40 Wis. 157 | Wis. | 1876
Lead Opinion
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. 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
This court held in Moore v. Railway Co., 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
"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. 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
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
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, and cases cited in Vilas and Bryant’s notes; Foster v. Hammond, 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; Falkner v. Guild,
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.
Rehearing
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.,"
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, has been submitted by the learned counsel for the defendant in support of the motion for a re-
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.
The section cited reads as follows: “ No action at law or criminal prosecution now pending, or which shall hereafter be commenced, founded upon any statute of this state, shall be defeated by a repeal of such statute; but any