186 F. 572 | U.S. Circuit Court for the District of Idaho | 1910
The defendant’s demurrer to the amended complaint herein was submitted orally at the May term, and at that time the view was intimated that, with the exception of certain objections bearing upon the question of federal jurisdiction, it would be overruled. In the third amended complaint to which the demurrer is now submitted, the jurisdictional defects seem to have been cured, and upon further reflection and consideration I am still inclined to hold to the opinion that in other respects the objections are not well taken, and that, therefore, the jurisdictional facts being sufficiently alleged, the demurrer should be denied.
The principal points urged are involved in a case between the same parties, now pending upon appeal from the District Court of the Eighth Judicial District of the state, in the Supreme Court, and through the kindness of counsel I have had the benefit of the elaborate printed briefs prepared in support of the argument to be made in that appeal. The first objection made by the defendants is that the plaintiff cannot maintain the action, which is a proceeding in eminent domain for the condemnation of lands necessarily flooded by the raising of the waters in Coeur d’Alene Lake by the plaintiff for the purpose of generating electrical energy to be used for power and lighting purposes, because the right of eminent domain does not exist except by express enactment, and there is no provision in the laws of the state of Idaho authorizing the condemnation of private 'property for the purpose of generating power.
“The necessary use of lands for tile construction of reservoirs, or storage basins, for the purposes 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 declared to be a public use, and subject to the regulation and control of the state. Private property may be taken for a public use, but not until a just compensation, to be ascertained in a manner prescribed by law, shall be paid therefor.”
It will be noted that here there is no express inclusion of a use for power purposes, but the plaintiff relies particularly and exclusively upon the clause which provides that;
“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 declared to be a public use.”
In this view, the controversy is reduced to substantially a single question, namely, whether or not under this general clause, in the .absence of an expression of legislative will, the judicial department is authorized to determine whether or not a given, use is generally or under the particular circumstances of the case, “necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants.” It is the position of the plaintiff that such power is conferred upon the courts, and, upon the other hand, the defendants contend that it is exclusively within the province of the legislative department to determine specifically what uses are necessary to the development of the state, or to the health of its inhabitants; in other words, that the clause is to be construed as a delegation of authority, not to the courts, but to the Legislature.
While the question is not entirely free from doubt, my first impression whs, and my view still is, that, to give the constitutional declaration effect, it was necessaiy for the Legislature only to prescribe the requisite judicial procedure, which it is thought is amply provided for in the general statutes pertaining to proceedings in eminent domain. As will be noted, it is declared by the Constitution that any use “necessary to the development of the material resources of the state, or the preservation of the health of its inhabitants,” is a public use, and to this statement is appended the further declaration that
Proceeding a step farther, suppose, for the purpose of illustration, that the general clause which we have been considering were not found in the Constitution, but was found appended to and a part of section 5210 of the Revised Codes. In that case it would not be seriously controverted that the language, though general, would be sufficient to invest the courts with power to determine upon judicial inquiry whether or not any particular use, for-which it is sought to exap-propriate private property, is necessary to the development of the material resources of the state, or to the preservation of the health of its inhabitants. But, if the clause would have such virtue as a statutory enactment, is there any good reason for denying to it the same effect as a provision of the Constitution? True; it is possible to assume that the people in adopting the Constitution intended to confer the authority upon the Legislature, and not upon the courts, but there is nothing in the instrument reasonably requiring such a construction. The clause is. co-ordinated with other clauses which cleai'ly and specifically and positively define certain public uses as not to leave anything for the Legislature to do, and, if it was intended that the general provision should not become operative until it should be amplified and rendered specific by the Legislature, it is strange that such intention was not expressed or intimated by some appropriate phraseology. There is no inherent difficulty in authorizing the courts to perform the function. It is not extrajudicial in its nature, and is closely akin to inquiries which the courts are ordinarily under the necessity of making when the right to condemn is put in issue. We are without any evidence that it was thought by those who formulated the Constitution that the Legislature was more competent or was more likely to reach a just conclusion than the courts; nor does such a view generally prevail. Upon the other hand, we have in the state of Washington evidence of the existence of a contrary opinion, for there we find embodied in the Constitution of the state the declaration that:
“Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be really public shall be a judicial question and determined as such without regard to any legislative assertion that the use is public.” Section 16, art. 1, Const. Wash. 1889.
Moreover, if it be true that where the Constitution of a state is wholly silent upon the subject, the power of eminent domain rests entirely with the Legislature, section 14 of article 1 of the Constitution of Idaho, in so far as it defines what are public uses, must be construed not as a delegation of but as a limitation upon the power of the Legislature. Without any previous constitutional authorization, the Legislature could doubtless declare the uses mentioned in section 14 to be public uses and the only effect of the constitutional provision is to withdraw from the Legislature the power to declare
“And If, under tbe provisions of said section 34, art. 1, of tbe Constitution, tbe power of eminent domain may be exercised wlion ‘necessary to the complete development o£ tbe material resources of the state,’ and tlie lumbering interest is one of tbe material resources of the state, and that resource cannot be completely develo]>ed without the exercise of the power of eminent domain, then that power may be lawfully exercised. The .Legislature cannot annul that provision of the Constitution by legislative enactment. The timber interest of our state is one of the great material resources of the state, and it is stated in said section 11 of the Constitution as follows: ‘The necessary use of lands ’s * * to the complete development of the material resources of the state * * * is hereby declared to be a public use.’ But it is contended by counsel that said provision is not self-executing. We may concede that contention. But the .Legislature has prescribed the procedure for subjecting land to a imblie use or for exercising the right of eminent domain. Thus by legislative enactment that provision of the Constitution is made effective. The people in this Consiitulion have declared that the necessary use of lands to the complete development of the material resources of the state is a ‘public use,’ and the Legislature has provided tlie procedure to subject such lauds to that use."
In considering the question, F liave found little assistance in resorting to tbe Constitutions and tbe laws and judicial decisions in other jurisdictions, for the reason that there has come under my observation no constitutional provision similar to the one under consideration, and, in the view which T have taken, the entire question turns upon the meaning and effect to be given to this provision.
The further question is raised that the plaintiff is not a public service corporation, the point being that it does not render a service directly to the public, but in the main furnishes power and electricity tor distribution to the consumer by other persons and corporations. I do not deem it essential to an understanding of the ruling that the facts be here stated, or that the principle of law be discussed at length. The objection is I think not well taken. Farnhan on Waters, p. 2142; Hollister v. State, 9 Idaho, 8, 71 Pac. 541; Rockingham County Light & Power Company v. Hobbs, 72 N. H. 531, 58 Atl. 46, 66 L. R. A. 581; State v. Superior Court, 52 Wash. 196, 100 Pac. 317, 21 L. R. A. (N. S.) 448; Jones v. North Georgia Electric Company, 125 Ga. 618, 54 S. E. 85; Helena Power Transmission Company v. Spratt, 35 Mont. 108, 88 Pac. 773, 8 L. R. A. (N. S.) 567, s. c. 37 Mont. 60, 94 Pac. 631.