#### Adolphus H. Smith et al. *v.*The Atlantic and Great-Western Railroad Company et al.

The act of April 30,1869, 11 authorizing the building and repairing of levees to protect lands from overflow,” is in contravention of section 19 of the-bill of rights, inasmuch as under its provisions, private property may be appropriated without reference to the public welfare, and also, inasmuch as no provision is made therein for the assessment of compensation by a jury. The body of men provided for in sections 6 and 7 of *92the act, is not a jury within the meaning of the constitution, because they are not authorized to hear testimony, nor are they subject to judicial direction in the hearing of the case, nor in the making up of their finding or report.

Error to the District Court of Clark county.

This was a proceeding before the probate judge of Clark • county, upon a petition filed in his office, by the plaintiffs in error, to appropriate the lands and property of the defendants in error, to build a levee along Mad river, under the act of April 30, 1869, entitled “ an act to authorize the building and repairing of levees to protect lands from overflow.” 66 Ohio L. 73.

The defendant, the Cincinnati, Sandusky and Cleveland Railroad Company, upon being notified of the pendency of the petition, by its attorneys, objected to any order being made in the case, “ because the statute under which said levee is sought to be constructed is unconstitutional,” etc.; and ■claimed damages, in the event that the levee should occupy any portion of its right of way-, or be so constructed as, in any manner, to interfere with its road.

On the hearing before the judge, June 27, 1869, the objection of the Cincinnati, Sandusky and Cleveland Railroad Company was overruled, and viewers were appointed, and directed to perform the duties required of them by the act, and upon the coming in of their report, exceptions were filed thereto by all the defendants herein, who, except the ■Cincinnati, Sandusky and Cleveland Railroad Company, also demanded that their damages be “ assessed according to law,” in the event that the levee should be ordered to be constructed.

The defendant, the Atlantic and Great Western Railroad Company, also excepted to the notice given to it, on account of its insufficiency in law and its unreasonableness in point •of time, which, on the further hearing, on the 3d of August, 1869, were overruled by the judge and the ruling excepted to by the company, and thereupon the cause came on to be further heard on the report of the viewers, which was in *93favor of constructing the levee, and upon the applications-filed for compensation. At this stage of the proceedings,., the defendants objected to the judge determining the question whether the levee ought to be constructed, until the dimensions of the levee, and the damage that would result from its construction were ascertained, so as to enable him to determine whether, in view of the amount that would have to be assessed against the parties in interest, the levee-ought to be constructed. The objection was overruled and" the ruling excepted to by the defendants, and thereupon the judge, being satisfied that the levee ought to be constructed, ordered it to be done upon' the line described in the petition, and appointed an engineer to perform the duties prescribed in the order appointing him, and continued the proceeding for the further hearing of all the-questions involved in it.

On the 18th day of December, 1869, upon the coming in of the report of the engineer, the judge ordered that the-rights and liabilities of the parties interested in the construction of the levee, be ascertained on the basis' of the report of the engineer, and proceeded to hear and determine the questions arising in the case, whereupon the defendants, the Cincinnati, Sandusky and Cleveland Railroad Company and the Atlantic and Great Western Railroad' Company, excepted to proceedings to assess their damages ■ by reason of the levee, or to appropriate any part of their-roads for the same, because:

“1. There is no authority by law to appropriate any portion of their franchise for the occupation or construction of' said proposed levee.

“ 2. Because, even if such authority of law exists, said order does not sufficiently define the rights and interest sought to be appropriated, and is not sufficiently definite • and specific to enable said railroad companies to determine the extent of their damages, or how their said railroad will be affected.

“ 3. Because it is impossible to determine the levee by the • orders heretofore made in, or the prayer of the petition,”"

*94Which were overruled by the judge, who ordered the cause •to proceed to the assessment of damages, to which ruling And decision the companies excepted.

On the final hearing of the cause, no jury having been demanded by any of the- defendants, the judge proceeded to determine their claims for damages, and the exceptions by them filed to the reports of the viewers and engineer, and found that they were not entitled to any damages by reason of the location and construction of the levee; and proceeding to hear the cause, on the petition, found that the location and construction of the levee, as prayed for in the petition, was necessary for the purposes therein stated, and that among other persons named in the record, the defendants herein are benefited thereby, and ought to assist in its -construction, and ordered that the same be constructed in accordance with the survey, plats, and profiles of the engineer and under his supervision *;*that the defendants con-struct the sections of the levee assigned to them respectively; that in addition to building section 11 of the levee, tho A. &G. W. R. R. Co. raise its road-bed two feet above its present height where the same crosses the levee, and that in addition to constructing section 12 of the levee, the C., S. & C. R. R. Co. raise its road-bed two and a half feet above its present height where the same crosses the levee — to which “findings, rulings, and orders” the defendants excepted on -the grounds, “that damages were not allowed to those who made claim thereto, as required bylaw,” and “that the .findings, rulings, and orders of the judge were without authority of law, unjust, and erroneousand moved the court for a rehearing of the cause and reassessment of the dam-ages sustained by the defendants, the railroad companies — . which motions were overruled by the judge, and excepted to by the defendants. Whereupon the defendants filed a petition in error in. the Court of Common Pleas of Clark •county, to reverse the final order and judgment of the probate judge, assigning.for error, among others, the overruling by the probate judge of the exceptions of the defend.ant, the C., S. *&*C. R. R. Co., to any order being made in *95the proceeding, for the reasons and upon the grounds set forth in the exceptions; the overruling of the exceptions of the defendant, the A. & G-. *W.*R. R. Co., and the overruling of the objections made by all of the defendants to the rulings, findings, orders, and judgment of the probate judge in the cause. On the final hearing before the probate judge, the railroad companies named, introduced evidence tending to prove the damages sustained by the roads respectively, by the raising of their road-beds and the building of the sections of the levee assigned to them respectively, which is embodied in a bill of exceptions and made part of the record in the case.

The Court of Common Pleas, on the hearing of the petition in error, found that the act under which the proceedings were had, was unconstitutional, and adjudged that the records, proceedings, and orders made in the cause be reversed and held for naught, and that the defendants in error pay the costs, for which judgment was rendered against them.

The present plaintiffs in error afterward filed their petition in error, in the District Court of Clark county, against' the present defendants in error, to reverse the judgment of the Court of Common Pleas; on the hearing of which the District Court affirmed the judgment of the Court of Common Pleas, to reverse which they now file their petition in' error against the same defendants in this court.

*Keifer &*White, for plaintiffs in error:

I. The rules for determining when a legislative enactment is constitutional are now well settled. *Cin. & W. R. R. Co.*v. *Comm’rs of Clinton Co.,*1 Ohio St. 77, and authorities there cited; *State ex rel. Att’y Gen.*v. *Kennon et al.,*7 Ohio St. 546 ; *Adams*v. *Howe,*11 Mass. 340; *Wellington et al., Petitioners,*16 Pick. 95; Commonwealth *v. McWilliams, 11*Penn. St. 70 ; *Sharpless and others*v. *The Mayor of Phila.,*21 Penn. St. 147; *Lehman*v. *McBride,*15 Ohio St. 573, 591, 592; *Walker*v. *Cincinnati,*21 Ohio St. 41, 42; *Goshorn*v. *Purcell,*11 Ohio St. 641; *Cass*v. *Dillon,*11 Ohio St. 607; *Arm**96*strong*v. *Athens Co.,*10 Ohio, 235; *Baker*v. *Cincinnati,*11 Ohio St. 534, 542; *Evans*v. *Dudley,*1 Ohio St. 437; 1 Kent’s Com. 493 (7 ed.); *Griffith et al.*v. *Comm’rs of Crawford Co.,*20 Ohio, 609, and Appendix A to same volume.

The act relating to establishing, etc., levees, is notin contravention of section 19, article 1, of the constitution of Ohio, which provides that:

“ Private property shall ever be held inviolate, but subservient to the public welfare.”

This provision of the constitution does not undertake to confer power upon the general assembly of the state, but simply prescribes modes for and limitations on its exercise. The power of eminent domain is an indispensable incident of sovereignty and its exercise for the accomplishment of lawful objects is conferred upon the general assembly in the general grant of legislative authority. *Giesy*v. C., *W. & Z. R. R. Co.,*4 Ohio St. 308.

It is confidently claimed that the levee law of 1869 is not in conflict with this or any other provision of the constitution of Ohio, and that it only provides for an improvement when demanded by the *“public welfare." Reeves*v. *Tr. of Wood Co.,*8 Ohio St. 333; *Thompson*v. *Tr. of Wood Co.,*11 Ohio St. 678; *Sessions*v. *Crunkilton,*20 Ohio St. 349.

*Durbin Ward,*with whom was *Goode, Bowman*$* *Scott*for defendant in error :

1. Is the act constitutional? It seeks to clothe the probate judge with power (and without even the intervention of a jury, unless demanded,) to take private property not even for “public use,” but whenever such appropriation, in his opinion, will be “conducive to the health, convenience, or Avelfare of any number of the citizens of said county.” Can such power be conferred ?

Can a judge be constitutionally clothed with power to appropriate property without a jury, if none be demanded, and can a *jury*be constitutionally made an instrumentality *97used by auy tribunal but a court? Is not a jury simply one arm of tbe court?

The 6th and 7th sections of the act provide for a jury where one is required by either party. But if not required by either party, then the.whole proceeding is by the judge alone. If a jury be required, it is to determine and report: 1. Whether it will be conducive to the public health, etc- . . . 2. Whether it is necessary for the protection of property, etc. '. . ' . 3. Amount of compensation, etc..

... . 4. The amount of labor to be performed, etc.

. . *In this case no jury was demanded.*

Is it competent for the legislature to provide that a judge can *assess compensation*instead of a jury? Suppose the owner of the property is absent, and has received no personal notice — notice having been given by publication — is-it competent to take his property from him except on trial by jury?

I insist that it is not. *Compensation must be assessed by a jury.*True it has been held that such compensation may be assessed constitutionally by commissioners or viewers, in the first instance, provided a right of appeal is given to a court in which they may be assessed by a constitutional jury. *Lamb & McKee*v. Lame, 4 Ohio St. 167.

But it is equally true that the appropriation can not be-made unless there be a *law*requiring compensation to be assessed in the mode prescribed in the constitution. 4 Ohio St. 167.

And without such provisions the law is void. *McArthur*v. *Kelely,*5 Ohio, 143; *Foote*v. *Cincinnati,*11 Ohio, 410.

2. But if it were competent, under our constitution, to-appropriate *private property*to the uses contemplated by the statute, has the statute itself provided *machinery*competent to that end and consistent with the constitution ? Even a constitutional object can not be carried out by unconstitutional means. Nor will the court improvise *th&*means of enforcing a statute curtailing private rights, or divesting private property, when the legislature has furnished none, or forbidden ones, whatever it might do if *98the object was to protect private rights or property. The power to impose public burdens upon private interests will not be extended by implication. It is the creature of positive enactment, not of legal intendment.

Whatever right, then, the probate judge might have, under the statute, to make an assessment to build an embankment or levee, there could be no assessment for an object itself not legal, and no levee could exist without ground to ¡stand on, and no such ground can be óbtained without assessment of *compensation*to the owners, by a *jury*acting in *s,*court; for, until the assessment be thus made, no title, ■easement, or right can pass to the public. The action of ¡the jury in fixing the owner’s compensation must be had, therefore, before any assessment by the judge of the costs, fees, and expenses of constructing the levee can have the least vitality, for there can be no legally authorized levee until this indispensable prerequisite has been complied with. But the statute furnishes no machinery competent to call a jury, and therefore no machinery by which the assessment made in this case could be vitalized, even if it was made for *Si*public use.

*Hill*v. *Higdon,*5 Ohio St. 243; *Lamb & McKee*v. *Lane,*4 Ohio St. 167; *Shover*v. *Starrett,*4 Ohio St. 494; *Reeves v. Wood Co.,*8 Ohio St. 33; *Cupp et al.*v. *Comm’rs of Seneca Co.,*19 Ohio St. 173; and *Sessions*v. *Crunkilton,*20 Ohio St. 349, cited by counsel for plaintiff in error, do not sustain their theory, but very strongly, especially the three last-named cases, support our view of this case.

Rex, J.

The act in question authorizes the probate judge of any county in this state to cause levees or embankments to be established and constructed on or along .any stream or water-course in his county, on the petition of one or more persons owning or occupying lands adjacent to the line of the proposed levee,or embankment, and to appropriate private property for the purpose of constructing such levee or embankment whenever, in his opinion, the same will be conducive to the health, convenience, or *99welfare of any number of citizens of the county, or is necessary for the protection of the lands of such citizens, ox any of them, from overflow. The act also directs the manner of giving notice to the owners of lands sought to be appropriated, and of applying for compensation therefor; provides for the appointment of viewers and an engineer, and prescribes their duties; and upon the application of either of the parties in interest, also provides for the impaneling of a jury, who are sworn, faithfully and impar tiálly, and upon actual view of the route of the proposed levee, to report in writing to the court, within five days, unless further time is allowed by the judge:

> *“First.*Whether it will be conducive to the public health, welfare, or convenience, to cause said levee to be located.

> *>“ Second.*Whether it is necessary for the protection of the property of any of the citizens of said county.

> “ *Third.*The amount of compensation due to each person in case the same is located.

> *“ Fourth.*The amount of labor to be performed by each person interested in the construction of the same.”

The mode of proceeding under the act is. as follows: At the time the petition is filed, a day is set for its hearing; and if, at that day, notice has been given to the owners of lands sought to be affected, the judge proceeds to hear and determine the petition, and if satisfied that the levee is necessary for the protection of the lands, or the welfare of the citizens of the county, or any of them, three disinterested z-esident freeholders are appointed to view the premises along the proposed route, and report, within ten days, whether the levee is necessary and ought to be built, and whether or not any person or persons other than the petitioners should assist in defraying the expenses thereof, and the proportion which each ought to pay. If the report is in favor of the construction of the levee, a day is appointed, not later than five days from the filing of the report, for the hearing and determination of applications for compensation, and of arguments for and against the construction *100of the levee. At this hearing, if a jury is not demanded,, and if the judge is satisfied that the levee ought to be constructed, it is so' ordered, and an engineer is appointed to-locate, level, and measure the same, divide it into sections and prescribe the time within which the work shall be completed. If a jury is demanded at the time appointed for its meeting, the judge proceeds to hear and determine-all questions pertaining to the case preliminary to those required to be reported on by the jury, and upon the coming-in of the report of the jury,makes a record of the proceedings and orders the payment of the compensation, and the location, construction, and completion of the levee in accordance with the report of the jury. The act also directs how the costs shall be taxed and paid, and specially provides that “ no order, shall be made for the construction of such levee, or any part thereof, until the full amount ©f compensation for the land appropriated shall have been paid.” It is claimed by the defendants that thi3 act is in contravention of section 19 of the bill of rights in this:

1. That it authorizes the taking of private property for-private use without the consent of the owner.

2. That the jury provided in the act, to assess compensation for the property taken, is not a jury within the-meaning of that section.

Section 19 of article 1 of the constitution of this states reads as follows:

> “ Sec. 19. Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war, or other public exigency, imperatively requiring its-immediate seizure, or for the purpose of making or repairing roads, which shall be open to the public without, charge, a compensation shall be made to the owner iu money, and in all other cases, where private property shall, be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money ; and such compensation shall be assessed by a jury, without deduction for benefits to any property of the owner.”

The first clause of this section clearly prohibits the taking *101of. private property for private use, without the consent of the owner, and the second, quite as clearly prohibits the taking of private property for public use, unlfess provision is made in the act authorizing it to be so taken, for the assessment, by a jury, to the owner, of a compensation, in money therefor, irrespective of any benefits to any property of the owner from the public use of the property so taken ; and hence if it shall be found, that either of the claims urged by the defendants against the constitutionality of the :act is tenable, the entire act must be declared to be void.

The first question to be considered is, does the act authorize the entry upon lands and the location and construction of levees when demanded by private interest merely, without reference to the public welfare? The question, it seems to us, is fully and conclusively answered in the affirmative, by giving to the language used in the act its natural and obvious import. The public welfare is not within the purview of the act, either in express terms or by implicatio i. The action of the probate judge is not limited by the act to cases only in which the location and construction of levees are demanded by the public welfare, *“*but under it, and without infringing any of its provisions, a levee might be located and constructed upon the lands of individual owners, for purposes of private interest merely.” It is claimed, however, by the plaintiffs, that under the act, neither the location nor construction of a levee can be ordered by a probate judge, unless it be first found by him that the same is demanded by the public welfare, and in support of the claim, that portion of the act which enumerates the subjects to be embraced in the report of th'e jury is cited. We have looked in vain through the act, to discover the effect that a finding either way, upon the first two subjects required to be embraced in the report, was intended to have upon the finding and orders of the probate judge, made upon the hearing of the petition and the report of the viewers, both of which precede the impaneling of the jury, and neither of which is predicated upon any other ground that the necessity of such structure *102for the protection of the lands of the citizens named in the petition from overflow, or for the welfare of such citizens, or any of them.

Another question quite as important in its bearing upon the constitutionality of the act as that first considered, is: Whether the body of twelve men provided for, and called a jury in the act, is a jury within the meaning of the constitution ?

The word “jury ” in the section cited, as well as in the other places in which it occurs in the constitution, has uniformly been construed to mean a tribunal of twelve men, presided over by a court, and under its direction hearing' the allegations, evidence, and arguments of the parties, and declaring' the truth upon the evidence submitted, and the law given them by the court.

The jury provided for in this act are not authorized to hear the testimony, nor the arguments or allegations of the parties, do not sit in a court, and are not subject to judicial direction either in the hearing of the case, or in the making up of their finding or report, and hence have none of the attributes of the jury, provided by the constitution, to assess compensation in money for private property taken for the use of the public.

We are therefore of opinion that the act in these respects is unconstitutional and void.

The judgments of the Common Pleas and District Courts are affirmed.

Day, C. J., and McIlvaine and White, JJ., concurred.

Welch, J., not sitting.