The Ottawa free trader. [volume] (Ottawa, Ill.) 1843-1916, 1870-08-13
Railroad Decision Nice Law Points.

through the northern limits of tho city touches
the property of the Hon. J. d. Cation. and the
line, as adopted, seems almost designedly intend
ed to do the Judge as much damage as possible.
II closes the only gate through which he and
Judge Dickey can reach town except by ronnd-
about way, destroys his gate house, and general
ly affects the Judge in a way to be peculiarly
anuYyinr The Judge complains the more earn
esily u, -g,h treatment, because as he contends,
a shorter and better route cou ID have been select
ed, at less mage to private property. Accord
inglg the Judge Ia, made the attempt TO restrain
the comp'nr from passing through his property
by injunction. An application for this purpose
was made to jail e Leland a week ago, and set
for final herring yesterday
Ne sntime, on the 9th of August, the r ,ilroad
Company applied to Judge Leland for the ap.
poin'ment OF commissioners to assess Judge
Cation damages, with view of condemniny the
property under the railroad law. of this state
The application was resisted by Judge Cation, on
tbs ground that the old railroad law is superse.
ded by the separate articles on railroads adopted
with the new constitution, by which the dam
ages must be assessed by a jury. The objection
raises the important question, "when did the
separately submitted sections of the new consti.
sutton go into etfecs:' On that point, Judge LIE.
land has made the following decision: d.
This is an application by the O. 0. & F.R.V
H. H., for the appointment, the 9th of August A.
ID. 1917, of commissioners to fix the compenss.
ton and assess the damages to be awarded TO
John u. Cation for the right of way for the rail.
road through his land; and the appointment is
resisted upon the ground that it is unconstitu.
tional to cause the compensation to be fixed and
the damages to be assessed except BY q jury,
1t is argued that Sec. IA of Art. II of the new
constitution took effect before the applioa ton in
this case was made and this would be 40 il il
took effect either on the 20 of July 1870, or when
| 1t was made to appear That this section had re.
ceived majority of the votes. This section is
one OF the sections from 9th to 10th inclusive re.
iating to railroads in the article entitled, "Cor.
poratlons," which were separately submitted. and
the material part of it is as follows:
"rhe right of trial by jury shall be held in.
violate in all trials of claims for compensation
where in the exercise of said right of eminent
domain any incorporated company shall be in.
terested either for against the exercise of said
rights"
The right to appoint is conceded if this section
did not take effect till August Sth 1870.
The question whether the right OF this railroad
company to have commissioners appointed ia enc
| OF the rights which continue valid under section
one of the schedule until there shall be further
| legislation on the subject not discussed and
1t will not be examined, as the Court has come
to the conclusion that if the proposition "For
the New Constitution" adopted, the clauses
separately submitted become, if adopted, parts
of the new constitution, and take effect with it
and as part of it on the Sth of August 1870
1t is also provided, in Sec. IL of Art 9, that
when private property shall be taken o. dam.
aged for public Use, the compensation, when
not made by the state, shall be ascertained by
jury and that this provision Of Sec. l3 did not
take effect until Augu-t S;h, is indisputable It
follows. therefore that IL the views presented on
the part of the land owner are sound and cor.
rect the same provision III the constitution is
repeated one provisi IL tkng effect August
Stn, and the other at prior point of time Ii
the view OF the Court Is correct, these two SINH.
| lar provisions take effect simultaneously on the
Sth of August, and are in effect consolidated and
merged. 1t would seem that the reason for hav.
Ing the same provision in said Sections Is and
| II respectively Was, that one might be adopted
and the other rejected. And in the opinion of
the Court, If Sec. IA had been adopted and See.
u, as portion of the proposition For the New
Constitution had been rejected, Sec. IA would
have taken effect on the "a day of July, or when
| ~ dptedfcu IhuI there was u majority OF votes
for it; probably on the 2l day of July, when the
voting actually done, though the evidence
that it had so taken effect WAS not discovered
until afterwards, but that il either section 10
alone WAS adopted, or ii both Sections IL and IA
were adopted, it or they, take effect on August
Sth at - M.-that is, that on and after August
Sth 1t or they were operation ~ parts OF the
new constitution.
Ii the propositions separately submitted had
been adopted, and the proposition "for the new
constitution" had been rejected, the separate
propositions, except minority representation, !"
which could never have become part OF the old
constitution, would undoubtedly have had float.
ing claim to Il location somewhere in the old con.
stitution; but where they should have come in,
or where the authority TO locate, adjust and fit
them in, and TO alter and change the numbers of
articles and sections so as to make them harmo.
NOUS parts OF whole, would have been vested,
whether in the courts legislature. future consti.
tutional convention CT the public printer or
whether each re.der would have sand wiched them
in to suit himself, might be difficult to determine.
Unles. the numbers Of articles and sections were
changed, there would be duplicate numbers u
lack of consecutiveness in the numbering of seq
tions, and great difficulty about the order of
arrangement and particularly so AZ to the place
for the words which the adoption of tho PROPOSE.
ton for "three-i.ths vote to remove county
seats" would have rendered it necessary to insert
into the old constitution somewhere not in sec.
ton four ot the article on counties, which can
only apply to the new constitution.
The Specification to be given to words depends
so much upon their order in relation to other
words in the same instrument that this power Of
arranging the order of clauses, sections and art.
| in . m Ia, ho oad