Ryan, C. J.
This case turns upon the validity of the proceedings and award of the commissioners set up in the supplemental answer of the respondent.
The language of the respondent’s charter, ch. 540 of 1866, secs. 10, 11, is similar to that of the West Wisconsin Railroad Company, considered in Bigelow v. Railway Co., 27 Wis., 478" court="Wis." date_filed="1871-01-15" href="https://app.midpage.ai/document/bigelow-v-west-wisconsin-railway-co-6600631?utm_source=webapp" opinion_id="6600631">27 Wis., 478. In that case, the charter was upheld on the ground that the provision for the payment of the value of the land talcen was equivalent to the just compensation of the constitution. That case, therefore, controls the validity and construction of the charter of the respondent in this case. But though the court is able by construction to sustain charters using such peculiar and obscure language, ut res magis valeat guam pereat, it by no means follows that the circuit court was right *165in using the same language in the appointment of commissioners of appraisal. It certainly would bave been safer and better if the order of appointment bad given, not only the language of the charter, but also, by way of direction to the commissioners, the construction put upon it by the court; so "that the commissioners might bave before them a full expression of the rule of appraisal, and not be left to discover by construction the precise conditions of their duty in that behalf. It is impossible to read this record without being strongly impressed with apprehension that the commissioners not unnaturally mistook the full measure of their duty; and that they confined themselves very much to the literal value of the land taken by the respondent, without properly considering the damages accruing to the residue of the appellant’s land. The manner in which the order of appointment literally followed the charter, and was apparently followed in turn by the commissioners, tends to make the legislature in passing such a charter, and this court in giving it a construction to sustain it, parties to a gross wrong to those whose lands may have been taken and appraised under it. The order of appointment, in this regard, is not unlike a charge of the court to a jury on the rule of damages; which shoifid be not only technically correct, but clear and explicit to the comprehension of laymen. Hutchinson v. Railway Co., 37 Wis., 582" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/hutchinson-v-chicago--northwestern-railway-co-6601798?utm_source=webapp" opinion_id="6601798">37 Wis., 582, and cases there cited. We could not well forbear saying so much on a matter of such grave and general moment.
This court held in Moore v. Railway Co., 34 Wis., 173" court="Wis." date_filed="1874-01-15" href="https://app.midpage.ai/document/moore-v-superior--st-croix-railroad-6601406?utm_source=webapp" opinion_id="6601406">34 Wis., 173, that the general railroad act of 1872 furnishes the rules and methods for the acquisition, thereafter, of private property by railroad companies, in the exercise of the right of eminent domain; repealing all prior provisions on the subject in their several charters. We entertain no. doubt of the correctness of that case, following a rule of constructive repeal well settled in this court. The order appointing commissioners in this case was made previous to the statute of 1872; but the pro*166ceedings of the commissioners under it appear to Rave been taken after the passage of the statute, and must be governed by it. The land of the appellant could not of course be taken from bim, in mviUmij under the repealed provisions of the respondent’s charter’. The taking can be justified only under the provisions of law then existing to authorize the responds ent’s exercise of the right of eminent domain; that is, the statute of 1812.
"We cannot regard this as giving a retroactive effect to that statute. "We do not bold that it operates to impair any proceeding previously taken under the charter. We therefore do not apply it to- the order of the circuit court appointing commissioners. But we do apply it to the subsequent action of the commissioners, because, outside of it, they bad no authority of law to act at all. Neither can we perceive any application of sec. 33, cb. 119, R. S., to the question, for reasons sufficiently apparent in Dillon v. Linder, 36 Wis., 344" court="Wis." date_filed="1874-06-15" href="https://app.midpage.ai/document/dillon-v-linder-6601630?utm_source=webapp" opinion_id="6601630">36 Wis., 344. And indeed, aside from the principle of that case, it would be strange if the legislature could be foreclosed, by a previous general statute, from changing at will the details of an incomplete statutory proceeding. This is precisely what the statute of 1872 does here.
The charter of the respondent appears to have required of the commissioners no oath of office. Sec. 16 of the general railroad act of 1872 requires the commissioners, before entering on the discharge of their duties, to take the constitutional oath prescribed for state officers: to support the constitution of the United States and the constitution of the state, and faithfully to discharge their duties to the best of their ability. The commissioners in this case took and filed with their report an oath of office to execute the trust reposed in them, and discharge the duties imposed upon them, as enjoined in the charter of the respondent, pursuant to the provisions of the charter, to the best of their ability.
Of course here was a total failure of tbe oath prescribed by *167law. This was probably a blunder; if so, a pregnant blunder. It apparently closed the eyes of the commissioners to the rule of just compensation required by the constitution, and to the construction of that rule in the statute of 1872: the -value of the land taken, and the damages sustained by the owner by reason of the taking. There is a strong presumption that the commissioners considered themselves to be in the execution of the repealed provision of the charter only, without much reference to the constitution and without any to the existing provision of the statute of 1872. And their regard to the obscure and indefinite language of the charter, and disregard of the clear and specific language of the act of 1872, were a failure of duty, not in form merely, but in substance, as this record sufficiently discloses. Had the commissioners been referred to the constitution, they must have noticed that the value of the land taken must include the damages arising from the taking, in order to fill the measure of just compensation. And had they been referred to the statute of 1872, under which alone they then had authority to act, they would have found a precise definition of the just compensation of the constitution, as construed by this court. Railroad Co. v. Elle, 3 Pin., 334" court="Wis." date_filed="1851-12-15" href="https://app.midpage.ai/document/milwaukee--mississippi-railroad-v-eble-6596771?utm_source=webapp" opinion_id="6596771">3 Pin., 334; Rollins v. Railroad Co., 6 Wis., 636" court="Wis." date_filed="1858-07-01" href="https://app.midpage.ai/document/robbins-v-milwaukee--horicon-railroad-6597643?utm_source=webapp" opinion_id="6597643">6 Wis., 636. If the commissioners had taken the oath required by the statute of 1872, it appears quite impossible that they could have mistaken the true rule of appraisal. Taking an oath to perform their duties under the general language of the charter only, it was quite easy to fall into the mistake into which it is greatly to be feared they did fall.
In the statute of 1872, the legislature was at the pains, ex mdustrid, of specifically stating the rule of appraisement, leaving no room for construction or mistake. And it was a fatal error of the commissioners to mistake the statute under which they were acting. As it is, the oath which they took was not one authorized by law. It was an oath to perform their duties according to the terms of a statute which were *168l’ejDealed because they were vague and indefinite. It was an oath which tended to mislead them, and presumably did mislead them, in the performance of their duties. It was probably worse than taking no oath at all. It was certainly as bad.
The commissioners could proceed to the appraisal, under the authority of the statute of 1872 only. And that statute withheld all authority from them, until they should have taken the oath which it prescribes. Although appointed by the court to be commissioners, they could take the authority of commissioners only by taking the required oath. The oath was therefore jurisdictional. Failure to take the oath required by the statute left the commissioners without authority to proceed; and their whole proceeding is therefore absolutely void.
The enforcement of the right of eminent domain is a necessary but harsh process, in derogation of private right. And a statutory process for its exercise, delegated to a corporation, must be strictly followed. Sedgwick’s Stat. & Const. Law, 313. The jurisdiction of the commissioners to proceed should affirmatively appear, as in other statutory proceedings in derogation of the common law. Fladland v. Delaplaine, 19 Wis., 459" court="Wis." date_filed="1865-01-15" href="https://app.midpage.ai/document/fladland-v-delaplaine-6599378?utm_source=webapp" opinion_id="6599378">19 Wis., 459, and cases cited in Vilas and Bryant’s notes; Foster v. Hammond, 37 Wis., 185" court="Wis." date_filed="1875-01-15" href="https://app.midpage.ai/document/foster-v-hammond-6601718?utm_source=webapp" opinion_id="6601718">37 Wis., 185.
It was contended by the respondent’s counsel, with much ingenuity, that the oath required is only a qualification.of the commissioners, and should be presumed with other qualifications, such as age, residence, etc. It is unnecessary to decide here what the rule might be in such a case, when the record is silent as to the oath. But here the record discloses that the commissioners did not take the required oath, by disclosing what oath they did take. As already remarked, the failure of the oath was a failure of jurisdiction of the commissioners. And where failure of jurisdiction affirmatively appears in a record, it is fatal even to the judgment of a court of general jurisdiction. Rape v. Heaton, 9 Wis., 328" court="Wis." date_filed="1859-10-18" href="https://app.midpage.ai/document/rape-v-heaton-6597873?utm_source=webapp" opinion_id="6597873">9 Wis., 328; Falkner v. Guild, *16910 id., 563; Pollard v. Wegener, 13 id., 569; Blodgett v. Hitt, 29 id., 169. Some reference was made on the argument to ch.' 292 of 1874, amending the statute of 1872 by giving to existing railroad companies all the powers of the general railroad act, and also of their respective charters. The act of 1874 is not declaratory but amendatory, and could not aid the difficulty here. But we think it right to say that we do not understand the amendment of 1874 as changing the powers or duties of the circuit courts or of commissioners appointed by them, in the exercise of the right of eminent domain. This case sufficiently shows the propriety of a general statute governing the exercise of the right by all railroad companies; and the wisdom of the careful and precise provisions of the statute of 1872. And we cannot believe that the legislature intended to relegate the proceeding to the incongruous and sometimes uncertain language of particular charters, repealed by the safer provisions of the statute of 1872.
It is' a very easy thing for the respondent to acquire the right of way over the appellant’s land, making just compensation to him according to the constitution and the statute of 1872. In the mean time, let the consequences be what they may, the appellant is entitled, ex debito justitim, to the judgment which he seeks.
By the Oov/rt. — The judgment of the court below is reversed, and the cause remanded, with instructions to the court below fo render judgment for the appellant according to the prayer of the complaint.
On a motion by the respondent for a rehearing, it was urged in the brief of Norris & Chynoweth, that sec. 33, ch. 119, R. S.," is applicable to a proceeding for the condemnation of land, *170"because, from the time of the application to the court for «the appointment of commissioners until judgment obtained, there is a judicial proceeding, an action, pending. Warren v. R. R. Co., 18 Minn., 384" court="Minn." date_filed="1872-01-15" href="https://app.midpage.ai/document/warren-v-first-division-of-the-st-paul--pacific-railroad-7962740?utm_source=webapp" opinion_id="7962740">18 Minn., 384; In re Cooper, 22 N.Y., 67" court="NY" date_filed="1860-09-05" href="https://app.midpage.ai/document/in-the-matter-of-the-application-of-henry-w-cooper-3589353?utm_source=webapp" opinion_id="3589353">22 N. Y., 67; Colby v. Dennis, 36 Me., 9; Peoria & R. I. Railway Co. v. Birkett, 62 Ill., 332" court="Ill." date_filed="1872-01-15" href="https://app.midpage.ai/document/peoria--rock-island-railway-co-v-birkett-6955765?utm_source=webapp" opinion_id="6955765">62 Ill., 332; Kennett's Petition, 4 Foster, 139; and especially Kohl v. United States, 91 U. S. (1 Otto), 367, and authorities there cited. This being so, counsel further contended that the proceedings and award of the commissioners in this case, being in accordance with the provisions of defendant’s charter, were valid, even if those provisions were repealed by the act of 1872. In support of this view, they argued that the charter of the company merely provided a form of proceeding, or action, by which the right to condemn land for public use was enforced, but that the right itself existed independently of any statute. West River Bridge Co. v. Dix, 6 How. (U. S.), 507; Vattel, b. 1, ch. 20, pl. 244; Code Hap., b. 2, tit. 2, 545; 1 Black. Comm., 139 ; Cooley’s BL, 137, 139. Itis the right of the state which is enforced in all such proceedings; the state takes the land through the agency of the corporation. Pratt v. Brown, 3 Wis., 612; Attorney Gen. v. Railway Cos., 35 Wis., 580; Beekman v. R. R. Co., 3 Paige, 44; West River Bridge Co. v. Dix, supra; Weir v. R. R. Co., 18 Minn., 155" court="Minn." date_filed="1872-01-15" href="https://app.midpage.ai/document/weir-v-st-paul-stillwater--taylors-falls-railroad-7962716?utm_source=webapp" opinion_id="7962716">18 Minn., 155. 2. Counsel also asked the court to reexamine Moore v. S. & S. Railway Co., 34 Wis., 173" court="Wis." date_filed="1874-01-15" href="https://app.midpage.ai/document/moore-v-superior--st-croix-railroad-6601406?utm_source=webapp" opinion_id="6601406">34 Wis., 173, in connection with ch. 119, Laws of 1872, and argued at length that the provisions of secs. 13 and 55 of that act relate only to railroad companies organized or reorganized under the act itself. Comm. v. Council of Montrose Borough, 52 Pa. St., 391. They further argued that the act of 1872 did not have the effect to repeal by implication the provisions of defendant’s *171charter (and other like charters), because there is no negative language in the later statute in respect to the charter, and the two statutes may well stand together. Attorney Gen. v. Brown, 1 Wis., 513" court="Wis." date_filed="1853-06-15" href="https://app.midpage.ai/document/attorney-general-ex-rel-taylor-v-brown-6596992?utm_source=webapp" opinion_id="6596992">1 Wis., 513; Dodge v. Gridly, 10 Ohio, 173; Attorney Gen. v. Railway Cos., 35 Wis., 554. Where a new remedy or mode' of proceeding is authorized, without negative words or express repeal of a former one relating to the same matter, it is to be regarded as merely cumulative. Crittenden v. Wilson, 5 Cow., 165" court="N.Y. Sup. Ct." date_filed="1825-10-15" href="https://app.midpage.ai/document/crittenden-v-wilson-5464504?utm_source=webapp" opinion_id="5464504">5 Cow., 165; 6 Ohio St., 307, 316; 11 id., 16; 11 Ohio, 134; Goodrich v. Milwaukee, 24 Wis., 422" court="Wis." date_filed="1869-06-15" href="https://app.midpage.ai/document/goodrich-v-city-of-milwaukee-6600245?utm_source=webapp" opinion_id="6600245">24 Wis., 422, 438. Again, special legislation controls general, upon the subject matter of the special act. Potter’s Dwar., 272-3; Western Bank, etc., v. Tallman, 17 Wis., 532; Walworth Co. v. Whitewater, id., 193; Cramer v. Stone, 33 id., 212; Janesville v. Markoe, 18 id., 350; Johnston v. Hamburger, 13 id., 176-7; Mead v. Bagnall, 15 id., 156; Ellis v. Batts, 26 Tex., 703" court="Tex." date_filed="1863-07-01" href="https://app.midpage.ai/document/ellis-v-batts-4890056?utm_source=webapp" opinion_id="4890056">26 Tex., 703; Brown v. Comm’rs, 21 Pa. St., 37. Of course a special act is repealable by a general act, but the intent to repeal ought to appear clearly, especially in such a case. ’ The act of 1872 does not in terms repeal defendant’s charter. It does not even contain the usual final section repealing acts or parts of acts conflicting with it, differing in this respect strikingly from ch. 146 (sec. 14), and other general laws of the same session, which assumed to revise the subject matter of various preexisting laws. Sec. 13 declares that “ any railroad company * * shall have the right to acquire title * * in the manner prescribed by this act;” and sec. 55 declares that all existing railway corporations shall have the powers and privileges contained in the act; but neither section contains any negative or exclusive words. Moore v. Railway Co. seems to interpolate such words, contrary to the established principles of construction. Potter’s Dwar., 192; King v. Burrell, 40 E. C. L., 96; Lamond v. Eiffe, 3 Q. B., 910; Street v. Commonwealth, 6 W. & S., 209; Comm. v. Easton Bank, 10 Barr, 442; Brown v. Comm’rs, 21 Pa. St., 37; Meek v. Pierce, 19 Wis., 300" court="Wis." date_filed="1865-01-15" href="https://app.midpage.ai/document/meek-v-pierce-6599342?utm_source=webapp" opinion_id="6599342">19 Wis., 300, 304; *1726 Ohio, 503; 10 id., 173, 476; 10 Ohio St., 15, 331, 362. Moreover, sec. 56 expressly repeals certain laws, without any general repealing clause added. This shows that the legislature did not contemplate a general repeal of all other laws on the subject. Under such circumstances, the specification of certain laws as repealed, is equivalent to a declaration that other laws shall continue in force. Lee v. Evans, 8 Cal., 431; Bird v. Dennison, 7 id., 307; Perkins v. Thornburgh, 10 id., 191; Attorney Gen. v. McDonald, 3 Wis., 807. Moreover, sec. 58 declares that “ whenever any commissioners appointed wider any laxo of this state for the purpose of appraising, etc., shall be, by the 1cm wider which they hme been appointed, limited to a time less than ninety days in which to perform their duties,” they shall have ninety days from the time of their appointment “ in which to discharge the duties imposed upon them, any law of this state heretofore enacted to the contrary notwithstanding.” This is an express recognition of past appointments, of the power to make future appointments, and of the continued force of laws theretofore enacted in this state in relation to the making of such appointments, the modes of proceeding prescribed in such laws, and the powers and jurisdiction of the commissioners under and in accordance with them. State v. Miller, 23 Wis., 634" court="Wis." date_filed="1869-02-15" href="https://app.midpage.ai/document/state-v-miller-6600143?utm_source=webapp" opinion_id="6600143">23 Wis., 634. 2. If the court should not accept these views, counsel asked that its judgment should at least be modified by providing that no injunction should issue if the defendant, within a reasonable time, to be designated by the court, should institute proceedings to condemn the plaintiff’s land, and promptly prosecute them as the court should direct. 17 Minn., 228; 1 Eng. Railway Cas., 684; 22 Wis., 588; 59 Pa. St., 433.
Lyon, J.
A very able argument against the correctness of the decision in the case of Moore v. The Superior & St. Croix Railroad Co., 34 Wis., 173" court="Wis." date_filed="1874-01-15" href="https://app.midpage.ai/document/moore-v-superior--st-croix-railroad-6601406?utm_source=webapp" opinion_id="6601406">34 Wis., 173, has been submitted by the learned counsel for the defendant in support of the motion for a re-*173Rearing. Because that side of tRe question was not tRere argued, we Rave, on tRis motion, carefully reviewed tRat decision, and are firmly convinced tliat it is correct in principle and sRould not Re disturbed. TRe grounds upon wRicli tRat case was decided are sufficiently stated in former opinions, and no further statement or discussion thereof is required here.
Our adherence to that decision may result in some inconvenience to those railway companies which took a different view of the scope and effect of the act of 1872, and attempted to condemn lands under their respective charters after the passage of the act; but the danger of such inconveniences does not authorize us to construe the act differently from what we Relieve the legislature intended, and in derogation of the rights of the citizen whose property is liable to be taken from him without his consent.
Eor reasons already sufficiently stated by the chief justice in the former opinion in this case, the judgment of the circuit court is not supported or aided by Dillon v. Linder, 36 Wis., 344, or the statute there under consideration.
The motion for a rehearing must be denied, with $25 costs.
In the usual course of practice, the defendant will probably have sufficient time before the injunction prayed for will be likely to issue, in which to procure a valid condemnation of the plaintiff’s land. In any event, no good reason is perceived why the circuit court may not, after the cause is remitted, withhold the injunction a reasonable time to enable the defendant to procure such condemnation. It is not necessary or proper that this court should now make any order or give any direction in that behalf.