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"So far as property right can be acquired in water actually appropriated to practical use for domestic and other purposes, such right has been acquired in the waters of the Croton river by the city of New York. The purpose is a public one, and the power to exercise the right of eminent domain for its acquisition, and for the acquirement of the land, and the extinguishment of rights necessary for its control and utilization, has been delegated to the mayor, aldermen and commonalty of the city of New York.

"The decision adds, in conclusion: "The statute provides a certain, definite and adequate mode of payment to the plaintiff for all damages she may sustain. It must be borne in mind that it is the intention and scheme of this act to pay for all property taken, for all injury or damage done, and for all rights extinguished.

"The enactment of the statute in question was a valid exercise of legislative power, and is not violative of the Constitution of the State or of the United States. Its execution ought not to be arrested by the courts."

The citations and use made of the New York Public Parks case,' of which the history is given at some length by Mr. Justice Finch in the opinion, have been many and various, but besides this in Mr. Justice Dykman's opinion, none perhaps more important than in Sweet v. City of Syracuse, respecting the use of the waters of Lake Skaneateles, and the latest consideration given to it, "In the Matter of the City of Buffalo." As the decision states, "the statute itself condemns and appropriates for the public use the precise lands selected by metes and bounds, so that every owner affected had means of knowing that his land was taken," and further, "upon the application of the city authorities or the commissioners the motion for confirmation (of an estimate) comes before the court which, after hearing any matter which may be alleged against such report, may confirm the same, or send it back for revision or correction, or appoint new commissioners to make a new appraisal. There is thus secured to the land-owner notice of

' Matter of Application of the Mayor, Aldermen, etc., of New York to Acquire Title to Certain Lands for Public Park, 99 N. Y. 576-590; Sweet v. City of Syracuse, 129 N. Y. 316; In the Matter of the Application of the City of Buffalo to Acquire Lands and Property for Park Purposes, etc., 139 N. Y. 42; 99 N. Y. 581; chap. 189, Laws 1893, §§ 3, 22, 27; 129 N. Y. 327, 337. As to the acts of the Commissioner of Public Works, recited in the opinion, see the rule as to nuisances, p. 229, ante, and note 2 there; also Seifert v. Brooklyn, 101 N. Y. 136; Morton v. Mayor, 140 N. Y. 207; People v. Board of Health, 140 N. Y. 1.

the proceedings against him, and a double opportunity to be heard." The case itself shows the right of appeal. The law of 1893 provides a different system of condemnation and apparently limits the appeal making the conclusion of the Commissioner of Public Works in many respects conclusive. Some further differences also appear, and the creation of a public debt, and the mode of payment are discussed at length in the Park case.

The Sweet case was held to relate to State property, and a grant of a right to the use of water, and the court dismisses the complaint of a single tax payer that the execution of the law "would involve a culpable waste of municipal funds and property," on the ground that “the arrangement contemplated by the statute is one, which in the judgment of the legislature would be mutually, and equally advantageous to the city and to the State, and such a law is not within the reason or purpose of the constitutional provision," upon which the objections were based. In the Matter of the City of Buffalo, however, we have a nearer analogy and in respect to the discretionary powers of a municipal officer in condemnation of lands outside of the limits of the city there is this decision.

"The right to appropriate private property to public uses under the power of eminent domain is subject to certain limitations imposed by the State Constitution, restricting the power of the legislature, which secure to the property holder the right to have all questions which are referred to a tribunal determined by one possessing vested jurisdiction over him and his estate.

"The power to select or locate the lands may be delegated, but the proceedings for determining the question of just compensation are judicial in their nature, and must be conducted in a court having jurisdiction over the subject-matter.

"Where therefore property outside of a city is sought to be condemned for municipal purposes, the legislature has no power to delegate the determination of the question as to compensation, to a local court possessing no extra-territorial jurisdiction.

"The provision of the State Constitution, as amended in 1869 (Art. 6, § 12) continuing the Superior Court of Buffalo and certain other local courts, with the powers and jurisdiction they then severally had, "and such further civil and criminal jurisdiction as may be conferred by law," does not give, or authorize the legislature to confer, jurisdiction upon said Superior Court over the owner of lands situate outside of the city limits.

"Accordingly held, that the provisions of the act of 1887 (chap. 557, Laws of 1887), authorizing the Park Commissioners of the city of Buffalo to select and locate lands for park purposes, so far as they authorized said commissioners to apply to said Superior Court for the appointment of commissioners to appraise the value of lands so selected outside of the city limits belonging to a non-resident, were inoperative and void; and so, that an order of said court appointing commissioners in such case was void."

We may not do better than follow the unanimous opinion of the court in this case, that "the exercise of the undoubted right to appropriate private property for public uses, under that power of eminent domain which resides in the legislature as representing the people of the State, is subject to certain limitations imposed by the Constitution, and restricting the powers of the legislative body, and which operate to secure to the property-owner the right to have all questions which are referred to a tribunal, determined by a tribunal which is competent, as possessing the vested jurisdiction over him and his estate." Approving the reasoning in Monongahela Navigation Company v. United States, and referring the Matter of Mayor of New York, cited above, the court adds: "When the legislature has authorized an appropriation of private property for public purposes, and remits the matter of compensation to the court, it intends that a proceeding judicial in its nature shall be set on foot in which every question may be raised by the land-owner, and then and there determined which affects his rights."

Police powers and laws indeed were of little avail, if the welfare of the individual, were not conceived to be the foundation and the assurance of the public good. No public policy, which neglects personal and private rights, could stand very long in a well-ordered community. The law of self-defense, which is one of the bases of police laws upon the side of society organized in the State, must be recognized for all members of that society, and for every citizen, within the appropriate limits which are fixed only for the purpose of preventing encroachments on either side, on that of the government or on that of the subject.

1 139 N. Y. 429, 431; Monongahela Nav. Co. v. U. S., 148 U. S. 327; Dill. Mun. Corp., § 619; People, ex rel. Copcutt, v. Bd. of H. Yonkers, 140 N. Y. 1.

CHAPTER XX.

URBAN ADMINISTRATION. VESTING OF EXCLUSIVE POWERS.

Of necessity urban administration of police laws differs from that of a village, and more from that of the open country. This difference increases in degree until we reach the metropolis which has a life by itself. The crowded interests and constant encroachments upon each other; the very changes in water, air and food, the aliments of life in the city, which are hardly to be recognized, as those from the mountains, pastures and fields; the minute and extended inspections; the vigilance, skill and power of prevention needed; the force and speed essential for adequate relief; the march of disease; pestilence leaping with flying steps from a foreign port to the gates of the city, or lifting its head within the walls racks as by fire the habitations of one or more streets, while to the hamlet it creeps along familiar ways, and every foot of its slow progress may be told by ordinary watchmen; all the pressure, immensity and diversity of the work of the metropolis produces an unique character, and its law, like all its belongings, must be suited to it. One example will suffice. In a village or smaller town one tenement-house would be a monstrosity. In the city of New York thirty-six thousand tenement-houses have become a continuing necessity. The tenement-house legislation of New York, beginning in 1867, applied therefore only to the metropolitan district.'

The Public Health Act of England in 1875 was not to extend to Scotland or Ireland, nor, save as expressly provided, to the metropolis. England, except the metropolis, is divided into urban sanitary districts and rural sanitary districts. The urban authority was constituted in the mayor, aldermen and burgesses acting by the council; in the improvement commissioners; in the local board; and to every local board and any improvement commissioners being an urban authority

1N. Y. L. 1867, chap. 908; the Public Health Act, Eng., 38 and 39 Vict.; 1875, L. R., chap. 55, p. 346; an act to consolidate and amend the laws relating to public health in London, L. R., 54 and 55 Vict., 1891, chap. 76, p. 476.

and not otherwise incorporated, corporate powers are granted, a seal and rights to sue, and to hold lands without any license in mortmain for the purposes of this act. There is a further explanation of the "authorities for the execution of the act" in its second part, the first part being occupied in definitions and references to preceding statutes.' It says: "Improvement act district, constituted such before the passing of this act, and having no part of its area situated within a borough or local government district. Local government district, constituted such, either before or after the passing of this act, having no part of its area situated within a borough or improvement act district, and for the purposes of this act the boroughs of Oxford, Cambridge, Blandford, Calne, Wentlock, Folkestone and Newport, Isle of Wight, shall not be deemed to be boroughs, but included in the improvement act district, the local government district, and the urban district, as respectively specified. In the third part of the act, sanitary provisions are enacted in one hundred and thirty sections, covering a great variety of topics; penalties are provided for their violations, and their enforcement is laid upon the local authority in any district. All regulations and orders made by the local government board shall be published in the London Gazette, and such publications shall be conclusive evidence thereof for all purposes. There is a reservation of general powers however in several places, as e. g. "the local government board may from time to time make, alter and revoke such regulations as to the said board may seem fit, with a view to the treatment of persons affected with cholera or any other epidemic, endemic or infectious disease, and preventing the spread of cholera and such other diseases as well, on the seas, rivers and waters of the United Kingdom, and on the high seas within three miles of the coast thereof as on land; and may declare by what authority or authorities such regulations shall be enforced.' Police regulations are that "the provisions of the Towns

I These definitions include that of "borough" and reference is to 5 and 6 William IV, chap. 76. "Metropolis means the city of London and all parishes and places mentioned in schedules A, B, C, to the Metropolis Management Act, 1855; Bakehouse Ventilation Act, 26 and 27 Vict., chap. 40; Artisan and Laborers Dwellings Act, 31 and 32 Vict., chap. 130; Laboring Classes Lodging Houses Act, 29 and 30 Vict., chap. 28; 30 and 31 Vict., chap. 28; Summary Jurisdiction Acts, mean chap. 43, 11 and 12 Vict. intituled "An act to facilitate the performance of justices of the peace out of Sessions within England and Wales with respect to summary convictions and orders." "Improvement Commissioners" mean any commissioners, trustees or other persons invested by any local act, with powers of town government and rating.

2 Id., § 130.

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