Imágenes de páginas

The act of 1866, chap. 622, in relation to the taxation of charitable institutions in Brooklyn. Dyker Meadow Land & Improv. Co. v. Cook (1896) 3 App. Div. 164, 38 N. Y. Supp. 222, (1899) 159 N. Y. 6, 53 N. E. 690.

Contempt.—The act of 1875, chap. 91, conferring power upon a canal investigating commission appointed by the legislature, and authorizing the commission to punish witnesses for contempt. The proceeding to adjudicate and to impose sentence, if adjudged guilty, is due process of law. People v. Learned (1875) 5 Hun, 626.

A proceeding to punish for contempt of court is due process of law under the Constitution. Egan v. Lynch (1883) 17 Jones & S. 454

i Rev. Stat. 154, $ 13, subd. 4, authorizing the legislature to punish as for contempt a witness refusing to answer before it or before a legislative committee. People ex rel. McDonald v. Keeler (1885) 99 N. Y. 463, 52 Am. Rep. 49, 2 N. E. 615. This statutory provision has been continued in $ 4 of the legislative law.

Crimes.—The riot act of 1855, chap. 428, which makes a city or county liable for the destruction of property by a mob. “The state, in the exercise of its sovereign powers, holds the city responsible, without its consent, and without previous process of law, for the consequences of acts not committed by them, or by their authority or permission, but over which they could exercise no control, and which they had not the physical means to avert." Davidson v. New York (1864) 27 How. Pr. 342.

Section 688 of the Penal Code, which provides for an increased punishment on conviction for a second offense. It is a reasonable exercise of legislative discretion in the treatment of crimes and their punishment. “Reason suggests that the persistent and hardened offender needs a severer punishment. The previous punishment having failed to reform him, his guilt, upon his further offending, is greater, and being so, severer treatment is needed to compel him to reform his ways, and in furtherance of the effort to prevent crime.” The defendant had due process of law, for the statute "announced the enhanced penalty which he would incur by repeating his infraction of the laws against crime." He was charged and tried for the aggravated crime, and the course of the administration of justice was regular in all respects. People v. Sickles (1898) 156 N. Y. 541, 51 N. E. 288.

The provision in the act of 1877, chap. 387, requiring the recorder of Kingston to collect from each person charged with a criminal offense triable before him, who shall waive an examination, all costs

of the proceedings, with authority to commit for nonpayment of such costs. People ex rel. Staudacher v. Webb (1878) 7 N. Y. Week. Dig. 488.

Drainage.-The drainage act of 1869, chap. 888, as amended by chap. 303, Laws 1871. The act is designed to promote the preservation of the public health. Land is taken either by assessment or directly, under the power of eminent domain, and the landowner's damages are to be fully paid. Re Ryers (1878) 72 N. Y. I, 28 Am. Rep. 88.

Elevators.—The act of 1888, chap. 581, fixing the maximum charge for elevating grain, and making a violation of the act a misdemeanor. "No one holds his property by such an absolute tenure as to be freed from the power of the legislature to impose restraints and burdens required by the public good, or proper and necessary to secure the equal rights of all.” The legislative power “may be exercised so as to impair the value of property or limit or restrict the uses of property, yet in this there is no infringement of the constitutional guaranty, because that guaranty is not to be construed as liberating persons or property from the just control of the laws." People v. Budd (1889) 117 N. Y. 1, 5 L. R. A. 559, 15 Am. St. Rep. 460, 22 N. E. 670, affirmed in (1891) 143 U. S. 517, 36 L. ed. 247, 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. 468.

Excise.—The civil damage act of 1873, chap. 646, which authorized an action against the owner of premises for damages resulting from the sale of intoxicating liquor by his lessee. “The right of the state to regulate the traffic in intoxicating liquors within its limits has been exercised from the foundation of the government, and is not open to question. The state may prescribe the persons by whom and the conditions under which the traffic may be carried on. It may impose upon those who act under its license such liabilities and penalties as, in its judgment, are proper to secure society against the dangers of the traffic, and individuals against injuries committed by intoxicated persons under the influence of or resulting from their intoxication.” The licensee accepts the license with all the conditions imposed. While the act “indirectly operates to restrain the absolute freedom of the owner in the use of his property, and may justly be said to impair its value," this is not a taking of it within the meaning of the Constitution. "He is not deprived either of the title or the possession. The use of his property for any other lawful purpose is unrestricted, and he may let or use it as a place for the sale of liquors, subject to the liability which the act imposes.

All property is held subject to the power

of the state to regulate or control its use to secure the general safety and the public welfare." Bertholf v. O'Reilly (1878) 74 N. Y. 509. 30 Am. Rep. 323.

The provision of the excise law of 1857, chap. 628, that if a person is seen to drink liquor on licensed premises it should be deemed presumptive evidence that the liquor was sold by the licensee, who, however, might testify in relation to such sale. “The general power of the legislature to prescribe rules of evidence and methods of proof is undoubted." Boord of Escise v. Merchant (1886) 103 N. Y. 143. 57 Am. Rep. 705, 8 N. E. 484.

The provision of the liquor tax law of 1896, chap. 112, which forbids the der of a liquor tax certificate from giving away any food to be eaten on the premises where liquor is sold. The prohibition against giving away food did not deprive the holder of the certificate of liberty or property without due process of law. The power to regulate the sale of liquor includes the power to determine upon what premises the liquor may be sold, and what other use shall be made of the premises. This regulation is a reasonable exercise of legislative power. People es rel. Bassett v. City Prison (1896) 6 App. Div. 520.

Proceedings under the liquor tax law of 1896, chap. 112, for the cancelation of liquor tax certificates. While these certificates are declared to be property, they are held under limitations prescribed by the legislature, and subject to its regulation Re Livingston (1897) 24 App. Div. 51, 48 N. Y. Supp. 989.

Forest preserve. The forest 'preserve law of 1897, chap. 230, which authorized the forest preserve board to take land for park purposes, and provided for submitting disputed claims as to compensation to the court of claims. "The method of taking is within the exclusive control of the legislature." While in the absence of agreement provision must be made for determining the compensation by an impartial tribunal, payment need not be provided in advance, but payment must be assured. The treasury of the state is pledged to meet the claims under this statute, and an adequate tribunal is provided for the determination of such claims. People v. Adirondack R. Co. (1899) 160 N. Y. 225, 54 N. E. 689.

Gombling.–Sections 3440 and 3446 of the Penal Code relating to certain forms of gambling. People v. Adams (1903) 176 N. Y. 351, 63 L. R. A. 406, 98 Am. St. Rep. 675, 68 N. E. 636.

Game.-The provision of the game law of 1871, chap. 721, which prohibited the possession of certain birds after the ist of March. "The property was acquired subsequent to the passage of the act,

and with the presumed knowledge of its provisions and conditions. The legislature may pass many laws the effect of which may be to impair or even destroy the right of property. Private interest must field to the public advantage." Phelps v. Racey (1875) 60 N. Y. 10, 19 Am. Rep. 140. Sec People v. Bootmon (1904) 95 App. Div. 469, 88 N. Y. Supp. 887, 180 N. Y. 1.

Indemnitors.—The provisions of ff 1421-25 of the Code of Civil Procedure, authorizing the substitution of the sureties in an indemnity bond in an action against the sheriff on account of a levy made by him. The injured party's right of action is not taken away, but is confined in its enforcement to the real and actual trespassers. Hein v. Dovidson (1884) 06 N. Y. 175. 48 Am. Rep. 612.

The mandatory provision requiring the substitution of the indemnitors, added by amendment in 1887, was held invalid in Levy v. Duna (1899) 160 N. Y. 504, 73 Am. St. Rep. 699, 55 N. E. 288.

Insone persons.-A proceeding under the act of 1874, chap. 446, for a commitment of an alleged insane person. Ayers v. Russell (1888) 50 Hun, 282, 3 N. Y. Supp. 383.

The provisions of the insanity law, 1896, chap. 545, and of Hi 23234, 2323b, and 23360 of the Code of Civil Procedure, relating to the appointment of a committee of an alleged insane person. Re Walker (1900) 57 App. Div. I, 67 N. Y. Supp. 647, citing Parker v. Willard State Hospital (1901) 50 App. Div. 622, 63 N. Y. Supp. 113.

Insurance companies. The authority conferred by the act of 1867, chap. 846, on the board of fire underwriters to collect 2 per cent of the premiums received by persons engaged in the insurance business in the city of New York for the purpose of defraying the expenses of the fire patrol. The amount collected is not a tax, and the power conferred on the corporation is a valid exercise of the police power. New York Fire Underwriters v. Whipple (1896) 2 App. Div. 361, 37 N. Y. Supp. 712.

Jurors. The act of 1896, chap. 378, providing for a special commissioner of jurors and for special juries in criminal cases in certain counties. "If the law of the state has made provision for the choosing of an impartial jury for the trial of a defendant, his trial is none the less by due process of law because the jury is composed of persons taken from the body selected by the special commissioner of jurors from the general list.” The special commissioner does not select a particular panel, nor exercise any judicial function as to the qualifications of the twelve men who may ultimately be chosen to serve; the court alone exercises the judicial

function of deciding upon the qualifications of the jurors, and it does so entirely unhampered by the previous examination and inquiry of the commissioner. If a person has had a "trial before an impartial jury taken from the county, and conducted according to the law of the land, he has had all the benefit of the constitutional guaranty.” People v. Dunn (1899) 157 N. Y. 528, 43 L. R. A. 247, 52 N. E. 572. See also People v. Ebelt (1905) 180 N. Y. 470, 73 N. E. 235, as to jurors in Westchester county. The court applies the principles declared as to grand jurors in People v. Petrea, 92 N. Y. 128.

Letters.-A letter placed in the postoffice passes out of the control of the sender and into the control of the party to whom it is directed, and the postmaster or postoffice department is the agent of the party addressed to forward the letter to him, and it cannot be taken from him without due process of law. Kennedy v. Dr. David Kennedy Corp. (1900) 32 Misc. 480, 66 N. Y. Supp. 225, Sp. T. Betts, J.

License.-An ordinance prohibiting a hackman from soliciting patronage in the street, which ordinance is in substance included in the license accepted by him, is due process of law, and the license may be revoked upon proof of its violation. People ex rel. Van Norder v. Sewer, Water & Street Comrs. (1904) 90 App. Div. 555, 86 N. Y. Supp. 445.

Liens.—The act of 1862, chap. 482, in relation to liens on vessels. Happy v. Mosher (1872) 18 N. Y. 313; Sheppard v. Steele (1870) 43 N. Y. 52, 3 Am. Rep. 660.

Mileage books.—The act of 1895, chap. 1027, did not deprive the defendant of property without due process of law. Dillon v. Erie R. Co. (1897) 19 Misc. 116, 43 N. Y. Supp. 320.

Milk ordinance.-An ordinance of the city of Syracuse, authorizing a milk inspector to seize and destroy impure milk. Blazier v. Miller (1877) 10 Hun, 435.

Monopolies.—The anti-monopoly act of 1899, chap. 690, which authorizes a person to be examined as a witness on the application of the attorney general for the purpose of instituting a proceeding under the statute. Re Davies (1901) 168 N. Y. 89, 56 L. R. A. 855, 61 N. E. 118.

New York city.—The act of 1871, chap. 57, for widening Broadway in the city of New York, which authorized the supreme court to open an order made on the report of the commissioners and direct a re-examination of the question of valuation. Re Broadway (1872) 61 Barb. 483, affirmed in (1872) 49 N. Y. 150.

« AnteriorContinuar »