Atlantic & Ohio Railroad v. Sullivant

Bartley, J. In accordance with the settled rule of interpre [279] tation, that remedial statutes must be construed liberally, the provisions of the code of civil procedure, relating to error in civil cases, authorize a petition in error in the Supreme Court, to revise the action of the probate court, in the special proceeding for appropriating lands, and estimating the compensation to be paid the owner by a railroad corporation. The right of persons associated as a company for the purpose of constructing a railroad, by virtue of the statute providing for the creation and regulation of incorporated companies in the State of Ohio, enacted May 1, 1852, to appropriate private property by the exercise of the right of eminent domain, for the purposes of their road, depends on the sufficiency and legal validity of the certificate and public record of the organization from which they derive their corporate powers. It is essential to the validity of such certificate of organization, that certain and definite points be named or described therein as the termini of such road, and also each county in the State through which such road is to be located and constructed. And where such certificate has left the company the discretion to select through which of several counties named, the road may be constructed, and also provided simply that the termini of such road shall be a point, not designated, on the Ohio and Pennsylvania State line in the county of Trumbull, and a point, not designated, on the Ohio river in either the county of Brown or the county of Adams, in the State of Ohio, it is void for want of conformity to the statute. In such proceeding for appropriating land, and estimating the compensation to be paid the owner, it is incumbent on the company, in order to show its right to make the appropriation, to give evidence of a certificate and public record of its organization in strict compliance with the requirements of the law. Judgment of the probate court affirmed. Swan, J., having formerly been of counsel, did not sit in this case.