delivered the opinion of the court:
To the petition of the appellee company for a judgment condemning certain real estate for the use of the company in virtue of the exercise of the right of eminent domain by the company, the appellant entered his motion to dismiss the petition on the alleged ground that the company had not, within two years after its articles of incorporation had been filed and recorded, in accordance with the provisions of section 2 of chapter 114, (3 Starr & Cur. Stat. p. 3225,) begun the construction of its road, nor had it expended thereon "twenty-five per cent of the amount of its capital stock within five years after the date of its organization, as required by section 26, paragraph 28, of said chapter 114, and that by reason of such alleged failure to comply with the provisions of said section 26, paragraph 28, the appellant urged that *572the corporate existence and the power of the appellee company to exercise the right of eminent domain had ceased. The motion was overruled.
The rule in Illinois is that whether the alleged failure of a railroad company to proceed to the construction of its railway in compliance with said section 26 shall operate to defeat the grant of corporate power can only be determined by a direct proceeding instituted in behalf of the State, (Chicago and Eastern Illinois Railroad Co. v. Wright, 153 Ill. 307; Morrison v. Forman, 177 id. 427; Illinois State Trust Co. v. St. Louis, Iron Mountain and Southern Railroad Co. 208 id. 419;) and cannot be raised and urged by a private individual. The motion to dismiss should not have prevailed.
The judgment must be and is affirmed.
ludgment affirmed.