*377 By the Court
McMillan, J.The act of the legislature involved in this case appoints three persons named therein commissioners to locate, survey and establish a state road between certain points, specified in the act, and authorizes the said commissioners, or a majority of them, to meet as therein provided, and proceed to the discharge of the duties imposed on them by the act.
It also provides that they shall file a certified plat of the survey of said road in the office of the county auditor of each of the counties specified therein, which plat shall be legal evidence of the location and existence of said road. The only provisions touching the question of compensation to the owners of land taken for the road, are those contained in section four of the act, which is as follows:
“All damages sustained by the laying out and opening of said road shall be ascertained and determined by said commissioners, or a majority of them, and shall be paid by the county in which such damages occur.” Laws 1870,p. 466; S$. L. 1870, ch. 143.
It is conceded by both parties, that if this act is constitutional the demurrer to the complaint is well taken and must be sustained, but if the act is unconstitutional the order sustaining the demurrer must be reversed.
The plaintiffs do not question the right of the state to take the land of the citizen for public use upon making just compensation, nor deny that the use for which the land was taken in this instance is a public use, but claim that the law is unconstitutional, because it does not comply with the requirements of the constitution in the provision it makes for determining the compensation of the plaintiffs for the land taken.
The points urged by the plaintiffs’ counsel are :
I. That the act does not provide that the amount and *378justness of the compensation may be ascertained and fixed by or under the jurisdiction of any of the courts of justice provided for by the constitution, or in any degree or manner under their control or supervision.
II. It does not provide any judicial mode of determining and adjudging the compensation to be paid for the land authorized to be taken for the public use therein specified.
III. The property owner is not given his “day in court” upon the question what is “just compensation” in his case, the paying or securing which is a condition precedent to the exercise of this power of eminent domain.
IV. He has no opportunity or right to challenge “for cause” those named to inquire into this fact.
V. The commissioners are not even required to decide the question under the safeguard of an oath.
There is no doubt whatever that the right to take the property of a citizen and appropriate it to public use is an inherent attribute of sovereignty, and it is equally certain, under our constitution and laws, at least, that a provision for compensation is a necessary attendant on the due and constitutional exercise of the power of the law giver to deprive an individual of his property without his consent in cases like that now under consideration. 2 Kent's Com. 339
By art. 1, sec. 13, of the Constitution of this State, it is declared “private property shall not be taken for public use without just compensation therefor, first paid or secured.”
But the constitution contains no express provision as to the mode in which the compensation to be paid shall be determined. In the silence of the constitution upon this question, it is to be presumed that the framers of the constitution “intended to leave that subject to the discretion of the legislature, to be regulated in such manner as might be *379prescribed by law.” Livingston vs. The Mayor of New York, 8 Wend. 85; Bloodgood vs. M. & H. R. R., 18 Wend. 9; Bonaparte vs. C. & A. R. R. Co., 1 Baldwin, C. C. Rep. 205; Pittsburg vs. Scott, 1 Barr, 309; Berkman, vs. S. & S. R. R. Co., 3 Paige, 45.
But it is not to be understood that the discretion vested in the legislature in the exercise of its power is an unlimited one.
Blackstone, speaking of the right of property says: “ So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the -whole community.
“ If a new road, for instance, were to be made through the grounds of a private person, it might, perhaps, be extensively beneficial to the public; but the law permits no man or set of men to do this without the consent of the owner of the land. * * *
“ In this, and similar cases, the legislature alone can, and indeed frequently does interpose, and compel the individual to acquiesce. But how does it interpose and compel 1 Not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby- sustained. The public is how considered as an individual treating with am, individual for am, exchange.
“ All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price.” 1 Bl. 139.
And in speaking of the right to compensation as a qualification of the power of eminent domain, Kent says: “This principle in American constitutional jurisprudence is founded in natural equity, and is laid down by jurists as an acknowledged principle of universal law.” 2 Kent, 339.
While the legislature is the judge of the necessity or *380expediency of the exercise of the power of eminent domain, it is not the judge of the amount or justness of the compensation to be made when the power is exercised ; as to the latter, it is, in the language of Blackstone above quoted, “ considered as an individual treating with an individual for an exchange; ” and it is an acknowledged principle of universal law, says Kent, that the right to compensation is founded in natural equity
While, therefore, the constitution prescribes no particular mode in which the compensation shall be ascertained, it would seem to follow, that as to the question of the amount of compensation, the owner of land taken for public use has a right to require that an impartial tribunal be provided for its determination, and that the government is bound in such cases to provide such tribunal, before which both parties may meet and discuss their claims on equal terms; and such seems to be the tenor of the authorities upon this question. 1 Blackstone Com. (by Cooley) 139, n. 17; 2 Kent, (4th Ed.,) 339, note a; Bonaparte vs. C. & A. R. R. Co., 1 Baldwin, C. C. Rep. 205; Gardner vs. Trustees of Newburgh, 2 Johns. Ch. 162; Pittsburg vs. Scott, 1 Barr, 309, Hood vs. Finch, 8 Wis. 381; Powers vs. Beans, 12 Wis. 213.
The act in question does not provide such a tribunal. The commissioners to determine the compensation are private citizens, appointed directly by the legislature, without the consent of the persons whose land is taken for the public ; no notice of the proceedings beforo the commissioners is given ; the land owner is not authorized to appear at any stage of the proceedings, to object to the commissioners; to introduce any proofs oi allegations before them — the proceedings are entirely exparte.
It certainly cannot be said that this is a just or equitable *381mode of determining the compensation due to a citizen for property taken for public use. We think the provision made for compensation to the owners of the land taken contravenes the constitution, and the law is void. Hood vs. Finch, 8 Wis. 381; Powers vs. Beans, 12 Ib. 213.
Whether, in cases of this nature, the law making provision for compensation must be such as to afford the owner of land taken for public use an opportunity, in some way, at some stage of the proceedings, to invoke a judicial determination of the question, or whether conceding that to be so, if a tribunal is created before which the land owner having notice of the proceedings may appear, and participate therein, a sufficient opportunity is afforded him for a judicial determination of his rights, we need not now inquire.
The order sustaining the demurrer is reversed.