of the secretary of state of Ohio. Its railroad, as set forth in this certificate, was to be located and operated in Mahoning and Columbiana counties, commencing at a point on the Cleveland & Mahoning R. R. at Hazleton and terminating at a point on the Niles & New Lisbon R. R. five hundred feet north of the Leetonia Iron Company's blast furnace, in the village of Leetonia, a distance of about twenty miles. The capital stock was fixed at $200,000. The corporators were C. H. Andrews, L. G. Andrews, W. C. Andrews, A. K. Price and L. E. Cochran. The stock was subscribed for and the organization of the corporation effected in accordance with the forms of law. C. H. Andrews, L. G. Andrews, and W. C. Andrews each took thirteen hundred shares, or $65,000 of stock. L. E. Cochran took fifty shares, A. K. Price forty, Jas. Neilan five and J. M. Bowman five.

In August, 1876, an information in the nature of quo warranto was filed in the District Court of Mahoning County against the Hazleton & Leetonia Ry. Co., asking that it be ousted of its right to be a corporation and of all its franchises as such. To this information special demurrers were filed, and sustained by the court. In accordance with leave granted by the court an amended information was filed May 15, 1877, which contained three counts. Το each of these counts pleas were filed. The issues were made up by a replication on the part of the relators. The controlling questions, as made by the pleadings, were two:

1. Had the Hazleton & Leetonia Ry. Co. misused the powers, franchises and privileges conferred upon it?

2. Had it non-used its powers, franchises and privileges for a period of five years before the filing of the original information? The district court found in favor of the railway company, and the case is in this court upon a petition in error.

B. F. Hoffman, for relators.

NASH, J.-The only question which we can determine in this case, is as to whether the judgement of the district court was manifestly against the weight of the evidence. After an examination of all the testimony, we cannot concur in the findings of the district court. To our minds, there had been, for five years, prior to the commencement of this proceeding, not only a non-use of all the powers, franchises and privileges conferred upon this corporation, but there had also been a palpable misuse of them.

Under its charter this railway company had a right to construct and operate a railroad, as a common carrier, and for the benefit of the public from the town of Hazleton to the village of Leetonia. It assumed the performance of duties for the benefit of the public generally.

It wholly failed, prior to the filing of the original information, to take any steps looking toward the accomplishment of this pur

pose. It condemned right of way and constructed a track about two and one-half miles in length, three feet and two inches wide, with heavy grades and sharp curves, to coal mines owned and operated by the principal corporators and stockholders of the railway company, and suitable only for the transfer of the coal from these mines to Hazleton, where there were other railroads. No passenger cars were put upon the road, no depots or freight houses were constructed, and nothing done to secure or accommodate public traffic or travel. Judging from the things done by the corporation, its sole object was to furnish a means for transferring the products of the private mines, owned and operated by its principal incorporators and stockholders, to a place where they could be carried to market.

Judgment reversed and cause remanded.

MOODY

v.

JACKSONVILLE, ETC., R. R. Co.

(Advance Case, Florida. 1884.)

The State has the right to make a compulsory purchase of or to condemn the property of the citizen for a public use or purpose, just compensation being made to the citizen for it.

Such right the State, through the legislative department of the government, may grant to an incorporated railway company having the usual franchises and duties attaching to such companies, to the extent that the property is necessary for the use of the corporation in accomplishing the purposes of its creation. The statute, however, must provide just compensation to the citizen for his property so authorized to be taken.

Neither an award of damages, nor a judgment against a corporation for damages ascertained, or to be ascertained by commissioners, is a just compensation to the citizen for the appropriation of his property by the corporation to its use in the construction of its road.

The designation of the corporation in whom such right to condemn for public use is to be vested, the method of condemnation, and the fixing the nature and extent of the compensation to be made for the property are powers vested exclusively in the legislative department of the government.

In this case an entry for the purpose of continuing an unlawful appropriation or taking was enjoined. Subsequently the injunction was dissolved upon the corporation obtaining a bond approved by the judge under which the value of the property to be taken was secured to be paid after appraisement to the land owner. Held, in the absence of legislation giving such right to the corporation, that the court had no power to authorize a compulsory purchase by it or to prescribe a method of condemnation, or fix a compensation, just or unjust; that these were legislative "functions," which no part of the judicial department of the government could exercise unless the power so to do was 'expressly provided for by the Constitution."

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WESTCOTT, J.-The Jacksonville, Tampa & Key West R. R. Co., through Ambler and others, its agents and contractors, without the consent of the plaintiff, Mrs. Moody, and without previous condemnation of her land, had not only located their railroad over her land, but had entered upon it and were in the act of appropriating it to the construction of its road by felling trees, digging excavations and throwing up embankments. The court, upon the bill of plaintiffs setting up these facts, plaintiffs alleging also that they did not believe said corporation would have property that could be reached by a judgment at law for damages, enjoin the defendants from entering upon the land, and the corporation and its agents from felling trees, cutting excavations, throwing up embankments, or from proceeding with the building of the road on said land until the further order of the court. The corporation and its agents, answering, admit that after location of its line through the land described, they have entered thereon with their laborers, that they have made some excavations and thrown up some embankments in the course of the construction of the said railroad, as the said road crosses the said lands within the limits of the statutory width allowed, and affirm a right to do so under the laws of Florida and their charter. They admit that they have not paid for the said land, or agreed to pay any specific sum therefor, and affirm that they have exhausted every effort to do so without success. They answer further, that anterior to the filing of the bill proceedings to acquire title to so much of said land as is occupied by said railroad had been instituted, and that commissioners had been appointed under the statute to "appraise the compensation to be made to complainant, and that complainant, P. Moody, had actual knowledge and notice of these proceedings." They say further that since the filing of the bill plaintiffs had been served with notice by the commissioners of the place at which they would meet to consider the amount of compensation to which plaintiffs are entitled, and allege that the company is the owner of a franchise of great value, of about twelve miles of graded track in Duval county, and some iron, quantity not stated, soon to arrive to iron the same. They say further, that before the bill was filed they offered the complainants a good and sufficient bond as security to them for the payment of the compensation which may be awarded for the lands appropriated, to be determined by the commission. Defendants claim the right "to proceed with the construction of their road either before or after the commencement of or pending such proceedings in the circuit court for assessing the compensation to complainant," but offer to give security for the payment of such compensation as may be awarded in the event such shall be held to be necessary, and also to comply with such equitable requirements as the court may direct, and close their answer by stating that there is no case made by the bill, and by claiming the same benefit of

this fact as if they had demurred to the bill. There is an affidavit accompanying the answer which gives particulars of repeated attempts to adjust the matter with plaintiffs. It more than sustains

the answer.

Upon motion of defendants the court directed, "that the said injunction be dissolved upon the execution of a good and suf ficient bond to be approved by this court, payable to the said complainants, in the sum of three thousand dollars, upon the condition that the said Jacksonville, Tampa & Key West R. R. will pay unto the said complainants the compensation to which they may be entitled for the taking and appropriating" (italics by this court) "by the said railroad company, of any of the lands of the complainants in their said bill, mentioned by the award of the commissioners appointed or to be appointed to consider, ascertain and fix the same, under the provisions of the act of the Legislature of the State of Florida entitled (an) act to provide a general law for the incorporation of railroads and canals," approved February 19, 1874. A bond approved by the Judge and executed by parties other than the corporation, purporting to be in accordance with this order, was filed, and both parties treating the injunction as dissolved the plaintiffs appealed to this court. This case must be considered first with reference to the order granting the injunction, and second in reference to the order allowing its dissolution upon the giving of the bond required. An examination of this case as we have stated it shows that the claim here made by this corporation and the claim adjudicated by the court was not a right of entry for the purpose of survey or location of the line of contemplated road, and that while the injunctional order first granted and subsequently dissolved was against any further entry, the further entry contemplated was one for the purpose of construction of the road and its permanent use by the company, such as is contemplated by the 4th subdivision of the act of the Legislature controlling the subject. This case therefore does not involve a decision of the question whether such corporation has the right of entry upon and passage over the land of plaintiff for the preliminary surveys and location of the line of its road, such as is authorized by subdivision first of section ten of the statute referred to. Between the entry for construction and use and the entry for location and survey, the statute itself makes a distinction. For the first it contemplates compensation. For the latter none is provided except such as is embraced in the final appraisement for the taking.

The first general question here involved is whether this corporation has the power to make a compulsory purchase of the land of the citizen for the purpose of carrying out the objects of its charter.

Under the power of eminent domain the sovereign may make a compulsory purchase of the property of the citizen when such prop

erty is to be appropriated to a public purpose or use, but such compulsory purchase, or taking as it is called, can not be made even by the sovereign "without just compensation." Such is the provision of our Constitution, which is a limitation upon all departments of the government. This, we understand, is not here denied; but if it were, we should spend no time in hunting cases of precedents to sustain a principle so universally admitted. Again, that which seeks to exercise this power here is a railroad company, invested with the usual franchises to be a corporation to have the rights and duties of a common or public carrier with authority to construct a line of railway for the benefit of the public in affording additional facilities of passenger travel and freight traffic. That this is a public purpose and use for which the land of the citizen may, to the extent it is necessary to accomplish such public purpose be condemned, is also a legal proposition so well established in this country that it is certainly unnecessary to do more than state that such is the law. This leads us to the discussion of the true question in this case, and that question, in the language of the corporation here, is whether the act of the Legislature, under which such claim is here made, assures to the owner of the private property proposed to be taken the just compensation contemplated by the Constitution, as it is admitted that this corporation can be made the subject of the grant of a power to thus take the land, and that the proper department of the government to confer the power is the legislative department thereof.

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Sections 14, 15, 16, 17 and 18, of Chapter 1987, Laws, grant to the corporation the power to acquire titles to land required for its purposes," as well as the manner of its exercise in a case of the character now before the court. The company is required to file a petition praying for the appointment of commissioners of appraisal by the Circuit Court, describing the land sought to be acquired, and after prescribing various proceedings, among which is notice and right to hearing by the parties interested, the act provides (Sec. 17) that "the report of the commissioners shall be recorded by the clerk of the court, in whose office the same is filed, in the judgment book of said court, and at any time after filing the same the railroad or canal company may pay to such owner or owners of the lands so taken, or to the clerk of said court for the use of said owner or owners, the amount awarded by said commissioners, and if necessary a writ of assistance shall be issued by the said circuit court to put such company in possession." This is the compensatory clause for the taking authorized. The act authorizes the company "to proceed with the construction and operation of the road, either before the commencement of or pending such proceedings in the circuit court, to obtain titles to the land along the line or route of its road, and there is no provision in the act authorizing the land owner to institute the proceeding. Other provisions of