the articles of incorporation of the Southern California Colony Association. The defendant, therefore, is bound to furnish plaintiff with water to irrigate his lands on his payment of the rates fixed in the manner prescribed by law-it having the water to furnish.

The case shows that defendant has an ample supply of water to furnish the quantity demanded by those entitled to receive it, including the quantity alleged on argument to be needed by plaintiff.

The rates which the defendant may charge have never been fixed in the manner required by law, but the defendant has itself fixed the rates, and could not be permitted to refuse water to one otherwise entitled to receive it who should offer to pay those rates. It is not necessary to inquire whether, until the rates are fixed in the legal mode, defendant could be compelled to furnish water to the extent of its capacity free of charge.

That plaintiff may resort to mandamus as a means of securing his rights, must be regarded as settled in this country. (Moses on Mandamus, 155, 171; State v. Hartford & New Haven R. R. Co., 29 Conn. 538; The Borough of Uniontown v. Commonwealth, 34 Pa. St. 293; Maddox v. Graham, 2 Metc. Ky. 65; Fremont v. Crippen, 10 Cal. 211; Napa V. R. R. Co. v. Board of Supervisors of Napa County, 30 id. 438.) . . .

2

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MINNESOTA CANAL & POWER CO. v. PRATT.

101 Min. 197. 1907.1

ELLIOT, J. In this proceeding the Minnesota Canal & Power Company seeks to condemn certain lands necessary for the construction of works designed and intended for the generation of electric power for distribution to the public for the purposes of light, heat, and power. The respondents moved to dismiss the petition on the ground that it did not state facts sufficient to constitute

2 As to the duty of impartial service on the part of irrigation companies see Wheeler v. Northern Colorado Irr. Co. (1887), 10 Col. 582, and a Note in 3 Calif. L. Rev. 429.

See also S. C. Wiel, "Public Control of Irrigation," 10 Columbia L. Rev. 506, and L. P. Fox, "State Regulation of the Canal Corporation in Colorado." 16 Michigan L. Rev. 158.

1 The statement of facts, arguments of counsel, and parts of the opinion of ELLIOT, J., are omitted, as well as all of the dissenting opinion of LEWIS, J., concurred in by START, C. J. The dissent of START, C. J., and LEWIS, J., does not involve the points discussed in that part of the majority opinion here reprinted.- ED.

a cause of action.

The motions were treated as in the nature of demurrers, and for the purposes of the hearing the allegations of the petition must be treated as true. The trial court granted the motions to dismiss, and the petitioner appealed from a judgment entered on the order of dismissal. . . .

According to this petition the work of internal improvement which the petitioner now proposes to undertake involves "the construction and maintenance of a continuous navigable watercourse from and within the territory hereinafter described and designated as the Birch lake drainage basin, in St. Louis and Lake counties, Minnesota, to a point. . . in West Duluth, which shall include the construction and maintenance of a navigable canal connecting said Birch lake drainage basin with the Embarrass river, thence along said Embarrass river to a point in the northerly end of Sabin lake, . . . and the improvement of the Embarrass river and the lakes along the course thereof, and the St. Louis river below the outlet of the Embarrass river, down to [a designated point] in St. Louis county, Minnesota, the construction and maintenance of a navigable canal from said last-mentioned point on the St. Louis river easterly to said point in the city of Duluth, . . . and the construction and maintenance in connection therewith of a suitable device or chute for delivering logs, lumber, timber, forest and other products from the east end of said canal at the point last described to and into the said bay of St. Louis, which canal shall be of such size, dimensions, and capacity as to allow the floating of canal boats and barges and other water craft thereon for the transportation of merchandise, and to allow the floating of logs, lumber, timber and forest products thereon, which watercourse shall be capable of delivering the logs, lumber, timber, forest, and other products from said Birch lake drainage basin and from said St. Louis river and its tributaries to and into the bay of St. Louis at the said city of Duluth and the water tributary to the St. Louis river canal hereinafter described."

...

This work involves and will require "the diversion into said watercourse of such portions of the waters of the said Birch lake drainage basin as may be required to carry out the purposes of this corporation, and the diversion of which will not interfere with the navigation, navigable capacity, or public use of the waters of the said Birch lake drainage basin and the various lakes and streams to which they are tributary and the diversion into said St. Louis river canal of the waters tributary thereto."

The object and purpose of the enterprise is described as "the furnishing and distribution, by means of such watercourse and said work, of water to municipalities, persons, and corporations for

public use; the generation of electricity by means of the water power hereinafter described, and the supplying of such electricity for public use to all municipalities, persons, and corporations desiring the same for light, heat, and power purposes, which water power shall be created by conducting in pipes and conduits the waters so diverted from the east end of said St. Louis river canal to the power plant of your petitioner, which will be located at or near the level of the bay of St. Louis, at said city of Duluth, under a head of six hundred feet or thereabouts."

1. The petitioner is met at the threshold with the assertion that it is not a public service corporation, and cannot, therefore, under any circumstances at present exercise the power of eminent domain. This contention seems to be the result of an inversion of ideas. It would be more nearly correct to say that the appellant is a public service corporation, because it has been granted the power of eminent domain in aid of the purposes for which it was incorporated. The power of eminent domain is not given to public service corporations eo nomine. Certain corporations organized to serve the public are given the right to exercise this sovereign power as the agent of the state. What have become known as "public service corporations" are organized and exist under the authority of the state to serve the public, by supplying the people on equal terms and for a reasonable compensation with services or commodities and articles which, because of their nature, location, or manner of production and distribution, can be best produced and distributed by some organized form of enterprise operating under state control.

The statutes do not define public service corporations, although the Revised Laws of 1905 carry the name as the heading of section 2841, which authorizes the organization of corporations for the specific purposes therein enumerated. The power of eminent domain is specifically granted to the corporations which may be organized under this section of the statute, and in that statute the state reserves a power of control which it would unquestionably have by the common law, because of the nature of the business in which such corporations are authorized to engage. That business is such that the property of all corporations organized thereunder becomes affected with a public use, and is therefore subject to public regulation and control. The corporations which may be authorized under section 2841, R. L. 1905, are such as fall within the ordinary conception of a public service corporation. The "busi

2 This section authorizes the organization of corporations "for the construction, acquisition, maintenance or operation of any work of internal improvement, including railways, street railways, telegraph and telephone lines,

ness of such a corporation is determined by its charter statement of purposes, which must be within the scope and limits of the statutory authorization. Every such corporation is by the same statute (R. L. 1905, § 2842) expressly authorized to condemn "such private property as may be necessary or convenient for the transaction of the public business for which it was formed." This "public business" includes the construction of works for supplying the public, by whatever means, with water, light, heat, and power. In this connection the state expressly reserves the right at all times "to supervise and regulate the business methods and management of any such corporation and from time to time to fix the compensation which it may charge or receive for its services." In addition thereto it is provided that "every such corporation obtaining a franchise from a city or village shall be subject to such restrictions and conditions as from time to time may be imposed upon it by such municipality."

The appellant was organized under these statutes, and the nature of its business, as stated in its articles of incorporation, is " to generate electricity in the state of Minnesota by steam or water power for public use, and to distribute and supply such electricity to the public for light, heat and power purposes." The generation of electrical power for distribution and sale to the general public on equal terms is a public enterprise, and property used for such purpose is devoted to a public use. Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405. The articles recite that this is to be done for the public on equal terms and for a reasonable compensation, subject, as required by the statute, to the supervision and control of the state of Minnesota. The petition in this proceeding alleges that for the purpose of accomplishing the purpose for which the corporation was organized it has undertaken the work of internal improvement therein described in detail, and that "all of said works are to be constructed and maintained for public use on equal terms by all municipalities, persons and corporations for a reasonable compensation subject to the state of Minnesota."

The incorporation of the appellant is for a specific purpose, and the law of its corporate being requires it to exercise its powers subject to the supervision and control of the state. It must serve the public on equal terms and for a reasonable compensation. By ac

canals, slack-water or other navigation, dams to create or improve a water supply or to furnish power for public use, and any work for supplying the public by whatever means, with water, light, heat or power, including all requisite subways, pipes and other conduits." Gen. Stat. of Minn., 1913, sec. 6136.

cepting the franchise it has consented to exercise its powers, subject to this supervision and control, in the interest of the public. Stewart v. Great Northern Ry. Co., 65 Minn. 515, 68 N. W. 208, 33 L. R. A. 427; Charleston v. Lowe, 52 W. Va., 662, 671, 44 S. E. 410; Olmstead v. Proprietors, 47 N. J. L. 311; Haugen v. Albina, 21 Ore. 411, 28 Pac. 244, 14 L. R. A. 424; Cincinnati v. Village, 57 Oh. St. 336, 345, 49 N. E. 121, 41 L. R. A. 422; American v. State, 46 Neb. 194, 64 N. W. 711, 30 L. R. A. 447, 50 Am. St. 610; Crumley v. Watauga, 99 Tenn. 420, 41 S. W. 1058; Griffin v. Goldsboro, 122 N. C. 206, 30 S. E. 319, 41 L. R. A. 240; Rockingham Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46, 66 L. R. A. 581. In granting this charter the state reserved the right to regulate the business of the corporation. By accepting the franchise the corporation engaged to use it in such a manner as will accomplish the objects for which the legislature granted the charter.

It is also contended that the appellant cannot exercise the power of eminent domain until after the legislature has actually exercised its power of control by the enactment of some regulating statute. The state has granted the power of eminent domain in present terms, subject to its right to regulate the future business of the corporation. It may regulate this business whenever the conditions arise which call for such regulation; that is, whenever there shall be improper business methods to be corrected or unequal rates to be equalized. It is not necessary that the state shall pass statutes in detail regulating the business and rates of the petitioner before it can exercise the right of eminent domain for the purpose of enabling it to construct its works. Railway corporations were recognized as public service corporations, and granted the right of eminent domain in this and other states, long before there were any statutes to regulate the conduct of their business or to fix the rates which they might charge. Street car companies, telegraph and telephone companies, and gas and electric light companies were recognized as public service corporations and given the power of eminent domain under similar conditions.

3 The grant of the power of eminent domain or of the use of highways for a clearly private use does not impose public service obligations, Utilities Commission v. Bethany Tel. Assoc. (1915), 270 III. 183, 187. but is merely unconstitutional and void. Matter of Split Rock Cable Road Co. (1891). 128 N. Y. 408.