Wilson v. Robertson. was insolvent, affords a conclusive presumption of an actual fraudulent design on the part of the assignors. Neither the firm nor the copartner Staples were in a condition to make a gift of the firm assets to Crocker or his creditors, or, in substance, to reserve from the joint and partnership fund the larger proportion of it for his and their benefit. It is this fraud that we should sanction by upholding the trust in the present case. In Collomb v. Caldwell (16 N. Y. R., 484), an assignment was adjudged void as to the individual creditors of the assignors, when the members of an insolvent mercantile firm assigned their partnership property, and also their individual property, in trust for the payment of their partnership debts, reserving any surplus that should remain to the assignors. The individual property of the members of the firm was appropriated to pay partnership debts, and any surplus reserved to the assignors, whilst the individual debts of one of the members of the firm were left unprovided for. This attempt to tie up the whole fund under a trust, and, after the trusts were satisfied, reserving any surplus to the assignors, without making provision for paying the individual debts, was adjudged to afford a conclusive presumption of an actual intent to defraud the individual creditors of the assignors. So, also, an assignment of the effects of an insolvent firm to pay the private debts of the individual members, as was done in the case at bar, hindering, delaying and postponing the collection of the demands of the company creditors, is equally fraudulent and void as to such latter creditors. Indeed, independent of the question of fraud, it may be seriously doubted whether the assignment should not be regarded as executed, and the trust made, for the benefit of the assignors, or one of them, and thus void under the statute declaring "all transfers and assignments of goods, &c., made in trust for the use of the person making the same, void as against the creditors of such person." (2 R. S., 135, §1.) The assignment is made for the benefit of Crocker, as its purpose is to liquidate and discharge his individual debts. The transfer may, therefore, be said to be made in trust for the use of one of the assignors. This is the spirit of the transac The People v. Smith. tion, if not its legal effect. Crocker is enabled to appropriate the partnership funds to relieve himself from individual liability. The judgment of the Supreme Court, affirming the judg ment of the referee, adjudging the assignment valid and dismissing the plaintiff's complaint, must be reversed, and a new trial granted. All the judges concurring, Judgment reversed, and new trial ordered. THE PEOPLE, ex rel. Herrick et al., v. SMITH, County Judge of Suffolk County. The statute in relation to highways on Long Island (ch. 56, of 1830), does not entitle the owners of land to be taken to notice of the application to the commissioners to determine upon the expediency of making the appropriation, nor of the hearing before the county judge upon an appeal from the commissioners' refusal, to lay out a highway. The propriety of taking private property for a public use is not a judicial question, but one of political sovereignty, to be determined by the legislature, either directly or by delegating the power to public agents, proceeding in such manner and form as it may prescribe. The constitutional provisions for trial by jury, and for due process of law which control in respect to the mode of ascertaining the compensation to be paid to the citizen upon taking his property, do not apply to the determination of the question whether it is needed for public use. APPEAL from a judgment of the Supreme Court. The relators sued out a certiorari, for the purpose of reviewing an order of the County Judge of Suffolk County, whereby he reversed an order of the commissioners of highways of the town of Riverhead-refusing to lay out a highway in that town, pursuant to a petition of twelve freeholders-and proceeded to lay out such highway. The relators are owners and occupants of a part of the lands through which the highway, so laid out, runs; which The People v. Smith. lands will have to be appropriated for its track. The single ground of error relied on, was, that no notice was served on the relators of the proceedings, on the appeal, or of the hearing before the County Judge. The Supreme Court, being of opinion that such notice was not required by law, affirmed the order of the judge, and from this judgment of affirmance the present appeal was taken by the relators. The case was submitted on printed arguments, • Miller & Tuthill, for the appellants. William Wickham, for the respondent. DENIO, J. The subject of highways and bridges on Long Island, is regulated by a statute passed in 1830, entitled "An act regulating highways and bridges in the counties of Suffolk, Queens and Kings" (ch. 56). The system, in its general features, is similar to that established by the Revised Statutes for other parts of the State; but there are some discrepancies, and upon them, I think, the question in the present case may turn. By the Long Island act, the commissioners have power to lay out new roads without the consent of the owners of the land through which they may run, upon the petition of twelve freeholders of the town, verified by oath or affirmation. (§§ 2, 47.) Nothing is said respecting their giving notice to any one of the hearing of the application before them. Every person conceiving himself aggrieved by a determination of the commissioners, either in laying out, or refusing to lay out a highway, may appeal to three judges of the Court of Common Pleas. (§ 66.) This jurisdiction is now vested in the County Judge under the present Constitution. (Laws 1847, p. 642, § 27.) Where the determination appealed from, is against an application for laying out a road, the judge is to give notice of the time and place of hearing the appeal, to the commissioners by whom such determination was made; and where the commissioners' determination was in favor of the application, notice is not only to be given to the commissioners, but to one or more of the The People v. Smith. applicants for the road. (§ 69.) The proofs and allegations of the parties are to be heard, and where the appeal is from an order refusing to lay out a road, the judge is to lay it out in the same manner in which commissioners are directed to proceed in like cases. (§§ 71, 74.) It will thus be seen that the only notice which the statute requires to be given, in a case like the present, is, of the time and place of hearing the appeal, and that such notice is only required to be given to the commissioners who made the order appealed from. If the commissioners had been required to give any notice of the hearing before them, then, when the judge came to lay out the road, in consequence of his reversa! of the order of the commissioners, he ought to give the same notice, because he is required to proceed, in the performance of that duty, in the same manner in which the commissioners were directed to proceed when the case was before them; but in the absence of any provision for notice of the hearing before the commissioners, no such duty is required of the judge. It follows that, if the relators, as owners and occupants of the land which was to be taken for the road track, were entitled to notice of the hearing before the judge, it is in consequence of some general principle of law, and not because it is required. by any provision of the statute. This is the view of the matter taken by the appellant's counsel, for he expressly admits in his printed argument that there is nothing in the act requiring notice to be given to the land owners. lic The question then is, whether the State, in the exercise of the power to appropriate the property of individuals to a pub. use, where the duty of judging of the expediency of making the appropriation, in a class of cases, is committed to public offi cers, is obliged to afford to the owners of the property an opportunity to be heard before those officers when they sit for the purpose of making the determination. I do not speak now of the process for arriving at the amount of compensation to be paid to the owners, but of the determination whether under the circumstances of a particular case the property required for the purpose shall be taken or not; and I am of opinion that the The People v. Smith. State is not under any obligation to make provision for a judicial contest upon that question. The only part of the Constitution which refers to the subject is that which forbids private property to be taken for public use without compensation, and that which prescribes the manner in which the compensation shall be ascertained. It is not pretended that the statute under consideration violates either of these provisions. There is therefore no constitutional injunction on the point under consideration. The necessity for appropriating private property for the use of the public or of the government is not a judicial question. The power resides in the legislature. It may be exercised by means of a statute which shall at once designate the property to be appropriated and the purpose of the appropriation; or it may be delegated to public officers, or, as it has been repeatedly held, to private corporations established to carry on enterprises in which the public are interested. There is no restraint upon the power, except that requiring compensation to be made. And where the power is committed to public officers, it is a subject of legislative discretion to determine what prudential regulations shall be established to secure a discreet and judicious exercise of the authority. The constitutional provision securing a trial by jury in certain cases, and that which declares that no citizen shall be deprived of his property without due process of law, have no application to the case. The jury trial can only be claimed as a constitutional right where the subject is judicial in its character. The exercise of the right of eminent domain stands on the same ground with the power of taxation. Both are emanations of the law making power. They are the attributes of political sovereignty, for the exercise of which the legislature is under no necessity to address itself to the courts. In imposing a tax or in appropriating the property of a citizen, or a class of citizens, for a public purpose, with a proper provision for compensation, the legislative act is itself due process of law; though it would not be if it should undertake to appropriate the property of one citizen for the use of another, or to confiscate the property of one person or a class of persons, or a par |