125 Ga. 618 | Ga. | 1906
The right of the court to refuse to grant the injunction depends upon the constitutionality of the act of 1897 (Acts 1897, p. 68). The act is called into question upon one ground only, that is to say, it is challenged as being violative of that clause, found substantially identical in' the constitution of this State and in the constitution of the United States, which guarantees that “No person shall be deprived of life, liberty, or property, ex-cejot by due process of law.” It is insisted that the act violates that provision of the two constitutions for a single reason, namely, that it is an attempt to authorize individuals to. exercise the State’s right of eminent domain for other than public purposes. If this contention is well founded, it is manifest that the act would be unconstitutional, because it.is elementary that the State’s right of eminent domain can never be exercised for other than such purposes. Our State constitution provides that the right of eminent domain shall never be abridged. Constitution, art. 4, sec. 2, par. 2 (Civil Code, §5798). It is settled law that the State may primarily jexercise the right for any public purpose, but there is no limitation .which prevents the State by -legislation from delegating to others the authority to exercise its right of eminent domain for any public 'use or purpose. The right of eminent domain is inherent in .the State, but lies dormant until quickened into activity by appropriate legislation. See United States v. Jones, 109 U. S. 513; Hand Gold Mining Co. v. Parker, 59 Ga. 423; Cooley’s Const. Lim. (7th ed.) 759. In the Hand Gold Mining Co. case, supra, it is said: “The right of eminent domain may be exercised by the General Assembly in this State when it is for the public good, either through the officers of the State or through the medium of corporate bodies or by means of individual enterprise.” See also Hopkins v. Fla. Cen. R. Co., 97 Ga. 107; Mims v. Macon & Western R. Co:, 3 Ga. 338. Thus we see it is not so much the character of the person exercising the right 'as the uses to which the object is to be applied. See also, in this connection, Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 119 Ga. 354. It is the State’s right always, and in the discretion of the legislature as to whom authority to exercise it shall be delegated, but the character of the purposes for which the power shall be'exercised is altogether a different .question. The legislative discretion in granting the right is conIfined to uses of public necessity. In no case can the legislature
We now come straight to the inquiry as to whether this act attempts, under guise of the law of eminent domain, to authorize a taking of property from an owner against his will for other than a public purpose. Judge Cooley declares, that “We find ourselves somewhat at sea, however, when we undertake to define, in the light of the judicial decisions, what constitutes a public use,” and, after consideration of able opinions on the-subject, evolves the following general rule for the ascertainment of the character of the use: “The reason of the case and the settled practice of free governments must be our guides in determining what is or is not to be regarded a public use; and that only can be considered such where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, or welfare, which, on account of their peculiar character, and the difficulty — perhaps impossibility — of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide.” Cooley’s Const. Lim. (7th ed.) 766-769. In applying this general rule, we must bear in mind that “public necessity” and “public convenience” and “public welfare” are to be accommodated under so many different conditions that there can be no definite and fixed state of facts which will invariably determine the character of the use. The most that can be done is to recognize the general rule that the subserving of public necessity or public convenience or public welfare under conditions which
Judgment affirmed.