The opinion
Mr. Justice Magruder,
dissenting:
I can not concur in this decision. If Tom, Dick and Harry can get together and call themselves a railroad company, and, without proving even their de facto existence as a corporation, can take the land of the citizen against his will, then the law furnishes poor protection, indeed, to the ownership of property. To be sure, it is not necessary, that the company, seeking to exercise the right of eminent domain, shall prove itself to be, in all respects, a legally organized corporation, but it must at least show, that it is a body corporate de facto; and the usual evidences of such de facto existence are the charter and acts of user thereunder. 1 Wood’s Railroad Law, 16, 19; McAuley v. Columbus, Chicago and Indiana Central Ry. Co. 83 Ill. 348 ; Peoria and Pekin Union Ry. Co. v. Peoria and Farmington Ry. Co. 105 id. 110; Chicago and Northwestern Ry. Co. v. Chicago and Evanston Railroad Co. 112 id. 589.
In this record, there is not a particle of evidence to show, that there is any such corporate body as the Minnesota and Northwestern Bailroad Company. Not even the de facto existence of such a corporation has been established. No charter has been produced; no acts of user have been proven. It does not appear, that any organization of any kind has even been attempted, much less effected.
It is not sufficient to say, that the appellant should have objected, that there was no proof of corporate existence. It was necessary for the appellee to furnish such proof in the first place, in order to give the court jurisdiction to act in the premises. The second section of the Eminent Domain act provides, that the right to take private property for. public use, without the owner’s consent, must be conferred by “general law or special charter,” before the company, seeking to condemn, can file its petition. It can not proceed, until it has. proven that such right has been conferred by general law or special charter. The authority to condemn must be set forth in the petition “by reference,” so that parties interested can examine, and see whether the authority claimed actually exists. The right so to take private property for public use is a tremendous and dangerous power. It is an attribute of sovereignty, and, in conferring it upon a corporation, the State parts with a portion of- its oivn sovereignty. The exercise of such a power should be hedged about with all possible safeguards. The assertion of such a right should never be permittecl, except in strict conformity with the law of the land. Mitchell v. Illinois and St. Louis Railroad and Coal Co. 68 Ill. 286 ; Chicago and Alton Railroad Co. v. Smith, 78 id. 96.
The appellant could not set up an objection to the existence of the corporation in an answer or plea, as we have decided, that “under the Eminent Domain act an answer is not allowable, and the principle includes a plea.” Johnson v. Freeport and Mississippi River Ry. Co. 111 Ill. 413 .
But it is said, that, inasmuch as the appellant has made use of the Avords, “the said railroad company, ” in his cross-petition, he has thereby admitted the existence of appellee, as a corporation de facto. It has been held, that a plea, denying the averment, that the plaintiff Avas a corporation, was overcome by proof, that defendant sold land to plaintiff and executed a deed to it, by its corporate name. (Wood v. Kingston Coal Co. 48 Ill. 356 .) It has, also, been held, that the execution of a note and mortgage to a corporation, as such, is sufficient prima facie evidence of the existence of the corporation. (Brown v. Mortgage Co. 110 Ill. 235 .) But in such eases, the party, affected by the evidence in question, has made a contract, or had dealings with the corporation, whose existence he denies. The cross-petition, however, does not embody or represent any transaction betAveen the petitioner and cross-petitioner. It is addressed to the court. In the present case, it is not sworn to, nor even signed, by appellant. It is signed by his attorneys, and is a mere pleading. It Avas filed only fifteen days after the original petition was filed, and before appellant had any reason for supposing, that appellee Avould fail to prove its existence, as a de facto corporation, upon the trial of the case. It had no other object than to bring before the court property of appellant, damaged and not described in. the original petition. It did not profess to admit or deny the corporate existence of appellee, but, in effect, to merely ask, that, if there Avas such a corporation, and it should take the land, sought to be condemned, it should also pay the damages to other lands, not taken. I do not think there is any allegation in the cross-petition, which relieved the appellee from the necessity of making the proofs, requisite to sustain its original petition.