said: This is classification run mad. Why not say all counties named "Crawford," with a population exceeding sixty thousand, that contain a city named Titusville," with a population of over eight thousand, and situated twenty-seven miles from the county seat? Or all counties with a population of over sixty thousand watered by a certain river, or bounded by a certain mountain? There can be no proper classification of cities or counties except by population. The moment we enter geographical distinctions, we enter the domain of special legislation, for the reason that such classification operates on certain cities or counties to the perpetual exclusion of all others.' From the views herein expressed, does it not necessarily follow that the state board of assessors could not value any particular species of property without dividing the same into classes having reference to their character and value on some sensible basis? The classes of property' which the board was authorized to make could not be founded upon odious, absurd, or unreasonable distinctions. The classes adopted 'must be based upon reasonable and actual differences,' otherwise the provisions of the constitution requiring a uniform and equal rate of assessment and taxation' would be violated, and the action of the board would be null and void. The board had no power to make 'classes of property' concerning lots in towns and cities upon which are erected two-story brick or frame buildings of certain dimensions at so much per front foot, without reference to their utility, business purposes, occupancy, or cash value. Such a classification would exhibit a greater dementia than the one referred to as being run mad' in Com. v. Patton, 88 Pa. 258. The board grasped the thought that it had no authority to value all horses in the state at so much per head, and divided them into classes of property with reference to their value as work horses and stock horses, etc. It could not say that all gray horses shall be valued at $100 each, and all sorrel horses at $75. Hawkins v. Mangrum (Miss.), 28 South. Rep. 872, 874. So of railroads. The board had no jurisdiction, power, or authority to value any railroad at so much per mile without first selecting the classes of property to which it belonged, and the selection of the classes must have been made with reference to the constituents attaching to that particular class. It had no power to assess a railroad, or any other kind of property, to the individual owner thereof by name, or with sole reference to the number of miles, without definitely placing it within classes of property having reference to the value of all property within that class."

BONDHOLDERS AS COMPLAINANTS IN THE FORECLOSURE OF CORPORATE

MORTGAGES.

The General Rule as to Complainants in Such Cases.-Holders of numerous bonds which are secured by a single mortgage or deed of trust are restricted in their right of foreclosure by the corresponding rights of their fellow bondholders, arising from "the peculiar nature of the security." Hence, a trustee is usually named in the instrument upon whom, primarily, devolves the duty of instituting foreclosure.2 In Texas the bondholders are not required to wait for the trustee to proceed. But by the general rule he is the proper complainant in the first instance, and where he has commenced the

1 Federal Cases: Canada Southern R. Co. v. Gebhard, 109 U. S. 531, 537; Shaw v. R. Co., 100 U. S. 611, 612. Connecticut: Gates v. Boston, etc. R. Co., 53 Conn. 333, the court saying: "It is manifest that each bondholder enters into contract relation with each and all of his co-bondholders. His right to appropri ate the security in satisfaction of his bond in such lawful manner as he may choose, is modified by the same existent right in every other holder. His abso lute right of control is limited, not only by the express provisions of the bond and mortgage, but also in great measure by the peculiar nature and character of the security."

2 Minnesota: Seibert v. Minn., etc. R. Co., 52 Mino. 48, 155. "The trustees represents the mortgage, and in executing his trust may exercise his own discretion within the scope of his powers. If there are differ ence of opinion among the bondholders as to what their interest require, it is not improper that be should be governed by the voice of the majority, acting in good faith and without collusion, if what they ask is not inconsistent with the provisions of his trust." Shaw v. R. Co., 100 U. S. 605, 612.

3 Hammond v. Tarver (Tex. 1896), 34 S. W. Kep. 729.

4 Federal Cases: Shaw v. R. Co., 100 U. S. 605, 612, and see cases cited, post; Vose v. Bronson, 6 Wall. (U. S.) 452; Chicago, etc. R. Co. v. Howard, 7 Wall. (U.S.) 392; Hall v. Southern R. Co., 1 Brunner Col. Cas. 613, 21 Law Rep. 138, 11 Fed. Cas. 257; Skiddy v. Atlantic, etc. R. Co., 3 Hughes (U. S.), 320, 22 Fed. Cas. 274; Campbell v. R. Co., 1 Woods (U.S.). 368; Young v. Montgomery, etc. R. Co., 2 Woods (U. S.), 606; Wetmore v. St. Paul, etc. R. Co., 1 McC. (U. S.) 466; Kerrison v. Stewart, 93 U. S. 155; Richter v. Jerome, 123 U. S. 233. But see Brooks v. Vermont, etc. R. Co., 14 Blatchf. (U. S.) 463. Alabama: Savannah, etc. R. Co. v. Lancaster, 62 Ala. 555, 563; Swift v. Stebbins, 4 Stew. & Port. (Ala.) 447. Connecticut: Gates v. Boston, etc. R. Co., 53 Conn. 333, 346. Ilnois: Chicago, etc. R. Co. v. Peck, 112 Ill. 408. Iodiana: Wright v. Bundy, 11 Ind. 398. Kentucky: Bardstown, etc. R. Co. v. Metcalfe, 4 Metc. (Ky.) 199; Union Trust Co. v. Broshears (Ky. 1897), 39 S. W. Rep. 44; Krieger v. Bissell, 80 Ky. 330. Maryland: Hays v. Dorsey, 5 Md. 99. Massachusetts: Shaw v. Norfolk, etc. R. Co., 5 Gray (Mass.), 162; First Nat. Fire Ins. Co. v. Salisbury, 13 Mass. 303. Minnesota:

foreclosure of a trust mortgage, an individual bondholder, proceeding by an independent bill, must come into the suit by the trustee. So the judgment of the trustee as to the conduct of litigation will prevail over that part of the bondholders, as where they alone seek to compel the execution of a decree in the trustee's favor, from which they bave appealed, but in which the supersedeas has been vacated."

Requirement that Trustee be Requested to Sue. Such being the general rule as to complainants in this class of cases, it is, of course, competent for the parties to a trust mortgage to stipulate therein that none of the bondholders may bring suit until the trustee has been requested (sometimes in writing) to do so by a specified number of the former, and has refused. But this provision is a limitation on the bondholders alone, and will not require the trustee to wait for such request. On the other hand, Siebert v. Minn., etc. R. Co., 52 Minn. 148. New Jer sey: Willink v. Morris Canal & Banking Co., 4 N. J. Eq 377; New Jersey Franklinite Co. v. Ames, 12 N. J. Eq. 507; Hackensack Water Co. v. DeKay, 36 N. J. Eq. 548. New York: Van Vechten v. Terry, 2 Johns. Ch. (N. Y.) 194; Tillinghast v. Troy, etc. R. Co., 48 Huo (N. Y.), 420; Weetjen v. Vibbard, 5 Hun (N. Y.), 265. Ohio: Hayes v. Galion Gas, etc. Co., 29 Ohio St. 330; Carpenter v. Canal Co., 35 Ohio St. 307, Fennsylvania: McElrath v. Pittsburg, etc. R. Co., 68 Pa. St. 37. South Carolina: Gibbs v. R. Co., 13 S. Car. 228. Vermont: In re Chickering, 56 Vt. 802. Wisconsin: Board of Supervisors v. Mineral Point R. Co., 24 Wis. 98, 127.

5 Stern v. Wisconsin Cent. R. Co., 1 Fed. Rep. 555. 6 Farmers' Loan & Trust Co. v. Central R. Co., 4 Dill. (U. S.) 533.

7 Chicago, etc. R. Co. v. Fosdick, 106 U. S. 47; Clay v. Selah Valley Irrig. Co., 14 Wash. 543.

8 Federal Cases: Chicago, etc. R. Co. v. Fosdick, 106 U. S. 47; Morgan v. Kansas Pac. R. Co., 15 Fed. Rep. 55. Minnesota: Siebert v. Minn., etc. R. Co., 52 Minn. 148, the court saying: "Why may not the mortgage in the common interest stipulate the conditions under which this right may be exercised by the bondholders, and, in order to avoid the risk of rash or arbitrary proceedings which might result in great in jury to the security, provide that no such proceed. ings should be instituted by an individual bondholder, except upon the refusal of the trustee to obey the requisition of a reasonable number of the bond holders? It is not the intention or effect of such conditions or stipulations to devest the bondholders of their right to judicial remedies, or to oust the courts of their jurisdiction; it is merely the imposition of certain conditions upon themselves in response to the exercise of that right. And this distinction is well recognized by the courts." Pennsylvania: Humes v. Company, 2 Pa. Dist. Rep. 107. See also Guilford v. Minn., etc. R. Co., 48 Minn. 560.

New York Sec. & Trust Co. v. Lincoln St. Ry. Co., 74 Fed. Rep. 67.

a bondholder is not prevented from suing for non-payment of interest by reason of the usual clause authorizing the trustee for such default to declare the principal due and foreclose for the whole, upon request of the bondholders, or a majority of them.10 But a provision in the mortgage alone giving the right of election upon non-payment of interest was held to be available to the trustee alone, and not to the individual bondholders." The rule requiring a satisfactory reason for not suing in the name of the trustee was held inapplicable where the bill prayed an accounting and not foreclosure. 12 But in a suit by several joint owners of railway bonds to have them declared a lien on the property, all such owners must be made parties. 13 In a suit to enforce the liability of stockholders, the court will not, at the instance of a bondholder, order a foreclosure by a trustee named in a mortgage of defendant's property, where the effect would be to bring in a controversy foreign to the suit.14

The Same Continued-Trustee's Incapacity. But "the bondholders are the real parties in interest; it is their right which is to be redressed, and their loss which is to be prevented; and any emergency which makes a demand upon the trustee futile or impossible, and leaves the right of the bondholder without other reasonable means of redress, should justify his appearance as plaintiff in a court of equity for the purpose of a foreclosure. ''15 10 Farmers' Loan & T. Co. v. Chicago, etc. R. Co., 27 Fed. Rep. 146; Beekman v. Hudson Riv. West Shore R. Co., 35 Fed. Rep. 3; Alexander v. Central R. Co., 3 Dill. (U. S.) 487; Montgomery County Agriculture Soc. v. Francis, 103 Pa. St. 378.

11 West Shore Hudson Riv. R. Co., 35 N. Y. Sup. Ct. Rep. 174.

12 D. A. Tompkins Co. Catawba Mills, 82 Fed. Rep. 780.

13 If the bonds in question are to be decreed a lien on the property of the defendant, it must be done for the benefit of the owners of the bonds-for those who have an equitable right thereto, and who are to be bound by the result of the litigation. If a decree should be given against this plaintiff, and he immedi ately thereafter shifts the manual possession to one of his co owners, can the latter institute a new suit and avoid a plea of res adjudicata? The rule is deemed clear and explicit that this plaintiff cannot maintain a suit of this nature in his own name, he being one of several joint owners of the bonds in ques tion, those holding a majority interest being citizens of this state." Messchaert v. Kennedy, 4 McCreary (U S.), 133.

14 Winthrop Nat. Bank v. Minn., etc. Co. (Minn.), 79 N. W. Rep. 1010.

15 Finch, J., in Ettinger v. Persian Rug & Carpet Co., 142 N. Y. 189, 66 Hun (N. Y.), 94.

The trustee may die before the right of foreclosure accrues, and in that event it is not necessary to appoint a new trustee, 16 but the bondholders may sue in their own names.17 Nor is such new appointment necessary where the trustee has gone beyond the jurisdiction and is reported insane, for, in that event, likewise, a bondholder may bring the suit. 18 The reason for the trustee's inaction must be alleged in the bill. 19

and these averments must be proved. 23

Trustee in Antagonistic Position.-The fact that the trustee stands in a position where his interests are inconsistent and in conflict with those of the bondholders, will make it unnecessary for them to request the trustee to bring foreclosure and entitle them to proceed in their own behalf.24 Thus where the grantor of a trust mortgage, which gives a preference to the mortgagees over general creditors, executes a deed of assignment to the same trustee for the benefit of such creditors, the two positions of the trustee are inconsistent, and he is no longer entitled to any priority over the bondholders in bringing suit. 25 So, where one of the trustees had since been appointed receiver of the mort

16 Waughop v. Bartlett, 165 Ill. 124. This, it is true, was the foreclosure of an ordinary deed of trust securing a note or bond held by one person, but it is believed that the doctrine would apply to the case of numerous bondholders.

17 Galveston R. Co. v. Cowdrey, 11 Wall. 459.

18 "Why should a new appointment be made when any one of the bondholders can equally do the duty of pursuing the foreclosure? The court, in such an action, takes hold of the trust, dicates and controls its performance, distributes the assets as it deems just, and it is not vitally important which of the two possible plaintiffs sets the court in motion." Ettinger v. Persion Rug & Carpet Co., 142 N. Y. 189, 66 Hun (N. Y), 94.

19 General Flectric Co. v. La Grande Edison Electric Co., 87 Fed. Rep. 590, affirming 79 Fed. Rep. 25. 20 Federal Cases: Chicago, etc. v. Fosdick, 106 U. S. 47, 68; Farmers' Loan & Trust Co. v. Northern Pac. R. Co., 66 Fed. Rep. 169; Omaha Hotel Co. v. Wade, 97 U. S. 13; Farmers' Loan & Trust Co. v. Chicago, etc. R. Co.,27 Fed. Rep. 146; Morgan v. Kan. sas Pacific R. Co., 21 Blatch. (U. S.) 134, 15 Fed. Rep. 55; Alexander v. Central R. Co., 3 Dill. (U. S.) 487. Minnesota: Seibert v. Minn. & C. R. Co., 52 Minn., 148. New Jersey: McFadden v. May's Landing, etc. R. Co., 49 N. J. Eq. 176, 22 Atl. Rep. 932. New York: Ettlinger v. Persian Rug & Carpet Co., 66 Hun (N. Y.), 94, affrmed 142 N. Y. 189; Van Benthuysen v. Cent., etc. R. Co., 45 N. Y. S. R. 16; Davies v. New York Concert Co., 41 Hun (N. Y.), 492; Weetjen v. St. Paul, etc. R. Co., 4 Hun, 529. See also, Martin v. Somerville Water Power Co., 27 How. Pr. 161, 169; Brinckerhoff v. Bostwick, 88 N. Y. 52. Pennsylvania: Com. & Susquehanna, etc. R. Co., 122 Pa. St. 306, 319. 21 Ettlinger v. Persian Rug & Carpet Co., 142 N. Y. 189, affrming 66 Hun (N. Y.) 94.,

22 General Electric Co. v. LaGrande Electric Co.,87 Fed. Rep. 590, affirming 79 Fed. Rep. 25; Morgan v. Kansas Pac. R. Co., 21 Blatchf. (U. S.) 134, 15 Fed. Rep. 25 where the bill averred: "That during the several years last past the defendant, Benjamin W. Lewis, has duly become sole trustee under said income mortgage and has been requested to bring an action for the accounting and injunction asked by the plaintiff herein, but he has

of an alleged preference mortgage thereon which he was seeking to foreclose in another court, it was held that the bondholders need not show a request of the trustee to sue and a refusal by them.26

Necessity of Joining Co-Bondholders.While, under the circumstances detailed above, one or more bondholders may bring foreclosure without the trustee, still the suit is for the common benefit of all whose bonds are secured by the mortgage in suit,27 and neglected and failed to bring such action or comply with said request, and he is, therefore, made a defendant in this action." See also Alexander v Central R. Co., 3 Dill. (U. S.) 487.

23 General Electric Co. v. La Grande Edison Elec. tric Co., 87 Fed. Rep. 590, affirming 79 Fed. Rep. 25. 21 American Tube & Iron Co. v. Kentucky Oil & Gas Co., 51 Fed. Rep. 826; Clay v. Selah Valley Irrigation Co., 14 Wash. 543, 45 Pac. Rep. 141; Webb v. Vermont Central R. Co., 20 Blatchf. (U. S.) 218; Mercantile Trust Co. v. Lamoile Valley R. Co., 16 Blatchf (U. S.) 824, 332.

25 The trustee under the first deed represents preferred creditors, and it is the duty of such trustee to see that all of the bonds legally issued under this deed have a preference over the general creditors of the mortgagee, the oil company. It is the duty of the trustee, under the second trust deed (the deed of general assignment), to prevent, if it can be legally done, the coupon bonds under the first deed of trust getting a preference. Thus there is an antagonistic and conflicting interest to be represented under these deeds. This conflicting interest is sufficient to deprive the trustee under the first deed of the preference it would otherwise have, as against some of the bondholders, in bringing a suit to foreclose the mort. gage." American Tube & Iron Co. v. Kentucky Oil & Gas Co., 51 Fed. Rep. 826.

26 Mercantile Trust Co. v. Lamoile Valley R. Co., 17 Blatchf. (U. S.) 324.

27 Federal Cases: New Orleans, etc. R. Co. v. Parker, 143 U. S. 42; Galveston R. Co. v. Cowdrey, 11 Wall. (U. S.) 459; Alexander v. Central R. Co.,3 Dill.

while it is unnecessary to join as parties the holders of bonds which are secured by a junior mortgage, 28 there is authority for the proposition that all co-bondholders of a mortgage, given to them instead of to a trustee, nust be joined in a suit to foreclose it.29 At any rate co bondholders are entitled to intervenes or to be made complainants. But if on complainant's bond alone interest remains unpaid, he need not aver that the suit is brought in behalf of other bondholders as well as himself.32

CHARLES SUMNER LOBINGIER.

Omaha, Neb.

31

(U. S.) 487. New Jersey: McFadden v. May's Landing, etc. R. Co., (N. J ) 22 Atl. Rep. 932; Hackensack Water Co. v. Be Kay, 36 N. J. Eq. 548. Washington: Clay v. Selah Valley Irrigation Co., 14 Wash. 543, 15 Pac. Rep. 141,

28 First Natl. Fire Ins. Co. v. Salisbury, 130 Mass. 303.

29 Nashville & Decatur R. Co. v. Orr., 18 Wall. (U. S.)

30 New Orleans, etc. R. Co. v. Parker, 143 U. S. 42. 31 Galveston R. Co. v. Cowdrey, 11 Wall. (U. S.) 459; First Nat. Fire Ins. Co. v. Salisbury, 130 Mass. 303.

32 McFadden v. May's Landing, etc. R.,49 N. J. Eq. 176.

CONSTITUTIONAL LAW-ATTORNEY'S FEES
AS PART OF COSTS IN CONDEMNA-
TION PROCEEDINGS.

GANO V. MINNEAPOLIS & ST. L. R. CO. Supreme Court of Iowa, October 17, 1901. 1. Code, § 2007, providing that railroad corporations condemning land for a right of way shall pay to the landowner reasonable attorney's fees incident to the assessment of damages or appeal therefrom, is not in derogation of a common or natural right, but a condition imposed on the exercise of a special grant of power, and hence is not unconstitutional as denying railway companies the equal protection of the law.

This is a controversy over the right to tax attorney's fees in favor of the landowner in a condemnation proceeding. The trial court refused to tax the fees because of the unconstitutionality of the statute authorizing the same, and the landowners appeal.

DEEMER, J.: Statutes allowing plaintiffs only to recover attorney's fees as part of the judgment in particular actions selected by the legislature have been sustained in a great number of cases. See Railway Co. v. Mower, 16 Kan. 573; Railway Co. v. Duggan, 109 Ill. 537, 50 Am. Rep. 619; Vogel v. Pekoc (Ill. Sup.), 42 N. E. Rep. 336; Dow v. Beidelman (Ark.), 5 S. W. Rep. 718; Perkins v. Railway Co. (Mo. Sup.), 15 S. W. Rep. 320; Railway Co. v. Dey, 82 Iowa, 312, 48 N. W. Rep. 98,

The

12 L. R. A. 436, 31 Am. St. Rep. 477; Wortman v. Kleinschmidt (Mont.), 30 Pac. Rep. 280; Railway Co. v. Ellis (Texas Sup.), 26 S. W. Rep. 985; Cameron v. Railroad Co. (Minn.), 65 N. W. Rep. 652; Atchison Co. v. Matthews, 19 Sup. Ct. Rep. 609, 43 L. Ed. 909. In other cases such statutes have been held invalid. Coal Co. v. Rosser (Ohio Sup.), 41 N. E. Rep. 264; Wilder v. Railroad Co. (Mich.), 38 N. W. Rep. 289; Railway Co. v. Williams (Ark.), 5 S. W. Rep. 883; Joliffe v. Brown (Wash.), 44 Pac. Rep. 149; Chair Co. v. Runnels, 77 Mich. 104, 43 N. W. Kep. 1006; Railroad Co. v. Morris, 65 Ala. 193; Railway Co. v. Ellis, supra; Railroad Co. v. Moss, 60 Miss. 641; Durkee v. City of Janesville, 28 Wis. 464, 9 Am. Rep. 500. A careful examination of these cases indicates that much depends on the nature of the action and the power that is invoked in the passage of the act. In the Dow case a statute provided a penalty for overcharges in freight rates, requiring the payment of not less than $50 nor more than $300 and costs of suit, including a reasonable attorney's fee. It was held that attorney's fees might be included as a part of the penalty for non-compliance with the duty imposed. The law was upheld as a valid exercise of the police power of the state, and not obnoxious as partial or unequal legislation. Perkins' case involved the constitutionality of a statute providing for attorney's fees in favor of plaintiff in suits for injury to stock resulting from the failure of a railway to fence its track. statute was held to be a proper exercise of the police power, and not in conflict with the Missouri constitution prohibiting special laws granting exclusive privileges. The Duggan case, 109 Ill. 537, is to the same point, and holds the statute valid. The Dey case, also sustains a statute allowing attorney's fees in suits for damages on account of overcharges in freight rates. Ellis' case (Tex. Sup.), 26 S. W. Rep. 985. is the one appealed to the Supreme Court of the United States, and there reversed. Wortman's case sustains a statute providing for an attorney's fee to plaintiff's attorney in actions to enforce mechanics' and certain other liens. Vogel v. Pekoc upholds an act providing for taxing attorney's fees as costs in action by servants for wages which they have previously demanded in writing, against the objection that it was class legislation. Cameron v. Railroad Co. sustains an act allowing the plaintiff reasonable attorney's fees in actions brought under a statute to recover possession of land taken without compensation by a railway company for its right of way. And Judge Brewer, who wrote the opinion in the Ellis case, finds nothing objectionable in a Kansas statute requiring a reasonable attorney's fee for plaintiff in actions against a railway company for damages from fire caused by the operation of its trains. This statute was held to be a valid exercise of the police power, and not in violation of the fourteenth amendment to the federal constitution. Judge Brewer wrote the opinion in the

Ellis case, relied on by appellee, and some of the language of the opinion is quite significant, and we shall have more to say of it hereafter. The Williams case (Ark.), 5 S. W. Rep. 883, involved the constitutionality of a statute providing for the assessment of attorney's fees in stockkilling cases on appeal from a board appointed to assess damages in the event the railway company did not recover a more favorable judgment than the award of the board. This act was held invalid largely because in conflict with a provision of the constitution of Arkar sas that "every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his per. son, property or character. He ought to obtain justice freely and without purchase, completely and without denial, promptly and without delay, conformably to the laws." It is said in the opinion: The legislature has no power to substitute boards of arbitration for courts without the consent of the parties.

*

To make

the action of such board obligatory, or impose a penalty for resorting to the courts, would be a denial of the right, or a purchase of justice, and a violation of the constitution." In Wilder's case an act of the Michigan legislature authorizing an attorney's fee to be taxed in actions for injuries to stock on account of failure of the company to fence was held unconstitutional as being an attempt to grant special advantages to one class at the expense and to the detriment of another. The attorney's fees were held to be a penalty for exercising in certain cases the common right of every person to make a defense in the courts where suits are brought against them. This case runs counter to the Atchison case, and to some of the others to which we have referred. In the Rosser case a statute for taxing attorney's fees in actions to recover wages not paid within a certain time after written demand was held invalid. The Chair Co. case involved the validity of a statute authorizing the taxing of attorney's fees when judgments were recovered for personal services. This was held invalid, as being an attempt to give special advantages to one class at the expense of another. In Jolliffe's case a statute providing that in all actions for injuries to stock by collision with moving trains plaintiff, in case he recovers, shall be allowed a reasonable attorney's fee, was held unconstitutional as an attempt to grant special privileges to one class at the expense of another.

Eminent domain is the right or power of a sov. eign state to appropriate private property to particular uses for the purpose of promoting the general welfare. Lewis, Em. Dom. § 1; Noll v. Railroad Co., 32 Iowa, 66. In Boom Co. v. Patterson, 98 U. S. 406, 25 L. Ed. 206, Justice Freed, in writing the opinion of the court, said: "The proceeding to take private property for public use is an exercise by the state of its sovereign power of eminent domain, and with its exercise the United States, a separate sovereignty,has no right to interfere by any of its department. This posi

tion is undoubtedly a sound one, so far as the act of appropriating the property is concerned. The right of eminent domain appertains to every independent government. It requires no constitutional recognition. It is an attribute of sovereignty. The clause found in the constitution of the several states providing for just compensation for property taken is a mere limitation upon the exercise of the right. When the use is public the necessity or expediency of appropriating any particular property is not a subject of judicial cognizance. The property may be appropriated by an act of the legislature, or the power of appropriating it may be delegated to private corporations, to be exercised by them in the execution of works in which the public is interested. But, notwithstanding the right is one which appertains to sovereignty, when the sovereign power attaches conditions to its exercise, the inquiry whether the conditions have been observed is a matter for judicial cognizance." This is simply a reaffirmation of what Chief Justice Marshall said in Barron v. City of Baltimore, 32 U. S. 243. 8 L. Ed. 672, as follows: "That the right of eminent domain applies to every independent government. It is an incident of sovereignty. and requires no constitutional recognition." The legislature cannot, strictly speaking, delegate this power, but may select such agencies to exercise it, and may confer on them such rights as are not forbidden by the constitution. It follows, then, that the power, except when assumed by the sovereign itself, can be exercised only in virtue of a legislative enactment, and that the time, manner, and occasion of its exercise are wholly in the control of the legislature, except as it may be restrained by the fundamental law. Bachler's Appeal, 90 Pa. 207; Swan v. Williams, 2 Mich. 427; Wilkin v. Railroad Co.. 16 Minn. 271 (Gil. 244) Secombe v. Railroad Co., 23 Wall. 108, 23 L. Ed. 67. The authority must be expressly given, and strictly pursued. Water Works Co. v. McGrath, 89 Iowa, 502, 56 N. W. Rep. 680; Lewis, Em. Dom., and cases cited. The jurisdiction is limited, and can only be exercised in the manner pointed out by statute. California Pac. R. Co. v. Central Pac. R. Co., 47 Cal. 549. As the power possessed by a railway company is a delegated one, the legislature may impose such conditions on its exercise as it sees fit, so long as these conditions are not in violation of some constitutional limitation. As the proceeding is in invitum, it is generally held that the condemning party should pay the costs, not only up to judgment, but of an appeal lawfully taken in good faith by the landowner, even though such an appeal be unsuccessful. San Diego Land & Town Co. v. Neale, 88 Cal. 50, 25 Pac. Rep. 977, 11 L. R. A. 604. And in some jurisdictions it is held that the costs of the appeal should be awarded the landowner if the jury find in his favor for any amount, although the same is less than that fixed by the commissioners. New Haven & Northampton Co. v. Inhabitants of Northampton, 102 Mass. 116;