St. Louis & San Francisco Railway Co. v. Evans & Howard Fire Brick Co.

85 Mo. 307

• Court: Supreme Court of Missouri
• Decided: October 15, 1884
• Status: Published

Opinion

Sherwood, J.

The case is this: On the eighth of June, 1883, the St. Louis and San Francisco Railway Company filed its petition to have certain lands, belonging to the Evans & Howard Fire Brick Company and the Missouri Fire Brick & Clay Company, condemned for the use of the railway company, under the statute in such case made and provided. The defendant, Austin R. Moore, was made a party merely as a trustee in a ■deed of trust made by the last named defendant to secure one of its debts. Summons was issued the same day, and duly served; and on July 6, three commissioners were appointed to assess the damages. On the twenty-second day of August, the commissioners filed two reports; two of the commissioners assessing the damages of the Evans & Howard Company at $50,000, and the other commissioner assessing them at $4,000; and two also assessing the damages of the Missouri Fire, etc., Company at $25,900, the third commissioner placing the amount at $12,000. On August 23, 1883, notice was given of the filing of the reports, which was served on the twenty-seventh, and on the thirtieth of August the railway company filed its exceptions to the.reports of the commissioners, and on the same day paid to the clerk of the court the amount of the damages assessed to the several companies. The exceptions were in part based on the grounds that the award of the commissioners was largely in- excess of any fair or just compensation for the damages which would be caused by the construction of plaintiff’s road, and that the damages assessed were imaginary and speculative. On September 17, the parties appeared, and the railway company moved to have its exceptions to the report heard; the defendants moved for payment to them of the amounts paid the clerk, and thereupon the motion of plaintiff for hearing of exceptions being submitted to the court, and the plaintiff then, in open court, admitting that since making the payments to the clerk of the court, and in virtue of such payments for the defendants, it had taken possession of the property of said defendants described in the petition and the report of commissioners herein, the court overruled said motion for hearing of plaintiff, and struck out the exceptions aforesaid.

The court sustained the motions of defendants and ordered the clerk to pay over to the defendant companies the several sums assessed and theretofore paid into the court. The railway company immediately filed its motions to set aside said orders of payment and the order striking out the exceptions, and for a re-hearing of said matters, and these motions were then and there overruled. Again, on the eighteenth of September, the railway company filed its motion for re-hearing as to awards, and this was overruled. To all of these several acts of the court, exceptions were duly preserved. Nothing more having in the meantime appeared of record, on September 19, the bill of exceptions was filed, and the railway company filed its affidavit and application for appeal, and the appeal was allowed. Thereupon the railway company filed its several appeal bonds, one in the sum of $110,000 for the Evans & Howard Company, and one for the Missouri Company in the sum of $55, - 000 ; these were approved by the court. Thereupon the defendants severally demanded the delivery of the several sums paid by the company into court. This demand was refused by the court, on the ground that the appeal bond operated as a stay of the payment of said money; and the court, of its own motion, further directed, that pending the appeal, said sums of money should be retained by the clerk for investment or safe keeping, as the court might thereafter direct. This appeal was, under the law, returnable to the March term of the St. Louis court of appeals. On the first day of that term the defendants united in a motion to dismiss the plaintiff ’s appeal, and this motion was .sustained by the court, of appeals. The present writ of error was then sued out, and an order of supersedeas obtained, the plaintiff filing in this, the Supreme Court, its appeal bonds for the several defendants in- respective sums, more than double the assessments, and with approved sureties.

' This being the state of facts presented by this record the defendants have moved to vacate the order of supersedeas and to dismiss the writ of error. These-motions will now be considered, and in considering them 1 deem it best to consider not only the action of the court of appeals in dismissing the plaintiff’s appeal, in consequence of which this writ of error was sued out, but also to consider the merits of the controversy. Indeed, the merits of the controversy are so closely interwoven with the merits of these motions, that the discussion of the one involves to-a considerable extent the discussion of the others.

Section 3710, Revised Statutes, 1879, provides that: “Every person aggrieved by any final judgment or .decision of any circuit court in any civil cause, or by any such judgment or decision of the St. Louis court of appeals * * * may make his appeal to the court having appellate jurisdiction of such judgment or decision.” This court has ruled in State v. Lewis, 76 Mo. 370, that under the provisions of that section and of section 3713, an appeal with a statutory bond would ■operate as a supersedeas, where the judgment appealed from awarded a peremptory mandamus, and that those .statutory provisions, subject to the conditions contained in those sections, apply to every civil cause, no matter what the judgment may be, and that consequently proceedings by mandamus were included within those provisions. And writs of error, under section twelve of article six, of the constitution, are authorized to issue from this court to the St. Louis court of appeals—in all cases involving the construction of the constitution of this state, etc. Section fifteen of the same article provides that, “All laws relating to practice in the Supreme Court” shall apply to the St. Louis court of appeals, etc. And section 3743, Revised Statutes, 1879, declares that writs of error are writs of right, and shall issue, of course, out of the Supreme Court to the Gircuit court in vacation as well as in term, etc. And §§ 3756, 3757, 3758, 3759, make provisions whereby a writ of error may be sued out, and that a bond may be given under similar conditions and with similar effect as in ordinary cases of appeal. While section 3785, a new section, carries into effect the constitutional provision aforesaid by providing that the provisions of c ‘ the chapter regulating the practice in the Supeme Court, shall apply to practice in the St. Louis court of appeals. * * * And all cases taken to or from the St. Louis court of appeals by appeal or writ of error shall be governed by the provisions of this chapter, regulating the taking of cases by. appeal or writ of error to the Supreme Court,” etc. And the laws of 1883, page 111, amending section 3126, Revised Statutes, 1879, ■when considered in connection with other statutory provisions already noticed, fully authorizes a judge of this court, when it has adjourned for more than one day, to inspect the record in a cause and to allow a writ of error to stay execution upon the usual terms. The order in this cause made by the circuit court was a final order, upon which an appeal or writ of error would lie.

Our reports furnish frequent instances where appeals have been taken in condemnation proceedings. Railroad Co. v. Lackland, 25 Mo. 527; Hannibal Bridge Co. v. Shaubacher, 49 Mo. 555; Ring v. Miss. Bridge Co., 57 Mo. 496; Railroad Co. v. Campbell, 62 Mo. 585. The appeal was taken in the circuit court from the action •of the court in striking out the plaintiff’s exceptions; < and the order of the court that the clerk pay over to the •defendant companies the sums assessed and paid into court. At an early day in this state it was held a writ of error would lie to the action of the trial court upon a motion requiring a sheriff to pay over money in satisfaction of an execution. Wise v. Darby, 9 Mo. 132. To the same effect are Slagel v. Murdock, 65 Mo. 522, and cases cited. And the dismissal of the appeal of plaintiff by the court of appeals was, also, a final order or judgment from which an appeal will lie, or which will authorize a writ of error to issue. Matter of N. Y. Cent. & H. River Railroad Co., 60 N. Y. 112 ; Pearson v. Lovejoy, 53 Barb. 407; Hammond v. Carpenter, 29 How. Pr. 43. And it is apparent from an inspection of the records and of these motions, and of the action and opinions of the court of appeals, both in the present ©ase and the mandamus case, which has been argued in connection with this one, that the questions at issue do involve a construction of the constitution of this state, and, therefore, this cause, aside from other considerations, falls within our appellate jurisdiction. But it is strenuously urged, in support of 'the motion to dismiss the writ of error, that such writ can only be brought by one who has been “ aggrieved ” by the judgment. Just this position was taken by the court of appeals when it dismissed the ajopeal of plaintiff, citing in support of its-ruling Kinealy v. Macklin, 67 Mo. 95.

It is doubtless true that a party, under the terms of the statute, is not entitled to an appeal unless aggrieved” by the judgment (R. S., 1879, sec. 3710), i. e., that a party cannot appeal from a judgment altogether-in his own favor, and the same rule holds as to suing-out writs of error. This was Kinealy’s case; he obtained judgment of reversal in general term and then appealed therefrom, not because there was any error committed against him, but because general term did not go further and enter an affirmative judgment in his favor. Here, however, the very point in dispute is-whether the plaintiff is aggrieved or not; whether a judgment can be truly said to be in favor of a party* against whom it goes, compelling it to pay, if the minority report be correct, $50,'000 to one of these defendants, where in common fairness and common honesty but $4,000 should be paid.* Such a wide difference in valuations, would seem to argue either gross ignorance, or else gross partiality, and there seems no escape from-one or the other of such distasteful conclusions. On a former occasion where commissioners, appointed to appraise property for railroad purposes, had disregarded their duties, and had assessed the damages in favor of the land owner at an excessively large sum, this court pointedly rebuked the commissioners for dereliction of' duty and reversed the judgment. Railroad Co. v. Campbell, 62 Mo. 585. So that, on this portion of the cause, the plaintiff may, with much force of reason, say that it is not greatly benefited or favored by the action of the-trial court, which refused to hear its exceptions, and yet ordered the’ money to be paid over to the defendants; money which was paid into the hands of the clerk under the very terms of the statute, and on the faith that those-exceptions would be heard before any other step would be taken. Surely these circumstances attendant on the payment of the money to the clerk, give not the faintest token of acquiescence in the award of the commissioners. Construed as a whole, as all such transactions should be, they amount in their sum total but to this : that the railroad company was willing to take' the land and to pay for it; to enter upon the land and to construct its road, reserving to itself, as under the statute it might lawfully do, the right to have tested and examined by the court, the question whether the full compensation, already beyond the control of the company, already in the hands ■of the court, already in custodia legis, was not more than iijust compensation,” for the land. Such acts on the part of the railroad company have about them no more of the similitude of waiver or acquiescence than similar acts on the part of the land owner in Evans’ case, 64 Mo. 453, where he exhausted his statutory remedies in resisting’ the taking of his land for less than it was worth, and finally enjoined the railroad company until that it should pay him the damages allowed on the ■second assessment. Further comment on this branch of this case is unnecessary, and the motion to dismiss the writ should be denied.

I pass now to the consideration of the motion to yacate the order of supersedeas. It would seem necessarily to follow that if the writ of error was not improvidently issued, that the supersedeas indorsed thereon was but an incident to that “writ of right.” And viewing the matter in this light, I might well pause here and refrain from discussing those matters which touch the heart of this cause; but inasmuch as under the ruling just announced the judgment should be reversed, because of the unwarranted action of the court of appeals in dismissing the appeal of plaintiff; and as those matters will have to be determined on the return of this cause, I deem it not improper to discuss them. Now, as to the order of supersedeas which defendants have moved to vacate: It is said that order is in contravention of the constitutional rights of the defendants, and this declaration comprehends also the" action of the circuit court in accepting a bond when granting an appeal. Let us examine this point: Section twenty-one of article two, of the constitution provides : “That private property shall not be taken or damaged for public use without just compensation. Such compensation shall be ascertained by a jury or board of commissioners of not less than three freeholders, in such manner as may be prescribed by law, and until the same shall be paid to■ the owner, or into court for the owner, the property shall, not be disturbed or the proprietary rights of the owner therein divested.”

An eminent jurist and author speaking in regard to constitutional construction has said: “Every word employed in the constitution is to be expounded in its plain, obvious and common-sense meaning, unless the context furnishes some ground to control, qualify or enlarge it. Constitutions are not designed for metaphysical or logical subtleties, for niceties of expression, for critical propriety, or for the exercise of philosophical acuteness or judicial research. They are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use and fitted for common understandings. The people make them, the people adopt them, the people must be supposed to read them with the help of common sense and cannot be presumed to admit in them any recondite meaning or any extraordinary gloss.” Í Story Const., sec. 451.

Taking this statement as one of the criteria of what-is proper in constitutional investigations, let us consider the section of the constitution just' quoted. In the first place, it would be doing violence to all known rules of interpretation to assume that those who framed and those who by their votes adopted our constitution, were actuated by no intelligent purpose in that behalf. On the contrary, it must be assumed that they were famxlin.r with the vicissitudes incident to condemnation proceedings and with the statutory provisions relating thereto j familiar with the fact that sometimes the land desired to be taken is not appraised at a sufficiently large sum, and, therefore, the land-owner files his exceptions; familiar with the fact that sometimes such land is appraised and the damages of the owner assessed at an exorbitantly large sum, and, therefore, the corportion, desiring to appropriate the land, files its exceptions ; familiar with the fact that contests arise on. the hearing and trial of these exceptions, and that frequently appeals are taken by the unsuccessful party to the court of last resort, to the end that the litigated matter may be finally adjudicated ; familiar with the fact that such appeals cause delay ; familiar with the fact that it concerns the public welfare that the enterprise of railroad building should not be retarded, and cannot be retarded without injuriously affecting the interests and prosperity of large communities in this state ; familiar with the fact that in order to determine what the land proposed to be taken is worth, and how much the owner of it will be damaged by the taking, an imperious necessity exists that the precise strip of land required, its dimensions, etc., should first be ascertained, and that such strip should be marked out and sufficiently designated in order that those appointed to appraise it and assess the damages accruing to the land owner, can intelligently perform their work after they shall have “ viewed the property.” Taking all these things into consideration, as must be-presumed to have been done by the framers and adopters of our constitution, it does not seem difficult to reach a correct conclusion as to the meaning of the words employed. If the words, “paid to the owner, or into court for the owner,” be taken in a-literal sense, it cannot be doubted that the plaintiff company has brought itself within the very terms and letter of the organic law ; the money has been “paid * * * into court for the owner.” But grant that the words are not tobe taken literally, and the result is not changed, if they are to be taken in their “usual and most known signification” (1 Sto. Const., sec. 400), taken in the light of an intelligent purpose prompting those who used and those who adopted them. Viewed in this light, it is easy to discern the object contemplated by those who employed them and the reason they were employed. The very fact that they were employed, in and of itself, discloses a knowledge, on the part of the framers of the constitution, of the frequent necessity, arising in the progress of condemnation proceedings, of paying money 11 into court for the owner,” there to await the ultimate determination of the suit. If these words are held to have this meaning, such meaning will not be a strained or forced one, but a meaning which, considering the surroundings of those who framed the organic law, and were doubtless aware of the law as it stood and of the force and effect of the words used, will be most obvious and natural.

It has been suggested, however, that “the clause permitting payment into court for the owner, was evidently intended as a provision for cases where the owner might refuse payment when tendered, or might be unknown or not sui juris.” This view, so far as it goes, is in entire accord with the one already expressed; for the language is broad enough to cover every possible contingency which necessitates the payment of money into court, or its retention to abide the result of litigation. But that language cannot be restricted to the cases of a recalcitrant, unknown or not sui juris land owner. To narrow the language thus, to limit its scope to those particular instances alone, would not be warranted, were the words taken either in their literal or their ordinary sense. The reason which would thus restrict them is by no means apparent; and if the constitution will permit a railroad or other corporation to make a payment into court for an obstinate or unknown owner, or one not sui juris, and thereupon to enter on the land and construct its road, it is difficult to see why the payment of the money to the clerk in that case, attended, as it would be, with all the hazards of loss that it would in any other, from embezzlement or otherwise, is not as obnoxious to ■constitutional objections as though the payment were made as in the present case; made to await judicial action upon the exceptions filed in the cause, in order to have a judicial determination whether the amount allowed by the commissioners does not exceed that “just compensation”, which the constitution so emphatically guarantees. That guaranty only extends over and only includes “just compensation” and no more, and was never intended to countenance arbitrary assessments or •exorbitant exactions. To rule otherwise, to hold that the framers of the constitution were less solicitous of the rights of the money owner than they were of the land owner, is to impugn either their .wisdom or their justice. It will have been observed, from the discussion heretofore had, that intimation has already been given as to the meaning of the words,' “ the property shall not be disturbed” etc. It must be quite -obvious that these words are not to be taken in a literal sense, at least so far as concerns preliminary steps looking to the condemnation of property, because if such rigidity of meaning be attributed to them, it would be out of the power of a railroad, or municipal corporation, to take the necessary initiatory steps to ascertain what land would be required for the purpose in view. To this point of the investigation, therefore, the familiar maxim applies : “Lex non intendit aliquid impossibile.” The reason of the law in such cases should prevail over its letter, and general terms should be so .limited in their application as not to lead to injustice, oppression, or an absurd consequence, the presumption being indulged that the lawmakers intended exceptions to language which otherwise would lead to such anomalous results. United States v. Kirby, 7 Wall. 482; People v. McRoberts, 62 Ill. 38 ; Fusz v. Spaunhorst, 67 Mo. 256.

This point, however, has become measurably unimportant, owing to the subsequent shape the proceedings instituted ha,ve assumed, but in any event,- if the meaning I have ascribed to the words, “paid * * * into court for the owner f be the correct one, the command, of the constitution as to that point had been fully complied with prior to those things which gave origin to the appeal. It will have been observed, also, that the section of the constitution under discussion, declares “such compensation shall be ascertained by a jury or a board ’ of commissioners of not less than three freeholders, in such manner as may be prescribed by law.” Since the adoption of the constitution, the general law on the-subject of condemnation of land, has undergone revision, but virtually remains, in all essential particulars, the same as before. The sections of the statute referred, to, material to be quoted, are as follows :

“Sec. 892. In case lands or other property are- ’ sought to be appropriated by any road, railroad * * * or other corporation created under the laws of this state,, for public use, and such corporation and the owners cannot agree npon the proper compensation to be paid * * * such corporation may apply to the circuit court of the county where said land or any part thereof lies, or the judge thereof in vacation, by petition, setting forth the general directions in which it is desired to construct their * * * railroad * * * over such lands, a description of the real estate or other property which the company seeks to acquire, the names of the owners thereof, if known, * * * and praying the-appointment of three disinterested freeholders as commissioners, or by a jury, to assess the damages which such owners may severally sustain in consequence of the establishment, erection and maintenance of such * * * railroad * * * over such lands * * *”

Section 893 provides how summons shall be issued and served.

“ Sec. 894, The court, or judge thereof iu vacation,, on being satisfied that due notice of the pendency of the petition has been given, shall appoint three disinterested commissioners, who shall be freeholders, * * * to: assess the damages which the owners may severally sustain by reason of such appropriation, who, after having viewed the property, shall forthwith return, under oath, such assessment of damages to the clerk of such court, setting forth the amount of damages ; and should more than-one owner be included in the petition, then the damages allowed each shall be stated separately, together with a specific description of the property for which such damages are assessed, and the clerk shall file said report and record the same in the order book of the court; and thereupon such company shall pay to the said clerk the-amount thus assessed, for the party in whose favor such damages have-been assessed ; and on making such payment it shall be lawful for such company to hold the interest in the property so appropriated for' the uses aforesaid ; and, upon failure to pay the assessment aforesaid, the court may, upon motion and notice by the party entitled to such damages, enforce the payment of the-same by execution, unless the said company shall, within-ten days from the return of such assessment, elect to-abandon the proposed appropriation of any parcel of land by an instrument in writing to that effect, to be filed with the clerk of said court and entered on the minutes-of the court, and as to so much as is thus abandoned, the assessment of damages shall be void.”

“Sec. 896. Upon the filing of such report of said commissioners, the clerk of the court wherein the same is filed shall duly notify the party whose property is affected, of the filing thereof; and the report of said commissioners may be reviewed by the court in which the proceedings are had, on written exceptions, filed by either party in the clerk’s office, within ten days aftes the service of the notice aforesaid; and the court shall make such order therein as right and justice may require, and may order a new appraisement, upon good cause shown. Such new appraisement shall, at the request of either party, be made by a jury, under the supervision of the court, as in ordinary cases of inquiry of damages ; but, notwithstanding such exceptions such company may proceed to * * * construct said road or railroad ; and any subsequent proceedings shall only affect the amount of compensation to be allowed. In all cases, arising under the provisions of this article, the report of commissioners, when signed by a majority of them, shall be taken and considered as the report of all.”

As the legislature has revised the general law in regard to condemnation of land, it will be presumed that their attention was directed to the subject of the necessity of conforming that law to the constitutional provisions, and such revision must be regarded as a legislative construction of that section of the constitution under consideration, and that the general law is in conformity thereto. ' Groves v. Slaughter, 15 Pet. 449 ; Fusz v. Spaunhorst, supra. This legislative exposition is entitled to some weight, as the authorities show, and the courts may with some confidence repose upon the conclusions reached by the legislature (Cooley on Const. Lim. 219), and the statute, is to be viewed pro hae vice, in the same light as though the legislature had enacted a new statute in compliance with constitutional requirements, and had prescribed by law the manner in which the compensation for land taken shall be ascertained—by three freeholders, acting in the capacity of a jury or as commissioners. Prima facie this law is constitutional; prima facie it conforms in all essential particulars to the organic law, and the well known rule of construction applies here, that a statute is not to be presumed repugnant to the constitution, until such repugnancy is made to appear beyond a reasonable doubt. Yague conjecture and slight implication will not meet the requirements of this rule, and “as a conflict between the statute and the constitution is not to be implied, it would seem to follow where the meaning of the constitution is clear, that the court if possible must give the statute such a construe-Mon cos will enable it to have effect.'’’ Cooley’s Const. Lira. 218, 219, 220.

After a very careful examination of the section of the constitution before quoted and a comparison of it with the statutory provisions already set forth, I have been unable to discover any necessary incongruity or repugnancy between the constitution and the statute. The statute must, therefore, on the grounds stated, be held prima facie valid, and that the manner which it prescribes for ascertaining the compensation to be awarded to a land owner as possessed of equal validity. The manner in which the jury or commissioners shall ascertain the quantum, of compensation is left entirely to the legislature; that manner or method prescribed may well include all the necessary details of motions and exceptions to the insufficiency or the exorbitancy of the amount' of damages assessed, and the appointment of new commissioners or another jury ‘ ‘ as right and justice may require.” There - is certainly nothing repugnant to the constitution in prescribing such details ; on the contrary, it is in furtherance of the constitutional mandate requiring that “just compensation” be made. This embraces all means necessary to that end, not inconsistent with the constitution. Nor is any incongruity apparent be- ' tween the different sections of the statute. In Ring v. Mississippi Bridge Company, 57 Mo. 496, it was ruled that section 3, which now corresponds with section 894, and section 4, which now substantially corresponds with section 896, should be construed together, and that the corporation, having paid the money to the clerk for the owner, might still except; but notwithstanding such exceptions, having made full compensation, as aforesaid, might still proceed with the construction of the road and the subsequent proceedings would only affect the amount of compensation to be allowed. It is, perhaps, unnecessary to say, at present, what force and effect are to be given to the last clause of section 894, supra, in relation to issuing execution against the corporation for the dam•ages assessed. It seems to be an independent clause, a cumulative remedy, and the owner is not called upon to rely on it for his compensation; that is secured to him in another way.

The clause rather seems intended as a spur to the diligence of the company, compelling an election in' writing within ten days after the return of the assessment, whether the proposed appropriation of the land •shall be abandoned, and in default of such written election within the designated time, that then execution shall ■issue for the amount assessed. Sometimes a statute is ■unconstitutional in part and constitutional as to the residue, and if the unconstitutional part is not inseparably connected in substance with, that which is valid and complete in itself, and capable of being executed in conformity with the apparent legislative intent, regardless •of that which is rejected, the unconstitutional part may be regarded as stricken out. Cooley’s Const. Lim. 211, '212. As this clause is apparently an independent one, not necessary to the complete enforcement of the other provisions of the statute, it is not thought that it affects the validity of the other provisions. But granting that the whole statute oh the subject under consider•ation is constitutionally invalid, what then ? Are the rights of the plaintiff to be sacrificed on the altar of ■mistalce ? Is it to suffer because it has in all confidence relied on the validity of a statute, with whose terms and provisions it has made literal and exact compliance ? I hold not. To hold differently would be to make the •statute, itself, a pitfall and a snare. It seems to have been thought that the plaintiff having paid its money into court for the owner, having filed its exceptions to the exorbitancy of the damages assessed against it, and then taken possession of the land in compliance with the statute, under the belief that its exceptions would be heard, and that the court, doing what right and justice would require, would so reduce the unwarranted amount ■assessed that it would fall within the limits at “ just compensation.” is in some way estopped from asserting its rights, as expounded, in the statute and in the constitution. It is sufficient to say that if the statute be im valid “the doctrine of estoppel is totally inadmissible in the case.” South Ottawa v. Perkins, 94 U. S. 260; State v. Railroad, 31 Ark. 701. If, on the other hand, the statute is valid, it is so because it conforms to the constitution. So that in either case the rights of the plaintiff will not be jeoparded.

The statute authorizes “ either party ” to file exceptions, and the plaintiff company .had the unquestionable right to rely upon that statute as valid so far as taking any steps which the statute authorized. And all the steps taken by it are to be viewed as a whole and not by piecemeal; the payment of the money and the taking possession of the land are to be considered in connection with the exceptions then on file. Ring v. Bridge Company, supra. The act of the plaintiff company cannot be severed in this way, made valid in part and void in part; void in so far as it works in its favor, and valid in so far as it works against it.

I have deemed it unnecessary to quote from or notice In this opinion, the great array of authorities cited by -counsel. Many of them, owing to different constitutional and statutory provisions, and the different circumstances under which the various cases arose, have but little, if any, bearing upon the case at bar. I will, however, notice a few of them. The case of Meily v. Zurmehly, 23 Ohio St. 627, only turns upon the breach -of the bond of the probate judge, by the retention of the money in his hands paid to him as the result of certain condemnation proceedings. Under the old law he would have had the right to have retained the money pending the appeal—but under the new law of 1872, he had no such right unless a new trial were granted, and there was none granted, and for this reason alone, his reten ■ fcion of the money was unwarranted, and constituted a breach of the conditions of his bond. But no question was made in that case as to the validity of the old statute which allowed the corporation to pay into court the amount of the judgment and then to enter upon and appropriate the property, notwithstanding the pendency of proceedings in error. And the constitution of Ohio, on this point, is a literal copy of that of Kansas, with the exception of the word “first” occurring just before the word “secured.” The case of Wagner v. Railway Company, 38 Ohio 32, is no more in point; the question, there being, as Johnson, J., states, whether property condemned could be appropriated by paying the amount into court required by the verdict, unless a' judgment were rendered on that verdict, and it was ruled a judgment was necessary; and, besides, the statute in that instance gave no right to appropriate the property pending the second trial. The case of Redman v. Philadelphia Railroad Company, 33 N. J. Eq. 165, was one where the constitution in express terms declared that “individuals, or private corporations, shall not be authorized to take private property for public use without just compensation first made to the owner.” And it was very properly held that a statute which authorized a payment of money ‘‘ into court,” was not in harmony with the constitution. But in Iowa, where the constitution provides that “private property shall not be taken for public use without just compensation first being made or secured to be made, to the owner thereof, as soon as the damages shall be assessed by a jury,” under a statutory provision similar to our own as to taking possession of the land and constructing the road upon payment “to said sheriff for the use of said owner,” and under which provision either party had the right to appeal from the assessment, it was ruled the statute was constitutional, Day, J., remarking: “The property is not taken, in. an absolute sense, until the amount assessed upon appeal is paid. If the appellate jury, in this case, shall assess less than the sheriff’s jury have assessed, the amount is secured to the plaintiff, being in the sheriff’s hands; if they shall assess more, the plaintiff can, by injunction, prevent the absolute appropriation of his property, until the increased sum be paid. Richard v. Des Moines, etc., Railroad Company, 18 Iowa, 260. In either event, the land owner is fully protected. We are clearly of the opinion that the money paid the sheriff should remain a deposit in his hands, until the damages are finally assessed in the appellate court.” Peterson v. Ferreby, 30 Iowa, 327.

So, also, in Kansas, the constitution provides : “No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money or secured by a deposit of money, to the owner.” The statute there is substantially like our own as to taking possession of the land by the corporation and constructing its road, notwithstanding the amount assessed as damages is in litigation, and Brewer, J., in an elaborate opinion, speaking for the court, reviewed all the prior cases in-that state, and held the statute valid, remarking, in conclusion: “We have given this question the fullest consideration, and our conclusion upholds the validity of this statute. We think the constitutional guaranty has been satisfied by it, both in letter and in spirit; that the rights of tíre land owner are protected, and at the same time no unreasonable obstruction placed in the way of railroad enterprises.” C. B. IT. P. Ry. Co.. v. A., T. & 8. F. Ry. Co., 28 Kansas, 453.

It only remains to say that for the foregoing reason^ the judgment should be reversed and the cause remanded in order to be proceeded with in conformity with this opinion.

All concur, except Norton, J., absent.