The New York herald., 1851-12-04

ton urged In this matter grew out OF the amdsvtt
oeedines have been instituted. vas not the same
that was passed BY one bsanch Of the Legislature,
and came before me in the form Of . motion for
leave to prove that fact. This involved the ques.
tion whether in public act the court had . right
go behind the record Of the Statute and inquire
into its verify II Is true that where tho record Of
such q statute has been destroyed, and none is In
fact In existence, the Court may resort to other
evidence to ascertain such existence; may inquire
BY parol or otherwise, whether there 10 in fact any
such statute. So, too, it is true, as was held In
Purdy's case, that the Court may 60 behind the
book, and inspect the record to see whether
there is any such statute-but am not referred to
any case, nor am aware Of any, where more than
this has been allowed, and none indeed where the
record itself has been allowed to be impe sched.
1t was attempted in the case Of Fletcher vs. Peck
% Cranch, SIN the u. s. Supreme Court, and
was overruled, as indeed it must be in all cases
where there Is record, for the opposite doctrine
would be fraught with incalculable mischief. An
other objection was that the premises named in the
petition bad not been dedicated 10 public use 1t
is doubtful how far that question can propsrly be
raised on this motion. But even If it can see no
difficulty in the statute in that respect for the Of
feet of the act is emphatioay to dedicate the prem
ises to public use, and the right Of eminent do
main is not delegated in this case to any one, but
is Immediately and directly exercised by the Legis
lature itsef-the sovereign power in the State
Such, in my view, is q just construction of the
enactments before me-. The foregoing remarks dis
pose Of the most formidable part Of the objection
ity from the Common Council Iii had been necss.
sary for the city authorities to exercise delegated
riSh of eminent domain, this objection would be
fatal for it could not be exercised by any one e1
cept those who constituted the Common Council.
But If nothing remained for them to do but to carry
out the decision of the sovereign power, that might
be done through any of the subordinate officers;
and If it lay in the power OF any third person to
object, that such subordinate was acting without
authority from his principal it would be sufficient
answer that they ratified the act. Such ratifca
tion has been done in this case, and however the
Corporation counsel may have acted without au-
thoriy in giving the notice, originally, he is acting
with competent authority when the application is
made to us. 1t is the application to us which the
statute requires to be made BY the Common Coun,
the application should be given directly or i'm
mediately by them. That may be done by any
enc competent to act for them, and enough that
the application to the Court is by their direction
The next objection relates to the compensation to
the property owners, and this assumes double
aspect. LIST, That compensation ought to be made
before the land is taken; and I'd, That there is no
time, either before or after The first point re-
gard as well settled, both in this Court and the
Court Of Errors. Bloodgood VS.. nj. & H. r. R.
CO, CO, Is Wend l6; Smith VS.; Helmer; Barb. 42S;
cessary that compensation be made in advance AS
to the second point, the objection is that the only
adequate compensation provided is right to main
tain suit against the Corporation for the damages
awarded. / am at q loss to conceive what further
could be done, unless an actual payment wa m1 iG
in advance If the Legislature had made no
out Of the State funds, and directed tLg STATE
Treasurer, or tho Canal Commissioners, 90 pay the
damages, and those officers lad refused pay, or
had directed the Corporation to raise the money,
and deposit it in some safe hands, to be paid the
depositary had in like manner refused all that the
owners would have had, would have been a right
to maintain suit against those who unjustly with
held their money from them. And that is pre-
fha oh hich Ia 10 la1 -
them, with this important addition, that the re-
port of the Commissioners shall be conclusive ev
dence in the suit: And such | understand to be
the meaning Of that clause in the constitution. 1t
is to protect the ewner of property, in such cases
from being dependent on the whim or caprice of
the Legislature, and to give him q right to en-
force compensation by a resort to the legal tri-
property that he owns. US Wend. l6; Barb. 426; ;
b Hill $50, sufra) Some other objections were
made as to the creation Of stock, and the manner
bend, these parties have nothing to do. Those
provisions are intended only to enable the Common
Council to replenish its treasury the amount they
may pay out to the owners, and the compensation
70 the owners, IN no respect dependent on, to
be affected BY, the creation redemption by the
stock The same remarks apply, With equal force,
to the objection that the assessment may remain
long time lien upon the property Of those from
whose means the premise to be ultimately paid
for. There remains but one objection to be CON
sidered and that arises from the twelfth section,
the Commissioners shall be subject to the ratica-
tion Of the Common Council. and that none of their
acts shall DO conclusive until such action by the
Common Council. But the 6rst section makes IL
the duty Of the Commissioners to make their report
to this court, and the confirmation by this court
shall be final and conclusive, as we'll upen the city
as the property owners and all others IL these two
sections are inconsistent with each other so that
both cannot be allowed to operate then the twelfth
section must override the first and this objection is
well taken. But II is our duty so to construs .
STATUTE s;S's I9at al It's parts may operate, If pos
can perform, h to make their report to this Court
When that is done, the power of the Common
Council over the proceedings ceases, and the udg-
ment Of this Court on the report is 6nal and CON
elusive upon them But can the Commissioners
make their report to the Court without the ratifca
tion BY the Common Council. / appreheAd not,
and see no mode in which the twelfth section can
be made to operate without going to the Common
Council, who make the appli ,ation, who are to pay
the damages in the frst instance, and who are to
become the owners Of the property, the absolute
power 10 annul tho report after IL shall bo made.
Ihe constitution provides not merely that adequate
compensation shall be made, but that the amount
OF IL shall be ascertained By dsinterested tribu-
nal and shall In no respect be subject to the deter.
minaton or control Of the party that is to pay it,
and, least Of all, Of all Of the party who is to have
the property against the owners consept-Cous;.,
ART. 4, SEQ q. aus fundamental principle Is VIC.
lated BY the provision in question. The option,
whether the award Of an impartial tribunal shall
stand or not is with the party who is to pay, but Is
denied to those whose property is TO be taken with
out their consent. IL is the Of party revokng
asubmission to arbitration after award is made.
IL is plaintiff submitting to q nonsuit after the
verdict is rendered; and this without asking per-
mission Of the Court, but at the arbitrary pleasure
Of the defeated party. No such practice Is known
IN the law. 1t would be wrong to sanction its in
PRODUCTION, and it would be in conflict with the
manifest intention Of the constitution II was never
intended to give either party the right ct his own
pleasure, thus to nullify the action Of constitu.
tional tribunal TIE unjust and UNEQUAL operation.
OF this provision Is mos. manifest and cannot
sanction IL when il thus evades-ift does not direct
" violate the principle Of the constitution. must,
therefore, deny this motion.