Year: 1864

il il beyond and trsnscends the sovereign authority This
subject underwent thorough and careful consdera
ton IN the courts of New jersey and New YORK IN
number of growing Of the great hre IN The city
of New York in the wiuter Of 1855 BY statute oi tnal
State power given to the Mayor aud TWO Aaerhoi
OF the city to direct the destruction OF buildings 10
a coniagration Much difference existed among tno
Judges whether this statute was an exercise Q" ne
right of eminent domain, regulation oi the nntuta
law Of necessity. In Hale rs. Lawrence AaoIisAo'
pages 72S29 the Supreme Court of New Jersey no -"
following language:


Whether or not law authorizing the destruction of pr-
property for public benefit safety to be esteemed
taking OF tor public use, sn law S sa t ske or
ercise the right d0maia The rght 10 ahe
DESTROY private properly by an individual in selfdefencr or
the protection of life liberty or property Is o. woS G


to individuals considered as individuals is natural right
OF which Government deprive the czen ana
ed upon necessity aud not expedency Loiu H'o N"'
the Ter temporis et loci .L X


The Court of Errors of the State Of New York IN the
of Russell vs. the Mayor &C. u Deno) heid Una.
the hory given to the Mayor and Aldermen TO destroy
buildings 10 arrest the spread OF hre was not an
Of domain, but regulation OF the law oi over
ruling necessity Senator Hard of the minority deliver
ed very able dissenting opinion, in which some OF MIS- dis
incons bearing upon the case in hand seem 10 De Won
taken. lie says, pages 4-6, 4S PSF @le 4ftl


The of destroying the building by whih the pianh
lost his In the exercise of the right OF eminent a


ai and not by virtue of the law OF overrung necessity
The distinction between these two rights as aid down III
English books confused and contradictory AUG
consonant with notion of the rights OF private pro-
perry " E. t.tN


The first the subject the celebrated satpe-
tire The Government asserted the arbitrary rghl 10
provide munitions OF War from private properly, unde
the pretext of overrung necessty and all the Jusuce
sustained it -i2, Co l2) Mouses case was one OF
json, when, perlous storm at sea, the master OF
barque threw overheard part of the valuable cargo 70
save the lives OF the passengers-ld % Ims 100 was
denominated of Overrung necessity and very just
bore all the characteristic marks OF that Glass OF
while the other bore OF them But IN peithe
Of these the true dis snction taken In the rs
case the sapetre was taken by public authority ana LOT
the general public good while in the other the property
destroyed by private authority and for individual
benefit


The msorty of the Court do not controver the sound
ness of the principles here laid down. but deny their
pcat"n TO the under consideration Indeed their
correctness affirmed by Senator Porter in the opinion
delivered by him. page 4S4 when he makes the following
rrmarks by of illustration, and the cases put by hu
bear strong analogy TO the now before the Court


vessel may time of be taken from the owner
when he interests of the Government demand it, or may
be esreyedt its falling into the hands of an enemy
and thereby its power OF aggression or res stance
and the would be entitled under the Constitutions to 6e
paid just compensation"


Upon the authority Of the cited and others that
might be adduced we'll on the principles which die
tngush of public necessity utility, good from
the overrung necessity which regulates the law OF indi
vIduas of opinion that the rghul taking OF prl
vae property for destruction when the public exi
gency demands it, by military officer commanding any
part of the pubc rcs, is IN exercise OF the right OF
eminent domain and that such not governed by
the law applicable to individuals.


The letter and spirit Of the public law and Of the con-
sttutiona provision in this regard requires just compen
saon to be made in every when private property
righfuty taken for public whether it be by egs
ave authority under the powers necessarily exercised
by those commanding land and naval forces in time Of
or imminent public danger May private property be
righ9mty taken by military oficer, without Legislative
authority for the public service destroyed to cripple
ID ebarrass the enemy Or is he in every case and
uhder al circumstances trespasserf Every writer and
every Judicial decision gives to these questions
Whenever the officer justified the liability of the public
established Property is taken without legislative
hory but by official warrant and under urgent necessity
and for the general good Courts approve the conduct OF
the officer and the xeeutIVe rewards him with promo
ton for faithful and efficient performance of duty The
exgencies of forbid that the Legislature should pro-
vide for the precise circumstances under which the em
nent right OF the State may be called into action The


fundamental law provides that private property shal


0t be taken Tor public without just compensation
l. this provision of the Constitution answered when com
pensaton il made for properly taken under Legislative
authority aud denied when taken by military officers act


g rig htfuy under the proper functions of their Office
think not The obligation TO make compensation 10 co
extensive with the right OF the State to take private pro-
perty for public and whenever 1t is taken by compe
lent authority. the obligation Of the State cannot be
evaded. ..fHfs@


We next TO consider OF the necessity under which
ths property destroyed 1t is necessity alone that
gives the right to take private property for de-
structon. The danger must bs threaenng-such as de
mand' immediate action and when delay would work pub
ic injury Unless the necessity is such to justify the
officer he is trespassser and there liability the
part OF the Government 1t is impossible TO lay down
with precision the degree of necessity mmnence OF the
danger that will furnish such justification. Each
must stand on its facts The necessity must be
gent but it need not be mng-the danger
apparently be and impending but il need he
tna present tn eatenDg instant injury to the public In
cts The officer must decide when the necessity has
arisen that demands him to take private property for the
publc safety good. If however, the danger, as he
oag 10 have seen, REMOTE the necessity not press


ing, courts will hold him personally responsible TO the
party aggieved In deciding upon the conduct of the off


most look at all the circumstances Of danger by
which be surrounded and TO such information h.
had entitled to credit It may be that there
dagger that bis information false and that he acted
under supposed state of facts that did not exist This
would not affect his conduct TO charge him person
ally, relieve the State from respons biity Had he
good grounds for hs beef ths the Of facts
they appeared to him2 Would cool, prudent discreet
have felt the necessity urgent ard the danger i'm
pentng If so the officer is justified and the party who
has Suffered loss look to the Government alone
redress.


Ia the case Of Mitchell vs. Harmony, this whole subec
very fully and ably treated by q Taney in delivering
that opinion bearing directly upon the cas- in hand


First to the liability Of the Government for the act
nf military officer oppage 1874:


There occasions in which private property may b.


Lawfully taken destroyed rom falling into th
tnds Of the public ensmy Also where military officer


into the public servce take il for public Unques


orably IN such eases, the Government s bound TO
full compensation 70 the owner"


Again he speaks o the degree OF necessity that will


nsy the o'cer, aud in deciding upon this must tsk,
our view from the stand point occupied by the Office
himself:


But VIC are clearly Of opinion that In such dan


he, Immediate ending. the