delivered the opinion of the court:
This action was brought by Martin to recover damages for an alledged trespass in entering upon his land, digging it up, and cutting a deep ditch in and through it, by which his house was endangered, &c. These acts were done in constructing a branch of the Maysville and Lexington railroad for the purpose of affording access to the river at the upper end of Maysville. The work and acts which constituted the injury and caused the damage complained of, *188were done under the orders and by direction of the board of president and directors of the railroad company ; and the action is brought, not against the company in its corporate capacity, but against the individuals who, as president and directors, ordered, and the engineers and agents or contractors who superintended and executed the work. No process was served upon the engineer and other subordinate agents, and they did not appear. But Waller and the other defendants who were served with process answered, saying they were not guilty, &c., and further, relying upon the charter of said company, approved the 4th of March, 1850, as authorizing them to make said hrancb road, to enter upon the land of individuals for the purpose of locating it, and for the purpose of constructing it, to take possession and use in its construction the land on which it was located, the charter providing that in case there is no agreement as to the price or value of the land, either party may resort to the mode prescribed for assessing its value, and the damage sustained by the location. They plead this provision in abatement of the remedy! by action; and they further deny their responsibility as individuals, on the ground that in the construction of the branch load through the plaintiff’s land, they were acting in their official capacity as president and directors of the road, in the name of the company and for it, and that the company! should pay for the right of way for the road, and they should not be made liable for its debts.
1. Several were sued in trespassjprocess served on part only, who appeared and answered , and judgm't against them. Held that the judgment was right, anil not revers-able because no disposition was made of the case as to others not served with process.*188A trial by’jury was bad, and a verdict and judgment rendered against the defendants for $400 in damages, and a new trial having been refused, the defendants have appealed to this court.
Although the judgment is against the defendants without discrimination, it is to be understood as a judgment against those defendants only who were served with process, all of whom answered. And as the plaintiff might have maintained his suit against any number of the defendants, and was by *189the Code entitled to a judgment against some without disposing of the case finally as to others, it is no available objection t.o the judgment that no notice is taken of the defendants who were not served with process, and no express disposition made of the case as to them.
The answer obviously places the defense entirely upon the questions of law: 1st. As to the right of the company to take the plaintiff’s land for the construction of the road without previous compensation. 2d. As to the effect of the statutory provision for ascertaining the compensation and damages. And Gd, upon the freedom of the defendants irom responsibility in consequence of the official character in which they acted. It is upon these grounds that their denial of being guilty as charged is understood to be based. If the company had the right claimed, the defendants could not be made personally liable, if acting for the company they caused the acts complained of to be done in the exercise of that right. They would be entitled to a verdict and judgment upon the uncontested fact that they did so cause it, and the question of their liability to the action would in no degree depend upon the alledged effect of the statutory provision for ascertaining the compensation, &c. But if the company had no right to take possession of the plaintiff’s land, and construct their road upon it, without first making compensation therefor, then, upon the uneontested fact that these acts were done by order of the defendants, in, the assertion of a right in the company which in law had no existence, the plaintiff would certainly be entitled to á verdict to the extent of the damage caused by the wrong; unless there could be a question whether in such a case the statutory remedy for the damages is the only one, or whether the defendants, by whose order and under whose directions the injurious acts were committed, were themselves exempt from liability, because they themselves acted as the official agents of a company which itself had no *190right either to do or to authorize the acts complained of.
2. There is nothing in the 11th section of the charter of the Mavsville and Lexington railroad company, which authorizes the company to take possession of laud of citizens before acquiring right thereto in the mode designated in the charter,and making compensa tion to the own er. 3. The legislature have no const itutionnl right to grant such a power, and- this court will not give sucti a construction to a legista ve act in a matter of doubtful construction.*190The fundamental question is, whether the corporation had the right which is claimed for it, and this depends upon the questions whether the charter intends or should be understood to confer the right, and if it should be so construed by its own words, the further question arises whether the constitution admits of the grant of such a right to this corporation. The right is claimed under the 11th section of the charter, the great length of which forbids its insertion in this opinion. But we remark that although its language is not as precise and definite as it should be in expressing the terms or conditions on which the right of the company to take possession of the land on which they have located the road is to depend, and although there are some expressions which seem to provide for the case of the company’s having taken possession before acquiring the right to the land, we think there is nothing in the section which should be construed as' authorizing this to be done, and that the case is only mentioned as one which might happen, and to which, if it should happen, the provision for ascertaining the compensation and damages is applied. If this construction were more uncertain than it is, or if a different intention on the part of the legislature were more probable than from the language used it appears-to be, we should reject the construction which, upon doubtful or inexplicit language, would derive the right to take land without the consent of the owner, and without a just compensation previously paid, because such a construction would bring the enactment in direct conflict with the constitutional prohibition contained in the 12th section of the 10th article of the late constitution and incorporated also in the new one.
The legislature had no right to authorize this company. to take land, the property of an individual, for its own uses, without previous compensation. And the intention should not be assumed upon any doubt*191ful construction. The 11th section of the charter contemplates a purchase of the right of way, or of the land necessary for it, and it is only in case of disagreement of the owners as to the price, or of some other impediment to the agreement or purchase, that either party may resort to the assessment by a jury of the value of the land, or materials so required, or already appropriated, and it is only by payment, or tender, or deposit, of the valuation that the company is to be entitled to the estate and interest valued. We cannot infer from these provisions any actual or intended violation of the constitutional prohibition by which the right of private property is protected against the exercise of the public power. And we conclude that although the legislature may have intended to provide a special mode of acquiring the estate and interest of the individual, even if the company should have first violated his rights, it did not intend to authorize such violation without the previous compensation required by the constitution. It may be inferred, that in case of such violation, the legislature intended that the company might, by resorting to the statutory proceeding for ascertaining the damages, &c., preclude the resort of the injured individual to any other remedy against the company. But if this were clearly so, and if such a legislative act be clearly constitutional, it would not follow that the mere privilege of the company to resort to the special proceeding, should forever preclude the other party from resorting to a different remedy even against the company. For, on the part of the individual, as well as of the company, the charter in this particular is permissive, and not imperative ; and it would be unreasonable to say that the company could, by merely refraining from the exercise of its privilege, confine the other party to a remedy to wrhich the statute does not even inferentially restrict him, unless it is actually resorted to by the company.
4. Individuals entering upon the land of an other, and trespassing, in the name, and as-en in i n g and claiming to act by authority, of the corporation, in doing acts which the cor poration had no legal right to do, are individually liable lor their trespasses.But the question here is not as to a remedy against the company, but as to the remedy against the individuals who acted in its name and under its supposed authority. They could not have been reached by the statutory proceeding, and the remedy against them, if they are liable at all, cannot he affected by the fact that against the company there might, or even must, have been a different and peculiar proceeding. Then assuming, as we do, that the injurious acts done under the order and direction of the defendauts were unauthorized and illegal, and that the company had no right either to do or to order them to be done, the case is narrowed down to the question, whether the defendants are protected from liability for the damage produced by the illegal and injurious acts, because they acted in the name of the company as its official agents, and under its authority and supposed right. The law, in our opinion, concedes no such protection or exemption from liability. It is a. well settled principle that the agent who does or causes the illegal act, cannot justify, by the command or authority of another who had no right to do or to authorize it. The ancient doctrine was that a corporation could not be sued for a trespass, because it could not commit one, but that the action must be against its agents who did the wrong. It is only to secure a more comple remedy to the injured party that in modern times a different doctrine has prevailed. But as the remedy against the corporation may be fruitless, and that against its agents or officers the only available one, it. would be an inadmissible conclusion to say that because there may be a formal proceeding against the corporation, there is no remedy against the individuals who have occasioned the injury. The cases referred to as establishing a different, doctrine, were decided instates whose constitutions do not require a previous compensation for private property taken for public use, and refer generally to cases arising under public *193acts of the legislature, and not under statutes creating private corporations.
The verdict was authorized by the evidence, and although one of the instructions may be liable to the objection that it submits a question of law to the jury ; yet, as they probably understood it differently, and as they decided the question correctly, and in accordance with this opinion, this objection is not now available, since the error, if it be one, was not prejudicial to the defendants.
'Wherefore, the judgment is affirmed.