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recognized permanent property, which could not be taken for even public use, much less for use in this private water business, without just compensation. So, too, the attempt to avoid them by mere legislation would have been to impair the force, effect, and validity of a contract. I regard these conclusions as fully sustained by authority. Trustees v. Woodward, 4 Wheat. 518; People v. O'Brien, 111 N. Y. 149, 18 N. E. Rep. 692; Sloan v. Railroad Co., 61 Mo. 24. In this view the prohibitions of the annexation act against the city are plain recognitions of the inviolability of these rights, especially of the character of this franchise. Hence the commissioners proceeded on an erroneous theory when they attempted to appraise them on the hypothesis that they were repealable, or not exclusive; and, since they have themselves certified that their award for these particular rights is, for a materially less sum than they would have awarded upon the theory of their exclusiveness and permanency, it follows that their error involves substantial injustice to this company. The result is their award cannot be affirmed. Nor can I, after careful reflection, discover anything in conflict with these inferences in Charles River Bridge v. Warren Bridge, 11 Pet. 420; Oregon Ry. & Nav. Co. v. Oregonian Ry. Co., 130 U. S. 1, 9 Sup. Ct. Rep. 409; or Stein V. Water Supply Co., 141 U. S. 67, 11 Sup. Ct. Rep. 892. On the contrary, the cases cited in the latter seem to me to sustain, rather than refute, the view which I have taken of this franchise, etc.

It seems to me that there can be no two sides to this question, either in reason or authority. The city of Brooklyn, if it desires to acquire property for a private speculation, must pay the owners just compensation, i. e. what it is worth in dollars and cents to such owners. This view. is so clearly in accord with all the judicial decisions in this country that not a case holding otherwise is cited by the counsel for the petitioner upon their brief. In conclusion I may add that the annexation act and the decisions of the court of appeals treat the company as in exclusive possession of the territory of the town during the term of its charter. They treat such possession as lawful, and entitled to protection against its only possible peril. These successive legislative and judicial interpretations of the company's position are in accord with the policy of the state. They do not in any way contravene that provision of the state constitution which forbids the passage of a local or private bill granting an exclusive franchise. Neither do they contravene the constitutional provision that general and special acts passed for the formation of corporations may be altered from time to time or repealed. This latter provision prepared the way for new legislation, but does not authorize the impairment of any contract made under existing law.

We come, then, to the question of the practical disposition of the case. As already observed, the court has a power to correct their error in the matter of valuation. Under the act of 1892 the court must confirm or set aside the award. The power to appraise resides in the commissioners. I reach this conclusion re

luctantly, because of the expense of a new hearing. But this embarrassment is the fault of the statute. The question then recurs, "Shall the case be referred back to the old commissioners, or shall new ones be appointed?" I have concluded that the analogies of ordinary practice require the appointment of new commissioners. Certainly no one would think of sending so important a matter back to the same jury which had once passed upon it, even if that were practicable; and any juror who had once joined in a verdict would be excluded in a new trial of an ordinary case.

This opinion is necessarily long, for the reason that I have not had time to condense it, and I have yielded to a desire to make it so plain that any person of ordinary intelligence can understand it fully, can be convinced, as I am, that reason and authority both leave no other alternative but the one herein indicated. Several other points are raised by the defendants, but they are of minor importance, and need no comment.

Since the foregoing was written, my attention has been called to the exhaustive opinion of Mr. Justice Brewer in Monongahela Nav. Co. v. U. S., decided by the United States supreme court March 27, 1893, (13 Sup. Ct. Rep. 622,) which covers most of the points already discussed. Here was an express act of congress not to value the franchise. It is well held that the value of property taken in such a proceeding as this is a judicial, and not a legislative, question. Here was an attempt to take a franchise under a federal right of eminent domain, which is superior even to that of the state, and yet his honor truly puts it thus:

"The franchise is a vested right. The state has power to grant it. It way retake, as it may take, any other private property for public use, upon the payment of just compensation. A like, though superior, power exists in the national government. It may take it for public purposes, and take it against the will of the state, but it can no more take the franchise which the state has given than it can take any private property belonging to an individual.”

And, again, in closing the opinion:

"Our conclusion is that with the ownership of the tangible property, legally held in this place, the company also has a vested right to receive tolls for its use. But such franchise is as much a vested right of property as the ownership of the tangible property; but the right of the national government, under its grant of power to regulate commerce, to condemn and appropriate this land, then belonging to the navigation company, is subject to the limitations imposed by the fifth amendment,-that private property shall not be taken for public use without just compensation; that such just compensation requires the payment for the franchise to take tolls, as well as for the value of the tangible property; and that the assertion by congress of its purpose to take the property does not destroy the state franchise."

If all this may be held of a power which is superior to that of the state legislature, what remains to be said to belittle the value of this company's franchise on the theory that it may be repealed?

KNAPP v. SWEET et al.

(Supreme Court, Special Term, Chemung County. May 20, 1890.)

1. ACTION AGAINST CONSTABLE-FAILURE TO RETURN EXECUTION

DEFENSES

Code Civil Proc. § 3039, providing that where a constable neglects to return, within a certain time, an execution issued on a judgment for money only, the execution creditor "may recover in an action against the constable the amount of the execution," does not give an absolute right of recovery in such case, but it may be shown as a defense that the execution debtor had no property subject to execution.

2. SAME-LIABILITY OF SURETIES.

Where a constable's bond is conditioned to pay over all moneys received by him, and such damages as any person "may sustain from or by any act or thing done by the said" constable, the surety is not absolutely liable to an execution creditor for the statutory penalty, which the constable incurs on his failure to return an execution, but he may show that the execution creditor was not injured by such failure.

Action by Wilmot E. Knapp, as receiver of Walter E. Colegrove, against Jacob D. Sweet and Paul Colson. There was a verdict for defendants, and plaintiff moves for a new trial on a case and exceptions. Denied.

H. D. Wilcox, for plaintiff.

H. H. Rockwell, for defendants.

FORBES, J. This action was commenced in the name of Walter E. Colegrove as plaintiff against the defendant Jacob D. Sweet, who was an acting constable in the county of Chemung, and Paul Colson, who was the surety of the other defendant upon a constable's bond. The action was sought to be maintained on two theories. Walter E. Colegrove obtained a judgment in justice's court in the county of Chemung against Nancy Benson and Henry H. Benson for $49.14 damages and $5 costs, amounting in all to the sum of $54.14. An execution was issued upon said judgment, and, by a special arrangement with the defendant Sweet, was placed in his hands for enforcement under an agreement, made at the time, that the defendant Sweet was to receive a bond of indemnity from the plaintiff upon said execution. Sweet communicated to the plaintiff's agent, before he received the execution, that the defendants had no property out of which said execution could be made; that there were certain chattel mortgages covering all the property which they owned, and against which the execution could have been otherwise levied, and the judgment collected; and the defendant Sweet declined to attempt to enforce the execution in the ordinary way. The evidence shows that the plaintiff agreed to visit the town clerk's office, ascertain the facts concerning the property of the defendants in the execution, communicate with the defendant Sweet in reference thereto, and give him a bond of indemnity, if the plaintiff concluded to try to enforce the execution. The defendant Sweet thereupon levied upon the property of the Bensons, advertised it for sale in the usual way, postponed the sale twice, and waited for the bond of indemv.24N.Y.s.no.10-52

nity which had been agreed upon. The plaintiff in the judgment failing to execute the bond of indemnity, the defendant Sweet, within the time required by law to return his execution, sought to make a return thereof to the justice who rendered the judg ment and issued the execution. The plaintiff in the judgment and the justice before whom the judgment was rendered lived near each other. The defendant Sweet lived in another town, in a remote part of the county, some 16 or 18 miles from Colegrove. Not finding the justice at home, Sweet left the execution with one Quinn, who was a constable in that town, with instructions to him to hand the execution to the justice; Sweet having made his return in form upon the execution nulla bona. Quinn was taken sick, and failed to hand the execution to the justice within the 60 days allowed by law. The plaintiff in the judgment was his attending physician, and knew of the return upon the execution, and that it was in the hands of Quinn, with instructions to hand the same to the justice. This action was commenced against the defendants to recover the amount of the judgment, with interest thereon, upon the theory-First, that the constable, Sweet, did not return the execution within the time required by law; and, secondly, upon the ground that he released his levy upon property out of which the money upon the execution could have been made. Among other defenses, the defendants claim that the execution was accepted by the constable with the express understanding that he was to be indemnified by Colegrove, and that the execution was held by him, and the return thereof delayed until the 60 days had nearly expired, awaiting the fulfillment of that agreement on Colegrove's part; secondly, that the Bensons had no property out of which the amount of the execution could have been made, and that the plaintiff in the judgment suffered no damages in consequence of the nonreturn of said execution. The case was tried at the Chemung circuit, before a jury, which rendered a verdict for the defendants. This motion is made for a new trial upon a case and exceptions, and the only question which needs any serious consideration is the one already suggested by the last-named defense.

The court was asked to charge that under section 3039 of the Code of Civil Procedure the plaintiff was entitled to recover for the nonreturn of the execution. This request was unqualified. and assumed that the plaintiff was entitled to recover the full amount of the judgment and execution, independently of the question whether the judgment could have been enforced against the Bensons, or that any damages had been sustained by the plaintiff in the nonreturn. The court refused to thus charge, and an exception was taken by the plaintiff's attorney; the court holding and ruling that, upon the complaint, the question was one to enforce the liability of the defendants upon the constable's bond. Section 3039 provides that an action may be maintained against the constable for a neglect to return an execution within "sixty-five days after the return day thereof, and that the party in whose favor

it was issued may recover, in an action against the constable, the amount of the execution, if it was issued upon a judgment for a sum of money only, with interest from the time when the judg ment was rendered." The contention of the plaintiff is that this section must be construed as giving an absolute right of recovery, not only against the constable, but against his surety upon the bond. This we do not believe to be a warranted construction of the section referred to. While such an action, within the terms of the section, may be commenced against the constable, it is doubtful, as the law now stands, under the complaint and upon the form of undertaking in this case, whether such an action can be maintained. Undoubtedly the nonreturn of an execution in an action against the constable and his surety might be used as prima facie evidence of their liability upon the bond where no defense was interposed, and no evidence given upon the trial warranting a submission to the jury of the question as to whether there had been a breach or neglect of duty from which the plaintiff in the execution had suffered damages. This would seem to be so from section 3041, which provides for an action against the constable and his sureties for a neglect to pay over money which has been collected upon an execution; but this section does not necessarily exclude the idea that an action may be maintained by the judgment creditor for a neglect of duty on the part of the constable, under section 3039. Section 3039 is in the nature of a penalty imposed for a neglect of duty on the part of a constable to return the execution within 65 days after the return day thereof, and the nonreturn is prima facie evidence of his liability for the amount of the judgment and interest thereon. But is this rule to

be applied when a defense is made that the plaintiff in the execution was not damaged or injured from the want of such return? We think not. It was held in the case of Curry v. Farley, 8 Daly, 228, "that the constable does not incur the statutory penalty by his failure to return and file the execution within the time specified if in fact he has not collected any money thereupon."

The undertaking on the part of the defendant Colson, and also on the part of the defendant Sweet, who executed the bond as surety was: First, "that they did jointly and severally agree to pay to each and every person who may be entitled thereto all such sums of money as the said Jacob D. Sweet may become liable to pay on account of any execution or treasurer's warrant or other process which shall be delivered to him for collection;" second, "and we do hereby further jointly and severally agree to pay each and every person any damages which he may sustain from or by any act or thing done by the said Jacob D. Sweet as constable, by virtue of his said office of constable." This was the extent of the undertaking on the part of the defendant Colson, and he could be held to no further liability than that which was undertaken by him, to wit, "to pay any damages which the plaintiff in the execution sustained" by reason of any neglect of duty on the part of the constable in returning, or in an omission to return, within

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