Sanborn v. Belden

By the Court: It is not necessary, in this case, to decide whether, under the Constitution of California, it is essential to the validity of a law for the exercise of eminent domain (when the property is taken directly by the State or by a municipal corporation by State authority), that it should provide for tender of pecuniary compensation before actual taking.

When property is taken by a private corporation, which, although for this purpose it is regarded as the agent of the State, appropriates it as well for the benefit and profit of the members of the corporation as for the public use, it is at least essential that an adequate fund (in the custody of an agent of the public other than the corporation, or its officers) be provided, from which the owner of the property can certainly obtain compensation. As remarked by Mr. [269]Justice Cooley: “It is not competent to deprive him (the citizen) of his property, and turn him over to an action at lato against a corporation, which may or may not prove responsible, and to a judgment of uncertain efficacy.” (Con. Lim. 562.)

We are satisfied that wise policy and sound constitutional principles require us to hold that a bond, executed by sureties who may be supposed to be, or who in fact may be, responsible, when the preliminary order is made, does not constitute a certain and adequate compensation.

If the corporation has acted on the order of the district judge, the property of the petitioners has been actually taken. (San Mateo Water Co. v. Sharpstein, 50 Cal. 284.)

If it be competent to the Legislature to declare that a mere bond shall constitute compensation upon a taking at the commencement of the condemnation proceedings, it might also declare that such bonds should constitute compensation upon the final taking—which would operate a plain violation of the provisions of the Constitution restraining the exercise of eminent domain.

Order annulled.