domain pertains to the sovereignty, entirely aside from the 

 question of the ultimate ownership of property, and is 

 beyond it and paramount to it, it is not too much to say 

 that the right could l>e exercised without making com- 

 pensation, were it not for the safeguard which is provided 

 in our constitution, and which is also found in the Federal 

 Constitution. 



It was thought after the adoption of the Federal Consti- 

 tution that the citizen did not have his rights sufficiently 

 preserved, and that consideration, and the debates which 

 then ensued upon the exercise of the right of eminent do- 

 main, or its possible exercise, led to the adoption of the 

 Fifth Amendment, which provides that private property 

 shall not be taken for public use without just compensa- 

 tion. 



What are the two pre-requi sites which are provided 

 in the Federal Constitution and in the constitution of 

 the State of New York — for the language is iden- 

 tical ? " No person shall be deprived of life, liberty or 

 property without due process of law, nor shall private 

 property be taken for public use without just compensa- 

 tion." Here we have the tw T o pre-requisites for the 

 exercise of this power. First, the due process of law. Now, 

 what is due process of law % 



The Seventh Section of Article I of our State Constitu- 

 tion provides that when private property shall be taken 

 for public use, the compensation to be made therefor, when 

 such compensation is not made by the State, shall be ascer- 

 tained by a jury, or by not less than three commissioners 

 appointed by a court of record. So we must have either 

 a jury or three commissioners ; and then what else is re- 

 quired to make " due process V But two other things 

 are essential : due notice to the land-owner and a fair 

 hearing. 



The Court of Appeals has held in this very case, the 

 opinion being written by Judge Finch, that due process of 

 law entitles the property-owner to notice of the proceeding 

 against him and an opportunity to be heard, and the Court 



