ARTICLE I Continued.

gress in time of peace; and in cases of petit larceny, under the regulation of the Legislature, unless on presentment or indictment of a grand jury, and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be com pelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation.

INDICTMENT. A law allowing the indictment and trial of a burglar in any county into which he carries the property is valid; Mack v. People, 82 N. Y. 235; same principle, People v. Dowling, 84 id. 478.

Indictment by a grand jury de facto under an invalid statute is good. People v. Petrea, 92 N. Y. 128.

COUNSEL. This provision entitles the accused to counsel on trials by courts-martial. People, ex rel. Garling, v. Van Allen, 55 N. Y. 31.

Prisoner has right to interview with counsel. People v. Riseley, 13 Abb. N. C. 186.

Policeman on trial before police board has no right to counsel. People v. Police Comrs., 31 Hun, 209.

TWICE IN JEOPARDY.- A prisoner may be tried on a second indictment after a nol. pros. or supersedeas of the first, to which a plea to the jurisdiction only had been overruled. Gardiner v. People, 6 Park. 155, 190.

A new trial cannot be granted where the prisoner has been acquitted of a felony. People v. Comstock, 8 Wend. 549.

A writ of error at the suit of the people will not lie after judgment for the defendant in a criminal case. People v. Corning, 2 N. Y. 9.

A prisoner, sentenced upon a regular trial and conviction, cannot be retried; Shepherd v. People, 25 N. Y. 406; but the judgment may be corrected under the act of 1863. Hussy v. People, 47 Barb. 503.

Where a conviction is reversed at the suit of the prisoner, a new trial may be ordered. People v. Ruloff, 5 Park. 77.

Where a prisoner has been put on trial, a juror cannot be withdrawn without his consent. People v. Barrett, 2 Cai. 304; Grant v. People, 4 Park. 527; Klock v. People, 2 id. €76.

In case of disagreement the Jury may be discharged by the court, and the prisoner may be re-tried; People v. Goodwin, 18 Johns. 187; so where, being unable to agree, they separate without authority, and are afterward discharged. People v. Reagle, 60 Barb. 527.

In cases of misdemeanor the court of sessions may discharge the jury, without consent of the prisoner, and he may be tried again. People v. Denton, 2 Johns. Cas. 275.

An arrest of judgment after conviction for felony is not a bar to a second indictment. People v. Casborns, 13 Johns. 351.

A prisoner is not put in jeopardy where the evidence fails to establish the offense charged. Canter v. People, 1 Abb. Dec. 305.

Conviction for assault and battery no bar to indictment for murder, where the person assaulted subsequently dies of the blows. Burns v. People, 1 Park. 182.

Where one is convicted of murder, and the law is subsequently repealed without reservation, and a new law enacted, he cannot be tried again, nor can be executed under a re-enactment of the old law. Hartung v. People, 26 N. Y. 167.

ARTICLE I-Continued.

Habitual criminals act valid. People v. McCarthy, 45 How. Pr. 97. TESTIFYING FOR HIMSELF. An act requiring parties to make discovery on oath concerning an indictable offense, but forbidding the answers from being used in evidence against them, is unconstitutional; Perrine v. Striker, 7 Pai. 598; nor is a person protected from testifying in a criminal case against another, on the ground that his testimony may tend to implicate him in a crime, provided he is protected by statute against the use of such testimony on his own trial. People, ex rel. Hackley, v. Kelley, 24 N. Y. 74.

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. 265. By offering himself he waives the constitutional privilege. Connors v. People, 50 N. Y. 240.

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

Where, before the expiration of a term of imprisonment, the prisoner 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 preg nancy, 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 unconstitutional; Rockwell v. Nearing, 35 N. Y. 302; otherwise where notice is required. Cook v. Gregg, 46 N. Y. 399. Canal commissioners are constitutionally authorized to punish witnesses for contempt. People v. Learned, 5 Hun, 626.

Due process" does not require proceeding according to common law, nor personal service. Happy v. Mosher, 48 N. Y. 313. In taking private property for public use notice to owners by publication is valid. Owners v. Albany, 15 Wend. 374.

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

As to provisions for the discovery and delivery of the property of a decedent. Matter of Beebe, 20 Hun, 462; Matter of rry, 25 id. 321. Provisions for taking testimony of witnesses conditionally in criminal proceedings, valid. People v. Williams, 35 Hun, 516.

A statute allowing sheriffs to withhold property, seized under attachment which have been vacated, from the rightful owners until payment of costs against the wrongful claimant, invalid. Bone v. U. 8. Reflector Co., 36 Hun, 407.

The act for the summary conviction of habitual thieves is valid. People v. McCarthy, 45 How. 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. Hein 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.-Genl. 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. Burlington, etc., R. Co., 70 N. Y. 223.

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 N. Y. 48.

ARTICLE I-Continued.

Seizure of milk below proper standard without notice, valid. Blazier v. Miller, 10 Hun, 435. Statute giving houses of Legislature power to punish for contempt for refusing to testify, valid. People v. Keeler, 99 N. Y. 463; s. c., 52 Am. Rep.

49.

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

Game law valid. Phelps v. Racey, 60 N. Y. 10; s. c., 10 Am. Rep. 140.

Trial by jury not always essential to due process. Matter of Curry, 25 Hun, 321. Tenement-house cigar act invalid. Matter of Jacobs, 98 N. Y. 98; s. C., 50 Am. Rep. 636.

Oleomargarine act invalid. People v. Marx, 99 N. Y. 377; s. c., 52 Am. Rep. 34.

Civil damage act valid. Bertholf v. O'Reilly, 7 N. Y. 509; s. c., 30 Am. Rep. 323.

TAKING PRIVATE PROPERTY.-This does not include taxation. People, ex rel. Griffin, v. Mayor of Brooklyn, 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; Beekman v. Saratoga and 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 pirte 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.

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 Deansville 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. 227.

Owner entitled to notice and hearing; Stuart v. Palmer, 74 N. Y. 183; 8. C., 30 Am. Rep. 289; but Legislature may dictate manner and procedure; Matter of Mayor, 99 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

:

ARTICLE I- Continued.

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; so 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. R. R. Co., 47 N. Y. 157.

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

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, 442.

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, 7 id. 319; Heath v. Barmore, 50 id. 302.

Where a law provides adequate means for obtaining compensation, it need not be actually paid before appropriation. Rider v. Stryker, 63 N. Y. 137; Patten v. N. Y. El. Ry. Co., 3 Abb. N. C. 306; Matter of U. S., 96 N. Y. 227; Matter of Mayor, 99 id. 569.

But the owner may not be remitted to a tax fund for compensation., 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. C. 440.

By the Federal Constitution, Art. 1, 10, subd. 1, no State can pass any ex 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 N. Y. 510; and applies onl; to crimes and punishments; Dash v. Van Kleeck, 1 Johns 477.

WHAT 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, 26 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 Reg., 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,

ARTICLE I- Continued.

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; a law increasing punishment; People v. Raymond, 32 Hun, 123.

The former law cannot be revived as to persons who meantime have obtained an adjudication in their favor. Hartung v. People, supra.

LAWS IMPAIRING OBLIGATION OF CONTRACTS, WHAT ARE.- Laws divesting vested rights in property; Benson v. Mayor of New York, 10 Barb. 223; whether by State grant; People v. Platt, 17 Johus. 195; People, ex rel. Fountain, v. Supervisors of Westchester, 4 Barb. 64; or by private conveyance; Van Rensselaer v. Bull, 19 N. Y. 100; laws affecting mari. tal rights already acquired in property; While v. White, 5 Barb. 474: Lawrence v. Miller, 2 N. Y. 215; laws extending time for redemption from tax sale where purchaser has already got title; Dikeman v. Dikeman, 11 Pai. 484; laws altering descent of lands already vested; McCloughry v. Lyon, 9 Cow. 664; where a grant to one bridge company prohibits the erection of another bridge within a certain distance, a subsequent grant to another company; Chenango Bridge Co. v. Binghamton Bridge Co., 3 Wall. (U. S. Sup. Ct.) reversing 27 N. Y 87; franchises of a corporation unreservedly granted; McLaren v. Pennington, 1 Pai. 102; a ferry franchise; Benson v. New York, 10 Barb. 223: insolvent laws in their retrospective action; Roosevelt v. Cebra, 17 Johns. 108; an act releasing a city on stolen bonds in hands of a bona fide holder upon issuing duplicates to the original owner; People v. Otis, 90 N. Y. 48..

WHAT ARE NOT.-Laws affecting prospective marital rights, as courtesy; Thurber v. Townsend, 22 N. Y 517; and inchoate dower. Richardson v. Pulver, 63 Barb. 67. Game Laws. Phelps v. Racey, 60 N. Y. 10. Statates exempting property from taxation. People v. Roper, 35 id. 629; People v. Comrs, 47 id. 501. Laws substituting a salary for fees of a public officer; Conner v. New York, 5 id. 285; or taking away such compensation entirely. Conner v. New York, id. 285. A law repealing a clause in the charter of a bridge company prohibiting the erection of another bridge within a certain distance. Fort Plain Bridge Co. v. Smith, 30 id. 44. A statute directing the review of a municipal assessment declared by the original act to be final and conclusive. Widening of Broadway. 49 id. 150; Clark v. Miller, 54 id. 528. A license to sell liquor. Board of Excise v. Barry, 34 id. 654. Laws modifying privileges of a corporation where the right to amend was reserved in the charter; Hyatt v. Whipple, 37 Barb. 595; as a law rendering stockholders individually liable. Empire City Bank, 18 N. Y. 199; Ex parte Reciprocity Bank, 22 id. 9. Laws changing or repealing powers conferred on municipal corpora tions. People v. Morris, 13 Wend. 325; Darlington v. New York, 31 N. Y. 164. Laws merely affecting the remedy; Ex parte Palmer, 40 id. 561; even if a remedy is taken away; Lennon v. New York, 55 id. 361; as exemption laws: Morse v. Gould, 11 id. 281; laws abolishing distress for rents; Van Rensselaer v. Snyder, 13 id. 299; or a future right of appeal; Grover v. Coon, 1 id. 536; People v. Fowler, 55 id. 675; a reasonable statute of limitations; Rexford v. Knight, 11 id. 308; an act reducing the time to redeem a mortgage sale; Butler v. Palmer, 1 Hill, 324. Mechanics' lien laws. Hauptman v. Catlin, 20 N. Y. 247. An act reviving proceedings against personal representatives of deceased assignees. Ex parte Grove, 53 N. Y. 645. Insolvent laws as to prospective action. Mather v. Bush, 16 Johns. 233. National Bankrupt laws. McCormick v. Pickering, 4 N. Y. 276. The exercise of the right of eminent domain. Lansing v. Smith, 4 Wend. 9. The civil damage act. Bertholf v. O'Reilly, 18 Alb. L. Jour. 389. An act repealing a tax exemption. People ex rel. Davies v. Com'rs, 47 N. Y. 501. An act suspending public work and thus involving a breach of contract with a citizen. Lord v. Thomas, 64 id. 107. An act declaring any evidence prima facie proot; Howard v. Moot, id. 262: an act regulating business by foreign insurance companies; People v. Fire Ass. of Philadelphia, 92 N. Y. 311; a statute repealing a statute allowing merely equitable claim against a county before payment; People v. Supervisors, 67 id. 109: s. c., 23 Am. Rep. 94; an act giving to fire departments the tax on foreign insurance