New Orleans, Baton Rouge, Vicksburg & Memphis Railroad v. Drake

Campbell, C,. J., delivered the opinion of the court. The Chancery Court refused to grant the petition and dismissed it, as the record shows, “ upon the ground of the unconstitutiouality of the provisions of the charter of said •company in regard to condemnation of land for right of way ; ” but we are not informed as to .the views of the chancellor further than this general statement of the record shows, and have not been favored with the views of the appellee. The ■only question presented by the petition is as to the appointment of three commissioners by the Chancery Court, and if -the provision for this is unconstitutional it must be either because the commissioners could not be appointed at all, or could not be appointed by the Chancery Court. Objection to the designation of three commissioners in the first instance must rest on the assumption that a jury should be appointed instead of commissioners to make the valuation. We do not ■consider this objection valid. Mill on Em. Dom. sect. 91, and cases cited. The remaining question is, could the Legislature devolve . on the Chancery Court the appointment of commissioners in such cases? We see no valid objection to this. The right of eminent ■domain is inherent in the State, which may commit the duty [626] of ascertaining the “ due compensation” to which the owner is entitled to any of its courts. Conceding the right to trial by jury in such case, there is no constitutional objection to a jury in the Chancery Court for the trial of the appeal provided for by the charter of the appellant. The proceeding to take private property for public use is not a “matter” embraced in terms by the Constitution in par-celling out the jurisdiction of the courts it created. It is a peculiar matter, exceptional in its character, and not an ordinary “ case ” or “ cause,” as these terms are employed by the Constitution in creating certain courts. The Constitution, recognizing the right of the State to take private property for public use, imposes on its exercise the limitation that it must be “ upon due compensation first being made to the owner thereof, in a manner to be provided by law,” and leaves it to the Legislature to provide by law for the ascertainment of the due compensation required. In making provision for this, the Legislature may select the court on which to devolve the duty of determining what is due compensation to the owner. The proceeding is not an action at law, but an inquest by the authority of the State in the performance of a duty, and is under its control. The original ad-quod damnum proceeding issued out of chancery at the instance of the sovereign, and was returnable into chancery. No reason exists against the provision of the charter of appellant requiring the inquest for determining what is due com pensation to the owner to be conducted by the Chancery Court. Mill on Em. Dom., sect. 84 ; Garrison v. The City of New York, 21 Wall. 196. Decree reversed and proceeding remanded, with directions to the Chancery Court to appoint commissioners, as asked by the petition.