source: Caselaw Access Project

author: LEONARD, Judge, Scott, J.,

license: Public Domain

text:
    Newby, Appellant, v. Platte County, Respondent.

    1. The state, hy virtue of its eminent domain, has the right to take private property for public use.
    2. The state can rightfully exercise this right only in cases of public necessity, and then only upon paying the owner a just compensation.
    3. It is competent for the legislature to provide that, in determining the just compensation to which the owner of property appropriated to public use is entitled under the constitution, the benefits and advantages accruing to such owner in respect of the residue of his property unappropriated, in consequence of the use to which the part taken is applied, shall be taken into consideration. (Scott, J., dissenting.)

      i. This right of providing that benefits and advantages shall he taken into consideration in determining the just compensation required by the constitution is based upon the general taxing power.
    5. Such a provision is in effect an assessment or tax on benefits ; being such, and not a tax on property, properly speaking, it is not in conflict with the provision of the constitution requiring that all property subject to taxation shall be taxed in proportion to its value.

      6. The seventeenth section of article 2 of the general act of 1845, “ for opening and repairing public roads and highways,” (R. C. 1845, p. 974,) providing that in assessing the damages sustained by a person by reason of a road’s passing over his land “ the commissioners shall take into consideration the advantages as well as the disadvantages of the road to such person,” is in harmony with the constitution.
    '7. The benefits to be charged against the adjacent land owners are, it seems, the direct and peculiar benefits resulting to them in particular, and not the general benefit accruing to them in common with other land owners from the building of the road.

      Appeal from Platte Circuit Cowrt.

      P. R. Hayden, for appellant.
    I. Newby was entitled in damages to the full value of bis land appropriated and taken for the road, and the court in the assessment thereof had no right to take into consideration the probable or incidental advantages which might or should accrue to Newby from the road in its enhancement of the value of his adjacent lands. (See Constitution of Missouri, article 13, section 7; 5 Dana, 32; 7 Dana, 87; 9 Dana, 114.)

       This case and that of Walther v. Warner et ah, immediately succeeding, were decided at the January term, 1857, of the Supreme Court. The opinions of the court were not however filed until after the close of the July term.— [Rep.

   LEONARD, Judge,

delivered the opinion of the court.

A great diversity of opinion has prevailed among speculative writers as to the origin of private property. The ancients, it is said, generally held property to be the gift of the Deity, but the nations of modern Europe have regarded it as an institution of the positive law. It would seem, indeed, to be a necessity of our nature, and precedes the establishment of civil government. Man can not live without it, and accordingly rights of property have always existed in every country. In every form of society there are circumstances under which things constituting the necessaries and comforts of life are held to belong to a man so as to be his property. Indeed, one of the main purposes for which civil government exists among men, is the protection of private property ; and in providing this protection the civil law must necessarily ascertain and define the things that may be the objects of ownership, and prescribe and limit tbe powers of the owner Oyer them.

In this manner and to this extent property may justly enough he considered an institution of the civil law; but when it is thus established by the municipal law, the legitimate authority of the civil government over it would seem to be confined to a just control over the owner in respect to the use he may make of it — to the requiring of contributions from it to meet the public burdens, and to the taking of it for the public use when required for that purpose; and such ■ seems to be the opinion of the writers on public law. Puf-fendorf, treating of the power of the state over private property, says : “ It may, I think, be properly enough reduced to three general heads: first, the right of making laws to direct the proportion in the use and consumption of certain goods; (sumptuary laws — laws against prodigality, <fcc.) ; secondly, the right of levying taxes; and thirdly, to the exercise of the transcendental propriety(book 8, chap. 5, § 3;) and the practice of all civilized nations has, in good times, always conformed to this.

As to the eminent domain, the “ transcendental propriety,” as it is here called, all writers on public law agree that the state can not rightfully exercise it except in cases of public necessity, and then only upon yielding the owner a just compensation. Grotius tells us that “ the property of subjects is rmder the eminent domain of the state, so that the state, or he who acts for it, may use and even alienate and destroy such property, not only in cases of extreme necessity — in which even private persons have a right over the property of others— but for the ends of public utility ; to which ends those that founded civil society must be supposed to have intended that private ends should give away; but it is to be added that when this is done, the state is bound to make good the loss to those who lose their property.” (De jure Belli et Pacis, Lib. 3, chap. 20, Whewell’s ed.) Puffendorf, too, speaking of the extent of the right of eminent domain, observes: “ It is agreeable to natural equity that when contributions are to be made for the preservation of a particular thing by such as enjoy it in common, that every man should only pay his quota, and that one should not be forced to bear more of the bur-then than another, and the same holds in commonwealths; but because the state of the commonwealth may often be such that either some pressing necessity will not give leave that every particular subject’s share should be collected, or else that the public may have necessary occasion to make use of something in the possession of one or more of the private subjects, the sovereign power may seize upon it for the necessities of the commonwealth; but, then, all that was above the proportion that ivas due from the proprietors must be refunded to them by the rest of the subjects” (book 8, chap. 3) ; and the doctrine and practice of all civilized nations correspond with what is thus laid down by these writers.

No principle in English jurisprudence is better settled than that an individual can not be deprived of his property except for the public use and for a just compensation, and the British parliament accordingly never authorized one individual’s property to be taken for the private benefit of another upon any terms, nor for the public use, without first providing a just equivalent for the owner. (1 Black. Com. 139.) The emphatic declaration of the French law (Civil Code, art. 545) is that “ no one can be compelled to give up his property except for the public use and for a just and previous indemnity.” And an anecdote related by De Tott, in his Memoirs of the Turlrish Government, shows that the same principle is equally respected in that despotic government. The Sultan Mustapha, being desirous of building and endowing a new mosque, fixed upon a spot in the city of Constantinople which belonged to a number of individuals, and treated with them for the purchase of their parts. They all complied with his wishes except a Jew, who owned a s-ma.ll house on the place, and refused to part with it for any price. The Sultan consulted his Mufti, and they answered that private property was sacred, and that the laws of the Prophet forbade his taking it absolutely, but that he might' compel the Jew to lease it to liim as long as be pleased at a full rent. The Sultan submitted to the law.

But in Europe 'this principle is, in reference to the action of the government, a mere moral rule, imposing no legal restrictions upon the legislative authority; while the American people, by incorporating it into their constitution, and making it a rule of constitutional law, of superior obligations to the enactments of the legislative department, have placed private property under judicial protection, against all efforts on the part of the government' to take it from the owner, except under the circumstances and upon the terms recognized as just and proper by the general sense of mankind and the uniform practice of civilized nations; and they have thus given to private property a security altogether unknown to the legal systems of Europe. Our constitutional provision, it is true, does not, like the declaration of the French law, prohibit in express terms the taking of private property in any case except for the use of the public, so as directly to deny to the legisture the power of transferring property from one person to another for any mere private purpose; yet all this is sufficiently implied; and accordingly, in the construction of the provision, it is always assumed that there must be not merely a just compensation, but that the use to which the property taken is to be applied must be a public use in order to authorize the exercise of the power. The questions, therefore, that have been discussed in the courts in the construction of this clause — which is to be found in almost every American constitution — are, what is a public use within the meaning of this provision ? and, what is the just compensation required by the constitution ? Must it be the whole money value of the property without any deduction ? or, is it competent for the legislature to provide that the increased value imparted to the residue of the party’s land, by the use to which the part taken is applied, shall be deducted from the compensation to be paid ? And the last is the question involved in the present case.

The 17th section of the 2d article of the general road law of 1845, (R. C. 1846, p. 974,) provides that, in assessing tlie land owner’s damages, the commissioners “ shall take into consideration the advantages as well as the disadvantages of the road to such persons.” The present road was authorized to be established as a state road by the special act of the 7th February, 1849, and the proceedings for this purpose are directed to be according to the general road law of 1845, and the amendatory act of the 25th of January, 1847. On an appeal from the county court, the plaintiff’s damages as a land owner were assessed in the circuit court by the court in lieu of a jury, on an agreed statement of the facts, and the circuit court, when applied to for that purpose, refused to declare that the plaintiff “ was entitled to the value of the land taken for the road, and that the advantages of the road to him could not be set off against his claim for the value of the land,” and decided that the plaintiff was not entitled to any money compensation for the land taken for the public use; and thus the validity of the statute provision to which we have referred is submitted to our judgment by the present proceedings. If the state government possessed no authority over private property except that of taking it for the public use upon rendering the owner a just compensation, it would seem that, under this provision, the owner would be entitled to the full money value of his property without any deduction. The rule of constitutional law being that private property can not be taken for public use, by the authority of the legislature, without a just compensation, it follows that what is to be considered as compensation within the meaning of the clause is a question of law for the courts, and not a matter for the legislature; and, under such a constitution as we have supposed, with no other power over private property than that of taking it for the public use upon making the owner a just compensation, it would be quite beyond the scope of the legislative authority to declare that the benefit derived by the land owner from the road is the just compensation secured by the constitution. If the provision were that the owner should be indemnified against the act complained of, it might be insisted, that, in ascertaining the extent of the damages sustained, the advantages as well as the disadvantages resulting from the act must be taken into consideration ; and this seems to be the view taken of the subject by the Supreme Court of Ohio, in Simonds and others against Cincinnati, (14 Ohio, 174,) under the constitution of that state, which expressly requires the compensation to be made in “ money.” But that is not the language nor the scope of the provision. The declaration of the constitution is, that no private property ought to be taken or applied to public use without a just compensation; and this would seem to imply that the party should receive the value of his property in money. The transaction is a forced sale to the public, and the constitution in this provision secures to the owner the just price of his property as the only condition upon which he can be lawfully deprived of it.

The government, however, possesses other powers over private property besides the right of eminent domain ; and if, in the exercise of the taxing power, the government may lawfully require the adjacent land owners to contribute towards paying for the right of way in proportion to the benefit each will derive from the road, the present enactment, so far as it directs the advantages of the road to be deducted from the price of the land, must perhaps be considered as an exercise of the taxing power. This law is, indeed, nothing more in | effect than the exercise of both powers of government in the 1 same breath — that of taking the land by the right of eminent I domain, and of requiring, under the taxing power, the adja-J cent land owners to contribute to the cost of it in proportion to the benefit each will derive from the road. We have an instance of express legislation of this character in the St. Louis charter amendment act of the 23d of February, 1853, where it is provided that when it shall become necessary, in order to improve any street, &c., to take private property, the jury shall first ascertain the value of all the ground proposed to bo taken, and then assess against the city, for the payment of this debt, a sum equal to the value of the improvement to the general public; and the balance of the money necessary to pay for the ground they shall assess against the owners of the lots fronting on the street according to the value of their lots, and in the proportion that they will be respectively benefited by the improvement. Under this act, and the ordinance passed to carry it into execution, when the whole lot is taken, the owner receives the whole value of it in money ; but when part only is taken, the value of the part taken and the amount of benefit the owner will derive from the im-/ provement of the street in respect to the residue of his lotj.’ are assessed separately, and one being • set off against thé' other, the owner receives or pays the balance as it turns out to be for or against him. Under the St.- Louis act, the city pays towards the cost of the ground a sum equal to the value of the improvement to the city generally, and the residue of the cost is apportioned among the adjacent lot owners in proportion to the benefit derived respectively from the improvement. Under the provisions of the general road law, the ad-’/ jacent land owners pay towards the cost of the right of way j the value of the improvement to themselves — not exceeding] however the value of the land taken from them respectively— leaving the balance of the cost to be paid by the county. Under the St. Louis act, the sums to be paid by and to the adjacent lot owners are assessed separately, and when part only of a proprietor’s lot is taken, one amount is set off against the other, and the balance only is settled in money. Under the road law, the benefit is in every case deducted from the value of the land taken, and the balance only is formally ascertained and declared; thus what is formally gone through with under the St. Louis act, step by step, is done, substantially at one blow under the road law. In both casesi the legislature exercises the same power over private property,! and no other; and although in one case the language em-<‘ ployed has a more direct reference to the taxing power than in the other, we are not at liberty, we think, on that account to treat the provision in one act as a prohibited invasion of private property, and to give effect to it in the other as an exercise of a lawful power. If tbe legislature may, under the taxing power, lawfully require the contribution, and if this provision in the road law bo substantially such a requisition, as we think it is, we are not at liberty to treat it as a nullity, but must give effect to it accordingly. In a case now before us at St. Louis, (Garrett v. St. Louis,) under the St. Louis act before referred to, part of the plaintiff’s lot was taken for the improvement of Main street, and he insists upon being paid the whole assessed value of the part taken, without any deduction on account of the assessment against him for benefits in respect to the residue of his ground; and the question there is as to the validity of what is in that case express taxation for a local object — while in the present case it is as to the validity of what is in effect, though not in words, a like assessment for a like purpose.

In both cases the only question, as it appears to us, is as to the competency of the legislature to require the adjacent land owners to contribute towards the cost of the ground for a road or street, in proportion to the benefit; or, to state the proposition in more general terms, it is as to the constitutional validity of taxes imposed by a subordinate authority in the state upon an arbitrary district of country'in proportion not to the value of the property, but to the benefit to. be derived by the owner from the improvement.

Upon this question we begin by remarking that the power of taxation, as well as the more subordinate power of taking private property for the use of the public, without any reference to the owner’s duty to contribute to a common burden, exist and are exercised of necessity in every nation as legitimate powers of civil government, and appertain to our state government as part of the legislative power, without any express grant for that purpose. The right of eminent domain is,'in its nature, capable of being Plimited "and regulated in some degree by general rules, and has accordingly, as we have already remarked, been confined in all civilized states by the practice of government, and in our American republics by express constitutional provision, to cases of public necessity and convenience, on the payment to the owner of a just compensation. But the power of taxation is more indefinite in its character, and less capable of limitation by general rules of law. — the amount of money to be raised, and to what purpose it shall be applied, and the persons and things that shall contribute to it and according to what rule of apportionment, are all matters left almost of necessity to the discretion of the legislative department — the only express limitations in our constitution upon the taxing power being that “ all property subject to taxation shall be taxed in pro-11 portion to its value,” and the prohibition against taxing the'/ lands of non-residents higher than residents’ lands.

The validity of the enactment now under consideration, considered as an exercise of the taxing power, is not questioned upon the ground of its being a local tax. There are everywhere, in all civilized states, two sorts of public expendi-|i -those that concern the whole state in general, and/; Jl tures — those that concern the whole state in general, ande those that are confined to' its civil sub-divisions and lesser localities, and both justice and convenience require, and have accordingly introduced into the practice of all governments, corresponding general and local taxation. (Domat, Pub. Law Book, 1, tit. 5, secs. 1 and 5.) Our own practice, correspond ing with the general practice of the other states, has been to meet the general burdens by general taxation, and to make it the duty of the local authorities to raise and expend within their respective limits, under such restrictions as the legislature should deem proper, the taxes applicable to the local public service. The manifest eqitity and convenience of these local assessments, for the accomplishment of local purposes,_lras brought them more and more into general use, ■fionfining tBei'n, in very' many instances, to very small localities ; and no one now questions their validity, although at an early day the constitutional validity of taxation levied by subordinate tribunals was questioned, on the ground that it was levied without the consent of the people or their representatives ; or, in other words, that it was an exercise of the .legislative power of taxation which it was not competent for the legislature to delegate to others. (County Levy Case, 5 Call, 139.) That objection, however, was overruled in the case in which it was made, and has never been regarded in American legislation.

The objections that have since been relied upon to these local assessments for local improvements are that it is not , “ legitimate taxation,” and that in this state, under our constitution! they are not valid as taxes, because they are appor{tioned according to the benefit and not according to the value of the property as required by the constitution. The position assumed is that “ legitimate taxation is limited to the imposing of burdens or charges for a public purpose equally, upon the persons or property within a district known and recognized by law as possessing a local sovereignty for certain purposes, as a state, county, city, town, village, &o.and consequently road and street and other similar assessments] for local improvements are no other than the taking of pri-| vate property, under color of the taxing power, without pro-1 viding the compensation required by the constitution. This! idea, it is believed, was first formally announced in New York, in the case of The People v. Mayor of Brooklyn, 6 Barb. 216, and is said to have originated in the court of appeals of Kentucky, in the case of Sutton’s heirs v. City of Louisville. (5 Dana, 28.) The New York case was an assessment on a lot owner in proportion to the benefit for the purpose of building a sewer, and the Kentucky case was a similar assessment for the extension of a street, and both assessments were decided to be unconstitutional, as not being legitimate exercises of the taxing power. The New York case, however, was reversed on appeal, in the court of( appeals; (4 Comst. 428-;) and the dqbtriil&'itsell'Sgems to havu— been subsequently abandoned in effect in Kentucky, in the case of the City of Lexington v. McMillain’s heirs, 9 Dana, 513, by the same court, composed of the same judges,’in which it originated. In the latter case, Lexington was authorized by its charter to cause the streets to be paved at the expense of the lot owners in each square, either upon the application of the greater part of them, or without such application by the unanimous consent of the mayor and. council ; and one question being as to the validity of an assessment that had been made pursuant to an ordinance passed with the required unanimity, the court held it valid, suggesting that each square might be considered an independent municipality for this purpose. Upon principle, there is nothing, we think, in the objection.

In distinguishing taxation from the taking of private pro-1' perty under the right of eminent domain, it has been wellf observed that taxation exacts property from individuals Wf their respective shares of contribution to a public burden.? Private property taken by the right of eminent domain is not( taken as the owner’s share of such a contribution, but as so1 much beyond it. Taxation operates upon a class of persons or things, and by some rule of apportionment. The exercise of the right of eminent domain operates upon individual persons or things, and without any reference to what is exacted from others. The present tax, if we may consider it as one, operates upon a class of persons — the owners of the several tracts of land over which the road passes — is assessed against them in proportion to the benefit each derives from the improvement, and is exacted from them as their respective shares of contribution to the establishment of the road. We may remark, too, that taxation of this character has prevailed too long and too extensively to be treated as illegitimate, or denounced as legislative spoliation under the guise of the taxing power. It prevailed in England several centuries ago ; and the assessments made there by the commissioners of sewers on the lands affected by their operations was taxation of this character. (28 Hen. VIII, chap. 5, sec. 5.) In Massachusetts, from an early period, meadows, swamps and lowlands were required to be assessed among the proprietors to pay the expense of draining them, (Rev. Stat. of Mass. p. 673,) and in Connecticut the same power was given to commissioners for draining marshy lands. (Conn. Stat. ed. 1839, p. 544.) It is said by the judge, who delivered the opinion of the court of appeals in the Brooklyn case before referred to, that the system of local taxation for local improvements, by assessing the burden according to the benefit, had prevailed for more than one hundred and fifty years, and that this power was given to the corporation of New York in 1691, and had since been conferred on nearly every city and on many of the villages of the state. We are informed in the opinion of the Supreme Court of Kentucky, in the Lexington case before referred to, that the assessment of benefits for the improvement of streets had been sanctioned as constitutional in Louisiana, South Carolina, and Pennsylvania; had been virtually recognized by the courts in New York and Massachusetts, and had never been declared unconstitutional by any court, so far as they had been able to ascertain ; and we may ourselves remark that similar taxation is authorized by law in New Jersey, Maryland, Virginia, Ohio and Indiana, and either acquiesced in by these communities or adjudged valid by their courts. Finally, the validity of local assessments of this character was considered and affirmed in this court at our last St. Louis fall term, in the case of Lockwood v. The City of St. Louis, 24 Mo. 20, where the assessment was to-construct a common sewer, and was levied on all the lots in an arbitrary district — laid off by the corporation for the purpose of constructing the sewer.

The only difference between that and the present case, if we may look on the provision of law we are now considering as an exertion of the taxing power, is, that there the assessment was in proportion to the value of the lot; here, it is in proportion to the benefit to accrue to the owner of the ground. That case, therefore, does not touch the objection that the present assessment is invalid as a tax by reason of our constitutional provision requiring all property subject to taxation to be taxed according to its value. This, as we have already remarked, is one of the two express limitations to bo found in our constitution upon the taxing power, and was the subject of a good deal of discussion in the case of Crow v. The State, 14 Mo. 237. Whether the effect of the px-ovision be to require the legislature, in.laying a property tax, to tax all the property in the state subject to state taxation, without omitting any, or whether it only requires them to tax, without discrimination, all the objects of property that they may select for taxation, or whether the clause is satisfied by taxation levied according to the value of the taxed property and not arbitrarily at specific sums fixed by the legislature, as the judges in the case referred to seem to have respectively thought, we need not stop to inquire — the question before us being whether an assessment of this character is a property tax within the meaning of this constitutional provision. A system of taxation framed exclusively with a view to a just distribution of the burdens of government among its citizens would require that each should contribute in proportion to the benefit he received. But as the amount of benefit each derives from the general expenditures of the government can not be ascertained with any reasonable certainty, the benefit received can not be adopted as a standard for the apportionment of general taxation. The rich however derive more benefit from the government in the protection and improvement of their property, and therefore a tax against a person in proportion to his property, levied not arbitrarily but according to its value, apportions the burden according to the benefit more nearly than any other rule of general taxation, and is therefore adopted as the most equitable tax to defray the general expenses of the state. In local taxation, however, for local objects, the personal benefit to each, it is supposed, may be seen and estimated with a reasonable degree of certainty, and therefore, in such assessments, it is deemed fairer that each should contribute in proportion to the benefit.

Our state revenue is assessed against persons in respect to such of their property as the legislature select for taxation, and in proportion to the value of it; while formerly, under the territorial government, it was levied arbitrarily on property at specific sums, fixed by the legislature (G-eyer’s Dig. Revenue, secs. 1, 2, 4, 9) ; and certainly one effect of the constitutional provision under consideration is to forbid the' ancient mode of assessment, and to require the legislature, in the imposition of taxes on persons in respect to their property, to assess them according to the value of the property selected as the objects of taxation, and not at arbitrary, fixed rates prescribed by the legislature. But we can not suppose it was the intention of the people of this state to suppress entirely that large class of assessments, felt to be so just and equitable and which for that reason had been introduced so generally into practice, in which each is required to contribute to the burden in proportion to the benefit he derives from the expenditure. When the taxation is against one in respect to his property as property, when he is assessed for a property tax, the assessment must be according to the value of the taxed property; but here the property is assessed in respect to the benefit he derives from the improvement; it is a tax on the benefits rather than a tax on the property, and therefore is not obnoxious to the constitutional prohibition we are now considering. The result is, it was competent for the legislature, in the exercise of the taxing power, to require the adjacent land owner here to contribute towards the road in proportion to the benefit; and the provision in the general road law, that is complained of as unconstitutional, is in effect an exercise of this authority. And we remark in this connection that there is a marked difference between general taxation and special assessments for local objects, and that the word tax may be used in a contract or in a statute so as not to embrace within its meaning local or special taxes, although both kinds of taxation derive their authority from the general taxing power; and accordingly, although in Lockwood’s case, before referred to, we held that church property was not exempt from the special sewer tax authorized by the St. Louis general sewer act, yet it was not suggested or supposed that the assessment was not made under the authority of the general taxing power of the state.

Our conclusion in favor of the validity of the provision under consideration, to which we have thus come by considering the question on principle, is corroborated by the mass of judicial decisions in tlie other states on the subject. The American constitutions generally, as already observed, contain the same provision for the protection of private property to be found in our own, and a similar statute provision has been generally adopted throughout the United States in reference to the assessment of the damages for land taken, whether by the public or by private corporations, for public roads and canals, as well as for turnpikes and plank roads and railways ; and Virginia, Kentucky and Tennessee are, we believe, the only states in which the provision has been treated by the courts as invalid. (James River and Kanawha Co. v. Turner, 9 Leigh, 315-341; Woodfolk v. The Nashville and Chattanooga Railroad Co. 2 Swan, 422, and Jacobs v. The City of Louisville, 9 Dana, 114.)

In many of the states its constitutional validity has been expressly affirmed by the courts, while in others it has been silently acquiesced in, and We refer to the following authorities for the course of American legislation and judicial decisions upon the subject. In many of these cases the decision is put on the ground that the government is only bound to indemnify the owner against whatever damage may result to him from the application of his property to the public use, which, although different from the ground on which our decision is placed, produces under our existing laws the same practical result in the assessment of the damages. (Mass.— Rev. Stat. chap. 24, sec. 31; Commonwealth v. Combs, 2 Mass. 492; Commonwealth v. Sessions of Middlesex, 9 Mass. 370 ; Commonwealth v. Norfolk Sessions, 5 Mass. 436. New York—2 Rev. Stat. 412; Livingston v. Mayor of New York, 8 Wend. 80 ; The People v. Mayor of Brooklyn, 4 Comst. 428. Pennsylvania Railroad Co. v. Heister, 8 Penn. State Rep. 447; McMasters v. The Commonwealth, 3 Watts, 294. Ill.—Alton & Sangamon Railroad Co. v. Carpenter. 14 Ill. 199. Ohio—Symonds v. City of Cincinnati, 14 Ohio, 147. Alabama—Code 1852, p. 257, sec. 1136. 27 Miss. 210. Vermont — Compiled .Stat. of 1850, p. 173, sec. 67. Maryland — 5 Gill. 388; 1 Mary. 540; 5 Mary. 314. Indiana — The State v. McIntyre, 5 Blackf. 386.)

As to our own legislation, we remark that the first American road law passed here was enacted by the governor and judges of the territory of Louisiana on the 6th of July, 1806, by which it was made the duty of the jury empanelled to assess the damages, to certify to the court their opinion “ whether any damage, and, if any, how much damage would accrue to the owner of the ground by the passing of the road through the same.” The provision, in substantially the same language, was reenacted in 1814 by the territorial legislature, and has been successively reenacted, in the same language, at every revision of our laws since, down to the present time. At the revision of 1845 a second article in reference to state roads was added to the road law; and the 17th section of that article, expressly requiring the advantages as well as disadvantages to be taken into consideration in the assessment of the damages, is a new provision then for the first time introduced into the revised statutes, and which was then, it would seem, confined to state roads, although in .the last revision it has been extended to county roads.

But, although the first article of the act of 1845, in reference to county roads, does not expressly require the advantages as well as the disadvantages to be taken into consideration in the assessment of the damages, yet this seems to be required in effect by confining the compensation to be allowed to the owner to “ the damages he may sustain by reason of the road’s passin^hrough his land.” The road law of the Northwest territory, passed at Cincinnati in 1799, provided that the persons chosen to assess the damages of those through whose land a public road was proposed to be run “ should take into their consideration how much less valuable the land would be rendered by reason of the contemplated road and assess the damages accordingly.” This provision seems to have continued in force in the territory until the whole country was successively organized into states, and the courts of these states have put upon the provision in their constitutions, where the question was as to the compensation to be allowed for land taken for roads, the same construction that was given to their ancient road act, which was that it secured to the owner not the price of the property taken but a recompense for the actual injwy sustained, taking into consideration the advantages as well as the disadvantages to result from the act. (McIntyre v. The State, 5 Black. 386.) Now our act of 1845 in reference to county roads, although not identical in language in this particular with the old territorial law from which it was probably taken, would seem to impose the same injunction in reference to the assessment of damages that is tacitly enjoined in the territorial law and expressly commanded in our act of 1845 in reference to state roads, and in our act of 1855 in reference to all roads both state and county. This, however, we are not now called on to determine, as the 17th section of the second article of the road law of 1845 is applicable to the present proceeding, and the language there used is such as to leave no doubt as to the effect of the law, if the legislature have the constitutional power to require what they have commanded.

But, although we concur with the circuit court in thinking this section of the road law constitutional, yet the judgment must be reversed upon another ground. The only facts agreed between the parties, and upon which the decision was pronounced, were, that the road ran “ through the plaintiff’s land one hundred and twenty-two poles, and occupied one and one-half acres of ground, worth fifteen dollars per aci-e but it was not admitted that the road was any benefit to the party, and the court, we think, could not infer this as a matter of law from the agreed facts, and pronounce against allowing the plaintiff any compensation for the property of which he was deprived.

As to the proper rule by which to compute the benefits in cases of this character, it may not be improper, as the case is to be remanded for further proceedings, to remark that the Supreme Court of Massachusetts, in the case of Meacham v. The Fitzhugh Railroad Co., 4 Cush. 392, declared that the benefits to, be charged against the adjacent land owners and deducted from the compensation to be paid to them, were the direct and peculiar benefits that would result to them in particular, and not the general benefit that they would derive in common with other land owners from the building of the road; and this seems to be substantially the principle adopted by our own legislature as just and equitable in the St. Louis street improvement act before referred to, and ought perhaps to be followed in the construction of this provision of the road law. In reference to the disadvantages, it is to be observed that the constitution only secures to the owner the price of his property, but it is competent for the legislature to go beyond this, and not only pay him the value of his property, but also indemnify him against any damage that will result to him from the use to which it is to be applied; and this they have effected by requiring the disadvantages as well as the advantages to be taken into consideration in the assessment of the damages. Judge Ryland concurring, the judgment is reversed, and the cause remanded.

Scott, J.,

dissenting. I dissent from so much of the opinion of the majority of the court as maintains that, in the computation of the damages to be paid to the owner of the property taken for public use, regard must be had to the advantages and disadvantages resulting to such owner from the use to which the property may be applied. The value in cash of the thing taken, considering its place and situation, is the compensation contemplated by the constitution to which the owner, as such, is entitled. The legislature may condensate disadvantages with advantages, but the value of the property taken must be paid for in money.


author: LEONARD, Judge,

text:
    Walther, Plaintiff in Error, v. Warner, et al., Defendants in Error.
    1. The building of a railroad by a private corporation, under the authority of the legislature, for the accommodation of the public, is a public use for which private property may be lawfully taken.
    2. Legislative acts authorizing the taking of private property for public use are unconstitutional unless they provide the owner with a proper remedy to obtain a just compensation.
    3. This remedy must be an efficient one; there must be an adequate fund, and an appropriate legal remedy to enforce its application; a judgment against a private corporation is not sufficient.
    4. In proceedings instituted by the Pacific Railroad Company to obtain title to land upon which said company had located its railroad, a judgment was rendered against the company for the damages assessed, and an order was made transferring the title to the land to the company; held, that actual payment of the damages was essential to the vesting of the title in the company; no entry upon said land prior to such payment for the purpose of constructing the railroad could be justified.
    6. It is competent, it seems, for the legislature to authorize entries upon private property without compensation for the purpose of making examinations and surveys preliminary to the location of a railroad.

      Error to Cole Circuit Court.

      Parsons and Morroiv, for plaintiff in error.
    I. The court should have sustained the motions to strike out so much of defendants’ original answer as justified the entry upon and taking the land by virtue of the “ act to incorporate the Pacific Railroad,” approved March 12th, 1849 ; the “ act to expedite the construction of the Pacific Railroad and the Hannibal and St. Joseph Railroad,” approved February 22d, 1851; the act to amend the act entitled “ An act to incorporate the Pacific Railroad,” approved March 1st, 1851, and the “ act to authorize the formations of railroad associations and to regulate the same,” approved February 24th, 1858. Said answer does not allege that the Pacific Railroad Company performed the conditions required of it by the 9th and 10th sections of the “ act to incorporate the Pacific Railroad,” approved March 12th, 1849, and by the 14th, 15th, 16th, 17th and 18th sections of the “ act to authorize the formation of the railroad associations and to regulate the same,” approved February 24th, 1853.
    The right of entry and possession under this act exists only after the payment of the damages assessed, which payment is not alleged in the answer. It is manifestly defective under this statute. (See Bloodgood v. Mohawk & Hudson Railroad Company, 18 Wendell, 9.) The 56th section of this act makes the sections above cited applicable to the Pacific Railroad Company.
    II. The act of 1849, incorporating the Pacific Railroad Company, does not give the company the power to take private property before making compensation for the same. (See sections 9 and 10.) The construction of these sections, as contended for by the defendants, is unconstitutional. (Constitution of the United States, amendments art. 5; Constitution of Missouri, art. 13, sec. 7.) Just compensation, as meant by the constitution, is a certain and complete reparation in money for the property taken. The payment must not depend on any contingency. The owner of the property can not be compelled to surrender it, and credit a corporation which may be solvent to-day and insolvent tomorrow. It is by no means certain that corporations will pay all their liabilities. A promise from them or any of them is not the certain compensation intended by the constitution. The proper construction of the act is that the compensation for the property taken must be made before or at the time it is taken and appropriated. (See Bloodgood v. Mohawk & Hudson Railroad, 18 Wendell, 9 ; Blanchard v. Maysville'& Lexington Turpike Co. 1 Dana, 86 ; 25 Wendell, 464; 3 Hill, 567 ; 2 Kent, 339 ; 3 Howard, 240 ; 9 Georgia, 347.)
    III. The supplemental answer set up nothing more by way of defence than is contained in the original, except that the Pacific Railroad Company has taken steps to have the plaintiff’s damages assessed, and that advantages accrue to him by-the construction of the road. The objections to the original apply with equal force to the supplemental answer.
    The supposed advantages to the plaintiff resulting from the alleged traspass could not be pleaded as a defence. (7 Maine, 386 ; 9 Dana, 114; 5 Dana, 28; 7 Dana, 81.)
    IV. The proceedings in the case of the Pacific Railroad Company against the plaintiff were inadmissible as evidence in this case. The award of the commissioners was not warranted by the law, and the judgment of the court upon the award in giving judgment for crossings was not authorized by the law. The act under which said proceedings were had requires compensation for damages to be in money. (See 16th, 17th and 18th sections of the “ act to authorize the formation of railroad associations and to regulate the same,” approved February 24th, 1853 ; 18 Pickering, 443.)
    V. The court should have given the 1st, 2d, 3d, 4th, 5th, 6th and 7th .instructions asked by plaintiff, and should have refused the 2d, 3d and 4th asked by defendant. See authorities cited in the 1st, 2d and' 3d points made by plaintiff in error. (Gallaher v. Gates, 20 Mo. 237 ; Cooper County v. Geyer, 19 Mo. 257; Baldwin’s C. C. 206; 9 Ga. 356; 26 Wend. 497; 3 Kelly, 45.)
    Gardenhire, for defendant in error.
    I. The charter of the company gave them full power to survey, mark, locate and construct a railroad over the land of the plaintiff in error without previously ascertaining and paying or tendering him the damages. (Laws of 1849, 220, 221, secs. 7, 9 and 10.) It gave him a judgment against the company for the amount of damages assessed, and the company an order simultaneously with the judgment, vesting in them the fee simple title of the land. The mode of acquiring title to land by railroad associations, prescribed by the 13th, 14th, 15th, 16th', 17th and 18th sections of the act of February 24th, 1853, to authorize the formation of railroad assor ciations and to regulate the same, (Sess. acts 1853, pp. 128-131; R. C. 1855, pp. 414-19,) is not applicable to the Pacific Railroad.
    II. The charter of the Pacific Railroad is constitutional, although it vests in the company the fee simple title of the land upon judgment against them for the damages assessed. (1 Baldw. C. C. 226, 22T; 3 How. Miss. 25.0 ; 6 Wend. 634 ; 14 Wend. 51; 12 Mass. 483 ; 7 N. Hamp. 70, 71; 25 Yerm. 66 ; 31 Maine, 215; 35 Maine, 823 ; 1 Foster, 359; 9 Conn. 436; 2 Kent, Com. 399 ; 20 Johns. 744.) The constitutionality of the general law in regard to roads and highways has never been attacked, and yet it is subject to the same objection as the charter of the Pacific Railroad. (R. C. 1855, p. 1372-3, s.ecs. 21-25.) The authorities denying the constitutionality of the law admit the right of entry for the purpose of locating the road. This gives up the tort; for it may and usually does become necessary in locating the road to destroy the timber and sink shafts on the line of the survey. What is the difference in principle between cutting timber and digging up the soil in locating the road, and doing the same thing in constructing it ? Locating the road is not taking the property; neither is constructing it talcing it. One, however, is just as permanent a úse of the land as 'the others. Taking can be nothing less than the divestiture of the fee. Neither the location nor construction of the road does this. The fee is still in the land owner with powers to force the vendees of the law specifically to perform the contract made by the law. (1 Ámer. R. C. 167, note.)
    III. The charter of the company provides a remedy for the land owner to recover damages for the location and construction of the track across his land; and it is exclusive of the remedy at common law. Lawful authority being given to take the property for public use, the act of taking was justifiable, and no action for a tort will lie. (See 1 Amer. R. C. 166, note 1; 7 Ad. & El. 124 ; 3 Eng. Law & Eq. 59 ; 6 ib. 179.) The land owner may by mandamus compel the company to have his damages assessed and paid. (5 Pick. 323 ; 5 Watts, 152 ; 1 Barb. 34; 4 Barb. 64 ; 31 Maine, 272 ; 1 Ohio State Rep. 77,105 ; 9 Smede & Marsh. 77, 90 ; 17 Ala. 530 ; 18 Wend. 18.) He may also have an injunction, in a proper case, until they are assessed and paid. (2 Kent, 399, 400, note
      a; 20 Johns. 744, 745; 1 Baldwin’s C. C. 226; 3. How. Miss. 250; 2 Story’s Eq. sec. 959, 5.) These remedies admit the constitutionality of the law and enforce its execution in a constitutional way so as to protect private rights. The action of the plaintiff in error denies it, denies in fact the right of eminent domain, and treats the executors of the law as trespassers.
   LEONARD, Judge,

delivered the opinion of the court.

The questions in the present case relate to the proper construction of our constitutional provision prohibiting private property from being taken for public use without a just compensation. We have remarked, in an opinion delivered at the present term, (Newby v. Platte co., ante p. 258,) what in deed seems to be unquestionable, that there is in this provision an implied prohibition against'the taking of private property for any purpose other than for public use. And, accordingly, the particular questions to which our attention is now called are whether the use of the plaintiff’s property by the company for the construction of their road is a public use within the meaning of the constitution, and if so, whether, under our constitution and the laws applicable to this transaction, it was lawful for the company under the circumstances of the case to enter upon the plaintiff’s land for the purpose of constructing their road. The first point has not been contested here, and no matter what doubts in reference to it may have been formerly entertained, we suppose it must be considered as now settled by the course of American decisiop that the building of a railroad by a private corporation, under the authority of the legislature, 'for the accommodation of the community, is a public use for which private property may be lawfully taken. The other point involves the inquiry, whether the defendant’s entry upon the plaintiff’s land, in order to construct the road, was authorized by the legislature ; and if it was, whether these legislative provisions are consistent with the constitution. And we may consider the last question first, as the determination of it against the power of the legislature will supersede the necessity of considering and deciding the other.

The 7th section of the act of March, 1849, to incorporate the Pacific Railroad Company, gives them authority ££ to survey, mark, locate and construct” a railroad from the city of St. Louis to the city of Jefferson, and thence to some point on the western line of Van Burén county, and to hold a strip of land not exceeding one hundred feet wide, and other sufficient lands for depots, &c., and ££ to select such route as they may deem most advantageous and the subsequent actions provide a mode by which the company may acquire the land for the road, when they can not agree with the owners, and for this purpose the act directs that the proper court shall, after the assessment of the damages in the manner provided by the act, “ render a judgment for them against the company and in favor of the atfner, and make an order vesting in the company the fee simple to the land.” The general railroad law of February, 1853, after providing for the formation of railroad companies, authorizes them ££ to lay out their roads not exceeding one hundred feet in width, and to construct the same,” and ££ to ¡purchase, hold and use all such real estate as may be necessary for said roads and the stations and other accommodations necessary to accomplish the object of their incorporation,” and ££ to cause such examinations and surveys for their proposed railroads to be made as may be necessary to the selection of the most advantageous route, and for such purpose, by their officers, agents or servants, to enter upon the land or waters of any person, but subject to responsibility for all damages that shall be done thereby.” This act also provides a mode by which all companies, whether formed under that law or incorporated by a special act of the legislature, may, when they can not otherwise obtain it, acquire the necessary land for their roads; and for this purpose the act directs that ££ the damages shall be assessed by commissioners to be appointed upon the petition of the company,” and that upon the confirmation of the commissioners’ report by the proper court or judge suclr court or judge shall make an order reciting the substance of the proceeding and directing to whom the money is to be paid, and that a certified copy of this order shall be recorded in the proper clerk’s office, and that “ thereupon, and on the payment or deposit by the company of the sums to be paid as compensation for the land, the company shall be entitled to enter upon, take possession of and use the said land for the purpose of its incorporation during the continuance of its corporate existence ; and all persons made parties to the proceedings shall be divested and barred of all right, estate and interest in such real estate during the corporate existence of the company. It is also provided in this law, that, if the making of this order be delayed more than thirty days from the date of the presenting of the petition for the assessment of damages, “the company shall be entitled to enter on the possession of the land, provided such bonds as the court may require for the payment of the award of the commissioners shall first be filed and also, that if “ after an attempt to acquire title by appraisal or otherwise, it is found that the title thereby attempted to be acquired is defective,” the company may proceed anew to acquire the title, and at any stage of such new proceeding the court “ may authorize the corporation, if in possession, to continue in possession, and if not in possession to take possession, and use such real estate during the pendency and until the final conclusion of such new proceeding, and may stay all actions against the company on account thereof on such company paying into court a sufficient sum, or giving security, as the court may direct, to pay the compensation therefor when finally ascertained.”

These, it is believed, are all the provisions of law applicable to the case. The facts may be stated in a few words: The suit is for alleged trespasses committed by the defendants in constructing the Pacific Railroad upon the plaintiff’s ground before the company had commenced proceedings against the plaintiff to acquire title to it, although afterwards and before the present suit was commenced they did institute such proceedings, and so conducted them that during the progress of this suit a judgment was rendered against the company for the assessed damages, and an order was made vesting the title to the land in the company. In the course of the present suit the defendants amended their answer, alleging the institution of these proceedings to acquire title, and that they were yet pending and being prosecuted by the company with reasonable diligence to a termination. The court refused to strike out this amended answer, admitted these proceedings in evidence on the trial, and directed the jury substantially that if the company had located their road on the plaintiff’s land, and the trespasses complained of were necessarily committed by the company’s contractors in the construction of the road, the plaintiff could not recover on account of such acts.

It is thus seen that the practical question in the case is, whether the legislative acts, to which we have referred, any or all of them, justify the alleged trespasses, and we are of opinion that they do not; and that, therefore, the judgment must be reversed and the cause remanded, and in this we all concur.

Supposing the provisions of the general railroad law on this subject to be applicable to all railroad companies, there is no pretence that the company had any authority, under the provisions of that law, upon the facts of their case, to enter on the plaintiff’s land for the purpose of constructing the road. That act is very cautiously worded for the protection of private property ; and while it confers authority upon railroad companies to enter upon the land of others for the purpose of making the preliminary examinations and surveys, the power to enter for the purpose of construction is withheld until the damages are paid, except in two classes of cases, when, owing to the occurrence of events out of the usual course of things, the companies are allowed to enter for construction temporarily during the pendency of the proceedings for the assessment of the damages, upon depositing in court a sum sufficient to meet the damages to be assessed, or upon giving sufficient bonds for the damages. This company, however, have by their original charter, as we have already observed, a general authority “ to survey, mark, locate and construct” their road ; and if the view taken at an early time by some judges, that the authority given by the legislature to take private property is valid although no provision be made for ascertaining and paying the owner the required compensation, be correct, the authority here given to construct the road is a sufficient answer to the alleged trespass. This opinion was advanced by Chancellor Kent, in Rodgers against Bradshaw, 20 Johns. 945, when he remarked, that “ it would deserve very grave consideration before we undertook to lay down the broad proposition that, notwithstanding a statute clearly and expressly directed the assumption of private property for a necessary public object, it would still be a nullity, and the officer who undertook to execute it a trespasser, if a provision for compensation did not constitute part and parcel of the act itself.” It was, however, af-terwards seen that if this view of the constitutional provision for the protection of private property against the abuse of the right of eminent domain were to prevail, the provision would be nothing more than a mere moral rule that the legislature might disregard with impunity so far as the legal rights of owners were concerned, and that private property was, in this particular, left in our government where it was in the civilized governments of Europe, under the protection of the moral sense of the legislative department. It was evident too that there was no principle on which any middle course could be taken, such as had been suggested of protecting the party by injunction against the act of the officer; for if the law were constitutional, the taking of the property was lawful and could not be restrained by the courts ; and if it were unconstitutional, it was void, and the supposed authority that it conferred was a nullity, and no answer to the trespass. And, accordingly, it is now settled by the more modern decisions, that legislative acts which direct private property to he taken for public use must provide the owner with a proper remedy to obtain compensation, or they will be disregarded by the cowls as inconsistent with the constitution. (Bloodgood v. M. & H. R. R. Company, 18 Wend. 1; City of Pittsburgh v. Scott, 1 Penn. State, 300; Cullender v. Marsh, 1 Pick. 430.)

This being settled, the question then was, whether the payment of the compensation must precede, or at least be concurrent in point of time with the taking of the property; or whether it was sufficient if provision were made in the law for the ultimate payment of it. And, in order to remove all doubt on this point, some of the more recent American constitutions have expressly provided that the payment shall precede the taking. The Mississippi constitution prohibits the taking of private property “ without just compensation first made;” and such, too, is the language of the New-Jersey constitution of 1844; and in a Mississippi case (Thompson v. Grand Gulf R. R. Company, 3, How. 24) — where the provision to enable the company to acquire the title to land directed the court, after the assessment of the damages, to convey the title to the company, and' at the same time to give judgment and execution against them in favor of the owner for these damages — it was decided that this judgment and execution was not compensation within the meaning of the' constitution, and that the provision to transfer the title was unconstitutional and void. The provision of the civil code of Louisiana, (Art. 489,) is, that no one can be deprived of his property except “ in consideration of a previous and equitable indemnity and the civil law of France (Art. 545) is to the same effect, that no one can be compelled to give up his property to the public except “ for a just and previous indemnity.” The language of our own constitution, which it is believed is the language in which this principle is generally expressed in the American constitutions, is that private property can not be taken without just compensation;” and it is argued, by those who maintain that an individual ought not to be deprived of his property without at the same time receiving the equivalent for it, that our provision, although not in the very same words with the provisions we have quoted, is of the very same import, and does not admit of a different meaning even if we limit ourselves to a grammatical interpretation of it; that the just compensation or indemnity mentioned in all these provisions is the equivalent to be paid to the party for the property that is taken from him and not the promise of one ; that the right of eminent domain, as exercised in all civilized nations, is nothing other than a power in the state of compelling individuals to' submit in proper cases to a sale of their property for its just value, and that the effect of this power, when exerted, is a forced sale at the assessed price; (1 Domat, book 1, Tit. 2, sec. 18 ;) that the price to be paid is of the essence of a sale, so that the buyer does not become the owner of the thing bought but by the payment of the price, unless the seller agree to accept some other security in lieu of it; and that there is no reason, in ordinary cases not calling for an exception to the general rule, why an individual should be compelled to part with his property to the public on credit; and that to allow this is against the whole spirit and scope of the provision, and a withholding from private property that just protection to which it is fairly entitled. In the earlier days of our state governments, private property, when taken for the public use, was taken mainly by the state, or its political subdivisions, counties, cities, &c., for canals, roads, streets, &c., and the compensation, of course, was paid by these public bodies ; and the laws passed for this purpose usually directed the property to be taken whenever it was-needed, and applied at once to the public service, and provided, at the same time, for the immediate assessment and payment of the damages by a warrant drawn by a public officer upon the proper treasury in the usual manner of making public payments. These of course were, to every practical purpose, cash sales, and were held valid by the courts, although the law authorized the taking before the actual payment of the money to the party-; and in this manner and-to this extent, at least, it became the doctrine of several of the state courts that the payment of the compensation need not precede or be simultaneous with the taking. (Smith v. Helmer, 7 Barb. 426; Rubottom v. McClure, 5 Blackf. 505; Bloodgood v. M. & H. R. R. Com. 18 Wend. 17.)

The present case, however, does not require us to determine this question even in reference to a private corporation. It is enough here that the law must provide the owner with the means of obtaining compensation; otherwise, it is admitted on all sides to be unconstitutional. These, of course, must be efficient means — an adequate fund and an appropriate legal remedy to enforce its application; and we think a judgment against a private corporation, that may or may not be paid, is not sufficient. The great works of internal improvement have more recently been undertaken by private corporations, which of course are allowed to take the land of individuals necessary for their purposes, and are charged with the payment of the compensation; and the laws passed for this purpose have generally followed the old forms observed when the state or its municipal corporations were to pay, directing an order to pay to be made against the company ; and, as the provision was deemed sufficient to justify the state and these municipal bodies in taking possession of the property, it is now argued that it ought to be allowed to have the same effect when applied to private corporations ; but it is to bo observed that there is a moral certainty as to the payment in the one case that does not exist in the other. Private corporations do not possess an inexhaustible fund for the payment of their liabilities such as municipal bodies possess in the persons and things within their jurisdiction subject to taxation, and they of course may fail and prove unable to pay their debts ; and this is a sufficient reason why, what has been allowed in favor of the state and its political subdivisions should not be extended to private corporations. We are accordingly of opinion that this company had no lawful authority under their charter to enter upon the plaintiff’s land for the purpose of constructing their road until they had acquired the title, and that the passing of the order for the payment of the money and the transfer of the title did not vest the title in them without the actual payment of the damages.

We are not to be understood, however, as denying to the legislature the power of authorizing an entry upon private property without compensation for the purpose of making the preliminary examinations and surveys before the location of the road. Similar exertions of the sovereign power of the state for the promotion of the common good are matters of almost daily necessity and occurrence, and although in all of them there is a momentary interference with the rights of the owner, it is acquiesced in without any complaint or indeed any question as to the right. The entry of any officer charged with the execution of criminal process upon the land of a third person for the purpose of making the arrest, and the entry of commissioners to view and mark out a public highway upon the land of another for the purpose of executing the public duty imposed on them, may be mentioned as cases of this character. But in these cases there is no exercise of right of eminent domain, no permanent appropriation of the property to the exclusive use of another within the spirit of this constitutional provision, and. they are all subject to this limitation, that they are reasonably necessary to accomplish a lawful purpose, are but temporary in their character, and are accompanied with no unnecessary damage.

But that is not the present case. Here the company took exclusive and permanent possession of the real estate of the plaintiff by constructing their road upon it, and whether the owner was thereby divested of tlie formal title to his property or not, he was substantially deprived of the use and enjoyment of it; and this is clearly such a taking as the legislature can not authorize without providing for the owner a just compensation. Our own legislature have recognized this distinction between an entry for the preliminary examinations and an entry for construction in their general railroad law— allowing the former without compensation but subject to responsibility for any real damage that may be occasioned thereby, and withholding the latter until the title is acquired in the manner prescribed for that purpose.

The doctrine that we now apply to this case seems to be the doctrine in New York as settled by the highest court of that state in Bloodgood’s case before referred to, but we are aware that a somewhat different doctrine prevails in some of the New England states. In the state of Maine, the damages are assessed upon the application of the owner at any time within three years after the taking of the property, and an order for their payment is made against the party after the manner of the proceedings when the ground is taken for a common highway ; and in Cushman v. Smith, 34 Maine, 365, it was decided that this provision' was sufficient to justify the company in taking possession for the purpose of construction, but that, if they failed to pay the damages within a reasonable time after their assessment, the statute authority would be treated as a nullity from the beginning, and those who entered under it would be chargeable as trespassers. The struggle with the courts seems to be to reconcile the claims of convenience with the requirements of justice, by allowing the company to take possession of the land as soon as it is selected, without waiting for the assessment of the damages, and at the same time securing to the owner the price of his property, without the payment of which it is felt that he can not be lawfully deprived of it. Our own legislature have reconciled these conflicting claims, wisely enough perhaps, in their general law, by requiring the damages to be paid under ordinary circumstances before the company can enter for the purpose of constructing their road, but at the same time allowing such possession to be taken temporarily, during the pendency of the proceedings to acquire the title— in case these proceedings are delayed beyond a reasonable time — upon a deposit by the company of money or bonds sufficient to meet the damages when assessed. We remark here, in conclusion, that all the cases in all the books seem to assume that an individual can not be absolutely deprived of his property without the actual payment of the assessed price, even though a proper provision for its payment be made in the act authorizing the taking of it; and perhaps it would be better to hold that, even in the cases where the proper provision is made for the payment of the price, so that the property is allowed to pass, it passes subject to the condition that the price shall be subsequently paid, so that if for any cause it be not paid the party may repossess himself of it on account of the condition broken.

Other questions have been discussed in this case — some of which are settled by the decision in Newby v. Platte county, made at the present term — but what we have here said disposes of the case, and is all that is required of us at present.

All of us concur in reversing the judgment and remanding the cause, and judgment will be entered accordingly.


author: Scott, Judge,

text:
    The State, Appellant, v. Sloss, Respondent.
    1. The pardoning power belongs exclusively to the executive department oí the government and can not be exercised by the legislative department.
    2. The “ act to relieve certain persons from the penalties of an act entitled ‘ an act to regulate dram-shops/ approved December 13, 1855, (R. C. 1855, p. 682,)” approved February 12, 1857, (Sess. Acts, 1857, p. 60,) releasing all persons, then indicted for violations of the said act to regulate dram-shops committed before December 15, 1856, from prosecution, provided each individual shall pay all the costs and a fee of two dollars to the circuit attorney — and declaring that whenever any person so indicted shall pay said costs and fee, it shall be the duty of the circuit judge to order said case to be dismissed — is unconstitutional, it being an attempted exercise of the pardoning power, and also an interference with the judicial department of the government.

      Appeal 'rom St. Clair Circuit Cou/rt.

    The facts are su libiently set forth in the opinion of the court.
    Ewing-, (attorney general,) for the State.
    The act of December 13,1855, under which the indictment was found, took effect 1st May, 1856. The act of 1857 does not repeal or modify the law of 1855, but releases defendant from a pending prosecution for an offence against that law, upon the performance of certain conditions. It is an act of legislative pardon. The conditions annexed do not make it less an act of pardon, and the performance of such conditions by defendant can not give validity to the act. The pardoning power is vested in the governor by the constitution, and it is an exclusive power in that officer. The act in question blends the powers of the legislative and judicial departments of the government; is an interference by the former with the administration of criminal justice, and therefore unconstitutional. (Art. 2 Constitution; State v. Fleming et al. 7 Humph. 152.) The act authorizes the criminal judge to dismiss the prosecutions. An expression of the will of the lawmaking power, that defendant and others against whom indictments were pending at the time be released from such prosecutions, is not to enact a law; it is an order, a judgment, a decree.

      Johnson, for respondent.
    The Circuit Court did right in dismissing this case according to the terms and provisions of the act of the general assembly, approved 12th February, 1857. The act of the general assembly above referred to merely changes the penalty from a fine of twenty dollars, upon trial and conviction, to the costs incurred, and a fee of two dollars to the circuit attorney — a change of punishment, nothing more — a power which has been exercised by the legislature without question from the earliest period of the state government and acquiesced in by all the departments of government up to the present time. See the various bills passed to relieve sheriffs and other officers from penalties incurred — much stronger cases than the one at bar.

       The following is the act declared unconstitutional:
      “ An act to relieve certain persons from the penalties of an act entitled ’ An act to regulate dram-shops,’ approved December 13, 1855.
      “ Whereas, it was lawful for any person to sell ardent spirits in any quantity not less than one quart before the approval of said act; and whereas said act never was published; and whereas the statute containing said law mating it an offence to sell less than one gallon was not distributed until about the 16th of December, 1856; now therefore,

        “ Be it enacted by the General Assembly of the State of Missouri, as follows:

      1. That all persons in the state of Missouri, -who are now indicted for a violation of said law committed before the 15th of December, 1856, be and they are hereby released from said prosecution; provided each individual shall pay all costs in said case and a fee of two dollars to the circuit attorney.

        “ § 2. And be it further enacted, That whenever any person who is indicted as aforesaid shall pay cost and fee as aforesaid to the circuit attorney, that it shall be the duty of the circuit judge to order said case to be dismissed.
      “ § 3. And be it further enacted, That any person, indicted as aforesaid, not complying with this statute, shall be prosecuted as is now provided by law.

        “ § 4. That nothing in this act contained shall apply to any case where the offence was committed after the 15th of Decembex-, 1856.

        “ § 5. This act shall take effect and be in force from and after its passage.
      “ Approved February 12, 1857.”

   Scott, Judge,

delivered the opinion of the court.

In 1857 the general assembly passed an act to the purport that all persons in the state of Missouri, who are now indicted for the violation of the act to regulate dram-shops committed before the 15th December, 1856, be and they are hereby released from said prosecution ; provided each individual shall pay all the costs in said case, and a fee of two dollars to the circuit attorney.

The defendant was one of the individuals embraced within the purview of this act, and produced to the court satisfactory evidence that he had complied with the conditions of its proviso, and thereupon, upon his motion, the court dismissed the cause and entered judgment for the defendant. To this action of the court below the State excepted and took an appeal to this court.

The powers of the general assembly are not unlimited. All the departments of our' government are confined in their operations. They have prescribed limits, which they can not transcend. The union of the legislative, executive and judicial functions of government in the same body, as shown by experience, had been productive of such injustice, cruelty and oppression that the framers of our constitution, as a safeguard against those evils, ordained that the powers of government should be divided into three distinct departments, and that no person charged with the exercise of powers properly belonging to one of these departments should exercise any powers properly belonging to either of the others, except in the instances expressly directed or- permitted by the constitution.

Although questions have sometimes arisen whether a power properly belonged to one department of government or anther, yet there is no contrariety of opinion as to the department of the government to which the power of pardoning offences properly appertains. All unite in pronouncing it an executive function. So the framers of our constitution thought, and accordingly vested the power of pardoning in the chief executive officer of the state.

There can be no question as to the nature of the act under consideration. It is as effectually a pardon as though it were one in form under the great seal of the state. Its being clothed with the forms of legislation can not vary its nature and effect. If such laws are warranted by the constitution, it is plain that the power of granting pardons is as fully in the general assembly as though it had been in express terms conferred on that body. The exercise of power involved in the passage of the act under consideration is not to be likened to that exerted in passing laws releasing sheriffs, collectors and others from forfeitures incurred for failing to collect and pay over the public money. The existence of such a power is incident to the relation of creditor and debtor and to the authority to pass laws for the management of the public revenue. The operation of the act under consideration is confined entirely to the release of individuals from prosecution who stand indicted for offences. That is its sole object. The justice or propriety of the act of pardon has nothing to do with the question of its constitutionality. We are not to presume that the governor, under suitable circumstances, will not exercise the power with which he has been clothed by the constitution. He is the sole judge of the propriety of granting a pardon. The conditions prescribed in order to obtain the benefit of a release under the act do not the less make it a legislative pardon; they only change it from an absolute into a conditional pardon.

The time at which the act was passed renders it obnoxious to the objection that it interferes with the judicial department. The act, before trial and conviction, directs the disposition that shall be made of the cause. Where is the warrant in the constitution for the general assembly to direct what disposition shall be made of causes depending in the courts ? Is not the exercise of such a power a judicial function ? The governor can pardon both before and after conviction. His pardon before conviction being pleaded would be a defence to the accusation. Here is a prosecution depending in court and the legislature comes in and orders the party to be released from it. What is that in effect but entering a judgment of acquittal ?

In the case of the State v. Fleming, 7 Humph. 152, a law very similar in its effects to that under consideration was examined, and the court did not doubt but that it was unconstitutional. Judgment reversed, and cause remanded;

Judge Kyland concurring ; Judge Leonard absent.


author: Ryland, Judge,

text:
    Darneal, et al., Appellants, v. Reeves’ Exec’r, Respondent.
    1. The probate court of Ray county has jurisdiction to entertain a motion for an order directing an executor to pay specific legacies. (Sess. Acts, 1853, p. 390.)

      Appeal from Lafayette Circuit Court.

    The facts sufficiently appear in the opinion of the court.

      Napton, for appellants.
    The probate court of Ray had jurisdiction to determine this motion. (R. C. 1845, tit. Administration, art. 6, secs. 1, 3 ; tit. Courts ; Evain v. Henry, 5 Mo. 469.)

      Morrow and Ewing-, for respondent.
    The motion to dismiss was properly sustained by the Circuit Court, because the probate court had no jurisdiction of the matter and proceedings of plaintiffs. The court had no power upon a mere motion to determine the rights of the parties to the property in controversy. If it had jurisdiction of the subject matter at all, it could only have been acquired and exercised upon a petition or bill alleging a cause of action, and by notice to the adverse party, as in a regular suit. The motion was filed and proceedings commenced at an adjourned term of the probate court, and without notice to defendant. The proceedings involved the question of the right of property in the notes and evidences of debt in controversy. The notes, &c., claimed were not described in the will, and the question of ownership could only have been determined by proper pleadings and issues, and not upon a mere motion. No title to the property could pass without the assent of the executor, even though it were described in the bequest in said will, and no assent of the execxrtor to the claim of plaintiff was shown in said motion, and without such assent the probate court had no power to make the order prayed for in plaintiff’s motion. (Toller’s Exec’rs, 306 ; 2 Williams’ Exec’rs, 981; 1 Carter, 570 ; 6 Pick. 125 ; Roper on Leg. 841.) The power to order the payment of legacies upon settlements of executors does not include the power to determine upon a motion whether the property claimed by a legatee is or is not a legacy; nor has the probate court the right to order payment of a legacy specifically described in the will without the executor’s assent. (R. C. 1845, p. 100, secs. 1, 2, 3.) As to the jurisdiction of the probate court of Ray county and the mode of exercising it, see the act establishing probate court in Linn county. (Sess. Acts, 1853, p. 390.)
   Ryland, Judge,

delivered the opinion of the court.

In 1853 the legislature of the state of Missouri created probate courts for the counties of Linn, Harrison, Ray, and Wright, eacb. The act creating these courts was approved February 3d, 1853, and was to take effect and be in force from its passage. (Sess. Acts, 1853, p. 390.) -By this act, the probate court has exclusive original jurisdiction in all cases relative to the probate of last wills and testaments; the granting letters testamentary and of administration, and of repealing and revoking the same; appointing and displacing guardians and curators of orphans, minors and persons of unsound mind ; in binding out apprentices, and in the settlements and allowance of accounts of executors, administrators, guardians and curators; to hear and determine all disputes and controversies whatsoever respecting wills, right of exec-utorship, administrators and guardians; all controversies between masters and their apprentices ; and to hear and decide all controversies about distribution of assets; to hear and determine all demands against executors, administrators, guardians and curators, when the demand does not exceed two hundred dollars. The probate court has concurrent jurisdiction with the Circuit Court in all demands at law against estates when the demands exceed in amount two hundred dollars. The act declares that the probate judge shall have concurrent jurisdiction in equity with the Circuit Court in all matters and controversies properly cognizable in courts of equity in this state, according to the rules of practice which govern courts of chancery, as are prescribed by law, and in which executors, administrators, guardians and curators are necessarily parties complainant or defendant; provided that said judge of probate shall not have jurisdiction, in any case whatever, to entertain or decide upon any controversy in which may be involved the title to land or other real estate, or the right of possession to the same or any interest therein, or right in any way arising therefrom, or any proceeding to effect a partition of land, tenements or assignments of dowers therein; and for such services shall be allowed the same fees that are allowed to the clerks of the circuit courts in chancery cases. (See art. 4, sec. 4 of said act.) In all cases before the judge of probate, either party may require a jury to try the same. The probate judge is required to conform to and be governed by the rules of practice prevailing in the circuit courts of this state. The probate court is declared to be a court of record. The probate judge has power to issue all original process which may be necessary and proper in any matter or subject over which he ■may have jurisdiction ; and all process necessary to enforce the orders of judgments of the said court.

Such was the law governing the probate court of Ray county, and such the power and jurisdiction of this court, when the petitioners, Jacob Darneal, Winnifred Darneal, and Joseph S. Hughes, trustees, filed their motion in the probate court of Ray to procure an order of the court for the payment of certain specific legacies bequeathed by Thomas Reeves in his last will and testament to Winnifred Reeves, now Winnifred Darneal. Columbus Reeves, the executor of Thomas Reeves, deceased, appeared in the court and moved to dismiss the motion of the Darneals and Hughes, because “ the probate court has no jurisdiction in the premises; it has no jurisdiction of the subject matter of said motion and proceedings, nor of the person of said defendant therein ; and has no power or right whatever to take cognizance of or hear and determine the same.” Many causes are set forth by the executor against the allowance of the plaintiff’s motion ; but the principal reasons are want of jurisdiction in probate court to make the order prayed for. The court, however, made the order directing the executor to pay over the specific legacies mentioned in the will of Joseph S. Hughes, trustee for Winnifred Darneal, late Winnifred Reeves. The executor prayed for and obtained an appeal from the order, requiring him to pay over to Mrs. Darneal’s trustee the specific legacies, to the Circuit Court of Ray county. On the petition of the defendant the venue in this case was changed from Ray Circuit Court to the Circuit Court of Lafayette county; and at the November term of the Circuit Court of Lafayette county, in the year 1856, the court dismissed the motion and proceedings originally'commenced in the probate court of Ray county, because said probate court had no jurisdiction of the subject matter. The plaintiffs excepted to this ruling of the Lafayette Circuit Court, and prayed for an appeal, which was granted them, and they bring the case here by appeal.

The only point in this case is in regard to the jurisdiction of the probate court of Ray county. From the act establishing the probate court, we can not see how this question ever could be seriously raised. There is, it seems .to us, no ground to doubt the jurisdiction of the probate court of Ray county over the subject matter of the plaintiff’s motion. This probate court is expressly authorized and empowered to take cognizance of cases like the plaintiff’s. It has concurrent jurisdiction, both as a court of law and equity, with the Circuit Court over all matters and subjects in which executors, administrators, guardians and curators are necessarily parties, either as complainants or defendants, except cases involving matters relating to the realty. The jurisdiction over the subject matter in this case — legacies of promissory notes, personalty only — can not be doubted ; and it was error in the Circuit Court to dismiss this proceeding. If the legacy bo so uncertain as that it can not be enforced, still that does not take away the jurisdiction of the probate court over the subject. Here, in the case before us, nothing is decided but that the motion made by the plaintiffs in the probate court must be dismissed because that court had no jurisdiction. This, we say, was against the law ; it was error for the Circuit Court of Lafayette to order the motion to be dismissed. It was the duty of said court to have proceeded and have settled the matter in controversy between these parties, and not to have dismissed the motion. Whenever it appears upon settlement made by'the executor that there is sufficient money to satisfy all demands against an estate, there is nothing to hinder the probate court to make an order on the executor to pay over legacies, taking care to have specific legacies first paid.

We would not be understood as deciding any thing in relation to the bequest of the testator to bis wife Winnifred under the will in this suit. All that we decide has reference alone to the jurisdiction of the probate court over the subject matter of the plaintiff’s motion. The judgment is reversed and the cause remanded for further proceedings;

Judge Scott concurring.


text:
    The State, Defendant in Error, v. Sutton, Plaintiff in Error.
    1. An indictment charging a sale by defendant of intoxicating liquors “ without his then and there having a dram-shop keeper’s license, inn-keeper’s license, or any other legal authority to sell said intoxicating liquor at said place, in manner and form aforesaid, contrary,” &c., sufficiently charges a want of authority to sell.

      Error to Newton Circuit Court.

    Ewing, (attorney general,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted for selling intoxicating liquor without license at a race track in Newton county. The indictment was found at the October term of the Circuit Court for Newton county, in the year 1855. The defendant appeared to the indictment, and moved to quash it, because it does not sufficiently deny legal authority in defendant to sell the liquor as charged in the indictment. The court overruled this motion; the defendant saved his point and tendered his bill of exceptions. Afterwards the defendant pleaded not guilty to the indictment, and was fined by the court twenty dollars. The record shows no motion in arrest of judgment. The defendant brings the case here by writ of error, and fails to appear in this court. This court however looks into the record in criminal cases without having errors assigned. We have done so in this case, and find the indictment sufficieAt, and therefore must affirm the judgment. The indictment charges the selling of the intoxicating liquor by the defendant, and then makes the averment, “ without his then and there having a dram-shop keeper’s license, innkeeper’s license, or any other legal authority to sell said intoxicating liquor at said place, in manner and form aforesaid, contrary,” &c. We think the authority to sell is here sufficiently negatived, and that the court ruled properly in overruling defendant’s motion to quash.

The court is not bound to quash indictments on motion ex debito justicies; and we have again and again condemned the practice of quashing indictments unless they be clearly bad. This defendant then, after his plea, should have moved in arrest of judgment, if he desired to raise the question again upon the sufficiency of the indictment. Notwithstanding, we-have for his benefit looked into the record and found the indictment good. The judgment will therefore be affirmed;

Judge Scott concurring.