Buffalo and New-York Railroad v. . Brainard

■ Mason, J., delivered the opinion of the court. The first and most important question in this case is, whether the legislature .possessed the constitutional powers to authorize railroad corporations to take the property of private individuals for the purposes of their roads in the manner provided in the act of April 2, 1850, entitled “An act to authorize the formation of railroad corporations, and to regulate the same.” This act authorizes any number of persons not less than tw,enty-five to form a company for the purpose of constructing a railroad, by subscribing at least one thousand dollars for every mile of road proposed to be made, paying ten per cent thereon to the directors, and by signing articles of association and filing the same in the office of the secretary of state, &c., to • become incorporated, and when incorporated they have the right to locate their road, and to acquire title to the lands over which they shall have determined to construct the same. (Laws of 1850, 215, 216, §§ 13, 14.) The statute makes the act of incorporating the company as above stated, and locating their road, effective to invest the corporation with the right to take the lands necessary to construct such road. (See §13 of the act.) The- damages to the owners are to be. assessed in the manner provided in §§ 14, 15, 16, 17 and 18 ; and the 18th section provides that upon the payment to the owner of the damages assessed, the company shall be invested with the title to the lands. The same- *107 section declares that all real estate acquired by any company under and pursuant to the provisions of the statute, for the purposes of the corporation, shall be deemed acquired for public use. The 1st section, which provides for the formation of these companies, states that they may be formed 11 for the purpose of constructing, maintaining and operating a railroad for public use in the conveyance of persons and property.” The 13th section allows them to acquire , title to the property which may be required for the purposes of their incorporation, and the 18th section only allows them to use the lands for the same purposes during the continuance of their corporate existence. The seventh subdivision of § 28 provides that these corporations may take and carry persons and property on their road, and receive a compensation therefor; and the ninth subdivision of the same section allows them to regulate the compensation which they shall receive, not to exceed, however, three cents per mile for every passenger and his ordinary luggage. The 29th section imposes tolls upon those roads which run parallel to and within thirty miles of any of the state canals, which tolls are to go into the canal fund. The act provides for annual reports to the legislature of all their expenses in maintaining their roads, and of all their business and doings. The 33d section reserves to the legislature the right from time to time to reduce the rate of freight, fare or other profits of these corporations, whenever they exceed ten per cent upon the capital actually expended. By the 36th section it is provided “ that every such corporation shall start and run their cars for the transportation of passengers and property at regular times to be fixed by public notice; and shall furnish sufficient accommodation for the transportation of all such passengers and property as shall within a reasonable time previous thereto be offered for transportation,” &c., “ and shall take and transport such passengers and property, &c., on the payment of the freight or fare legally authorized therefor,” and declares that they *108 “ shall be liable to the party aggrieved in an action .for damages for any neglect or refusal in the premises.” It is. very evident from the whole scope of the act under consideration that the legislature designed to make these corporations common carriers of persons and property, and to require them to be constantly engaged in such public employment (Story on Bailments, §§ 495, 496); and it was decided as long ago as 1837, in the case of Bloodgood v. The Mohawk and Hudson River Railroad Company (18 Wend., 9), in the court of last resort in this state, that lands taken for the construction of such a road were taken for public use. These roads have proved of such public utility since -that period that the legislature in. 1850, in' the act in question, has licensed their, construction in any part of the state where the people might desire to construct them, and has deemed them of such public importance as to declare ..in so many words that “ all real estate acquired by any company under, and pursuant to the provisions, of this act for the,. purposes of its incorporation shall be deemed to be acquired for. public use.” (§-18.) These considerations have, an important bearing on the decision of the question under review,, as ■ the constitutions, both of the United States and of this state, declare that “ no person shall be deprived of life, liberty or property, without due process of law, nor- shall private, property be taken for public, use without just compensation.”.. (Amendments to U. S. Const., art. 5; Const. of New-York, .art, 1, § 6.)’- From the last clause a prohibition.of power to take the property of a citizen for private use -is clearly implied. The right, however, of taking private" .property for public use is an admitted incident to. the sovereignty of every government, and has been repeatedly recognized under both our federal and state constitutions. (11 Wend., 149; 18 Wend., 9; 18 Pick., 480; 23 id., 360, 395, .396;) The common law right of eminent domain has ever been regarded, as a high prerogative of sovereignty, to be exer *109 cised whenever the public necessity required; and this right is impliedly admitted, both in the constitution of the state and of the United States, in the clause above quoted. It belongs to the legislative power of the government to determine for what public purposes private property shall ■ be taken, and the necessity or expediency of such appropriation. (7 Greenl., 273 ; 3 Watts, 294; 1 Dana, 232, 247; 7 Mass., 395; 3 Yerg., 41; 3 Paige, 73; 2 Kent’s Com., 340 ; 18 Wend., 13.) This power the legislature has taken upon itself to exercise in the case under consideration. It has by express enactment made these corporations in their objects and purposes things of a public character and concern, and has declared that lands taken for the construction of their roads shall be deemed taken for public use, and our courts have so held. (18 Wend., 9.) But the particular ground of objection relied upon to show that the act in question is unconstitutional, if I correctly understand it, is that the act itself does not appropriate the specific land taken for public use, but delegates to the corporation the power in each particular case to make the location and selection. It has been long settled in this state that the legislature may confer this power upon different officers, confining its exercise however to the appropriation of property required for public use. The general authority conferred by the legislature upon commissioners of highways, upon the canal commissioners, upon the trustees of villages, and many other cases, are familiar instances of the delegation of this power, all of which have been sustained by our courts. It is very difficult, if not impossible, to prescribe any general rule that would define with precision the power of the government in the exercise of the right of eminent domain, or the manner of its exercise. It must be large and liberal, so as to meet the public exigencies and demands, and it must be so guarded as to secure the rights of the citizen. The objection raised to the validity of this act is *110 certainly of a very grave character, and I have found much difficulty in answering it satisfactorily to my own mind. I am however, after the best consideration which I have been able to bestow upon the subject, of opinion that this act is not invalid for the reasons stated. The legislature has the undoubted authority to provide for the incorporation of railroad companies by a general act {Const., art. 8, $ 1), and it may by legislative enactment give to them powers, and impose duties, almost exclusively of a public character; and in such cases it may without doubt lawfully declare that all lands taken for the construction of their roads shall be deemed taken for public use. The act in question does all of these things, and it sufficiently declares the public necessity and utility of the roads. Nothing is delegated to the corporations but the right of determining when and where the roads shall be built. The objection that the power to determine these questions is confided to the corporation, instead of being exercised by the legislature or confided to some public officer or public body, seems to me to present rather a question of propriety "and fitness, than one of power. The interest's of the corporations and of the public, so far as the location and-construction of their road are concerned, are so nearly identical that the power of location and time of construction may be safely intrusted to the corporations. It is not perceived that these companies can have any inducement to invest their capital in the construction of roads either when or where the public interest does not require them, as returns can be expected from their investments only from the construction of roads upon such routes as the public demands will warrant and sustain. The question of the power of the legislature to confer1 upon such corporations the right to locate their roads, came before the supreme court of Massachusetts in the case of The Boston Water-Power Co. v. The Boston and Worcester R. R. Co. (23 Pick., 360), and the case was elaborately discussed by eminent counsel, and received the most deliberate con *111 sideration of the court, and the legislative right to confer this power was unanimously sustained. I refer to that case as authority justifying this mode of exercising the right of eminent domain. The other objections raised on this appeal might have been avoided if they Had been raised at the proper place and time; and therefore cannot be considered here. I am of opinion that the judgment of the court below should be affirmed. Morse, J., was not present All the other judges concurring, Judgment affirmed.