HARRIS, J.,
delivered the opinion of the court.
Upon the application of the defendant in error, a jury was summoned, under the provisions of its charter, to assess or “value the damages” which the plaintiff in error would sustain by the use or occupation of his land, &c. From their “inquisition,” the cause was taken to the Circuit Court, for revision, and thence to this court.
The plaintiff in error assigns the following causes: —
1st. That the court below refused to allow the case to be tried by a jury in the Circuit Court.
2d. That the court below sustained a demurrer to the first, second, third, and fourth exceptions to the verdict of the jury of inquest.
3d. The court refused to allow the issue on the fifth exception to said verdict, to be tried by a jury.
The first and third grounds of error involve the question, whether the plaintiff in error was entitled to have his case submitted to a jury in the Circuit Court, under the 28th section of our “ Declaration of Rights,” which declares: “ The right of trial by jury shall remain inviolate.”
The peculiar phraseology of this section will naturally suggest the idea, that it has reference to an existing state of the law securing this right, at the time of its adoption. It is to “ remain inviolate.” This implies, that under some system, previously in force, this right, of trial by jury, was “ inviolateand to this system we must have reference, to ascertain the extent and meaning of this prohibition against encroachment on “ the principles of liberty and free government.”
Prior to the year 1802, the territory now embraced in the limits of this State was included within the limits of the State of Georgia. By the deed of cession of that State, this territory was transferred [309]*309to tbe United States; and in the year 1817, under the Act of Congress of the 1st of March of that year, authorizing the formation of our State Government, the first Constitution of Mississippi was formed.
In the Declaration of Rights is to be found the same section above quoted, and since adopted into the Revised Constitution of 1832.
Prior to the adoption of the first constitution, under the territorial form of government, imposed by Congress, the Ordinance of 1787, except the last article, was extended to the Mississippi Territory ; and by the second article of that ordinance, the inhabitants of this territory were declared to be entitled to the benefit of “ trial by jury.”
In Smith v. Smith, 1 How. 102, it was said, “ The right of trial by jury, as it exists here, is derived from the common law. and must extend as far as it did at common law.” And although the decision on the main point involved in that case has been since overruled, yet this principle has been repeatedly recognized by this court.
In the case of Woodward v. May, 4 How. 389, trial by jury was not refused, though the act authorizing summary judgment in favor of a surety against his principal, on motion, was declared constitutional.
In Lewis v. Garrett’s admr. 5 How. 434, it was said by the court, that “ the Bill of Rights of the people of this State, which declares that the right of trial by jury shall remain inviolate, has never been held to extend to questions in the trial of which a jury is not necessary, by the ancient principles of the common law; and the constitutionality of the act authorizing summary proceedings against the sheriff and his sureties, on their bond, is sustained upon the ground that trial by jury is not thereby denied; but the plaintiff in error (the sheriff) waived his right to such trial, by not demanding it.”
In Peck v. Critchlow, 7 How. 243, the statute authorizing judgment on bonds for the replevy of property, taken by distress for rent, on motion to the court, is held constitutional; but there is no intimation that the parties are not entitled, upon their demand, to the right of trial by jury.
[310]*310And in the case of Scott v. Nichols, 27 Miss. R. 94, upon a motion bj a surety in a judgment, against his principal, in the Circuit Court, under the statute authorizing summary judgment, while it is held that the act is constitutional, yet the court says, “ In practice the court should never refuse the party the privilege of a trial by jury, if desired.Issues of fact in this class of cases, must be tried as all other issues of fact are tried, in circuit courts, by a jury, which may be impanelled under the authority of the court, for the purpose of ascertaining the truth of the facts upon which this judgment is to be pronounced.”
For a very clear and concise statement of the doctrines of the American courts on the subject, reference may be had to Smithes Commentaries on Constitutional Construction, p. 550, § 383, et sequitur, and cases cited.
Nor are these principles and views at all affected by the cases cited by defendant in error. As in New Hampshire, where their constitution secures trial by jury, “as heretofore 'practised and used,” and it had been “practised and used” nearly a century and a half before the adoption of her constitution, to lay out highways and assess damages by a committee, without the intervention of a jury, it was held that a jury was not necessary. Backus v. Lebanon, 11 N. H. R. 19. The cases referred to, have relation to the peculiar provisions of the constitution and laws under which they are made, and afford no authoritative guide, therefore, in the construction of our constitution.
We shall only notice the fourth exception, to the verdict of the jury of inquest.
The fourth exception states that the jury, in estimating plaintiff’s damages, took into consideration the benefit they supposed would result to him, by reason of said road passing through his land.
This point involves the constitutionality of the eighth section of the defendant’s charter, so far as it requires the jury, in estimating the damages, to take into the estimate the benefits resulting to the owner, by reason of the road running through his land, “ towards the extinguishment of his claim for damages.”
The spirit and policy of our institutions, are at war with the doctrine of legislative omnipotence. Ours is a government founded upon an express, written compact, reduced to exactitude and cer[311]*311tainty, expressive of tbe sovereign will of the people, fixing the limits and marking the bounds of legislative, executive, and judicial powers; our constitutions all originated in a spirit of distrust of governmental power, and from a conviction that, unrestrained, its tendency was to despotism. But, notwithstanding these facts, the legislative and judicial history of this country, especially in relation to these great corporations, or whenever works of great public utility or necessity come in question, chronicles one continued series of encroachments on the rights of the citizen. See Smith on Constitutional Construction, 443 and 490. The people of Mississippi, profiting, or rather intending to profit, by the warning examples Stffouded in the older States (where the limitation upon the ancient power of eminent
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HARRIS, J.,
delivered the opinion of the court.
Upon the application of the defendant in error, a jury was summoned, under the provisions of its charter, to assess or “value the damages” which the plaintiff in error would sustain by the use or occupation of his land, &c. From their “inquisition,” the cause was taken to the Circuit Court, for revision, and thence to this court.
The plaintiff in error assigns the following causes: —
1st. That the court below refused to allow the case to be tried by a jury in the Circuit Court.
2d. That the court below sustained a demurrer to the first, second, third, and fourth exceptions to the verdict of the jury of inquest.
3d. The court refused to allow the issue on the fifth exception to said verdict, to be tried by a jury.
The first and third grounds of error involve the question, whether the plaintiff in error was entitled to have his case submitted to a jury in the Circuit Court, under the 28th section of our “ Declaration of Rights,” which declares: “ The right of trial by jury shall remain inviolate.”
The peculiar phraseology of this section will naturally suggest the idea, that it has reference to an existing state of the law securing this right, at the time of its adoption. It is to “ remain inviolate.” This implies, that under some system, previously in force, this right, of trial by jury, was “ inviolateand to this system we must have reference, to ascertain the extent and meaning of this prohibition against encroachment on “ the principles of liberty and free government.”
Prior to the year 1802, the territory now embraced in the limits of this State was included within the limits of the State of Georgia. By the deed of cession of that State, this territory was transferred [309]*309to tbe United States; and in the year 1817, under the Act of Congress of the 1st of March of that year, authorizing the formation of our State Government, the first Constitution of Mississippi was formed.
In the Declaration of Rights is to be found the same section above quoted, and since adopted into the Revised Constitution of 1832.
Prior to the adoption of the first constitution, under the territorial form of government, imposed by Congress, the Ordinance of 1787, except the last article, was extended to the Mississippi Territory ; and by the second article of that ordinance, the inhabitants of this territory were declared to be entitled to the benefit of “ trial by jury.”
In Smith v. Smith, 1 How. 102, it was said, “ The right of trial by jury, as it exists here, is derived from the common law. and must extend as far as it did at common law.” And although the decision on the main point involved in that case has been since overruled, yet this principle has been repeatedly recognized by this court.
In the case of Woodward v. May, 4 How. 389, trial by jury was not refused, though the act authorizing summary judgment in favor of a surety against his principal, on motion, was declared constitutional.
In Lewis v. Garrett’s admr. 5 How. 434, it was said by the court, that “ the Bill of Rights of the people of this State, which declares that the right of trial by jury shall remain inviolate, has never been held to extend to questions in the trial of which a jury is not necessary, by the ancient principles of the common law; and the constitutionality of the act authorizing summary proceedings against the sheriff and his sureties, on their bond, is sustained upon the ground that trial by jury is not thereby denied; but the plaintiff in error (the sheriff) waived his right to such trial, by not demanding it.”
In Peck v. Critchlow, 7 How. 243, the statute authorizing judgment on bonds for the replevy of property, taken by distress for rent, on motion to the court, is held constitutional; but there is no intimation that the parties are not entitled, upon their demand, to the right of trial by jury.
[310]*310And in the case of Scott v. Nichols, 27 Miss. R. 94, upon a motion bj a surety in a judgment, against his principal, in the Circuit Court, under the statute authorizing summary judgment, while it is held that the act is constitutional, yet the court says, “ In practice the court should never refuse the party the privilege of a trial by jury, if desired.Issues of fact in this class of cases, must be tried as all other issues of fact are tried, in circuit courts, by a jury, which may be impanelled under the authority of the court, for the purpose of ascertaining the truth of the facts upon which this judgment is to be pronounced.”
For a very clear and concise statement of the doctrines of the American courts on the subject, reference may be had to Smithes Commentaries on Constitutional Construction, p. 550, § 383, et sequitur, and cases cited.
Nor are these principles and views at all affected by the cases cited by defendant in error. As in New Hampshire, where their constitution secures trial by jury, “as heretofore 'practised and used,” and it had been “practised and used” nearly a century and a half before the adoption of her constitution, to lay out highways and assess damages by a committee, without the intervention of a jury, it was held that a jury was not necessary. Backus v. Lebanon, 11 N. H. R. 19. The cases referred to, have relation to the peculiar provisions of the constitution and laws under which they are made, and afford no authoritative guide, therefore, in the construction of our constitution.
We shall only notice the fourth exception, to the verdict of the jury of inquest.
The fourth exception states that the jury, in estimating plaintiff’s damages, took into consideration the benefit they supposed would result to him, by reason of said road passing through his land.
This point involves the constitutionality of the eighth section of the defendant’s charter, so far as it requires the jury, in estimating the damages, to take into the estimate the benefits resulting to the owner, by reason of the road running through his land, “ towards the extinguishment of his claim for damages.”
The spirit and policy of our institutions, are at war with the doctrine of legislative omnipotence. Ours is a government founded upon an express, written compact, reduced to exactitude and cer[311]*311tainty, expressive of tbe sovereign will of the people, fixing the limits and marking the bounds of legislative, executive, and judicial powers; our constitutions all originated in a spirit of distrust of governmental power, and from a conviction that, unrestrained, its tendency was to despotism. But, notwithstanding these facts, the legislative and judicial history of this country, especially in relation to these great corporations, or whenever works of great public utility or necessity come in question, chronicles one continued series of encroachments on the rights of the citizen. See Smith on Constitutional Construction, 443 and 490. The people of Mississippi, profiting, or rather intending to profit, by the warning examples Stffouded in the older States (where the limitation upon the ancient power of eminent domain, had only furnished a pretext for evasion), seemed to think they had closed the door against these invasions on the rights of private property, when in their organic laws they declared, “ nor shall any person’s property be taken or applied to public use without the consent of the legislature, and without just compensation being first made therefor.”
But the natural tendency of power and wealth to accumulate inordinately, the strong proclivity of every department in popular governments, to consult the good of the many, at the expense of the rights of the few, here as elsewhere, in all time past, leave but little hope that the utmost caution, formally embodied in written constitutions, will ever secure that perfect protection to individual right, which was designed, and is desired, by the great body of the people. Smith’s Commentaries, § 335.
TIence the great necessity, on the part of the judicial department, to scrutinize well, not only the conduct of the other departments, in cases appealing to it for protection against such encroachments, but especially to guard itself against the natural influences, which the clamors of the. powerful many are • calculated to exert. So that the humblest, weakest citizen, claiming a legal right, may assert it, against the interests or combinations of the many, or the public even, with a full confidence that neither public necessity, public utility, nor public convenience, the pleas of all despotism, shall prevail against a single private right, secured by our constitution and laws.
Premising thus much, in answer to the many precedents which [312]*312may be invoked from other States to invite a disregard of private right here, we will proceed to examine the clause of the charter in question by the light of our own constitution. Smith’s Commentaries, § 335.
The moment then that private property is taken for public use, nay more, “ before any person’s property can be applied to public use” “just compensation” shall “first be made.” The obligation of the State is then immediate; its duty to compensate, becomes a debt, as soon as the amount is ascertained, and its' duty to pay in money, binding. 12 Wheaton, 265, 339 ; Story on tbe Constitution, § 1366. “ In Van Horne’s Lessees v. Dorrance, 2 Dallas R. 313, it was held, that no ‘just compensation’ could be made, except in money." See Smith’s Constitutional Construction, 468, § 315, 318; Angelí on Water-courses, 40; Thompson v. The Grand Gulf R. R. & Bkg. Co. 3 Howard, 249. Money is the only standard of value known' to our constitution. It is not in the power of the State to make anything but gold or silver coin a tender in payment of debts. Stewart v. Raymond R. R. Co. 7 S. & M. 575.
If the State could, under this prohibition, fix, at her pleasure, the character of the compensation by any other standard of value, this provision would be nugatory; for, it would make her discretion the measure of compensation, at last. Smith’s Commentaries, 470, § 318 ; 3 Howard Miss. R. 249.
The “just compensation, first made,” means an 'equivalent in money for the injury or deprivation of right thus inflicted; that equivalent should not only be in money, but should be immediate ; that compensation is the present injury sustained by such deprivation of right, without regard to future or prospective benefits, or to the unreal advantages likely to accrue, on account of the contemplated construction of the road in the future. 2 Kent Com. 415, note.
For the legislature to provide for the assessment of damages by a jury, and then to require of the jury to extinguish the amount of the claim for damages found by them, by prospective railroad benefits, which may never occur, and, in most instances, are never realized, would be a mockery of “trial by jury,” and a “ compensation” wholly unauthorized by the constitution. If the legislature may say that any part of the plaintiffs’ claim for “ compensation” maybe extinguished by the imaginary projection of a railroad in [313]*313space, an air-line, where not a stick of timber or a shovelfull of dirt have been removed, we cannot see by what moonshine standard of value they may not order the jury to extinguish all claims for “compensation,” by the citizen, against these monopolies.
This court has held, in the case of Beatty v. Brown, Opinion Book, not yet, reported, that a party is entitled not only to the cash value of his land, but to indemnity for the damage done to his adjacent land, consequent on the location of the road ; and that too in cash, and not in railroad advantages. See p. 22, Opinion Book.
“ He was entitled to be paid in money. It was clearly as incompetent for the legislature to prescribe in what he should be paid, as to prescribe how much or how little he should receive. Manifestly, a party whose property has been taken and appropriated to public use, in the construction of a railroad, cannot be compelled to receive, as a compensation, the estimated enhancement in the value of his remaining property. The cash value and the actual damage are the true standards by which to determine the compensation to which, in such cases, the party is entitled.”
The rule held by this court is this : that, under our constitution, the owner of the land is entitled to “just compensation” for the damage he sustains, by the application of his land and property to the public use, at the time the public make the appropriation of his private proporty.
The value of that property in market at that time, and no other; and the injury then necessarily known to result to the owner, as the necessary and immediate consequence of such public use of his property, without reference to the uncertain or remote benefits or disadvantages that may or may not occur in the future, is what (in legal contemplation) the owner loses. Whatever is then incapable of definite ascertainment, but rests merely on conjecture, possibility, or probability, dependent on the future, cannot be taken into the estimate by any rule of “just compensation.” It cannot be “just” to award “ compensation” for injuries that may never happen; nor, on the other hand, can it be “just” to compensate present injury, or deprivation of right, by the probable or possible benefits which may result, at some future time, from what is now an admitted injury. 5 Dana Kty. R. 28 ; 7 lb. 81; 9 lb. 114.
[314]*314To saj that the owner shall be paid at any other time; or in anything else than the measure of value known to the constitution; or that he shall receive more or less than the loss or injury then capable of definite inquiry and ascertainment; or that his claim to this “ compensation” shall be extinguished by the probable benefits which, in the future, may result from the construction of a road, which may not be finished in “ sixteen years” (the time limited by the charter), cannot, by any fair interpretation of the constitution, be regarded as “just compensation, first made.” This provision of the charter, therefore, which requires “ the jury, in estimating the damages, to take into the estimate the benefit resulting to such owner by reason of such road passing through his land, towards the extinguishment of such claim for damages,” is subversive of the rights intended to be secured by this clause of the constitution, and to that extent is void.
But again, in the very next section succeeding this clause, in the Declaration of Rights (section 14), it is declared, “ That all courts shall be open, and every person, for an injury done him, in his lands, goods, person, or reputation, shall have remedy by due course of law ; and right and justice administered, without sale, denial, or delay.”
To guard against transgressions of the powers delegated to the three departments of the government — legislative, executive, and judicial — it is, in conclusion, expressly declared, that everything therein contained is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or to the subsequent provisions of the constitution, shall be void. The 1st section of the 2d article of the constitution, thus proceeds to divide the powers of government not thus excepted and reserved, into three “ distinct departments,” and to confide them each to a “ separate body of magistracy,” to wit: the powers that are legislative, to one; those that are judicial, to another; those that are executive, to a third.
It then immediately forbids that any person, or collection of persons, being of one of their departments, shall exercise any power, properly belonging thereby, to either of the others.
The legislature may not, therefore, exercise powers which, in their nature, are judicial; or close the courts, or forestall the citi[315]*315zen, in bis remedy therein, by due course of law, for injuries to his lands or goods. The right of the legislature or the State, by law, to apply the property of the citizen to the public use, and then to constitute itself the judge in its own case, to determine what is the “just compensation” it ought to pay therefor; or how much benefit it has conferred upon the citizen by thus taking his property without his consent; or to extinguish any part of such “compensation,” by prospective conjectural advantage; or, in any manner, to interfere with the just powers and province of courts and juries in administering right and justice, cannot for a moment be admitted or tolerated under our constitution. If anything can be clear and undeniable, upon principles of natural justice, or constitutional law, it seems that this must be so.
The right to decide, whether benefits resulting, or likely to result, to the owner, from a railroad passing through his land, is the “just compensation first to be made,” within the meaning of the prohibition in the constitution; or whether such benefits may be pleaded, as a legal tender, in payment of a debt, or demand, for such “ compensation;” or, as a legal olfset, payment, or “ extin-guishment” of the claim for damages, under our constitution, is.a judicial, and not a legislative, power; one belonging to courts and juries, and not to law-makers, or legislatures, under our system of government. In this view, therefore, it is equally clear and undeniable, that this direction and instruction to the jury, by the legislative power, was an invasion of the powers properly belonging to the judicial department, expressly forbidden by the constitution, and therefore void.
For these causes, we think, the judgment should be reversed, cause remanded, and a venire de novo awarded in the Circuit Court.
See Brown v. Beatty, 5 George, 227.