Field, J. The validity of the lease from the State cannot be tried in the present action, nor can the plaintiff be deprived of the advantages resulting from the possession of the premises, by a forcing ouster under any legislative enactment. Assuming the lease to- have been valid, there was in the plaintiff a property of which he could not be divested’ for public use without just compensation. His right, so far as the land and buildings were concerned, was in no respect affected by the fact, that they were designed as a place for the confinement of convicts. The purposes for which premises are leased cannot alter the nature of the leasehold interest as property. To take such property without compensation is beyond the reach of legislative power. Such compensation must be made, or a fund provided from which it [529]can be made in advance. So strictly is this rule adhered to, that the enforcement of any statute to take such property, where the indemnity has not been provided, will be stayed by injunction. The appropriation without providing the compensation is unconstitutional and void. In Gardner v. Village of Newburgh, (2 John. Ch., 162) Chancellor Kent said: “ To render the exercise of the power [to take private property for public purposes] valid, a fair compensation must, in all cases, be previously made to individuals affected, under some equitable assessment to be provided by law. This is a necessary qualification accompanying the exercise of the legislative power, in taking private property for public uses; the limitation is admitted by the soundest authorities, and is adopted by all temperate and civilized governments, from a deep and universal sense of its justice.”
In Bloodgood v. The Mohawk and Hudson Railroad Co. (18 Wend. 17) Chancellor Walworth, in expressing his dissent to a decision of his predecessor, in Jerome v. Ross, (7 John. Ch. 344) that it was not necessary to the validity of a statute authorizing private property to be taken for public use, that a remedy for compensation to the owner should be provided, said:
“ On the contrary, I hold that, before the Legislature can authorize the agents of the State and others to enter upon and occupy, or destroy or materially injure the private property of an individual, except in cases of actual necessity which will admit of no delay, an adequate and certain remedy must be provided, whereby the owner of such property may compel the payment of his damages, or compensation; and that he is not bound to trust to the justice of the Government to make provision for such compensation by future legislation. I do not mean to be understood that the Legislature may not authorize a mere entry upon the land of another, for the purpose of examination, or of making preliminary surveys, &c., which would otherwise be a technical trespass, but no real injury to the owner of the land, although no provision was made by law to compensate the individual for his property, if it should afterwards be taken for public use. But it certainly was not the intention of the framers of the Constitution to authorize the property of a citizen to be taken and actually appropriated to the use of the public, and thus to compel him to trust to the future justice [530]of the Legislature to provide a compensation therefor. The compensation must he either ascertained and paid to him before his property is thus appropriated, or an appropriate remedy must be provided; and upon an1 adequate fund, whereby he may obtain such compensation, through the medium of the Courts of justice, if those whose duty it is to make such compensation, refuse to do so.” Sedgwick on Statutory and Cons. Law, 525, 526, 533.
The same effect are the decisions of the Court. In the case of the City of San Francisco v. Scott, (5 Cal. 114) a street was extended through the property of one Price, by ordinance of the Common Council of the city, and in conformity with the requirements of its charter, assessments were, made of the damages caused to each individual by the extension. To Price, who was in possession of a portion of the land appropriated, an award of SI,925 was made. Shortly afterwards, the street was opened, and it remained open for four or five months, during which period it was used as a public thoroughfare. At the expiration of this period, the award not being paid, the defendant, as agent of Price, entered upon the land and obstructed the street, claiming, on behalf of his principal, the right to reappropriate the same to private use. For the obstruction the defendant was prosecuted before the Recorder, by whom judgment was passed against him. On appeal, the judgment was reversed, with the concurrent opinion of all the Judges. “ Our bill of rights,” said the Court, “provides that private property shall not be taken for public use, without just compensation being made therefor; and it is now the better opinion, that such compensation must be made before the citizen can be divested of his rights. It is not sufficient that the law points out the mode by which the damage may be ascertained, and provides the party with a remedy to enforce his rights; no such obligation can be imposed upon him; he is entitled to the damages which he has sustained^ without resorting to a legal tribunal to enforce the payment. The law watches the exercise of this prerogative of sovereignty with a zealous regard for the rights of the citizen.
“ Admitting all the steps for opening this street were properly and legally taken, (a proposition denied by appellant’s counsel) it is evident the premises in question did not become a public street by virtue [531]of such ordinance, until the city had paid or tendered the amount of the assessment to the defendant; in other words, a city ordinance could not divest the title to private property, and ex proprio vigore operate a dedication.to the public use.”
In McCann v. Sierra County, (7 Cal. 121) the Supervisors of that county had, by resolution, extended a street or thoroughfare through the land of the plaintiff, without providing any compensation for the private injury consequent thereon; and the Court, all the Judges concurring, said : “ The Constitution of California provides,6 that private property shall not be taken for public use, unless just compensation be made therefor.’ A similar provision is to be found in the Constitution of every State in the Union; and the result of the decision on this subject may be briefly stated thus : That compensation must be made in advance, or a fund must be provided, out of which compensation shall be made, so soon as the amount can be determined. The property of the citizen cannot be taken from him without ample means of remuneration are provided. From this it results that the act of the Supervisors of Sierra county, in appropriating the property of the plaintiff to public uses, before making provision for paying him the value thereof, was illegal, and that he might resort to the Court of Equity to restrain them from interfering with the freehold.”
It is, then, the settled law, that the compensation, or the offer of it, must proceed or be concurrent with the seizure and entry upon private property of the citizen. It may not be absolutely essential that the compensation should be provided in the same Act which authorizes the siezure; but it is essential that it should be provided before the seizure can be enforced or justified. Little, indeed, would be the security afforded to the citizen, if his property could be taken by the agents of government, and himself left to the future sense of justice of the Legislature. It would be poor consolation to the head of the family, stripped of his entire possessions, to be informed that the Legislature would, at some subsequent day, deal fairly by him.
The statute upon which the Governor bases his defense and justifies his acts in terms, authorizes and empowers him, and, in fact, makes it his duty, to take immediate possession of the State prison and grounds, [532]together with all the property of the State therein situated, and to assume the custody, control and management of the State prison convicts therein confined, or to be therein confined, and thereafter to continue the possession of the property and the control of the convicts until further provided by law. The prison and grounds, which the Governor was thus directed to take and retain possession of, were in the possession of the plaintiff, with color of title under the claim of right, upon a lease of five years. Had these premises been a warehouse, occupied by a tenant under a lease from the State, for the ordinary purposes of mercantile business, no one would have had the hardihood to uphold the validity of a statute directing the seizure of the same and the dispossession of the tenant, except by regular proceedings in the tribunals of the country. How does the case at bar differ from the case supposed ? Grounds and buildings were leased; the leasehold interest was property, and for its enjoyment against'invasion and seizure under attempted legislation, or by individual violence, the plaintiff could claim the protection of the Constitution. The fact that the grounds and buildings leased were used for the confinement of State convicts, does not alter the case. The right to the labor of the convicts is not involved. That the State may not have any other place of confinement, as urged in argument, is its misfortune, but cannot impair the right of the plaintiff to hold the premises until indemnified for their taking. If the State had leased out the Capitol, it would afford no justification for seizing and dispossessing the tenant, that it had no other place for the meeting of the Legislature. The difficulty under which the State is resting, arises from the provisions of the lease, and the failure to insert a clause for the repossession of the premises whenever the Legislature should determine to resume the control of the prisoners.
What I have thus far said, has been upon the supposition that the lease from the State is valid, for its invalidity cannot be questioned in this form of proceeding. In any view, whether valid or invalid, it gave a color of title to the plaintiff. It took from his possession the character of intrusion without claim of right, which alone the government can remedy by force. Where private right is asserted, the [533]government is as impotent as the humblest citizen to impair or destroy it. The validity of the lease could only be determined in a different tribunal and by proceedings of a different character.
Nor could the validity of the assignment from Estill to the plaintiff be the subject of consideration in the present action. The plaintiff was in peaceable possession ; the defendant ousted him by force; and before the legality of the title of the parties to the premises can be the subject of consideration, they must be placed in statu quo with reference to the property. The law will not suffer the defendant, or those whom he represents, to enjoy the advantages resulting from the possession when obtained by violence and force.
Nor can the defendant rest his justification upon any possible forfeiture of the lease. Such forfeiture cannot be asserted except by force of a judicial determination. The Legislature cannot take upon itself, nor the officers of government upon themselves, to adjudge what right has accrued to the State, and then proceed to enforce it, any more than a private citizen. For the recovery of money due, or the possession of property withheld under a claim of right, the Legislature, and the highest officer, and the humblest citizen, stand upon the same footing, and must pursue the same course.
There may be, and probably is, great truth in the observance of the Attorney General, that in the hands of the defendant and those associated with him, the management of the State prison has been eminently wise and economical, and one which reflects great credit upon him and them. This may all be so, but it is difficult to see what bearing it can have upon the rights of the plaintiff. There would undoubtedly have been the same wise and economical management, if the Governor had taken by force, for the confinement of the prisoners, any other equally capacious property, belonging to any private citizen, other than the plaintiff.
I concur in the affirmance of the judgment.
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