
    O’Hara vs. The Lexington and Ohio Rail Road Company.
    'The Appellee may bring up the record, and submit it as a delay ease, before the expiration of the time allowed the appellant to file the record. But he recovers no costs, although successful.
    
      May 3.
    The provisions of the act incorporating the Lexington and Ohio Kail Koad Co. which authorize thecom-pany to appropriate the land of individuáis to the use of the road — the damages being first paid,are not unconstitutional
    [Mr. Monroe for Appellant: Messrs. Morohead and Brown for Appellee.}
    This case was decided in the Franklin County Court, on the 15th of April, 18SS — while the Court of Appeals was in session. The decision being against the defendant, O’Harra, he prayed an appeal ; which was granted, upon his entering into bond, according to law, on or before the 22nd of April; when the bond was executed. The rule prescribed by the,statute (1 Big. 387,) allowed the Appellant until the third day of the next term of the Court of Appeals (10th of Oct.) to return to the clerk a copy of the record. But the Appellee, on the 24th of April — two days after the appeal bond was executed, produced in Court a copy of the record, and moved that the case be taken np and disposed of as one prosecuted for the purpose of delay. It was objected by the counsel for the Appellant, that the motion was premature, as he had not filed the record, and there was, consequently, no cause here pending, for this court to act upon. For the Appellees, it was contended, in reply, that it was competent for them, and in conformity to the rule, (See 1 Mon. ix.) and to the usage heretofore, to procure a copy of the record, and upon suggestions like the present, to submit the case at any time. — The Court received the record, intimating that the objection to the motion would be duly weighed, before the main question was considered. But the objection, it seems, was not sustained by a majority of the court. No costs, however, were allowed to the Appellee, upon the af-firmance.
   Chief Justice Robertson

delivered the Opinion of the Court.

This is submitted as a delay case. — Pursuant to the fifteenth section of its charter, (Session Acts of 1830, p. 133,) " the Lexington and Ohio Rail Road Company ” procured a regular inquisition and assessment of damages, for a small portion of O’Hara’s land, through which it designs to construct its road. The county court approved the inquest ; and O’Hara appeals.

One objection only is made to the inquest, and that is that it is unconstitutional, and therefore void : first, because the act of incorporation grants exclusive privileges, without any consideration of public service ; and second-2y, because it will divest O’Hara of his freehold right, without sufficient authority.

Neither of these reasons can be effectually applied to this case.

In the true sense of the constitution, no exclusive-privilege has been granted to the corporation. If the charter be, on that ground, unconstitutional, it would be difficult to maintain the validity of any statute for incorporating any brid.*e company, or any bank, or even for granting any ferry franchise.

Public utility was the chief object of the act of Incorporation. The commonwealth had the constitutional right to construct a rail road. It had the right to delegate its power to individuals. Its right of eminent domain, expressly recognised and reserved by the constitution, authorized it to “ appropriate,” or to delegate the power to take O’Hara’s land for public use, by paying him a just compensation. The charter does hot allow the company to appropriate the land without first paying the assessed damages. And consequently, we perceive no infraction of the constitution in the fifteenth section of the char, ter, nor in any thing which has been clone by the inquisition, or the county court, or the Rail road company.

Wherefore, the inquisition and its approval by the oounty court must be affirmed.

Judge Underwood thinks the submission is premature, because the record was not filed by the appellant, and. the time for filing it by him had n.ot expired.  