The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1884-02-05

AT the: time this opinion was rendered Diff
with ours in that 1t required that compens,,;eu
should. bc first" made, but il is plain ,ha, M.
diifrrrncc does not render inappcahle hero ,h;s
dciini'ion Of compensation as il is given w,In",
rciareiis,e tn the time nj which il WAS to he mi"
What is said is that" The judgment is no, CON-,
pcusaisnn."
Conhl language more completely cover = co..
than This language Of these two eminent inr;s,s
does Size present controversy If the statute :
construed To establish claim OF debt and l,.,v'
The parry To his action this clearly is neuac;sn,s
and it il gives Judgment The party mgh, l"|.
his estate without redress. Ii must be borne i
mind, too, that the statute with This constr,o
zion, does not leave the question of solycncv q.
insolvency OF the corporation open Tor enon;,,
IT permits nothing of The kind. Under This con
~truCti'tu any corporation, whether il br solvan,
ar nsnlvent whether all of its franchises and 81,
ol its property. owned At The time of tak;nn
the property oi the citizen, and To he thcre,ne9s
acquired. including the identical property taker
is or not subject to a first mortgage equal ),
lis full value, he citizen must accept the ul
mrnt against il rs the just compensation Of which
the Constitution says no power in The gov.,r
mcnt shall deprive him. We have no ,lonb, .,
all thai that portion of the statute which author
lies the taking OF private property and which We
nave been considering il unconstitutional AMI
void Under these circumstances our duty il 70
at Legislatures and judicial tribunals, and ,lisre.
gard lie statute T." the extent indicated As,n
any nlhcr part OF il we say nothing.
We icivc this branch of this case with an al
lu,inu Ia Il case to which our attention is .s
5ari,lly called by the corporation here. The
case. i; ltlnodgood vs.. The Mohawk and Hudson
X ,llrGa Co. Is Wrnd, Il Chancellor W.
worth ia this case, in his comments upon The ey.
trcisc ii the power OF eminent domain ly the
State or It's agents addresses his remarks in one
,lrc 10 The exercise of the right OF eminent d.
tnain lev the State or its agents for the pnrpo.
III max my public highways or for the use 81 the
Eiaic canals. He there says that the cnmpe,-
Sitinn must be either ascertancd AMI paid 10
tlm before his property is thus appropriated On
an appropriate remedy must be provided and
opon tn adequ .te fund whereby he may obtain
Anch compensation through the medium of The
courts at Justice il those whose duty il is IN
Lake such compensation refuse Ia do So
tie then gives a. an illustration of his views tho
r,mcdv i'll Il case where the town. county or
State officers refuse to do their duty "n ascer
tinin!; raising or paying such compensation in
the mode prescribed 10y law which he SAYS is
by n,andamus to compel them Ia perform their
duiv," lrplding that " the public purse or the prom
ery 81 the town or county upon which The as
s&.ssmcli is To b.. made may justly he considered
an ADEQUATE fund" When, however. he comes
q, consider the case before him, which was tres
pass 1'nre caux,tm frt9h, the alleged respass be-
ing 4 breaking down at plaintiff fence, destroy
il his frees and digging up his soil which is The
G>iury in this caae) his response Ia plea Justify
~ under defendants act of Incorporation with
a. / avcriing that The dtmagcs Ind been regularly
as,csse.. AMI paid, or deposited IN bank to the
cr,nli, II the owner, before entry and appropria-
ten ~ required 10y the charter, his language lulv
stl>ttIns The conclusions we have here reached
f., SAYS the citizen whose property is thus
taken from him without his consent is not bound
10 trust to the sovency OF m individual or even
of IN Incorporated company, for c"rpor llions rs
". "A AS individuals are sometimes unable To pay
al, 1hclr Just debts especially those corporations
vi eli ere authorized Ia incur heavy Responsible
tic. " t,tnh the defendant here is one oi that klnl
:, H. anticipation at the payment of their capital
.y She Subscribers Tor the stock, and II The true
ni.nruction of this charter was such rs is CON
,,n'rI for hv defendants counsel (which
ih,. il authorized the acts complained al before
"a, .mcnt Tor the ian,D" should hold that the
;rnkiSiuu which authorized The appropriated U
the Ointifi ; property To the use al the c"rpnrt
tspr. before the damages had been aSc"rialned
an I,ti1 was unconstitutional ani won't Ihis
+, m:Iat we have been constrained 10 do here
u ole the construction al this road IS matter Of
r.c i Importance to "A large number ot our pea
r}e, Our plain duty requires us To say rs Chan
r.lici Waworth says he would have been con.
~ and To say OF similar act, that the provision
pfliffniZtng AN appropriation OF plaintiffs prop
crrt. here is unconstitutional AMI void
W. think, therefore, thai The granting Of the
rullctirn was proper The only other qaeS
tl4s existing in tins case, rs ii was submitted,
ati>c ont nfthe order "t The chancror dsSolvlug
1; Sc injunction upon the coming IN al the answer
81 t,.rndants From the statement al tn" case il
il s-.n HAT the court dissolved the Injunction
thus granted upon the execution Of bond ap
iJ.,,c,t l.y The court, the condition ot the bond
l@jg that the corporation would pay I" Com
I'll ,iIInnts the compensation 10 winch they may
tc tnr I,7i for the ttking ami appr9W@Hiag@
~ satd rdRrAm cDmintny If any RI tie Lfads q
c..1ali rn,tnis To br thereafter a>c'Ttainrd under
int s,uulr The result oi this acton is that a
rc-4hirv against the will al the owner and lor the
puiposc at appropriation is authorized upon The
s"il!r Of a bond of the character named Could
III. nj lnsIfs recover III an action upon tins bond;
As !, statutory obligation il is void. Could il he
regarded Ms an obligation al common law? See
Vitae vs. :. ~ !. Railroad Co, j3 Cal, 2l2
Tbs. CONT thus in the absence OF any act at the
L;sSl time authorizing this company to eXcrtIse
,,. righi If eminen, domain, in other words 10
take th property ni plaintiff lsain>l his will, All
thp:iZs il To do -, and that too without Just
r,unpcn sation, Tor ~ We h ave seen neither
,,n.i I.,r !, Judgment "l this kind answers this
recruitment of the Constitution in this parllcu-
lax kir rule that Il court oi equity having &c
1t 10 Tire lning ut tall equity between the parties
lulS nu publication here. ThiS matter Is con
trnl,ed hy principl' much morr elementary and
lml.,rtant that ihp>. which concern the mere
rul,7s o. remedial practice in equity. The right
ri c..u, n tSDrv purr hA>r under ihr Constitution
does il,'l .;lach IN AL corporations organized Tor
a ,nIIr.'purpoSr any mare than IL does Ia ndl-
ytlu.i- XI,u propo-t. 10 accomplish a like pubic
nurls.>', an coGrt ri equity lndcPe,drnt oi
legislative Grant tn such corp ration or indlvid
Ial ~ nU more Il Sl%ulic or authoriZs the cor
portilnn Ia exercise such power than 1t can IN
nd; i,lg.u IaVinJ corporate powers "t any
1t can no more grant here tniS night
IT compulsory purchase than IL can the franchise
To b,. a CORPORATION The designation eli the cor
poration ur individual Ia exercise The power, the
granting az the right ol compulsory purchase,
and rht requirement 10 make and the method ol
making lust compensation, are all legislative
t,lnctlpns" and in HE absence Ot legislative ar-
non authorizing these acts The courts are power
ess either through III" instrumenlalltv ol inlnnc
IONS granted or dissolved or otherwise, 10 III
linrizt he ..Xercls. ot such powers. In proper
Asses the courts may and must consiTue
he Constitution, and determine where The
RICH, If the land owner is involved,
whether such power has been conferred ly The
Legislature upon corporation III a c0nstlin-
t,n:l method, and Ia SEE that il Is properly exc
rutta II such mellrod is prescribed With thai
our f"wcr cr.ts, $, tpr il II is not thus gwen |"
liz. i,urpoialion W. clnDOt give ii any more
han the Legislature can enter judgment III
,r nee.liugs other thln thnS, embraced within
Us s"ec,aly granted Judicial powers, such as
np-schmienl AMI trial Of officer OF the gov
.rnmtnt under certain circumstances. ms
the granting ot the right of compulsory puF-
.h;.se) is clearly purely Legislative function
md tue Constitution, article Ill, provides ina
no person properly belonging 10 one OF the de-
Of government shall exercise any