if not impossible, to give a satisfactory definition of this power. Freund, on Police Power, says:

and the general prosperity. There may arise conflicts in the exercise of these two powers by the respective sovereignties. In Hoke v. United States, Mr. Justice McKenna, speaking for the Court, said:

in mind that it is not by general statements, but only by a detailed examination of statutes and decisions that the power can be fully understood and defined. Such an examination will show what has been done and

what has been approved by experience; what has been attempted and has failed; what has been surrendered, and what is aimed at and in process of being accomplished. It will reveal the police power not as a fixed quantity, but as the expression of social, economic and political conditions. As long as these conditions vary the police power must continue to be elastic, i. e., capable of development."

The Supreme Court of the United States at different times and in different cases has said of this power that it "is not subject to definite limitations, but is co-extensive with the necessities of the case and safeguards of public interest;" "one of the most essential powers, at times the most insistent, and always one of the least imitable of the powers of government;" "it may be said in a general way, that the police power extends to all the great public needs;" "not susceptible of circumstantial precision;" "this power can neither be abrogated nor bargained away and is inalienable even by express grant."

As the commerce clause of the Federal Constitution is to the nation-essential to the nation's national sovereignty-so is the reserved police power to the state essential to the state's sovereignty. And it must be kept in mind that in the exercise of this power the public welfare to which the power extends embraces not only health, morals and safety, but also the public convenience

""Our dual form of government has its perplexities, state and nation having different spheres of jurisdiction, as we have said; but there must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised whether independt

welfare, material and moral.”

It is believed, and the proposition is now here advanced, that a business may be of such nature, carried on under such conditions, circumstances and obligations to the citizens of the state, that under the police power of the state, applicable thereto, the state may enact and enforce laws respecting such business, so that the principal commodity of such business, arising in the state,

shall be furnished or supplied to the citizens of the state, living or doing business in the communities served by such business, to the extent of an adequate service to them, within the limits of the supply; if necessary, even to the extent of the entire supply of the commodity, to the exclusion of citizens of other states desiring such commodity; and this notwithstanding that a part of such business is supplying or furnishing to citizens of other states such commodity by existing means for transporting such commodity from the source of supply in the state to the point of delivery in other states for sale there to citizens thereof.

If it be said that the proposition as stated amounts to a restriction of the sale of the commodity into other states, by or through the means of transportation thereof, it is answered that the restriction, if a restriction, is one under the police power of the state reserved to itself for the general welfare, happiness and prosperity of the people of the state; and, further, that the exercise of this power for such purpose is not in

conflict with the commerce clause or other provisions of the Federal Constitution respecting the flow of commerce through interstate channels; or, if it is claimed that interstate commerce is affected thereby, that it is only affected indirectly and incidentally and not in violation of the provisions of the Federal Constitution. The demonstration of the proposition will now be attempted.

Let it be assumed, for sake of demonstration, that the commodity either is power or energy generated by a hydro-electric company, or natural gas supplied or furnished by one engaged in the business of transporting or furnishing, or both transporting and furnishing natural gas for public use.

(1) The business in each instance deals. with a commodity necessarily and absolutely needed by the public. True, the commodity in each instance, when reduced to possession, is a commodity belonging to the owner and may be the subject of both intrastate and interstate commerce. It is not contended that the state has the power to forbid the sale of such commodity to persons out of the state, nor the transportation thereof to points outside the state; on the contrary, it is at once conceded that the state does not have such power.

entire line traversed, and for reasonable rates, fixed by themselves or by statute or by contracts or ordinances of municipalities. *** The rights of the people are thus protected in nearly every case where the public is served by public service corporations, furnishing water, gas, electricity or transportations."

(3) "The public use for which property may be taken is a public use within the state from which the power is derived. It seems to be an admitted fact generally that the power inheres in a state for domestic use only, to be exercised for the benefit of its own people, and cannot be extended merely to promote the public use of a foreign state."3

In Grover Irrigation Co. v. Lovella Ditch Co., this phase of eminent domain is reviewed and annotated. The following excerpts are quoted from the opinion of the Court:

"Eminent domain is generally defined as the right or power of a sovereign state to appropriate private property to particular uses, for the purpose of promoting the general welfare. 'It embraces all cases where, by authority of the state and for the public good, the property of the individual is taken without his consent, for the purpose of being devoted to some particular use, either by the state itself or by a corporation, public or private, or by a private citizen.' (1 Lewis on Eminent Domain, 3d Ed., § 1.) In this respect the several states are distinct and

"We observe that the legislature, by general law, has conferred upon pipe line companies, organized for transporting oil and natural gas, the right of eminent domain, and has thereby necessarily imposed upon them, as public service corporations, the right and duty of performing a public service. That right and duty is fixed as firmly as if written into the statute. *** Pipe line companies organized for transporting gas, must serve the people with gas, under reasonable and proper regulations, along the

(2) 72 W. Va. 557.

possessing and exercising the power for their own purposes or their own public welfare. The eminent domain in any sovereignty exists only for its own purposes.' (People v. Humphrey, 23 Mich. 471, 476, 9 Am. Rep. 94.) 'It means nothing more or less than an inherent political right, founded on a common necessity and interest, of appropriating the property of individual members of the community to the great necessities of the whole community.' (Bloodgood v. Mohawk, etc., R. Co., 18 Wend. (N. Y.) 9, 31 Am. Dec. 313.) 'The proper view of the right of eminent domain seems to be that it is a right belonging to a sovereignty to take private property for its own public uses, and not for those of an

the Federal Constitution. The one engaged in the business may supply or furnish the commodity to citizens of both states, or transport the commodity to points outside of the state, provided the undertaking to furnish the commodity to the citizens of the state living or doing business in the communities served by such business, in adequate quantities, within the limits of the supply, is kept and performed within the state from which the power is derived. If the one in the business may partially keep and perform the undertaking and deny the citizens of the state a part of that to which they are entitled, why may not such one entirely deny to such citizens that to which they are entitled? Or, should the demand for the commodity at the point of delivery out of the state be equal to or greater than the limit of the supply, and the price outside of the state more attractive than the price within the state, then can one in the business deliver the entire supply outside the state and deny all duty to the public of the state? If the one in the business has the right to do the first, why has he not the right to do the latter? One in the business has not the legal right to do either, for to do so would be to give away, partly or entirely, the police power of the state-something which the state cannot do itself.

Of course it may be argued that to require one in such business to furnish an adequate quantity to the public of the state entitled to be served, within the limits of the supply, would interfere with interstate commerce in the commodity. Not at all. The quantity delivered to the outside consumer may be less, indeed may be cut off entirely. Whether it is or not may be dependent upon the attitude of the one in the business on account of his failure to provide adequate facilities to furnish the public in the state and consumers without the state; or because he has contracted to deliver to consumers without the state a greater quantity of the commodity than he has a supply to furnish the public of the state and the consumers without the state,

thereby making an unfortunate situation for himself, as well as the consumers. In either event, interference, if interference at all it is with interstate commerce, to so require one to keep and perform his undertaking with the public of the state, is an indirect and incidental interference and, therefore, not in violation of federal provisions.

(6) It is believed there is a clear distinction between the proposition stated and endeavored to be demonstrated and the proposition arising and decided by the Supreme Court of the United States in West v. Kansas Natural Gas Co.

Oklahoma enacted a statute prohibiting the construction of pipe lines for natural gas or transportation of gas except by domestic corporations; and then only for transportation and delivery of natural gas to points within the state; and expressly forbididng the transportation and delivery to points outside the state. The statute came before the Supreme Court of the United States, assailed as in conflict with the provisions of the Federal Constitution. The state asserted and largely relied for defense of the statute upon the proposition that the statute's "ruling principles is conservation, not commerce; that the due process clause is the single issue." The majority of the Court held the statute invalid as interfering with interstate commerce and not justified as an exercise of the police power of the state to conserve its natural

resources.

(7) The legislature has the power to vest in the Public Service Commission authority and jurisdiction to require one exercising the power of eminent domain, and serving a commodity arising in the state to citizens of the state and other states, to furnish to the public in the state, in the commodity served, adequate quantity of the commodity, within the limits of the supply, under fair and reasonable regulations. And, it

(5) 221 U. S. 229.

would seem, it is altogether probable that the Public Service Commission, under the existing law, has now such authority and jurisdiction; and, if I am correct in this view, the proposed legislation, when enacted, will be ancillary and supplemental to the present existing statute and more specifically directed to one subject to the

power.

The power of the legislature to vest such authority and jurisdiction in the Public Service Commission is grounded in the police power of the state, and can be so exercised by the state to promote the general welfare and prosperity of the state.

The courts have repeatedly sustained the authority and jurisdiction of a state commission, respecting the performance of duties owed by one, exercising the power of eminent domain, to the public in the state granting the power, notwithstanding that the one so exercising such power is engaged in an interstate business."

(8) As already pointed out, grant of the right to exercise the power of eminent domain is primarily for the benefit of the public in the state granting the right. The right to condemn will not be denied, however, because citizens and communities of other states will be benefited thereby; comity will extend such benefit to citizens and communities of other states, to the extent of supplying their requirements to the fullest. degree, if the one carrying on the business can do so and yet perform his undertaking with the state which granted the right, but the benefit so extended, as comity between

6) C. & O. Railway Co. v. Public Service Commission, 75 W. Va. 100, affirmed by United States Supreme Court, U. S. Adv. Ops. 1916, page 234; United Fuel Gas Co. v. Public Service Commission, 73 W. Va. 571; Man. Light & H. Co. v. Ott, 215 Fed. 940; Atl. Coast Line R. Co. v. North Car Corp. Com., 206 U. S. 1; Minn. Rate Cases, 230 U. S. 352; Chicago, M. & St. P. R. R. Co. v. State Pub. Com., U. S. Adv. Ops. 1916, page 173.

the states, is merely incidental to the right granted; and being merely incidental, will not, therefore, defeat the primary purpose of the grant. To require performance of the primary purpose, therefore, can interfere with no higher right than an incidental right or benefit, and to require performance of the primary purpose, therefore, cannot be an interference with interstate commerce nor an unreasonable burden thereon.

Bases of Conclusions-The conclusions reached in this paper, upon the proposition stated, are based (1) upon the undertaking by one who has been granted the power to exercise and has exercised the right of eminent domain and in consideration for this sovereign right, so given and so exercised, has undertaken to furnish to the public in the state from which such power was derived, in the community served, an adequate quantity of the commodity arising in the state, within the limits of the supply; and (2) the exercise by the state of its reserved police power to promote the general welfare and prosperity of its citizens. The conclusion so reached does not necessarily deny to such a one, in such business, the right to sell such commodity to consumers in other states, nor to deliver such commodity to connecting organizations at the state line for delivery in other states, provided that the undertaking with the state granting the power has been kept and performed.