Washington Water Power Co. v. Waters
| Decision Date | 01 September 1910 |
| Citation | 186 F. 572 |
| Parties | WASHINGTON WATER POWER CO. v. WATERS et al. |
| Court | U.S. District Court — District of Idaho |
Post Avery & Higgins and Gray & Knight, for plaintiff.
Kerns & Ryan, for defendant.
The defendant's demurrer to the amended complaint herein was submitted orally at the May term, and at tat time the view was intimated that, with the exception of certain objections bearing upon the question of federal jurisdiction, it would be overruled. In the third amended complaint to which the demurrer is now submitted, the jurisdictional defects seem to have been cured, and upon further reflection and consideration I am still inclined to hold to the opinion that in other respects the objections are not well taken, and that, therefore, the jurisdictional facts being sufficiently alleged, the demurrer should be denied.
The principal points urged are involved in a case between the same parties, now pending upon appeal from the District Court of the Eighth Judicial District of the state, in the Supreme Court, and through the kindness of counsel I have had the benefit of the elaborate printed briefs prepared in support of the argument to be made in that appeal. The first objection made by the defendants is that the plaintiff cannot maintain the action, which is a proceeding in eminent domain for the condemnation of lands necessarily flooded by the raising of the waters in Coeur d'Alene Lake by the plaintiff for the purpose of generating electrical energy to be used for power and lighting purposes, because the right of eminent domain does not exist except by express enactment and there is no provision in the laws of the state of Idaho authorizing the condemnation of private property for the purpose of generating power.
It is not controverted that authority to condemn must be found in the positive law, and I think it must further be conceded that while the Legislature has made general provision for the mode or manner of condemning, and has expressly specified a number of purposes for which private property may be condemned for public use, the purpose or use under consideration has not anywhere been expressly designated or referred to.
While unquestionably, therefore, adequate provision for procedure may be found in the statutes, if the right to proceed exists, that right, if any there be, must be sought for in the Constitution, and not in the statutes of the state. By section 14 of article 1 of the Constitution, it is provided that:
It will be noted that here there is no express inclusion of a use for power purposes, but the plaintiff relies particularly and exclusively upon the clause which provides that:
'Any other use necessary to the complete development of the material resources of the State, or the preservation of the health of its inhabitants, is hereby declared to be a public use.'
In this view, the controversy is reduced to substantially a single question, namely, whether or not under this general clause, in the absence of an expression of legislative will, the judicial department is authorized to determine whether or not a given use is generally or under the particular circumstances of the case, 'necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants. ' It is the position of the plaintiff that such power is conferred upon the courts, and, upon the other hand, the defendants contend that it is exclusively within the province of the legislative department to determine specifically what uses are necessary to the development of the state, or to the health of its inhabitants; in other words, that the clause is to be construed as a delegation of authority, not to the courts, but to the Legislature.
While the question is not entirely free from doubt, my first impression was, and my view still is, that, to give the constitutional declaration effect, it was necessary for the Legislature only to prescribe the requisite judicial procedure, which it is thought is amply provided for in the general statutes pertaining to proceedings in eminent domain. As will be noted, it is declared by the Constitution that any use 'necessary to the development of the material resources of the state, or the preservation of the health of its inhabitants, ' is a public use, and to this statement is appended the further declaration that 'private property may be taken for a public use, but not until a just compensation, to be ascertained in a manner prescribed by law, shall be paid therefor.'
It is well understood that the power of eminent domain is an incident of sovereignty, and may therefore be exercised either by the federal government, or by a state, by virtue of its sovereignty. In the absence of constitutional limitations, the authority to declare for what purposes and under what circumstances and in what manner the power may be exercised rests in the Legislature. However, the people, the primary source of all power, instead of leaving such authority to the unrestricted discretion of their representatives in the Legislature, may express their will in the paramount law, the Constitution, and it may not be doubted that their will so expressed directly is quite as effective as if, through representatives, it were expressed indirectly in legislative enactment. The statutes of the state pertaining to the exercise of the right of eminent domain are found under Title 7 of the Revised Codes of Idaho commencing with section 5210, which prescribes in some detail the uses in behalf of which the right of eminent domain may be exercised. Sections 5211 and 5212 classify the estates and rights and private property which may be taken for public uses. Section 5213 provides that, before property can be taken, it must appear that the use to which it is to be applied is one authorized by law, and that the taking for such...
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