Jury. The act of 1847, chap. 31, 84, relating to the power of the Hudson River Railroad Company to take lands for railroad purposes, which, among other things, authorized a judge of a court of record to appoint "a jury of appraisers," to be composed of twelve men whose names were to be drawn from the grand jury box, to assess the damages in cases where property was taken by condemnation, and which permitted the certificate of appraisement to be signed by a majority of the appraisers, was held a compliance with the constitutional provision requiring damages to be ascertained by a jury. An examination of the subject of taking private property for public use during twenty years immediately preceding the Convention of 1846 shows that "the term ‘a jury' had been in frequent use as descriptive of a body of jurymen drawn in the ordinary mode of drawing juries, to whom was committed the appraisement of damages for private property taken for public uses, and whose decision was to be made by a majority." Four such statutes were passed by the legislature of 1846 immediately preceding the Convention. These instances were deemed sufficient "to establish the position that at the time of the Convention there was a known legislative usage in respect to this subject, according to which the term 'jury' did not necessarily import a tribunal consisting of twelve men acting only upon an unanimous determination, but, on the contrary, was used to describe a body of jurors of different numbers and deciding by majorities or otherwise, as the legislature in each instance directed." The Convention of 1846, which incorporated in the Constitution for the first time the provision requiring compensation to be ascertained by a jury or by commissioners, "ought, therefore, to be deemed to have used this term [jury] in the sense in which it was then known to the law, and to have selected out of the modes of proceeding theretofore in use in taking private property, those two modes which they thought best calculated to secure both public and private rights,-appraisement by commissioners or by juries,-giving to this latter term, not the restricted meaning which belongs to it when used in reference to trials, civil or criminal, but the broader sense which it had acquired by legislative use." Cruger v. Hudson River R. Co. (1854) 12 N. Y. 190.

The term "jury," as used in the Constitution, "means a body of jurymen drawn in the ordinary mode of drawing jurors for service in the courts." People ex rel. Eckerson v. Haverstraw (1896) 151 N. Y. 75, 45 N. E. 384; Clark v. Utica (1854) 18 Barb. 451.

Commissioners.-It is not competent for the legislature to appoint

commissioners to ascertain the compensation on taking private property for a public use, or devolve the duty upon any body or set of men other than those indicated by the Constitution. People ex rel. Cook v. Nearing (1863) 27 N. Y. 306.

Considering the powers and duties of commissioners appointed to ascertain damages, the court, in Re New York (1885) 34 Hun, 441, say that the Constitution, neither in terms nor by fair implication, requires that the commissioners shall take evidence concerning the value of the property intended to be appropriated, "but they have been left at liberty to proceed upon their own personal examination and investigation, and to act upon the knowledge or information obtained in that manner."

Where a statute provides for commissioners to ascertain the compensation, such commissioners must be appointed by the court, and such appointment "must not only in form be made by the court, but it must be its independent, untrammeled act, in the exercise of judicial responsibility." It was accordingly held that an act authorizing the common council to nominate twelve persons, three of whom were selected by lot, to become commissioners for the purpose of ascertaining the compensation to be awarded for property taken, was unconstitutional; the persons selected did not constitute a jury, and the common council could not constitutionally select commissioners. Menges v. Albany (1874) 56 N. Y. 374; Hilton v. Bender (1877) 69 N. Y. 75.

A majority of the commissioners may act. Astor v. New York (1875) 62 N. Y. 580; Re New York (1885) 99 N. Y. 569, 2 N. E. 642; Re Fourth Ave. (1854) 11 Abb. Pr. 189.

A local court of record cannot be authorized to appoint commissioners to appraise property outside the territorial jurisdiction of the court. The Constitution evidently means that the commissioners must be appointed by a court of competent jurisdiction; that is, a court possessing lawful jurisdiction over the subject and the persons affected by the proceeding. So held in a proceeding under a statute which authorized the superior court of Buffalo to appoint commissioners to appraise the damages caused by taking land outside the city for city park purposes. Re Buffalo (1893) 139 N. Y. 422, 34 N. E. 1103.

PRIVATE ROADS.

In Taylor v. Porter (1843) 4 Hill, 140, 40 Am. Dec. 274, the supreme court declared unconstitutional the provisions of the Re

vised Statutes, 1 Rev. Stat. 513, § 77 et seq., providing for laying out private roads. Such a proceeding in effect transferred the property of one person to another, and the owner of the road became substantially the owner of the land; or, at least, the original owner was deprived of the beneficial use of it without his consent. The Convention of 1846 amended the Constitution by providing specifically for laying out private roads.

This provision does not apply to a way by necessity nor to a way used by the owner for his own convenience, and which crosses land afterwards subdivided and sold. Wheeler v. Gilsey (1867) 35 How. Pr. 139.

In Berridge v. Shults (1900) 32 Misc. 444, 66 N. Y. Supp. 204, Justice Chase at special term held unconstitutional the provision of the highway law, § 111, providing for a jury of six in a proceeding to lay out a private road, saying this was not the jury contemplated by the Constitution, and cited People ex rel. Eckerson v. Haverstraw (1896) 151 N. Y. 75, 45 N. E. 384

DRAINAGE.

The provision in relation to drainage, added to this section in 1894, was not retroactive, and did not affect proceedings pending under prior drainage laws, which limited the drainage of agricultural lands to cases where it was necessary for the preservation of the public health. Re Penfield (1896) 3 App. Div. 30, 37 N. Y. Supp. 1056.

In Re Lent (1900) 47 App. Div. 349, 62 N. Y. Supp. 227, the East Chester drainage act of 1871, chap. 882, was held unconstitutional because it did not require notice of assessment to be given to property owners.

In Re Tuthill (1900) 163 N. Y. 133, 49 L. R. A. 781, 79 Am. St. Rep. 574, 57 N. E. 303, the drainage act of 1895, chap. 384, intended to carry into effect the new drainage provision of the Constitution, was held unconstitutional so far as it authorized the assessment of any part of the expense upon owners of land adjoining the land sought to be drained. The amendment only "authorizes laws which will enable an agricultural landowner, desirous of draining his lands, to exercise the right of eminent domain, and thereunder to appropriate another's lands for the purpose, under such restrictions as shall be deemed proper to be made, and upon his making due compensation. No right is conferred or implied to assess a portion of the cost and expense upon the other landowners." It was inti

mated, but not decided, that the amendment to 87 is obnoxious to the provisions of the Federal Constitution. Judge Gray said he was unable "to resist the conclusion that the constitutional amendment is invalid and inoperative;" but Chief Judge Parker thought the amendment was not in conflict with the Federal Constitution.

§ 8. [Freedom of speech and press; evidence in libel cases.]-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 libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous 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.

[Const. 1821, art. 7, § 8; 1846, art. 1, § 8.]

Freedom of the press. In the Introduction I have quoted the prohibition against the freedom of the press which was contained in the instructions issued to Sir Edmund Andros on his appointment as governor of several American provinces, including New York, in 1688, and have noted the fact that the prohibition was continued in subsequent instructions.

The provision of the Revised Statutes (1 Rev. Stat. 665, § 28) which prohibited an advertisement of a lottery was not obnoxious to the constitutional provision securing liberty of the press. The Constitution prohibits lotteries, and the statute was intended to carry that prohibition into effect; but it did not prohibit an editorial article "showing the existence of an illegal lottery, and where the same is carried on, for the purpose of denouncing and exposing it." Hart v. People (1882) 26 Hun, 396.

A by-law of an associated press prohibiting the associates, under a specified penalty, from receiving and publishing regular news despatches from any other association, is not a violation of this provision relating to the liberty of the press. It is a proper subject of contract between publishers. Matthews v. Associated Press (1891) 61 Hun, 199, 15 N. Y. Supp. 887.

In People v. Most (1902) 71 App. Div. 160, 75 N. Y. Supp. 591, the provision of § 675 of the Penal Code, that a person who wilfully and wrongfully commits any act which disturbs or endangers the public peace is guilty of a misdemeanor, was made the basis of an indictment for the publication of an article in a newspaper which "characterized government as 'nothing more than murder dominion,' and called upon the adherents of anarchypersons supposed to be in sympathy with the editor of the paper-to execute the judgment by killing" the heads of nations by various means particularly specified. The court say: "That the promulgation of such unnatural and outrageous doctrines in this state of civilization 'seriously endangers' the public peace is a question which to us does not seem to admit of debate. Every civilized nation heretofore has existed, and hereafter must exist, if at all, by the enforcement of law. Its recognition and enforcement are the safeguards of the state. Indeed, upon it depends its existence. Whoever openly or secretly advocates the resort to force, in opposition to the law of the state, for the accomplishment of any purpose, or the righting of any wrong, either real or imaginary, seriously endangers the public peace." The Constitution "does not give to a citizen the right to murder, nor does it give him the right to advise the commission of that crime by others."

Libel. The controversy relating to the right of the jury to determine both the law and the fact in libel cases, which had continued many years, was settled in this state by the act "concerning libels," passed April 6, 1805, in which the preamble recited that “doubts exist whether, on the trial of an indictment or information for a libel, the jury have a right to give their verdict on the whole matter in issue;" wherefore it was enacted that in libel cases "the jury, who shall try the same, shall have a right to determine the law and the fact under the direction of the court, in like manner as in other criminal cases, and shall not be directed or required by the court or judge, before whom such indictment of information shall be tried, to find the defendant guilty, merely on the proof of the publication by the defendant of the matter charged to be libelous, and of the sense ascribed thereto, in such indictment or information,” and the defendant was permitted “to give in evidence in his defense the truth of the matter contained in the publication charged as libelous; provided always, that such evidence shall not be a justification, unless, on the trial, it shall be further made satisfactorily to appear that the matter charged as libelous was published with good motives and for justifiable ends."