Codd v. McGoldrick Lumber Co.

• Decision Date: 06 July 1929
• Docket Number: 5154
• Citation: 48 Idaho 1,279 P. 298
• Court: Idaho Supreme Court
• Parties: AMBROSE W. CODD and JOHN V. ALLEN, a Copartnership Doing Business Under the Name and Style of CODD & ALLEN LUMBER COMPANY, Plaintiffs, v. MCGOLDRICK LUMBER COMPANY, a Corporation, Defendant

279 P. 298

48 Idaho 1

AMBROSE W. CODD and JOHN V. ALLEN, a Copartnership Doing Business Under the Name and Style of CODD & ALLEN LUMBER COMPANY, Plaintiffs, v. MCGOLDRICK LUMBER COMPANY, a Corporation, Defendant

No. 5154

Supreme Court of Idaho

July 6, 1929

EMINENT DOMAIN-RIGHT OF STATE-"PUBLIC USE"-CARRIERS-LOGGING RAILROADS.

1. Opinion written by one of three supreme court justices indicating that logging railroad is not a common carrier within Const., art. 11, sec. 5, held not a holding that such railroad must submit to becoming a common carrier before exercising right of eminent domain, where another justice merely concurred in conclusion reached and third justice dissented.

2. The right of eminent domain is an attribute of sovereignty, on the exercise of which there are fundamentally no restrictions.

3 Const., art. 1, sec. 14, par. 1, declaring necessary use of lands for irrigation and mining purposes, or any other use necessary to complete development of state's material resources, a public use, subject to state's regulation and control, must be interpreted in light of its historical background.

4 Const., art. 1, sec. 14, par. 1, declaring necessary use of lands for irrigation and mining purposes, "or any other use necessary to the complete development of the material resources of the state," a public use, subject to state's regulation and control, refers to individual uses affected with a public interest, not merely those previously considered public uses, for which private property may not be taken without just compensation under paragraph 2.

5 Const., art. 11, sec. 5, declaring all railroads public highways, does not apply to logging railroads, which are not "common carriers" merely because of their exercise of right of eminent domain to secure rights of way under art. 1, sec. 14, par. 1.

PETITION for Writ of Mandamus. Writ heretofore issued quashed.

Case overruled. Costs awarded to defendant.

N. D. Wernette, for Plaintiffs.

In the case of McLean v. District Court, 24 Idaho 441, 460, Ann. Cas. 1915D, 542, 134 P. 536, the court said: "There are allegations in the petition, and argument was made upon the hearing, to the effect that the railroad company was not organized for the purpose of serving the public, but was organized for the sole purpose of carrying lumber and logs for personal use, and that there was to be no public use when the railroad was completed and put in operation. The company was organized under the laws of the state and for a public use, and under the constitution of this state, sec. 5, art. 11, that all railroads are public highways and common carriers, which brings it within the constitutional and statutory requirement that all railroads are to be public highways and common carriers 'subject to legislative control,' and it matters not what the intention of the corporation is or may be, it is made a common carrier by the constitution, and if the railroad company refuses to perform any of the duties it owes to the public, it may be compelled to act, and if it fails to operate its road, the property condemned reverts to the owner of the freehold."

In said case you will note that the supreme court expressly stated that "it matters not what the intention of the corporation is or may be, it is made a common carrier by the constitution," and that "all railroads are to be public highways and common carriers, 'subject to legislative control.'"

And said decision was with reference to one of these logging railroads, so called, similar to the one in question. ( Connolly v. Woods, 13 Idaho 591, 92 P. 573; Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho 556, Ann. Cas. 1918A, 189, 155 P. 680.)

The Blackwell Lumber Company, to all intents and purposes, was identical to the McGoldrick Lumber Co., the defendant herein. It was an ordinary lumber company seeking the right of eminent domain, not incorporated as a regular railroad corporation, but in fact did construct and operate a railroad. We desire to call your particular attention to the language used by the court in said decision when it said: "No doubt, under the provisions of said section of the constitution, the logging railway purposed would be required to haul logs of other land owners along its line, provided such land owners delivered their logs to the railroad for transportation."

Robert H. Elder and Randall & Danskin, for Defendant.

Unlike most states in the Union, there are two purposes for which eminent domain may be exercised under the Constitution of Idaho. Under art. 11, sec. 5, all railroad corporations organized as such are guaranteed that right. Under Const., art. 1, sec. 14, all persons or corporations may exercise the right for the development of the material resources of the state. With these two constitutional provisions it was quite natural that the supreme court of Idaho would early in its history be called upon to decide between two conflicting lines of decisions dealing with the right of eminent domain, the one line of decisions adhering strictly to the doctrine of a public benefit. The supreme court of Idaho has adopted the latter rule. (Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 118 Am. St. 233, 88 P. 426; Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho 556, Ann. Cas. 1918A, 189, 155 P. 680; 20 C. J. 553.)

It was quite obvious that if the power of eminent domain could be exercised by persons or corporations for the purpose of developing the material resources of the state of Idaho, and if as said by Judge Sullivan in the case of Potlatch Lumber Co. v. Peterson: "It is enough if the taking tends to enlarge the resources, increase the industrial energies and promote the productive power of any considerable part of the inhabitants of a section of a state or leads to a growth of towns and the creation of new channels for the employment of private capital and labor as such results indirectly contribute to the general prosperity of the whole community,"--that the exercise of the right of eminent domain in Idaho under art. 1, sec. 14, would not make a person or corporation exercising that right a common carrier or public utility, and whenever the question has come before the courts of Idaho they have held that the exercise of the right of eminent domain in Idaho does not make a company a public utility.

In Nampa & Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75, the contention was made that an irrigation district was a public utility and a common carrier of water, one of the reasons being because it could exercise the power of eminent domain and in that connection the court said:

"It is true as has been suggested that a corporation such as the appellant is may exercise the power of eminent domain, but it must be remembered that in Idaho, the right to take private property for a public use, upon just compensation therefor, does not of necessity constitute a corporation invested with that right a public service corporation in the sense that the public may exact any service from it." (Potlatch Lumber Co. v. Peterson, supra.)

In the case of Washington Water Power Co. v. Montana Power Co., Public Utilities Reports, 1916E, 144, 3 I. P. U. C. 96, the Idaho Public Utilities Commission said: "The right of eminent domain, however, is not conclusive that the person exercising it is a public utility and as such under the jurisdiction of this commission."

E. W. Wheelan, Amicus Curiae.

The courts have held that to compel one to devote his private property to a public use and to make a common carrier of one devoting his private property to his private use violates the due process of law clause of the fourteenth amendment to the United States Constitution. (Associated Pipe Line Co. v. Railroad Commission of Calif., 176 Cal. 518, 169 P. 62, L. R. A. 1918C, 849; Producers' Transp. Co. v. Railroad Commission of Calif., 251 U.S. 228, 40 S.Ct. 131, 64 L.Ed. 239; Chicago, B. & Q. R. Co. v. Illinois, 200 U.S. 561, 4 Ann. Cas. 1175, 26 S.Ct. 341, 50 L.Ed. 596; Northern P. R. Co. v. North Dakota, 236 U.S. 585, Ann. Cas. 116A, 1, 35 S.Ct. 429, 59 L.Ed. 735, L. R. A. 1917F, 1148, P. U. R. 1915C, 277.)

Tannahill & Leeper, Amici Curiae.

The term "railroad companies" as used in Const., art. 2, secs. 5 and 6, refers only to the legal entity engaged in the common carriage of persons or property for compensation, and the term "railroad" as used therein signifies only the physical structure and equipment used in such transportation by the railroad company. Neither a lumber company operating a private logging railroad for its own private purposes nor its physical facility falls within the purview of the section.

This is a legitimate conclusion from the context of the Constitution itself. (Const., art. 2, secs. 5, 6.)

This was the intent of the framers of the Constitution. (Idaho Const. Debates, p. 660 et seq., particularly pp. 875, 876, 880, 881 and 882.)

All legislatures of the state have accepted and used these terms in this significance, prior to, contemporaneous with and subsequent to the adoption of the Constitution. This construction by the legislature is of impelling weight. ( Board of Railroad Commrs. v. Market Street Ry. Co., 132 Cal. 677, 64 P. 1065; Cooper Mfg. Co. v. Ferguson, 113 U.S. 727, 733, 5 S.Ct. 739, 28 L.Ed. 1137, 1138; 1923 Sess. Laws, p. 103; 1925 Sess. Laws, p. 133.)

This construction of terms "railroad company" and "railroad" comes from the common law. (Murch v. Concord Railroad Corp., 29 N.H. 9, 61 Am. Dec. 631; Coe v. New Jersey etc. R. R. Co., 28 N.J. Eq. 100; Sanford v. Catawissa etc. R. R. Co., 24 Pa. 378, 380, 64 Am. Dec. 667; Clarke v. Rochester, 24 Barb. (N. Y.) 446, 484.)

GIVENS, J. Wm. E. Lee, J., and Baker and Adair, D. JJ., concur.

OPINION

GIVENS, J.

This cause was...