claim made, that in whatever court the person charged might be tried, he was entitled to have his guilt or innocence determined by a jury of twelve men. This was opposed, and finally held by the courts of this state, that under the constitution and statutes, persons charged with crimes not capital, or otherwise infamous, may be held to answer without being first indicted or presented by a grand jury, as the legislature should provide. a By an act of the ·legislature of 13th April, 1813, under the constitution of 1777, certain offences, viz., petit larcency, misdemeanor, breach of the peace or other minor offences, under the degree of grand larceny, were made triable by a court of special sessions, without any jury whatever. This act was modified by the legislature in 1824, so as to give the party accused the right to be tried by a jury of six men, b and these statutes were regarded as in force when the present constitution was adopted.

Trials for offences of this minor grade, had uniformly been authorized under these statutes, without a jury, and with a jury of six men; and the highest courts had ratified the practice, and they also held, that it was in the power of the legislature to confer upon courts of special sessions, the right to try offences below the grade of felony without indictment and without a jury.c And though the Revised Statutes have modified still more these rights of trial before courts of special sessions, and made the right of trial to depend upon the condition, that the accused is unable to furnish bail to appear at a higher court, it is still in the power of the special sessions, in such case of failure of bail, to try him, whatever may be the desire or demand of the accused to be tried elsewhere. It is an entire question of power of the legislature, to confer this jurisdiction upon the courts to try such cases, with or without consent of the accused. They can grant or withold their consent to allow a jury; the granting it is a privilege.

But if a party be arrested for a statute misdemeanor, as for instance for a violation of the "act to suppress intemperance," and is brought before a justice of the peace and desires to have his case passed upon by a grand jury, and if indicted, to be tried by a jury of twelve men, and is able and willing to give bail for his a The People v. Fisher, 20 Barb. 652

b Sess. Laws, 1824, Ch. 238

c Duffy v. The People, 6 Hill 78; Wyndham v. The People, 13 N. Y. 484

appearance before the next court of oyer and terminer or general sessions, he cannot be summarily tried by the justice, against the consent of the party so charged. a The state constitution provides, "that the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever."b Under our statute laws existing at the time of the adoption of the constitution, a justice could hold a court of special sessions, and could try without a jury, if one should not be demanded; or with a jury of · six men, if one should be requested-persons charged with certain misdemeanors, who should elect to be thus tried, or persons who should fail to give the requisite security to appear at a court of oyer and terminer or general sessions, where they could not be tried without indictment, nor by any but a common law jury of twelve men. This privilege existed when the constitution was adopted, and was reserved in it to the citizen; when therefore the party charged, demanded this privilege, and offered to comply with the condition, it left the justice without jurisdiction to proceed.

So too, as to this constitutional right of trial by jury, it can only be claimed where the subject is judicial in its character. The taking of private property for public purposes under the right of eminent domain, or under the taxing power, do not partake of this judicial character. They are both emanations of the law-making power. They are attributes of political sovereignty, for the exercise of which, the legislature is under no necessity to address itself to the courts. In appropriating the property of the citizen under these powers, for a public purpose, under legislative and constitutional authority, with a proper provision for compensation, the act of the legislature itself, is held to be "due process of law."c The constitution itself excepts these cases from the absolute right of a trial by jury, or being made subject to judicial contests, and prescribes the manner in which the compensation shall be ascertained. The constitution nowhere inhibits the exercise of this power by the legislature, or of their delegating the power to public officers, or to corporations established under legislative authority, to secure a judicious appraisal of property in order to carry on enterprises in which the public are interested.

a Hill v. The People, 20 N. Y. 369.

c People v. Smith, 21 N. Y. 598.

b Art. 1 § 2.

CHAPTER XIV.

OF THE POLICE POWER OF THE GOVERNMENT, UNDER STATE CON STITUTIONS, BY WHICH PRIVATE PROPERTY MAY BE TAKEN FOR THE BENEFIT OF OTHERS.

BESIDES the methods of taking private property of the citizen by right of eminent domain, and by the taxing power, there exists another power by which private property may be taken, used or destroyed for the benefit of others, and this is called the police power; sometimes called the law of overruling necessity.

It is clear, that before the adoption of either our state or national constitutions, it was well settled common law, as we find both by the best elementary law writers, and by uniform adjudications in the courts, that in cases of actual necessity,-as that of preventing the spread of fire,—the ravages of a pestilence, or any other great calamity, the private property of any individual may be lawfully taken, used or destroyed for the relief, protection, or safety of the many, without subjecting the actors to personal responsibility. In these cases, the rights of private property must be made subservient to the public welfare. The maxim of law is, that a private mischief is to be endured, rather than a public inconvenience. "On this ground," says Chancellor Kent, a “rest the rights of public necessity. If a common highway be out of repair, a passenger may lawfully go through an adjoining enclosure. So it is lawful to raze houses to the ground to prevent the spreading of a conflagration. These are cases of urgent necessity, in which no action lay at common law by the individual who sustained the injury; but private property must in many other instances, yield to the general interest." b1

a 2 Kent Com. 338.

b 1 Dall. U. S. 363.

NOTE 1.-Of this principle there are many striking illustrations besides those stated. If a man be assaulted, he may fly through another's close. 5 Bac. Abr. 173. In time of war, bulwarks may be built on private ground. Dyer 8, Brook Trespass. And as the safety of the people is a law above all others, it is lawful to part affrayers in the house of another man. Keyl. 46, 20 Vin. Abr. f. 407, § 14: Puffendorf lib. 2, Ch. 6, § 8.

This power to take private property by which the burthen falls upon the citizen, seems at first blush, to be so contrary to a sense of common justice, and falls so unequally and oppressively upon the individual, that it is most natural that we should search for a proper basis for its support. It is claimed that the protection of the citizen is found in the constitutions of both the state and nation which declare "that private property shall not be taken for public use without just compensation." But our highest courts have held, that this police power, or the law of overruling necessity, is not controlled by this constitutional limitation; a that such restriction in the constitution was not designed for, and should not be extended to such a case; that this clause in the constitution has reference only to cases where the property of an individual is taken for some public benefit or advantage.'

a Russel v. The Mayor of New York, 2 Denio, 461, 483; Mayor of New York v. Lord, 17 Wend. 285; Stone v. Mayor of New York, 25 Wend. 157.

NOTE 2.-In an old case reported in 12 Co. 13, it was held, that even the king could not take the private property of the subject for making a wall about his own house, or a bridge to come to his house, for that, would not be for the public benefit. "But when the enemies come against the realm to the sea coast, it is lawful to come upon any land adjoining to the same coast, to make trenches or bulwarks for the defence of the realm, for every subject hath a benefit by it. And therefore by the common law every man may come upon any land for the defence of the realm, and in such case, and on such extremity, they may dig for gravel for the making of bulwarks, for this is for the public, and every one hath a benefit by it. And for the commonwealth, a man shall suffer damage; as for saving of a city, or town, a house shall be plucked down if the next be on fire;-and the suburbs of a city in time of war, for the common safety shall be plucked down; and a thing for the commonwealth, a man may do, without being liable to an action." In the case of Governor, &o., v. Meredith, 4 Tenn. 797, Buller, J., said, "There are many cases in which individuals sustain an injury for which the law gives no action; for instance, pulling down houses, or raising bulwarks for the preservation and defence of the king, done against the king's enemies." This is one of the cases to which the maxim applies "Salus populi suprema est lex.”

In Mouse's case, 12 Co. 63, Mouse brought an action in trespass, for the value of a hogshead of wine cast overboard of a barge. A ferryman from Gravesend to London with passengers, including the plaintiff and freight, a part of which was this cask of wine belonging to the plaintiff. While on the water, a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger to be drowned, if this hogshead of wine and other ponderous things were not cast overboard for the safety of the lives of the passengers. It was resolved, per totam curiam, that in case of necessity for the saving of the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the cask of the plaintiff out of the barge, with other things in it. "Quod necessitas cogit, defendit.”

The seventeenth section of the first article of the constitution of this state provides and declares, that such parts of the common law, &c., as did form the law of the colony of New York on the 19th day of April, 1775, &c., shall be and continue the law of this state, subject to such alterations as the legislature shall make concerning the same. But all such parts of the common law, &c, as are repugnant to this constitution were abrogated. This doctrine of overruling necessity, or police power, was the common law of this state at the time of the adoption of this state constitution of 1846. It was brought from England by our ancestors as a part of their system of common law; was adopted by the colonists as the law of the land; it is not clearly repugnant to the constitution; but being adopted by it, is in effect a part of it.

The common law, existing at the time of the adoption of our state constitution, was adopted by the constitution as a part of itself. At common law, public nuisances could be abated under the police power, or even by an individual who for such purpose became a part of the police power, even to the injury or destruction of private property invested in such subject of nuisance; and an act of the legislature conferring authority upon a municipal body, to remove, abate, suspend, alter, improve and purify, anything dangerous to life, or health, as a public nuisance, even to the destruction of such private property, is not within the prohibition of the constitution against taking private property without just compensation, nor in violation of that other provision, that the individual shall not be deprived of his property "without due process of law." Nor is the creating such municipal board with power to make by-laws concerning such police matters, a delegation of the legislative power, or trust, nor is it inhibited by the sixth article of the constitution, as the creation of a local court with judicial powers; for the reason, that the legislature, having power to create a sanitary board, within a specified district, possessing sanitary powers, as a necessary result, they can confer upon such board the power to pass all needful rules and ordinances to carry out the purposes of such creation, a

And the same rule has become the settled policy of this state by its repeated statutes, and the adjudications thereon. "It is

a Coe v. Shultz, 47 Barb. 64; Cooper v. Shultz, 32 How. Pr. 107.