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 Mr. RUMSEY-Mr. President, this is a progreat obstacle in the way of the construction of vision that wherever lands are taken for highway any 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 "Why a provision in the Constitution; but a gentleman do we have juries in any case?" I might with called on me the other day and stated this fact, 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 spring-a very cases as well as others? Now, the very argu- valuable spring. After they had constructed ment suggested by the gentleman from Broome, their road he undertook to take the water in that 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- was theirs, that the spring belonged to the comtained by a person through whose farm a railroad pany as the absolute owners of the land. The runs, and he suggests the idea that a farmer may facts are briefly these: that by a law passed be liable to pay the full value of a railroad train about the year 1862 or '63, it is provided expressly thrown off from the track by his cattle which that where lands are taken for such purposes the have broken through the fences and got upon the railroad company takes the fee of the land. That track. Now, if the railroad company are obliged is the provision in the statutes of this State. A to meet a jury on these questions of the damages more villainous provision was never put into the sustained by the taking of property for the uses of body of any statute. A man owns a farm; a a railroad, what kind of damages would be assessed railroad goes across it; subsequently the railroad where they are to take into consideration such lia- company ceases to need the land for that purpose, bilities as this? The damages would very likely but they still own the fee of the land under that be more than the person's farm would be worth. | provision of the statute. There is no sort of It would not answer to have the jurors take into reason why that should be so. When the comconsideration such a question of damage as this, pany ceases to use the land for the purposes of and yet they would be very likely to do it. The their tracks it should revert to the owners. 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 Mr. LAPHAM-I move to add at the end of of very large damages in every case. They the section the following clause, which was rewould be very likely to take into consideration ported by the Committee on Industrial Interests, the 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 "Private roads and agricultural drains may getting upon the track. The gentleman from be opened in manner to be prescribed by law." Rensselaer [Mr. M. I. Townsend] desires to have I am aware, Mr. President, that the court of a common law jury to be selected as the Legisla-appeals, in a recent case, has made a decision 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.

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.

The SECRETARY proceeded to read the amendment as follows:

The question was put on the amendment of Mr. Rumsey, and it was declared carried.

is to make a provision in the Constitution, because all legislation in respect to it would otherwise be questioned.

Mr. WALES-I think there should be a provision in reference to ditches as well as drains. I would so amend by putting it "ditches and drains." I drew the section, and I think that amendment should be made.

Mr. LAPHAM-Make it drains and ditches. Mr. WALES-Why not ditches and drains? The question was put on the adoption of the amendment of Mr. Lapham as amended, and it was declared carried.

Add thereto the following: "The fee of all Mr. MURPHY-I move a reconsideration of lands taken for the track of railroads or for high-the vote by which the amendment offered by the

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 taken, and by the common law the fee reverts to owner where land has been taken for railroad the owner. As I understand the gentleman on 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. LAPHAM-That is expressly provided for in most of the railroad charters.

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 always been left-to the Legislature; and not to ingraft this new principle in our fundamental law.

Mr. MURPHY—As the law stands there is a reversion to the original owners. In some cases in New York and other cases in other States, the 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 a view 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 gentak-road ing 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 reason why when they cease, as they frequently 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.

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. RUMSEY-If the gentleman 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 now that where a highway has been laid out, when it ceases to be used for that purpose, it re- Mr. GRAVES-I would ask if there is and verts to the original owner. The only change it more injustice than there is in the plank-road makes in regard to the provision is, as to rail-law as it now stands? If the plank-road com. roads, because where the land is taken by the pany chooses to surrender their right, they can railroad for railroad tracks without the consent do so by filing a release with the county clerk, of the owner, the fee remains in the owner. This and on the filing of that release the property dões amendment does not refer to any property taken not revert to the original owner, but goes to the for buildings or scations, or any thing of that town. kind. In these cases the corporations 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. 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, Mr. MURPHY-I do not see that that at all and every man would esteem it an outrage to alters the principle. In all cases, in the general' 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

The

lowed to take the property of an individual | about; the tracks of the Central Railroad combecause it is ostensibly for the public use. In pany continue from the west end of the bridge other words, the State allows a private railroad down to the Delavan House. In regard to the corporation to avail itself of the right of eminent existing law, the gentleman speaks about changdomain because it is a great public benefit. Now, ing the law as it is in these railroad acts. if that public use ceases, why should that com- law is not changed in these railroad acts to day. pany be allowed to retain the land? He refers to the law in regard to highways as based upon the decisions. The highway act authorizes the taking of property for the purposes of roads simply, and the supreme court held that it was taken only for the purpose of roads, and when that purpose ceased, and then, by the very lauguage of the act, the land reverted. Now, it is not the common law that we are seeking to change by the provisions of law; it is simply laying down a special rule in regard to rail

Mr. ALVORD-As I understand the law, in case land is taken for the purposes of a highway, the advantages of opening that highway are taken into consideration in assessing the amount of damages. But, in the case of taking land for a railroad, nothing of that kind is taken into consideration.

justify the particular action in every railroad act. There may be improper provisions in them. What I contend is, that it is improper. to lay down a principle that the fee of the land taken for railroad purposes shall revert to the owner. I think that a great public enterprise should not be hampered as it would be if this amendment be retained.

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 in-road corporations. I do not stand here to dividual 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.

The question was put on the motion to reconsider the vote by which the amendment of Mr. Romsey was adopted, and, on a division, it was declared carried, by a vote of 24 to 23.

Mr. RUMSEY-I think the gentleman from New York [Mr. Duganne] arose after the Secretary had counted the delegates in this part of the room.

The PRESIDENT-Does the gentleman from Steuben [Mr. Rumsey] challenge the count?

Mr. RUMSEY-I would ask the Secretary if he counted Mr. Duganne?

The SECRETARY-I do not recollect.

Mr. RUMSEY-Then I challenge the count. The question was again put on the motion of Mr. Murphy to reconsider the vote by which the amendment of Mr. Rumsey was adopted, and, on a division, it was declared lost, by a vote of 24

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 to 25. 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:

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.

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?

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 what ever 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 not

Mr. 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.

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. ALVÕRD-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 No amendment being offered the SECRE- part represent, has a large proportion of inhabitTARY proceeded to read the next section as ants of foreign birth. Among them is occasionfollows:

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, houses, papers and effects against unreasonable seizures and searches shall not be violated, and no warrant shall issue but upon propable cause supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.

ally one, who, from some cause, has not become

a citizen. Yet he may be, in every respect, industrious and deserving. I do not say that these people are all honest; but I do say that the great majority of them are good citizens; and that Sullivan county is far wealthier through the industry of its inhabitants of foreign birth. I hope that this proposition, which has substantially been incorporated into the Constitutions of California, Iowa, Kansas, Michigan, Nebraska, Nevada, Oregon and Wisconsin, will be adopted by us.

should have. This would permit him to takę a deed in fee, and then leave the country. I propose that he shall take no more deed, so far as that is concerned, than a possessory deed. If he shall see fit to part with that property to other persons, that may be well enough; but I desire that he shall not retain the title after he shall depart from the limits of our State.

Mr. GRAVES-Is the title perfect in the purchaser while the alien has merely declared his intention of becoming a citizen?

Mr. ALVORD-Yes, sir.

Mr. GRAVES—Then if, having filed an intention to become a citizen, he dies before perfecting the title, or goes back to the old country, would not his heirs enjoy the title as perfectly as though he had received papers of naturalization?

Mr. ALVORD They would not, unless they are citizens. If he leaves children, and they become citizens, then they would receive the title : but if he goes away, there being no other heirs but aliens to the country, the property escheats to the State. It must be a citizen of the United States that takes it. It can be taken by no other. So far as real estate is concerned, there can be no doubt about it.

Mr. M. I. TOWNSEND-I think the gentleman from Onondaga [Mr. Alvord] is mistaken. I think a resident alien who would otherwise be an heir to a person who has taken incipient steps for naturalization and purchased lands-a resident alien would take the property if he goes on and completes his own naturalization. It was so formerly, if it is not so now.

Mr. ALVORD-I have no objection to the proposition of the gentleman, provided he will accept of a slight amendment. There are cases of this kind: there have been in the history of this State cases where parties have come from abroad with large amounts of money, and have purchased large and extended estates and remained upon our soil a short time and then taken themselves away, their property remaining behind them. There have been attempts, from time to time, which have caused great difficulties and trouble in this State to legalize their property, growing out of the fact that they bought it while they were with us; and many difficulties have arisen in our Legislature and in our courts upon this subject. I move, therefore, and hope the gentleman will accept the amendment, to add the words "so long as they remain such residents;" so that we shall not, by this permission, give the right to parties to come to these United States and temporarily reside here as bona fide residents and get hold of property within the limits of the State and depart, never to come here again. I have a case in my mind at the present moment. There was an attempt some years ago to get a Mr. ALVORD-If an alien files in the Secrelaw of the State passed to authorize aliens to tary of State's office his intention to become a come here and purchase property. What was citizen he can hold the land; but he cannot hold the intention of that law? That they should go the land unless he does that. We have cases to work and monopolize the whole iron ore in the upon cases coming up every day in the Legislanorthern part of this State, and then shut up our ture of this State of relieving property from manufactures in the interest of Great Britain. A escheat, and it is for the purpose of permitting party may come here and become a resident of parties who are at that time resident aliens to this State with an immense amount of wealth, receive such property. As, for instance, a man's and purchase a large tract of country and remain wife. An alien comes into the State and purhere for six months, a year, or two years; he chases real property and dies leaving a wife, not may then return home, having locked up this having himself got rid of the alienage by natucountry from the industry and enterprise of our ralization or declaring his intentions and filing people, in the interest of manufacturers abroad. them in the Secretary of State's office. He If they honestly and faithfully mean to come dies and leaves a wife who also has not here and settle and become inhabitants of the taken this precaution. The result is that country, I am perfectly willing that they should she, being the only heir, the State will, in hold the property without let or hinderance, the such a case, through its Legislature, rethe same as the people of this State enjoy their lieve that property from escheat. For the reason rights of property; but that they should have I have assigned I am against the proposition of that right as aliensthe gentleman from Sullivan [Mr. Wales], unless it shall be amended so as to read, so long as he shall remain a resident." There is no question but what, if a party comes in under the laws of the State and possesses himself of land and conveys the title to other parties and then leaves the State, the title is good; but if he comes here merely for the purpose of getting possession of large portions of land in the State to affect the industrial interests of the State, as the attempt has been made within the last quarter of a century to take the control of the entire northern portion of this State, so far as regarded the iron interest, for the benefit of the iron makers of Great Britain, I am opposed to it.

Mr. VERPLANCK-Will the gentleman allow me to ask him a question? What sort of an estate would that be? A man buys property, and it is deeded to him. He is to hold it as long as he remains in this country. Where is the title vested? Mr. ALVORD-It would be exactly what it is now. He is in possession of the property as long as he stays, but if he leaves the property, if he dies or fails to become naturalized, that property reverts to the State of New York.

Mr. VERPLANCK-But what is his title, what title does he take?

Mr. ALVORD-He takes merely a possessory title under his deed. That is what I desire he