Claiborne County MsArchives Court.....Thompson, Mr 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Thompson, Appellant, v. The Grand Gulf Railroad and Banking Company.

pages 240-251

Under that provision of the bill of rights which declares, that "no person's 
property shall be taken or applied to public use without the consent of the 
legislature, and without a just compensaion first made therefor," the 
compensation must precede the seizure of the property for public uses.

That provision of the charter of the Grand Gulf Railroad and Banking Company 
which, in case the company cannot agree with the owners of land over which 
said road is to pass, upon the compensation to be paid therefor, authorises 
the company to petition to the circuit court of Claiborne county, to summon 
and empannel a jury to assess the damages, and directs the court, upon 
valuation assessed, to convey the land to the company, and give judgment and 
execution against the company, and in favor of the owner of the land, for the 
amount of the valuation, is unconstitutional. Judgment and execution is not 
compensation within the meaning of the constitution.

This court has no power to render a different judgment from that directed by 
the legislature. The court will declare the remedy provided insufficient, but 
will not undertake to give one that is sufficient.

A proceeding by petition under the charter of the Grand Gulf Railroad and 
Banking Company, to assess the value of the land over which the road is to 
pass, and also assess the damages, so affects the interests of the owner as to 
make him a party to the proceedings.

APPEAL from the circuit court of Claiborne county.

The Grand Gulf Railroad and Banking Company filed their petition against 
Thompson, in the circuit court, praying for a jury to assess the damages which 
would be sustained by Thompson, by their railroad passing over his land, and 
also, to assess the land which would be taken for the purpose of making the 
road.

The provision of the charter of the road, under which this proceeding was had, 
is as follows:

"The said company, if they can agree with the owners, may purchase any land 
that they may deem necessary and expedient; and in case they cannot agree with 
the owners of the land upon the terms of purchase, or in case the owner or 
owners shall be under any legal disability to contract, the said company, on 
their failure, (the owner or owners,) may petition to the circuit court of 
Claiborne county, to summon and empannel a jury of twelve freeholders of said 
county, who shall be sworn to view and value such land, and assess damages, if 
any be sustained, without favor or partiality, and report their valuation and 
assessment to the said circuit court; provided, that, in making said valuation 
and assessment, the said jury shall take into the estimate, the benefit 
resulting to the owners from constructing said railroad through, along, or 
near the property of such owner, but only towards the extinguishment of the 
claim for damages; and the circuit court shall thereupon, cause a conveyance 
of the land to be made to said company, and the said owner shall be entitled 
to the amouut of valuation, and assessment reported by the jury, and the said 
court shall grant judgment and execution thereon against said company."

A jury were summoned on the prayer of the petitioner, who assessed the value 
of the land at 922 dollars and 62 1/2 cents, without giving any damages. The 
court gave judgment against the company for that sum, and decreed a conveyance 
of the land, and appointed a commissioner to make the same.

The appellant moved the court to instruct the jury, 1. To assess the value of 
the land. 2. That they were to take into consideration all the circumstances 
connected with this section of the railroad by which the plaintiff would be 
injured or benefitted, and allow damages or not accordingly. 3. That the jury 
were to consider the injury which the appellant would sustain in his ferry, a 
bridge across the Bayou Piere, and, also, the enhanced value of his land if 
any, and allow damages or not, as they might believe he was benefitted or 
injured.

The court charged the jury first, that, they were to assess the value of the 
land which the company wished to obtain. That, they were to take into 
consideration the damages which the owner of the land would sustain from the 
erection of the road, and also, the advantages which might accrue to him. That 
in their estimate they were not to know that the appellant had a bridge or 
ferry across said stream, the legislature in granting the privilege of the 
bridge and ferry having expressly reserved the right to establish a railroad 
or turnpike within the limits reserved to the appellant in his charter, and 
had provided the mode of assessing the value of his bridge or ferry privilege, 
and of renumerating him therefor.

Exceptions were taken, and an appeal to this court.

There was also, a motion to dismiss the cause in this court for want of 
jurisdiction, and proper parties: Upon which Mr. Justice TROTTER gave the 
following opinion.

The motion to dismiss this cause for the want of jurisdiction in this court 
must be overruled. The present proceeding was authorised by the act of 1833, 
and the supplemental act of 1836, to incorporate the Grand Gulf Railroad and 
Banking Company. The plaintiff in error was properly and necessarily a party 
to the proceeding, because his interests were involved in the suit. It was 
therefore a controversy between the defendants in error and the plaintiff, and 
an appeal lies in all such cases after final judgment.

Montgomery and Boyd, for the appellants.

The charter granted Thompson to build a bridge, reserves the right to 
incorporate a turnpike or railroad, and prescribes the mode of ascertaining 
and making compensation. See Acts, 1833, p. 215, sect. 6.

The charter granted the bank, authorises the company to buy land of the 
owners; and prescribes the mode of assessment compensation in cases of 
disagreement, or incompetency of owner to contract, by petition to circuit 
court and appointment of a jury to view and value, and gives the court power 
to cause a conveyance to be made, and give judgment against the company for 
amount assessed. Acts 1834, p. 142, sect. 4.

Amendment to the charter provides more fully for the manner of proceeding to 
assess compensation, but provides, that the jury may take into consideration 
the benefits the party will receive as a set-off to the claim for damages. 
Acts, 1836, p. 170, sect. 1.

If private property is required for public use, due and adequate compensation 
must first be made; and that must be ascertained by a jury, and paid in money. 
Constitution of Mississippi, Bill of Rights, sect. 13; Angel on Water Courses, 
35 note 1, and the authorities there cited; 2 Johns. Cha. Rep. 161.

1. The charter of the Grand Gulf Bank is unconstitutional, because there is no 
provision that the road shall ever become public property; it is therefore 
private.

2. Because it makes no provision to pay Thompson for the interference with his 
chartered right on the Bayou Piere, to one mile above and below his bridge. 2. 
Johns. Cha. Rep. 161.

The right of trial by jury applies to this case, as in ordinary trials, and 
the right of challenge attaches. Rev. Code, 137, sect. 142.

The power to summon talesmen is given by the same statute, and in nearly the 
same, at any rate not stronger language; and if the court had not the right to 
sustain a peremptory challenge, it had not the right to order talesmen to be 
summoned. Rev. Code, 137, sect. 133.

The court should have instructed the jury to inquire into the nature and value 
of the bridge and ferry, because they were appurtenant to the land, and added 
to the value, and whatever would have a tendency to divert the travel, reduced 
the value of the appurtenances.

Anderson, for the appellee.

The legislature have the power to appropriate private property to public uses, 
upon making compensation to the owner. 20 Johns. Rep. 735—745; 4 Wend. Rep, 
647, and 667; 8 Ibid. 101—2.

This power is probably not questioned; but it is insisted by the appellant, 
that the bill of rights in the constitution of Mississippi, which declares, 
that private property shall not be taken or appropriated to public use, 
without just compensation first made—requires, that the compensation must be 
first paid, before the property can be taken. So, considering the 
expression "compensation first made," as meaning nothing more nor less than 
compensation first paid.

This is an erroneous construction of the words. The constitution of New York 
uses the same words, except the word first. All the above cases show, that a 
means of procuring compensation, provided by the act appropriating the private 
property to public use, satisfies the word requiring compensation to be made. 
And the property has been entered upon and appropriated, while the owncr was 
left to seek afterwards, the compensation in the manner provided. Now if the 
word made in this sentence, is to be considered synonymous with the word paid, 
then the constitution of New York, without using the word first, as much 
prohibits the appropriation of the property until payment is made, as does the 
constitution of Mississippi, which does use the word first. For example, 
suppose the words of the constitution of New York were that private property 
should not be taken, or appropriated to public use, without a just 
compensation paid. Would any one be bold enough to say, that an entry on the 
property, and an appropriation thereof to public use, while the owner was left 
to seek the compensation afterwards, by a proceeding which may have been 
provided by the statute appropriating the property, would not be a violation 
of that constitution? And just as much a violation thereof, as it would be, if 
such constitution had used the words first paid? The uniform decisions of New 
York are, that a provision by law made, whereby the owner may seek and obtain 
compensation after his properly is taken, satisfies the prohibition of the 
constitution, that it is not to be taken, without compensation made, showing 
indisputably, the judicial construction of the words "compensation made," is 
not compensation paid, but compensation provided. If this be correct, it 
proves, that the constitution of Mississippi means that the property is not to 
be taken, &c., without a just compensation first provided.

This article of the constitution is addressed to the legislative department of 
the government; it is not restrictive of any executive or judicial functions, 
or private individual action. The constitution contemplates the exercise of 
legislative powers, by enactments, statutes and resolutions, so far as 
respects this subject; and its prohibitions are not predicated on the 
apprehensions that the legislative body of men might, with manual force, 
deprive the citizen of his property, as a man might trespass upon his 
neighbor. Nor does it contemplate that the legislature are to perform the act 
manually or ministerially of paying the compensation to the owner of property 
applied by them to public use. The restriction or prohibition is addressed to 
them as a body in their legislative capacity, as one department of the 
government acting and performing those powers, by prescribing what shall be 
done.

You shall not, by law or resolution, direct or command that the citizen’s 
property be taken for public use, unless you also provide, direct or command, 
or unless you first direct, provide, or command, that a just compensation be 
made him therefor, seems to me to be the plain meaning and proper construction 
of the constitution. But, suppose I am not sustained by the honorable court in 
the construction just given to the constitution, and that the true 
construction of the constitution is, that the just compensation is to be 
actually first paid to the owner of property, before it is taken for public 
use. I ask, how does the act of 1836, amending the charter of the Grand Gulf 
Railroad and Banking Company, conflict with this construction of the 
constitution? That statute provides, that the compensation for private 
property, which is to be appropriated to the use of the road, is to be 
assessed in a mode pointed out, that judgment is to be given for it, and it is 
to be collected by execution and paid to the owner. It also provides, that the 
company may enter upon the property; and it provides, that the court shall 
cause the property to be conveyed to the corporation; but it does not say 
which of all those things shall be first done. If the constitution declares 
which shall be first done, be it so; let the constitution be obeyed; let the 
things which the statute declares shall be done, be done in the order in which 
the constitution directs, and then the constitution and statute are in perfect 
harmony.

I grant an inference might be drawn from the order of the provisions of this 
statute, that the legislature intended the appropriation of the property 
before a compensation is paid, but it is but an inference. The court, in 
giving a construction to an act of the legislature, will always act on the 
belief that that co-ordinate department of the government had as much regard 
for the constitution as itself; and any inference which would involve the 
legislature in a violation of the constitution, will be rejected. And the 
court will strive to construe the act in accordance and agreement with the 
constitution, if it will bear such construction. 2 Tenn. Rep. 346. Act of 
1833; chap. 8, p. 214. The privilege granted to Thompson is a violation of the 
1st sect. of the 1st article of the constitution.

The act of 1833 provides a particular mode, by which the appellant was to be 
compensated for his bridge, and no other can be resorted to. The charge of the 
court was correct on that point, for which I cite an authority directly in 
point. 4 Wend. Rep. 667. This was the only difference between the charge 
given, and that which was requested by the appellant.

The authorities first cited, show that this is a public use; the construction 
of a road is a public work, although allowed to be done by an individual or a 
company for their private emolument.

The legislature have the power to appoint commissioners to assess the value of 
private property and damages, &e., without the intervention of a jury or a 
suit in court in the ordinary mode. And such is this proceeding: the judge and 
the twelve freeholders are but commissioners to assess the value of the land 
and damages; and, although this was a controversy, as this court have decided 
upon a motion heretofore made in this case, and, therefore, was embraced by 
the statute, giving appeals from the circuit court; yet it is not an action or 
suit in which the usual mode of summoning and empanneling a jury are observed; 
and, as the stature gave no challenges of the freeholders, the appellants had 
none peremptory, and the judge was correct in so deciding. 4 Wend. Rep. 667; 8 
Ibid. 1O1—2.

Mr. Chief Justice SHARKEY delivered the opinion of the court at a subsequent 
day of the term.

The present controversy arose out of an application by the appellees to the 
circuit court of Clairborne county, to have the damages assessed to the 
appellee, which he might sustain by running the railroad through his land. The 
proceeding was instituted under the 4th sect, of the charter, which authorises 
the company to purchase of individuals any lands, or the use and occupation of 
any lands which they may deem necessary; and in case they cannot agree upon 
the terms of purchase, with the owners of land, they may petition the circuit 
court of Clairborne county to empannel a jury of twelve freeholders, who shall 
be sworn to view and value the land without favor or partiality, and report 
their valuation to the circuit court, and the court shall thereupon cause a 
conveyance to be made to the company, and adjudge the assessed value thereof 
to the owner of the land. The amendment to the charter, passed in 1837, 
provides in addition, that in assessing the damages, the jury shall take into 
consideration the benefits resulting to the owner of land from constructing 
such road, but only towards the extinguishment of the damages, and that the 
court shall grant a conveyance, and render judgment and award execution 
against the company for the amount of the damages assessed.

Several objections are made to the regularity of the proceedings of the 
circuit court, but it will be unnecessary to notice them in detail, as the 
case must be disposed of on the grave question of the constitutionality of the 
charter, taken and relied upon in the argument. That part of the charter which 
is said to conflict with the constitution, is the latter clause of the first 
section of the amendment. The ground taken arises under the provision in the 
bill of rights, which declares that "no person’s property shall be taken or 
applied to public use without the consent of the legislature, and without just 
compensation first made therefor."

It is insisted that the compensation should be first made, and that a judgment 
is not compensation. On the other hand it is said that it is sufficient for 
the legislature to provide the means by which compensation is to be acquired. 
To determine between the constitution and the legislature, is often 
embarrassing, and always demands a cautious and deliberate investigation. In 
the inquiry is involved the highest function of the judicial department. The 
acts of the legislature should be sustained, if possible; the constitution 
must be preserved inviolate. We have approached this question under a due 
sense of its importance, and have given to it such investigation as the limit 
of our time would admit, and we are entirely satisfied with the correctness of 
the result to which that investigation has led.

It is a sound rule in construing constitutions, that no word is to be rejected 
or disregarded which may have a material bearing on the rights of the citizen, 
and such construction should be given as will best protect private rights, 
because constitutions are limitations, which confine each department of the 
government to the exercise of such power only as have been delegated. The 
word "first" used in the bill of rights, cannot be regarded as useless; nor 
are we at liberty to suppose that it was inserted without design or by 
accident. The sentence is perfectly intelligible as it stands, and in 
accordance with first principles. By regarding the word "first" as material, 
there can be no difficulty in carrying the provision into execution by proper 
legislation; but by rejecting it, and assuming the position that it is 
sufficient for the legislature to provide the means or the mode of obtaining 
compensation, the provision might be wholly defeated, and owners compelled to 
part with their property without compensation. If the law be sustainable, it 
must operate generally, there is no exception to it. Suppose that a company or 
corporation, to whom private property is adjudged, should be wholly 
irresponsible, and it is not straining too much to suppose such a case, what 
compensation has the owner for his property? But even if it should be 
responsible, is it fair or just to convey away private property, and only 
provide the owner with a legal remedy for the value, which may easily be 
exhausted in the pursuit of the remedy. These, amongst others, are evils which 
might follow under an administration of the provisions of the charter, if they 
are sufficient, and being evils so apparent, it is fair to presume that the 
convention intended to guard against them, and the presumption derives 
strength from the fact that the words they employed, if literally construed, 
are of all others, best calculated to effect this object. The power in a state 
to appropriate private property by virtue of its right of eminent domain, 
should be exercised only in the strictest justice towards the owner of the 
property. Blackstone, in his Commentaries, says, "the public is now considered 
as an individual, treating with an individual for an exchange." 1 Black. Comm. 
139. If this remark be true, it is obvious that neither party would have a 
right to enforce terms on rhe other, which are not acceptable. We cannot 
presume that the convention intended that this right should be exercised 
unless on terms the most favorable to individuals. Life, liberty and property 
are three great objecs of governmental protection, and we must infer that due 
precaution has been used for the protection of each of them. To divest the 
right to property without ample compensation, would be unjust. The judgment in 
this case is not compensation. A judgment is but a security for compensation 
or satisfaction, which may or may not prove productive. In principle there is 
no difference between a judgment and a bond, except that one is a security of 
a higher nature than the other. Suppose the legislature had said that the 
railroad company should give bond for the payment of the damages assessed, 
could it be said to be a compensation? And yet it might be quite as available 
as a judgment. Angell. in a note on this subject, says, "there can be no other 
just equivalent but money." Angell on Water Courses, 40. We must, therefore, 
understand that when the convention said that private property should not be 
taken without compensation first made, that they did not intend that a mere 
security should be substituted for compensation.

The authorities cited for the defendants in error, cannot be considered as 
entirely applicable. The constitution of New York is different from ours, in 
not requiring that compensation shall be first made; it merely declares that 
private property shall not be appropriated to public purposes without just 
compensation. The authorities, however, do not fairly cover the point in 
controversy. The most recent opinion directly on the point, and the one which 
we rely on as an authority, is that of Chancellor Kent, in a copious note to 
the third edition of his Commentaries. After citing many authorities in regard 
to the right of eminent domain, he proceeds to say: "The better opinion is, 
that the compensation, or offer of it, must precede or be concurrent with the 
seizure and entry upon private properly under the authority of the state. The 
government is bound, in such cases, to provide some tribunal for the 
assessment of the compensation or indemnity, before which each party may meet 
and discuss their claims on equal terms; and if the government proceeds 
without taking these steps, their officers and agents may, and ought to be 
restrained by injunction." 2 Kent, 339, note. He says further: "The settled 
and fundamental doctrine is, that government has no right to take private 
property for public purposes without giving a just compensation; and it seems 
to be necessarily implied, that the indemnity should, in cases which will 
admit of it, be previously and equitably ascertained, and be ready for 
reception concurrently, in point of time with, the actual exercise of the 
right of eminent domain." It is worthy of remark too, that Chancellor Kent has 
not given the foregoing opinion in view of any constistution requiring, in 
direct terms, a previous indemnity, but in reference to constitutions 
containing nothing more than the general provision, that private property 
shall not be taken for public uses without full compensation being made; and 
in reference also, to the universal principles of justice, independent of all 
constitutions; for in support of it, he cites Puffendorf, Grotius and others. 
He also cites the Civil Code, and Code Napoleon, as both requiring previous 
indemnity; and says the American constitutions being substantially the same in 
these provisions, though not in the same words, would seem to require the same 
construction; from which we may infer that under these codes, previous 
indemnity is required to be made. The provision in the Civil Code, is, 
that "no one can be divested of his property, unless for some purpose of 
public utility, and on consideration of a previous and equitable indemnity, 
and in a manner previonsly prescribed by law." Civil Code of Louisiana, art. 
489. The idea is not new, that compensation should precede or be concurrent 
with the appropriation of private property, nor is the provision peculiar to 
our constitution. As the right to apply private property to public uses, is an 
incident of inherent sovereignty which might be exercised to the prejudice of 
individuals, it is fair to infer that the conventin were not content that the 
restriction should rest upon the uncertain application of the general 
principles of justice, and, therefore, incorporated it into the constitution, 
thus placing it out of the power of the legislature to exercise the right on 
any other than equitable and just terms. Under this view, we think it was 
incompetent for the legislature to authorise the railroad company to take 
private property, giving the owner no other compensation than a judgment and 
execution.

But it is contended that an imperfect mode of compensation does not 
necessarily make the charter void. That is true, if it could be carried into 
effect. This was held to be the law in the authorities cited. An act 
appropriating private property without providing adequate means for making 
compensation, was held sufficient to protect the agents from an action of 
trespass. The act, it seems, is to be considered, prima facie good, until the 
party be judicially prevented from acting under it. But when there is no mode 
prescribed for making the necessary compensation, a court of chancery would 
prevent the party from proceeding under it by injunction, as was done in the 
case of Gardner v. The Village of Newburg, cited by the counsel. That is 
precisely the case here. The legislature have prescribed no mode of making the 
required compensation, or what is the same thing, have prescribed a mode which 
cannot be constitutionally carried into effect, and the plaintiff in error 
refuses to give up his property, and he cannot be compelled to do so. The 
consequence is, that that portion of the charter which authorises the taking 
of private property, must be inoperative, and we do not wish to be understood 
as interfering with any other part of it. If there was any mode of construing 
the charter by which a constitutional remedy could be given, we should think 
it our duty to give it that construction. But the legislature has provided 
that the owner of land in whose favor damages are assessed, shall have 
judgment and execution for the amount. This is the only remedy that is given, 
and we say it is not sufficient; but we cannot make a remedy that is 
sufficient, by authorising the court to give a different judgment from that 
which is directed by the legislature. That is the business of the legislature 
itse1f, if it should be deemed necessary. If the money had been paid on the 
rendition of the judgment, we should not be prepared to say that it would not 
have been sufficient; but this was not done, and the party has nothing but the 
judgment. It was competent for the legislature to prescribe the mode of 
assessing the damages as they did.

In support of this opinion, it may not be out of place to remark that one of 
the members of this court was also a member of the convention, and recollects 
that the above mentioned provision in the bill of rights was discussed, and it 
was framed as it is on due deliberation, and with a view to secure to 
individuals a previous indemnity for property taken.

Under these views, we feel constrained to reverse the judgment, and dismiss 
the application.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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