so as to read that: "The right to dig up and use the streets and alleys of New Orleans for the purpose of placing pipes and mains to supply the city and its inhabitants with water is a franchise belonging to the state, which she could grant to such persons or corporations, and upon such terms, as she deemed best for the public interests. And as the object to be attained was a public one, for which the state could make provision by legislative enactment, the grant of the franchise could be accompanied with such exclusive privileges to the grantee, in respect of the subject of the grant, as in the judgment of the legislative department would best promote the public health and the public comfort or the protection of public and private property." 9922 In a later case by this court it was said: "That this court has too often decided for the rule to be now questioned, that the grant of a right to supply gas or water to a municipality and its inhabitants through pipes and mains laid in its streets, upon condition of the performance of its service by the grantee, is the grant of a franchise vested in the state, in consideration of the performance of a public service, and often performance by the grantee, is a contract protected by the Constitution of the United States against state legislation to impair it.''23 New York decision on the theory of franchise emanating directly from the state or from some tribunal authorized by law goes further than above indicated under what is known as its Transportation Corpora 22 New Orleans W. W. Co. v. Rivers, 115 U. S. 674, 680, 6 Sup. Ct. 273, 29 L. Ed. 525. 23 Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 9, 19 Sup. Ct. 77, 43 L. Ed. 341. tions Law. By that law a water company may be granted a franchise not only to supply a city, town or village, through which its mains may pass, but also in an adjoining city, town or village, where a permit shall have been obtained. This law was construed as not embracing cities, etc., through which mains and conduits passed on their routes to reach a city it was organized to supply." But franchise and its necessity comes into view as strongly under this statute as under the situation ordinarily existing. 24 Rochester v. R. & Lake Ontario Water, etc., Co., 189 N. Y. 323, 82 N. E. 154. CHAPTER XIV. EMINENT DOMAIN AND PUBLIC PURPOSES. § 74. Statute necessary for exercise of eminent domain. 75. Constitutionality in exercise of powers of eminent domain. 76. Purpose of corporations not test of public purpose. Summary. $74. Statute Necessary for Exercise of Eminent Domain.—It has been said by an eminent judge, Charles Andrews of New York Court of Appeals, that: "The power of eminent domain which resides in the state as an attribute of sovereignty, is nevertheless dormant until called into exercise by an act of the legislature. Until a statute authorizes an exercise of the power, it is latent and potential merely, and not active or efficient, and the state can neither exercise the prerogative, nor can it delegate its exercise, except through the medium of legislation. Therefore, it is that whenever an attempt is made either by the officers of the state or by a corporation organized for a public purpose to take private property under the power of eminent domain, the officers or body claiming the right must be able to point to a statute conferring it." The qualification of the right of a corporation to exercise such power is that there must be "a public purpose" to be subserved, but whether this may be so or not, it is "latent and potential," until a statute may make it "active and efficient." "In the absence of statutory authority private property can 1 Re Poughkeepsie Bridge Co., 108 N. Y. 483, 490, 15 N. E. 601. not be invaded by this power, however strong may be the reasons for the appropriation." And the thought that there must be a public purpose to justify the exercise of the right of eminent domain by a corporation is exemplified in an opinion by the same eminent judge in a case where a railway company was organized "to provide for the portion of the public who may visit Niagara Falls better opportunities for seeing the natural attractions of the locality." This was held not a public purpose within the lawful purview of a general railroad act of a state." 75. Constitutionality in Exercise of Powers of Eminent Domain.-As constitutions usually confine the exercise of the power of eminent domain to a taking for a public use, it is left to the legislature to point out the expediency of the exercise of this power for particular purposes. This determination, however, is not conclusive, and the courts may decide in a given case whether a use declared to be public is in reality not public but private. "Whenever the use is public, the legislature has full power to determine whether a necessity for taking for such use in any class of cases exists or not."" But in the case in which this was said the court held, that an act of the legislature providing for taking of private property by back flowage from a dam for a grist mill was not a public use, because "the statutes require owners and occupiers of grist mills to grind well and sufficiently all grain received by them for that purpose, at certain fixed rates of toll, but they are not compellable to receive 2 Matter of Niagara Falls & Whirlpool Ry. Co., 108 N. Y. 375, 15 N. E. 429. 3 Tyler v. Beacher, 44 Vt. 648, 8 Am. Rep. 398. grain for grinding against their will. Their mills are their own private property, subject to their own control, except as to that regulation, and the public has no rights whatever in them or to the use of them." So was a ruling by New York Court of Appeals, where a cemetery association sought by eminent domain to acquire land for burial purposes. It was said: "It is difficult to see what interest the public will have in the lands or their use. No right on the part of the public to buy lots or bury their dead there is secured. The prices at which the lots are to be sold are to be fixed by private agreement; the corporation is to be managed by trustees elected by the lot owners." There is little need to go further in this than to quote as follows: "The right of eminent domain, or inherent sovereign power, gives to the legislature control of private property for public uses and public uses only; but if they would take it for a purpose not of a public nature, as, if the legislature should take the property of A and give it to B, or if they should locate a grant of property or of a franchise, under the pretext of some public use or service, such cases would be gross abuses of their discretion and fraudulent attacks on private right and the law would be clearly unconstitutional.'" $76. Purpose of Corporations Not Test of Public Purpose. It is the situation in which a corporation is placed by the statute, under which it is organized, that determines whether it may exercise the right of eminent domain and not the purpose of the corporators 4 Matter of Deansville Cemetery Ass'n, 66 N. Y. 569, 23 Am. Rep. 86. 52 Kent Com. 239. |