Sawyer, J., concurring: After a careful examination of the judicial decisions in those States, the Constitutions of which contain the provision, “ Nor shall private property be taken for public use without just compensation,” in language substantially identical with that of our own, I am satisfied that, under the construction established, it is not necessary that the compensation should be actually ascertained and paid previous to an entry for the purpose of appropriating the property—previous to the actual preliminary taking. I am further satisfied, upon a critical examination of the cases, that there is far less conflict upon the point than I had been led to suppose from a cursory reading of the decisions. This provision in the Constitution of New York, which is substantially like ours, was discussed in several early cases, and was construed in Bloodgood v. M. and H. R. R., 14 Wend. 51. In that case it was expressly held, that this provision of the Constitution did not require the compensation to be actually paid, before entering upon and taking possession of the property. This case was reversed by the Court for the correction of errors, on a question of pleading, depending upon a construction of the provision in question, and the arguments of the Chancellor and those Senators who delivered opinions, are very cogent to the effect, that the Constitution requires the compensation to be ascertained and [558]paid before the taking, and, without a critical examination, are apt to mislead as to the real point decided. But they all concede that the constitutional requirement was satisfied by a provision for payment, and of a fund out of which satisfaction could with certainty be had; and further, that when the State, or a subordinate division of the State, was to make the compensation, and the law provided the means by taxation for raising the fund, this was a sufficient provision—or, in the language of the Chancellor, “ that it was sufficient if a certain and adequate remedy was provided by which the individual could obtain such compensation .without unreasonable delay.” (18 Wend. 17.) “ The public purse, or the property of the town or county upon which the assessment is to be made, may justly be considered an adequate fund.” (Ib. 18, 28, 35, 36, 39, 77.) Thus it is held, that, when a State, or a city, or a town, is to make the compensation, and the fund is authorized by law to be raised in such a manner as to be,enforced through the Courts, the public faith is pledged, the fund is certain, and this is sufficient and satisfies the constitutional provision without actual payment or tender. In case of a private corporation, it is argued that there must be a payment, or tender, or a fund, placed within the reach of the owner of the land; but, in such case, they do not very distinctly inform us what is absolutely.essential to constitute a sufficient fund. It is manifest, however, that for the purpose of constitutional construction the concession in favor of the State, city, or town, covers the whole ground. A provision for subsequent payment by the State or a town, is certainly not an actual payment or tender. And both towns and States, notwithstanding the presumption in their favor, like corporations, are notoriously often slow paymasters, even when the laws are supposed to have made ample provisions for payment.
One of the points really decided in the case, is, that the actual payment or tender is not required prior to the taking, but that a fund, or means must be provided, by which compensation shall be assured with reasonable certainty, and without unreasonable delay. And this is by far the strongest case [559]against the right to enter before actual payment, that has come under my notice under constitutional provisions substantially like our own. I have found nothing in the later decisions of the State of New York opposed to this view. On the contrary, it seems to be recognized in several subsequent cases. (Baker v. Johnson, 2 Hill, 347; People v. Heyden, 6 Hill, 361; Rexford v. Knight, 1 Ker. 319.)
The question is examined in a very exhaustive and able opinion in Cushman v. Smith, 34 Maine, 248, cited by my associate, and the Court gives the provision in question a less restricted construction than is adopted.in the arguments by the Chancellor and Senators, who expressed opinions, in the Court for the correction of errors in the case cited from 18 Wendell. Cushman v. Smith was affirmed after a change in the bench, in Nichols v. Sorn and K. R. R. Co., 43 Maine, 358; and Davis v. Russell, 47 Maine, 445. In Indiana the construction has been fully as liberal as in Cushman v. Smith. (Rubalton v. McClure, 4 Blackf. 507; Hawkins v. Lawrence, 8 Black. 268; McCormick v. Pres. and Trus. Town of Lafayette, 1 Cart. 52.) A similar construction was given to a similar provision in the Constitution of Ohio of 1802. (Bates v. Cooper, 5 Ohio, 118; Kramer v. Clev. & Pitts. R. R. Co., 5 O. St. R. 144.) The Constitution of Ohio has since been amended. In Michigan a similar construction has been adopted. (Green v. M. S. R. R. Co., 3 Mich. 501.) In Wisconsin the same construction, with the limitations indicated in the opinions in Bloodgood v. M. & H. R. R. Co., 18 Wend., is intimated, though not directly decided, in Norton v. Peck, 3 Wis. 724; Shepardson v. M. & B. R. R. Co., 6 Ib. 613; and Powers v. Bears, 12 Ib. 220. In Mississippi the provision is “ compensation first made therefor,” and the Courts rest their construction on the word “ first.” (Thompson v. Grand Gulf R. & B. Co., 36 Miss. 314.) So, also, the Constitution of Maryland requires the compensation to be “ first paid or tendered.” (Stuart v. Mayor and City Coun. of Balt., 7 Md. 500.) The provision in the old Constitution of Iowa was similar to ours, but it seems to have been thought necessary to amend it, and [560]now the provision reads, “without compensation first being made or secured.” (Henry v. D. & P. R. R. Co., 10 Iowa, 543.) Other Constitutions contain similar and further restrictions. The result of the decisions under all the Constitutions containing provisions substantially identical with ours, is, that laws authorizing an entry upon, and temporary appropriation of, lands for public use, without a previous actual payment, or tender of compensation, as a preliminary step towards a permanent appropriation, to be followed up and consummated with reasonable diligence by an ascertainment and payment of the just compensation, and a final condemnation of the land, are not necessarily unconstitutional. To this extent, at least, I find no conflict in the authorities. The decisions also appear to be uniform, that if the Government, or a county, city or town, is to make the compensation, and the law provides a fund, or provides for raising a fund by taxation out of which the compensation is to be made, in such manner that the Courts can enforce the law by compelling the officers to act in case they are delinquent, the constitutional requirement is satisfied; for, say the Courts, in substance, it must be presumed that the Government will discharge its duties, and the taxable property of the State, county, city or town, must be regarded as amply sufficient, and the compensation certain to be made. The opinions in 18 Wendell, however, in argument, maintain that the responsibility of a corporation is not a sufficient guarantee. But there is no case, so far as I am aware, which goes to the extent of holding that no provision short of payment, or tender by a corporation, can be made which will render the provision for compensation sufficiently certain; and when it is once established that a law under any circumstances may be passed authorizing a preliminary entry and appropriation before actual payment or tender, the rest relates only to the question of whether the provision for compensation or security that it will be paid, is sufficiently certain. While we are theoretically not to doubt the ability or good faith of the Government, -or of subordinate communities, such as counties, cities and towns, to make compensation, yet
The statute, under which the proceedings in question in this suit were had, makes minute provision for proceedings to condemn lands, by which the parties are to have notice and an opportunity to be heard. Section thirty-four provides that “ at any stage * * * of any proceedings under this Act, the Court or Judge in chambers may, by rule or order in that behalf made, authorize such company, if already in possession, to continue in the use and possession ; and if not in possession, to take possession of and use such premises during the pendency and until the final conclusion of such proceedings, and may stay all actions and proceedings against such company on account thereof; provided, such company shall pay a sufficient sum into Court, or give security, to be approved by such Court or Judge, to pay the compensation in that behalf when ascertained.” I do not think, in view of the decisions on the subject, we can say, as a matter of law, that this is not a sufficient provision for compensation to justify the preliminary entry and occupation, in connection with the further provision that the payment shall be actually made within thirty days after the amount is ascertained, and that, till payment, the land shall not be deemed to be finally taken. It cannot be doubted that payment of a sufficient amount into Court would be a sufficient provision of a fund. The only doubt that can be suggested on this point, is, as to the alternative provision for security to be approved by the Judge. The nature of the security is not prescribed. It must be approved. The parties would doubtless be heard, and the Judge, it must be presumed, would faithfully discharge his duty. It is true that personal security might be taken, apparently ample, which [562]might subsequently turn out to be bad, or require a lawsuit to enforce. This might also be true with reference to moneys actually deposited in Court. The depositary might be unfaithful, and his bondsmen prove worthless. And a similar result might arise where a town, or city is to provide and pay over the fund. But in practice, with the responsibility of a corporation able to construct a railroad, and further security, to be approved by a District Judge after the parties have been heard, and the requirement that the money shall be paid within thirty days after the amount of the compensation is ascertained, and the liability to forfeit the right by non-payment, it could scarcely happen that the compensation would not be sufficiently certain to answer the exigencies of the Constitution under the construction established by the general current of the authorities. Other States have similar laws, as Ohio (Kramer v. C. & Pitts. R. R. Co., 5 O. St. R. 141,) and Maine (Cushman v. Smith—before cited—34 Me. 248.) The statute under which the latter case arose required security to be given “ to the satisfaction of the Commissioners.” But the compensation awarded was neither paid, tendered, or secured as required.
The security required by the statute was given in this case, and I cannot say, as a matter of law, that compensation was not provided for within the rule established by the decisions, so far as to justify the temporary occupation pending the proceeding to ascertain the amount of compensation, and preliminary to a permanent appropriation.
I confess that I find the settled construction of the clause in question not in harmony with my preconceived ideas upon the subject; but it has received the approbation of many distinguished jurists, and, upon the main and vital point a critical examination really discloses no conflict in the decisions. A few Judges, out of the great number who have had occasion to pass upon the question, have thought the construction a little strained, but have acquiesced in the rule established by their predecessors. The peculiar phraseology of the provision leaves it open to the construction given, and, if as an original [563]question, it were more doubtful than it is, I should feel called upon, in view of the authorities and the rule which requires doubts to be resolved in favor of the validity of the action of the Legislature, to hold the law constitutional.
I agree with my associate that, although there are dicta in the decisions of our own State not in accordance with the conclusions now attained, the question has never before been decided.
But.it is not my purpose to again traverse the entire ground so thoroughly and ably covered by my associate, and I leave the matter here. I think the judgment should be affirmed.