The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-10-28

THE PROPOSED NEW PARK.
OcT: 2S.-Mr. Jones (ex-Chief Justice) continu-
ed. He referred to the case of Purdy VS.: the Peo-
pie, Hill, and insisted that the decision there
ws!-f the presiding officers Of the two houses
certified to the passage of an act, that was soneu-
sive, but that courts might 90 behind the mere
certificate Of the Secretary of State, which oy stat
ute was only intended to be conclusive upon major
ity bills That in all cases Of doubt reference may
be had to the printed statute, but no case Is 70 be
found authorizing the court to 60 beyond IL! ne
owners here say that they only want 70 70 oPs
where the court went behind to see whether the
bill had received the requisite majority but TINS
one step is prodigious onei-They desire TO prove
BY oral thas tns1e a NO sura to be- at all
times subject to inquiry Of this kind-Courts ought
rather to adopt as a maxim -" his being sub.
version of the cid and well established rule we will
not 90 further than the court has gone in Purdy
u.s. the People" He then proceeded to examine
the next objection: That the proceedings of the
Common Council under this law, and their appli,,
cation to the court under it, all irregular, and
imperfect in form. Now, the Common Council are
the Legislature of our city, under powers granted
by Governor Dongan, in 1856, and under their
charter their powers to open and regulate streets
have been exercised ever since. The first charter
provided that no one but the Common Council
could open streets without consent Of tho owners.
This was not repeated in the Montgomery charter,
asd the want of power to compel an obstinate party,
made necessary to apply to the Legislature to en-
able tne 10 carry out principles necessary IOr tne
government Of well regulated city. Some acts
we're passed giving them this power, prior to the
general law; but, finally, the general act was
passed. appointing commissioners TO lay out streets
in order to obtain these lands be necessary to
apply to the Legislature for two purposes. First,
to alter the map Of the city Second, for the exer
cise Of the right Of eminent domain This Ine rssOa
The Common Council then decided that these lands
were necessary, and made application to the Legii-
lature, who passed this act, and under which this
application is made, and the proceedings are con-
Quoted in the same way that other squares have
been opened. No other expression or delegation Of
power is required The Legislature determined
that it was case for them to exercise the right Of
eminent domain, and all the Corporation has done
is TO carry out the act The act is denounced as I'M
just oppressive. and unconstitutional, and the first
specific objection is that the lands not taken for
public use; but it is not denied that private property
may be taken for public use. What becomes public
that any purpose in which the public is interested
Is public use. II must rest with the Legislature
to determins-Is the public sufficiently interested
for them to exercise the right of eminent domain!
The principle established, is that public use Is any
establishment or improvement in which the public
is interested, and Of that the Legislature is the
cole judge-their determination is conclusive 1t is
said this land is taken for public park, and refer
ence is made to Lord Coke to show that park is
a large enclosure to keep wild beasts and all the
beasts of the forest, and that it cannot be park
unless wild beasts are kept there. This common
law definition has not been imported into this
country, and the word park has here acquired
different meaning. We don't find the word in any
Of our law books; but on reference to the Corpo-
ration Manual, we found the word park, and that
there was park in this city bounded by Broadway,
Chambers, and Chatham streets-and, come to
look, here we now stand IN the middle of one.
On another page We found that there are parks all
over the city But we can't believe the counsel
was serious in this matter, as the Legislature has
rolaaA laW n M
could never have been intended, though any other
name were used, that the lands were taken for any
other than public use. The next point is, that the
power to take must be exercised by the Legisla-
ture, and not delegated to Interested party that
this law deleg rates the power to the Corporation.
We AK how can the Legislature delegate this pow
er, and how the Corporation be called interested
parties The Legislature, by passing the act au-
thorizng the grounds to be takea an the Corpora
ton taking means to appropriate them, shows that
the lands necessary Next, it is said that lands
cannot be taken without compensation first made,
and actually paid to the owner and on this prnci,
pie 90 with them to the full extent the eternal
principles Of justice demand, and that no N ans
property shall be taken without full compensation.
Now this act does provide compe nsation, and Ike
wise it is 10 conformity with all previous acts
whereby lands have been taken for public use But
they say that the title here vests before compen-
sation is to be made Well under our prese Mt laws
in opening streets, the title vests confirming the
commissioner report, and infour months after the
ell the rage ard sxciem snt In setting aside these
street proceedings, it has never been whispered
that was an objection. IL is said no provision
on this this subject existed in the constitution ante
rior to lszl. But though it did not exist in the
constitution, it did exist in fact, and was a moral
obligation, always respected. IL any effort was
mace to take property without paying for IL, the
courts nterfered; and in the Of Gar liner Vii
lage ofNewburgh, the Chancellor interfered, and
strained the proceedings until compensation was
nade and in Matter Of Furm street, IL Wen, the
court recognize this moral obligation. Cases
here citedt show that it was not necessary that
compensation be made beforehand and that IL suf
fcient if it be provided for, and be just. In ~
Jobnson, 725, Chan ,ellor held it sufficient If COM
pensation provided for be adequate and certain,
and not necessary that 1t preeede the taking Of
lands. But tbs said this case is not authority for
that proposition Then, in Is Wendell, 9, the same
question arose. and II is objected that this case Is
not In point. Here the Cour, Of Errors reversed
the Judgment on the ground that the entry was not
provided for justified by the act as the act pro-
vided that before the title vested the money must
be paid; and because the owner not provided
with fund out Of which he might be paid bis da-
images. But it is said that this authority il not
ndpg, because the point was not necessary. to
have been decided. Now, the point in that case
was, that the owner could not compel the railroad
company to make oompens alton or provide a fund
for It, and therefore the question was necessary
70 be decided, and the Court intended 10 DECIDE the
question Chancellor keat understood this CASE
Rents Com, $40 This question has since been
passed upon by the present Court Of Appeals. II is
suggested that here is not adequate compensation
made IL is sufficient in cases Of th lis kind that
solvency Of the town is pledged. The obga-
tion Of the Corporation to pay is ample, be-
cause If they do not pay, the owners may sue -
could speedier, more certain and definite remedy
be provided The act is complained OF as unjust,
UNEQUAL, and oppressive; and unwise and impolitic
ss public measure in the location Of a park.
to its being unwise, this court has nothing to do
rith-as to its being unjust and oppressive, the Law
Al. a. u
made within reasonable time, and the Corporation
SO understand it, as they make immediate sppl-
cation. But will the court ground their decision
upon the probability that these lands may be kept
under perpetual mortgage II Is also objected
that the act il equal, because the Corporation
have power to reject the act II the commissioner
when the same power is not given to the owners
The court have decided that the Corporation has
power to do this in all street But TO review
The necessity Of taking thtse lands was for the
Corpor alton to determine in the first instance, an