47 P.2d 414 | N.M. | 1935
The parties are corporations, each engaged in coal mining. The one, desiring lands of the other for uses of that industry, proceeded under 1929 Comp. St. § 88-401 et seq., and obtained judgment of condemnation.
An appeal from that judgment was here dismissed upon a holding that the cause was a special proceeding and that there had been no legislative grant of an appeal. Gallup S.W.C. Co. v. Gallup Am. C. Co.,
Petitioner (in certiorari) attacks the whole judgment as a taking of its property for private use. It first contends that the statute is void, as offensive of N.M. Const. art. 2, § 20: "Private property shall not be taken or damaged for public use without just compensation."
For purposes of this case the question should be considerably narrowed, and may be stated thus: Is it within legislative competence to declare a public use in the industry of coal mining, so as to permit taking private property in aid of it?
We have recently had occasion to consider the meaning of the phrase "public use" as employed in this connection. Threlkeld v. District Court,
Not without some reason perhaps, the petitioner contends that the Threlkeld decision commits us against the liberal view in its entirety. But, while we were obviously not converted to it, we put the decision on the ground that, even if "unusual local conditions" were to be consulted in determining what is a public use, there was nothing of the unusual about the lumber industry in New Mexico. And so we do not consider this court foreclosed against the liberal view so strongly urged upon us again.
As suggested in the Threlkeld decision, there is plenty of judicial expression in derogation of the strict interpretation of "public use." In argument, judges have frequently and strongly deprecated that tenderness for private property right which will sometimes "check progress and obstruct the larger good." However, the instances are not so numerous in which courts have upheld actual taking of private property for private use upon a theory that a "public benefit" is all that is required.
We shall not here refer to cases like Potlatch Lumber Co. v. Peterson,
Respondent's greatest reliance is placed on Dayton Mining Co. v. Seawell,
Continuing, the Arizona Supreme Court says: "It is true that such courts have indulged the fiction that a private use is a public use, simply because it was for the general welfare or of public utility or benefit, but this conceit, however pardonable, does not change the use from private to public. The fact is that the above cases hold that private property may be taken for private uses in the particular instances passed upon, and our Constitution in providing in certain cases that private property may be taken for private uses is in line with those decisions."
The Utah case was affirmed by the United States Supreme Court. Strickley v. Highland Boy Gold Mining Co.,
So we do not attribute great importance to Clark v. Nash,
We should perhaps mention, however, that a high federal court seems to have viewed the matter otherwise. In Miocene Ditch Co. v. Jacobsen (9th C.C.A.) 146 F. 680, a statute of Alaska was involved (Code, c. 22, § 204 [31 Stat. 522]), the validity of which was of course to be tested by the Fifth Amendment. In upholding the statute declaring mining a public use, this Circuit Court of Appeals seems to rely upon the cases mentioned as direct authority.
The only decision of the highest federal tribunal cited by respondent which could have involved the Fifth Amendment is Block v. Hirsh,
The Supreme Court of Georgia has upheld a statute investing a gold mining company with the right of eminent domain. After stating as "a fundamental principle of the law" that "private property cannot be taken for the exclusive use of private persons," the court thus pointed out the "public good" to result: "The increased production of gold * * * must necessarily be for the public good, inasmuch as it will increase, for the use of the public, a safe, sound, constitutional circulating medium, which is of vital importance to the *347
permanent welfare and prosperity of the people. * * *" Hand Gold Min. Co. v. Parker,
Respondent urges that the numerous decisions upholding statutes of eminent domain in aid of water power industries are directly in point, and cites Head v. Amoskeag Mfg. Co.,
The conclusion was reached "independently of any weight due to the opinions of the courts of New Hampshire and other states, maintaining the validity of general Mill Acts as taking private property for public use." The court said: "The question whether the erection and maintenance of mills for manufacturing purposes under a general mill act, of which any owner of land upon a stream not navigable may avail himself at will, can be upheld as a taking, by delegation of the right of eminent domain, of private property for public use, in the constitutional sense, is so important and far reaching, that it does not become this court to express an opinion upon it, when not required for the determination of the rights of the parties before it. We prefer to rest the decision of this case upon the ground that such a statute, considered as regulating the manner in which the rights of proprietors of lands adjacent to a stream may be asserted and enjoyed, with a due regard to the interests of all, and to the public good, is within the constitutional power of the legislature."
We appreciate the difficulty of the problem brought to the Supreme Court of Nevada, in 1876, in Dayton Min. Co. v. Seawell, supra. Nevada would not have been born as a state, it would not have been populated, but for its precious metal resources. Public and private livelihood were almost solely dependent upon mining. The state's growth, its continued existence, depended or seemed to depend upon development of that industry. One recalcitrant property owner could incalculably impede realization of the general aspiration for development. Such a situation would be exasperating and would seem intolerable.
So, in Utah, private irrigation was a principal reliance for the upbuilding of a great commonwealth. And when the claim of the mining industry was presented in Highland Boy Gold Min. Co. v. Strickley, *348
supra, the court found in Nash v. Clark,
Without implying any criticism of these decisions or of this reasoning, we are impressed that they well illustrate a danger. Once we depart from the "orthodox" view, we shall find no easy or logical stopping place. Confusion and uncertainty will surround every battle between private right and public benefit, and Mr. Lewis' apprehension may prove well founded, that "this important constitutional right of the individual * * * would exist only at the whim of Legislature or court."
We are now at the point at which we paused in the Threlkeld Case. We are reluctant still to surrender the "orthodox" view. Yet we need not and do not say what we should do in some different case. In view of the conclusion we are to reach, it may be thought that we might have arrived more directly. We wish to leave no doubt, however, that we have given thought to the arguments and authorities adduced by respondent's able counsel.
Here we are concerned with coal mining. As an essential or paramount industry, in its importance to the existence and functioning of the state and to the livelihood of the people, it does not seem to us to belong in a class with metal mining in Nevada, as appraised in Dayton Mining Co. v. Seawell, supra, or with irrigation in Utah or New Mexico, as appraised in Nash v. Clark, supra, and in City of Albuquerque v. Garcia,
It follows that, in so far as the statute impliedly declares a public use in the business or industry of coal mining, it is violative of N.M. Const. art. 2, § 20, and that the court lacked jurisdiction to render the judgment.
The cause will be remanded, with a direction to the district court to set aside its judgment and to dismiss the proceeding.
It is so ordered.
SADLER, C.J., and BICKLEY, J., concur.
HUDSPETH and ZINN, JJ., did not participate. *349