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[VOL. I.....No. 45.

THE CONSTITUTION OF 1847. The first day of January, 1847, the Constitution framed by the State Convention on the 9th of October, 1846, and ratified and adopted by the people of this great Commonwealth on the third day of November of the same year, became the fundamental law of the State of New-York-a Commonwealth of such vast geographic extent that the people residing at its extreme eastern boundary actually became subject to its provisions thirty-one minutes before that important instrument became operative at its extreme western boundary.

The members of the Senate and Assembly elected to office under the Constitution of 1821 succeed those whose terms of office expired with the last moment of The term of office of the new the year 1846. members commenced with the first moment of the year 1847, and will expire with the last moment of the 31st of December of this same year. The Legislative term in 1847 commenced on the first day of January, and after this year, on the first day of January annually, and the Legislature to convene on the second Tuesday in January, or such other day as the Legislature shall hereafter provide.

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MONDAY, August 24.

*Mr. ALLEN submitted the following minority report, he having been absent when the majority of Committee No. 14 reported:

§1. No special act for incorporating any city or village shall be granted; but the legislature shall pass general laws for incorporating, organizing and defining the duties and powers of cities and villages, including the following provisions:

§ 2. For the opening, widening or altering streets and avenues, in incorporated cities and villages, the consent of a majority of persons to be assessed for each opening, widening or altering, shall be necessary; and the assessment for such improvement shall be confined to the street or avenue to be opened, widened or altered; and no such assessment shall exceed fifty per cent. of the value of the land assessed.

3. No city or village corporation shall borrow money on the credit or liability of such city or village. or lend their credit to others, except to repel invasion or suppress insurrection, and for other purposes, except by the unanimous consent of every member elected to the common council of cities, or of every member elected to the board of trustees of villages; and also, unless by an act of the Legislature, on proof of such unanimous consent, which act shall specify the object of such law: and shall provide the ways and means, by directing a pro. rata. amount of the prin cipal of such debt to be annually assessed on and collected from the estates, real and personal, in such city or village, as a sinking fund for the redemption of such debt or liability; but such corporations may nevertheless make temporary loans in anticipation of their annual revenue, not exceeding, in any one year, twenty-five per cent. of such revenue, or for a longer period than six months.

It was read and referred to the appropriate committee of the whole.


*Mr. MURPHY moved instructions to the committee on revision to report the following section:


Ø It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and especially to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and in contracting debt by such municipal corporations.

Mr. VAN SCHOONHOVEN moved to add to the section, the following:

"But, shall not affect any existing legislative provisions respecting liabilities heretofore incurred by any city or village corporation."

Mr. NICHOLAS moved the previous question and the amendment of Mr. V. S. was negatived-37 to 39. Mr. HARRIS now moved to strike out the three last lines.

Mr. MURPHY opposed the motion. He said he inserted those lines that there might be some signification given to the resolution, which he proceeded to explain. Mr. NICOLL moved the previous question on the

whole section.

The amendment of Mr. Harris was rejected, and the section offered by Mr. Murphy adopted, ayes 94. Nays, Messrs. Dodd and Townsend-2.

Mr. HARRIS, from the committee on revision, reported back the section presented by Mr. MURPHY, and it was agreed to.

The above provision forms Sec. 9 of Art. 8, of the Constitution.

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assessors. Referred to the select committee heretofore appointed on this subject, consisting of Messrs. Townsend, Ayrault, Jones, W. B. Wright and Swackhamer. WEDNESDAY, Sept. 30.

STATE CONVENTION. TUESDAY, July 14th. EQUALIZATION OF STATE ASSESSMENTS. Mr. TOWNSEND moved an enquiry as to the establishment of a State Board of Assessors with power to equitably adjust the relative appraisement of the real and personal estate in the several counties, with reference to a just and uniform levy of the State or National direct taxation. Agreed to.


Mr. TOWNSEND moved a resolution of enquiry as to the propriety of adopting the following as a section of the Constitution:

Resolved, That the committee appointed to revise articles passed upon by the Convention be requested to consider the propriety of placing the following section in the articles respecting the creation and duties of the state officers:

. The comptroller, treasurer, surveyor and attorney general shall constitute a board to adjust the appraisement of the assessors of the several counties, of the valuation of the real and personal estate therein, and to provide for an equitable imposition of state or national district taxation.

Mr. TALLMADGE said this was a lofty principle, but he hoped the committee on enrollment would not be allowed to put any articles into the Constitution on this subject.

Mr. TOWNSEND stated that he had seen the ineffectual attempts made by the legislature to enforce by salutary laws provisions to equalize the imposition of the State tax, and he now hoped we should be enabled to establish the principle in the Constitution we were making. While the facts existed as exhibited in the returns before us, of the inequality of the Assessors' appraisement, with reference to the true value of property returned by them, he hoped no one would oppose the reference of this resolution. In the counties of New-York and Kings, the full value of the real estate (though not of the personal) was returned, whereas in the county of Albany but about one-half of the real value of property was taxed, and he believed in the county of Rensselaer even a smaller proportional estimate was made. The principle of equal taxation was a just one, and he hoped that we should not be prevented from inserting it in the Constitution, He did not care how the board of State Assessors or revisors should be constituted; in this respect he would yield to the best suggestions of gentlemen.

Mr. CROOKER: Does the gentleman suppose that all the personal property in his own city is returned? Mr. TOWNSEND: Certainly not. Nor do I for a moment suppose that 110,000,000 returned as the whole amount of personal property in the State--including the capitals of all our business incorporations and associations--represents a one-fourth part of what actually exists-it is to remedy this difficulty that I propose some constitutional action as well as the more palpable fraud of estimating real estate, in such a manner as not to bear its fair portion of taxes for other than for local and county purposes.

Mr. TALLMADGE protested against this committee of engrossment having the power to do what the resolution contemplated. It would unsettle all they had done so well, and set everything they had finished, all afloat again.

Mr. STETSON Said the Legislature had the power to regulate this matter at present. He hoped no new questions would be introduced at this late stage of proceedings. Mr. CAMBRELENG hoped no more time would be lost on this. He hoped Mr. TOWNSEND would withdraw it.

Mr. TOWNSEND: It being important, and the principle a correct one, I must press it, Sir.

Mr. CAMBLELENG moved the previous question. Mr. STETSON would not give this central power authority to go 250 miles or any where to fix the value of property.

The previous question was not seconded; ayes 47, noes 7-54. No quorum.

Mr- TOWNSEND (by consent) moved to refer the resolution to a select committee of five. Carried. TUESDAY, Sept. 29th.

Mr. TOWNSEND presented a memorial signed by Jonathan Thompson and others, citizens of the city of New-York, for the organization of a state board of

Mr. TOWNSEND presented a memorial from Brown, Brothers & Co.. of New-York, for an equalization of Referred. taxes, and a state board of assessors. THURSDAY, Oct. 1. EQUALIZATION OF TAXATION.

Mr. TOWNSEND, from the select committee on the equalization of state taxation, reported the following section:

1. The legislature shall at its next annual session after the adoption of this constitution, provide by law for equalizing the valuation of property for the purposes of taxation as made by the assessors and supervisors in the respective counties of this state: so that each county shall contribute its proportionate share to the support of government.

Laid on the table to be printed.


Mr. TOWNSEND moved the following as an additional section, being the unanimous report of the committee of five on the subject:

$. The Legislature shall, at its next session after the adoption of this Constitution, provide by law for equalizing the valuation of property for the purpose of taxation, as made by the assessors and supervisors in the respective counties of this State, so that each county shall contribute its proportionate share to the support of government.

Mr. T. in view of the fact that this measure had received the unanimous approval of a committee selected from every section of the State, would not occupy but a brief period in his remarks upon the subject. From the investigations that he had made into the nature of the returns to the State, exhibiting the amount of the State tax in the various counties, he felt authorised to assert, that whilst in most of the western counties real estate was computed nearly at its cash valuation, in the counties of Kings and NewYork, often above its cash value by the assessors, intermediate counties, and others in the northern and southern sections of our State, escaped with the payment of sums less than one quarter of what should be their proportionate contribution to the State tax. This was affected by an open and understood frand (he would almost say) in the valuation of both real and personal property.

(Mr. GRAHAM here made some observation not understood.)

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Mr. T. continued and said the restlessness of the gentleman might be explained from the fact that his county (Ulster) happened to be one which on the face of the returns, appeared as obnoxious to the censure that he had just uttered. He did not know but if the system of assessing personal property was continued, that in the salutary operation of some provision of the character now moved, a large amount of personal property might find its way to the tax books in his own city. He cared not how this might be so long as a fair and equitable estimate was secured throughout the State. As at present computed we had about one hundred and fifteen millions of personal property reported in the whole State, including all our incorporated and associated public capital--which two items alone should nearly cover that sum. At an early period of the session he had noticed this evasion of personal and unfair valuation of real property, and had then stated his concurrence in the wiews of a distinguished gentleman, (S. B. Ruggles,) who, in an official report, had several years recommended real estate alone as the best basis for equal and effectual taxation. Those who would answer that thus personal property would entirely escape, forget that personal property is represented by articles either living or inanimate, and as all such must rest or abide in some locality of land, by storage, rents, &c., they would be called upon to bear their share of the burthen at first for convenience enforced upon fast property. We have provided for a term of years a continuance of a small State tax. Under the heavy expenditures of the general government, the revenues from customs, even with duties upon the present free articles, will render a large natioual debt or direct taxation for the national exchequer unavoidable. Preferring that the government should pay as they go, and believing that the people would require this mode of proceeding, he had

felt it peculiarly the duty of this Convention-seeing that legislative efforts to effect this object have heretofore been defeated by the representatives of delinquent localities, to provide means for an equitable imposition of the national tax, which will soon by its large addition to our present half mill State tax, make the present unequal mode of valuation a still greater enormity upon his own county, (New-York,) which for some years had borne nearly two-thirds of the State tax. Mr. T. would leave to other gentlemen, whose counties suffered as his own, the farther advocacy of the measure, and hoped that under the favor with which the Convention apparently received the suggestion, it would be speedily adopted. He would only state in addition that numerous memorials had been presented to us on the subject-from some of the most intelligent and respectable citizens of the State.

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Mr. MURPHY moved to add "and such property shall be taxed at the place of domicil of the owner.'

Mr. TOWNSEND suggested to Mr. L. that he should withdraw his amendment, and offer it as a distinct section.

Mr. Loomis assented and withdrew his amendment, (carrying with it Mr. Murphy's).

Mr. PERKINS opposed the proposition as vague and indefinite.


Mr. Harris urged the importance of equalizing taxation, so that all should be burdened alike. This all conceded did not exist now. He therefore proposed the following substitute for the proposition: § - All property subject to taxation shall be taxed according to its actual value, to be ascertained in such manner as the Legislature shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected, shall be taxed higher than another species of property of equal value.

Mr. WHITE moved to lay the whole subject on the table. Carried, ayes 62, nays 44.

AYES.-Messrs. Allen. Angel, Bowdish, Brayton, Bruce, Cambreleng, Candee, Chamberlain, Clyde, Cook, Crooker, Cuddeback, Dana, Dodd, Dorlon, Forsyth, Graham, Hart, Hoffman, Hotchkiss, A. Huntington, E. Huntington, Hyde, Kemble, Kingsley, Kirkland, Mann, Marvin, Miller, Nellis, Nicholas, O'Conor, Parish, Patterson, Perkins, President, Rhoades, Riker, Ruggles, Russell, Salisbury, Sanford, Sears, Shaver, Shaw, Shelden, E. Spencer, W. H. Spencer, Stanton, Stetson, Strong, Taggart, J. J. Taylor, W. Taylor, Van Schoonhoven, Warren, White, Wood, Worden, A. Wright and Yawger.-61.

NOES.-Messrs. Archer, Ayrault, F. F. Backus, H. Backus, Baker, Bascom, Bergen, Burr, R. Campbell, Jr., Conely, Cornell, Dubois, Flanders, Gebhard, Harris, Harrison, Hunt, Hutchinson, Jones, Kennedy, Kernan, Loomis, McNiel, Morris, Murphy, Munro, Porter, Powers, Richmond, Shepard, Stephens, Swackhamer, Taft, Townsend, Tuthill, Waterbury, Willard, W. B. Wright, Young and Youngs.-40.


This is a very important matter, and the Legislature should take up this subject and organize a state board to equalize the valuation of real and personal property. The system is now very defective. In New-York and Kings county, real estate is assessed at its full value, while in the other counties of the State real estate is often assessed at less than one fourth its value, notwithstanding all the assessments are made under one and the same general state law. A strict compliance with this law would remedy the evil.

worst evils of the feudal system, which they served to break up. He wished to tell his friend from Albany, (Mr. Harris,) that these charters are essentially feudal instruments. The prerogative of granting them which was at first only exercised by the lords, came to be exercised by the king. This was, however, only a change of the creating power; and there it has continued ever since in Europe. These charters have always since been granted by the king, or prescribed, which presumes such a grant. The powers conferred have been the same as were exercised by the misnamed free cities. In the same form the system was transferred to this country. The charters of New-York and Albany will furnish a sufficient illustration of this

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Mr. MURPHY said that he hoped the gentleman from Herkimer (Mr. Loomis) who was the chairman of the committee which had reported this section, prohibiting the passage of special acts of incorporation in any case, and requiring the enactment of general laws under which corporations might be formed, wou'd not, as he had just intimated, amend it by excepting municipal corporations from its operation. It was true that he (Mr. M.) had reported as a minority of the committee on municipal corporations a provision of that character in regard to them, yet, as there was a possibility that the subject would not again be reached, he believed it would be best to meet the whole question now. In fact, there was no necessity for distinct propositions of the same character for different corporations. If there were to be a provision on the subject at all in the constitution, it should extend to all the corporations to which it might be deemed advisable to apply the principle of the section before us. At all events, he wished the gentleman to hear before he proposed his amendment. He regarded this as the contest against privileges conferred by law. We were now to determine whether we would preserve that same equality of rights as well between corporations themselves as between corporations and individuals, as is said to exist under our institutions between individuals. On this point he believed the grossest violations of personal rights were to be found in our municipal corporations; and that however important the subject might be in reference to other corporations, it was still more so in regard to them. These innovations upon the rights of individuals resulted almost altogether from the form of legislation by special charters. He did not charge a wanton disregard of those rights upon the legislature; but the evil resulted necessarily from the mode of creating those corporations and investing them with their power by single and separate acts. He would therefore endeavor to shew the mischief of this practice and the propriety of an uniform organization for every other species of municipalities. The gentleman from Herkimer had given a sketch of the history of corporations generally, but had not referred to those cities and towns. He (Mr. M.) would refer to some points in the history of the latter for the purpose of showing how the evil of which he complained had grown up in this country, where we had adopted the same form of legislation for the government of cities as was in use in Europe, without having regard to the difference between the fundamental institutions of the two countries. Charters of cities were originally nothing but grants of immunities and privileges by virtue of baronial prerogative. They were intended to exempt the inhabitants from personal service to the lord, and were usually purchased by payments of money. They conferred the power of local government, and the corporations thus created, exercised the same absolute power within the territory that the lord had done before. Hence grew up in them customs against common right, forbidding the practice of any trade, except by certain individuals, and directly contravening the rights of the many. Thus the free cities, as they were called, became the refuge of the

centrate the experience and wisdom of a greater number of persons for the common benefit, by wise laws. Special legislation defeats this design. Localities for which this legislation is made, do not derive the benefit of the wisdom of the whole legislative body. A charter as now granted is for the most part a piece of empiricism by the wiseacres of the place where it is to be put in force. After being prepared at home, it is sent to the legislature to be passed. When it reaches that body, no one except the representatives from the locality cares what it contains. It is thus left in charge of the same interest as that which prepared it. He would appeal to every member of the Convention who had been a member of the legislature, if that was not the course pursued in reference to all local bills. They are passed without examination because they affect only a particular community. In this way opposite and dangerous principles are put into the statute book; and the wholesome and beneficient provisions of an united action on the part of the legislature for a long period are oftentimes lost. It would only be necessary for him to show how this inode of legislation had operated in regard to cities to present to the mind of every candid man the manifest impropriety of it. He had examined for this purpose the charters of the five largest cities of the state, and the powers conferred upon their corporations. He would select one subject -that of opening streets; and by a comparison of the different provisions in those cities in regard to it, furnish an illustration of the contradictions in principle which existed among them-contradictions so direct that if some provisions were right, the others must be wrong.

remark. They were granted by the Colonial Governor in the name of the King. That of New-York, granted by Montgomerie, provides that no person, not being a free citizen of the city, shall at any time hereafter use any trade or occupation within the city and its precincts, or shall sell or expose to sale any goods or commodities by retail, in any house or place, except in the times of public fairs. Ridiculous as this provision is, it may be remarked, that there are those who still maintain that it is not only in full force yet, but also that it is beyond the control of the state. For in a communication made by the comptroller to the common council in 1841, he says that the charter of New-York is a constitution of a body politic, erecting the city of New-York into a free city of itself. Her independent sovereignty in her local matters, is older than that of the state itself. That charter still stands as much a protection to hercitizens from state encroachments, as was before the revolution, from the exactions of the British crown." This charter was obtained like the charters of the free cities of the feudal tines, by the payment of money--one thousand pounds having been paid the governor for it. Such pretensions as here set up for that instrument, of course cannot be tolerated. [Mr. Morris said that no such claims were advanced in this Convention,] Mr. M. proceeded:-He knew that; he merely alluded to the New-York charter to show how we had borrowed from Europe. He knew that the members of this house from that city and the great body of its enlightened citizens, repudiated the doctrines to which be alluded, and he doubted not that he would have their support on this question. The form of city organization thus introduced in the colony, has been kept up by the legislature; and though that body has not been guilty of granting privileges so absurd as the colonial government, yet it has retained the form of special legislation in regard to such organization. Each city still has its separate charter, and no uniformity exists in the powers conferred upon them, such as prevails in regard to the towns and counties of the state. is to this practice of the olden time that we must attribute the idea of special charters which has come to be considered so necessary for them. It might well be asked why a city, more than a town or a county, should have a particular organization of its own distinct from other cities. The gentleman from St. Lawrence, (Mr. PERKINS,) said this morning that a population of 10,000 individuals might need more local powers than one of 1000. This may be true; but it is not more true in regard to cities than in regard to towns. Towns, whatever their population may be, are under the same general law. The difficulty of the gentleman from St. Lawrence consists in supposing that all the power conferred by a general law inust be exercised, when in fact the town or the city may exercise it or not as its circumstances require. When not used it is dormant. Thus the right of taking wharfage, if conferred upon all the cities of the state, would be used only by such as had a water front. An interior city would have no occasion to use it. But there would be no objection to conferring that power upon all cities generally. A general law might provide different organizations for different amounts of population in the same manner as the law in regard to religious incorporations now in force, provides for the organization of different religious denominations in different ways. The great object to be obtained by a general law is to secure the wisdom of the whole state, or at least of all the parts of the state interested in it, for the formation of that law; and to prevent those incongruities which special legislation presents, and which are the causes of many of the evils under which our cities are laboring in regard to debt and assessments. The design of state government is not only to protect from powerful neighbors, but to con


[Mr. M. was here interrupted by the expiration of the time allowed by the rule for having the floor.]

Mr. RICHMOND thought it was time that something should be done to prevent corporations over-riding and running down the people. He referred to a message of Gov. Tompkins and legislative proceedings on this subject, and said that half of the time the legislature was consumed with that class of legislation, Mr. SHEPARD opposed the amendment of Mr. Stow. Mr. Srow briefly continued the debate in explanation.

Mr. MURPHY again addressed the Convention until 2 o'clock when the Convention took a rec 88. Conclusion of Mr. MURPHY's Remarks, in the Convention, on Thursday, Sept. 24, on Incorporations other than Banking and Municipal."


Mr. MURPHY continued the remarks which he was interrupted in making before. He would first, however, notice an observation of the gentleman from Erie (Mr. Stow), who had just taken his seat. That gentleman said he would at a proper time show that the cities created by the feudal lords were free cities, and that they were the cause of the civilization of Europe. He (Mr. M.) did not intend to dispute about terms. What he had said, and would now repeat, was that those cities were free only in the sense that they were made independent of their lords by the charters which were granted to them. So far as regarded the liberties of the inhabitants, they were not so. The corporate body exercised the same tyranny over the trades and occupations and other natural rights of the people as did the baron before he exempted them from his control. He would not dispute as to their being the cause of civilization of Europe. A high state of refinement might exist, as it has often existed, and now exists, in despotic governments. When he was interrupted, he was proceeding to show the incongruities and inconsistencies of the charters of the cities of New-York, Brooklyn, Albany, Rochester and Buffalo -the five largest cities in the state. It was to these variations that he traced the cause of the evils under which our cities were suffering, as would appear from an examination of one single subject, that of opening of streets; for from one power we might learn the character of all. It is well known that streets in our towns are opened upon one uniform plan, that is, the same proceedings are had in one town as are had for that purpose in any other. All pursue the same course; and an alteration of the general law affects all equally alike. In cities this power is now generally contained in the acts of incorporation, though it is not in the charters of the old cities, but is conferred upon them by subsequent legislation. When, however, he spoko of a charter of a city he meant that law or body of laws which conferred upon it not only its corporate character, but also the powers which it exercised for the government of its inhabitants, and for their accom

and in default of payment to the collector, by sale of land, redeemable within two years. In Albany, by sale of land without any previous demand. In Buffalo the assessments are made a lien upon the lands for one year only, within which time they must be sold; and when sold, may be redeemed the same as lands sold under execution. In Brooklyn, they are collected by distress warrant; and in default by sale of lands, subject to redemption within two years. Here again are contradictions. In Buffalo, assessments are a lien upon the land for one year only; in other cities, they are a lien indefinitely. In Brooklyn, lands cannot be sold until the personal property of the person assessed is exhausted: while in Albany they may be sold, even without a demand of payment, except by ad

modation and convenience. In conferring the power of opening streets, reference must be had to the cases in which the power may be exercised, to the tribunal which is to appraise the property necessary to be taken, to the mode of assessing the means necessary to pay the appraisement, and to enforcing the collection of the assessments, as well as to other particulars. He spoke of these points because he proposed to refer to each of them in detail in regard to each of the cities which he had named, in order to show the irreconcilable character of many, if not all of them.

As regards the cases in which streets may be opened, they may, in the city of New-York, be made at the discretion of a majority of the common council, whenever they may deem it necessary or convenient; or, on petition of three-fourths of the owners of the land fronting on the street; in Albany, at the discretion of two-thirds of the common council; in Brooklyn, only upon petition, and then at the discretion of the common council, but not if a majority of those to be assessed, remonstrate against the improvement; in Buffalo at the discretion of the common council, but in no case where any building exceeding $1500 in value shall be taken unless with the consent of the owner; in Rochester in no case, where the value of the building shall exceed $1500. Now it is very evident that these plans differ in principle so radically that they cannot all be right. If it be just to prevent the opening of a street in Rochester without the consent of the owner of every building exceeding one thousand dollars in value, then it is unjust to allow it to be done without such consent in Albany; or if it be right to require the vote of two-thirds of the common council of Albany to authorize such improvement, it is not right to permit a similar improvement in Buffalo by a mere majority vote. The propriety or impropriety of these provisions cannot depend upon localities. The law is intended to meet the public wants and at the same time to regard private rights; and these are the same in all communities. So, in regard to the tribunal to which the duties of appraising the damage and assessing the benefit are entrusted. There is, in New-York, three commissioners appointed by the Supreme Court; in Albany, a jury of three freeholders chosen from a panel of twelve summoned by the mayor; in Buffalo, five freeholders chosen by the common council; in Brooklyn three commissioners appointed by the first judge of the county or by the county court. The diversity in principle here is extreme. In some cities it is left to three commissioners selected by the court in the nomination of the local authority, and in others to a jury of three freeholders to determine the damages sustained.There is as much difference between them, as between having a suit tried before a jury or before three men selected for the purpose. Thus, the whole question of trial by jury in civil cases is involved. No one will deny that this is a material distinction in principle. He would hereafter have occasion to show that it is a difference fraught with great evil; but as he was considering this question merely as one of form, it was unnecessary now to do more than allude to the difference of principle.

The means of paying for these improvements are levied in the city of New-York, by assessing the lots fronting on the street, and lots lying within half the distance of the next street, on each side of that proposed to be opened, and by imposing one-third of the value of the buildings taken, as a charge upon the city treasury, at the discretion of the commissioners. In Albany and Buffalo, by assessments upon property which the jury may deem benefitted. In Brooklyn, by assessments only upon property within an assessment district, previously determined by the common council. Thus, in Brooklyn the law undertakes to designate specific property in all cases, as benefitted; while in New-York, it declares that in some cases a portion of the expense may be put upon the general treasury. In other words, local assessments only are considered proper for one part of the state, and assessments partly local and partly general for another. Could any thing be more inconsistent? Then, as regards local assessments, there is still a further division. In New York the benefit is limited to one-half the block; while in Albany the whole matter is left to the three jurymen, who may assess the whole block, or as many blocks as they may deem proper. The assessments are enforced also in different ways. In New-York, by distress warrant against the owner or occupant, and by suit against the parties assessed;


From this brief analysis of the provisions of the charters and laws relating to one single subject, we find no two alike in principle. The same want of uniformity may be traced throughout in relation to almost every other power. Every city may be said to be a law unto itself; and the sovereignty of the state, instead of being exercised in its behalf, is absolutely surrendered to it, to be used at its own discretion. As I have already said the practice of the legislature has been to confer upon cities just such powers as they asked for. These powers affecting the locality only, the rest of the state has felt indifferent to them. Thus our present incongruous system has grown up, the work of different hands in different parts, without any attempt to produce uniformity. The consequences have been great injustice oftentimes to individuals, damage to the cities, and much trouble to the judicial tribunals of the state, arising from the adoption of wrong principles---from the consequent mistakes of the corporate authorities-and from the necessity of giving each charter its own judicial interpretation. The only remedy for this is an uniform or general law defining the powers of cities.

It is objected by some that the attempt to bring all the cities to the same form of government would interfere with the franchises which were granted to some of them. In answer to this, it may be remarked that in principle there should be no privileges or immunities exercised by one city which should not be enjoyed if required by the others. But a more satisfactory answer probably is, that so far as those franchises have a permanency of profits and thus partake of the character of private property, this provision would not interfere with them; and so far as they may be political and therefore public, and relate to the exercise of the sovereign power, they are and should be revocable at pleasure. It must be the law in this country, that while the rights of private property are sacred, political power, on the other hand, conferred by the legis lature, is a public trust resumable by it at pleasure. There is no novelty in this proposition for general laws for incorporations. We have such laws for the incorporation of libraries, passed as long ago as 1796, and also for religious societies and manufacturing companies. These laws have operated well, and hundreds of companies organized under them are now in being. The principle is not new even as regards municipal corporations. As has already been stated, our towns all exercise their corporatic powers under one and the same law, though they are separately erected by special act. But in many of the new states of the Union, as in Indiana, Illinois and Arkansas, even the incorporation of towns takes place under a general law. The simplicity of this plan is most admirable; and he would, for the information of the Convention, read one of these statutes. (Mr. M. here read and commented upon the general laws for creating municipal corporations in Arkansas and Indiana.) He hoped now that no one would be startled at the proposition on the ground that it was an untried experiment; and that the gentleman from Erie would see that the different circumstances of different places did not present obstacles to an uniform organization. Before he concluded, he wished to say that he would, at the proper time, when the subject of municipal corporations should be under consideration, endeavor to point out the mistakes of legislation in regard to them, and the abuses which they had given rise to, contenting himself for the present with these observations upon the immediate proposition before the Convention, that of the mode of creating corporations.

MONDAY, Oct. 5. Mr. KIRKLAND moved to add in addition to Sec. 6,

of Art. 1, as follows: (See Section 7, of Art. 1, of the Constitution of 1847.)

Mr. FORSYTH moved to add as follows: "But such compensation shall in no case be reduced by any allowance for prospective benefit." Mr. F. explained and defended his amendment.


Mr. MURPHY supported the amendment of the gentleman from Ulster (Mr. Forsyth). He believed the practice of assessing in any form for special benefit for any public improvement, was unsound in principle, because it substitutes an arbitrary instead of a fixed rule of taxation. It submits to the judgment of commissioners or assessors to say how much a man shall pay for benefit to his property in consequence of the improvement; and thus leaves him at the mercy of mere opinion. It is taxation; and taxation, to be just, should be equal. It should bear equally upon the whole community interested in the object of the It must be established by an uniform rule. The moment a departure from the principle of equality is allowed, an assessors are permitted to say how much or how little the person assessed is to pay, or how much shall be deducted from the compensation allowed him for his land, his property is taken from him and put at the disposal of the assessors. It is a tyranny of the most odious character. He therefore looked to this amendment as asserting a principle important in regard to our system of assessments, on which he would now offer a few remarks. That system is founded on the idea that there is a special local benefit resulting from a public improvement; and therefore that the burden should be thrown off of the public upon the private individuals benefitted. The premises are true; but the conclusion is false. No public improvement can be made without being of special advantage to some locality. The public buildings in this city,-the capital and state house, being located here, for the convenience of the whole state, contribute much to the benefit of Albany. The particular location of those buildings at this spot is a benefit to the lots in their vicinity; yet no one thinks of taxing Albany, much less these lots, for the expense of erecting these buildings. And why?—because the object of erecting is to accommodate the public; and the benefit to the city and to the vicinity of the buildings is altogether accidental. It is a piece of good fortune perhaps, and may well deserve a contribution from the parties benefitted; but there is no reason to compel such a contribution. If made, it should be voluntary.

Much of the difficulty in relation to this subject arises from a confusion of ideas in regard to what are public improvements; upon which distinction is to be observed in order to act safely. One kind of public improvements is, where the wants of the public require them to be made, and where the benefit to individuals is incidental. Such as the erection of buildings for public purposes; or supposing a city to be shut off from all access to a particular point, or to have no outlet into the country, the opening of a street or road effecting these objects would be a public benefit, and the advantage to individuals whose lands had a front on the new thoroughfare would be subordinate and purely incidental. Another species of public improvements, so called, is where the principal object is to accomplish the interests of private individuals, and the public benefit is consequential. Thus an individual owning a farm near a city, and wishing to bring his farm into market, as city lots, may open streets which will effect that object. The public of course will use them, and thus derive a benefit from them; though they were not opened for any other purpose than to advance the interest of the land-owner, and were not required for the public accommodation.

This distinction presents itself when we look at the right of property. When the public authorities undertake to make an improvement, which either requires the appropriation of private property or taxation to pay for it, they exercise the right of eminent domain. They are taking private property for public use. So the converse of this position is true; that is, if it be not for a public use they have no right to appropriate it. Private property is sacred. It is a law of society paramount to the constitution of every civilized country, that the fruits of a man's labor belong to him to be disposed of as he may deem proper. Napoleon with all his power could not divest the poor man of his freehold which he desired to have for his own pleasure and convenience; and that regard for natural right by that powerful monarch is a monument of the sacredness of private property. If all the members

which makes a stockholder individually liable beyond the amount of capital contributed by him would be injurious to the business of the City and State, and prejudicial to its prosperity, inasmuch as responsible individuals would not become stockholders, and to irresponsible stockholders no advantage would be gained in the additional security contemplated by a private responsibility clause. And your memorialists,

Jonathan Thompson,
Jonathan Goodhue,
John I. Palmer,
James Harper,
Philip Hone,
Shephard Knapp,
Moses H. Grinnel,
James D. P. Ogden.
F. Deming,
Walter R. Jones,
Anthony Lamb,
Wm. H. Aspinwall,
F. W. Edmonds,
E. Platt,

of this Convention should require for their interests or accommodation the house and lot on the opposite side of the street, there is no power in this government to give it to them without the consent of the owner if they would pay him ten times the value. But if the public require it for its use, they may take it upon just compensation, but not otherwise.

It follows from this position that the state has no right to delegate the power of taking private property for private purposes without the owner's consent; and that the improvements which our corporations are continually making, involving the taking of property and taxation, for the purpose of advancing the interests of a few individuals, are not public improvements, and should not enter into the consideration of this question. The cases which we are to regard are those in which the public are primarily interested. The sure test of an improvement being public is, that it may be paid for out of the public treasury; that the necessity for it is such that the whole public is willing to bear the expense of it. And to determine this, the decision of the community from whose treasury it is to be paid for, through its organized agents, whether a common council or a board of trustees, is sufficient.

Under the operation of this test the number of opening of streets by the corporate authorities would be very much reduced, perhaps there would not be one out of twenty of those taking place under the practice of special assessments. The actual number of streets opened would perhaps be as large as it is now; but the greater part of them would be opened as all private roads should be, by arrangements among the parties benefitted. Private enterprize will always secure its objects; and will do so in a much cheaper and more expeditious way than can be done by the public. It will happen undoubtedly occasionally that the consent of the owner of land cannot be obtained. If so, he has the right to hold on to his lot, made sacred to him as his patrimony, or by association and ties of a still more holy character. And if so, why should he be disturbed for purposes of mere private emoluments. But it is not likely that such cases will often arise. Few men are so attached to land that they will not part with it, especially for an extra compensation not so great as the additional expense beyond a just compensation incurred by legal proceedings by the public authorities. In the case of infants, power may be granted to the courts to give their consent upon such compensation as made it to their interest or advantage.

He had felt it his duty to say this much on the subject in view, as he had already observed, of a kindred proposition of his own in regard to cities, upon which it was now evident there would not be time for the Convention to act.

PERSONAL LIABILITY OF STOCKHOLDERS. We present on this page three Remonstrances addressed to the State Convention and presented in that body by Messrs Allen & Townsend against any provision being made in the Constitution making stockholders personally liable beyond the amount of their stock-following these remonstrances on the same page is the provision adopted by the Convention in the premises-and following those provisions are our remarks thereon.

STATE CONVENTION. SATURDAY, September 19. Mr. ALLEN presented a remonstrance from citizens of New-York against any provision to make stockholders in banks, &c., liable to more than the amount of their stocks. Referred to the appropriate committee of the whole.

Mr. ALLEN moved that it be printed. Lost. TO THE HON. THE STATE CONVENTION:

The undersigned, citizens of the city of New-York, most respectfully remonstrate to your Honorable Body against any provision being inserted in the Constitution of this State, that shall make the stockholder in any incorporated company, chartered by the Legislature of this State, liable, as such stockholder, beyond the amount actually invested by him in the capital stock


The undersigned believe that any provision of law

Henry Parish,
Burtis Skidmore,
George Griswold,
John A. Stevens,
Samuel S. Howland,
David Leavitt,
Abraham G. Thompson,
G. A. Worth,
F. C. Tucker,
Simeon Baldwin,
George Ireland,
J. Smyth Rogers,
John J. Fisk,
F. Pentz,
Brown, Brothers & Co., Woolsey & Woolsey,
Hicks & Co.,
Phelps, Dodge & Co.,
Caleb Barstow,
John H. Cornell,
L. & V. Kirby,
Adoniram Chandler,
A. B. McDonald,
Nathaniel Richards,
J. Van Norden,
Peter I. Bogert,
James Harriot,
E. H. Herrick,

N. Ludlum,
John A. Bunting,

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ary responsibility beyond their stock, would afford no security to the public.

And your memorialists, &c.

Abraham Van Nest,
Adam Tredwell,
John David Wolfe,
Andrew Foster,
Joseph Walker,
Peter Lorrilard, Jr.,
John Rankin,
Charles Town,
Thos. Tileston,
Bache McEvers,
R. Whiley,
Samuel Marsh,
Zebedee Cook,

W. B. Crosby,
John Haggerty,
Anson G. Phelps,
William W. Fox,
Abraham Ogden,
Japhet Bishop,
Nathaniel Weed,
C. H. Marshall,
John A. King.
John Brouwer,
Garret Storms,
James Van Nostrand,
John McBrair,
T. B. Satherthwaite,
Thomas Glover,
Gurdon Buck,
R. Ogden Glover.
P. Harmony's Nephews & Alden Spooner,
Lewis Gregory,
Josiah Macy & Sons,
W. J. Lane,

S. T. Jones & Co.,
G. Furman,
Benj. M. Tredwell,
J. M. Morison,
Fisher Howe,
W. H. Johnson,
John Van Nest,
Drake Mills,
T. Van Tine,
R. Stebbins,
James Wilkie,
J. Grosvenor,
Rensselaer Havens,
W. W. Deforest & Co.,
Andrew Foster & Sons,
Moses Taylor,
Francis Skiddy,
Peter B. Amory,
Joseph B. Collins,
Stacy B. Collins,
Duncan C. Pell,
A. H. Muller,
A. B. Lawrence,
Paul Spofford,

P. G. Arcularius,
N. G. Ogden,
E. T. H. Gibson,
P. M. Bryson,
James McCall,
Robert Boorman,
A. A. Low,
Morris Ketchum,
S. Draper, Jr.,
John C. Green,
Olyphant & Son.
Lora Nash,
Robert Buloid,
M. B. Edgar,
O. H. Jones,
Thomas H. Mills,
D. Underhill,
J. Whitehead,
W. B. Cozzens.
W. C. Rhinlander,
Fisher, Howe & Co.,
John Newhouse,

J. R. Murray,

W. A. Hadden.


Provisions of Article 8, relative to Incorporated Com


Section 2. Dues from corporations shall be secured by such individual liability of the corporations and meaus as may be prescribed by law.

Section 3. The term corporations, as used in this article, shall be construed to include all associations and joint-stock companies having any of the powers or privileges of corporations not possessed by individuals or partnerships. And all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons.

Section 6. The Legislature shall provide by law for the registry of all bills or notes, issued or put in circulation as money, and shall require ample security for the redemption of the same in specie.

Section 7. The stockholders in every corporation and joint-stock association for banking purposes, issuing bank notes or any kind of paper credits to circulate as money, after the first day of January, one thousand eight hundred and fifty, shall be individually responsible to the amount of their respective share or shares of stock in any such corporation or association, for all its debts and liabilities of every kind, contracted after the said first day of January, one thousand eight hundred and fifty.

Remarks.-Persons subscribing for stock in a bank, by section 7, as above will be liable for their subscriptions in full, Stock is often subscribed for and only a small installment paid-in case of failure of the bank the creditors of the bank under section 7 will have the right to compel the payment of the residue of unpaid installments, or so much of such unpaid instalments as will satisfy the creditors demand. This is the common sense construction of this provision of the Constitution. It is not a responsibility in addition to, and over and above the amount of the stock in another sum equal to such stock, for that would be double the amount of the stock.

It is sometimes the case that bank stock is paid for in bonds, as for example Arkansas State bonds which have become of little value. A stockholder paying up his stock in such bonds would be liable for the depreciation under sec. 7 to a creditor of the bank in case of failure of the bank, and so of a payment of stock by a mortgage on real estate.

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