Ryan, C. J.
This case turns upon the validity of the proceedings and award of the commissioners set up in the supplemental answer of the respondent.
The language of the respondent’s charter, ch. 540 of 1866, secs. 10, 11, is similar to that of the West Wisconsin Railroad Company, considered in Bigelow v. Railway Co., 27 Wis., 478. In that case, the charter was upheld on the ground that the provision for the payment of the value of the land talcen was equivalent to the just compensation of the constitution. That case, therefore, controls the validity and construction of the charter of the respondent in this case. But though the court is able by construction to sustain charters using such peculiar and obscure language, ut res magis valeat guam pereat, it by no means follows that the circuit court was right [165]*165in using the same language in the appointment of commissioners of appraisal. It certainly would bave been safer and better if the order of appointment bad given, not only the language of the charter, but also, by way of direction to the commissioners, the construction put upon it by the court; so "that the commissioners might bave before them a full expression of the rule of appraisal, and not be left to discover by construction the precise conditions of their duty in that behalf. It is impossible to read this record without being strongly impressed with apprehension that the commissioners not unnaturally mistook the full measure of their duty; and that they confined themselves very much to the literal value of the land taken by the respondent, without properly considering the damages accruing to the residue of the appellant’s land. The manner in which the order of appointment literally followed the charter, and was apparently followed in turn by the commissioners, tends to make the legislature in passing such a charter, and this court in giving it a construction to sustain it, parties to a gross wrong to those whose lands may have been taken and appraised under it. The order of appointment, in this regard, is not unlike a charge of the court to a jury on the rule of damages; which shoifid be not only technically correct, but clear and explicit to the comprehension of laymen. Hutchinson v. Railway Co., 37 Wis., 582, and cases there cited. We could not well forbear saying so much on a matter of such grave and general moment.
This court held in Moore v. Railway Co., 34 Wis., 173, that the general railroad act of 1872 furnishes the rules and methods for the acquisition, thereafter, of private property by railroad companies, in the exercise of the right of eminent domain; repealing all prior provisions on the subject in their several charters. We entertain no. doubt of the correctness of that case, following a rule of constructive repeal well settled in this court. The order appointing commissioners in this case was made previous to the statute of 1872; but the pro[166]*166ceedings of the commissioners under it appear to Rave been taken after the passage of the statute, and must be governed by it. The land of the appellant could not of course be taken from bim, in mviUmij under the repealed provisions of the respondent’s charter’. The taking can be justified only under the provisions of law then existing to authorize the responds ent’s exercise of the right of eminent domain; that is, the statute of 1812.
"We cannot regard this as giving a retroactive effect to that statute. "We do not bold that it operates to impair any proceeding previously taken under the charter. We therefore do not apply it to- the order of the circuit court appointing commissioners. But we do apply it to the subsequent action of the commissioners, because, outside of it, they bad no authority of law to act at all. Neither can we perceive any application of sec. 33, cb. 119, R. S., to the question, for reasons sufficiently apparent in Dillon v. Linder, 36 Wis., 344. And indeed, aside from the principle of that case, it would be strange if the legislature could be foreclosed, by a previous general statute, from changing at will the details of an incomplete statutory proceeding. This is precisely what the statute of 1872 does here.
The charter of the respondent appears to have required of the commissioners no oath of office. Sec. 16 of the general railroad act of 1872 requires the commissioners, before entering on the discharge of their duties, to take the constitutional oath prescribed for state officers: to support the constitution of the United States and the constitution of the state, and faithfully to discharge their duties to the best of their ability. The commissioners in this case took and filed with their report an oath of office to execute the trust reposed in them, and discharge the duties imposed upon them, as enjoined in the charter of the respondent, pursuant to the provisions of the charter, to the best of their ability.
Of course here was a total failure of tbe oath prescribed by [167]*167law. This was probably a blunder; if so, a pregnant blunder. It apparently closed the eyes of the commissioners to the rule of just compensation required by the constitution, and to the construction of that rule in the statute of 1872: the -value of the land taken, and the damages sustained by the owner by reason of the taking. There is a strong presumption that the commissioners considered themselves to be in the execution of the repealed provision of the charter only, without much reference to the constitution and without any to the existing provision of the statute of 1872. And their regard to the obscure and indefinite language of the charter, and disregard of the clear and specific language of the act of 1872, were a failure of duty, not in form merely, but in substance, as this record sufficiently discloses. Had the commissioners been referred to the constitution, they must have noticed that the value of the land taken must include the damages arising from the taking, in order to fill the measure of just compensation. And had they been referred to the statute of 1872, under which alone they then had authority to act, they would have found a precise definition of the just compensation of the constitution, as construed by this court. Railroad Co. v. Elle, 3 Pin., 334; Rollins v. Railroad Co., 6 Wis., 636. If the commissioners had taken the oath required by the statute of 1872, it appears quite impossible that they could have mistaken the true rule of appraisal. Taking an oath to perform their duties under the general language of the charter only, it was quite easy to fall into the mistake into which it is greatly to be feared they did fall.
In the statute of 1872, the legislature was at the pains, ex mdustrid, of specifically stating the rule of appraisement, leaving no room for construction or mistake. And it was a fatal error of the commissioners to mistake the statute under which they were acting. As it is, the oath which they took was not one authorized by law. It was an oath to perform their duties according to the terms of a statute which were [168]*168l’ejDealed because they were vague and indefinite. It was an oath which tended to mislead them, and presumably did mislead them, in the performance of their duties. It was probably worse than taking no oath at all. It was certainly as bad.
The commissioners could proceed to the appraisal, under the authority of the statute of 1872 only. And that statute withheld all authority from them, until they should have taken the oath which it prescribes.
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Ryan, C. J.
This case turns upon the validity of the proceedings and award of the commissioners set up in the supplemental answer of the respondent.
The language of the respondent’s charter, ch. 540 of 1866, secs. 10, 11, is similar to that of the West Wisconsin Railroad Company, considered in Bigelow v. Railway Co., 27 Wis., 478. In that case, the charter was upheld on the ground that the provision for the payment of the value of the land talcen was equivalent to the just compensation of the constitution. That case, therefore, controls the validity and construction of the charter of the respondent in this case. But though the court is able by construction to sustain charters using such peculiar and obscure language, ut res magis valeat guam pereat, it by no means follows that the circuit court was right [165]*165in using the same language in the appointment of commissioners of appraisal. It certainly would bave been safer and better if the order of appointment bad given, not only the language of the charter, but also, by way of direction to the commissioners, the construction put upon it by the court; so "that the commissioners might bave before them a full expression of the rule of appraisal, and not be left to discover by construction the precise conditions of their duty in that behalf. It is impossible to read this record without being strongly impressed with apprehension that the commissioners not unnaturally mistook the full measure of their duty; and that they confined themselves very much to the literal value of the land taken by the respondent, without properly considering the damages accruing to the residue of the appellant’s land. The manner in which the order of appointment literally followed the charter, and was apparently followed in turn by the commissioners, tends to make the legislature in passing such a charter, and this court in giving it a construction to sustain it, parties to a gross wrong to those whose lands may have been taken and appraised under it. The order of appointment, in this regard, is not unlike a charge of the court to a jury on the rule of damages; which shoifid be not only technically correct, but clear and explicit to the comprehension of laymen. Hutchinson v. Railway Co., 37 Wis., 582, and cases there cited. We could not well forbear saying so much on a matter of such grave and general moment.
This court held in Moore v. Railway Co., 34 Wis., 173, that the general railroad act of 1872 furnishes the rules and methods for the acquisition, thereafter, of private property by railroad companies, in the exercise of the right of eminent domain; repealing all prior provisions on the subject in their several charters. We entertain no. doubt of the correctness of that case, following a rule of constructive repeal well settled in this court. The order appointing commissioners in this case was made previous to the statute of 1872; but the pro[166]*166ceedings of the commissioners under it appear to Rave been taken after the passage of the statute, and must be governed by it. The land of the appellant could not of course be taken from bim, in mviUmij under the repealed provisions of the respondent’s charter’. The taking can be justified only under the provisions of law then existing to authorize the responds ent’s exercise of the right of eminent domain; that is, the statute of 1812.
"We cannot regard this as giving a retroactive effect to that statute. "We do not bold that it operates to impair any proceeding previously taken under the charter. We therefore do not apply it to- the order of the circuit court appointing commissioners. But we do apply it to the subsequent action of the commissioners, because, outside of it, they bad no authority of law to act at all. Neither can we perceive any application of sec. 33, cb. 119, R. S., to the question, for reasons sufficiently apparent in Dillon v. Linder, 36 Wis., 344. And indeed, aside from the principle of that case, it would be strange if the legislature could be foreclosed, by a previous general statute, from changing at will the details of an incomplete statutory proceeding. This is precisely what the statute of 1872 does here.
The charter of the respondent appears to have required of the commissioners no oath of office. Sec. 16 of the general railroad act of 1872 requires the commissioners, before entering on the discharge of their duties, to take the constitutional oath prescribed for state officers: to support the constitution of the United States and the constitution of the state, and faithfully to discharge their duties to the best of their ability. The commissioners in this case took and filed with their report an oath of office to execute the trust reposed in them, and discharge the duties imposed upon them, as enjoined in the charter of the respondent, pursuant to the provisions of the charter, to the best of their ability.
Of course here was a total failure of tbe oath prescribed by [167]*167law. This was probably a blunder; if so, a pregnant blunder. It apparently closed the eyes of the commissioners to the rule of just compensation required by the constitution, and to the construction of that rule in the statute of 1872: the -value of the land taken, and the damages sustained by the owner by reason of the taking. There is a strong presumption that the commissioners considered themselves to be in the execution of the repealed provision of the charter only, without much reference to the constitution and without any to the existing provision of the statute of 1872. And their regard to the obscure and indefinite language of the charter, and disregard of the clear and specific language of the act of 1872, were a failure of duty, not in form merely, but in substance, as this record sufficiently discloses. Had the commissioners been referred to the constitution, they must have noticed that the value of the land taken must include the damages arising from the taking, in order to fill the measure of just compensation. And had they been referred to the statute of 1872, under which alone they then had authority to act, they would have found a precise definition of the just compensation of the constitution, as construed by this court. Railroad Co. v. Elle, 3 Pin., 334; Rollins v. Railroad Co., 6 Wis., 636. If the commissioners had taken the oath required by the statute of 1872, it appears quite impossible that they could have mistaken the true rule of appraisal. Taking an oath to perform their duties under the general language of the charter only, it was quite easy to fall into the mistake into which it is greatly to be feared they did fall.
In the statute of 1872, the legislature was at the pains, ex mdustrid, of specifically stating the rule of appraisement, leaving no room for construction or mistake. And it was a fatal error of the commissioners to mistake the statute under which they were acting. As it is, the oath which they took was not one authorized by law. It was an oath to perform their duties according to the terms of a statute which were [168]*168l’ejDealed because they were vague and indefinite. It was an oath which tended to mislead them, and presumably did mislead them, in the performance of their duties. It was probably worse than taking no oath at all. It was certainly as bad.
The commissioners could proceed to the appraisal, under the authority of the statute of 1872 only. And that statute withheld all authority from them, until they should have taken the oath which it prescribes. Although appointed by the court to be commissioners, they could take the authority of commissioners only by taking the required oath. The oath was therefore jurisdictional. Failure to take the oath required by the statute left the commissioners without authority to proceed; and their whole proceeding is therefore absolutely void.
The enforcement of the right of eminent domain is a necessary but harsh process, in derogation of private right. And a statutory process for its exercise, delegated to a corporation, must be strictly followed. Sedgwick’s Stat. & Const. Law, 313. The jurisdiction of the commissioners to proceed should affirmatively appear, as in other statutory proceedings in derogation of the common law. Fladland v. Delaplaine, 19 Wis., 459, and cases cited in Vilas and Bryant’s notes; Foster v. Hammond, 37 Wis., 185.
It was contended by the respondent’s counsel, with much ingenuity, that the oath required is only a qualification.of the commissioners, and should be presumed with other qualifications, such as age, residence, etc. It is unnecessary to decide here what the rule might be in such a case, when the record is silent as to the oath. But here the record discloses that the commissioners did not take the required oath, by disclosing what oath they did take. As already remarked, the failure of the oath was a failure of jurisdiction of the commissioners. And where failure of jurisdiction affirmatively appears in a record, it is fatal even to the judgment of a court of general jurisdiction. Rape v. Heaton, 9 Wis., 328; Falkner v. Guild, [169]*16910 id., 563; Pollard v. Wegener, 13 id., 569; Blodgett v. Hitt, 29 id., 169. Some reference was made on the argument to ch.' 292 of 1874, amending the statute of 1872 by giving to existing railroad companies all the powers of the general railroad act, and also of their respective charters. The act of 1874 is not declaratory but amendatory, and could not aid the difficulty here. But we think it right to say that we do not understand the amendment of 1874 as changing the powers or duties of the circuit courts or of commissioners appointed by them, in the exercise of the right of eminent domain. This case sufficiently shows the propriety of a general statute governing the exercise of the right by all railroad companies; and the wisdom of the careful and precise provisions of the statute of 1872. And we cannot believe that the legislature intended to relegate the proceeding to the incongruous and sometimes uncertain language of particular charters, repealed by the safer provisions of the statute of 1872.
It is' a very easy thing for the respondent to acquire the right of way over the appellant’s land, making just compensation to him according to the constitution and the statute of 1872. In the mean time, let the consequences be what they may, the appellant is entitled, ex debito justitim, to the judgment which he seeks.
By the Oov/rt. — The judgment of the court below is reversed, and the cause remanded, with instructions to the court below fo render judgment for the appellant according to the prayer of the complaint.