The Montgomery advertiser., 1901-08-18

fhe corporation-s With this in their hAhds Ncorporatfons can bring any fin- dtvfdual who may be in their way to Ats knees. and make him settle upon fhe3r terms. I say 1t is dangerous to Ad0pt any such provision as this; that xt4is wide departure from anything on the past that we. have had, and the only reason on earth forsit is that ore railroad company has delayed un- necessarily another in crossing its right of way where only four dollars and a half was invoived. Now l say ma5be 1t was that, and when you un- dAftake to condemn your right of way over another right of way. then pro- vide if you wish in case like that, that If an appeal is taken and a bond given that. you may so on with the, Tr. Boons+How about ih the case Ot a oity where 1t applies .to municipali- ties. having the power 'to build water works. and it is sought to take water from a stream. and speaking of the ahaendment offered by the gentleman from Jefferson. they compelled them to take it to the Supreme Court and de- layed it for years. Don't you think that the city ought to have the right to 40 ahead and take water from that stream for the people provided it pays thesmoney into court? ite
 Mfr. white-That is a pretty long question. Suppose. my friend, that you have a pitcher of water in. your hand and you are very thirsty and your family are all thirsty, but a great crowd comes running up and say we are covered with dirt and are thirsty and we demand that pitcher of water inSyour hand. Do you think they ought to giyeyi it up? 70
 MT. Boone-DoeyouS think that is fair illustration comparing a pitcher of water with a stream which would SUD- plyta large city of people? .s <.
 Mr. Wf1ite-But, the principle Is the same. If1sthat stream was his you have no right to force him to take less than 1t is worth by telling him that If you don't take it. I will give the bond and, will take you up in court and keep you there indefinitely; you are poof man and you cannot litigate with he. How does that sound? And you know, as thoughtful man and law yef that that is exactly the whip handle that will be used over poor mah. when his property is sought to be taken away from him. .
 MT. Boone-Isn't it your experience as a lawyer bringing cases against cor porations thet on matters of taking property that 1t is exceedingly rare that property is ever put below It's walRe?
 Mir. white-That is true when you get before jury. but when you, are cCntending before your viewers, to which this appeal is to be taken. it is very rarely true. Then I may suggest that the man who is robbed of his home must go out and employ law yer. and provide means to pay that ex- perse. and he must provide some way for his witnesses to get up here, and heis a poor man. and rather than take these chances. he will say, give me anything.
 MT. Smith, (Mobile)-This happens to bessa question that I have, had occa- sion to consider and study. It Is one of the few questions that has come before this Convention that I have had occa- sion to consider fully, and I want to say in tine start that my friend cer- taIfIy has not been in the same posi- ffon that have in this matter, for cer- fairly their arguments are based upon conclusions that are not sustained by any court in the United States as to the operation of this section.
 ii the Constitution of 1879 the only provision in regard to this matter was this: No. person shall for the same offense be twice put in jeopardy of life or, limb: nor shall any persons prop erty be taken or applied to public use, unless just compensation is made therefor"
 You will see 1t is not said that just conpcnsation shall be first" made therefor. Under that Constitution viewers were appointed values wers assessed, and the parties had the right of entry without paying the just com pensation first. The evil that my friend has spoken of, and the gentle x.11,3 from Macon h7S SrOkpu nf fho right of entering and taking the home, I believe. of the barefoot (boys away from him without paying him the amount assessed. was brought before the public, but that did not occur until after the Constitution of 1861. and on account of these evils the gentleman has spoken of, the. provisions were changed in the Constitution of 1868. In Section 25. Article I. of the Constitution of 1868 1t was provided:
 That private property shall not be taken or applied for public use. unless just compensation be made therefor: norashall private property be taken for private use, or for the use of corpora tions, other than municipal, without the consent of the owner: provided, however, that laws may be made 'se- curing to persons or corporations the right of way over the lands of either persons or corporations, and for works of Internal improvement. the right to establish depots, stations and turn outs, but just compensation shall in all cases be first made to the owner"
 Now that is the first time that the provision was made anywhere .n the Constitutions of Alabama that the compensation should be first paid to the owner. Under that provision it was held that there could be no jCdg ment of condemnation and no grant by,a court of the right of entry upon property, until the amount of damages assessed was paid to the owner, or paid into court. ut want to say that the Constitution of Alabama Is not the only Constitution in the United States in ewhich these provisions are found. That provision that private property shall not be taken until just compersa- tion Is first paid to the owner, is found in nearly }every Constitution of the United States, and there is no express provision in any of the other Consti- tutions for an appeal from that Jrdg- ment; but in all of the other States there are statutory provisions pfoVid- ing that from such a condemnation there may be an appeal to a jury, and the question has arisen whether of not an entry can be made between the time of the first condemnation anl the trial by that jury, and the courts throughout the breadth and length of this land have held that under that