
    PROOF AS TO THE RIGHT OF A RAILWAY COMPANY OF FOREIGN INCORPORATION TO EXERCISE THE RIGHT OF EMINENT DOMAIN.
    Court of Common Pleas of Pike County.
    John W. Barger et al v. The Chesapeake & Ohio Northern Railway Company.
    
    Decided, April 19, 1918.
    
      Eminent Domain — Proof Required to Establish Right of Company Incorporated in Another State to Appropriate Property in this State — Declaration of necessity Jurisdictional.
    
    1; In an action by a railway company of foreign incorporation for appropriation of property in Ohio, a declaration of necessity by the board. of directors is jurisdictional; and where the resolution setting fourth such necessity is, not adopted by the board until after the appropriation proceedings have been begun, jurisdiction is not acquired and the proceeding must be dismissed.
    2. In the absence of any evidence to the contrary necessity is suffl- ■ ciently shown by the testimony of an officer of the rail way company to the effect that because of the wet and boggy nature of the ground between the points named it would be necessary for the company to widen its right-of-way in order to properly support its fill.
    3. The right of a railway- company incorporated under the laws of Kentucky to exercise the power of eminent domain is adequately established by reference to Carroll’s statutes of Kentucky, together with testimony that this volume has been recognized by the Legislature of that state as containing the laws of the state and that private corporations are premitted to exercise the power of eminent domain in Kentucky.
    4. Incorporation of a railway company in accordance with the laws of its domicile may be shown by record evidence.
    5. That those whose names appear as stockholders are stockholders in good faith is shown by evidence that those claiming to be stockholders subscribed for stock and paid for it and certificates .without limit or reserve were issued .to them.
    6. The election of a board, of directors and ofganization of the board ' is adequately shown by the proffer of the minute book of the company, after identification by its custodian, wherein these facts are set forth and which are corroborated by one of the directors who was present at the meeting and who says he knows that the minutes are correct and these acts took place.
    7. Failure to agree with the owner of the land sought to be appropriated is shown by testimony to the effect that an offer was made by the company for the land and that it was rejected by the owner.
    
      Robt. J. Odell, C. E. Blanchard and G. W. Rittenour, for John W. Barger et al.
    
      Levi B. Moore and Bannon & Bannon, for C. & O. Northern Railway Co.
    
      
      For opinion of the Court of Appeals in this case, see 28 O.C.A., 92.
    
   Newby, J.

The first contention presented to the court is that this court has no jurisdiction to determine the preliminary questions in this case.

The case originated in the Probate Court of Pike County and there resulted in favor of the corporation. The case was taken to the court of common pleas and the decision of the probate court affirmed. Error was prosecuted to the court of appeals where the decisions of the lower courts were reversed. And counsel claim that the statute, imder those circumstances, requires that the new trial should take place in the court where the proceeding was begun.

I feel that this question has been determined for me by the judgment of the court of appeals remanding the case to the court of common pleas for further proceedings. The judgment remanding the case back to the common pleas court for further proceedings necessarily carried with it a determination by the court of appeals that this court had jurisdiction to hear the preliminary questions and to hear the case anew, and if that determination is erroneous the court of appeals, and not this court, is the one to correct the error. This finding is binding on me. :i , ■

The court of appeals laid down what facts are necessary to be established by the corporation preliminary to taking the land and having the compensation assessed. They are stated as:

First. That it was duly incorporated under the laws of the state where such incorporation was had when the hearing is had in a state other than that of its incorporation, and it must be proven as any other fact in the case.

Second. It must prove that its stockholders are real stockholders in good faith.

Third. That it has organized a board of directors, .and that said board has' organized.

Fourth. That it is a de jure corporation.

. Fifth. That it has attempted to agree with the owner of the land as to the compensation and damages, and has failed to do so. ■ Sixth. That it was necessary to appropriate the land for the uses and for railroad purposes.

Seventh. That the road’s directory has declared that it is necessary for the purposes of the road.

Eighth. That the power of eminent domain has been conferred upon it by the Kentucky laws.

In the report of the decision in the Ohio Law Reporter, what appears here as the seventh fact necessary to be established, is stated in the syllabus as the last and eighth, I believe, in number, the language being something like this: That it is necessary to appropriate the land for railroad purposes and that its board of directors have so declared.

Now, the most troublesome question in the case to me is the one arising upon that point in the decision of the court of appeals.. The fact is that* at the time this suit was instituted in the Probate Court of Pike County, the board of directors of the corporation had made no declaration by resolution or otherwise that this land was necessary for corporate purposes. Since then a resolution has been passed and was offered in evidence, the resolution having been passed, if I am not mistaken, as to the date, .after, the decision in the court of appeals, holding that such a declaration on.the part of the railroad directory was necessary in order to complete the proceedings to condemn the land. Counsel for the railroad.company claim that such a declaration is not jurisdictional, and if.necessary may. be made at any .time before the hearing so that the court may say upon the hearing, that the necessary declaration has been made.

I have made a slight examination of the statute, not as complete as I would if the question had been a new one, to ascertain whether in the case of an appropriation proceeding by a private corporation any resolution or declaration on the part of the directors of the corporation was necessary. It is necessary in cases for a village council, in cases where the municipality purposes to condemn land, to pass a resolution of the necessity for the condemnation. But, in the hasty examination which I made of the statutes I did not find any similar requirement of a declaration of necessity by any one in case of a condemnation by a private corporation as this is. However, I did not make a thorough investigation, and if there is such a requirement by statute I overlooked it. But the court of appeals has decided that a declaration of necessity by the board of directors is necessary before the court shall proceed to assess the damages and permit an appropriation of the land for purposes of the corporation.

Roekel, in his work, gives a form of petition by (a private corporation in which there is no allegation that the directors of the corporation have passed a resolution declaring necessity. In the discussion of that matter he says that it is usual for the directory to make such a declaration by resolutiqn, and goes on to discuss the effect .as evidence of such a resolution. He says the court must find that there is a necessity and the corporation may, by resolution, declare the necessity, but that such declaration is not binding upon the court, but if it has been made, it is prima facie evidence and raises the presumption that the condemnation is necessary until it is shown that the corporation has abused its power in that respect. But it seems to me that if a resolution of a board of directors is necessary (and that is what the court of appeals said, and that is what I must take as the law, the same as I did in reference to the remanding of this case for trial back to the court of common pleas), it would follow, I think, that such action on the part of the directors was jurisdictional and must precede the institution of the suit to condemn the Land, because all the authorities lay it down that necessity for the appropriation is a jurisdictional fact. And, if in addition to necessity there must be a showing that there was a resolution passed by the board of directors declaring that necessity,, is not that for the same reason a jurisdictional fact? If it is, you could no more omit it before the suit has been brought and supply it after the suit has been brought than you could omit any other jurisdictional fact; for instance, the organization of the corporation at the time the suit was brought or the inability to agree with the owner, and then show a complete organization of “the corporation and attempt and inability to agree with the-owner after the suit was brought. The jurisdiction must be complete at the beginning of the proceeding.

Now, that being the view that I take, this suit was prematurely brought. The court of appeals, I think, has só held, and for that reason the cause can not proceed further.

As I said in the beginning, this, to me, is the most troublesome question in the case. Upon the other questions I feel reasonably well satisfied that the company has shown the existence of necessary facts to authorize it to prosecute this proceeding. And while counsel did not ask for any finding of facts, and I don’t know that they want any, but to get the question concretely presented to the court above, and possibly the whole question settled at once, I think I would be willing to make a finding of .all the other facts necessary to be shown in favor of the company, but find as to this seventh requirement, as it is numbered here in this opinion before me, as not having been established because of the lack of the passage of the resolution by the board of directors before the institution of the proceeding in the probate court.

As to the matter of necessity we have the testimony, I don’t recollect the name, of an officer of the company, that the ground was of such a character there that they needed a strip wider than they might need under other circumstances. The ground, he said, was inclined to be wet or boggy and that they might have to fill in and that they would have to have a strip as wide (as they claim. In the absence of any showing to the contrary I am inclined to hold that that is proof of necessity, and added to that is the fact that the railroad is running over this land, and that, of itself, is strong proof of the necessity for railroad purposes, that is, the necessity for some ground there. Whether it would be as wide a strip of land as they are demanding, the mere use of what they have would not prove. But we have in addition t@ that the testimony of Mr. Capíes that it is necessary to take a strip of the width they have demanded to operate their road through that piece of territory properly, in view of the conditions there existing.

I haven’t prepared myself as fully as I would on the other questions because it did not occur to me until coming down here that this might be a very good way to present the question clean cut to the court of appeals. Of course if I have construed their decision correctly there can be no condemnation or appropriation of property by a private corporation without a showing of necessity, and to use their language: ‘ ‘ That the directory of the corporation has so declared.”

The other facts to be proved are that it was duly incorporated under the laws of the state where such incorporation was had when the hearing is had in a state other than that of its incorporation,' and it must be proven as any other fact in the case.

Without taking up and reviewing the testimony at any length on these questions, I think that the record evidence that was produced is sufficient to show that the company has been duly incorporated under the laws of Kentucky and that its stockholders are real stockholders in good faith. The only showing on that is, that the men subscribed for stock and paid for it and certificates without limit or reserve were issued to them, and I don’t see any reason why the court could reach a conclusion, so far as there has been any showing here, that they were not real stockholders to the extent that they subscribed and paid for their stock. The testimony shows beyond dispute that the stock was paid for and presumably the money so paid went into the treasury of the company and is there yet. I can not say that it was ever drawn out, or that it was never turned in. The presumption is that it went the course it should have gone when a stockholder takes stock in a corporation and pays for it.

Has it organized by electing a board of directors, and has said board organized, and is it a de jure corporation?

The testimony is nncontradieted that the board has organized; the directors testified to that fact. The minute booh was offered in evidence, which the court of appeals held ought not to have been received by the court who heard this ease before because it wasn’t identified by any one who was the custodian of it. In this hearing here the assistant secretary, I believe he styles himself, says it is in his custody, and the book shows a complete organization of the corporation. In addition to that we have the testimony of one of the directors who was present at the meeting and signed the minutes as president of the board and says he knows that those acts took place, that the minutes were correct and that he signed them officially. And those records are found in minute books now in the possession of the present lawful custodian thereof. I think they are records of the corporation, and that it is a de jure corporation, and there is nothing to dispute them if we find that the stockholders are real stockholders and that they have organized by electing a board of directors and that the directors have organized.

Now, another question that was discussed at some length by counsel for the land owners is named here as fifth; that it (the corporation) has attempted to agree with the owner of the land as to the compensation and damages, and has failed to do so.

Mr. Moore testified that he opened negotiations at the request of some officer of the company with these land owners and that an amount of $1,800 was agreed upon as a compensation for the land to be taken, and as I gathered from the testimony, it then appeared as if the proceeding in the probate court would be merely formal, but further on the land owners claiming that they had been led into that agreement by some misunderstanding as to the character of the company, whether a corporation or not, asked leave to withdraw their offer to accept the $1,800, and that leave was granted to them and their acceptance of the offer was withdrawn. Now, it seems to me that it can’t be denied that here was an attempt to agree with the owners. An attempt is when there is a bona fide offer made by the corporation and refused by the land owner. The company is not required to make' them a number! of offers, not required to dicker with the land owners -any further than to make a bona fide offer, because if onfe offer is not sufficient would two or three or four or five be sufficient! . If not, what number of offers must the company make! It did make an offer here. That is clear. It wasn’t accepted at' the final outcome of the- negotiations. It fell through, but I think' it shows an attempt to agree with the owner, which attempt failed in the manner and for the reasons as I have stated as shown by the testimony.

That the power of eminent domain has been conferred upon it by the Kentucky laws.

That involves a consideration of the testimony as to what the Kentucky laws are. In other words, does the proof offered here show the Kentucky laws to be. as claimed' by the railroad company? jj , ;

The court of appeals says that the laws of a foreign state or territory must be proved as any other fact in the ease.

There are methods of proof by our own statute and a slightly different one, as I recall it, by the federal statute, but the authorities cited in Jones on Evidence seem to be uniform that those methods of proof are not exclusive. Any other lawful proof, that shows what the law of a sister state is, may establish the fact for a court in this state, but the existence of the Kentucky laws, I think, have been shown in conformity with the statute of this state. In Section 11498, General Code, it is provided:

“Printed copies of written law enacted by another state, a territory of che United States, or foreign government, proved or purporting to have been published by its authority, or proved to be commonly admitted as evidence of the existing law in the courts or tribunals thereof, respectively, on all occasions by the courts and officers of this state, shall be admitted as presumptive evidence of such law.”

The language of that section is a little bit confusing and I think has misled counsel for the land owners in this case to the conclusion that it requires proof that the courts of this state have commonly admitted such laws as the true laws of the sister state or territory. If that were so it would be difficult to prove in Ohio a foreign law, because, I think you will all agree, that in the central part of the state, at least, it is not only not common, but it is very rare that we have occasion to prove what the law of a foreign state is, and consequently no foreign law is “commonly-admitted” as evidence by the courts and officers of this state. I think what this statute means is just what the original section of Bates statute 5244 says plainly, which is now carried into the General Code as Section 11498. That section (5244) provides as follows:

“Printed copies of written law enacted by any other state, a territory, or a foreign government, purporting or proved to be commonly admitted as evidence of the existing law in the courts or tribunals of such state, territory, or government, shall be admitted by the courts and officers of this state, on all occasions, as presumptive evidence of such law.”

In meaning, exactly the same language is used in the two sections, but in the present section some of the words are transposed, but it does not mean or necessarily bear the construction that to prove in the courts of this state a foreign law, it must appear that the laws of the state or territory whose law is to be proved respectively, on all.occasions, have been admitted by the courts and officers of this state as presumptive evidence of such law. I say. the terms have been transposed, yet I think they mean the same thing. That if the law has been shown to have been used and admitted as the law in the territory or state whose law is being proved, respectively, on all occasions, then the courts of this state and the officers of this state shall admit the law as presumptive evidence of such law.

. The proof is not sufficient that Carroll’s Statutes of Kentucky, which provide for corporations and granting them the right of eminent domain, was published by authority, but we have the testimony of ¡a Kentucky lawyer who testified that he was practicing in the state of Kentucky and is conversant with the procedure in the courts of Kentucky and that those statutes were used in the state of Kentucky as the laws of that state, although they do not themselves purport to be published by authority. It is shown, however, that at some session of the Legislature following the publication of Carroll’s statutes the Legislature amended certain sections of Carroll’s statutes, thereby recognizing, so far as the Legislature was concerned, that the Carroll statutes stood as laws of Kentucky. That is a significant fact, and while I have found no authority to the effect that the treatment by the Legislature of a publication of laws should be considered as proof that those laws, so treated, were valid laws, yet it does seem to me that it is a strong circumstance and ought to be given as much weight as the use by the courts of those statutes. The Legislature is presumed to know what the laws of the state are as well as the courts, and if the court used a certain set of statutes, Carrol’s statutes for instance, as embodying the laws of the state of Kentucky, and such use is laid down by the authorities as proof of the validity of that publication as the laws of the state, why isn’t there just the same reason to say that legislative recognition of Carroll’s statutes as containing the laws of Kentucky by amending certain sections appearing in Carroll’s statutes, is also proof equally as strong as that of the use of Carroll’s statutes by the court as evidence that Carroll’s statutes do contain the law of the state of Kentucky? Mr. Deiderick testified further that he had been present in the courts of Kentucky where private corporations were permitted to exercise the right of eminent domain under the authority of the law of that state, and so I conclude that this corporation has been duly in-, eorporated under the laws of Kentucky and that under those laws the company possesses the right of eminent domain and may appropriate this land, the other preliminary matters being shown.

And another matter in regard to proof of statutes of another state is the attachment of the seal of the state to what purports to be a copy of the law. It is not necessary, so Jones says in his work on Evidence, that an officer, like a recorder of deeds, should certify that he is the custodian of the record and that he has compared the certified copy with the original record, but the mere fact of attaching the seal is sufficient proof of the validity of the law bearing the seal. In his work on evidence Jones quotes authorities construing the federal statute, and announces the conclusion I have just stated, that the seal itself, its presence upon a copy of what purports to be a copy of the law, gives verity to the copy bearing the seal and furnishes presumptive evidence that the law bearing the seal is the law of the state of the seal.

You may draw a finding of facts in favor of the company on all grounds except on that one, and that is that the directory has not declared the necessity for taking this land, and for that reason the proceeding is dismissed.  