could not well operate a railroad through a receiver in any other way. The remedy is oheap, speedy, effective, and just. It may, however, be abused-so may any other judicial powel -but the protection against abuse, in laws of this kind, is not to be found in an appeal to a jury, but in an appeal to the court of last resort. This remedy is open to the petitioner. If injustice shall be done him here the error will be corrected by the supreme court. The intervention of a jury is not deemed necessary in this ease, and the petitioner's motion for one will be denied.
UNION PAOIFIO Rj,ILWAY SOURI RIVER RAILROj,D OlliU.Hj,
Co. v. Co. IN
NEBRASKA AND THE
(Oircut' Ooure, D. NelYra8ka.
In Equity. Motion to dissolve injunction. A. J. Poppleton, for complainant. J. M. Woolworth and T. M. Marquette, for defendants. MCCRARY, O. J. This case is before me on a motion to dissolve the injunction heretofore allowed restraining respond.
c. P. n.
00. 'V. B. & H. B. B. 00. IN NEB.
ents from extending their railroad track across that of complainant. The case is as follows: The complainant is a. corporation created by and organized under the act known as the Pacific Railroad Charter, approved July 1, 1862, and acts amendatory thereof. The defendants are corporations organized under the laws of Nebraska. The complainant owns and operates the Union Pacific Railway, extending from the Missouri river westwardly across the state, and the defendants own and operate a line from Omaha to Lincoln. The respondents, desiring to extend their track across that of the complainant for the purpose of connecting with the Omaha & Northern Nebraska Railway Company, instituted proceedings under the law of Nebraska, in the proper state court, for the purpose of assessing the damages accruing to the complainant on account of the crossing of its track, and also for the further purpose of designating the point at which said crossing should be made and the manner of crossing. The statute under which these proceedings were instituted is as follows, (section 113, Gen. St. Neb. 195:) . "Every railroad company shall have power to cross, intersect, join, and unite its railroad with any other railroad before constructed, at any point on its route, and upon the grounds of such other railroad company, with the necessary turnouts, sidings, and switches, and other conveniences, in the furtherance of the objects of its connections. And every company whose railroad is, or shall hereafter be, intersected by any new railroad, shall unite with the owners of snch new railroad in forming such intersections and connections, and grant the facilities aforesaid; and if the two corporations cannot agree upon the amount of compensation to be made therefor, or the points and manner of such crossings and connections, the same shall be ascertained and determined as provided in this subby commissioners, to be division." The section referred to as regulating the proceedings is section 97, p. 191, and is as follows: "If the owner of any real estate, over which said railroad
corporation may desire to locate their road, shall refuse to grant the right of way through his or her premises, the probate judge of the county in which said real estate may be situated, as provided in this subdivision, shall, upon the application of either party, direct the sheriff of said county to summon six disinterested freeholders of said county, to be selected by said probate judge, and not interested in a like question, unless a smaller number is agreed upon by the parties, whose duty it shall be to inspect said real estate and assess the damages which said owner will sustain by the appropriation of his land to the use of said railroad corporation, and make report in writing to the probate judge of said county, who, after certifying the same under his seal of office, shall transmit the same to the county clerk of said county for record, and the said county clerk shall file, record, and index the same in the same manner as is provided for the record of deeds in this state; and such record shall have the like force and effect as the record of deeds, in pursuance of the statute in such case made and provided. And if said corporation shall, at any time before they enter upon said real estate for'the purpose of constructing said road, pay to said probate judge, for the use of said owner, the sum so assessed and returned to him as aforesaid, they shall thereby be authorized to construct and maintain their railroad over and across said premises; provided, that either party may have the right to appeal from such assessment of damages to the district court of the county in which such lands are situated, within sixty days after such assessment; and in case of such appeal the decision and finding of the district court shall be transmitted by the clerk thereof, duly certified, to the county clerk, to be filed and recorded, as hereinbefore provided, in his office; but such appeal shall not delay the prosecution of the work on said railroad, if such corporation shall first pay or deposit with said probate judge the amount so assessed by Baid freeholders; and in no case shall said corporation be liable for the costs of such appeal unless the owner of such real estate shall be adjudged entitled, upon the appeal, to a. greater amount of damages than was awarded by said free-
U. P. BY. CO. V. B. & H. R. R. 00. IN NED.
holders. The company shall, in all cases, pay the costs of the first assessment; provided, that either party may appeal from the decision of the district court to the supreme court of the state, and the money so deposited shall remain in the hands of the probate judge until a final decision be had, sub· ject to the order of the supreme court." Commissioners were appointed as required by the statutes, and, after being qualified, they proceeded in the perform. ance of their duties, and reported as follows: "That said crossing shall be made in the east part of lot number seven, (7,) in block number one hundred and fifty. six, (156,) in the city of Omaha, as shown on the plat marked Exhibit A; that the manner of said crossing shall be at an angle of fifty-eight degrees and fifty-eight seconds, upon a grade even with that of the Union Pacific Railway's track at that point, and with steel templates four (4) inches in width, with two and a half (2i-) inches width of head, or whatever is necessary to make a good and safe crossing at that point; that the compensation to be paid to the Union Pacific Railway Company for such crossing shall be one thousand dollars, ($1,000.) All of which is respectfully submitted. "SAMUEL RoGERS. [Signedl "Gl!lo. SMITH. "MICHAEL DONOVAN. "CHARLES TURNER." If the statute is applicable to this case, and has been followed in. the condemnation proceedings, the complainant is bound, and has no remedy except the right to contest the question of damages on appeal to the district court. Counsel for complainant insists that the proceedings in condemnation are void upon several grounds, which will now be considered. 1. It is claimed that, inasmuch as the complainant's franchise is derived from the United States, no state legislation is valid which provides for condemning the right of way for another railroad across its right of way and track. It is now well settled that the right of eminent domain is a
right inherent in every government, and that it belongs alike to the states and to the United States. Each, within its own sphere of governmental action, may exercise it. The United States v. Chicago, 7 How. 185; Kohl v. The United States, 91
U. S. 367.
Should a case of conflict between the state and federal government arise, the paramount authority of the United States under the constitution would, of course, prevail. Thus, if the United States has, by proper proceedings, condemned and taken land for a fort, arsenal, navy yard or light-house, or for a post-office, custom-house or court-house, it would not be in the power of the state, in the exercise of its right of eminent domain, to take the same property. But the present case does not come within this principle. The United States has never condemned the right of way of the Union Pacifio Railway, and taken it for its own use for publio purposes, within the meaning of the rule just stated. It has only chartered that company, given it the right to construct and operate a railway, and granted to' it the right of way over publio lands along its line, together with the right to take pl'ivate property for the same purpose upon making just compensation. The distinction between this and the condemnation of land under the right of eminent domain for national purposes, is too plain to require elaboration. I am clearly of the opinion that the right of way of the Union Pacific Railway is not property of the federal government set apart for its own public use, so as to exempt it from the operation of the law of the state of Nebraska, above quoted. respecting the crossing and connecting of railroads, and the condemnation of property for those purposes. It is the property of the corporation acquired under a law of the United States. If, however, it were conceded to be the land of the United States, unless held for governmental purposes, it would, even in that case, be subjeot to the state's power ,of eminent domain. Land owned by the United States, as a mere proprietor, and not used for any of the purposes of the national government, may be taken by the state for public use. U. S. v. Railroad Bridge Co. 6 McLean, 517.
U. P. BY. CO. V. B. 4& H. B. B. CO.
It has been held by the supreme court of the United Sta.tes that the Pacific Railroad is s1ibject to state taxation. The Railroad Company v. Peniston, 18 Wall. 5. It was insisted in that case that the Pacific Railroad was created by congress for public and national purposes, and that, like a national bank, it was an instrument of the general government, and not subject to state jurisdiction for purposes of taxation. But this position was not It is difficult to see upon what principle property can be held to be so exclusively within the federal jurisdiction as to be beyond the reach of the state's power of eminent domain, and yet subject to state taxation. 2. It is suggested that the statute under consideration was intended to apply only to domestic railway corporations created under the laws of the state, and such foreign corporations as might by state legislation authorized to extend their roads into the state. Upon this point it is only necessary to say that the statute in terms applies to "every railroad company," which must be held to mean every such company operating a railroad within the state. It is not to be presumed that it was intended to exempt the Union Pacific Railway from the operation of the act, since to do so would be to prohibit the crossing of its line by other roads, and thus to prevent the operation of an unbroken line of railway communication between northern and southern Nebraska. 3. It is insisted that the award of the commissioners is void because only four of the six commissioners concurred in and signed it, although they all took part in the proceedings and deliberations. The law upon this subject is that where authority is vested in three or more persons to determine So public question or matter of public concern, a majority have power to decide, provided all act on the matter. If the matter be one of private concern all must concur, unless provision is made for a decision by a less number. Schenck v. Peay, 1 Wool. 175, 187; Young v. Buckingham, 5 Ohio, (Hammond,) 485-490; Ex parte Rogers, 7 Cow. 526, and note aj Cruger v. Railroad Co. 12 N. Y. 190. That the condemnation of a right of way in the exercise of t!le power of eminent domain is So public matter, within the
l'ule, is not only clear, under the authorities, but also upon principle, since the proceedings can be justified only upon the ground that the land should be taken for public use and for the public interest. The motion to dissolve the injunction is sustained.
THE MATTER OF HENRY
P. FARROW and JOHN S. BIGBY, claimants of the office of United States Attorney for the Districts of Georgia.
(Circuit Court, N. D. Geor,qia. July 17,1880.)
The parties to this controversy agreed with each other to submit ihe Bame to the court without pleadings, and upon the following a.greed statement of facts: Henry P. Farrow held the office by appointment of the president, with the advice and consent of the senate, for a. term which expired April 19, 1880, during the session of the t'lenate. On the twenty-third day of April, 1880, Mr. Justice Bradley, circuit justice for the fifth circuit, appointed Mr.. Farrow to the office, under the provisions of section 793 of the Revised Statutes of the United States) which appointment
IN PoE FARROW.
Mr. Farrow accepted. He qualified under it, and now claims the office under it. The president, on the day of May, 1880, nominated John S. Bigby to the senate for the office. The senate journed on the sixteenth day of June, without acting on this nomination. On the sixth day of July, 1880, during the recess of the senate, the president issued a commission to Mr. Bigby for the office, which he accepted. On the twelfth day of July, 1880, he qualified under this commission, and now claims the office under it. The senate is still in recess. The order of Ur. Justice Bradley, appointing Mr. Farrow, and the president's commission to Ur. Bigby, are before the court as parts of this statement, and also their oaths of office. It was agreed that the foregoing statement should go before the court in lieu of pleadings and evidence, and that the court should thereon decide which of the claimants was entitled to the office. Amos T. Akerman, for Henry P. Farrow. William H. Smith, for John S. Bigby. WOODS, C. J. It is claimed by counsel for Farrow that the appointment by the president of Bigby was, under the facts of the case, beyond his constitutional power, and he cites the third paragraph of section 2, article 2, of the constitution of the United States, which declares: "The president shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions, which shall expire at the end of their next session." He also relies upon section 1769, U. S. Revised Statutes, which declares: "The president is authorized to fill all vacancies which may happen during the recess bf the senate, by reason of death or resig,: nation or expiration of term of office, granting commissions which shall expire at the end of their next session after." The contention is that the vacancy in the office of district attorney, which the president has undertaken to fill by the appointment of Bigby, did not happen during the recess of the senate, and therefore the power to fill it does not reside in the president. On the other hand it is claimed that the phrase "vacancies v.3,no.3-8
that may happen during the recess of the senate," when properly construed, means "vacancies which may happen to exist during the recess of the senate." In support of this latter view the practice of the executive department of the government for nearly 60 years is invoked, and the concurring opinions of 10 of the distinguished jurists who have filled the office of attorney general of the United States are cited. The first opinion given upon this point is that of Mr. William Wirt, attorney general under President Monroe, (10p. 631,) in which he argues for the construction claimed in support of the president's action in this case. He says: "In reason, it seems to me perfectly immaterial when the vacancy first arose, for, whether it arose during the session of the senate or during their recess, it equally requires to be filled. The constitution does not look to the moment of the origin of the vacancy, but to the state of things at the point of time at which the president is called on to act. Is the senate in session? Then he must make a nomination to that body. Is it in recess? Then the president must fill the vacancy by a temporary commission. This seems to me the only construction of the constitution which is compatible with its spirit, reason, and purpose, while at the same time it offers no violence to its language, and these are, I think, the governing points to which all sound construction looks." This opinion of Attorney General Wirt was concurred in by Mr. Roger B. Taney, attorney general under President Jackson. See his opinion dated July 19, 1832, (2 Op. 525.) Mr. Taney says, in construing that clause of the constitution under consideration: "It was intended to provide for those vacancies which might arise from accident, and the contingencies to which human affairs must always be liable; and if it falls out that from death, inadvertence, or mistake, an office required by law to be filled is, in recess, found to be vacant, then a vacancy has happened during the recess and the president may fill it. This appears to be the common sense and the natural iII,lport of the words used. They mean the same thing as if the constitution had said cif there happen to be any vacancies during the recess.'
IN RE FARROW.
It is not necessary to quote from the opinions upon this
question of the other distinguished jurists who have filled the office of attorney general. I simply refer to them. They are the opinions of Mr. Hugh S. Legare, dated October 22,1841, (3 Op. 673;) of Ur. John Y. Mason, dated August 10, 1846, (4 Op. 523;) of Mr. Caleb Cushing, dated May 25, 1855, (7 Op. 186;) of Mr. Edward Bates, dated October 15, 1862, (10 Op. 356;) of Mr. James Speed, dated March 25, 1865, (11 Op. 179;) of Mr. Henry Stanberry, dated August 30, 1866, (12 Op. 32;) and of Mr. William M. Evarts, dated August 17, 1868, (12 Op. 449.) I also refer to the well-considered and conclusive opinion of the present attorney general, Mr. Devens. These opinions exhaust all that can be said on the subject. They were rendered upon the call of the executive department, and under the obligation of the oath of office, and are entitled to the highest consideration. In his opinion Mr. Bates says the power to fill vacancies which occur during the recess has been sanctioned, so far as he knows and believes, by the unbroken acquiescence of the senate. It is true;individual members of the senate have disputed the power, but not the senate itself. Congress has recognized the power by section 2 of the act of February 9, 1863, (Rev. St. § 1761,) the treasury which declares: "No money shall be paid as salary to any person appointed, during the recess of the senate, to fill a vacancy in any existing office, if the vacancy existed while the senate was in session, and was by law required to be filled by and with the advice and consent of the senate, until such appointee has been confirmed by the senate." The only authority relied on to support the other view is the case decided by the late Judge Cadwallader, the learned district and able United States district judge for the of Pennsylvania. It is no disparagement to Judge Cadwallader to say that his opinion, unsupported by any other, ought not to be held to outweigh the authority of the great number which are cited in support of the opposite view, and of the practice of the executive department for nearly 60 years, the acquiescence of the senate therein, and the recognition of the power claimed by both houses of congress. I therefore sh&11
hold that the president had constitutional power to make the appointment of Bigby, notwithstanding the fact that the vacancy filled by his appointment first happened when the senate was in session. The point, however, most strenuously urged in behalf of Farrow is that, the circuit justice having appointed him to fill the vacancy occasioned by the expiration of his own term of office, there was no vacancy to fill, and the president ·could not, therefore, appoint Bigby to fill a vacancy which did not exist. This claim brings up for consideration the proper construction of section 793, U. S. Revised Statutes. That section provides: "In case of a vacancy in the office of district attorney, or marshal, within any ci:r:cuit, the circuit justice of such circuit may fill the same, and the person appointed by him shall serve until an appointment is made by the president, and the appointee is duly qualified, and no longer." The result of this claim is that an appointment made by the circuit justice takes away the power of the president to appoint. In other words, that the power conferred by this section is precisely the same, in all respects, as that conferred on the president by the third clause of section 2, art. 2, of the constitution, and section 1769, U. S. Revised Statutes, supra. That is to say that congress has given the president and the circuit justice the power to fill the same office at the same time, and that the appointee holds for the same length of time under the appointment of either; that whether the appointment is to be made by the president or the circuit justice depends on which is swifter to act; that the power to appoint depends on the result of a scramble between the president. of the United States and a justice of the supreme -court. Such, it seems to me, could not have been the purpose of congress in enacting section 793. A glance at the section shows its object. It was not to enable the circuit justice to oust the power of the president to appoint, but to authorize him to fill the vacancy until the president should act, and no longer. The section exprGssly declares the term for which the appointee of the circuit justice shall serve, namely, until an appointment is made by the president. As
soon as such appointment is made his term under the circuit justice ends, and there is a vacancy in the office, which is simultaneously filled by the appointment which creates it. To say that the power given the, circuit justice, to fill a vacancy until the president appoints, precludes the president from making the appointment, is, it seems to me, a very unwarranted construction of the statute. The meaning is clear. No paraphrase can make it clearer. The circuit justice may fill the vacancy, and the appointee holds under him until the president appoints the same or some other person. The term under the circuit justice then ceases, and the appointee holds, from that time on, under the appointment of the president. My conclusion is, therefore, that, upon the agreed facts, the term of Farrow, under the appointment of the circuit justice, ended as soon as the president appointed Bigby and he was duly qualified, and that Bigby is entitled to the possession of the office.
PORT and others.
(Circuit Court, N. D. Georgia. July, 1880.)
1. REMOVAL-CRIMINAL PROSECUTION-REV. ST. § 643.-A criminal proseCution is commenced, within the meaning of section 643 of the Revised Statutes, relating to the removal of such prosecution from · state to a federal court, as soon as a warrant has been issued.
" COURT-JusTICE OF THE PEACE-CONSTI1'UTION OF GEORGIA, ART. 6. t I.-Under the constitution of the state of Georgia (art. 6, § 1) a justice of the peace is an officer clothed with judicial powers, when acting in his judicial capacity, and within his jurisdiction is, to all intents and purposes, a court, before whom a criminal prosecution can be lawfully commenced.
Petition for Removal. On the second day of July, 1880, an affidavit was made by Mary E. Jones before John B. Suttles, Jr., a. justice of peace of Campbell county, Georgia, charging that on June 24th last. at said county. the defendant, A. W. Port, and 19