delivered the .following dissenting opinion:
Sullivan v. Railroad Co., 85 Miss., 660, (38 South. Rep., 33), on its facts continues to have my approval. So do the cases holding that equity has jurisdiction. It is also true, in my opinion, that the code chapter on eminent domain is constitutional on proper interpretation. But, if the view of my brethren be correct, it is, as I think, violative of the organic law, and should be so held. This chapter, in its first clause, gives the right to take the property nolens volens, only to those “having the right to condemn private property for public use.” Code 1892, § 1679. Section 1681 provides for the organization of the special tribunal on the application of those “having the right so to do.” Section 17 of our constitution provides: “And whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use ba public shall be a judicial question, and, as such, determined without regard to legislative assertion that the use is public.” That is, without regard to legislative charters'. So it is a judicial question “whenever an attempt is made,” whether the “contemplated use be public.” It is, therefore, a judicial question then and there. I say the forum provided for has the right to determine before proceeding, two questions. One is, does the petition state prima facie a right? If so, then, on dispute, may be tried whether the mask of a charter has not been merely assumed to rob the citizen of his land for private, and not for public use. If the forum created cannot do this, the act is unconstitutional. The citizen cannot be compelled to go to the trouble and expense of stalling a new proceeding to protect his own against land piracy under the form of law.
I dissent with diffidence, and might write a volume, but content myself with this syllabus. If my position is unsound, the *117legislature mig'lit constitutionally authorize corporations to take any'land they wanted and use it until restrained by injunction. If the legislature has organized a tribunal without power to determine whether it has proper parties before if, it has acted without power in itself. I say it 'has not committed this error. I say it could not thus authorize the taking of the land of a citizen, and by brute force compel him to become the actor in a new and expensive proceeding requiring an injunction bond, all of which would be too much for the slender purses of many worthy people with rights.