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public use, which cannot be divested by any act of the corporators of the company. The law of its existence plainly prevents it from becoming a mere private corporation, or from disregarding its public uses.
The title of the act is as follows: "An act to authorize the incorporation of companies for the construction of union railroad stations and depots with the necessary tracks and the management of the same." It is contended Authority to
condemnthat the title is not sufficient to warrant the author. Title of act. ity given in the body of the act to acquire land by condemnation for public use; and, secondly, that $ 30 of the act embraces an object not stated in the title,-to-wit, the establishment, maintenance, and operation of railroads, independent of depot purposes, and having no connection with such
purposes. Neither of these objections to the title are good. The acquiring of land is a necessary precedent to the construction of depots and railroad tracks, and the means by which it is to be acquired, and the power granted to acquire it need not be stated in the title; and the operation of local trains, under $ 30 of the act, is confined to its tracks. This object is stated in the title as follows: "With the necessary tracks and the management of the same." And the building of these tracks in connection with the depot, and the running of trains upon them, are all a part of the same general object, as the construction of the depots and station houses of the company, to-wit, the increasing of the facilities and comforts of travel, and transportation of passengers and freights.
It is further contended that the oath for the jury, as prescribed by the statute, does not cover their constitutional duty. The statute (8 9) provides that the jury; Oath for jury. " shall take and subscribe an oath that they will Oath for Jury
. justly and impartially ascertain and determine the necessity of taking and using any such real estate for the purposes proposed.” Id. p. 893, $ 3466. Section 3464 (8 7 of the act) provides that the petition filed for the purpose of acquiring such lands must state, among other things, " that the property described in the petition is required for the purposes of its incorporation, and that the taking thereof is necessary for the public use." Id. p. 890. The oath actually taken by the jury was that they would "justly and impartially ascertain and determine the public necessity for taking and using, for the public use, the parcel of land described in the petition in this cause.”. We think the whole act taken together requires that the oath to the jury should be that they will determine the necessity of taking the land for public use; and, as such was the oath taken here, the law has been fully complied with. The act is not unconstitutional, as $S 3464 and 3466, Id., taken together, require the oath of the jury to be as it was in this case. Grand Rapids v. Grand Rapids & I. R. Co., 58 Mich. 646; East Saginaw & St. C. R. Co. v. Benham, 28 Mich. 459.
Nor do we think there is anything in the point made that the act does not contemplate more than one union depot in each city or village. We find no warrant in the act for such contention. We think also that the question of the necessity was properly determined under the evidence by the jury, and we have no disposition to interfere with their award of damages. It is clear to us that the jury was right upon both of these questions, and the proceedings will be affirmed, and the appeal dismissed, with costs of this court. The other justices concurred.
Oaths of Commissioners, Jurors and Viewers to Condemn Land and Assess Damages-Necessity for Oath. The first duty of commissioners, jurors, viewers, and the like, appointed to act in condemnation proceedings, is to qualify themselves in the manner required by law. One of the qualifications usually prescribed by statute is the taking of an oath, the substance of which is that they will faithfully discharge their duties. See Lewis, Em. Dom. $ 411. It is well settled that the failure of such persons to take the oath in substantially the form required by law renders the proceedings in which they act invalid. Elliot v. Lewis, i A. K. Marsh. (Ky.), 514; Parker 7. Lexington & 0. R. Co., 2 Dana, (Ky.), 227; In re Bryson's Road, 2 P. & W. (Pa.), 207 ; In re Broad Street Road, 7 S. & R. (Pa.), 444; In re Nefi's Road, 3 S. & R. (Pa.), 210; Fisher v. Smith, 5 Leigh (Va.), 611; Keenan 24. Commissioners' Court, 26 Ala. 568 ; Frith v. Justices of the Inferior Court, 30 Ga. 723; Grimes v. Doyle, Sneed, (Ky.), 58; Fisher v. Allen, 8 N. J. L. 301 ; State v. Hart, 17 N. J. L. 185; State v. Mayor, etc., of Bayonne, 35 N. J. L. 476; State v. Ayres, 15 N. J. L. 479; State v. Davis, 13 N. J. L. 10; State v. Barnes, 13 N. J. L. 268.
In New Jersey, the acts of a surveyor of highways before taking the oath of office are void in consequence of the express provisions of the statute. Hoagland v. Culvert, 20 N. J. L. 387. And where the surveyors of highways have not taken the oath, the court should grant a rule to show cause why their returns should not be set aside. State v. Lawrence, 5 N. J. L. 850. A road viewer should be sworn before he views; it is not enough that he is sworn before hearing testimony. In re Cambria Street, 75 Pa. St. 357. If the statute requires a jury appointed to lay out a road to be sworn, this is a requisite which must be complied with; and if the return does not show that they have been sworn, the proceedings will be quashed. Douglass v. Rawlings, 4 Haywood, (Tenn.), II. And so of any proceedings to condemn private property. Bowler v. Perrin, 47 Mich. 154. And in proceedings under the statute against the proprietor of a mill to recover damages for flowing lands, it must appear by the record that the jury were sworn as the law prescribes. Spring v. Lowell
, i Mass. 422. In Missouri commissioners appointed to assess damages for land for a right of way need not, under the general law, take the oath before entering upon their duties; it is sufficient if they make the assessment and return under the same oath. Cory v. Chicago, B. & K, C. R. Co., 100 Mo. 282, 44 Am. & Eng. R. Cas. 183. And in Indiana, it is held that in proceedings to lay out a highway the fact that only two of the three viewers appointed, took the required oath acted, and made the report, does not render the view and report insufficient. Hays v. Parrish, 52 Ind. 132. In an Illinois
case the first report of appraisers for the condemnation of land for the use of a railroad was not approved, and was relerred back to the same appraisers. The appraisers without being again sworn made a re-appraisal. Held, that it was not necessary that they should be re-sworn. Galena & C. U. R. Co., 18 Ill. 324.
In order to show the location of a legal road by commissioners appointed to lay it out under a statute requiring them to be sworn before performing their duties, it is necessary to prove that they took the oath before proceeding to make the location. Crossett v. Owens, 110 Ill. 378. In order to prove the oaths of road surveyors, it is not necessary to produce the original oaths which are filed with the clerk of the township; it is sufficient to produce copies proved to be true copies. State v. Hutchinson, 10 N.J. L. 242.
In Wisconsin, it has been held that it is absolutely essential to the validity of a proceeding to take land for a public road that the jury should act in relation to the matter under the solemnity of an oath. Where the charter of a city does not contain any provision for swearing the jurors, it is in that particular in violation of the constitutional provision which requires that “no municipal corporation shall take private property for public use against the consent of the owner, without the necessity thereof being first established by the verdict of a jury.” Where the statute does not require a jury to be sworn before acting in determining the necessity of taking private property for public use, the fact that they are actually sworn does not render their acts any the more valid than if they acted without oath. No indictment would lie upon such oath, however partially or corruptly they might act in their determinations. Such a jury could not determine upon the necessity of taking the property, within the spirit and meaning of the constitution of this state, and consequently the city could derive no right, under the proceedings, to invade the land sought to be condemned, and make a permanent appropriation thereof for public use. Lumsden v. City of Milwaukee, 8 Wis. 485.
The Sufficiency of the Oath.—The failure to take the oath in substantially the form prescribed by law, renders the proceedings invalid. Daveiss v. County Court of Hopkins, 1 Bibb (Ky.), 514; Thompson v. Crabb, J. J. Marsh, (Ky.), 322. And see authorities, cited supra. Where it is not required by statute, it is not necessary that the oath taken by viewers shall be subscribed by them. Hays v. Parrish, 52 Ind. 132. But in New Jersey, surveyors of highways must not only take, but must subscribe the oath of office required by statute, or the return of a road by them laid out will be quashed. Fisher v. Allen, 8 N. J. L. 301. An oath in blank is no legal oath. Each oath and the administration thereof must be separate and individually subscribed. Matter of Highway, 16 N. J. L. 391. "If the oath of office is signed by a surveyor of highways with his real name, a mistake in the spelling of the name in the body of the oath will not vitiate it. Hoagland v. Culvert, 20 N. J. L. 387. The inquisition to condemn property need not assert on its face that the sheriff administered the oath to every juryman. It is sufficient is the fact appears by his return, and the very language of the oath prescribed by the statute need not be followed, if the substance is preserved. Pipe Water Canal Co. v. Archer, 9 G. & J. (Md.), 479. And in West Virginia it is held that although the oath taken by a jury who assess damages in a condemnation case, may not be in the exact form in which such oath should be administered, yet, if it be apparent, that the jury had before them the proper matters for their consideration, and that the plaintiff in error could have suffered no damage because of any informality in the oath, the verdict ought not on such account to be set aside. Grafton & G. R. Co. v. Foreman, 24 W. Va. 662, 20 Am. & Eng. R. Cas. 215.
An attorney at law has no authority to administer the oath to viewers ; but, it has been held that if it is done in the presence, and by the direction of a person having authority it will be valid and binding. In ro Road in Lower Macungie Township, 26 Pa. St. 221. And in Iowa, it is held that the fact that the officer who. administered the oath to the commissioner, appointed by the board of supervisors to examine and report upon the proposed road, was not empowered to administer oaths, will not defeat the action of the commissioner, nor render the establishment of the road invalid. Woolsey v. Board of Supervisors of Hamilton County, 32 lowa 130.
An oath administered to a jury, before a justice of the peace, on a proceeding to establish a road, in the form prescribed by the statute, with the addition of the words, “ if any,” as to the damages, does not render the proceedings void. The error, if any, does not go to the jurisdiction. Hankins v. Calloway, 88 Ill. 155. And where the statute requires viewers to be sworn to perform their duties “impartially and to the best of their judgment," and their report sets forth that they were “ severally sworn or affirmed in pursuance of the order of the court, it was held sufficient. In re Road in East Donegal Township, 90 Pa. St. 190. So where the statute directs that viewers shall be sworn “ to perform their duties impartially and to the best of their judgment " it is sufficient if they are sworn to perform their duties in the premises according to law." In re Paschall Street, 81 Pa. St. 118. Where the only mistakes in an oath were the writing“ understng” for “understanding” and “ faithly," for "faithfully,” it seems that the court will overlook them. State v. Ayres, 15 N. J. L. 479; So the use of the word 'declare" in an oath is synonymous to "promise required by statute, and is not a cause for reversal. Bassett v. Den, 17 N. J. L. 432. And where the statute requires an oath “ fairly and impartially to execute the duties imposed upon them by this act" and the oath taken is “that they will fairly and impartially execute the duties imposed upon them by the above appointment and make a just and true report according to the best of their skill and judgment,” it was held sufficient. State (Wilkinson Pros'r) v. City of Trenton, 35 N. J. L. 485.
But where the oath administered to the jury in proceedings to lay out a ditch, does not specify the line of the ditch or its dimensions, but refers to it merely as “ Pine Creek Ditch, No. 2," it is insufficient, as it does not apply to a ditch of any specific character and predetermined location. Chapman v. Clark, 49 Mich. 305. Where the statute requires the road viewers to perform their duties“ impartially and according to the best of their judgment," a report by the viewers that they were sworn “ to faithfully discharge their duties" has been held insufficient. In re Cambria Street, 75 Pa. St. 357. And in Michigan, it seems that in proceedings to take land for a depot it is not enough for the jurors to swear that they will “ examine and determine the necessity of locating and constructing a depot described as follows,” etc., since the constitution requires jurors to determine the necessity of taking land therefor, and the compensation to be paid for it. Bowler v. Perrin, 47 Mich. 154.
The Wisconsin Act of 1872 required the commissioners appointed to appraise the damages in condemnation proceedings before entering on the duties of their office, to take the constitutional oath prescribed for state officers : to support the constitutions of the United States and this state, and faithfully to discharge their duties to the best of their ability. Defendant's charter, under which the commissioners in this case were appointed, required of them no oath ; but they took one to execute the trust reposed in them and discharge the duties imposed upon them as enjoined in said charter, pursuant to the provisions of the charter, to the best of their ability. Held, that their proceedings were void for want of jurisdiction. Bohlman v. Green Bay & M. R. Co., 40 Wis. 157.
What Records and Reports should show as to the Administration of Oaths. -In Illinois it was held that a recital of road commissioners that they were duly sworn, in proceedings to locate a road, without stating that they were sworn to perform the duties imposed by statute, or to perform any duty whatever, is insufficient to prove that they were legally sworn. Crossett v. Owens, 110 III. 378. In Iowa the oath administered to the jury impaneled to assess damages should be set out specifically by the sheriff in his return; but whether an omission to do so is fatal, qúaere. Walters v. Houck, 7 Iowa, 72. In Michigan proceedings to condemn private property will be quashed, if the record does not show that the jurors took, before acting, an oath covering their constitutional duties; but they are not required to recite their oath in every report, and such a recital is not sufficient proof of it. Bowler v. Perrin, 47 Mich. 154. See also Inre Nicetown Lane, 11 Phila. (Pa.), 377 ; case of Greenleaf Court, 4 Whart (Pa.), 514
There is another line of cases which hold that this exactness is not required. Thus in Alabama, the mere recital that the commissioners were sworn according to law is sufficient. Long v. Commissioners' Court, 18 Ala. 482; compare, Keenan v. Commissioners' Court, 26 Ala. 568. Andin Kentucky it is sufficient evidence that the viewers were sworn if their report states this fact. It will then be presumed that they took the appropriate oath. Wood v. Campbell, 14 B. Mon. (Ky.), 339. In Mississippi it is held that where a sheriff returned, that a jury of inquest summoned by him to assess damages accruing to the owner of land, by reason of the location of a railroad thereon, “ were duly empanelled and sworn according to law, to discharge their duties,” the return must be construed as a statement that the proper oath was administered to the jury, and not as a recital of the substance of the oath administered, and therefore that it appeared that the jury were properly sworn. New Orleans, J. & G. N. Ř. Co. v. Hemphill, 35 Miss. 17. In a Wisconsin case, by recitals in the award of commissioners of appraisal of land taken for a railroad, it appeared that they were appointed under the charter of the railroad company (granted in 1866,) and that, before making the award, they took the oath“ required by law;" but it did not appear when they were appointed, or what was the form of their oaths. The award was made after chap. 119 of 1872 took effect. Held, that it must be presumed, in favor of the legality of their action, that the commissioners were appointed before the passage of the latter act, and that they took the oath required by it. Lyon v. Green Bay & M. R. Co., 42 Wis. 538. In a Missouri case in proceedings instituted in behalf of the Hannibal & St. Joseph Railroad Company, under its charter, to obtain the condemnation and appropriation of land upon which said railroad had been located, it was stated in the report of the viewers appointed to assess damages, that before proceeding to examine the damages they took the oath prescribed by the statute, but the oath itself was not set forth, held, it not appearing that objection was made to the report on this ground, that the recital in the report was sufficient to show that the required oath had been taken. Hannibal & St. J. R. Co. v. Morton, 27
In his work on Eminent Domain, Mr. Lewis says concerning this conflict of authority: “The correct doctrine would seem to be that, where the proceedings are under the supervision of a court of record, and the tribunal is sworn at the bar of the court and a record of the fact made as part of the proceedings in the case, a simple recital that the oath was taken as required by law would be sufficient. But, where the only record of the oath is in the report of the commissioners themselves, or in the certificate of a sheriff, clerk, or other ministerial officer, it ought to show what the oath was which was taken, and how it was administered, in order that it
47 A. & E. R. Cas.-4