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of a bank and is recognized by the directors or by the The bill is filed by Cunningham, a citizen of the corporation as an existing officer, a regular appoint- State of Virginia, against Alfred H. Colquitt, as govment will be presumed; and his acts as cashier will eruor of the State of Georgia, J. W. Renfroe, as treasbind the corporation although no written proof is or urer of the State, the Macon and Brunswick Railroad can be adduced of his appointment. In short we think Company, and A. Flewellen, W. A. Lofton, and that the acts of artificial persons afford the same pre- George S. Jones, styling themselves directors of said sumptions as the acts of natural persons. Each affords railroad company, Johu H. James, a citizen of Georgia, presumptions from acts done of what must have pre- and the First National Bank of Macon. ceded them as matters of right or matters of duty." The bill sets out, with reasonable fulness and with

In case 2 it was said: “It is said that the case does references to exhibits which make its statements clear, not show that F. was president of the company because what we will try to state, as far as necessary, in shorter it was uot proved by the record of his appointment. terms. There are some cases in which a corporation is a party It alleges that on the 3d day of December, 1866, the involving the authority of the officers in which their Assembly of Georgia passed an act authorizing the authority must be proved by the record. But the governor to indorse the bonds of the Macon and cases are numerous in which their authority has been Brunswick Railroad Company to the extent of $10,000 proved by parol evidence. In this case the action is per mile, and that under this authority the governor between other parties, neither of whom has the custody indorsed bonds to the amount of $1,950,000, which of the records, and before a court in another State, so were afterward negotiated by said company. The that there is no compulsory process by which they can statute under which this was done made the indorsebe produced. It is proved that F. was the acting ment of these bonds to operate as a prior mortgage president prior and subsequent to the time when the upon all the property of the company, which could be note was transferred. He signed the policy of insur- enforced by a sale by the governor upon default in ance as president for which the note was given, only payment of the bonds so indorsed, or interest on them one month before it was transferred; and no annual as it fell due. In addition to this the company exmeeting could have intervened for the choice of any ecuted and delivered to the governor, on the 22d of one in his place. We think the evidence is sufficient June, 1870, a written mortgage confirming the lien that he was authorized to act as president at the time. created by the statute, which was duly acknowledged But it is said that if he was president of the company,

aud recorded. and so according to the customary mode of transacting October 27, 1870, the Legislature, by an act amendsach business, authorized to transfer the note, the pre- | ing the act of December 3, 1866, authorized the goversumption that he was so authorized is disproved by the nor to indorse an additional $3,000 per mile of the by-laws which are a part of the case. And it is true bonds of the company, which was done, and of this that no specific authority to indorse notes is given by series of bonds the complainant became the holder and the code or by-laws to the presideut or to any other owner of nineteen for $1,000 each. officer of the company. But it does not follow that It is then alleged that on July 1, 1873, the company such authority is not necessarily implied in powers failed to pay its interest coupons upon both these sets which are granted. And it should be remembered of indorsed bonds, and that in a few days thereafter that this is not an action against the company as in- the governor, under the power vested in him by the dorsers upon the contract of indorsement. It is a suit act of 1866, took possession of the road and the probetween other parties involving only the authority of perty of the company and placed them in the hands of the president to sell the note in payment of a demand

Flewellen as receiver; and that on the first Tuesday in against the company, and in addition to the presump- June, 1875, he sold said road to the State of Georgia tion arising from the usual course of such transactions, for the sum of $1,000,000, and made a conveyance of it the president is made by the by-laws ex officio treas- to the State accordingly, a copy of which is filed as an urer; and so be had the legal custody of the assets." exhibit to the bill. It is also alleged that the State of

JOHN D. LAWSON. Georgia has taken up since that time the entire issue ST. LOUIS, Mo.

of $1,950,000, giving her own bonds in place of the bonds

which she had so indorsed. JURISDICTION OF FEDERAL COURTS WAERE

The bill assails this transaction because the goverSTATE NECESSARY PARTY.

nor, in advertising the sale, gave notice that he would

accept in payment for bids bonds of the State at par, SUPREME COURT OF THE UNITED STATES,

or bouds of the first series of $1,950,000 at their market DECEMBER 3, 1883.

value, or cash, and would not receive any of the sec

ond series of $600,000 in payment. Also because the CUNNINGHAM v. Macon and BRUNSWICK RAILROAD

sale was made improvidently, at a bad time, as the Co.

governor was informed by his agent, Flewellen, and Under a statute of Georgia the governor of that State took because the governor was not authorized to bid for the

possession of a railroad therein and sold it to the State. property, and the State had no constitutional power This was done upon a default in the payment of bonds to make the purchase. issued by the railroad company, and indorsed by the And it is further alleged that if the sale is not abState, which were a prior lien upon the railroad. The holders of a second series of bonds in an action against

solutely void, it is voidable, because under the statuthe governor and others sought to set aside the sale on

tory and executed mortgages the State is trustee of the ground of irregularities therein, and on the ground

the property mortgaged, for the benefit of the bondthat the State had no constitutional power to purchase, holders, and her purchase can be set aside by the beneand also to foreclose the mortgage under which their

ficiaries under the trust when they elect to do so. The bonds were issued. Held, that the State was a necessary bill insists that by the taking up and payment of the party to the action and being so the Federal courts had first series of indorsed bonds their lien on the propno jurisdiction thereof.

erty is extinguished, and that of the second series is PPEAL from the Circuit Court of the United States now become paramount, and this suit is brought to

for the Southeru District of Georgia. The opin- foreclose that mortgage lien. jon states the case.

And if the court shall be of opinion that the sale was MILLER, J. This is an appeal from the decree of the valid, then the bill insists that the holders of the secCircuit Court for the Southern District of Georgia, ond series were entitled to be paid pro rata under that dismissing the bill of complainant on demurrer.

sale, aud that when the Legislature of Georgia appro

A

us.

priates any money to pay the bonds which it gave in cuit Courts of the United States, or have been reexchange for $1,950,000 of the indorsed railroad bonds, moved into them from the State courts. the amount so appropriated should be divided pro rata The original jurisdiction of this court has also been between these bonds and the $600,000 of the second invoked in the recent cases of State of New Hampshire series of indorsed bonds.

v. State of Louisiana, and State of New York v. State of The prayer of the bill is for the appointment of a Louisiana. These latter suits were based on the proreceiver, to whom all the property of the company position that the constitutional provision that States shall be delivered; that the mortgage be foreclosed might sue each other in this court would enable a and the proceeds applied to payment of the bonds State whose citizens were owners of obligations of of the second series so far as necessary for that pur- another State to take a transfer of those obligations to pose.

herself and sue the defaulting State in the court. The Or if the court shall be of opinion that the sale was doctrine was overruled in those cases at the last term valid, that Renfroe be enjoined from paying the by the unanimous opinion of the court. coupons of interest on the State bonds exchanged for In the suits which have been instituted in the Cir. first series of bonds, and that the holders thereof be cuit Courts the effort has been, while acknowledging made parties to the suit, and be compelled to account the incapacity of those courts to assume jurisdiction to the holders of the $600,000 series of bonds for their of a State as a party, to proceed in such a manner pro rata sbare of said exchanged bonds; and the bill against the officers or agents of the State government, prays that Colquitt, the governor, and Renfroe, the or against property of the State in their hands, that treasurer and the three directors of the company be relief can be had without making the State a party. compelled by subpoena to appear and answer it and The same principle of exemption from liability to certain interrogatories in it, and produce certain suit as applied to the government of the United papers, and that Renfroe be enjoined from paying the States has led to like efforts to enforce rights against coupons on the State bonds exchanged for the in- the government in a similar manner. And it must be dorsed bonds, and that the State of Georgia may come confessed, that in regard to both classes of cases, the in and make herself a party defendant to this bill if questions raised have rarely been free from difficulty, she should wish to do so; and there is a prayer for and the judges of this court have not always been able general relief.

to agree in regard to them. Nor is it an easy matter To this bill there was filed by Flewellen, Lofton, and to reconcile all the decisious of the court in this class Jones, the directors, a demurrer and plea, as it is of cases. called. The plea is to the effect that they have no in- While no attempt will be made here to do this, it terest in the road otherwise than as agents of the may not be amiss to try to deduce from them some State of Georgia, for which they hold and control the general principles, sufficient to decide the case before Macon and Brunswick Railroad and all its property and franchises of every description, and the plea and It may be accepted as a point of departure unquesdemurrer both rely on the proposition that the court tioned, that neither a State nor the United States can has no jurisdiction of the case, because it cannot pro- be sued as defendaut in any court in this country ceed without the State as a party, and that the court without their consent, except in the limited class of cannot compel the State to become a party to the cases in which a State may be made a party in the suit.

Supreme Court of the United States by virtue of the Renfroe, the treasurer, filed a similar plea and Col- original jurisdiction conferred on that court by the quitt, the governor, filed a demurrer and a plea separ- | Constitution. ately.

This principle is conceded in all the cases, and whenThe grounds of demurrer stated by the governor are ever it can be clearly seen that the State is an ivdisthat it is apparent on the face of the bill that the court pensable party to enable the court, according to the cannot take cognizance of the matters and things set rules which govern its procedure, to grant the relief up in said bill as against the defendant, because it ap- sought, it will refuse to take jurisdiction. But in the pears that he has no personal interest in the same, but desire to do that justice, which in may cases the courts that it is an attempt to make the State of Georgia a can see will be defeated by an unwarranted extension party to the suit through the defendant as governor, of this principle, they have in some instances gone a so as to bind the State by the judgment and decision long way in holding the State not to be a necessary of the court in the case.

party, though some interest of hers may be more or On this demurrer of Colquitt and the joint demurrer less affected by the decision. In many of these cases of the three trustees the case was decided and the bill the action of the court has been based upon principles dismissed.

whose soundness cannot be disputed. A reference to a Mr. Justice Woods, in dismissing it, said: “The bill few of them may enlighten us in regard to the case is to all intents and purposes a suit against the State. now under consideration. It is mainly her property, and not that of Alfred H. 1. It has been held in a class of cases where property Colquitt or J. W. Renfroe that is to be affected by the of the State, or property in which the State has an indecree of this court. It is the title of the State that is terest, comes before the court and under its control, assailed. The attack is not made against the State in the regular course of judicial administration, withdirectly, but through her officers. This indirect way out being forcibly taken from the possession of the of making the State a party is just as open to objec-government, the court will proceed to discharge its tion as if the State had been named as a defendant." | duty in regard to that property. And the State, if it 3 Woods, 426.

choose to come in as plaintiff, as in prize cases, or to The failure of several of the States of the Union to intervene in other cases when she may have a lien or pay the debts which they have contracted and to dis- other claim on the property, will be permitted to do charge other obligations of a contract character, when so, but subject to the rule that her rights will receive taken in connection with the acknowledged principle the same consideration as any other party interested that no State can be sued in the ordinary courts as a in the matter, and be subjected iu like manner to the defendant except by her own consent, has led, in re- judgment of the court. Of this class are the cases of cent times, to numerous efforts to compel the perform- The Siren, 7 Wall. 157; The Davis, 10 id. 20; and Cook ance of their obligations by judicial proceedings to v. Barnard, at the last term. which the State is not a party.

2. Another class of cases is where an individual is These suits have generally been instituted in the Cir. sued in tort for some act injurious to another in regard to person or property, to which his defense is firmative relief granted by ordering the governor and that he has acted under the orders of the govern- land commissioner to perform any act toward perfectment.

ing the title of the company. In these cases he is not sued as, or because he is the Tbe case of Board of Liquidation v. McComb is to officer of the government, but as an individual, and the same effect. The board of liquidation was charged the court is not ousted of jurisdiction because he as- by the statute of Louisiana with certain duties in reserts authority as such officer. To make out his de- gard to issuing new bonds of the State in place of old fense he must show that his authority was sufficient in ones which might be surrendered for exchange by the law to protect him. See Mitchell v. Harmony, 13 How. holders of the latter. The amount of new bonds to be 115; Bates v. Clark, 95 U. 8. 209; Meigs v. McClung, 9 issued was limited by a constitutional provision. McCraneb, 11 ; Wilcox v. Jackson, 13 Pet. 498; Brown v. Comb, the owner of some of the new bonds already isHuger, 21 How. 305; Grisar v. McDowell, 6 Wall. 363. sued, filed his bill to restrain the board from issuing

To this class belongs also the recent case of United that class of bonds in exchange for a class of indebtedStates v. Lee, 106 U. S., for the action of ejectment in ness not included within the purview of the statute, that case is, in its essential character, an action on the ground that his own bonds would thereby be of trespass, with the power in the court to re- rendered less valuable. This court affirmed the destore the possession to the plaintiff as part of the cree of the Circuit Court enjoining the board from exjudgment. And the defendants, Strong and Kauf- ceeding its power in taking up by the new issue a man, being sued individually as trespassers, set up class of State indebtedness not within the provisions their authority as officers of the United States, which of the law on that subject. 92 U. S. 531. this court held to be unlawful, and therefore insuffi- In the opinion in that case the language used by Mr. cient as a defense. The judgment in that case did not Justice Bradley well and tersely thus expresses the rule conclude the United States, as the opinion carefully and its limitations : stated, but held the officers liable as unauthorized tres- “The objections to proceeding against State officers passers, and turned them out of their unlawful pos- by mandamus or injunction are, first, that it is in session.

effect proceeding against the State itself; and sec3. A third class, which has given rise to more con- ond, that it interferes with the official discretion troversy, is where the law has imposed upon an officer vested in the officers. It is conceded that neither of of the government a well defined duty in regard to a these can be done. A State without its consent canspecific matter, not affecting the general powers or not be sued as an individual; and a court cannot sub. functions of the government, but in the performance of stitute its own discretion for that of executive officers, which one or more individuals have a distinct interest in matters belonging to the proper jurisdiction of the capable of enforcement by judicial process.

latter. But it has been settled that where a plain offiof this class are writs of mandamus to public officers, cial duty requiring no exercise of discretion is to be as in Marbury v. Madison, 1 Cranch, 137; Kendall v. performed, and performance is refused, any person Stokes, 3 How. 87; United States v. Schurtz, 102 U. S. who will sustain a personal injury by such refusal may 118; United States v. Boutwell, 17 Wall. 604.

have a mandamus to compel performance; and when But in all such cases, from the nature of the remedy such duty is threatened to be violated by some positive by mandamus, the duty to be performed must be official act, any person who will sustain personal inmerely ministerial, and must involve no element of jury thereby, for which adequate compensation cannot discretion to be exercised by the officer.

be had at law, may have an injunction to prevent It has however been much insisted on that in this it.” class of cases, where it shall be found necessary to en- It is believed that this is as far as this court has gone force the rights of the individual, a court of chancery, in granting relief in this class of cases. The case of may, by a mandatory decree or by an injunction, com- Osborne v. The Bank, 9 Wheat. 738, often referred to, pel the performance of the appropriate duty, or enjoin was upon this principle, and goes no further; for in the officer from doing that which is inconsistent that case, a preliminary injunction of the court forbidwith that duty and with plaintiff's rights in the premi- ding the State officer from placing the money of the ses.

bank, which he had seized, in the treasury of the State, Perhaps the strongest assertion of this doctrine is having been disregarded, the final decree corrected found in the case of Davis v. Gray, 16 Wall. 203.

this violation of the injunction, by requiring the resIn that case, the State of Texas having made a grant toration of the money thus removed. See Lousiana v. of the alternate sections of land along which a rail-Jumel, 107 U. S. 711. road should thereafter be located, and the railroad On the other hand, in the cases of Louisiana v. Jumel, company having surveyed the land at its own expense and Elliott v. Wiltz, decided at the last term, very ably and located its road through it, the commissioner of argued and very fully considered, the court declined the State land office and the governor of the State, to go any further. 107 U. S. 711. were in violation of the rights of the company selling In the first of these cases the owners of the new bonds and delivering patents for the sections to which the issued by the board of liquidation mentioned in Mccompany had an undoubted vested right. The Circuit Comb's case, above cited, brought their bill in equity, in Court en joined them from doing this by its decree, the Circuit Court of the United States, to compel the which was affirmed in this court.

auditor of State and the treasurer of the State to pay,out Judge Hunt did not sit in the case, and Justice Davis of the treasury of the State, the overdue interest-couand Chief Justice Chase dissented, on the ground that pons on their bonds, and to enjoin them from paying it was in effect a suit against the State. Though there any part of the taxes collected for that purpose for the are some expressions in the opinion which are unfa- ordinary expenses of the government. They at the vorably criticised in the opinions of both the majority same time applied to the State court for a writ of manaud minority of this court in the recent case of the damus to the same officers, which suit was removed United States v. Lee, the action of the court has not into the Circuit Court of the United States. In this been overruled.

tbey asked that these officers be commanded to pay, out But it is clear that in enjoining the governor of the of the moneys in the treasury, the taxes which they State in the performance of one of his executive func- maintained had been assessed for the purpose of paying tions, the case goes to the verge of sound doctrine, if the interest on their bonds, and to pay such sums as had not beyond it, and that the principle should be ex- already been diverted from that purpose to others by tended no further. Nor was there in that case any af- the officers of the government.

just.

The Circuit Court refused the relief asked in each and the purchaser under a foreclosure decree would case, and this court affirmed the judgment of that get no title in the absence of the State. The State is court.

in the actual possession of the property, and the propThe short statement of the reason for this judgment erty, and the court can deliver no possession to the is, that as the State could not be sued or made a party purchaser. The entire interest, adverse to plaintiff to such proceeding, there was no jurisdiction in the

in this suit is the interest of the State of Georgia in Circuit Court either by mandamus at law, or by a de- the property, of which he has both the title and poscree in chaucery, to take charge of the treasury of the

session. State, and seizing the hands of the auditor and treas- On the hypothesis that the foreclosure by the gover. urer, to make distribution of the funds found in the por was valid, the trust asserted by plaintiff is vested treasury in the manner which the court might think in the State as trustee, and not in any of the officers

sued. The chief justice said: “The treasurer of the State No money decree can be reudered against the State, is the keeper of the money collected from this tax, nor against its officers, nor any decree against the just as he is the keeper of other public moneys. The treasurer, as settled in Louisiana v. Jumel. taxes were collected by the tax collectors and paid If any branch of the State government has power to over to him, that is to say, into the State treasury, just give plaintiff relief it is the legislative. Why is it not as other taxes were when collected. He is no more a sued as a body, or its members by mandamus to comtrustee of these moneys than he is of all other public pel them to provide means to pay the State's indorsemoneys. He holds them only as agent of the State.

ment? If there is any trust the State is the trusteo, and unless The absurdity of this proposition shows the imposthe State can be sued the trustee cannot be enjoined. sibility of compelling a State to pay its debts by judicThe officers owe duty to the State alone, and have no

ial process. contract relations with the bondholders. They can The decree of the Circuit Court is only act as the State directs them to act and hold as

Affirmed. the State allows them to hold. It was never agreed that their relations with the bondholders should be other

TELEGRAPA ADDITIONAL BURDEN UPON HIGHthan as officers of the State, or that they should have

WAY REQUIRING COMPENSATION TO any control over this fund except to keep it like other

PROPERTY OWNER.
funds in the treasury, and pay it out according to law.
They can be moved through the State, but not the
State through them."

ILLINOIS SUPREME COURT, OCTOBER 2, 1883. We think the foregoing cases mark, with reasonable precision, the limit of the power of the courts in cases BOARD OF TRADE TELEGRAPH Co. v. BARNETT. affecting the rights of the State or Federal governments The construction and maintenance of a telegraph line upon a in suits to which they are not voluntary parties.

highway is a new and additional burden upon the fee to Iu actions at law, of which mandamus is one, where which, when the highway was established, it was not conan individual is sued, as for injuries to person or

templated it should be subjected, and for which the owner to property, real or personal, or in regard to a duty

is entitled to additional compensation.

CTION of trespass. The opinion states the case. ment does not stand behind him to defend him. If he

Appeal by defendant below. has the authority of law to sustain him in wbat he has Francis C. Russell, and Allan C. Story, for appellant. done, like any other defendant, he must show it to the court and abide the result. In either case the State is

Happy and Travous, for respondent. not bound by the judgment of the court, and generally

SCOTT, J. This was an action of trespass quare its rights remain unaffected. It is no answer for the clausum fregit, brought by Kimbro T. Barnett, against defendant to say, I am an officer of the government and the Board of Trade Telegraph Company. The declaraacted under its authority, unless he shows the suffi

tion is in the usual form, the gravamen of the action ciency of that authority.

being that defendant entered with force and violence Courts of equity proceed upon different principles in upon the premises of plaintiff, and dug holes and regard to parties. As was said in Barney v. Baltimore, erected thereon telegraph poles upon which to place 6 Wall. 380, there are persons who are merely formal its wires. The pleas of not guilty and liberum teneparties without real interest, and there are those who mentum, originally filed to the declaration, were both have an interest in the suit, but which will not be in- withdrawn, and the matters insisted upon as a defense jured by the relief sought, and there are those whose to the action were embraced in five special pleas. The interest in the subject-matter of the suit renders them substance of the first three pleas is the locus in quo indispensable as parties to it. of this latter class the was a public highway; that defendant was and is a court said, in Shields v. Barrow, 17 How. 130, “they corporation existing under the laws of Illinois; that are persons who not only have an interest in the con- the acts complaived of were necessarily and properly troversy, but an interest of such a nature that a final done in the building of the telegraph line of defendant decree cannot be made without affecting that interest along such highway, and that the building of such or leaving the controversy in such a condition that its telegraph line was done under and according to the final disposition may be wholly inconsistent with

written and recorded consent of the county board of equity and good conscience."

the county in which the premises are situated. The “In such cases," says the court in Barney v. Balti- additional matters contained in the other special pleas more, “the court refuses to entertain the suit when

add nothing to the strength of the defense, and it will these parties cannot be subjected to its jurisdic- not be necessary, as the case comes before this court

to state their contents. To the special pleas setting Iu the case now under consideration the State of up the facts above stated, with some others of no conGeorgia is an indispensable party. It is in fact the only

siderable importance, with the usual fullness and proper defendant in the case. No one sued has any formality, the Circuit Court sustained a general depersonal interest in the matter or any official author

The defendant electing to stand by its plens ity to grant the relief asked.

of justification, the court rendered judgment as upon No foreclosure suit can be sustained without the

nil dicit, and proceeded to hear evidence with a view State, because she has the legal title to the property,

to assess plaiutiff's damages. It was proven plaintiff

which he is personally
bound to perform, the

govern | A

tion,"

murrer.

was the owner of the land described in the declara- graph in this State. Permission in writing was given tion; that defendant by its employees entered upon by the proper county board to erect poles on the highthe premises, and commenced digging holes and put- way in question, on which to maintain its line of teleting up telegraph pules; that plaintiff asked them graph, care to be taken to do no unnecessary injury. wbat authority they had for so doing, and was told Plaintiff was and is the owner of the fee, and objected they had permission from the county board. After- to that use of the highway, but his wishes were disreward they went on and put up twenty-six poles along garded. No effort was made to agree with him as to the sides of the hedge, without the consent of plaintiff. the damages he would sustain, nor to assess the same The poles erected are outside of the hedge growing at under the statute. It is conceded the locus in quo is an the side of the highway, but close to it. In some in- ordinary highway, situated without the limits of any stances the employees cut away the hedge, because it municipal corporation. The highway was constructed was in their way, and they also cut down two hedge over lands owned by plaintiff. Of that no question is trees that were intended for gate posts where they made. It follows therefore plaintiff is the owner of stood. It was further proven the land where the poles the fee to the center of the highway, subject only to were erected belonged to plaintiff, subject to the right an easement over and upon it in favor of the public. of way, aud that the highway was used by the public. The position taken by defendant is, that the State can It was also proven the erection of the poles by defend-rightfully, as it has done, authorize the county board ant would render it inconvenient for plaintiff to trim to permit defendant to construct its line of telegraph his hedge with machines constructed for that pur- upon the highway without the consent of the abutting pose. Thereupon the Circuit Court assessed plaintiff's land owner; that it imposes no new or additional damages at $78, and from the judgment rendered de- burden thereon, and that when the publio acquire an fendant obtained an appeal to the Appellate ('ourt for easement over land, for a compensation fully paid, the the Fourth District, where the judgment of the trial public obtain all the rights the land owner had, and court was affirmed. A majority of the judges of the the State may authorize any use of it not inconsistent Appellate Court having certified that in their opinion with its use as a highway. On the other hand it is intbis “case involves a question of law of such import- sisted the proprietary rights of plaintiff have been inance, on account of collateral interests, that it should terfered with in a manner detrimental to his interests be passed upon by the Supreme Court," defendant as the owner of the fee, and that the action of debrings the case to this court on its further appeal, as fendant in taking possession of his land forcibly and it is permitted to do under the practice.

against his will comes within the constitutional inhiThe objection an action of trespass quare clausum bition, "private property shall not be taken or damfregit will not lie in such a case as the one being con- aged without just compensation.” The latter position sidered, is settled adversely to the position taken by is the one best sustained by authority, and rests on defendant in the decision of this court in Indianapolis,

sounder principles. It is for the reason the construcBloomington and Western R. Co. v. Hartley, 67 I11. 439. tion and maintenance of a telegraph line upon the highThat in some respects, was an analogous case, the form way is a new and additional burden upon the fee to of action being the same, and plaintiff was permitted which it was not contemplated it should be subjected, to recover.

and for which the owner is entitled to additional comAuthority is given by the statute to all telegraph pensation. The principle is, neither the State nor a companies to erect poles on which to place their wires, municipal corporation has any rightful authority, on all highways or public roads, by first obtaining the under the Constitution, to grant away the private consent in writing of the county board of the county property of the citizen, and if corporations quasi pub in which such highway is situated. Of course that lic, in the exercise of the right of eminent domain with permission is given subject to the constitutional iubi- which they are clothed by the sovereign power of the bition, “private property shall not be taken or dam- State, seek to appropriate it, so that they may have a aged for public use without just compensation.” Pro- benefit therefrom, every principle of justice demands vision is also made by law for ascertaining the com- they should make just compensation, whether the pensation to be paid to the owner when it shall be property taken or damaged is of little or great value. necessary to take or damage any property for the con- But aside from all considerations of right and justice, struction, alteration or repair of any line of telegraph.

the Constitution has so declared, and its mandate in Res. Stat. 1874, chap. 134.

that respect may not be disregarded. A case having The principal question arising on the record may be many features in common with the one now before the stated to be, is the right to erect and maintain lines of court is Indianapolis, Bloomington and Western R. Co. telegraph thereon a part of the public easement in a v. Hartley, 67 Ill. 439. It was there said: “A distinccommon highway, or is such a structure a new and tion has been taken where the municipality granting additional burden upon the fee, for which the owner the right to lay a track owns the fee in the street, and of the fee may maintain an action? It was held by where the fee remains in the abutting land owner, and the trial court, and its decision was affirmed by the it seems to us it rests on sound principle, and is supAppellate Court, the erection and maintenance of a ported by the highest authority. Where the fee reline of telegraph on the highway, although done with mains in the original proprietor it is immaterial how the consent of the county board, was a new and addi-| the public acquired an easement over the landstional burden upon the fee, and a recovery by the

whether by condemnation or by dedication. It is owner was permitted. The correctness of that decision only for the use of ordinary travel, such as we are acis challenged on this appeal.

customed to see on streets or highways. In case the The question raised is important, and being one of proprietor dedicated the land, it was for no other purfirst impression in this court it has been fully con- pose; and if it was condemned, his damages were assidered. Although the case has been elaborately ar

sessed with no other view. A different use of the land gued, the views entertained by the court may be

caunot be justified on the ground that a railway is an briefly stated without any extended discussion. There improved highway. Railway companies are only pubcan be no disagreement as to the facts of the case as

lic corporations in a limited sense. The right of way, they appear from the pleadings by admission on de- the road bed and the carriages propelled thereon, are murrer. Only questions of law remain to be consid- owned by private individuals, and not by the public. ered on the admitted facts. As has been seen, de- Fares are charged for travel thereon for the exclusive fendant is a corporation existing under the laws of this

benefit of parties owning the road. They are conState, with power to construct and use a line of tele

structed and equipped in the interest of private specu

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