The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-05-01
THE STATE CAPITAL:
lcoNTINUED FROM THIRD PAGE ]

torn
lapse Of tue Ten Gays p'0s'aSa 0' no L. ROBINSON.
OPINION OF THE ATTORNEY GENERAL
STATE OF NEW YORK !
OFFICE or TIM ATro ,s,,;, 30 4f is7s
To HIS ExcKrIxscr THE GoyrRSoR:-
Tne bill 70 authorize the formation o. pipe ne e1 i'm
81 s%nea on which
one q sS- srass.s questions legislation well As Of
STAG. y ~, The 81 @ rests ON
exist BY virtue OF any w ny
menss as esssnato their and perpe,uy and to
the e & Of d By
who becomes subject or citizen under sovs,nmeemr.
asSo sfs WITH
nnea By sbs constitution and the only provision
il restriction on is exercise M No -
Sfens power one Of the highest Sovereignty
as sss 'Af ns
Z, De m"a ss andsr pnspe
the can only be % Tor pnoe
be Tor % for es .n.
Which IS 70 project rights person property
prineipethst governments derive thei. Just
embraces the only powers necessary TOT the pane
se Of only Ss' ss which Of
% be @ n tue
70 the security aud happiness
the ns % to pubic
defence ana welfare che MIN M asp, e
governed facilities for collecting and angmentng the
purposes land may the erection Of buildings
Tor bodies for o .ss sna 3" pbe
charities we'll for building bridges roads, canals and
right the sovereign TO take tie property Of one et
when the puee interest wi pe NO wny p.omoseu oy
such transfer q page ~, "A puo y, ~ use , h ps
large or by pnblic ngences and au. profession
from sesns i IN The hands owner
the on ,e 10 he Inc
devote it," Cooley Court, Lin. oSll And The DELE.
CAN only q. ' be for lie
i DO ~ a. 70 e. l. osy BE-
terms Implied BY courts Moro questions q serious
than rom the than BY its power Tho law has been
psss IN rs r
beneficial the public in It's Ltiv.se affairs Enssssr.ed
Hais ssserpr ns and ssia.Se bodies
yielded plausible %p0. e, for rn The
eanao, be justified upon principles 70 sustain such
.,ne convenient fiction which treats eorpo,a-
is o Th sary Ssnis &c
public legislative and judicial action has
sof use By tie public The exercise Of the rish.
81 benefit public. and departure from The
principles Of the common aw Blu. presented eonsaer
the Departure within the settled policy Of the
question 10 Be- as,er@dsa ultimately ths a.
though States 1t been held that where statute
property is authorzod to be taken the will hold
# 'e % hs saes
d n s n s to . ns s a% Is o9
Legislative declaration cannot make that public use
" sooc The latter case is the latest and auhori
tstive enuneiaton OF the law upon ms question The
cessy expedency OF taking private properly Tor such
nent domain the TO BIO used and the
tent which such right shall be exercised or del
isatnrc and not by tho courts whsnsr the use Is in
the risb q a1 the Legislature 10 iussr.rc with private
property depends That question only BIO Determined
iudic nj al
the Legislature condemning authorizing the condemna
upon the or adjudication which
s sass o y s seae the
ton Of the right OF eminent domain 70 rural cemetcry as
state for private public and there
tore and void We md ourselves
define in the light Of tho judicial decisions what
Ing as the same juriss says
ions have scsn made % ne @ sne
dom has mneh meaning controlled by .e neeessit
Const Lin. 800 aud in expanding this view more lly
OF needed public industry has right exist the
munity mas right to demand that y be permitted 70
possession Of an individual is essential the
y,eld 10 f the ,nperior interests Of the public"
go co't Mich ass THIS snarssd meaning given
niue satisfactorily whether tho delegation ct the right Of
sideraton is for a be sanctioned public Il
us nature Tho purpose for which the right = proposed 20
be branch OF productive industry and
=
tho facilities of The interests affected and the
character OF tho public In many cases In
which the authority TO take private property has
been sustained bv the courts Of other states and
OF the United states. and in some instances
in this The obvious objections that lines
cannot be common carriers OF merchandise. bat mus
be insurmountabie II unombarrassed by Judicial
nsead of the pubic to be recognized accusing
deny it's when only article III Of general pub
lie consumpti utility Is transported Cntil
the shall be authortatively settled BY the
ofth State cannot BE- said TO DO so clearly beyond the
bounds of Legislation require executive
the ground ~ unconstitutionny Ii would seem
ADVISABLE therefore, in view OF tho contrarcty OF
ical opinions large interests involved and the
Importance OF the question allow the courts to deter
the Is In conflict with the constitu
That viii secure final adjudication OF the
upon thorough and learned consideration. and which,
enanang from the only tribunal authorized
eoncusvely law. must command acqucsccnce and
OBEDIENCE The bill In question applies all the ieatures u
public to the property authorized 20 be taken
under Its provisions which the Legislature can
impart to determination of the purpose,
lation of the OF catrYin. the business
tempinted and OF state supervision and
troll Hut the Judicial inquiry still remains whether the
Legislature has pped the limits OF ITS and
think Your Exceliepcy is fully warranted In permitting
she bill become law. tfa the determine
the grave and important questions OF Tvs
Eery respectfully. a. sCHO0NfiAkEk. ir..
Attorney General
r. ctt he ~,