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the land except for the purpose of traveling." Commenting on this language of the Supreme Court of New York, the Supreme Court of Missouri say:

"The owner of the land in such case is as entirely deprived of the use of the land as if the city had taken it and claimed to be the owner in fee simple. To say that he is in 'Contemplation of law in possession of the street' is no answer to the real fact that he is entirely deprived of the possession. He has the same right to travel over the street as any other person not, however, as owner of the property, but as one of the public, any one of whom can exercise as much dominion over the property as he. He is entirely deprived of his property. He cannot sue the public or any one traveling on the street, and recover his property; and if he cannot sue the corporation, which has taken and holds possession of the premises as a street, and recover the specific property then private property may be taken and held for public use, without a compliance with the law providing a mode of condemnation. He may sue and recover its value from the city, and has no other remedy, it is contended; but this would be to hold his property at the mercy of the city, which can take it away from him, and compel him to accept, in lieu of the property, the amount of money a jury may estimate it to be worth, or, rather, a judgment for that amount, which may possibly never be satisfied, and thus force him to exchange his land, which he may wish to hold, for money, or other property, which he does not want. He has a right to the specific property and no corporation, not even the State, can deprive him of it but in the manner provided by law."

In Walther v. Warner, 25 Mo. 277, the railroad company did not comply with the Constitution and the law, and her contractor and his assistants were liable in an action of trespass brought by the landowner. The

landowner obtained judgment against the contractor for what the contractor did. In McQuiddy v. Smith the contractor obtained judgment against the landowner for what he did. The contractor had no contract with the landowner in either case. Here is a strange reversal of rights and liabilities.

In Soulard v. St. Louis, 36 Mo. 546, et seq., the landowner recovered against St. Louis in an action of trespass the value of the land taken by St. Louis for public use as a street. When the money was paid the title passed by operation of law. If I take personal property by trespass, the owner may in an action of trespass recover against me the value of the personal property taken, and when the judgment is paid the title to the property passes by operation of law.

In like manner the landowner may now recover in an appropriate action just compensation (this may be more than damages) for damaging his private property for public use by corporate action. This "just compensation" for either taking or damaging may now be recovered by the landowner from the corporation. But the corporation, through its contractor, can recover from the damaged landowner the cost of doing the damage under the law of taxation. Why can't the corporation by taxation recover from the landowner the cost of taking, including the value of the land? It is certainly a most remarkable law that pays the wrongdoer to do this constitutional wrong. He is a constitutional highwayman. Because the thing is prohib ited to the corporation, the courts look on the act as being one which the corporation has no capacity to do. Stealing is prohibited, i. e., the law takes away from the individual the power to steal. People cannot steal because the statute takes away their capacity to do so.

In Powers v. Hummert, 51 Mo. 136 (referred to elsewhere), a railroad condemned land for its road and

after the commissioners's report was filed, but before the money was paid into court, the contractor for grading the railroad entered on the land and tore down the fences and commenced grading the roadbed; then the money was paid into court for the landowner who took the money; he was just like a corporation in that respect and sued the contractor in trespass and recovered, directly the reverse of the holding in McQuiddy v. Smith, above cited. If the city authorize a trespass or wrong it is dangerous to sue the trespasser. He may file a counterclaim for the cost of doing the trespass (for the laborer is worthy of his hire, especially if he is hired to violate the Constitution), and the wronged individual may have to pay more on the counterclaim that he obtains on the petition.

CHAPTER 9.

OUR CONSTITUTIONS IN THE LIGHT OF THE HISTORY OF THE

STATES.

We ought to read the Constitution of Missouri, adopted in 1875, in the light of the previous history of the State.

By ordinance of the State Convention on July 19, 1820, a public fund for roads and canals is provided. Five per cent of the sale of lands was put into a fund to build roads and canals (see R. S. 1825, vol. 1, p. 40, under "Third" at bottom of page). Article 7 of the Constitution of 1820 provided that "Internal improvements shall forever be encouraged by the government of this State," and funds are required to be provided for improving roads and rivers. We have the canal fund yet in all our Revised Statutes in Missouri even now. Article 7 of the Constitution was not changed till 1865. Pursuant to the direct requirement of the Missouri Constitution of 1820, to encourage internal improvement, the State issued its bonds and took stock in roads and railroads. This continued for forty-five years after the admission of the State into the Union. During this forty-five years, the State became involved to a very great extent financially. Railroads and roads were of more importance than streets. Plank roads were first used and then macadamized roads. These were all "toll" roads. They were called "Turnpikes.' The corporation was required to construct and operate the road and was authorized to charge "toll" for each wagon, horseman or vehicle passing over the road. A road of that kind was in use in this county connecting Kansas City or Westport landing with Westport. This road was used in 1865 as a "toll" road. The toll gate

was near Twenty-fourth street and Grand avenue in Kansas City. We had then in early times state roads and county roads. Later came railroads. The counties, cities, towns and villages had subscribed stock and issued their bonds for railroads. In article 11 of the Constitution of 1865, three sections are thus:

"Section 13. The credit of the State shall not be given or loaned in aid of any person, association or corporation; nor shall the State hereafter become a stockholder in any corporation or association except for the purpose of securing loans heretofore extended to certain railroad corporations by the State."

"Section 14. The General Assembly shall not authorize any county, city or town to become a stockholder in or to loan its credit to any company, association, or corporation, unless two-thirds of the qualified voters of such county, city or town, at a regular or special election, to be held therein, shall assent thereto."

"Section 15. The General Assembly shall have no power, for any purpose whatever, to release the lien held by the State upon any railroad."

Section 13 took away all power in this direction and section 15 is a direct and positive vote of the want of confidence. The Legislature of the State, possessing all legislative power, is supposed to be so just and honest as not to yield the state interest to any one, and they, entrusted with making laws for the whole people of the State, are supposed to be so wise that no artifice or cunning can be contrived by which the people's interest entrusted to their hands will in any degree suffer. "We have no confidence in you," say the people to the Legislature. It is so blunt and positive as to be an insult to their honor, honesty and integrity. The Constitution says to the Legislature, "You shall not release the state lien on any railroad." Read the language of the Constitution in the light of the history of

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