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To allow the court on appeal, to increase or diminish the award is to take the question from the constitutional tribunal and so violate the fundamental law."

Alteration of award by constitutional tribunal.- Though the legislature may not directly or indirectly authorize any tribunal other than one of those here mentioned to assess damages in condemnation proceedings, it is not limited to a choice between those tribunals; and it may constitutionally provide that the action of one be reviewed by another. Wherefore, an act (ch. 181, Laws of 1845) directing the assessment by commissioners of damages occasioned by the laying out of a highway is valid although it allows a reassessment by jury in case any party interested should feel himself aggrieved by the original award. Clark v. Miller, (1874) 54 N. Y. 528, affirming 42 Barb. 255.

IV. DRAINAGE CLAUSE.

Former law. Prior to the adoption of this clause drainage laws authorizing the condemnation of private property for the purpose of draining private premises were not sustained unless the right to condemn was restricted rigidly to cases wherein the drainage was necessary for the preservation of the public health. An extension of the right to cases not prosecuted in the interests of the public health would permit the taking of private property for private use. Thus, chapter 372, Laws of 1867, authorizing the condemnation of private property for drainage purposes was held unconstitutional since it contemplated the furtherance of private interest and not the promotion of the public health. People v. Henion, (1892) 64 Hun 471, 19 N. Y. S. 488. And other drainage laws have been upheld on the single ground that they authorized condemnation only when the drainage was conducive to the public health. In re Ryers, (1878) 72 N. Y. 1, 28 Am. Rep. 88, affirming 10 Hun 93; In re Draining Swamp Lands, (1875) 5 Hun 116. See also In re Tuthill, (1900) 163 N. Y. 133, 57 N. E. 303, 79 A. S. R. 574, 49 L. R. A. 781, affirming 36 App. Div. 492, 55 N. Y. S. 657; Matter of Penfield, (1896) 3 App. Div. 30, 37 N. Y. S. 1056.

Validity of clause under Federal Constitution. In the case In re Tuthill, (1900) 163 N. Y. 133, 57 N. E. 303, 79 A. S. R. 574, 49 L. R. A. 781, affirming (1899) 36 App. Div. 492, 55 N. Y. S. 657, this clause was attacked as violative of section 1 of the 14th Amendment to the Federal Constitution forbidding any state to deprive any person of life, liberty, or property in that it authorizes the appropriation of private property for private use; and though the determination of that question was not essential to the disposition of the case, the members of the court took occasion to express their opinions with reference thereto. Chief Judge Parker, with whom concurred Judge Haight, voiced the conviction that the provision constituted the drainage of agri cultural lands a public purpose and that consequently the power of eminent domain could be exercised in furtherance thereof without conflict with the Federal Constitution. Similar views were happily and forcibly stated by Hatch, J., in rendering the opinion of the Appellate Division. Judge Gray, however, concluded that drainage must remain a private purpose, having always been so regarded and that the people of New York in attempting to change its nature violated the Federal Constitution.

Assessment of expenses of drainage. While this clause purports to enable the legislature to enact general laws permitting an owner to drain his lands over the lands of others and to exercise the power of eminent domain to attain that end, under no construction does it warrant a statute directing the assessment on the owners proceeded against of a proportion of the damages and expenses incident to the drainage. "It only authorizes laws which will enable an agricultural landowner, desirous of draining his lands, to exercise the right of eminent domain and thereunder to appropriate another's lands for the purpose, under such restrictions as shall be deemed proper to make

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and upon his making due compensation. No right is conferred, or implied, to assess a portion of the cost and expense upon the other landowners." In re Tuthill, (1900) 163 N. Y. 133, 57 N. E. 303, 79 A. S. R. 574, 49 L. R. A. 781, affirming 36 App. Div. 492, 55 N. Y. S. 657. Accordingly, the court in that case held unconstitutional chapter 384, Laws of 1895, allowing an owner to drain his agricultural lands over the lands of others, since that act also provided for apportionment of the expenses incurred between that landowner and the owner of other lands benefited by the drainage.

Condemnation in absence of statute.- This clause clearly does not of itself grant the power to appropriate private property for drainage purposes in any particular case. Condemnation proceedings not in the interest of public health cannot therefore be sustained under this clause in the absence of general laws permitting them. Matter of Penfield, (1896) 3 App. Div. 30, 37 N. Y. S. 1056, affirmed 155 N. Y. 703 mem.

88. Liberty of speech and press.

Libel.

Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact

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Const. 1821, Art. VII, § 8; amended, Const. 1846, Art. I, § 8. The purpose of this section is to secure the rights of the people. viduals are free to talk and the press is at liberty to publish, and neither may be restrained by injunction, but they are answerable for the abuse of this privilege in an action for slander or libel under the common law, except where by that law or by statute, enacted in the interest of public policy, the publication is privileged and deemed for the general good, even though it works a private injury." Stuart v. Press Pub. Co., (1903) 83 App. Div. 467, 82 N. Y. S. 401.

"The liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects governments, magistracy or individuals." People v. Most, (1902) 171 N. Y. 423, 64 N. E. 175, 58 L. R. A. 509.

George v.

Civil cases are not included within the scope of this section. Jennings, (1875) 4 Hun 66; Hunt v. Bennett, (1888) 19 N. Y. 173. Compare Dollowoy v. Turrill, 26 Wend. 383. In Hunt v. Bennett, supra, the court said: "If this provision of the Constitution applied to civil cases, there would be no necessity of setting up a justification in an answer; for without it a defendant could give the truth in evidence. Another 1esult would necessarily flow from extending it to such cases, and that is, when the truth of the publication is established a defendant would have to go further and prove that the publication was made with good motives and for justifiable ends. Then he is, in the language of the Constitution, to be acquitted. Although in strictness of law when a defendant in an action for a tort has a verdict in his favor, he may be said to be acquitted, yet in that sense the

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use of the word is not common. But in cases of criminal prosecutions and indictments it is common, and beyond them it is quite clear that the framers of the Constitution did not mean to extend it, and to save all question hereafter on the subject as to the intention of the framers of our present Constitution, the word 'criminal' is inserted and precedes the word 'prosecutions' or 'indictment.''

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A news association may properly adopt a by-law prohibiting its members from receiving or publishing "the regular news dispatches of any other news association covering a like territory and organized for a like purpose. Matthews v. Associated Press, 136 N. Y. 333, 32 N. E. 981, 32 A. S. R. 741. In reaching this conclusion, Peckham, J., said: "As to the objection that the by-law restricts the liberty of the press, I think there is no force whatever to it. For the purpose of efficiently conducting the business of procuring and supplying the news to its members, the association provides that no one of its members shall take or publish news from any other association. what way the liberty of the press is in the least degree restricted by such a law, 1 am unable to see. The constitutional provisions regarding the liberty of speech and of the press has nothing whatever to do with such a provision, and no argument can make it plainer than does the reading of the constitutional provision itself."

In

Seditious publications.— The publisher of a seditious article is not protected by this section since it protects the liberty, not the licentiousness of the press, and no restraint is hereby imposed upon the power of the legislature to punish the publication of matter which is injurious to society according to the standard of the common law. People v. Most, (1902) 171 N. Y. 423. Advertisement of lotteries.-A statute providing that "no person shall by printing, writing, or in any other way, publish an account of any such illegal lottery, game or device, stating when and where the same is to be drawn, or the prizes therein, or any of them, or the price of a ticket or share therein, or where any ticket may be obtained therein, or in any way aiding and assisting in the same" does not violate this section. "The words 'an account' are clearly modified and controlled in their signification by the language which follows them, and the manifest purpose of the statute is to prevent publications to aid and assist lotteries by publishing accounts to operate as advertisements or notices of illegal lotteries, and to point out in some form when the same are to be drawn, or the prizes therein, or the price of tickets or shares, or where tickets may be obtained, or in some other way to aid and assist them. The character of the prohibited account is thus distinctly defined, and is shown not to mean an editorial or other commentary upon the law or its violation, or one pointing out offenders and condemning their conduct, or a mere narrative of such violations as matter of news. Under this construction the supposed restriction of the liberty of the press does not exist. And although the word 'account' might in one of its significations be held to include the just and wholesome criticism of the press condemning and exposing violations of the law, yet when its true meaning is discovered by its immediate context, courts are not required to fasten upon the other sense as a reason for overthrowing a salutary statute." Hart v. People, (1882) 26 Hun 396.

Fire department rules and regulations.- The Greater New York charter (Laws 1897, ch. 378), section 739 of which forbade any member of the uniformed force of the fire department to be or become a member of any club or association intended to affect legislation for or on behalf of the fire department does not constitute an abridgment of the constitutional rights of a member of the fire department, as he may, at any time, emancipate himself therefrom by resigning his position. "By becoming a member of the force he at the same time became subject to discipline, according to its rules, and those rules he must obey or be subject to dismissal. He may not then freely write, speak or publish, if thereby the law and the rules be

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violated. It is to them that he owes obedience, and if he be not willing to yield it, his right is as free and untrammelled as it ever was to emancipate himself from the shackles of the department and exercise his right as an American citizen, whether it violate the rules of the department or not." People v. Scannell, 74 App. Div. 406, 77 N. Y. S. 704, affirmed 173 N. Y. 606, 66 N. E. 1114.

§ 9. Right to assemble and petition.

Divorce.
Gambling.

No law shall be passed abridging the right of the people peace ably to assemble and to petition the government, or any department thereof; nor shall any divorce be granted otherwise than by due judicial proceedings; nor shall any lottery or the sale of lottery tickets, pool-selling, book-making, or any other kind of gambling hereafter be authorized or allowed within this State; and the Legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section.

Const. 1846, Art. I, § 10 (except that lotteries were prohibited by Const. 1821, Art. VII, § 11); amended, Const. 1894, Art. I, § 9.

This section is not self-executing, and though it forbids the legislature to authorize gambling in any form, a particular gamble is not a crime unless made so by the statute. People v. McLaughlin, (1908) 128 App. Div. 599, 113 N. Y. S. 188.

Judicial review of legislative measure. This section expressly commits to the legislature the duty of preventing gambling. The measures to be adopted in furtherance of that end rest in the legislative discretion, and the court may not declare void a statute prescribing penalties for gambling because in its opinion the penalties prescribed are not appropriate and will not be effective to suppress that evil. People v. Stedeker, (1903) 175 N. Y. 57, 67 N. E. 132, reversing 75 App. Div. 449, 78 N. Y. S. 316; People v. Fallon, (1897) 152 N. Y. 12, 46 N. E. 296, 57 A. S. R. 492, 37 L. R. A. 227, affirming 4 App. Div. 82, 39 N. Y. S. 865. See also People v. McLaughlin, (1908) 128 App. Div. 599, 113 N. Y. S. 188.

Scope of inhibition against lotteries.- Construing a similar provision of the Constitution of 1821 forbidding the authorization of lotteries, the court concluded that that prohibition embraced all lotteries of every nature whatever, private and public, dangerous and harmless, the inhibition being aimed not at the object to be accomplished but at the mode of accomplishment. Thus the distribution by lot among the members of an art union of works of art purchased by their subscriptions was held a lottery even though that scheme was comparatively innocuous and offered but little promise of mischievous consequences. Alms House v. American Art Union, (1852) 7 N. Y. 228, affirming 13 Barb. 577.

Nature of lottery.-"Generally speaking, a lottery is a scheme for the distribution of prizes by chance." Reilly v. Gray, (1894) 77 Hun 402, 28 N. Y. S. 811; People v. Fallon, (1897) 152 N. Y. 12, 46 N. E. 296, 57 A. S. R. 492, 37 L. R. A. 227, affirming 4 App. Div. 82, 39 N. Y. Supp. 865. "Payment of the prize in money is not one of the essential ingredients of a lottery. Whenever the scheme of distribution is such, that if the payment of the prizes were in money, it would be a lottery, it will be equally so, although

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the prizes are payable in lands or in chattels." Alms House v. American Art Union, (1852) 7 N. Y. 228, affirming 13 Barb. 577; Reilly v. Gray, (1894) 77 Hun 402, 28 N. Y. S. 811. The prizes offered need not have a fixed market value. It is sufficient if they have any value at all. Thus a lottery for a picture is within the constitutional inhibition. Alms House v. American Art Union, (1852) 7 N. Y. 228, affirming 13 Barb. 577. And that the prizes were not known and designated when the tickets or chances were sold is not potent to wash a scheme otherwise a lottery of its character as such. Alms House v. American Art Union, (1852) 7 N. Y. 228, affirming 13 Barb. 577. Contest for prize as lottery.—Though the essential quality of a lottery is chance, it does not follow that every race or contest for a prize is a lottery because its outcome is problematical and subject to be affected by things unforeseen or accidental. Chapter 570, Laws 1895, allowing the formation of associations to hold horse races and permitting the associations to charge a fee of all entrants and to provide prizes for the winner is not, therefore, void as sanctioning a lottery. People v. Fallon, (1897) 152 N. Y. 12, 46 N. E. 296, 57 A. S. R. 492, 37 L. R. A. 227, affirraing 4 App. Div. 82, 39 N. Y. S. 865.

Government bonds as lottery.- Apparently, a scheme which has as its main feature the sale of some article of commerce or the procurement of a loan is not subject to condemnation under this section as a lottery because it also provides as incident to and in furtherance of its primary object for the distribution of prizes by chance. Thus the Austrian government issued bonds obligating it to pay the principal, interests and premium named and in addition any sum which might be drawn by the holders of the bonds in accordance with the rules and regulations indorsed thereon. The court refused to sustain a claim that those bonds were shares or interests in a lottery, saying: "The substance of the transaction relates to a loan of money to the government and the provision made for its payment. This is the main object and purpose for which authority was given to issue the bonds, and they were disposed of evidently having this in view. The provision by which upon a certain contingency the holder of the bond might receive an additional sum was no doubt an inducement held out for the purpose of obtaining money on the same, but it did not constitute the main feature and the substance of the transaction between the government and the purchaser of the bond. It was a mere appendage and an incident to its main purpose by means of which the holder might by chance receive a larger sum than the principal and interest which the bond itself provided for. It cannot, we think, be said that a loan made with a view of obtaining money to carry on the government of a nation, and which contains a provision by which the amount can be increased as to a portion of it upon a contingency named therein, constitutes a lottery scheme, and is in violation of the Constitution and laws of this State prohibiting lotteries, and of the statute cited." Kohn v. Koehler, (1884) 96 N. Y. 362, 48 Am. Rep. 628, (a different conclusion was reached under a federal statute in Horner v. United States, 147 U. S. 449, 13 S. Ct. 409, 37 U. S. (L. ed.) 237).

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Pool-selling is properly gambling, rather than a lottery, within the meaning of the latter term as used in the provisions of the constitutions of 1846 and 1821 forbidding the authorization of lotteries. Consequently, chapter 479, Laws 1887, legalizing pool-selling at certain horse races is not violative of those provisions. Reilly v. Gray, (1894) 77 Hun 402, 28 N. Y. S. 811.

Contest for prize as gambling. In a gamble the stake is customarily furnished by the participants. A contest for a prize furnished by some person not a contestant is not gambling. Thus chapter 570, Laws 1895, authorizing an association organized thereunder to conduct horse races for stakes to be furnished by it and to charge fees of the owners of the horses entered is valid since the stakes being provided from the general funds of the association cannot be regarded as furnished by the horse-owners. People v. Fallon,

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