upon matters involving large amounts of prop- to another place. When the time for dinner arerty, the smaller disputes between citizens should be disposed of by the same short and convenient method? Mr. VAN CAMPEN-The same principle in this seventh section of the Constitution of 1846 is aplicable to the opening of highways, and the discontinuance of roads. First, a jury is to determine the laying out or discontinuing of a road, and then, in case the commissioners of highways are not able to agree with the party where the change is to be made, or the road to be laid, they apply to a court of record, and that court appoints three commissioners who appraise the damage. I have never known of any complaint growing out of these appraisals in laying out a public highway. From my acquaintance with the operation of this section in reference to railroads and highways, there is no necessity or demand for a change in this regard. rived, every arrangement had been made by the host for a sumptuous meal. A roast pig was upon the table, with suitable accompaniments. [Laughter.] From the moment I saw these prep arations, and learned that the commissioners would hold their sessions in that house, and enjoy the generous hospitality of the owner for several days, all hope of resisting the application was at an end, and I so informed my clients. And, although I stood at my post and resisted the application with all the ability I could command, it was granted, and, as I thought, very improperly. It was utterly impossible to resist the appliances that were brought to bear in favor of the applica tion. I repeat, that the commissioners were fair men, and would not intentionally have done a wrong. It was unfortunate for my clients, however, that the house of plaintiff was selected as the place of hearing, and that roast pig was still more unfortunate for them. [Laughter.] I think that in a case where property is forcibly taken from a person, justice in the matter of compensation would be better subserved by the interposition of a jury, than by a commission of three men appointed by a court. Mr. ALVORD-I would like to ask the gentle. man if the counsel in that proceeding to which he alludes partook of the roast pig? [Laughter.] Mr. SMITH-They did participate in it, and they had to pay for it. Their bill was paid, but the commissiouers, I understand, were not called upon to pay any thing for their entertainment. Mr. GRAVES-I move, as an amendment, to reinstate the words "as shall be prescribed by law," if that is in order. The PRESIDENT-Two amendments are al Mr. SMITH-I am inclined to favor this proposed amendment, and for some of the reasons which have already been given. If there is one subject upon which the American citizen feels sensitive, it is in regard to his real estate-his right to own and enjoy a portion of the soil. As has been said by the gentleman from Broome [Mr. Hand], if in the matter of a few dollars we are entitled to a jury, it is difficult to see why we should not have a jury in a case, where the title to real estate is concerned. It is not a pleas ant thing to have one's property forced from him against his will, under any circumstances. But the necessity exists; and when the right of eminent domain is exercised, and a man's property is taken from him without his consent, he certainly ought to have all the indemnity which the law can give for the property thus taken. The gen-ready pending. tleman from Cattaraugus [Mr. Van Campen] says Mr. GRAVES-I would ask the gentleman there has been no complaint in relation to the from Rensselaer [Mr. M. I. Townsend] to amend working of this system of commissions in its ap- his amendment by the insertion of these words. plication to roads. I think the gentleman is Mr. M. I. TOWNSEND-I must decline to somewhat mistaken on that point. With the amend my proposition in the manner suggested permission of the Convention I will state a case and for this reason: If we are to have a jury, as with which I was somewhat connected, and provided by law, it may be a jury nominated by which illustrates the operation of commissions. law to go from another county. I want a jury in An application was made for the discontinuance the common law acceptation of the term. of a certain road, and the laying out of a new I do not want such a jury as the Legislature shall road in the same vicinity. Commissioners were see fit to give me at a future time. appointed to pass upon the matter. I was called Mr. WEED-As it seems that each member of upon to resist the application on the part of the the Convention expects to vote in accordance residents of the neighborhood who opposed the with what his experience has been in these matchange. The commissioners appointed the hear-ters I will relate a little experience of my own. ing to be held at the house of a gentleman who My friend from Fulton [Mr. Smith] has stated his. was principally interested in favor of the change, I have an experience upon the other side in a simiand who had made the application for it. He lar case. The man who made the application had prepared every thing for the hearing to be treated the commissioners and all the parties held at his house. It was suggested, however, there with a good supper of oysters. Nevertheto the commissioners that, perhaps, it would not less the commissioners decided against him. The be quite proper to sit there and enjoy his hos- applicant was very indignant, and the next day pitality, as he was so largely interested in the swore out against the commissioners; he said matter, and that it would be better to adjourn to that they had not only decided the case against some other place. But the commissioners, good him but had decided it thus with his oysters in honest men though they were, could not see any their stomachs [Laughter.] I simply desired to impropriety in sitting at the house of the plaint-state this case as showing an opposite result from iff They had traveled some distance, their weary horses were feeding in the plaintiff's barn, it was near the dinner hour, they were hungry, and could not see any good reason for adjourning that stated by the gentleman from Fulton. I say Mr. PRINDLE-Mr. President, I hope the amendment of the gentleman from Rensselaer [Mr. M. I. Townsend] will not prevail. In our section of the country we want a railroad very way purposes, without the consent of the owners much. It is one of the greatest wants we have. thereof, shall remain in such owners." The adoption of this amendment would throw a great obstacle in the way of the construction of vision that wherever lands are taken for highway Mr. RUMSEY-Mr. President, this is a proany railroads. Undoubtedly some abuses may or railroad purposes without the consent of the have occurred in the system of assessing dama- owner, the fee of the land shall remain in the ges by commissions; but I believe, as a general owner; in other words, that there shall be a rething, that the farmers have received more for version of the land whenever it ceases to be used the lands that have been taken, as damages, than for railroad or highway purposes. I did not supthey were really entitled to in justice. The gen- pose it could possibly be necessary to have such tleman from Broome [Mr. Hand] inquires do we have juries in any case?" I night with called on me the other day and stated this fact, Why a provision in the Constitution; but a gentleman equal propriety say, why do we not have a jury that the New York Central Railroad company, in in every case? Why is it not provided by law changing its track, passed over his farm, and upon that parties shall be entitled to a jury in equity the land taken for the track was a springcases as well as others? Now, the very argu- valuable spring. ment suggested by the gentleman from Broome, their road he undertook to take the water in that -a very After they had constructed shows that it would be very dangerous to leave spring for the purpose of using it, and the comthis matter to a jury of the vicinage. The gentle-pany said he could not have it, that the water man talks about the damages that may be sus tained by a person through whose farm a railroad runs, and he suggests the idea that a farmer may be liable to pay the full value of a railroad train thrown off from the track by his cattle which have broken through the fences and got upon the track. Now, if the railroad company are obliged to meet a jury on these questions of the damages sustained by the taking of property for the uses of a railroad, what kind of damages would be assessed where they are to take into consideration such bilities as this? The damages would very likely be more than the person's farm would be worth. It would not answer to have the jurors take into consideration such a question of damage as this, and yet they would be very likely to do it. The jury would be very likely to be farmers along the line of the railroad, and whose land had been taken by the railroad, and they would be in favor of very large damages in every case. Mr. LAPHAM-I move to add at the end of would be very likely to take into consideration ported by the Committee on Industrial Interests, the section the following clause, which was rethe fact that they might be liable for the destruc-and to be found in document No. 52. I will read it: tion of a train of cars on account of the cattle getting upou the track. "Private roads and agricultural drains may The gentleman from be opened in manner to be prescribed by law." Rensselaer [Mr. M. I. Townsend] desires to have a common law jury to be selected as the Legisla-appeals, in a recent case, has made a decision I am aware, Mr. President, that the court of ture shall prescribe, by the sheriff or otherwise. which, to some extent, interferes with the exerI think the matter may be as safely left to a court cise of this right; but it is by no means a settled of record to appoint commissions as it would be question. The improvements which are taking to leave it to a constable or a sheriff to select place in agriculture in this State, and the greatly the men to assess these damages. I believe that enhanced value of agricultural improvements and if this amendment should prevail, damages along their products, makes the exercise of this right a the line of railroads would be assessed so heavily necessity, and some way should be provided to by juries interested in the matter themselves that meet it. The only way to provide for the relievit would be almost impossible for a railroad coming of the people of our State from this difficulty pany to acquire the right of way. all legislation in respect to it would otherwise be is to make a provision in the Constitution, because questioned. was theirs, that the spring belonged to the company as the absolute owners of the land. The facts are briefly these: that by a law passed about the year 1862 or '63, it is provided expressly that where lands are taken for such purposes the railroad company takes the fee of the land. That is the provision in the statutes of this State. more villainous provision was never put into the body of any statute. railroad goes across it; subsequently the railroad A man owns lia-company ceases to need the land for that purpose, a farm; a but they still own the fee of the land under that provision of the statute. reason why that should be so. There is no sort of pany ceases to use the land for the purposes of When the comtheir tracks it should revert to the owners. They The question was put on the amendment offered by Mr. M. I. Townsend, and it was declared lost. The question was put on the motion of Mr. Alvord to strike out the section and insert section 7 of the present Constitution, and it was declared carried. Mr. RUMSEY-I offer the following amendment to the substitute for the seventh section which has been adopted. Mr. Rumsey, and it was declared carried. vision in reference to ditches as well as drains. I Mr. LAPHAM-Make it drains and ditches. The SECRETARY proceeded to read the amendment of Mr. Lapham as amended, and it amendment as follows: Add thereto the following: "The fee of all lands taken for the track of railroads or for high. was declared carried. the vote by which the amendment offered by the Mr. MURPHY-I move a reconsideration of 2 gentleman from Steuben [Mr. Rumsey] in refer-highway acts, only the use of the property is ence to the fee of the land remaining in the owner where land has been taken for railroad purposes, was adopted. The PRESIDENT-If there is no objection the motion will be entertained. Mr. MURPHY-The amendment came upon me by surprise, and I hardly knew what it was before it was passed. It appears to me to be a very improper one, with all due deference to my friend from Steuben [Mr. Rumsey]. The question of what kind of an estate shall be granted to corporations for public purposes is a question of pure legislation. By most acts passed by the Legislature establishing highways, the language is such that the land reverts by the operation of the law to the original owner upon the land ceasing to be used. Mr. SAPHAM-That is expressly provided for in most of the railroad charters. taken, and by the common law the fee reverts to the owner. As I understand the gentleman on my left [Mr. Lapham], such a provision is contained in most railroad acts, but not in all. What I insist is, that this is a proper matter for legislation. There may be cases when it would be proper for the fee to remain in the corporation. There is no great harm to come to the individual because, in all cases within my knowledge, and I presume within the experience of every one here, the owner receives in all cases the full value of the land taken. Admitting that the corporation pays the full value of the land, there is no great hardship in the Legislature providing, in cases where it may seem proper to them, that the corporation so paying for the land should continue to own the land in case it ceased to be used for the purpose for which it was taken. I would prefer, in other words, that the matter should be left as it has Mr. MURPHY—As the law stands there is a always been left-to the Legislature; and not to reversion to the original owners. In some cases ingraft this new principle in our fundamental in New York and other cases in other States, the law. Legislature have provided that the corporation Mr. RUMSEY-It seems to me, sir, that this shall take the fee in certain streets. For vote should not be reconsidered. I drew the a long while it was supposed the Legislature amendment with particular care, and with could exercise no such power. But I believe the to its applying to no railroad lands except such court of appeals have held that they may exer- as were used for railroad tracks; and it does cise such power and that the corporation may dis- seem to me that it is manifestly unjust that a pose of the fee and take the proceeds of the sale railroad company should have any more privileges and put them into their treasury. It is a matter or any more rights than are absolutely necessary which should be left to the Legislature to for the purposes for which. that company was exercise the power as they may deem expe- organized, and all these rights I desire they should dient in particular cases. To provide by the have. We all know how much pride a man takes Constitution that the Legislature shall not have the in his farm, and how much he regrets to have it power to grant the fee under the right of eminent cut to pieces, yet public necessity requires that domain to corporations, appears to me would be there shall be a railroad, and one is laid across to work injustice-a great injustice. Take a case his farm. A strip from four to six rods wide of which occurred in my own city. The Legislature that man's land is taken for the use of the railauthorized the laying out of a park, and the tak-road for their track. They pay him, as the gening of land for that purpose. After having taken tleman from Kings [Mr. Murphy] says, the full the lands and made improvements to a certain value. I will concede that. But is there any extent it was found that some of the lands were unnecessary, and yet the owners had been paid for those lands their full value, although in theory they had only paid for the easement of the property for the public use of the land. Mr. RUMSEY-If the gentle nan will allow me I will state that if he will look at this amend ment, it does not affect the case at all. The law is Low that where a highway has been laid out, when it ceases to be used for that purpose, it reverts to the original owner. The only change it makes in regard to the provision is, as to railroads, because where the land is taken by the railroad for railroad tracks without the consent of the owner, the fee remains in the owner. This amendment does not refer to any property taken for buildings or scations, or any thing of that kind. In these cases the corporatious may still obtain the fee of the land. All that is intended to be embraced in this amendment is the case of a railroad track laid across a man's farm, and provide that when the land taken for that purpose ceases to be used for the railroad, that piece of land, from four to six rods wide, shall go back to the person holding the farm. Mr. MURPHY-I do not see that that at all alters the principle. In all cases, in the general view reason why when they cease, as they frequently do, to use that land for the track of the railroad, they should have in their hands the means of compelling the owner of that farm to pay four, five or six times its value before he can get the fee of the land when it is no longer of any use to them, and when the want of this very piece of land is so sore an injury to the owner of the farm? Mr. GRAVES-I would ask if there is and more injustice than there is in the plank-road law as it now stands? If the plank-road company chooses to surrender their right, they can do so by filing a release with the county clerk, and on the filing of that release the property does not revert to the original owner, but goes to the town. Mr. RUMSEY-In the case of a plank-road it becomes a general highway, and is under the general rule for the government of highways. It goes to the town as a highway. The town have got nothing but the mere right of using the highway, and when they cease to use it as a highway it reverts to the owner of the land. That has always been the rule in regard to highways, and every man would esteem it an outrage to change that rule of law. Why is it less so in re gard to a railroad? A railroad company is al-; Mr. MURPHY-That is what I am talking Mr. ALVORD-As I understand the law, in Mr. RUMSEY-Some laws are passed in that way, and it was done for the reason that it was absolutely necessary for the protection of the individual whose land was taken. It was for a long time held that the increased value of the land was more than any possible injury that could result to it. It was done to create a rule for assessing damages different from that which had before that time prevailed. But to come back to the main question. Can any man give any reason why a corporation which has ceased to use land taken for railroad purposes should not give that land back to the former owner in the same way as the land would revert to the owner when it ceased to be used for highway purposes? It is true that, wherever damages are given for land taken for highway purposes, they give more than the actual value of the land because the party has got to keep up the fences, and it is intended to pay the owner for the expense of so doing. There is a manifest injustice when you take private property for public purposes, without the consent of the owner, that you should take any more than is absolutely necessary for the purpose intended. is not the common law that we are seeking to The question was put on the motion to recon- Mr. RUMSEY-I think the gentleman from The PRESIDENT-Does the gentleman from The SECRETARY-I do not recollect. Mr. MURPHY-Let us take a case which will be familiar, no doubt, to this body, in answer to the gentleman from Steuben [Mr. Rumsey]. The New York Central Railroad company has bought a large piece of land in the city of Albany, which extends from the west end of the Hudson river Mr. S. TOWNSEND-I offer the following as bridge down to the Delavan House. It is a valu-an additional section: able piece of property, and I have no doubt that The SECRETARY proceeded to read the secthe company paid the full value for it. But, in tion, as follows: the course of events, it has become necessary to change their station, and they now stop all the trains at the west end of the bridge, and necessarily they have no further use for this piece of land. Is it consistent with justice to put a provision in the organic law that all that property shall revert to the original owners who have received the full value of the land? SEC. 20. Faithful conduct in the civil or military service of this State shall be recognized by a suitable compensation when, from inability, the individual may be no longer qualified to discharge such service. Mr. RUMSEY-The gentleman says that the Central Railroad company bought that land; then there is nothing in my amendment to prevent them from selling the land to-day or doing whatever they will with it. Mr. S. TOWNSEND-Mr. President Mr. ALVORD-With all due deference to my friend from Queens [Mr. S. Townsend], I have no objection to his proposition, but I ask the Chair to rule it out of order upon the ground that it has no relation to property at all, and therefore it is entirely at war with the whole of this section. Mr. S. TOWNSEND-I differ from the gentleman. Mr. MURPHY-When I say they bought it, I mean they took it under the right of eminent do- Mr. ALVORD-I rise to a point of order, that main. this section now under consideration has referMr. RUMSEY-There is nothing in the amend-ence entirely to property, and the proposition of ment which provides for the reversion of the the gentleman from Queens [Mr. S. Townsend] land used for stations, only such as is used for has reference to persons; and, therefore, it a railroad track. should be put in a distinct section, and not incor porated in this, because it is not germane at all! to the section under consideration. Mr. S. TOWNSEND-I should like to have the gentleman from Onondaga [Mr. Alvord], who, I believe, is a lawyer, although he takes frequent occasion to say that he is notMr. ALVORD-I am not. Mr. S. TOWNSEND-I should like to have the gentleman point out the distinction between property and service. We have been engaged this morning upon the very noble object of securing the rights of the citizens of this State to their property, and in providing that their property shall not be taken from them for any public use without compensation therefor—without remuneration. We have been exceedingly sensitive upon that point. We have been engaged for an hour or more upon a matter which the Legislature would be better able to attend to. We have discarded the idea of commissions, and adopted that of juries, and we are again dismissing the idea of juries and flying off in some other direction. Now, holding the principle that there is no distinction between property and service, because services produce property, that there is really no distinction between property and compensation for services, I hold that the amendment is directly in order, and I trust the Chair will so decide. The PRESIDENT pro tem. [Mr. BELL]-The Chair is obliged to decide that the amendment of the gentleman from Queens [Mr. S. Townsend] is not germane to the subject, and therefore is out of order. Mr. S. TOWNSEND-Then I will reserve the amendment and offer it under the head of amendments generally. Mr. AXTELL-I move the previous question. The question was put on the motion of Mr. Axtell, and it was declared carried. The question recurred upon the adoption of the seventh section as amended, and being put, it was declared carried. The SECRETARY proceeded to read the next section as follows: SEC. 8. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libellous is true and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. No amendment being offered the SECRETARY proceeded to read the next section as follows: SEC. 9. The right of the people to be secure in their persons, hou-es, papers and effects against unreasonable seizures and searches shall not be violated, and no warrant shall issue but upon Dropable cause supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized. No amendment being offered the SECRETARY proceeded to read the next section as follows: SEC. 10. No law shall be passed abridging the right of the people peaceably to assemble and petition the government or any department thereof. Mr. HADLEY-I offer the following amendment to that section, to make it as it was in the Constitution of 1846: "Nor shall any divorce be granted otherwise than by due judicial proceedings; nor shall any lottery hereafter be authorized or any sale of lottery tickets allowed within this State." Mr. RUMSEY-There is a special provision already adopted upon lotteries and the sale of lottery tickets. There is a special provision in the report of the Committee on the Powers and Duties of the Legislature, which we have adopted, that the Legislature shall not pass special laws granting a divorce. Mr. HADLEY-I do not want the Legislature to have the power to pass any. Mr. ALVORD-All these things are provided for already in the article we have passed and adopted. Mr. HADLEY-If that is so, I do not desire to have it passed a second time; but there was so much in the article on the powers and duties of the Legislature that this escaped my attention. I will withdraw the amendment for the present. No amendment being offered the SECRETARY proceeded to read the next section as follows: SEC. 11. The people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State; and all lands, the title to which shall fail from a defect of heirs, shall revert or escheat to the people. Mr. WALES-I move to amend this section by adding to it the following: "Aliens who are or who may hereafter become bona fide residents of this State shall enjoy the same rights in respect to possession, enjoyment and inheritance of property as native born citizens." In the early history of this State, when the sufferings consequent upon the revolutionary war and the passions thereby excited were yet fresh in the feelings and minds of the people, when immense tracts of land were for sale at low prices and when foreign influence was yet to be deprecated if not feared, the provision that aliens should not be entitled to the full rights of native born citizens in the inheritence, ownership and transmission of real estate, was doubtless wise and proper. But whatever the reasons for such a prohibition may have been, the necessity for it has long since passed away. The great strength of the nation and the great prosperity of the State seems to render such a prohibition an unnecessary exhibition of fear. Our great strength cannot be impaired by the act of justice foreshadowed in my amendment. I ask this as an act of liberality and justice to a large and influential class of our agricultural population, who, by their great industry, add largely to the wealth of the State. Mr. Chairman, the county of Sullivan, which I in part represent, has a large proportion of inhabitants of foreign birth. Among them is occasionally one, who, from some cause, has not become |