279 P. 298 | Idaho | 1929
This cause was formerly before this court on the question of the sufficiency of the petition (mandate) which was there sustained. (Codd v. McGoldrick,
The evidence shows without conflict that, for the purpose of securing the right of way through the village of Tensed and over variously privately owned farms, and across and along the highways of Benewah county, the company represented and offered that after construction it would haul, in carload lots, cordwood and the products of the farmers living adjacent to the right of way, providing the same could be done by private contract and without the defendant becoming a public carrier. At all times, though, defendant's officers and agents on the ground took the position that it would not haul logs under any terms or conditions. The defendant, in one instance, exercised the right of eminent domain to secure a portion of its right of way, a decree therein being entered in its favor after an award by commissioners under statutory proceedings.
Though no farm products have been offered for transportation, the company, through its officers, indicated at the trial that it would not haul anything for anyone. *7
At the time defendant was securing its right of way it represented to some of the farmers in the locality that it would furnish the materials for sidings if the farmers would construct such sidings. No sidings have been constructed, nor has defendant furnished materials for the same.
At the trial defendant urged that it had no facilities for carrying freight, since it owned only one engine and one car on which was a log loader; also that it had no facilities for loading or hauling cars for other log shippers.
Defendant built this logging road in connection with its business as a lumber company and has never operated the road as a common carrier. Is the situation above detailed, combined with the fact that the defendant exercised the right of eminent domain, sufficient to authorize a judicial determination that it is a common carrier?
In the recent case of Michigan Public Utilities Commission v.Duke,
"It is beyond the power of the state by legislative fiat to convert property used exclusively in the business of a private carrier into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation, which no state can do consistently with the due process of law clause of the 14th Amendment."
Art. 1, sec. 14, of the Idaho Constitution is as follows:
"The necessary use of lands for the construction of reservoirs or storage basins, for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes to convey water to the place of use, for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the state or the preservation of the health of its inhabitants, is hereby *8 declared to be a public use, and subject to the regulation and control of the state.
"Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor."
In McLean v. District Court,
Such also was the case in Connolly v. Woods,
In Blackwell Lumber Co. v. Empire Mill Co.,
In Potlatch Lumber Co. v. Peterson,
"There is no doubt when a person or corporation exercises the power of eminent domain, he or it assumes certain obligations to the public, and the grant of the right of eminent domain carries with it the right of public supervision and reasonable control. The improvement of said river is not for the use of respondent alone, although under the conditions which exist it may be more benefited than others."
The concurrence by Stockslager, C.J., in the conclusion and Ailshie, J., does not necessarily mean that they concurred in the above statements, since they could have concurred in the conclusion that the lumber company had the right of eminent domain for its sole and exclusive use on other grounds, the only question being whether the complaint *10 stated a cause of action authorizing the company to exercise the right of eminent domain.
Whether the dissertation on the right of eminent domain found in this case was the thought of the entire court is, due to the limited concurrences, perhaps questionable, but it is harmonious with the ideas expressed in the Constitutional Convention.
When art. 1, sec. 14, supra, was under consideration by the Constitutional Convention, the debates clearly showed that there were two questions at issue in connection therewith; 1st, whether in connection with the right of eminent domain, the Constitution could declare uses therefore generally considered private to be public uses, and 2d, whether such a declaration should be made. The discussions with reference to this question, the amendments made and the final vote show clearly that it was the intention of the Convention to do both. ("Proceedings and Debates," Idaho Constitutional Convention, vol. 1, pp. 288-367, and vol. 2, pp. 1596-1633.)
As to irrigation and mining, the section itself shows, and similar provisions have been construed to mean, that it confers the right to condemn for individual use on the theory that the development of individual property tends to the complete development of the entire state. (Clark v. Nash,
The right of eminent domain is an attribute of sovereignty. Fundamentally, there are no restrictions on the exercise of this power. That is, property may be taken under eminent domain proceedings for any purpose the sovereign chooses. (Potlatch Lumber Co. v. Peterson, supra; State v. SuperiorCourt,
In some of the western states it was seen at an early date that a local situation, particularly in connection with irrigation, required that it would be necessary, in some cases, to permit the taking of private property for individual use though thereby a general ultimate benefit would indirectly accrue to the public. For instance, art. 2, sec. 14, of the Colorado Constitution provides that private property shall not be taken for private uses except for private ways of necessity, reservoirs, drains, flumes or ditches for agricultural, mining, milling, domestic or sanitary purposes. The next section of the same article provides for the taking of property for public uses.
Our Constitution was written and must be interpreted in the light of this historical background.
Article 1, sec. 14, contains two paragraphs. The second paragraph is a simple expression of the general rule found in the Constitution of practically every state that private property may be taken for public uses on payment of a just compensation. In a word, this second paragraph expresses the whole law of eminent domain as it had developed in this country prior to 1850 or about the time that some of the western states began to write their Constitutions. It covered the whole field of public uses and left open to be determined by the courts the question of what constituted a public use.
With the development of irrigation and mining in the west, however, it soon became apparent that the judicial *12 definition of a public use, as it had been defined up to that time, was too narrow for the necessities of this region. To meet the exigencies of this situation, the definition of a public use was broadened by constitutional fiat. The first paragraph of art. 1, sec. 14, of our Constitution is an expression of this policy.
What are the implications of this expanded definition of a public use as declared by our Constitution? Does the phrase "public use" mean only a use that is generally available to the public, or has it a wider connotation? In providing that the use of land for ditches, dumps, tunnels and hoisting works was to be a public use, it seems reasonable to assume that it was not intended thereby to grant the use of such facilities to any user thereof, other than the owner, who might be willing to pay a reasonable rate for the privilege. It certainly was not intended to make an individual ditch a public facility. The same is likewise true of any other use that might come under the general phrase, "for the complete development of the material resources," etc. The uses which the authors of that paragraph had in mind were individual uses, — uses affected with a public interest, it is true, but essentially and legally individual. When they wrote "public uses," they meant certain individual uses affected with a public interest. It was under this particular provision that the McGoldrick Lumber Company acted in exercising the right of eminent domain in the construction of its railroad.
The question of the right of eminent domain for logging roads or similar plant facilities has been considered in numerous cases listed in the note below.1 In none of the *13 jurisdictions indicated were there constitutional provisions like our own. Conceding that many of such cases have decided that the right of eminent domain may not be exercised for a logging road to be used solely and exclusively by the owner thereof, such cases cannot be considered as controlling in view of the special wording of our Constitution.
In the Constitutional Convention and in the debates in connection with the use of the phrase, "the development of the material resources of the state," reference was made to what the compiler of the "Proceedings and Debates," Idaho Constitutional Convention, considers was sec. 5, 14 U.S. Stats. at Large, p. 252; sec. 43, Title 30, U.S. Code Ann., p. 326. *14
The Constitutional Convention convened July 4, 1889, and adjourned August 6, 1889. Repeated reference was made during the debates to the Colorado and California constitutions. Colorado in 1887, in People v. District Court of Pitkin County,
The conclusion that the Convention intended to depart from the accepted theory as to what had previously been considered public uses is strengthened by the reference made during the Convention to Judge Cooley's statement with regard to what is the result of an attempt to go beyond the earlier conception of what uses authorized the exercise of eminent domain. ("Proceedings and Debates," Idaho Constitutional Convention, vol. 2, p. 1598; Cooley's Constitutional Limitations, 8th ed., p. 1131; Nicholas on Eminent Domain, 2d ed., p. 222.)
Washington has evidently changed its attitude on this matter, first holding adverse to defendant's position, nowcontra. (Ruddock v. Bloedel Lumber Mills, 28 Fed. (2d) 684.)
It must be conceded, as stated in the Blackwell case, that the development of the lumber industry is a development of one of the greatest natural resources of the state. As to irrigation and mining the Constitution has been construed as giving to an individual the right to condemn property for use by him alone in connection with his individual property without such condemned property or the use thereof in any way becoming subject to use by the public or for the benefit thereof except as the individual by the development of his own property tends to develop the entire state.
The Constitution, then, by its plain terms extends such right, by making them public uses, to all other uses of similar kind and character. If they were public uses at *15 common law, they are covered by the last paragraph of the section of the Constitution under consideration, that is, art. 1, sec. 14; if not, they are covered by the first paragraph.
In the Blackwell case, the sole point involved was whether under the complaint the lumber company had the right to condemn land for a logging railroad. The consequences attendant on the exercise of such right here involved were there only inferentially and argumentatively considered.
It is evident from the Constitution that its framers in presenting, and the people in enacting, art. 11, sec. 5, making all railroads public highways, did not have in mind the kind of a transportation facility we are here considering.
The following statements by this court, anent a question similar in essential respects to that considered herein, appearing in Humbird Lumber Co. v. Public Utilities Commission,
"It was said by this court in Stoehr v. Natatorium Co.,
" 'A corporation becomes a public service corporation, and therefore subject to regulation as a public utility, only when and to the extent that the business of such corporation becomes devoted to a public use.' Stoehr v. Natatorium Co., supra;Thayer v. California Development Co.,
" 'To hold that property has been dedicated to a public use is 'not a trivial thing' (San Francisco v. Grote,
"The test for determining whether the lumber company is a public utility would seem to depend upon whether it has held itself out as ready, able and willing to serve the public generally, or some portion thereof. The stipulation hereinbefore quoted and the evidence show conclusively that it has never done more than serve the railway company, one concern, under a private contract, and that it has never devoted its business, either wholly or partly, to the use of the public. We conclude that the lumber company was not a public utility and was not within the jurisdiction of the utilities commission. Because of this fact, the commission exceeded its jurisdiction in making order No. 475 (PublicUtilities Com. v. Natatorium Co., supra, concurring opinion of McCarthy, J.; Van Hoosear v. Railroad Com.,
"The ultimate fact sought to be established in this proceeding was that the lumber company was a public utility. The complaint before the commission alleged that 'the said lumber company is now operating as a public utility and exercising the rights and privileges thereof. . . . .' The lumber company according to the commission's recitation, 'denied . . . . that it has at any time or now is exercising the rights or privileges of a public utility. . . . .' The commission found that the lumber company was operating as a public utility and directed it to 'cease and desist from the furnishing of water . . . . or in any way operating as a public utility. . . . .' The commission has power to supervise and regulate public utilities (C. S., sec. 2450); and it *17 may without doubt, while acting within the scope of its jurisdiction, exercise judicial functions in determining the question before it, but the law does not authorize the commission to exercise a judicial power or make a judicial order. That power is possessed by the courts and cannot be vested anywhere else. The legislature has not and could not vest such power in the commission."
In announcing this conclusion we expressly refrain from in any way expressing any opinion upon the rights of parties other than the owners of such logging roads in connection therewith, under the section of the Constitution under consideration and C. S., chap. 270, with particular reference to C S., sec. 7406, subd. 3, as referred to in Portneuf Irrigating Co. v. Budge,
Having reached the conclusion that the evidence shows that defendant did not hold itself out as a common carrier and that under our Constitution the mere exercise of the right of eminent domain did not stamp it as such, the conclusion follows that the writ heretofore issued should be quashed.
Any expressions in the previous opinion in this case contrary to the conclusions reached herein are overruled.
Costs awarded to defendant.
Wm. E. Lee, J., and Baker and Adair, D. JJ., concur.
