of a bank and is recognized by the directors or by the corporation as an existing officer, a regular appointment will be presumed; and his acts as cashier will bind the corporation although no written proof is or can be adduced of his appointment. In short we think that the acts of artificial persons afford the same presumptions as the acts of natural persons. Each affords presumptions from acts done of what must have preceded them as matters of right or matters of duty."

In case 2 it was said: "It is said that the case does not show that F. was president of the company because it was not proved by the record of his appointment. There are some cases in which a corporation is a party involving the authority of the officers in which their authority must be proved by the record. But the cases are numerous in which their authority has been proved by parol evidence. In this case the action is between other parties, neither of whom has the custody of the records, and before a court in another State, so that there is no compulsory process by which they can be produced. It is proved that F. was the acting president prior and subsequent to the time when the note was transferred. He signed the policy of insurance as president for which the note was given, only one month before it was transferred; and no annual meeting could have intervened for the choice of any one in his place. We think the evidence is sufficient that he was authorized to act as president at the time. But it is said that if he was president of the company, and so according to the customary mode of transacting such business, authorized to transfer the note, the presumption that he was so authorized is disproved by the by-laws which are a part of the case. And it is true that no specific authority to indorse notes is given by the code or by-laws to the president or to any other officer of the company. But it does not follow that such authority is not necessarily implied in powers which are granted. And it should be remembered that this is not an action against the company as indorsers upon the contract of indorsement. It is a suit between other parties involving only the authority of the president to sell the note in payment of a demand against the company, and in addition to the presumption arising from the usual course of such transactions, the president is made by the by-laws ex officio treasurer; and so he had the legal custody of the assets." JOHN D. LAWSON.

ST. LOUIS, Mo.

JURISDICTION OF FEDERAL COURTS WHERE STATE NECESSARY PARTY.

SUPREME COURT OF THE UNITED STATES, DECEMBER 3, 1883.

CUNNINGHAM V. MACON AND BRUNSWICK RAILROAD Co.

Under a statute of Georgia the governor of that State took possession of a railroad therein and sold it to the State. This was done upon a default in the payment of bonds issued by the railroad company, and indorsed by the State, which were a prior lien upon the railroad. The holders of a second series of bonds in an action against the governor and others sought to set aside the sale on the ground of irregularities therein, and on the ground that the State had no constitutional power to purchase, and also to foreclose the mortgage under which their bonds were issued. Held, that the State was a necessary party to the action and being so the Federal courts had no jurisdiction thereof.

APPEAL from the Circuit Court of the United States for the Southern District of Georgia. The opinion states the case.

MILLER, J. This is an appeal from the decree of the Circuit Court for the Southern District of Georgia, dismissing the bill of complainant on demurrer.

The bill is filed by Cunningham, a citizen of the State of Virginia, against Alfred H. Colquitt, as governor of the State of Georgia, J. W. Renfroe, as treasurer of the State, the Macon and Brunswick Railroad Company, and A. Flewellen, W. A. Lofton, and George S. Jones, styling themselves directors of said railroad company, John H. James, a citizen of Georgia, and the First National Bank of Macon.

The bill sets out, with reasonable fulness and with references to exhibits which make its statements clear, what we will try to state, as far as necessary, in shorter terms.

It alleges that on the 3d day of December, 1866, the Assembly of Georgia passed an act authorizing the governor to indorse the bonds of the Macon and Brunswick Railroad Company to the extent of $10,000 per mile, and that under this authority the governor indorsed bonds to the amount of $1,950,000, which were afterward negotiated by said company. The statute under which this was done made the indorsement of these bonds to operate as a prior mortgage upon all the property of the company, which could be enforced by a sale by the governor upon default in payment of the bonds so indorsed, or interest on them as it fell due. In addition to this the company executed and delivered to the governor, on the 22d of June, 1870, a written mortgage confirming the lien created by the statute, which was duly acknowledged and recorded.

October 27, 1870, the Legislature, by an act amending the act of December 3, 1866, authorized the governor to indorse an additional $3,000 per mile of the bonds of the company, which was done, and of this series of bonds the complainant became the holder and owner of nineteen for $1,000 each.

It is then alleged that on July 1, 1873, the company failed to pay its interest coupons upon both these sets of indorsed bonds, and that in a few days thereafter the governor, under the power vested in him by the act of 1866, took possession of the road and the property of the company and placed them in the hands of Flewellen as receiver; and that on the first Tuesday in June, 1875, he sold said road to the State of Georgia for the sum of $1,000,000, and made a conveyance of it to the State accordingly, a copy of which is filed as an exhibit to the bill. It is also alleged that the State of Georgia has taken up since that time the entire issue of $1,950,000, giving her own bonds in place of the bonds which she had so indorsed.

The bill assails this transaction because the governor, in advertising the sale, gave notice that he would accept in payment for bids bonds of the State at par, or bonds of the first series of $1,950,000 at their market value, or cash, and would not receive any of the second series of $600,000 in payment. Also because the sale was made improvidently, at a bad time, as the governor was informed by his agent, Flewellen, and because the governor was not authorized to bid for the property, and the State had no constitutional power to make the purchase.

And it is further alleged that if the sale is not absolutely void, it is voidable, because under the statutory and executed mortgages the State is trustee of the property mortgaged, for the benefit of the bondholders, and her purchase can be set aside by the beneficiaries under the trust when they elect to do so. The bill insists that by the taking up and payment of the first series of indorsed bonds their lien on the property is extinguished, and that of the second series is now become paramount, and this suit is brought to foreclose that mortgage lien.

And if the court shall be of opinion that the sale was valid, then the bill insists that the holders of the second series were entitled to be paid pro rata under that sale, and that when the Legislature of Georgia appro

priates any money to pay the bonds which it gave in exchange for $1,950,000 of the indorsed railroad bonds, the amount so appropriated should be divided pro rata between these bonds and the $600,000 of the second series of indorsed bonds.

The prayer of the bill is for the appointment of a receiver, to whom all the property of the company shall be delivered; that the mortgage be foreclosed and the proceeds applied to payment of the bonds of the second series so far as necessary for that purpose.

Or if the court shall be of opinion that the sale was valid, that Renfroe be enjoined from paying the coupons of interest on the State bonds exchanged for first series of bonds, and that the holders thereof be made parties to the suit, and be compelled to account to the holders of the $600,000 series of bonds for their pro rata share of said exchanged bonds; and the bill prays that Colquitt, the governor, and Renfroe, the treasurer and the three directors of the company be compelled by subpoena to appear and answer it and certain interrogatories in it, and produce certain papers, and that Renfroe be enjoined from paying the coupons on the State bonds exchanged for the indorsed bonds, and that the State of Georgia may come in and make herself a party defendant to this bill if she should wish to do so; and there is a prayer for general relief.

To this bill there was filed by Flewellen, Lofton, and Jones, the directors, a demurrer and plea, as it is called. The plea is to the effect that they have no interest in the road otherwise than as agents of the State of Georgia, for which they hold and control the Macon and Brunswick Railroad and all its property and franchises of every description, and the plea and demurrer both rely on the proposition that the court has no jurisdiction of the case, because it cannot proceed without the State as a party, and that the court cannot compel the State to become a party to the suit.

Renfroe, the treasurer, filed a similar plea and Colquitt, the governor, filed a demurrer and a plea separately.

The grounds of demurrer stated by the governor are that it is apparent on the face of the bill that the court cannot take cognizance of the matters and things set up in said bill as against the defendant, because it appears that he has no personal interest in the same, but that it is an attempt to make the State of Georgia a party to the suit through the defendant as governor, so as to bind the State by the judgment and decision of the court in the case.

On this demurrer of Colquitt and the joint demurrer of the three trustees the case was decided and the bill dismissed.

cuit Courts of the United States, or have been removed into them from the State courts.

The original jurisdiction of this court has also been invoked in the recent cases of State of New Hampshire v. State of Louisiana, and State of New York v. State of Louisiana. These latter suits were based on the proposition that the constitutional provision that States might sue each other in this court would enable a State whose citizens were owners of obligations of another State to take a transfer of those obligations to herself and sue the defaulting State in the court. The doctrine was overruled in those cases at the last term by the unanimous opinion of the court.

In the suits which have been instituted in the Circuit Courts the effort has been, while acknowledging the incapacity of those courts to assume jurisdiction of a State as a party, to proceed in such a manner against the officers or agents of the State government, or against property of the State in their hands, that relief can be had without making the State a party.

The same principle of exemption from liability to suit as applied to the government of the United States has led to like efforts to enforce rights against the government in a similar manner. And it must be confessed, that in regard to both classes of cases, the questions raised have rarely been free from difficulty, and the judges of this court have not always been able to agree in regard to them. Nor is it an easy matter to reconcile all the decisious of the court in this class of cases.

While no attempt will be made here to do this, it may not be amiss to try to deduce from them some general principles, sufficient to decide the case before

us.

It may be accepted as a point of departure unques tioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on that court by the Constitution.

This principle is conceded in all the cases, and whenever it can be clearly seen that the State is an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought, it will refuse to take jurisdiction. But in the desire to do that justice, which in may cases the courts can see will be defeated by an unwarranted extension of this principle, they have in some instances gone a long way in holding the State not to be a necessary party, though some interest of hers may be more or less affected by the decision. In many of these cases the action of the court has been based upon principles whose soundness cannot be disputed. A reference to a few of them may enlighten us in regard to the case now under consideration.

The failure of several of the States of the Union to pay the debts which they have contracted and to discharge other obligations of a contract character, when taken in connection with the acknowledged principle that no State can be sued in the ordinary courts as a defendant except by her own consent, has led, in recent times, to numerous efforts to compel the performance of their obligations by judicial proceedings to which the State is not a party.

These suits have generally been instituted in the Cir

choose to come in as plaintiff, as in prize cases, or to intervene in other cases when she may have a lien or other claim on the property, will be permitted to do so, but subject to the rule that her rights will receive the same consideration as any other party interested in the matter, and be subjected in like manner to the judgment of the court. Of this class are the cases of The Siren, 7 Wall. 157; The Davis, 10 id. 20; and Cook v. Barnard, at the last term.

2. Another class of cases is where an individual is sued in tort for some act injurious to another in re

gard to person or property, to which his defense is that he has acted under the orders of the government.

In these cases he is not sued as, or because he is the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him. See Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 209; Meigs v. McClung, Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 305; Grisar v. McDowell, 6 Wall. 363. To this class belongs also the recent case of United States v. Lee, 106 U. S., for the action of ejectment in that case is, in its essential character, an action of trespass, with the power in the court to restore the possession to the plaintiff as part of the judgment. And the defendants, Strong and Kaufman, being sued individually as trespassers, set up their authority as officers of the United States, which this court held to be unlawful, and therefore insufficient as a defense. The judgment in that case did not conclude the United States, as the opinion carefully stated, but held the officers liable as unauthorized trespassers, and turned them out of their unlawful possession.

3. A third class, which has given rise to more controversy, is where the law has imposed upon an officer of the government a well defined duty in regard to a specific matter, not affecting the general powers or functions of the government, but in the performance of which one or more individuals have a distinct interest capable of enforcement by judicial process.

Of this class are writs of mandamus to public officers, as in Marbury v. Madison, 1 Cranch, 137; Kendall v. Stokes, 3 How. 87; United States v. Schurtz, 102 U. S. 118; United States v. Boutwell, 17 Wall. 604.

But in all such cases, from the nature of the remedy by mandamus, the duty to be performed must be merely ministerial, and must involve no element of discretion to be exercised by the officer.

It has however been much insisted on that in this class of cases, where it shall be found necessary to enforce the rights of the individual, a court of chancery, may, by a mandatory decree or by an injunction, compel the performance of the appropriate duty, or enjoin the officer from doing that which is inconsistent with that duty and with plaintiff's rights in the premi

ses.

Perhaps the strongest assertion of this doctrine is found in the case of Davis v. Gray, 16 Wall. 203.

In that case, the State of Texas having made a grant of the alternate sections of land along which a railroad should thereafter be located, and the railroad company having surveyed the land at its own expense and located its road through it, the commissioner of the State land office and the governor of the State, were in violation of the rights of the company selling and delivering patents for the sections to which the company had an undoubted vested right. The Circuit Court enjoined them from doing this by its decree, which was affirmed in this court.

Judge Hunt did not sit in the case, and Justice Davis and Chief Justice Chase dissented, on the ground that it was in effect a suit against the State. Though there are some expressions in the opinion which are unfavorably criticised in the opinions of both the majority and minority of this court in the recent case of the United States v. Lee, the action of the court has not been overruled.

But it is clear that in enjoining the governor of the State in the performance of one of his executive functions, the case goes to the verge of sound doctrine, if not beyond it, and that the principle should be extended no further. Nor was there in that case any af

firmative relief granted by ordering the governor and land commissioner to perform any act toward perfecting the title of the company.

The case of Board of Liquidation v. McComb is to the same effect. The board of liquidation was charged by the statute of Louisiana with certain duties in regard to issuing new bonds of the State in place of old ones which might be surrendered for exchange by the holders of the latter. The amount of new bonds to be issued was limited by a constitutional provision. McComb, the owner of some of the new bonds already issued, filed his bill to restrain the board from issuing that class of bonds in exchange for a class of indebtedness not included within the purview of the statute, on the ground that his own bonds would thereby be rendered less valuable. This court affirmed the decree of the Circuit Court enjoining the board from exceeding its power in taking up by the new issue a class of State indebtedness not within the provisions of the law on that subject. 92 U. S. 531.

In the opinion in that case the language used by Mr. Justice Bradley well and tersely thus expresses the rule and its limitations:

"The objections to proceeding against State officers by mandamus or injunction are, first, that it is in effect proceeding against the State itself; and second, that it interferes with the official discretion vested in the officers. It is conceded that neither of these can be done. A State without its consent cannot be sued as an individual; and a court cannot substitute its own discretion for that of executive officers, in matters belonging to the proper jurisdiction of the latter. But it has been settled that where a plain official duty requiring no exercise of discretion is to be performed, and performance is refused, any person who will sustain a personal injury by such refusal may have a mandamus to compel performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it."

It is believed that this is as far as this court has gone in granting relief in this class of cases. The case of Osborne v. The Bank, 9 Wheat. 738, often referred to, was upon this principle, and goes no further; for in that case, a preliminary injunction of the court forbidding the State officer from placing the money of the bank, which he had seized, in the treasury of the State, having been disregarded, the final decree corrected this violation of the injunction, by requiring the restoration of the money thus removed. See Lousiana v. Jumel, 107 U. S. 711.

On the other hand, in the cases of Louisiana v. Jumel, and Elliott v. Wiltz, decided at the last term, very ably argued and very fully considered, the court declined to go any further. 107 U. S. 711.

In the first of these cases the owners of the new bonds issued by the board of liquidation mentioned in McComb's case, above cited,brought their bill in equity, in the Circuit Court of the United States, to compel the auditor of State and the treasurer of the State to pay,out of the treasury of the State, the overdue interest-coupons on their bonds, and to enjoin them from paying any part of the taxes collected for that purpose for the ordinary expenses of the government. They at the same time applied to the State court for a writ of mandamus to the same officers, which suit was removed into the Circuit Court of the United States. In this they asked that these officers be commanded to pay, out of the moneys in the treasury, the taxes which they maintained had been assessed for the purpose of paying the interest on their bonds, and to pay such sums as had already been diverted from that purpose to others by the officers of the government.

The Circuit Court refused the relief asked in each case, and this court affirmed the judgment of that court.

The short statement of the reason for this judgment is, that as the State could not be sued or made a party to such proceeding, there was no jurisdiction in the Circuit Court either by mandamus at law, or by a decree in chancery, to take charge of the treasury of the State, and seizing the hands of the auditor and treasurer, to make distribution of the funds found in the treasury in the manner which the court might think just.

The chief justice said: "The treasurer of the State is the keeper of the money collected from this tax, just as he is the keeper of other public moneys. The taxes were collected by the tax collectors and paid over to him, that is to say, into the State treasury, just as other taxes were when collected. He is no more a trustee of these moneys than he is of all other public moneys. He holds them only as agent of the State. If there is any trust the State is the trustee, and unless the State can be sued the trustee cannot be enjoined. The officers owe duty to the State alone, and have no contract relations with the bondholders. They can only act as the State directs them to act and hold as the State allows them to hold. It was never agreed that their relations with the bondholders should be other than as officers of the State, or that they should have any control over this fund except to keep it like other funds in the treasury, and pay it out according to law. They can be moved through the State, but not the State through them."

We think the foregoing cases mark, with reasonable precision, the limit of the power of the courts in cases affecting the rights of the State or Federal governments in suits to which they are not voluntary parties.

In actions at law, of which mandamus is one, where an individual is sued, as for injuries to person or to property, real or personal, or in regard to a duty which he is personally bound to perform, the government does not stand behind him to defend him. If he has the authority of law to sustain him in what he has done, like any other defendant, he must show it to the court and abide the result. In either case the State is not bound by the judgment of the court, and generally its rights remain unaffected. It is no answer for the defendant to say, I am an officer of the government and acted under its authority, unless he shows the sufficiency of that authority.

Courts of equity proceed upon different principles in regard to parties. As was said in Barney v. Baltimore, G Wall. 380, there are persons who are merely formal parties without real interest, and there are those who have an interest in the suit, but which will not be injured by the relief sought, and there are those whose interest in the subject-matter of the suit renders them indispensable as parties to it. Of this latter class the court said, in Shields v. Barrow, 17 How. 130, "they are persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without affecting that interest or leaving the controversy in such a condition that its final disposition may be wholly inconsistent with equity and good conscience."

more,

"In such cases," says the court in Barney v. Balti"the court refuses to entertain the suit when these parties cannot be subjected to its jurisdiction."

In the case now under consideration the State of Georgia is an indispensable party. It is in fact the only proper defendant in the case. No one sued has any personal interest in the matter or any official authority to grant the relief asked.

No foreclosure suit can be sustained without the State, because she has the legal title to the property,

and the purchaser under a foreclosure decree would get no title in the absence of the State. The State is in the actual possession of the property, and the property, and the court can deliver no possession to the purchaser. The entire interest, adverse to plaintiff in this suit is the interest of the State of Georgia in the property, of which he has both the title and possession.

On the hypothesis that the foreclosure by the governor was valid, the trust asserted by plaintiff is vested in the State as trustee, and not in any of the officers sued.

No money decree can be rendered against the State, nor against its officers, nor any decree against the treasurer, as settled in Louisiana v. Jumel.

If any branch of the State government has power to give plaintiff relief it is the legislative. Why is it not sued as a body, or its members by mandamus to compel them to provide means to pay the State's indorsement?

The absurdity of this proposition shows the impossibility of compelling a State to pay its debts by judicial process.

The decree of the Circuit Court is

Affirmed.

TELEGRAPH ADDITIONAL BURDEN UPON HIGHWAY REQUIRING COMPENSATION TO PROPERTY OWNER.

ILLINOIS SUPREME COURT, OCTOBER 2, 1883.

BOARD OF TRADE TELEGRAPH Co. v. BARNETT. The construction and maintenance of a telegraph line upon a highway is a new and additional burden upon the fee to which, when the highway was established, it was not contemplated it should be subjected, and for which the owner is entitled to additional compensation.

A

CTION of trespass. The opinion states the case. Appeal by defendant below.

Francis C. Russell, and Allan C. Story, for appellant.

Happy and Travous, for respondent.

SCOTT, J. This was an action of trespass quare clausum fregit, brought by Kimbro T. Barnett, against the Board of Trade Telegraph Company. The declaration is in the usual form, the gravamen of the action being that defendant entered with force and violence upon the premises of plaintiff, and dug holes and erected thereon telegraph poles upon which to place its wires. The pleas of not guilty and liberum tenementum, originally filed to the declaration, were both withdrawn, and the matters insisted upon as a defense to the action were embraced in five special pleas. The substance of the first three pleas is the locus in quo was a public highway; that defendant was and is a corporation existing under the laws of Illinois; that the acts complained of were necessarily and properly done in the building of the telegraph line of defendant along such highway, and that the building of such telegraph line was done under and according to the written and recorded consent of the county board of the county in which the premises are situated. The additional matters contained in the other special pleas add nothing to the strength of the defense, and it will not be necessary, as the case comes before this court to state their contents. To the special pleas setting up the facts above stated, with some others of no considerable importance, with the usual fullness and formality, the Circuit Court sustained a general deThe defendant electing to stand by its pleas of justification, the court rendered judgment as upon nil dicit, and proceeded to hear evidence with a view to assess plaintiff's damages. It was proven plaintiff

murrer.

was the owner of the land described in the declaration; that defendant by its employees entered upon the premises, and commenced digging holes and putting up telegraph poles; that plaintiff asked them what authority they had for so doing, and was told they had permission from the county board. Afterward they went on and put up twenty-six poles along the sides of the hedge, without the consent of plaintiff. The poles erected are outside of the hedge growing at the side of the highway, but close to it. In some instances the employees cut away the hedge, because it was in their way, and they also cut down two hedge trees that were intended for gate posts where they stood. It was further proven the land where the poles were erected belonged to plaintiff, subject to the right of way, aud that the highway was used by the public. It was also proven the erection of the poles by defendant would render it inconvenient for plaintiff to trim his hedge with machines constructed for that purpose. Thereupon the Circuit Court assessed plaintiff's damages at $78, and from the judgment rendered defendant obtained an appeal to the Appellate Court for the Fourth District, where the judgment of the trial court was affirmed. A majority of the judges of the Appellate Court having certified that in their opinion this case involves a question of law of such importance, on account of collateral interests, that it should be passed upon by the Supreme Court," defendant brings the case to this court on its further appeal, as it is permitted to do under the practice.

The objection an action of trespass quare clausum fregit will not lie in such a case as the one being considered, is settled adversely to the position taken by defendant in the decision of this court in Indianapolis, Bloomington and Western R. Co. v. Hartley, 67 Ill. 439. That in some respects, was an analogous case, the form of action being the same, and plaintiff was permitted

to recover.

Authority is given by the statute to all telegraph companies to erect poles on which to place their wires, on all highways or public roads, by first obtaining the consent in writing of the county board of the county in which such highway is situated. Of course that permission is given subject to the constitutional inhibition, "private property shall not be taken or damaged for public use without just compensation." Provision is also made by law for ascertaining the compensation to be paid to the owner when it shall be necessary to take or damage any property for the construction, alteration or repair of any line of telegraph. Rev. Stat. 1874, chap. 134.

The principal question arising on the record may be stated to be, is the right to erect and maintain lines of telegraph thereon a part of the public easement in a common highway, or is such a structure a new and additional burden upon the fee, for which the owner of the fee may maintain an action? It was held by the trial court, and its decision was affirmed by the Appellate Court, the erection and maintenance of a line of telegraph on the highway, although done with the consent of the county board, was a new and additional burden upon the fee, and a recovery by the owner was permitted. The correctness of that decision is challenged on this appeal.

The question raised is important, and being one of first impression in this court it has been fully considered. Although the case has been elaborately argued, the views entertained by the court may be briefly stated without any extended discussion. There can be no disagreement as to the facts of the case as they appear from the pleadings by admission on demurrer. Only questions of law remain to be considered on the admitted facts. As has been seen, defendant is a corporation existing under the laws of this State, with power to construct and use a line of tele

graph in this State. Permission in writing was given by the proper county board to erect poles on the highway in question, on which to maintain its line of telegraph, care to be taken to do no unnecessary injury. Plaintiff was and is the owner of the fee, and objected to that use of the highway, but his wishes were disregarded. No effort was made to agree with him as to the damages he would sustain, nor to assess the same under the statute. It is conceded the locus in quo is an ordinary highway, situated without the limits of any municipal corporation. The highway was constructed over lands owned by plaintiff. Of that no question is made. It follows therefore plaintiff is the owner of the fee to the center of the highway, subject only to an easement over and upon it in favor of the public. The position taken by defendant is, that the State can rightfully, as it has done, authorize the county board to permit defendant to construct its line of telegraph upon the highway without the consent of the abutting land owner; that it imposes no new or additional burden thereon, and that when the public acquire an easement over land, for a compensation fully paid, the public obtain all the rights the land owner had, and the State may authorize any use of it not inconsistent with its use as a highway. On the other hand it is insisted the proprietary rights of plaintiff have been interfered with in a manner detrimental to his interests as the owner of the fee, and that the action of defendant in taking possession of his land forcibly and against his will comes within the constitutional inhibition, "private property shall not be taken or damaged without just compensation." The latter position is the one best sustained by authority, and rests on sounder principles. It is for the reason the construction and maintenance of a telegraph line upon the highway is a new and additional burden upon the fee to which it was not contemplated it should be subjected, and for which the owner is entitled to additional compensation. The principle is, neither the State nor a municipal corporation has any rightful authority, under the Constitution, to grant away the private property of the citizen, and if corporations quasi pub lic, in the exercise of the right of eminent domain with which they are clothed by the sovereign power of the State, seek to appropriate it, so that they may have a benefit therefrom, every principle of justice demands they should make just compensation, whether the property taken or damaged is of little or great value. But aside from all considerations of right and justice, the Constitution has so declared, and its mandate in that respect may not be disregarded. A case having many features in common with the one now before the court is Indianapolis, Bloomington and Western R. Co. v. Hartley, 67 Ill. 439. It was there said: "A distinction has been taken where the municipality granting the right to lay a track owns the fee in the street, and where the fee remains in the abutting land owner, and it seems to us it rests on sound principle, and is supported by the highest authority. Where the fee remains in the original proprietor it is immaterial how the public acquired an easement over the landswhether by condemnation or by dedication. It is only for the use of ordinary travel, such as we are accustomed to see on streets or highways. In case the proprietor dedicated the land, it was for no other purpose; and if it was condemned, his damages were assessed with no other view. A different use of the land cannot be justified on the ground that a railway is an improved highway. Railway companies are only public corporations in a limited sense. The right of way, the road bed and the carriages propelled thereon, are owned by private individuals, and not by the public. Fares are charged for travel thereon for the exclusive benefit of parties owning the road. They are constructed and equipped in the interest of private specu