Woodruff v. Catlin. ceedings are not by or on behalf of the railroad companies. They are brought by a commission for the state, for a public use. The ulterior purpose to which the use may be devoted, and the fact that the cost may hereafter be collected from parties benefited, are both immaterial at present. The only cases in which the right of eminent domain can be exercised are those, in which either the sovereign proceeds directly through its own officials or through a commission, or in which public corporations, or those which are sometimes called quasi public corporations, are permitted through a delegation of power to take land for their own and the public use. In no one of these cases has a court ever upheld the power to exercise the right unless provision for compensation was coupled with the power; with this exception only, that in a few cases, where the state or a municipal corporation has sought to take the land, the courts have. said that the presumption was, in the absence of any provision for payment, that the state or municipal corporation would pay, and the remedy of the individual was certain. Mills on Eminent Domain, § 126; Cooley on Const. Lim., 560-562. But in these resolutions we have an attempt to provide for compensation. Under the 3d section of the resolution of 1884, the corporation have the right to proceed and condemn the land, and if they do, the general law obliges them to pay. Under the 5th and 6th sections of the same resolution the commission had the right to compel the railroad companies to bring such proceedings. But under the resolution of 1886 they institute these proceedings in their own names. While the commission is authorized to do this, the owner is obliged to look to other parties for his compensation. The commission is authorized in its own name to institute and prosecute proceedings for the taking of and appraisal of damages for any land which may be necessary. The proceedings for appraising damages to persons whose property is condemned are to be in the same manner and form as those prescribed by law for appraising damages for taking land for railroad purposes, excepting as modified by this resolution. Now, what are these modifica Woodruff v. Catlin. tions? They appear in section two, and also in the fact that the resolution does not require compensation to be made when the land is condemned, by the party taking. Let us examine the provisions of the first section. "All property taken under said proceedings shall be deemed to be taken by the party for whose benefit the proceedings are had," (which may not be determined for some time,) "and upon their completion and the payment of the damages, the right, title, and interest so taken" (previously by the commissioners) "shall, by virtue of said proceedings, then vest immediately and directly in the party" so paying, etc. In other words, the commission is to condemn and take, and then by mandamus compel the railroad companies to pay for the same. If they do, the land previously taken by the commission and unpaid for up to this time, it is claimed, will then vest in the party paying therefor, but not until that time. Now we are not discussing the question when payment shall be made, but the question whether any provision for certain payment is made. The commissioners are not obliged to pay, and there is no mandatory provision requiring the railroads or the city to pay. Again, the provisions of section two are not like the provisions of the general railroad law, for the legislature has expressly modified them. Where shall the appraisal of damages be returned and recorded? Who can issue execution? Will such a judgment be recognized by any one anywhere? The New York & New England has a very large railroad mortgage upon its property, covering, by the decisions of this court, all its property necessary for the successful operation of the road. How can an execution against that railroad company be satisfied in this state? Will such a judgment, not being of any court, be recognized in Massachusetts? But this is the only provision for payment in the resolution, and it is not such a provision for "compensation" as the law requires. Phifer v. Carolina Central R. R. Co., 72 N. Car., 433; Hooker v. N. Haven & Northampton Co., 15 Conn., 326. The plaintiffs may answer that the railroad companies may voluntarily pay the damages appraised, and thus the Woodruff v. Catlin. law will be satisfied. To this I reply that such guess-work will not make the provision for compensation certain, and the fact that the railroads are not joined as co-plaintiffs, but are made defendants, shows conclusively that they are hostile, and will not make voluntary payments. In closing we adopt the words of the court in its opinion in the case of Butler v. Sewer Commissioners, 39 N. Jer. Law, 673, decided in 1877-"I think the attempt to exercise such a power in this act is clearly inimical to the constitutional provision, and that the act does not provide a method of compensation within its purview and is therefore insufficient to support any proceedings for condemnation." H. C. Robinson and S. O. Prentice, for the appellees. PARDEE, J. These are two cases, argued together, of proceedings for the condemnation of land for railway and highway uses. The New York, New Haven & Hartford Railroad and the New York & New England Railroad cross Asylum Street, a much used highway in the city of Hartford, at grade. In 1885 the legislature of this state passed the following resolution:-"That a resolution of the General Assembly, approved April 4th, 1884, providing for a bridge at the railroad crossing at Asylum Street, Hartford, be amended by inserting in section one, in the fifth line, after the word 'railroads,' the words or for the carrying of said tracks, and structure therefor, over said Asylum Street,' and in section four, in the thirteenth line, by adding, after the word 'order,' the words 'the carrying of said tracks, and structure therefor, over said Asylum Street,' so that said sections, as amended, shall read as follows: "Sec. 1. The city of Hartford, the New York, New Haven & Hartford Railroad Company, and the New York & New England Railroad Company, shall construct a bridge, or other suitable structure, with proper approaches, so as to carry Asylum Street, in said city of Hartford, over the tracks of said railroads, or for the carrying of said tracks Woodruff v. Catlin. and structure therefor over said Asylum Street, at or near their present intersection with said street. "Sec. 4. If said city and said railroad companies shall not, within said period of three months, agree as aforesaid, and submit their said agreement in writing to the railroad commissioners, and obtain their approval thereto, then the railroad commissioners, Morgan G. Bulkley, and Henry C. Robinson, both of said Hartford, who are hereby constituted and appointed a board of commissioners for the state for said purpose, are empowered and instructed to decide what changes shall be made in the manner in which and the place where, in the present line of said Asylum Street, the tracks of said railroads cross the street, in order to abolish the present grade-crossing and insure the safety of the public thereat, and to determine by whom, and within what time, said changes shall be made. Said commissioners are hereby authorized to order the carrying of said tracks, and structure therefor, over said Asylum Street, and direct such a change in the grade of said street in its present line and direction as they judge necessary and proper to the end aforesaid, and to order said railroad companies, or either of them, or the receiver or other person or persons operating either of said railroads, to lay out, construct, and maintain a new line or lines of railroad for a distance not exceeding one half mile each side of said street, and within three hundred feet of the center line of the present tracks of said railroads, and may require any or all of the present tracks within said limits to be taken up and removed. Said commissioners are hereby authorized and empowered to order and direct a new highway to be laid out across said railroads, and for such distance on either side thereof as they may direct, in place of or in addition to said Asylum Street. Said commissioners are empowered to make any and all orders relating to said improvement, and to all matters and things appertaining thereto, which they may deem necessary and proper, in the same manner and to the same extent as this General Assembly might do and direct; and they may direct by whom, when and how the work shall be performed, VOL. LIV-19 Woodruff v. Catlin. and who shall pay for the same, and what proportion of the entire expense, including land damages, each party shall pay and bear; and they may, in the event of any disagreement between the parties, determine the cost of the whole or any portion of the works, and make any and all orders as to the manner and amounts of payments which they may judge reasonable; provided, however, that in no event shall said city of Hartford be required to pay any portion of the cost of any changes in the present depot, or of the construction of any new depot, and not exceeding one half of all the other expenses, including land damages, incurred under this resolution." In 1886 the legislature passed the following additional resolution: "Resolution conferring additional power upon the board of commissioners upon the railroad crossing at Asylum Street, Hartford. 66 Upon the report of the board of commissioners, raised by the provisions of a resolution providing for a bridge at the railroad crossing at Asylum Street, Hartford, passed at the January session, A. D. 1884, it appearing that said board has, in compliance with the terms of said resolution, approved and adopted a plan for said improvement; that it is necessary in the prosecution of said plan to acquire for the purposes of the improvement various pieces of property now owned by sundry parties; that a portion of said property will in all probability have to be condemned and taken by process of law; and that such property can be most expeditiously, conveniently, and economically condemned and taken under proceedings instituted by said board in its own name:-Be it resolved: "Sec. 1. That said board of commissioners is hereby, in addition to the powers already conferred upon it, authorized and empowered to institute and prosecute in its own name, but for the use and benefit of the several parties to said improvement, as the case may be, proceedings for the taking of, and appraisal of damages for, any land or other property, including any already appropriated for railroad or |