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in his opinion, repealed the right of way act of 1852. Motions were duly entered by the relator to quash the return, and that the peremptory writ should issue.

The question arises upon the sufficiency of the return.

Mr. GEORGE C. CAMPBELL, for the relator.

Mr. G. D. A. PARKS, for the respondent.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

An alternative writ of mandamus was awarded by this Court, requiring the presiding judge of the Circuit Court of Will County, to show cause why he refused to appoint commissioners to fix the compensation to be made to parties for the right of way over their lands; and to assess damages in accordance with the laws of the State.

The return of the respondent, and the argument submitted, contend that the law of June 22d, 1852, providing for the condemnation of land, by virtue of the exercise of the right of eminent domain, has become a nullity, by the adoption of the present constitution.

The following is the constitutional provision, which is assumed to be inconsistent with the act of 1852:

"Private property shall not be taken or damaged for public use, without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. The fee of land, taken for railroad tracks, without consent of the owner thereof, shall remain in such owners, subject to the use for which it is taken." Sec. 13 of Bill of Rights.

A constitution must be expounded in its plain and obvious meaning. It is an instrument, the truest exposition of which is that which best harmonizes with its design and object. As has been said by Judge Story:

"Constitutions are of a practical nature, founded on the common business of life, designed for common use, and fitted for common understandings. The people make them, the peo

Opinion of the Court.

ple adopt them, and the people must be supposed to read them with the help of common sense."

Is the section of the Bill of Rights prospective in its effect, and inoperative without legislative action? The right of property, thus intended to be secured, can not depend upon the mere will of the legislature. The prime object of a Bill of Rights is, to place the life, liberty, and property of the citizen beyond the control of legislation, and to prevent either legislatures or courts from any interference with or deprivation of the rights therein declared and guarantied, except upon certain conditions. It would be the merest delusion to declare a subsisting right as essential to the acquisition and protection of property, and make its enjoyment dependent upon legislative will or judicial interpretation. Such absurdity can not be ascribed to the framers of the instrument. Neither can the constitution be regarded as a plaything; to be made the sport of any department of the government; to be annulled by nonaction, or to be operative at the mere pleasure of those who are bound to obey and respect it; but it is a solemn instrument emanating from the people, declaratory of rights and restraining in its operation, and which can only be abrogated by the sovereignty which created it.

The intention of the instrument must prevail; and in its ascertainment we must look at the consequences of a particular construction. If a literal meaning involve a manifest absurdity it should never be adopted.

Was it the design to leave the determination of the necessity of a jury wholly to legislative discretion? If so, the section is not only unnecessary, but absurd; for the former constitution did not make a jury indispensable; and the act of 1852 provided for the appointment of three commissioners to assess damages upon proceedings to condemn land, with the right of appeal, upon the execution of a bond, and a trial by jury in the circuit court; and this legislation had been sustained by the courts.

The present constitution differs from the constitution of 1818,

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in the requirement that the compensation shall be ascertained by a jury. It evidently was intended to provide a different mode, and to require that a jury shall act before private property shall be, in any respect, endangered. There must have been an object in the additional restriction. It is affirmative in its character, and must imply an exclusion of any other mode. If there is no law upon the subject, and the legislature neglects to provide one, the constitution can not be in abeyance. This would defeat the object, and make the limitation operative or nugatory at the pleasure of the legislature.

Suppose that the words, "as shall be prescribed by law," had been omitted in the section, no one would doubt for a moment that the section went into effect in presenti; and that, until the enactment of a proper law, if there was none, the right of eminent domain could not be exercised. It would have been the duty of the legislature, then as well as now, to provide for the empaneling of a jury, and the machinery necessary to make the section effectual. Private property was protected, and its inviolability secured from damage or seizure until the ascertainment, by a jury, of just compensation, and its payment. The inhibition of any other mode of determining the compensation is independent of, and complete without the words quoted. They merely declare the duty of the legislature.

As was said by the counsel for the respondents:

"Condemnation is forbidden without just compensation; just compensation can not be made without ascertainment, and ascertainment is impossible except by a jury."

He also happily illustrates the sense of the section under consideration, by other sections of the same article.

Section 12 prohibits imprisonment of a debtor, unless upon refusal to deliver up his estate, "as shall be prescribed by law." Does the freedom of the citizen from incarceration, therefore, depend upon the action of the legislature? We apprehend not. He is secure from imprisonment for debt except

Opinion of the Court.

upon a refusal to surrender his estate for the benefit of his creditors, or there is strong presumption of fraud; and until the manner of surrender is provided by law.

Section 16 forbids the quartering of troops in the house of the citizen, even in time of war, except in the manner prescribed by law." The failure to prescribe the manner can not destroy the prohibition.

This right to take private property for public use is a high prerogative of sovereignty, controlled by the constitution, and can be exercised only subject to the Bill of Rights, and the limitations therein contained.

The section under consideration differs from the late constitution in another respect. It declares that private property shall not be taken or damaged for public use, without compensation. The word "damaged " is peculiar to the present constitution. We shall not undertake to determine the meaning and effect of this additional word, in all the phases in which it might be viewed, but only with reference to the proceedings before us.

When land is taken for public use, there is an appropriation of it; the owner is deprived of the use and enjoyment; and the control and possession are transferred to the corporation. The fee only remains in the owner, subject to the use for which the land is taken. The damage, if to the land which may be taken, must precede the actual taking; if to contiguous lands, it would be consequent upon the taking.

The compensation for property damaged as well as taken, must be ascertained by a jury. It can be neither damaged nor taken without compensation; and it follows, as a necessary sequence, that there can be no entrance upon, or possession of, land for public use, until the compensation for the land damaged, as well as taken, has been paid.

The important question remains, whether the law of 1852 is so far inconsistent with the constitution as to render the former inoperative?

The first section of the schedule provides, "That all laws in force at the adoption of this constitution, not inconsistent

constitution had not been adopted."

From the view we have taken of the constitutional guaranties, the conclusion is inevitable that the owner of land proposed to be condemned, must not be deprived of a regular trial by jury. He must not be fettered by any provision of law, which may deprive him of a fair and speedy trial, or which may prejudge his rights, before a submission of them to a jury. His land must not be taken or damaged without his consent, until the compensation has been fixed and paid.

The first six sections of the Act of June 22d, 1852, are, in no sense, in conflict with the constitution. They provide for filing a petition; due notice to the persons interested; the appointment of commissioners; their inspection of the premises; and a report of the compensation assessed by them, to be filed with the clerk of the circuit court.

Section 7, which makes the decisions of the commissioners conclusive upon the parties, before they can have the benefit of a trial by jury, is inconsistent with the letter of the constitution. The assessments and reports of the commissioners should conclude no owner of the land, and confer no right upon the corporation, unless the land owner assents-by an acceptance of the compensation, or in some other manner.

The requirement of the execution of an appeal bond, by the party who may desire to appeal from the estimates or decisions of the commissioners, is also a serious obstacle to a trial by jury. No hinderance, however slight, should be interposed to the enjoyment of this right. A non-resident land owner might be deprived of his right to bring the proceedings before the circuit court, and submit them to a jury, if required to give bond. The party, whose land is sought to be taken, ought not to be compelled to pay costs, if the assessment of the commissioners should be affirmed or not increased. Section 9, providing for the bond, is clearly annulled by the constitution.

Section 12, which permits the land to be entered upon, during the pendency of the appeal, is manifestly inconsistent with the Bill of Rights.