived, the Convention stood in recess until eight o'clock this evening.
Thursday Evening, August 16, 1894.
The Constitutional Convention of the State of New York met in the Assembly Chamber, in Albany, N. Y., August 16, 1894, at eight o'clock P. M.
President Choate called the Convention to order.
Mr. Farrell presented, by telegram, a request to be excused on account of engagements at home during the balance of this week. The President put the question on the request of Mr. Farrell to be excused from attendance, and he was so excused.
Mr. Wiggins - Mr. President, I would like to be excused from attendance from the Convention on Saturday next. Also, Mr. Lester was called away to-day unexpectedly, and desires to be excused from attendance to-morrow.
The President put the question upon the requests of Mr. Wiggins and Mr. Lester to be excused from attendance, and they were so excused.
Mr. Peck Mr. President, I have a matter of business that was arranged for Saturday before the change in the rules. I would like to be excused from attendance on Saturday.
The President put the question on the request of Mr. Peck to be excused from attendance, and he was so excused.
Mr. Lauterbach - Mr. President, I desire to be excused to-morrow and Saturday.
The President put the question on the request of Mr. Lauterbach, and he was so excused.
Mr. Goodelle Mr. President, I am compelled to ask to be excused from attendance on Saturday of this week, on account of matters that cannot be postponed.
The President put the question on the request of Mr. Goodelle to be excused, and he was so excused.
Mr. Pool Mr. President, in view of all the members getting excused, I desire to ask to be excused from attendance from to-morrow afternoon until Tuesday morning.
The President put the question on the request of Mr. Poole to be excused from attendance, and he was so excused.
Mr. A. H. Green - Mr. President, before the rule was made prescribing three sessions a day, supposing Saturday would be a dics