Hollister v. State
| Decision Date | 30 January 1903 |
| Citation | 71 P. 541,9 Idaho 8 |
| Parties | HOLLISTER v. STATE. (Two cases.) |
| Court | Idaho Supreme Court |
(Two cases.)
ACTIONS AGAINST STATE-MUST BE AUTHORIZED-EMINENT DOMAIN-SCHOOL LANDS-ADMISSION ACT-SPECIFICATIONS OF ERROR.-Authority to sue the state must be expressed in its constitution or statutes. Authority to sue this state for the condemnation of state lands for a public use is granted by section 13 of the act of February 25, 1899 (Sess. Laws 1899, p. 318). The power of eminent domain is one of the inalienable rights of sovereignty. Act of Congress approved July 3, 1890, known as the "Idaho Admission Act," does not prohibit or restrict the right of eminent domain over the lands granted to the state by said act. Specifications of insufficiency of evidence to sustain findings of court must be made in order to have this court examine evidence and pass upon its sufficiency to sustain the findings.
(Syllabus by the court.)
APPEAL from District Court, Lincoln County.
Affirmed. No costs awarded.
John A Bagley, Attorney General, Frank Martin and Edward A. Walters for Appellant.
Can an action be maintained against the state in the district court? Plaintiff seeks to condemn for an alleged public use lands belonging to the state of Idaho and granted to said state by act of Congress of July 3, 1890, for the support of common schools. The first objection is that the action is brought against the state, and it nowhere appears, in the constitution or the statutes, that the state has given its consent to be sued in the district court of the state. "A state is not liable to suit in its own courts or those of the United States or of any other state without its expressed consent"; and its consent must be given either by its constitution or by its legislative enactments. .) Sections 16 and 36 in every township having been granted by Congress to the state for the support of common schools, the same are dedicated for that object. Every disposition inconsistent with such dedication is expressly prohibited. (Ham v. Missouri, 18 How. (U. S.) 126, 15 L.Ed. 334, 336.) The use in the complaint is not a public use. We look in vain in section 5210 of the Revised Statutes, which enumerates the uses in behalf of which the right of eminent domain may be exercised to find therein the use for which plaintiff seeks to condemn this land. There is no provision in this section whereby the fee, or any easement, in lands may be acquired by an exercise of the right of eminent domain for the laying of pipes or conduits, for the construction of canals, flumes or ditches for the purpose of conveying water to a manufacturing plant, or for providing a site upon which a manufacturing plant may be built. A plant for the manufacturing of electricity is a manufacturing plant or factory. (Lamborn v. Bell, 18 Colo. 346, 32 P. 989.) The right of eminent domain can only be exercised by virtue of legislative enactment, and unless so authorized the power is latent and potential merely. (1 Lewis on Eminent Domain, 2d ed., sec. 237, and notes on pp. 562, 563; 7 Am. & Eng. Ency. of Pl. & Pr. 467, 468, par. 2, and note; Matter of Thomson, 86 Hun, 405, 33 N.Y.S. 467; Matter of Poughkeepsie Bridge Co., 108 N.Y. 483, 15 N.E. 601.) When property is taken for public use, the owner is entitled to its market value for the use to which it may be most advantageously applied and for which it would sell for the highest price in the market. (King v. Minneapolis Union Ry. Co., 32 Minn. 224, 20 N.W. 135; 2 Lewis on Eminent Domain, 2d ed., secs. 478, 479, and notes; Seattle etc. Ry. Co. v. Murphine, 4 Wash. 448, 30 P. 720 (); San Diego Land etc. Co. v. Neale, 78 Cal. 63, 20 P. 372; Boom Co. v. Patterson, 98 U.S. 403, 25 L. ed., 206 (); 6 Am. & Eng. Ency. of Law, p. 567, par. 4, and note, and p. 569, par. 2, and note.)
S. H. Hays, for Respondent.
We do not question the principle of law that a state cannot be sued without its consent. Condemnation proceedings are, however, not necessarily suits in the ordinary acceptation of that term, since they are frequently conducted before special tribunals without resort to the courts. (7 Ency. of Pl. & Pr. 467.) Conceding that these proceedings are equivalent to a suit, under our practice we find that the statute has directly authorized the state to be brought into court. Section 5212 of the Revised Statutes provides: The word "territory" was, by act of the legislature, changed to "state," and this act has been held valid by this court. (Gilbert v. Moody, 3 Idaho 3, 25 P. 1092.) The proceedings must, under section 5215 of the Revised Statutes, be brought in the district court, and by section 5228, the provisions of the code relative to civil actions are made applicable and constitute the rules of practice. If there is no special statutory provision for service of summons on the state, then service may be made on the governor and attorney general. (State v. Steele, 57 Tex. 200; State v. Cook, 57 Tex. 205; Commonwealth v. Railway Co., 3 Cush. 25, 47; Chisholm v. Georgia, 2 Dall. 419, 469.) The statutes cited give as specific authority to make the state a party to these proceedings as could possibly be given. The statute was passed before our admission to statehood. The territory had power to pass this act. (Oury v. Goodwin, 3 Ariz. 255, 26 P. 377.) Can school lands be taken under the power of eminent domain? Eminent domain is a paramount governmental power. Though the taking may be by an agent of the state in charge of the public use, the act is none the less an act of the state in the exercise of its sovereign power. (United States v. Jones, 109 U.S. 513, 3 S.Ct. 346; Gilmer v. Lime Point, 18 Cal. 229; Moran v. Ross, 79 Cal. 159, 21 P. 547.) "The power of eminent domain is one of the inalienable incidents of sovereignty which, treated simply as a question of power, may be exercised in favor of public uses over any and all private and even public property." (Southern P. Ry. v. Railway Co., 111 Cal. 221, 43 P. 602; Lewis on Eminent Domain, sec. 2; Parmalee v. Railroad Co., 7 Barb. 559 (624); Brimmer v. Boston, 103 Mass. 19.) It has been held that the state could exercise the right of eminent domain over the lands of the United States. (United States v. Chicago, 7 How. 185 (194); United States v. Bridge Co., 6 McLean, 517, F. Cas. No. 16,114.) This being the case, the United States could not, by the terms of its grant to the state, take away the power of eminent domain. (See, also, Indiana Cent. Ry. v. Indiana, 3 Ind. 421.) Is the use for which the lands are sought a public use? Section 14, article 1, of the state constitution, which is self-executing, covers this point fully. Section 5210 provides that the right may be exercised in favor of "steam and horse railroads." This will include electric railroads. (Oregon Ry. Co. v. Ogden, 7 Utah 207, 26 P. 288.) The question of public use was not submitted to the jury, but was found on by the court. There is no specification of the insufficiency of the evidence on this point to sustain the finding and the question is not before this court. It was not necessary to allege in the complaint the refusal of the land board to grant us the right of way desired, and therefore no proof was necessary. Even if it had been, the fact that the board is not authorized by law to make such grant would be a sufficient refusal. (Balch v. County Commrs., 103 Mass. 106.) All of the testimony as to the value, on the part of appellant, was incompetent and should have been stricken out. (San Diego Co. v. Neale, 88 Cal. 50, 25 P. 977.)
The facts are set out in the opinion.
The plaintiff filed two complaints, the first February 4, 1902 and the second February 7, 1902; the lands described in the two complaints being contiguous, and comprising two and sixty one-hundredths acres of land, lying along the Snake river and immediately below the Shoshone Falls, in Lincoln county. Plaintiff prayed that the lands be condemned, and the value thereof assessed, and that it be declared a public use, and that such use is as follows: "To furnish electricity for lighting purposes to the unincorporated town of Shoshone, the county seat of Lincoln county, and to the inhabitants thereof; to furnish electric power for pumping water to be used for domestic purposes and for purposes of irrigation by the inhabitants of said town; to construct and operate a railroad from said town of Shoshone to a point on Snake river in the vicinity of section 36, township 17 east, of range 9 south, Boise meridian, said railroad to be operated by means of electric power; to furnish electric power for the drainage of mines, for the working thereof...
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