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fashion in this Convention, when gentlemen desire to discredit a proposition which has been made, to say that it is not organic but that it is legislative, or else they say that it is in the interest of some corporation, in order to give it a bad character. This it seems is a rule that is adopted by even the friends of some incipient corporations, or those who expect perhaps to be interested in them. of saying that some other corporation may profit or get rights under the proposition. It seems to me that it is no matter who may get rights. We are making organic law here or are proposing organic law for all the people of this State, whether it may be individuals, partnerships, joint-stock associations or corporations, which are made up, of course, of individual stockholders. Now as to the suggestion that this is special legislation, or that it is legislation; if it be legislation, then the whole section which is proposed to be amended was legislation, and has been from the time when the Constitution was formed. Therefore, to act upon that suggestion would be to move the repeal, or to suggest that that section be repealed or taken out of the Constitution. It seems to me that the proposition which is suggested to be put in here by way of amendment, does not change the section at all as to its real meaning, or what was intended by it when the section became a part of the Constitution; because the section as it stood before this proposed amendment, and as it stands now, provided that where property was taken for public use, and that included the quasi-public use of taking it for the benefit of corporations, like railroad corporations, the damages should be assessed either by a jury or by commissioners, and then was attached the provision that that option might be exercised by the Legislature. Now, in my mind, at least, there is no doubt that it was the intention then that the Legislature would pass that option over to the individual, or the person or company whose land was being taken; but the Legislature exercised the option itself instead of giving it to the person, and made the provision that it did.
I would like to call attention to the history of the legislation that has been had under this section. The Legislature first provided that in cases where property was taken for public use by the State or by municipal corporations, as, for instance, in case of taking land for highways, that the damages should first be assessed by commissioners appointed by the Court of Common Pleas, or the County Court of the county, as it afterwards became. It then provided that in case the party whose land was taken was dissatisfied with that, he could take an appeal from that assessment in a very simple way, by giving notice to the commissioners of the highway, or the proper officers, that at a certain time he would appear before the
town clerk of the town and have a jury drawn for the purpose of reassessing those damages, and it was done; they were drawn from the jury list of the town. I have been in several of those proceedings, and I can say that the proceedings upon that appeal before the jury were much cheaper, much quicker and easier gotten along with than were the proceedings before the commissioners previously. The commissioners were entitled to three or four dollars a day. Their fees were stipulated, and they would spend several days, adjourning from time to time. The jury's fees were fixed by law, and nobody could change them. They met and looked over the property, heard such witnesses as they wanted to, and made a finding at once.
So there was given by the Legislature in those cases both rights, first by the commissioners and then by a jury. But when the railroad corporations began to grow up and provision was made for their taking land, the only provision which was made was that the damages should be assessed by commissioners. There was no appeal in particular from that, except as to whether their proceedings were regular or whether they had violated any rules of evidence in the proceedings before them, and, if so, that could be reviewed before the judge before whom the report came for confirmation. If there was an error, then other commissioners were appointed and a new trial was had. This matter continued along for some years. There began to be dissatisfaction with these commissioners who were being appointed. It was felt that they were, perhaps, interested parties; parties whose land had been assessed were not satisfied with the way things were going, and thought that they ought to have an appeal to a jury as in other cases. Application was made to the Legislature from time to time to have the law changed in those cases where property was sought to be taken for a quasi public purpose, and at the same time for individual use, as it might be said to have it assessed at least in the same way, by the review of a jury if the parties were dissatisfied with the finding of the commissioners. The result was that the matter was equalized, not in that way, but by changing the manner of assessing the damages in the other cases where the property was taken by towns by wiping out the jury clause.
Now, as I say, this provision simply comes in here and assures to the individual whose property is taken, or to any person, whether he be a natural person or otherwise, the right that I think was intended to have been given by the other section of the Constitution. Is assures it to him only in that one class of cases. It has been suggested here that there is a general wrong in this section,
if it can be that property may be taken before the price for it has been paid. My understanding is that it cannot. If the party whose property is being taken is willing and desires to insist upon that right, he has his remedy by bringing action for an injunction to restrain the public, or to restrain the corporations which seek to take his property, from entering upon or using it, until they have paid him his money. In cases of municipal corporations, the rule is generally that when the damages are assessed the person whose land is being taken knows that his money is surely to come, the compensation which has been fixed will surely come, but that he has to go through with the usual course of having the money raised by taxation or in some other way, and so he allows them to enter, allows the public to go on with its road or its public work, whatever it may be, knowing that his money must come. If there is any failure, then he can bring his action to set aside what has been done, or his mandamus to enforce the right to it. In case of a railroad corporation, it is found by experience that the company must have title to its land anyway. It gets no title until it has paid the compensation that has been assessed; therefore, it cannot give a mortgage to secure bondholders and make the necessary loans which must be made to go on with its business.
So that adjusts itself in that way, or, if the party is not satisfied to wait, he can bring an action for a permanent injunction, and have a temporary injunction restraining the entry upon his lands until the money has been paid; and the company must then come in, and, if it desires to immediately go on, it may have the injunction vacated upon its giving bonds, or making a deposit to cover the payment of such damages as may accrue, and it goes on. But really in that case it amounts to a payment or securing payment before the entry is made, unless the party may waive it, knowing that the money must necessarily come to perfect the title.
Now, I can see no harm, I can see no colored gentleman in the fuel-pile here at all, as some sharp-eyed people would seem to infer that there might be. It is a very plain statement that in case an individual's property is being taken, whether it is a natural person or a corporation, that he has the additional right of electing which he will have to assess the damages-a jury or commissioners. appointed. I can see no reason why this should not be a part of the law. I can see many reasons why it should; and that this section should be made definite and certain by limiting the power of the Legislature, when we have seen how it has been exercised by providing right here that the individual in those cases shall be permitted to exercise the option instead of the Legislature, when in
that case the Legislature is really wiping out one of the alternatives that are given by the State.
Mr. Alvord Mr. Chairman, for the purpose of permitting the Convention, when they shall get therein, to vote directly upon this subject, and to sit again, if they so desire, I move you, sir, that the committee do now rise, report progress and ask leave to sit again.
The Chairman put the question on the motion of Mr. Alvord, and it was determined in the affirmative, whereupon the committee arose and the President resumed the chair.
Mr. Durfee- Mr. President, the Committee of the Whole have had under consideration the proposed constitutional amendment (printed No. 385), entitled, “ Proposition to amend section 7 of article I of the Constitution, relating to the taking of private property for public use," have made some progress in the same, but not having gone through therewith have instructed the Chairman to report that fact to the Convention, and ask leave to sit again.
The President - The question is on agreeing to the report of the Committee of the Whole.
Mr. Alvord Mr. President, I move that we disagree with the report of the committee, and that the amendment be rejected, and upon that I move the previous question.
Mr. Dean - Mr. President, I call for the ayes and noes.
Mr. Marks Mr. President, I rise to a point of order.
The President - The gentleman will state his point of order.
Mr. Marks My point of order is that no delegate, after moving. in the Committee of the Whole to rise and report progress and for leave to sit again, can, by any such scheme, when the committee has risen, ask to disagree with the report of the committee and thus attempt to kill the measure, and at the same time and in the same breath move the previous question without giving gentlemen an opportunity to debate the motion to disagree. I do not think it is fair, I do not think it is in order to move to disagree with the report, and at the same time move the previous question, and cut off all debate.
The President The point of order is not well taken. The Chair will state that the question and the only question to be put is on agreeing with the report of the committee asking leave to sit again. If that should be refused, then, under rule 29, the amendment would be subject to the disposition of the Convention.
Mr. Dean's call for the ayes and noes was sustained.
Mr. Vedder - Mr. President, permit me to ask whether the question now is upon agreeing with the report or disagreeing with it? The President - The question is upon agreeing to the report. The Secretary proceeded with the call of the roll.
Mr. Marks Mr. President, I ask to be excused from voting, and will briefly state my reasons. I do not believe that this is a fair way to treat so important a question. I am still of the opinion, Mr. President, that corporations have been endeavoring to create a false impression as to the nature of this amendment. If this committee is given leave to sit again and the members are dissatisfied with the form of the amendment proposed, if that amendment is beaten in Committee of the Whole, the committee may consider an amendment to the effect that the Legislature shall not pass any laws preventing the appeal to a jury by the owner of the property, from the award of commissioners, the jury to be summoned at once upon application of the owner, and providing that when such appeal is taken the person or corporation taking the property shall, upon depositing with the court the amount awarded by the commissioners, be entitled to enter into the possession of the property condemned. That would remove all other objections that the delay of going to a jury will interfere with the rights of the people in any way, and, if you provide for summoning a jury of freeholders, the cases will not take the course of other actions, but would be disposed of in two or three weeks, and at one session. It would be speedy and honest justice. I think this motion for leave to sit again should prevail so that we in some shape can get the principle embodied in our Constitution giving the people the right to a jury trial in some form or another. I vote aye.
Mr. Powell Mr. President, as one of those who have taken some interest in this proposed amendment, I ask to be excused. from voting, and will state my reasons. Every effort has been made by those who are opposed to this amendment to avoid a fair discussion of its merits and to mislead the minds of those who have desired to vote fairly upon it. There is only one question involved in this proposed amendment, and that is whether or not the man whose property is taken by eminent domain by a private corporation shall be denied the right of a trial by jury. Some weeks since we glorified the jury as the one perfect tribunal for the determination of justice between individuals. To-night we evidently intend, by our votes, to say that while the jury is good enough to determine between individuals, as to rights in dispute, that when it comes to a private corporation, a jury is not good enough. We