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ARTICLE I-Continued. tected by statute against the use of such testimony on his own trial. People ex rel. Hackley v. Kelley, 24 N. Y. 74.

Section 7 of anti-monopoly law (Chap: 383, L. 1897) unconstitutional. Matter of Attorney-General, 21 Misc. 101.

Act allowing prisoners to testify for themselves valid. People v. Courtney, 94 N Y. 90.

Where a prisoner testifies in his own behalf, he is subject to the same rules and tests as other witnesses. People v. Brandon, 42 N. Y. 25. By offering himself he waives the constitutional privilege. Connors s. People, 50 N. Y. 240.

DTE PROCESS. - A law authorizing the commitment of a person to the State Inebriate Asylum, upon ex parte affidavits alone, is unconstitutional Matter of James, 30 How. Pr. 446.

Statute relating to licensing of plumbers, constitutional. People ex rel. Nechamcus v. Warden, 144 N. Y. 529.

Prohibition of sale of colored vinegar valid. People v. Girard, 145 N. Y. 105.

Act prohibiting barbering on Sunday in certain cities is valid. People v. Haynor, 149 N. Y. 195.

act giving labor union right to enjoin manufacturer, etc., of union label, valid. Perkins v. Heert, 5 App. Div. 335.

Liquor tax law, held valid. Balogh v. Lyman, 6 App. Div. 271.

Where, before the expiration of a term of imprisonment, the prisoper escapes, no new award of execution is necessary; he may be retaken and confined under the original judgment. Haggerty v. People, 53 N. Y. 478.

A forcible examination, under order of a coroner, of a female prisoner by physicians, for the purpose of obtaining evidence of her recent pregnancy, is a violation of the Constitution. People v. McCoy, 45 How. Pr. 215.

This provision has no reference to disciplinary proceedings before a medical society. Matter of Smith, 10 Wend. 449.

A law authorizing a condemnation of animals found trespassing, without notice to the owner, is upconstitutional; Rockwell v. Nearing, 35 N. Y. 302; otherwise where notice is required. Cook v. Gregg, 46 X Y. 399.

Canal commissioners are constitutionally authorized to punish witnesses for contempt. People v. Learned, 5 Hun, 626.

As to what is * due process of law," see 'Matter' of McAdam, 27 State Rep. 333.

** Due process" does not require proceeding according to common law, por personal service. Happy v. Mosher, 48 N. Y. 313. In tak ing private property for public use, potice to owners by publication is valid. Owners v. Albany, 15 Wend. 374; Matter of Union, etc., R. Co., 112 N. Y. 61.

* Due process of law," simply requires that a party shall have his day in court; the Legislature may take away à particular remedy and give a new one. People ex rel. v. Supervisors, 70 N. Y. 228.

As to when the attachment of an indebtedness due a non-resident without notice is within the provision of due process of law, see Martin v. Cent. Vt. R. Co., 50 Hun, 347.

The principle that property'shall not be taken without "due process of law," and

that such due process includes notices to the owner is for the benefit of the owner and not of third persons. People v. Turner, 49 Hun, 467.

The common council of a city grants to defendant a permit to ARTICLE I- Continued. build certain frame houses within its limits. After the work was commenced the resolution granting the permit was rescinded without notice. Held, voit as violative of the constitutional prohibition against taking private property without due process of law. City of Buffalo v. Chadeaque, 27 State Rep. 60.

Chap. 4-18, Laws 1885, relating to comptroller's deeds as conclusive evidence of regularity of proceedings, is constitutional. People y. Turner, 27 State Rep. 158.

As to provisions for the discovery and delivery of the property of a decedent. Matter of Beebe, 20 Hun, 402; Matter of Curry, 25 id. 321,

Provisions for taking testimony of witnesses conditionally in criminal proceedings, valid. People v. Williams, 35 Hun, 510.

A statute allowing sherifis to withhold property, seized under attachments which have been vacated, from the rightful owners until payment of costs against the wrongful claimant, invalid. Bowe v. U.S. Reflector Co., 36 Hun, 407.

The act for the summary conviction of habitual thieves is valid. People v. McCarthy, 45 Hów. Pr. 97.

The act compensating parties for damage by mobs and riots is not objectionable as taking private property for public use without due process. Darlington v. Mayor of New York, 31 N. Y. 164.

A statute freeing a sheriff from liability and substituting his indemnitors, valid. llein v. Davidson, 96 N. Y. 175.

An act authorizing sentence by a different court from that in which the conviction was had is valid. People v. Bork, 96 N Y. 188.

An act providing for appointing receivers of insolvent insurance companies is valid. Atty. Gen. v. No. Am. Life Ins. Co., 82 N. Y. 172.

An act authorizing service of process on a director of a foreign corporation temporarily within the State, valid. Hiller v. Burling. ton, etc., R. Co., 70 N. Ý. 3.

A statute authorizing the seizure of any property found in possession of a tax debtor is valid. Hersee v. Porter, 100 N. Y. 403.

A statute allowing the prohibition of transfer of negotiable securities by the publication of notice, invalid. People v. Otis, 90 X. Y.48.

A statute prohibiting the sale or disposal of any article of food or any offer or attempt to do so, upon any representation or induce. ment that anything else will be delivered as a gift, prize, premium, or reward to the purchaser is unconstitutional. People v. Gillson, 109 N. Y. 389.

Seizure of milk below proper standard without notice, valid. Blazier v. Miller, 10 Hun, 435.

Prohibited sale of adulterated milk, valid. People v. Kibler, 106 N. Y. 333.

Prohibiting sale of imitation butter, valid. People v. Arensberg, 105 N. Y. 123: 59 Am. Rep. 483.

Statute giving liouses of Legislature power to punish for contempt for refusing to testify, valid. People v. Keeler, 99 N. Y. 463; 52 Am. Rep. 19.

Act giving a lien for unpaid purchase price of monument, invalid. Brooks v. Tayntor, 17 Misc. 5:31.

Aet prohibiting use of barbed wire in certain fences not unconstitutional. Buckley v. Clark, 21 Misc. 139.

Provision of civil service law relating to appointing of bi-partisan commissions is valid. Rogers v. Common Council, 123 N. Y. 173.

Legislature may regulate the charge for elevating grain. People v. Budd, 11ī N. Y. 1; affirmed, Budd v. N. Y., 143 U. S. 517,

ARTICLE I- Continued. Law depriving owner of beneficial use of property without legal process is invalid. Forster v. Scott, 136 N. Y: 577.

A statute to validate irregular sales of land by confirming title in one who had heretofore acquired no title is invalid. Cromwell v. MacLean, 1.33 X. Y. 474.

Act authorizing termination of trust in personal property, valid. Matter of Heinz, 20 Misc. 371.

Section 688 of Penal Code relating to second offenses is not unconstitutional. People v. Sickles, 156 N. Y. 541.

Anti-scalping law, forbidding certain persons from dealing in passenger tickets, unconstitutional. People ex rel. Tyroler v. Warden, 157 N. Y. 116.

Commissioner appointed by foreign state to take depositions cannot commit witness to jail. People ex rel. McDonald v. Leubischer, 34 App. Div. 577.

Turnpike company having once received authority cannot be deprived of right to collect toll from bicycles. Rochester, etc., Co., v. Joel, 41 App. Div. 43.

Act declaring what shall be deemed adulterated milk, invalid. People v. Cipperly, 37 Hun, 319.

Game law valid.' Phelps v. Racey, 60 X. Y. 10; 10 Am. Rep. 140.

Destruction of fish-nets found in waters in violation of game law. Lawton v. Steele, 6 N. Y. Supp. 15.

Trial by jury not always essential to due process. Matter of Curry, 25 Hun, 21.

Tenement house cigar act invalid. Matter of Jacobs, 98 N. Y. 98; 50 Am. Rep. 636.

Act regulating height of buildings, valid. People ex rel. Kemp v. D'Oeuch, 111 N. Y. 359. So act prohibiting sale or bringing of any milk diluted with water or adulterated to a butter or cheese manufactory to be manufactured, is valid. People v. West, 106 N. Y. 293.

Oleomargarine act invalid. People v. Marx, 90 N. Y. 377; 52 Am. Rep. 34.

Civil damage act invalid. Bertholf v. O'Reilly, 74 N. Y. 509; 30 Am. Rep. 323.

Summary abatement of nuisances by board of health not unconstitutional Lawton v. Steele, 119 N. Y. 227; Cartwright v. City of Cohoes, 39 App. Div. 69.

City may sell lands acquired by condemnation proceedings when such lands are no longer necessary. Matter of City of Rochester, 137 N. Y. 213.

Statute nullifying judgment is unconstitutional. Gilmen v. Tucker, 13N Y. 190.

TAKING PRIVATE PROPERTY.-The Legislature may prohibit a use of private property which violates the duty the owner owes to his neighFor or to the State. Prentice v, Weston, 111 N. Y. 460. This does not include taxation. People ex rel. Griffin v. Mayor of Prooklyn, 4 N.

Y. 419; Brewster v. City of Syracuse, 19 id. 216. But it includes prospective profits on a State contract. Danolds v. State, 89 N. Y. 36.

It belongs to the Legislature and not to the courts to determine whether the public benefit will justify the taking of private property for public use. Beekinan v. Saratoga & S. R. R. Co., 3 Pai. 45; Harris v. Thompson, 9 Barb. 350; Bloodgood v. Mohawk & Hudson R. Co., 18 Wend. 9; Buffalo & N. Y. R. R. Co. v. Brainard, 9 N. Y. 100: People v. Smith, 21 id. 595; Ex parte Townsend, 39 id. 171; Dean Street, 53 id. 60; and how much or what interest shall be taken, Brooklyn Park Comm'rs v. Armstrong, 45 N. Y. 234.


ARTICLE I – Continued. But the question whether the purpose is public or private is a judicial one, to be determined by the courts; the grant by the Legislature of the right to take is not conclusive evidence that the use is a public one; so the provisions authorizing the taking of land for a rural cemetery association by proceeding in invitum is unconstitutional. Matter of Dansville Cemetery Ass'n, 66 N. Y, 569.

The exercise of the right of eminent domain does not impair the validity of contracts. Lansing v. Smith, 4 Wend. 9.

The right may be exercised for the benefit and at the expense of a few. Owners v. Albany, 15 Wend. 374; through the instrumentality of a foreign or other corporation. Ex parte Townsend, 39 N. Y. 171; Bloomfield v. Natural Gas-light Co., 63 Barb. 437.

The national government may apply to condemn lands. Matter of U.S., 96 N. Y. 297.

Owner entitled to notice and hearing. Stuart v. Palmer, 74 N. Y. 183; 30 Am. Rep. 289; but Legislature may dictate manner and procedure; Matter of Mayor, 90 N. Y. 569; Matter of Livingston Street, 82 id. 221; but the court may not be directed to appoint commissioners from a list submitted by a common council. Menges v. City of Albany, 56 id. 374.

The permission to take private property for public use implies that it shall not be taken for any other use. Private property cannot be taken for private use. Cochran v. Van Surlay, 20 Wend. 365; Embury v. Connor, 3 N. Y. 511: Powers v. Bergen, 6 id. 358; even where compensation is made. Varick v. Smith, 5 Pai. 137; Taylor v. Porter, 4 Hill, 140; nor partly for public and partly for private use. Matter of Albany Street, 11 Wend. 148; nor where not necessary. Id.

Property whose abuse engenders mischief is protected. Wynehamer v. People, 13 N. Y. 378; for example, intoxicating liquors

But to entitle the owner to compensation there must be an actual taking of private property; mere consequential damage does not give the right to compensation. Lansing v Smith, 4 Wend, 9; Matter of Hamilton Avenue, 14 Barb. 405; Swett v. City of Troy, 62 id. 630; People v. Supervisors of Oneida, 19 Wend. 102; Radcliff v. Mayor of Brooklyn, 4 N. Y. 195; relaying a railroad track is not a "* taking." Hentz v. L. I. R. Co., 13 Barb. 646; but an easement is such a "taking." People v. Haines, 49 N. Y. 587; so is the laying of an elevated railway in a street, although the fee is in the public. Story v. N. Y. El. Ry, Co., 90 N. Y. 122; S. C., 43 Am. Rep. 146; so the conversion of a city reservoir into a public park; Webb v. Mayor, 64 How. Pr. 10; si the erection of telegraph poles; Tiffany v. U. S. Illum. Co., 67 id. 73.

The citizen is not entitled to compensation where a public way to his property is closed, provided another is left. Fearing v. Irwin, 55 N. Y. 486.

A law providing that when a plank road is surrendered the land shall revert to the town, is valid as to land to which the road got absolute title. Heath v. Barmore, 50 N. Y. 302.

A law declaring a private stream, on which riparian owners have vested interests, a public highway, without providing compensation to the owners, is void. Morgan v. King, 35 N. Y. 454.

The lien of a judgment, not ripened into title, may be superseded by the exercise of the right of eminent domain, upon compensation. Watson v. N. Y. Cent. RR. CO., 47 N. Y. 157.

A reversionary interest cannot be acquired without compensation, Matter of N. Y. Cent., etc., R. R, Co., 60 N. Y. 116.

ARTICLE I- Continued. The State may appropriate the Indian lands for public use upon compensation; Wadsworth v. Buffalo Hydraulic Association, 15 Barb. 83; may authorize the laying of railroads in highways or streets; Buffalo & N. Y. City R. Co. v. Brainard, 9 N. Y. 100); or the taking of the franchises of a corporation; Ex parte Kerr, 42 Barb. 119; or the appropriation of any stream; Partridge v. Eaton, 3 Hun, 533; or the pasturing of cattle, etc., on highways. Hardenburgh v. Lockwood, 25 Barb. 9; or the drainage of lands. Matter of Ryers, 72 N. Y. 1; S. C., 28 Am. Rep. 88.

An act prohibiting a second railway in a street without consent of the first is valid. Matter of Thirty-fourth Street R, Co., 37 Hun, 412.

An act vacating a street and vesting the soil in the corporation is unconstitutional; John Street, 19 Wend. 659; nor can the Legislature reduce the width of a road and vest the surplus in the former owner who had already received compensation; People v. Commissioners of Palatine, 53 Barb. 70.

When lands are taken for public use, the public acquires absolute title, divested of dower; Moore v. New York, 8 N. Y. 110; and of reversion; Rexford v. Knight, 11 id. 308; but not where an easement only was acquired; Heard v. City of Brooklyn, 60 id. 242; and may divert them to other purposes; Heyward v. New York, ñ id. 319; Heath v. Barmore, 50 id. 302.

Where a law provides adequate means for obtaining compensation, it need not be actually paid before appropriatlon. Rider y. Stryker, 63 X. Y. 137; Patten v. N. Y. El. Ry. Co., 3 Abb. N. C. 3C8; Matter of U. 8., 46 N. Y. 297; Matter of Mayor, 99 id. 569.

But the owner may not be remitted to a tax fund for compensa. tion. Sage v. City of Brooklyn, 89 N. Y. 189; Matter of Church, 92 id. 1.

The power may not be exercised by a private corporation. Dusenbury v. Mut. Teleg. Co., 11 Abb. N. Č. 410.

By the Federal Constitution, art. 1, § 10, subd. 1, no State can pass any er post facto law, or law impairing the obligation of contracts.

EX POST FACTO LAWS.-- This provision has no application to laws relating exclusively to private rights; Southwick v. Southwick, 49 X Y. 510; and applies only to crimes and punishments; Dash v. Van Kleeck, 7 Johns. 477.

WAAT LAWS ARE EX POST FACTO.- A law increasing the punishment denounced against an act when committed, or changing the punishment without lessening it; Shepherd v. People, 25 N. Y. 406; Hartung v. People, id. 127; an act imposing upon electors a test oath as to past conduct; Green v. Shumway, 39 id. 418.

An act forbidding suit on insurance policies by a home company if assured die in a State imposing certain restrictions on companies of this State. Hamilton v. Knick. Life Ins. Co., N. Y. Daily Res., Dec. 15, 1882.

WHAT LAWS ARE NOT EX POST FACTO.- Those changing the rules of evidence of the details of a criminal trial; People v. Stokes, 53 N. Y. 164; a law granting peremptory challenges to the people; Walter v. People, 32 id. 147; an act of Congress providing that deserters from military service, who shall refuse to return to service within a specified time, shall forfeit their citizenship; Gotchens v. Matheson, 58 Barb. 152; à law increasing punishment; People v. Raymond, 32 Hun, 123.

Saving clause of excise law of 1892 not ex post facto; People v. Maxwell, 83 Hun, 157.

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