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of 1846, has some qualifying provisions, as to the tribunal or forum, in which, the value of these private interests taken for public use, shall be assessed. It has been claimed, that the right of trial by a common law jury of twelve men in all cases, is a constitutional right to the proprietor, of which he cannot be deprived, under the second section of the first article of the constitution of 1846, which declares, that "the trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever."

This section, however, has had judicial construction by the court of appeals, in this state. a It was there held, that inasmuch, as for a period of twenty years preceding the adoption of that constitution, special juries had been drawn with reference to the apprais

a Cruger v. The Hud. R. R. Co., 12 N. Y. 198.

peers, or the law of the land," Art. 1, § 6. Maryland, "That no man ought to be taken or imprisoned, or disseized of his freehold liberties or privileges, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land," Declaration of Rights, § 23. Massachusetts, "No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities or privileges, put out of the protection of the law, exiled or deprived of his life, liberty or estate, but by the judgment of his peers, or the law of land," Declaration of Rights, Art. 12. Michigan, "No person shall be deprived of life, liberty, or property, without due process of law," Art. 6 § 32. Minnesota, "No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers," Art. 1, § 2. Mississippi, "Nor can he be deprived of his liberty or property, but by due course of law," Art. 1, § 10. Missouri, same as Delaware, Art. 1, § 18. Nevada, "Nor be deprived of life, liberty or property, without due process of law, Art. 1, § 8. New Hampshire, same as Massachusetts, Bill of Rights, § 17. North Carolina, "That no freeman ought to be taken, imprisoned or disseized of his freehold liberties or privileges, or outlawed or exiled, or in any manner destroyed, or deprived of his life, liberty or property, but by the law of the land,” Declaration of Rights, §12. Pennsylvania, like Delaware, Art. 9, § 9. Rhode Island, like Delaware, Art. 1, § 10. South Carolina, "No person shall be taken, imprisoned or dissiezed of his freehold liberties or privileges, or outlawed or exiled, or in any manner deprived of his life, liberty or property, but by due process of law," Art. 9, § 2. Tennessee, same as Florida, Art. 1, § 8. Texas, "No citizen of this state shall be deprived of life, liberty, property or privileges, outlawed, exiled, or in any manner disfranchised, except by due course of law," Art. § 16. West Virginia, "No person in time of peace shall be deprived of life, liberty or property, without due process of law," Art. 2, § 6. In the constitutions of the remaining states, it is believed, that the protective phrases are omitted, but that equivalent protection is afforded by the statutes and common law.*


O Cooley on Const. Lim. note to p. 351.

ment of damages in such cases, and that the term jury seemed to have been used in such proceedings as descriptive of the civil condition of the persons composing it, and by way of distinguishing between such a body of jurymen, and commissioners appointed by courts under other acts, to perform the same functions; they are called in such special acts sometimes as jurors, and sometimes as appraisers, or jury of appraisers, a majority of whom could make the certificate, of inquisition or appraisal, that the instances of such appraisal, prior the time of the convention who framed the constitution of 1846, was sufficient to establish the position, that the term jury, in those acts, did not necessarily import a tribunal consisting of twelve men acting only upon a unanimous determination, but on the contrary was used to describe a body of jurors, differing in numbers, and deciding by majorities, or otherwise, as he legislature in each instance directed.

The term jury, as used in those special statutes, it was held, was used in a sense in which it was known to the law, at the time of forming that constitution, as one of the modes of proceeding theretofore in use in taking private property. The other mode being that of appraisement by commissioners. These two modes had then been in use, and had been regarded as well calculated to secure both public and private rights. The term jury, therefore, when used in reference to the assessment of damages for taking private property, was not used in the common law, or the restricted meaning which belongs to it when used in reference to trials civil, or criminal; but in the broader sense which it had acquired in common use, under legislative acts. a This is the more obvious, from that other provision contained in the seventh section of the same article of this constitution before cited, that in such cases, the compensation "shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law."

This being the adjudication of the highest court of the state in giving construction to a statute of the legislature, and in effect giving judicial construction to the fundamental law made by the people themselves, and under which the legislature ronoivo their authority to enact the law, we must regara this mode of asce

a Id. 200.

taining compensation, to be in accordance with the "law of the land," as secured to the citizen by the constitution; and this must also be, "by due process of law," "being a prosecution or suit instituted and conducted in the courts according to the prescribed forms and solemnities for determining the just compensation to be paid for private property taken for public use," under the authority conferred by the people upon the legislature, and in the constitution adopted by themselves, whereby they intended, not to destroy, but to secure the individual citizen from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights, and distributive justice.

It must be conceeded, that this conclusion has not been arrived at without its having received the most deliberate consideration of the courts, after years of struggle, and by a divided opinion. a There was a strong disposition, on the part of judges, to interpose the judicial department of the government as a barrier against aggressions of the other departments, and to hold that the citizen could only be secured in his property, by a judicial trial, and by a common law jury of twelve men, whose unanimous verdict should be had in the case.

But the wants of the public, stimulated by the progressive spirit of the age, upon the one hand, and the obstructions which a spirit of avarice, by individuals, interposed upon the other, rendered such a restriction impracticable, and it was seen, that it was the remedy, and not the right, which was really the question to be settled, and it was hardly doubtful that the forms of administering justice, and the duties and powers of courts in relation thereto, were incidents to a branch of the sovereign power, and that these must be subject to the legislative will. It therefore become necessary to constitute particular tribunals for the adjustment of such controversies, bringing the parties to submit themselves to the exercise of more summary remedies in this regard. There is no perceptible reason, why private rights may not be as well protected under the one system as the other, both being under the protection of judicial proceedings in the courts, and controlled by rules equally impartial in their application.

a See Cases of Hoke v. Henderson, 4 Dev. (Maryland R.) 1; Jones v. Perry, 10 Yerg. R. 59; Embury v. Conner, 3 N. Y. 511; Taylor v. Porter, 4 Hill, 140.

Besides, "the right to a particular remedy is not a vested right." This is the general rule; and the exceptions are of those peculiar cases where the remedy is a part of the right itself. As a general rule, every state has complete control over the remedies which it shall afford to the parties in its courts. a When not restricted by the constitution, it may abolish one class of courts and create another, b and it may abolish old remedies, and substitute new. And any rule or regulation in regard to the remedy, which does not, under pretence of regulating it, impair the right itself, cannot be regarded as beyond the proper province of legislation. c

There must not be a confounding of the taxing power, under which property is taken for public use, with the right of eminent domain. The clause in the constitution of the United States that private property shall not be taken for public use without just compensation, applies to the right of eminent domain, and has no reference to property taken for taxes. d

This provision of the constitution is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states. e The constitution of the United States was ordained and established by the people of the United States, for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. Therefore, when the constitution of a state provides that private property shall not be taken for public uses, and the highest court of such state has sustained the validity of a law which violates this constitutional provision, the courts of the United States have nothing to do with it.

a Lord v. Chadbourn, 42 Maine R. 429; Rosier v. Hale, 10 Iowa 470; Holloway v. Sherman, 12 Iowa 282; McCormick v. Rusch, 15 Iowa 127; Rockwell v. Hubbell, 2 Doug. (Mich.) 197; Cusir v. Douglass, 3 Kansas 123; Smith v. Bryan, 34 Illinois 377.

b Foster v. Essex Bank, 16 Mass. 245, 272; Hampden v. Commissioners, &c., 6 Pick. 508; In Bank, 16 Ohio 354-5; Hepburn v. Curts, 7 Walts. 300.

c Cooley on Const. Limits, 361, 362. d Howell v. City of Buffalo, 37 N. Y. 270. e Barron v. Mayor of Baltimore, 7 Peters, 243; Withers v. Buckley, 20 How. U. 8. R. 84.

Taking lands for widening of a street, with a restriction on adjoining land, which may be used for the purpose of extending court yards, is the taking for public use, and entitles the proprietors to an award of damages. In such case, dominion is asserted over the land by the public, to the extent of depriving the owner of his right to enjoy it for any other purpose than as a court yard. a

a Matter of Bushwick Avenue, 48 Barb. 9.


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