mesne profits: Jackson v. Loomis 4 Cow. 168; Murray v. Gouverneur 2 Johns. Cas. 438; Hylton v. Brown 2 Wash. 165; Davis v. Smith 5 Ga. 274; 2 Kent's Com. § 335; but in Massachusetts payment cannot be recovered for improvements made under defective condemnation proceedings: Harris v. Marblehead 10 Gray 44: Crosby v. Dracut 109 Mass. 206; Spalding v. Chelmsford 117 Mass. 393; good faith is essential to a recovery under betterment laws: Horton v. Sledge 29 Ala. 498; Ormond v. Martin 37 Ala. 606; Pope v. Macon 23 Ark. 644; Marlow v. Adams 24 Ark. 109; Carpenter v. Mitchell 29 Cal. 335; Love v. Shartzer 31 Cal. 495; Carpenter v. Small 35 Cal. 346; Armstrong v. Jackson 1 Blackf. 374; Ross v. Irving 14 Ill. 171; Montag v. Linn 27 Ill. 328; Childs v. Shower 18 Ia. 267; Patrick v. Marshall 2 Bibb 44; Krause v. Means 12 Kan. 338; Gibson v. Hutchins 12 La. Ann. 545; Russell v. Blake 2 Pick. 507; Plimpton v. Plimpton 12 Cush. 467; Dothage v. Stuart 35 Mo. 251; Fenwick v. Gill 38 Mo. 510; Strike v. McDonald 2 Harr. & Gill 191; Madland v. Benland 24 Minn. 379; Withington v. Corey 2 N. H. 118; Bailey v. Hastings 15 N. H. 529; Bellows v. Copp 20 N. H. 494; Frear v. Hardenberg 5 Johns. 278; Jackson v. Loomis 4 Cow. 172; Woodhull v. Rosenthal 61 N. Y. 396; Longworth v. Wolfington 6 Ohio 1; Taylor v. Foster 22 Ohio St. 267; McCoy v. Grandy 3 Ohio St. 463; Morrison v. Robinson 31 Penn. St. 456; Nelson v. Allen 1 Yerg. 376; M'Kinly v. Holliday 10 Yerg. 477; Mathews v. Davis 6 Humph. 324; Saunders v. Wilson 19 Tex. 194; Howard v. Richeson 13 Tex. 553; Thouvenin v. Lea 26 Tex. 612; Brown v. Storm 4 Vt. 42; Whitney v. Richardson 31 Vt. 306; Thompson v. Gilman 17 Vt. 109; McKim v. Moody 1 Rand. 58; Pacquette v. Pickness 19 Wis. 219; Bank of Hamilton v. Dudley 2 Pet. 526; Society v. Wheeler 2 Gall. 137; Albee v. May 2 Paine 74; where the improvements are not made in good faith they belong to the owner of the land; Dietrich v. Murdock 42 Mo. (1868) 279; Miss. & Tenn. R. R. v. Devaney 42 Miss. (1869) 555; Graham v. Connersville etc.

R. R. 36 Ind. (1871) 463; Cal. P. R. R. v. Armstrong 46 Cal. (1873) 85; United States v. Land in Monterey County 47 Cal. (1874) 515; Emerson v. Western Union R. R. 75 Ill. (1874) 176; Justice v. Nesquehoning Valley R. R. 87 Penn. St. (1878) 28.

CAMPBELL, J. This is an appeal from proceedings to condemn lands. The property involved is the same included in the proceedings set aside at the June term, 1881, in the case of Dunlap v. Toledo, Ann Arbor & Northeastern Railway Company 46 Mich. 190. The present company purports to be a consolidation of the last-named company with the Toledo & Ann Arbor Railroad Company.

It appears that immediately after the confirmation of the proceedings which were afterwards set aside by this court, the company took possession of Dunlap's land and built its road across the part sought to be condemned. This was done in December, 1880, and led to a series of legal controversies not yet determined.

The present proceedings were begun on the 18th day of June, 1881, by the presentation of a petition to the circuit court for the county of Oakland, where a jury was drawn and subsequently rendered the verdict complained of. During the pendency of the proceedings and subsequently certain orders were made by the circuit court, to which reference will be made hereafter.

Some important questions arose which require a brief preliminary reference to the nature of these proceedings. The statute is evidently framed in accordance with the laws of some other states where the judicial power is not parcelled out as it is here; and some complications have been caused by this practice which introduce difficulties. We had occasion in the case of Michigan Air Line Railway v. Barnes 44 Mich. 222, to point out some of these difficulties. It is greatly to be regretted that this species of legislation has been so very carelessly framed.

In the present case some steps appear which could only have been taken by a court in the regular exercise of judicial

power, while others belong to a different class of. functions entirely, and are governed by different considerations.

Under our Constitution such powers as are strictly judicial in their character can only be vested in certain courts which are named in the Constitution itself. The circuit courtsas courts—have such powers. The judges, as judges, out of court, do not possess them, and cannot be vested with them.

The proceedings to condemn lands, although made under the railroad laws subject to judicial review and supervision for certain purposes, are not in themselves and never have been regarded as judicial proceedings. Our Constitution allows them to be conducted by highway commissioners in some cases, and by specially-appointed commissioners or juries of freeholders. The inquiry in this State, as elsewhere, is an appraisal or estimate of values, and not a contest on litigious rights, and includes what is not elsewhere included, an inquiry into the necessity of the proposed taking for public purposes, which was never made by courts, but always heretofore by the Legislature or some unjudicial body of its creation. Had it not been for the specific provisions in our Constitution the State could have provided for these inquiries to be made by any medium it might select. People ex rel. Green v. Mich. Southern R. R. Co. 3 Mich. 496. Our present system is better calculated than the old one, if fairly applied, to secure the rights of land-owners. But the nature of the proceeding remains as before, a special proceeding by a temporary tribunal selected for the occasion, and not a judicial proceeding in the ordinary sense,

As provided for under the railroad laws, there are certain proceedings in court to select a jury, and subsequent proceedings to determine whether the action of the jury should be sustained. Beyond this the courts have no part in the matter, and with the exception of some special matters to be referred to hereafter, no difficulties should have arisen to confound these functions. But it is manifest they have been confounded to some extent here, and the question may arise how far such confusion may have caused mischief which we can redress.

It may be said in brief that if a jury has been summoned under proper circumstances, has conducted its inquiries legally, and with due regard to private rights, and has reached a legitimate conclusion as to the necessity of the condemnation, and the compensation, the appropriation of the land, upon payment of that compensation, will be lawful, and will not be affected by collateral action by the judge or court, which may be unlawful. This distinction between the different tribunals is essential.

The objections taken may be divided into two classesthe one relating to the sufficiency of the condemnation, and the second to the action of the court or judge independent of the inquest. Reference will first be made to the latter.

These are first, action taken by the circuit court to restrain legal proceedings; second, action concerning certain moneys; and third, action requiring the land-owner to pay

costs.

On the 25th of July, 1881, the circuit judge upon an ex parte application, which seems to have been presented and treated as a part of this proceeding, made an order restraining a suit at law between Dunlap and several private parties as well as the railway company, for trespass, a chancery suit involving a bill and cross-bill between the company and Dunlap, and between Dunlap and the company and two private persons, and a proceeding in favor of Erwin D. Brooks before a circuit court commissioner for forcible entry and detainer. The same order authorized the company to draw certain money from a bank, in which we do not see that appellants here had any special concern.

Without stopping to consider the very serious question whether a judge can be authorized, in a proceeding which is not a suit in court, to interfere with regular legal proceedings pending in the ordinary course of justice, it is sufficient to say that ex parte action for that purpose, where the parties interested have neither notice beforehand nor any regular means of relief against it, cannot be sustained on any principle whatever. We do not think any such summary and illegal proceeding was intended by the Legislature. It

is very questionable how far the statute contemplates any such interference except through the medium of a distinct legal proceeding, but it does not authorize any action except by the court, and it could not lawfully authorize it without a hearing, and was not intended to do so.

Upon the matter of costs there is also reason to regard it as a serious question whether-inasmuch as the necessity of taking as well as the amount of compensation must be determined before land can be taken-a land-owner can under any circumstances be compelled to lose his land without full compensation. He cannot be compelled to determine at his peril whether a jury will regard the land as necessary for public use, and he cannot be in fault for refusing a tender when he can have no assurance that the proposed improvement will be sanctioned. But the statute is fatally defective, if such an infliction could be imposed, because it provides no means and no tribunal for determining the question of tender. It is not within the constitutional functions of the jury, and the judge, whether present or absent, cannot pass upon such a fact himself, and bind the party by it. The law has provided no method of inquiry for deciding this question legally.

In regard to the deposite of money in bank, the statute has no provision which would compel the land-owner to take the risk of any such deposit, or deprive him of his rights until he is paid. We do not regard him therefore as injured by the mere deposite of the money.

The remaining questions relate to the action of the jury and the orders which provided for their appointment.

It is claimed that there is no authority to take such steps in favor of a consolidated company, consisting in part of a foreign corporation, and that the railroad law itself is invalid for a defective title.

The act is entitled "An act to revise the laws providing for the incorporation of railroad companies, and to regulate the running and management, and to fix the duties and liabilities of all railroad and other corporations owning or operating any railroad in this State."