taken." The distinction being, that when the State exercises the power of eminent domain, it must provide the means of payment before taking the property, but a corporation must pay or secure its price: Mc Clinton vs. Pittsburgh & Fort Wayne Railroad Company, 16 P. F. S. 404. And when a corporation takes land, the owner has a right to trial by jury, which he has not, when the State takes it by right of eminent domain: The Pennsylvania Railroad Company vs. Ger. Lutheran Cong., 3 P. F. Smith, 445. And the State has the right to six per cent. of all land by express reservation: Commonwealth vs. Fisher, 1 Pa. Rep. 462.

While the State may delegate her right of eminent domain to a corporation or individual (Brown vs. Corey et al., 7 Wr. 504), it can only be exercised for public purposes intended to benefit the public: Lance's Appeal, 5 P. F. S. 16. For the right of property in every well-regulated community is subservient to the general welfare. It may be exercised not only for the public safety, but also for the interest or even convenience of the State or its inhabitants. It does not authorize the government to take the property of one citizen and transfer it to another where the public is not interested in the transfer. Such an arbitrary exercise of power would be an infringement of the constitution, as not being within the power delegated by the people to the Legislature: Pittsburgh vs. Scott, 1 Barr, 314.

The act of 19th February, 1849 (Pur. Dig. 1219, Pl. 35), provides "that before a company shall enter upon or take possession of any lands or materials, they shall make ample compensation to the owner or owners thereof, or tender adequate security therefor."

It should be borne in mind that the right of a railroad company is only to occupy the land, and is an easement, not an interest in the land: Western Railroad Company vs. Johnston, 9 P. F. Smith, 290; Big Mountain Improvement Company Appeal, 4 P. F. Smith, 261, and cases cited. And the owner is bound to leave proper supports so as not to impair the surface: Harris vs. Ryding, 5 M. & W. 60; Jones vs. Wagner, 16 P. F. Smith, 429; Rogers on Mines, 200, 201, 459, 460; Washburn on Easements, *478, 479. Were Lawrence, Merkle & Co. (the lessees) owners of the land on 1st January, 1868, in the sense of the statute? Tenants for years are owners within the purview of this act (N. Pa. Railroad Company vs. Davis and Leeds, 2 C. 238). And a person having a life-estate is entitled to compensation (Borough of Harrisburg vs. Crangle, 3 W. & S. 460; Railroad vs. Boyer, 1 Harris, 497); so is a lessee (Turnpike Road vs. Brosi, 10 Harris, 29); and the license of the owner would not affect the tenant's interest (Brown vs. Powell, 1 Casey, 229).

The respondents under these decisions would, without doubt, be entitled to compensation, if they had any interest in the land at the time it was taken by the company. They contend that as their rights became vested in January, 1868, the subsequent release of the owners in November following could not affect them. To ascertain this, it is essential to determine the time when the right to the land vested in the company, and the right to compensation passed to the owners-for only those who were owners at that time (to wit, the time when the right of way vested in the company) are entitled to damage, not subsequent owners by purchase or otherwise.

Did the right of way vest in the company before the appeal was taken in March, 1863, or when the release was executed in November, 1868?

The company can only take the land by paying for it or securing the payment. Before this is done the land belongs to the owner. He may bring his action of ejectment for it: McClinton vs. Pittsburgh, Fort Wayne & Chicago Railroad Company, 16 P. F. Smith, 404. Or he may sue the company as trespassers, for every act of theirs is tortious: Western Railroad Company vs. Johnston, 9 P. F. Smith, 290. Or they may be enjoined before compensation is made: Jarden vs. P. W. & B. Railroad Company, 3 Whart. 502; Masson's Appeal, 20 P. F. Smith, 30. For they are bound to proceed as the act prescribes: Brown vs. Powell, 1 Casey, 229. "And as the exercise of eminent domain is in derogation of private right, the authority must be strictly construed. What is not granted is not to be exercised:" Dwarris on Statutes, 750; Allegheny vs. Ohio & Pa. Railroad Company, 2 C. 355; Lance's Appeal, 5 P. F. Smith, 16; Vanhorn vs. Dorrance, 2 D. 310. Public grants to corporate bodies must be construed strictly: Packer vs. Sunbury & Erie Railroad Company, 7 Harris, 211. If there be any irregularities in the proceedings of the viewers, or errors in the record, the owner may file exceptions in court, and if dissatisfied, he still has his remedy by certiorari in the Supreme Court: Hall's Appeal, 6 P. F. Smith, 238; Reitenbaugh vs. Chester Valley Railroad Company, 9 Harris, 100. He may do all this and yet retain the full title to the land. After filing of the report of viewers, and within thirty days, if the amount awarded him be insufficient, he may appeal and have a trial by jury.

There is no formal transfer required of the right to occupy the land. This right by operation of law eo instanti vests in the company, after entry and payment of damages, or filing the bond for those interested as provided by the act. After an appeal is taken everything previously required is presumed to have been done, and every irregularity is waived.

The owner is powerless to recover the land again. The bond filed under the act is the security for the damages, and the damages are substituted for the land, and this security is for damages occasioned as well by the construction as the location of the road: Wadhams vs. Lackawanna & Bloomsburg Railroad Company, 6 Wright, 303, for it would be inequitable to hold that an owner might take his chances for damages before a jury, and failing to recover the figure he placed upon them, turn around and claim the land, and treat the company as trespassers.

Hence it has been ruled that when a party intends to stand on irregularities in the record of initial proceedings, certiorari is the remedy to have the proceedings set aside for irregularities. Appeal waives this: Delaware Railroad Company vs. Burson, 11 P. F. Smith, 379. After appeal the maxim, "omnia præsumuntur rite esse acta," is not only applicable to the judgments of courts, but it ordinarily applies to matters of form and order: Church vs. Railroad, 9 Wr. 342. The taking of the appeal therefore admits the entry of the company, and the filing of the bond with approved security, and by these acts the right of way passes to and vests in the company. Compensation being made, the title of the

owner will be vested in the company: McClinton vs. Pittsburgh & Fort Wayne Railroad Company, 16 P. F. Smith, 404. If the respondents have any interest not covered by the bond, their right exists to petition for viewers. They must exhaust their statutory remedy before they can otherwise act: High on Injunctions, § 394; McKinney vs. Mon. Navigation Company, 2 Harris, 65; Railroad vs. Boyer, 1 Harris, 500. It is admitted that the respondents had no interest in the land when the appeal was entered. As the bond was substituted for the damages, none but the owners at that time can recover upon the bond. For the jury are to value the injury to the property at the time the injury was suffered: Schuylkill Navigation vs. Thoburn, 7 S. & R. 411. If the very next day the owners had sold the land in fee simple, it is certain that this claim for damages would not pass to the purchaser: Zimmerman vs. Union Canal, 1 W. & S. 346; Schuylkill & Susquehanna Navigation vs. Decker, 2 W. 343. Hence a less interest (such as a right to mine coal below the surface) would not pass. Therefore no claim for damage could possibly pass to the lessees: Sibbald & Mann's Appeal, 6 Harris, 249.

The evidence shows that the respondents were not ignorant of the possession of the land by the company many years before they leased, and of their improvements and expenditures, and since the date of their lease they have not sought their statutory remedy. One who stands by in silence and sees the company expend their money in improvements will be estopped in equity from regaining possession of the land, and his only remedy will be for damages sustained: Western Railroad Company vs. Johnston, 9 P. F. Smith, 290; Big Mt. Improvement Company Appeal, 4 P. F. Smith, 361; High on Injunctions, § 397; Hentz vs. Long Island Railroad Company, 13 Barb. 646; Erie Railroad Company vs. D. L. & W. Railroad Company, 6 C. E. Green, 283; Washburn on Easements, *63, and notes. "And where large improvements have been erected, considerations of public policy, as well as the recognized principles of justice between parties, require the courts to hold that in such cases the property of the owner cannot be reclaimed, and there only remains to him a right of compensation. Under such circumstances his omission is an implied assent, for he who will not speak when he should, will not be allowed to speak when he would:" Goodin vs. Canal Company, 18 Ohio St. 169, per Welch, J. If this coal be worked out the public interest must seriously suffer, a great thoroughfare be broken up, and the company's vast expenditures be rendered valueless. For these reasons the special injunction was properly issued and should

remain.

Decree accordingly.

George B. De Keim and James Ellis, Esqs., for plaintiff.

Charles Brumm and Lin Bartholomew, Esqs., for respondents.

[Leg. Int., Vol. 31, p. 141.]

BRIGHT & Co. vs. THE OAKDALE COAL AND MINING COMPANY.

The act of April 14, 1851, authorizing judgments to be taken in certain cases where no affidavit of defence is filed, in Schuylkill county, is not annulled or repealed by section 26 of Article V. of the new constitution.

Where it was intended by the constitution to annul or abrogate any existing law, the intention is expressed in unambiguous language.

Rule to show cause why judgment taken for want of an affidavit of defence should not be set aside, etc.

Opinion delivered March 23, 1874, by

PERSHING, P. J.-A special act of assembly for the county of Schuylkill, approved April 14, 1851, authorizes the taking of judgment in certain cases where no affidavit of defence is filed. By the 47th rule of court, judgments under said act may be taken on any motion-day after twenty days from the return-day of the writ. Section 26, Article V., of the constitution, provides that "all laws relating to courts shall be general and of uniform operation, and the organization, jurisdiction and powers of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process and judgments of said courts, shall be uniform," etc.

It is contended that the act of 14th of April, 1851, being a special law, applicable alone to Schuylkill county, is annulled or repealed by that clause of the recited section, which requires all laws relating to courts to be general, and of uniform operation; that said act is inconsistent with the constitution, and, therefore, not kept in force by the second section of the schedule. In this case, and another recently before us, this view has been pressed with great earnestness, and the power of the court to give judgment for want of an affidavit of defence, explicitly denied. We are thus compelled to decide the question of power raised.

Giving the words in this section their natural and ordinary meaning, which is a cardinal rule of interpretation, there is nothing which indicates an intention to repeal the laws relating to courts which were in existence at the time of the adoption of the constitution. We think it is future legislation that is provided for, and not the abrogation of past enactments of the Legislature on this subject. The construction insisted upon by those who deny our power under the act of 1851, and the rule of court based upon it, to give judgment for want of an affidavit of defence, abrogates in every judicial district throughout the State such rules as are not general and of uniform operation, and this, without providing any way of ascertaining what rules are general, and of uniform application in all of the many courts of the State. A repeal so sweeping cannot be gathered from a fair interpretation of the language employed in this 26th section.

Sir Edward Coke declares that the most natural and genuine method of expounding a statute is by examining the whole, with a view to arrive at the true intention of each part. An examination of the constitution shows that when it was the purpose to annul or abrogate any existing statute, as a result of the adoption of that instrument, the intention was

expressed in unambiguous language. Section 2 of the schedule "abolishes" the Court of Criminal Jurisdiction for the counties of Schuylkill, Dauphin and Lebanon. By section 21, Article III., "Acts now existing are avoided" which limit the time within which suits may be brought against corporations for injuries to persons and property; and by section 22 of the same article, "Acts now existing are avoided authorizing the investment of trust funds in the bonds or stock of any private corporation. All existing charters under which a bona fide organization had not taken place at the date of the adoption of the constitution, were made of "no validity" by section 1 of Article XVI. No clause avoiding, or making of no validity, existing acts can be found in section 26 of Article V. If the effect of repealing or abrogating existing statutes is given to this section, the same effect must be given to other sections where similar language is employed. For example, section 1, Article IX., provides that "all taxes shall be uniform upon the same class of subjects, ... and shall be levied and collected under general laws," etc. Can it be claimed that this, ipso facto, repeals the tax laws existing at the time the constitution was ratified by the people?

When the inquiry is directed to ascertain the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument: Cooley's Constitutional Limitations, p. *65. In the sixth volume of the Debates of the Convention, page 507, et seq., will be found the discussions on section 26 of Article V. The section, as reported from the committee, was as follows: "All laws relating to courts shall be general, and of uniform operation, and the organization, jurisdiction, powers, proceedings and practice of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process, judgment and decision of such courts shall be uniform."

It is a fact of some weight that the convention amended the section by striking out the words "proceedings and practice." It was shown that the systems of practice in different portions of the State were so various that the adoption of the section as reported might cause much cmbarrassment. The chairman of the judiciary committee (Mr. Armstrong) said, "This section, if adopted, would not apply to laws as they at present exist, but only as to future legislation, and with the amendment suggested" (striking out the words "proceedings and practice") “I think it a section of very great importance." These proceedings show that it was intended and understood by the convention that the 26th section of Article V. should have a prospective operation, and that the general and uniform laws relating to the courts commanded by it were to be the work of the Legislature in the future.

A constitution shall operate prospectively only, unless the words employed show a clear intention that it shall have a retrospective effect: Cooley's Constitutional Limitations, *62. The same rule applies to statutes: Ibid. Statutes are always construed as prospective, unless courts are constrained to the contrary by the rigor of the phraseology: Price vs. Mott, 2 P. F. S. 315, per Woodward, C. J. The 7th section of Article III. and the 26th section of Article V. relate to the same subject, and can properly be read together, and when so read, the prospective character of these constitutional provisions will be very appa