| Ill. | Dec 21, 1898
delivered the opinion of the court:
The' errors assigned present but two contentions on the part of the appellants, and they will be considered in the order urged.
First—Appellants insist it appeared the corporation had failed to finish its road within ten years from the filing of its articles of association, and that therefore its corporate existence and power should be deemed to have determined, in obedience to the provisions of section 26 of chapter 114 of the Revised Statutes, entitled “Railroads.” This contention cannot be maintained. In a proceeding for the condemnation of real estate for railroad uses the question of the de jure existence of the company cannot be determined. It is sufficient that the statute authorized the organization of the corporation and that the petitioner is a corporation de facto. Whether or not it has a legal existence as a corporation can only be determined by a direct proceeding,—the writ of quo warranto. Peoria and Pekin Union Railway Co. v. Peoria and Farmington Railway Co. 105 Ill. 110" date_filed="1882-11-20" court="Ill." case_name="Peoria & Pekin Union Railway Co. v. Peoria & Farmington Railway Co.">105 Ill. 110; Chicago and Northwestern Railway Co. v. Chicago and Evanston Railroad Co. 112 id. 589.
Second—Appellants urge that the power to condemn real estate cannot be exercised by the receiver of a corporation, nor by a corporation in the name of a receiver, and that the power of eminent domain is granted as a personal trust. Corporate existence is not terminated by the appointment of a receiver, and, in general, the power of condemnation is not transferred to the receiver but remains in the corporation. -The facts of this case,' however, bring it within a well recognized exception to this general rule. A court of equity having in charge the property of a railroad company is authorized to do any act within the corporate power the performance of which is necessary to preserve the property of the company for the benefit of the company and its creditors. If, when property comes into the hands of the court, the corporation is engaged in some proper and legitimate undertaking the completion whereof is essential to the successful maintenance and operation of the road and to the preservation of the property, the court may proceed to complete the undertaking, and if required will transfer to and clothe its receiver with such power and authority as the corporation possessed to institute the appropriate legal proceedings to condemn any real estate which ought to be acquired in order to finish and make useful and available that which the corporation was engaged in constructing when the court displaced it in the possession of its property.' Elliot on Railroads, p. 1352; Randolph on Eminent Domain, p. 100; High on Receivers, (3d ed.) pp. 356, 357:
The judgment is affirmed.
Judgment affirmed.