compatible with the rights of trial by jury in its just sense, that that proceeding should be resorted to. Mr. GRAVES-Does the gentleman know of any law which prohibits the jury from going to the law, if they are near where it is? was taken for the purpose of building that road who was not paid more than fourfold by the operation, still they fought that matter in the courts, up to the court of last resort, and the courts finally adjudicated and determined that the law was constitutional, and that the commissioners had a right to estimate the value of the prop- Mr. LAPHAM-None at all; but it is incomerty. The owners have the same right with a patible with the safeguards that surround the company to come forward and ask the court in right of trial by jury that the jurors should go and regard to the selection of these commissioners;uake such examinations. There is no objection, and no company would dare, under any circum-there never has been any serious objection made, stances, to come forward before the courts and so far as my knowledge extends, to the mode of ask. for a commission, except for a commission assessing those damages by commissioners. The of high-minded men-men of good sense and statute prohibits a commission from taking into solid judgment, men who stood aside and apart Account any prospective advantages to the land from any of the appliances that are ordinarily owner by the building of the road; and although brought to bear upon a jury in cases of that kind, they might be satisfied that the construction of but who would act throughout the State upon the the road would advance the value of the premises true rule with regard to the value of the prop twenty-five dollars an acre, they cannot make erty. Any allowance for that, as is done in cases of Mr. VERPLANCK-What is the operation of damages, most generally in cases of public imthese commissions? As I said before, a class of provements in the State. There that element ennames is presented to the court, from which they ters into the account, but by the statute it is proare selected. The farmers through several miles hibited in this class of cases. The provision as of territory cannot be there to interfere, and ifited from the Constitution of 1846 has worked they do they are rarely heeded. These commis- well. Under it, the main thoroughfares of the sions are composed, as the gentleman says, of State, those where the investments of capital high-minded gentlemen; but we know that they were merely for the sake of the advantages of the are virtually appointed by corporations for corpo-investment, have been constructed and put in ration purposes, and the result is, so far as my operation. What remains to be done in the way observation is concerned, that the price suggested of building railroads in the State of New York, by the witnesses produced by the corporation is the price ordinarily adopted by the commission. This is unjust to the farming population of the State. It is a fair rule that, if you take property against the will of the owner, you shall pay compensation, to be ascertained by a jury of the vicinage. Mr. ALVORD-Do I understand that the jury have a right to go outside of the evidence before it? is principally to build roads which are to be constructed with reference to their local advantage and benefit in the region of the State through which they pass; not investments of capital nerely for the sake of the emolument which is to be derived from it as an investment, but investnents of capital made in a spirit of liberality by the citizens, for the purpose of public improvement and public convenience. Therefore, at this time to interpose and say that no assessment for Mr. VERPLANCK—Not at all; but they have damages shall be made except by a jury, seems the right to judge what the testimony amounts to; o me to be throwing upon the further completion and, owing no allegiance to the corporation, and of improvements of this character, an obstacle acting upon their oaths as jurors, they will do which should not be interposed. The members justice, and this is the way that justice should be of this Convention have been very restive in refmeted out when lauds are to be taken from anerence to the clause prohibiting towns from boudindividual and given to a corporation. It is harding themselves for the building of railroads; and that private property should be taken against the a proposition is now pending to remove that rewill of the owner, but it is still harder if, in as-striction, solely for the reason that the roads recertaining the compensation to be awarded, the rule of common law and the rules which govern the claim for damages in all other cases are departed from. Mr. LAPHAM-I am in favor of the proposition as it is in the present Constitution. I am not without some experience in these matters, sir, and I can state as a result of my observation, that 1 have never known a case where the owner of the land did not get all the money to which he was entitled. The exceptions are really when a vast deal more than compensation has been given for damages of this kind. In the appointment of these commissions, the statute provides that each land owner is entitled to notice of the application for the appointment of the commissioners. It is peculiarly proper in this class of cases that the persons who are to decide upon questions of dam age shall go and examine the premises. It is in maining to be built are roads constructed for local benefit. Now, sir, it does seem to me that, where an individual is unwilling to contract for the right of way for such a road, at a fair price, it is just that the court should appoint discreet and proper persons who, upon the hearing of all parties shall say what damages shall be given. And if the commissioners err in making the award too large, the law provides a mode of review before the court; but, if it is too small, a eview can be had in reference to that, and it very frequently occurs that a second hearing is ordered in this class of cases, either upon the ground that the individual claims that the award is too small, or that the corporation claims that it is too large. We have a mode of review to correct the first impressions of the tribunal of commissioners in which the safety of the individual 'is insured. Mr. SCHUMAKER-I will say in response to the remark of the gentleman that I have seen those judges returning from the general term at Newburgh and Poughkeepsie and pay their fare on the Hudson River railroad. Mr. M. I. TOWNSEND-As the Constitution | fallen to my lot to ride in cars with judges, and of 1846, and the laws made under it have worked, I have never found that any fare was collected matters have not gone quite as easy as the gen- of those judges; and I undertake to say whether theman from Ontario [Mr. Lapham] would seem Judge Barnard, Judge Lott, Judge Serugham, or to intimate, in all cases. I claim, sir, without the judges of the eighth district, did or did not rehesitation, that an unfair advantage, under the turn their passes, when the conductor came along, Constitution of 1846 and the laws enacted under they were not asked for their fare. it, has been given to the great railroad interests of this State. Now, in the first place, the railroad has the right of selecting the judge-at all events, there is a large number of judges from whom the company can select as the judge to appoint, commissioners. They select a special term, when they know that the judge sits, before whom they would make their motion, is one who would be likely, in their opinion, to favor them in the selection and appointment of commissioners. And, sir, there is a fact existing to which I wish to call the attention of the Convention, and if our debates shall be published, to call the attention of the people of the State, and that is that when the judge sits down to hear a motion for the appointment of commissioners to assess damages, he has passes in his pocket from railroads which ask for the commissioners. I do not say that judges are influenced by that fact, but I do say that it is disgraceful that the transportation interests of this State should thrust upon every judge in this State, who has power to ren der a decision against the corporation, or decide the law in reference to the corporation, or appointing commissioners for the assessment of damages, passes upon their roads, and that when the judge sits down to hear an application, he sits down with their passes in his pocket. Mr. SCHUMAKER-I would ask the gentleman from Rensselaer [Mr. M. I. Townsend], if he does not know that there are a great many justices of the supreme court of this State who have returned passes which have been sent to them, and have never used them? If he does not, I will mention the names of some judges whom I know have returned these passes to the railroad companies and have never used them. I would mention Judge Lott and Judge Barnard of the second judicial district. Mr. FRANK-I believe also that the judges in the eighth judicial district have returned passes presented to them and have never used them. Mr. M. I. TOWNSEND-I am very glad that they have done it. I wish it was required to be done by a constitutional provision all through the State. What I complain of is that, as a general thing, the judges have received these passes, and have not returned them. I do not say that this has ever influenced the judges' minds; but it is all useless to talk here in opposition to my view of the general practice in the State, because I know what the general practice in the State is. If on the contrary a jury were called, there exists the right of challenge in respect to that jury. If the juryman has made up his mind, if he is so constituted as to make himself unfit to sit as a juryman in the case, he can be objected to and can be driven from the jury; but in the case of commissioners appointed by the judges there is no right of challenge either against the judge who may be biased, or against the commissioners whom he may appoint. The whole matter is left to the caprice of the judge whom the corporation desires to appoint the commissioners, and his decision is final. And I would ask my friend from Ontario [Mr. Lapham] who says that a judge may set aside an award made, which he regards as either too high or too low, whether he has ever known a judge to set aside an award because the damages were too low. Many appeals have been made to the court to set aside an award of the commissioners because the damages were too high. I have seen awards set aside, because the damages were too large, but never because they were too small. Mr. BERGEN-The question has been argued, it appears to me, as only bearing upon the subject of the taking of land for railroad purposes. I think it has an equal bearing upon the question Mr. M. I. TOWNSEND-My friends will agree of opening streets in our cities. Take the city with me that the passes are rendered, but I would of Brooklyn, for instance. We have streets a great deal rather, though I have no doubt that opened there three or four miles long, and there the gentleman from Kings [Mr. Schumaker] be- are a vast number of different owners of property lieves what he says, and that the gentleman from on the line of the street whose property is taken. Wyoming [Mr. Frank] believes what he says- According to the position taken by the gentleman Mr. E. A. BROWN-May I ask my friend from from Rensselaer [Mr. M. I. Townsend], a jury Rensselaer [Mr. M. I. Townsend] if he is aware must be called in to assess the damages in every of the fact that in our part of the country the case. Take the case of Prospect park in Brook. commissioners were appointed to appraise dam-lyn, which has been referred to. There were a ages before any railroads were built, and of course thousand different owners, and I do not know but before any passes could be given? Mr. M. I. TOWNSEND-I will say, in answer to my friend from Lewis [Mr. E. A. Brown], that I hope, therefore, things were managed so fairly and so entirely satisfactorily to the locality, that the utmost justice was done. But I wish to say to the Convention that it is all useless to run away with the idea that the judges do not ride free because they return their passes, for it has what there were more than a thousand owners of the property taken for that park. If a jury was to be taken in each case to assess the damages, it might take ten years to accomplish the assessment, at an enormous expense. Mr. M. I. TOWNSEND-Will my friend from Kings [Mr. Bergen] allow me to ask him whether he thinks the expense would be greater in the city of New York or in the city of Brooklyn for opening streets, when the damages were assessed by a jury than it is now when commissioners are appointed by the supreme court to make the asBessment? Mr. BERGEN-I think they would be greater. Mr. M. I. TOWNSEND-The cost of opening Church street by commissioners is $120,000. is liable to fraud and unfairness, and as much so as any system which can be devised. As I said before, the present system under the Constitution of 1846 has been in operation and has given pretty general satisfaction, as I understand it. I deem it to be unwise to change it, and start a new one which is liable to equal abuse if not greater. Mr. BERGEN-I have no doubt that in the city of Brooklyn the expenses would be increased by Mr. HAND-I am in favor of this amendment. the substitution of a jury in place of commis- I would ask the gentleman why we have a jury sioners. To be sure, the Legislature might pro- in a case where property is concerned in any vide that the same compensation should be given case? If we have a dispute with our neighbor to jurymen that is given to commissioners now. in reference to property, if we have a demand But the length of the proceeding would be dou- against our neighbor even of a few dollars, the bled, tripled, or quadrupled, or even made teu law allows a trial by jury; and yet in a case like times as long, under the system of an assessment this, where the whole power of the government by juries as it would be under an assessment by is brought to bear against my property, without commissioners. I refer to the case of Prospect my consent, you deny me the privilege which I park in Brooklyn again. In that case it certainly would have if but fifty cents was involved in conwould have very greatly increased the expenses troversy-a trial by jury. And this is still more and prolonged the time under the jury sys-important to protect the interests of citizens in a tem. If no provision is contained in the Con- case of running railways across a man's farms In stitution, stating how this jury is to be selected. such case the mere value of the land taken is no it will be left to legislation, and a chance measure of the damage. Four times the value draft from the jury box, and there is no cer- of the land taken is oftentimes no compensation tainty that a better class of individuals would be for the damage done to the property, while in no selected for the purpose of assessing damages case is any more than the value of the land than would be selected by a court for commis-awarded. But there is another aspect of this sioners. The probability is that any court ap- matter which we must consider. In the ruling pointing commissioners would select more compe- of the courts in reference to damages done to tent individuals than would be drawn by chance railroads by neglect on the part of the land owner, from a jury box. I know that, in my own vicin- the presence of a railroad becomes a grave matity, the courts, in appointing commissioners, have ter to him. If a man's cow, for example, escapes always allowed persons whose interests were and gets on the track, through a careless employee concerned to be heard, and if any good reasons or heedless neighbor leaving open a gate, and by were given why any of the proposed commis- that means a train is thrown from the track, the sioners should not be appointed, his appointment railroad company is entitled to all the damages has been refused. In taking lands for public that may accrue by the accident. It may involve uses, and I refer particularly to the opening of the man in irretrievable loss, sweeping away the streets and parks, there is no large railroad com- accumulations of a life-time, taking every thing pany interested in having the lands undervalued. that he is worth in the world. These things are The publie are interested in having the lands liable to happen without the slightest fault on the taken at a reasonable value, and those parties part of the owner of the land. A careless emwho are interested as owning the lands in these ployee, or a neighbor in crossing the farm, may cases endeavor to get a set of commissioners ap- leave the bars or gate open, so that his cattle pointed who will give them the largest compensa- will escape and get upon the railroad track. tion. The operation of these commissioners has If an accident occurs under these circumstances, been in vogue for many years. No doubt there he is held for very serious damages. It seems have been abuses, but it is a query whether there would not be greater abuses under a jury system. This operation of commissioners is a speedy operation, and I have no doubt less expensive than the jury system as proposed. I know very well that in opening highways in the country where there are few owners, and where the matter is not complicated, a jury system works well. But how are juries, selected in the country in opening highways? I have had a little experience in that matter. The law authorizes justices to have a jury summoned from an adjoining town. The justice issues his venire, or order, to the constable to summon a jury. The constable goes around and summons such men as he sees fit, and they are drawn from the box. It is an easy matter for parties interested to make it for the interest of the constable to summon such men on the jury as suits them. I have no doubt this is often done. The jury system at the present time, in the matter of opening highways, to me that with the amount of interest involved upon matters involving large amounts of prop- to another place. When the time for dinner arerty, the smaller disputes between citizens should rived, every arrangement had been made by the be disposed of by the same short and convenient host for a sumptuous meal. A roast pig was 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. upon the table, with suitable accompaniments. [Lughter.] From the moment I saw these preparations, 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 thought, very improperly. It was utterly impossible to resist the appliances that were brought to bear in favor of the application. 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 commissioners, 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 already pending. Mr. GRAVES-I would ask the gentleman from Rensselaer [Mr. M. I. Townsend] to amend his amendment by the insertion of these words. 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 gentleman from Cattaraugus [Mr. Van Campen] says there has been no complaint in relation to the working of this system of commissions in its application 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 mauner 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. I say 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. Mr. PRINDLE-Mr. President, I hope the amendment of the gentleman from Rensselaer [Mr. M. I. Townsend] will not prevail. In our called on me the other day and stated this fact, that the New York Central Railroad company, in changing its track, passed over his farm, and upon the land taken for the track was a spring-a very valuable spring. After they had constructed their road he undertook to take the water in that spring for the purpose of using it, and the com 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. A more villainous provision was never put into the body of any statute. A man owns a farm; a railroad goes across it; subsequently the railroad 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 1 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 equal propriety say, why do we not have a jury in every case? Why is it not provided by law that parties shall be entitled to a jury in equity cases as well as others? Now, the very argument suggested by the gentleman from Broome, shows that it would be very dangerous to leave this 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 sustained 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 lia-company ceases to need the land for that purpose, 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. They would be very likely to take into consideration the fact that they might be liable for the destruction of a train of cars on account of the cattle getting upon the track. The gentleman from Rensselaer [Mr. M. I. Townsend] desires to have a common law jury to be selected as the Legislature shall prescribe, by the sheriff or otherwise. I think the matter may be as safely left to a court of record to appoint commissions as it would be to leave it to a constable or a sheriff to select the men to assess these damages. I believe that if this amendment should prevail, damages along the line of railroads would be assessed so heavily by juries interested in the matter themselves that it 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: but they still own the fee of the land under that provision of the statute. There is no sort of reason why that should be so. When the company ceases to use the land for the purposes of their tracks it should revert to the owners. The question was put on the amendment of Mr. Rumsey, and it was declared carried. Mr. LAPHAM-I move to add at the end of the section the following clause, which was reported by the Committee on Industrial Interests, and to be found in document No. 52. I will read it: "Private roads and agricultural drains may be opened in manner to be prescribed by law." I am aware, Mr. President, that the court of appeals, in a recent case, has made a decision which, to some extent, interferes with the exercise of this right; but it is by no means a settled question. The improvements which are taking place in agriculture in this State, and the greatly enhanced value of agricultural improvements and their products, makes the exercise of this right a necessity, and some way should be provided to meet it. The only way to provide for the reliev 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 |