The People v. Smith.

ticular description of property upon some view of public policy, where it could not be said to be taken for a public use. (The People v. The Mayor of Brooklyn, 4 Comst., 419; Taylor v. Porter, 4 Hill, 140; Wynehamer v. The People, 3 Kern., 378.)

It follows from these views that it is not necessary for the legislature in the exercise of the right of eminent domain, either directly, or indirectly through public officers or agents, to invest the proceeding with the forms or substance of judicial process. It may allow the owner to intervene and participate in the discussion before the officer or board to whom the power of determining whether the appropriation shall be made in a particular case, or it may provide that the officers shall act upon their own views of propriety and duty without the aid of a forensic contest. The appropriation of the property is an act of public administration, and the form and manner of its performance is such as the legislature shall in its discretion. prescribe. In the case before us the act declares that the judge shall give notice to the commissioners of highways whose order is appealed from, and it is silent as to notice to any other person. The appellants and the commissioners are the only parties who are required to be convened on the hearing before the judge, or to have notice of that hearing, and it is their proofs and allegations only which the judge is obliged to hear. It was doubtless considered that the commissioners, who had officially decided against the act which the appellants were seeking to promote, would sufficiently represent the views upon that side of the question. But if we should think it was discreet that the land owners should have been furnished with notice and allowed to participate, still the act furnishes the rule, and the court has no power to change it.

The counsel for the appellant relies upon the case of The People v. The Judges of Herkimer (20 Wend., 186), where it was held that a written notice of a hearing upon appeal before the judges in a case like the present, which was governed by the Revised Statutes, ought to be given; and the proceedings of the judges were reversed for the want of such a notice. The case illustrates the difference between the general highway law

The People v. Smith.

and the system provided for Long Island in this respect. The 61st section of the general statute (1 R. L., 514) provided that before the commissioners should determine to lay out the highway, they should cause notice in writing to be given to the occupant of the land through which it was to run, of the time and place at which they would meet to decide the appli cation, and this notice was to be served three days before the time of meeting; and the 91st section declared that when the appeal to the judges was from a refusal to lay out a road and that determination was reversed, the judges should themselves lay out the road; and it is added that "in doing so they shall proceed in the same manner in which commissioners of highways are directed to proceed in the like cases." Hence it was plain that the judges ought to give the notice before laying out the road. It was also held, though that is not material here, that the notice should have been given of the hearing of the appeal, since the decision to reverse the order of the commissioners and to lay out the road was substantially the same thing; as the latter act necessarily resulted from the former. The difference between the cases is, that the Revised Statutes provide for giving the notice, the want of which is here objected to, and the Long Island act does not. The judgment of the Supreme Court must be affirmed.

All the judges concurring,

Judgment affirmed.

[END OF CASES DECIDED IN THE JUNE TERM.]

ADOPTED AT JUNE TERM, 1860.

According to existing laws, causes which are preferred take their preference in the following order:

1. Criminal actions.

2. Cases of probate, in which the appeal prevents the issuing of letters testamentary or of general administration.

3. Appeals in which the sole plaintiffs or defendants are executors or administrators.

4. All other preferred cases.

Any party claiming a preference must so state in his notice of argument to the opposite party, and to the clerk, and he must also state the ground of such preference, so as to show to which of the above classes the case belongs. In making up the calendar, the clerk will place the preferred causes at the head in the order above prescribed. A preferred cause being once passed without reservation, will take its place in subsequent calendars without preference.

NOTE.-Applications are continually made by letter to counsel in attendance upon the court, to procure a cause to be reserved, without furnishing any evidence of the consent of the opposite party, or disclosing any sufficient ground for an indulgence which, in the present state of the calendar and of the law in respect to preferences, generally operates to occasion uncertainty, inconvenience and delay to those who are ready or preparing to argue their causes, as soon as they can be reached. Especially is this the case in respect to preferred causes which the parties upon the general calendar have a right to suppose will be urged to a hearing with the extremest diligence. It should be understood, therefore, that such an application, is now scanned with somewhat more strictness than heretofore: that it is a motion to be made like other motions, upon affidavit and notice, or upon the written stipulation of the parties, setting forth an adequate reason for the reservation proposed. REPORTER.

MEMORIAL.

On the last motion day of the June Term of the Court of Appeals, FRANCIS KERNAN said in substance:

May it please the Court: On the death of the Hon. SAMUEL BEARDSLEY, of Utica, which occurred since the last Term of this Court, the members of the Bar of Oneida County met to express their sorrow for his loss and their respect for his character. At that meeting over which a member of this Court, Judge DENIO, presided, resolutions were passed expressive of their sentiments.

In consideration of the deservedly high estimation in which the deceased was held throughout the State as a citizen and a member of the legal profession, and also in view of the exalted official positions which he had occupied in connection with the administration of the law, having been Attorney-General of this State, and Chief Justice of the former Supreme Court, the meeting deemed it not improper to appoint a committee to present to this Court a copy of its proceedings, and to request that they be preserved with its records, and that the resolutions which were adopted, be entered upon the minutes of the Court as a memorial of the respect and esteem in which the deceased was held by the Bench and Bar of this State.

Judge Gridley, Mr. Hunt and myself were named as such committee; and I now, at their request, and on behalf of the Bar of the County of Oneida, from whose ranks Judge BEARDSLEY rose, and whom its members regarded with pride as one of their representatives, present to the Court the proceedings of the meeting, and the following resolutions, which it unanimously adopted:

Whereas, It has pleased Divine Providence to remove from our midst the Hon. SAMUEL BEARDSLEY; and we, his professional brethren, have assembled to express our estimate of his character as a jurist and as a man. Therefore it is

Resolved, That in the recent death of Judge BEARDSLEY, the members of the Bar, not of Oneida county only, but of the entire State, have lost one of their oldest and most distinguished associates; and the community at large a public servant, who discharged the various public trusts with which he was honored, with a Roman firmness and an unbending integrity which knew neither friend nor foe.

Resolved, That in a public career of over forty years which the deceased has passed, whether we regard him as a legislator in the Senate of our State, or in the wider field of our national councils; or, as an administrator, having the interest and honor of the public in his keeping, as prosecuting Attorney for Oneida county, and the northern district of the United States, and as Attorney-General of the State; or as a Judge and Chief Justice of the Supreme Court, to decide the law between man and man, we shall find him displaying the same great and commanding qualities. As a legislator he was bold, fearless and decided. As the depositary of the interests of the State, he was