Connecticut College v. Calvert

88 A. 633, 87 Conn. 421

• Court: Supreme Court of Connecticut
• Decided: October 5, 1913
• Status: Published

Opinions

Beach, J.

The only question raised by this appeal is whether the Special Act of the General Assembly approved July 27th, 1911, granting to the “Connecticut College for Women” the right of eminent domain, is a constitutional delegation of the power to take private property for a public use upon paying just compensation therefor.

The petitioner is a private educational corporation. Its real and personal property is to be held in its own name, and managed by a board of trustees to be elected by members of the corporation. The admission of students to the institution, the tuition fees to be paid, and the curriculum to be pursued will be at the discretion of the trustees. The phrase “higher education” is indefinite, but it is fair to assume that the intention is to furnish a collegiate education for women in substantial conformity to the existing accepted standards. It appears from the petition and from the amended charter of the petitioner that it has already received large gifts, and that the expenses of its establishment and maintenance will be provided, in part at least, through voluntary contributions. It, therefore, administers a public charity within the meaning of our statute of charitable uses.

The question whether universities and colleges when owned and controlled by private corporations admin ister a public use, as distinguished from a private use, so that they may constitutionally be given a right to take private property upon paying just compensation therefor, has, apparently, never been brought before the courts of this country for determination; and except for the Special Act under which this petition is brought, we are not referred to any statute of any State or country which purports to authorize universities or colleges when so owned and controlled to take private property under condemnation proceedings. The charitable purpose and wide public usefulness of such institutions has been recognized by exempting their property from taxation; but the right of eminent domain does not appear to have been extended to institutions of this character except when they are owned and controlled by a State.

The Act of 1911 under which this petition is brought is for the special benefit of the petitioner, and does not undertake to express the public policy of the State toward colleges and universities in general; but it is impossible to pass upon the special instance without considering the principles involved, and the question presented by this appeal is, therefore, of sufficient novelty and importance to justify a re-examination of the general principles which must be applied to its solution.

The constitutional provision authorizing the taking of private property for a public use on payment of just compensation therefor is universally admitted to be a limitation on the exercise of the power of eminent domain; and to exclude the power of taking private property for a private use. Cooley on Constitutional Limitations (7th Ed.) p. 763 et seq. It follows that no definition of public use for the purpose of eminent domain can be large enough to include any private use, and however elastic and indefinite the term “public use” may be, it is certain that no additional or novel application of the power of eminent domain can justify the taking of property for a private use.

It is also well settled that as the power of eminent domain is an inherent sovereign right, the words “public use” in this connection are equivalent to “governmental use”; and that as the State itself cannot take private property except for a governmental use, so it cannot delegate to a private person or corporation the power of eminent domain except for a use which might properly be administered by the State itself, or by some political subdivision thereof. As was said by Judge Cooley in People v. Humphrey, 23 Mich. 471, 474: “The authority springs from no contract or arrangement between the government and the citizen whose property may be appropriated, but it has its foundation in the imperative law of necessity, and is recognized, and may be defended and enforced, upon the ground that no government could perpetuate its existence and further the prosperity of its people, if the means for the exercise of any of its sovereign powers might be withheld at the option of individuals. The right being thus found to rest upon necessity, the power to appropriate in any case must be justified and limited by the necessity; and whenever in any instance the government or its officials shall attempt to seize and appropriate that which cannot be needful to the due execution of its sovereign powers or the proper discharge of any of its public functions, the same means of resistance and legal redress are open to the owner that would be available in case of a like seizure by lawless individuals.” Hale v. Lawrence, 21 N. J. L. 714; Giesy v. Cincinnati, W. & Z. R. Co., 4 Ohio St. 308; Gilmer v. Lime Point, 18 Cal. 229, 252; Brown v. Gerald, 100 Me. 351, 61 Atl. 785.

The term “public use,” as related to condemnation proceedings, has been strictly limited in some States to uses governmental in their nature when adminis tered so that the public has a common right upon equal terms to the use or benefit of the property taken. Varner v. Martin, 21 W. Va. 534; Tyler v. Beacher, 44 Vt. 648; Bottoms v. Brewer, 54 Ala. 288; Fleming v. Hull, 73 Iowa, 598, 35 N. W. 673 Brown v. Gerald, 100 Me. 351, 61 Atl. 785; Fallsburg Power & Mfg. Co. v. Alexander, 101 Va. 98, 43 S. E. 194. In Connecticut and some other States it has been defined as including also uses, governmental in their nature, although administered for a private interest, when the taking itself is for purposes of great advantage to the community. Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 Conn. 78; Hand Gold Mining Co. v. Parker, 59 Ga. 419; Potlatch Lumber Co. v. Peterson, 12 Idaho, 769, 88 Pac. 426; Seely v. Sebastian, 4 Ore. 25; Dayton G. & S. Mining Co. v. Seawell, 11 Nev. 394; Nash v. Clark, 27 Utah, 158, 75 Pac. 371.

These two definitions correspond to the active and passive significance of the word “use,” as meaning enjoyment or as meaning utility, the second definition comprehending both significations; and they lead to the same results in their application to specific cases, except in respect of the much controverted question whether the public benefit to be derived from the development of the material resources of the State will justify the delegation of the power of eminent domain in favor of private owners of lands so situated that their economic value cannot otherwise be realized. The cases dealing with this special problem have arisen under Flowage Acts, Acts in aid of mining, of the drainage of swamp lands, the irrigation of arid lands, and similar statutes, and may properly be classified in a separate group.

The other uses, which are agreed by all to be public as contrasted with private uses, may be classified under three groups as follows

First, property taken by the State or by some political subdivision thereof for purposes which are exclusively governmental in their nature; as forts, arsenals, post-offices, jails, court-houses, public highways, and similar uses not administered by private persons or corporations.

Second, property taken by the State or by some political subdivision thereof for purposes which are governmental in their nature, but which may also be administered by private corporations or individuals; as schools, parks, cemeteries, markets, turnpikes, toll-bridges, wharves, and the whole range of public service activities.

Third, property taken and administered by private corporations for purposes governmental in their nature when the community has a common right upon equal terms to the use or benefit of the property taken, and when the purpose itself is, in the judgment of the legislature, so important that the development of the enterprise ought not to be prevented by the unwillingness of a private owner to sell his property for a fair price.

As to the first and second groups, it is clear that a taking by the State, or by a public corporation within its corporate authority, for the use of the public, cannot be a taking for a private use; hence the authority of the legislature, to grant the right of eminent domain to a public corporation in aid of such governmental powers as the legislature sees fit to give to it, has been properly declared to be within the discretion of the legislature. Varner v. Martin, 21 W. Va. 534; Brown v. Gerald, 100 Me. 351, 61 Atl. 785; Tyler v. Beadier, 44 Vt. 648.

When, however, the right of eminent domain is delegated to a private corporation, the justification for the taking depends not only on the character of the use as being a use which is in its nature public or governmental, but also on the manner in which the use is to be administered.

Furnishing a supply of pure water to a community is a use which is very plainly a public use because govern-' mental in its nature; but a water company organized for the purpose of supplying water only to the members of the corporation would administer such use as a private and not a public use; and that would remain true, ■,no matter how large its membership might be, so long las membership was a matter of privilege and not of right. The constitutional authority of the legislature ito delegate the power of eminent domain to private corporations does not depend solely on the character of their corporate purposes, as to whether they are governmental in their nature or not; but, as is universally agreed, depends also upon the common and equal right of the public to the benefit of the service rendered, free from unreasonable discrimination, with the exception already noted, namely, that in some States, including Connecticut, an exception is made in favor of the owners of lands so situated that their economic value to the State cannot be developed without subjecting adjoining lands to some easement necessary for that purpose.

It is for the legislature to say whether any given use is governmental in its nature or not, subject to review by the courts only in exceptional cases of extreme wrong; and in the present case we accept and endorse the legislative declaration that the higher education of women is in its nature a public use. But the question whether in any given instance the use is or will be administered as a public or as a private use, is a question which must of necessity be determined by the courts in accordance with the facts of the particular case in hand.

This distinction has never been more clearly illustrated than in the case of Evergreen Cemetery Asso. v. Beecher, 53 Conn. 551, 5 Atl. 353, in which this court sustained a demurrer to a petition for the appointment of appraisers in condemnation proceedings brought under the provisions of the General Statutes of 1875 relating to the taking of land for cemeteries; and in the course of its opinion pointed out that although the establishment of cemeteries was a use which was public in its nature, yet the petition was insufficient because it did not appear that the petitioner’s cemetery was one in which the public had or could acquire the right to bury their dead, saying: “The safety of the living requires the burial of the dead in proper time and place; and, inasmuch as it may so happen that no individual may be willing to sell land for such use, of necessity there must remain to the public the right to acquire and use it under such regulations as a proper respect for the memory of the dead and the feelings of survivors demands. In order to secure for burial places during a period extending indefinitely into the future that degree of care universally demanded, the legislature permits associations to exist with power to discharge in behalf and for the benefit of the public the duty of providing, maintaining and protecting' them. The use of land by them for this purpose does not cease to be a public use because they require varying sums for rights to bury in different localities; not even if the cost of the right is the practical exclusion of some. . . . But it is a matter of common knowledge that there are many cemeteries which are strictly private; in which the public have not, and cannot acquire, the right to bury. Clearly the proprietors of these cannot take land for such continued private use by right of eminent domain. The complaint alleges that the plaintiff is an association duly organized under the laws of this State for the purpose of establishing a burying ground; that it now owns one; that it desires to enlarge it; and that such enlargement is necessary and proper. There is no allegation that the land which it desires to take for such enlargement is for the public use in the sense indicated in this opinion. Therefore the Superior Court is advised that for the reason that the complaint does not set out any right in the plaintiffs to acquire title to the land of the defendants otherwise than by their voluntary deed, the demurrer must be sustained.” And in Starr Burying Ground Asso. v. North Lane Cemetery Asso., 77 Conn. 83, 87, 58 Atl. 467, we said: “The burial or other safe disposition of the dead is a necessity essential to the preservation of the health of the living. The private use of land for this purpose by a private corporation may be of public convenience and necessity, as that term is sometimes used, although not strictly a public use justifying condemnation of land for that purpose. Application of St. Bernards Cemetery Asso., 58 Conn. 91, 92 [19 Atl. 514]. But where land is appropriated for a burying-ground by a town or other municipal corporation, or by owners of the land— being a voluntary association or private corporation— and the land so appropriated is open, under reasonable regulations, to the use of the public for the burial of the dead, it may become a public burial-ground and its use a public use, and the legislature may lawfully condemn land for that public use. Edwards v. Stonington Cemetery Asso., 20 Conn. 466; Evergreen Cemetery Asso. v. New Haven, 43 Conn. 234; Evergreen Cemetery Asso. v. Beecher, 53 Conn. 551 [5 Atl. 353].” .

The principle is elementary, and extends logically to all cases in which a corporate purpose, governmental in its nature, is sought to be aided by the delegation of the power of eminent domain. In such cases the vital question is whether it appears that the public will have a common right upon equal terms, independently of the will or caprice of the corporation, to the use and enjoyment of the property sought to be taken. In re Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42; Fork Ridge Baptist Cem. Asso. v. Redd, 33 W. Va. 262, 10 S. E. 405; Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405; Berrien Springs Water-Power Co. v. Circuit Judge, 133 Mich. 48, 53, 94 N. W. 379; Madera County v. Raymond Granite Co., 139 Cal. 128, 135, 72 Pac. 915; Jones v. North Georgia Electric Co., 125 Ga. 618, 54 S. E. 85; Rockingham County Light & Power Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46; Arnold v. Covington & Cincinnati Bridge Co., 62 Ky. (1 Duv.) 372; In re Rhode Island Suburban Ry. Co., 22 R. I. 457, 48 Atl. 591.

Neither the industry of counsel nor our own research has discovered any case (subject to the exception already noted) in which the courts have sustained as constitutional a grant of the right of eminent domain in favor of a private corporation administering a purpose governmental in its nature, whether educational, charitable, or otherwise, except when there was secured to the public a common and equal right to the use or benefit of the property taken. All of the authorities, whether their conception of a public use is founded solely on a use by the public or whether it includes also the public utility and benefit, agree in the results which have thus far been indicated; but there is a conflict of authority as to the constitutionality of the Flowage Acts, irrigation and drainage laws, and other statutes intended to promote the development of the material resources of a State, in so far as they give to private landowners the right of eminent domain for purposes in which the public have no direct, interest. In Vermont (Tyler v. Beacher, 44 Vt. 648) and in Virginia (Fallsburg Power & Mfg. Co. v. Alexander, 101 Va. 98, 43 S. E. 194) Flowage Acts conferring the right of eminent domain on private persons or corporations have been held unconstitutional; and in the courts of some other States, in cases already cited, like opinions have been expressed in discussing the general subject. In Massachusetts and, perhaps, in the Supreme Court of the United States, such Flowage Acts are sustained on the theory that the taking of private property authorized thereby is not in the exercise of the power of eminent domain, but in the nature of a regulation of the rights of common proprietors of the water-power in respect of a property which cannot be partitioned or enjoyed in common. Bates v. Weymouth Iron Co., 62 Mass. (8 Cush.) 548; Lowell v. Boston, 111 Mass. 454; Head v. Amoskeag Mfg. Co., 113 U. S. 9, 5 Sup. Ct. Rep. 441. The reasoning of these cases has provoked some criticisms. Brown v. Gerald, 100 Me. 351, 365, 61 Atl. 785; Avery v. Vermont Electric Co., 75 Vt. 235, 242, 54 Atl. 179. In Connecticut and (with some hesitation) New Hampshire, the Flowage Acts have been justified as an exercise of the power of eminent domain on the ground that the development of the water-power of the State was' a public benefit which could not otherwise be realized. Olmstead v. Camp, 33 Conn. 532; Todd v. Austin, 34 Conn. 78; Great Falls Mfg. Co. v. Fernald, 47 N. H. 444; Salisbury Mills v. Forsaith, 57 N. H. 124; Water Commissioners v. Manchester, 87 Conn. 193, 87 Atl. 870. In Georgia, the same reasoning has been •applied in sustaining a statute authorizing the taking of property in order to divert a stream for the development of a gold mine. Hand Gold Mining Co. v. Parker, 59 Ga. 419. In Nash v. Clark, 27 Utah, 158, 75 Pac. 371, a statute authorizing an owner of arid land, acting solely in his own interest, to condemn a right of iway for enlarging an irrigation ditch across the land of another was sustained. In Highland Boy Gold Mining Co. v. Strickley, 28 Utah, 215, 78 Pac. 296, a statute authorizing a mining company to condemn a right of way across adjoining lands for the construction of an overhead tramway was also sustained. So in California, Nevada, North and South Dakota, Arizona, and other States in the arid-land district, irrigation is recognized as a public use because necessary to the development of the natural resources of the State. By the Constitution of Idaho “the necessary use of lands ... to the complete development of the natural resources of the State ... is hereby declared to be a public use.” Art. 1, § 14. And the Supreme Court of the United States has recently come to recognize the right of each State to declare those uses public which are necessary to the development of its natural resources. “The rights of a riparian owner in and to the use of the water flowing by his land are not the same in the arid and mountainous States of the west that they are in the States of the east. These rights have been altered by many of the western States, by their constitutions and laws, because of the totally different circumstances in which their inhabitants are placed, from those that exist in the States of the east, and such alterations have been made for the very purpose of thereby contributing to the growth and prosperity of those States arising from mining and the cultivation of an otherwise valueless soil, by means of irrigation. This court must recognize the difference of climate and soil, which render necessary these different laws in the States so situated.” Clark v. Nash, 198 U. S. 361, 370, 25 Sup. Ct. Rep. 676.

These cases proceed upon what appears to us to be the right of a State, as a measuie of self-preservation, to prevent the stubbornness or avarice of a private proprietor from obstructing the development of its own physical resources.

The developed and undeveloped water-powers of Connecticut constitute, in their aggregate, a public asset which is and will be of great value in the interna tional struggle for economic advantage; and it seems to us to be the right of the State to promote the development of such a natural resource, by delegating the power of eminent domain for that purpose so far as may be necessary. And if the fact be, as it is with respect to our Connecticut water-powers, that they are for the most part too small for a use by the public, and are adapted only for use in connection with private industrial enterprises, so that the delegation of the power of eminent domain in favor of private persons is necessary to the development of the aggregate water-powers of the State, then such an exceptional delegation of the power of eminent domain is justified on the ground that it is to be exercised primarily for the public use of developing the water-powers of the State, and the incidental benefit to the private interest involved, is but the necessary means to that end. In all such cases the use or purpose of developing the material resources of the State is governmental in its nature, and the delegation of the power of eminent domain to private landowners for that purpose is justified not only by its necessity, but also because the public benefit aimed at is accomplished as soon as the water-power, or other natural resource is developed, and does not depend upon the mode of its continued use. Such a taking is directly for the benefit of the State as the owner in sovereignty of its own territory.

The principle of the cases arising under legislation in aid of the material resources of -the State is limited, as already pointed out, .to the case of lands so situated that their economic value cannot be realized without subjecting adjoining or neighboring land to some easement amounting to a taking, and does not include the ordinary human activities, which collectively, or in an abstract sense, are advantageous to the community, but which in any concrete case may be administered in a private interest; for in such cases, as already shown, the direct public benefit, if any, results from the use, or right of use, by the public. Evergreen Cemetery Asso. v. Beecher, 53 Conn. 551, 5 Atl. 353.

The result of this review of the principles is that the right of eminent domain cannot constitutionally be delegated to a private person or corporation unless for a use which is governmental in its nature, and unless the public has or can acquire a common right on equal terms to the use or benefit of the property taken; except only that the use, or right of use by the public, may be dispensed with when a public benefit results from the taking, which cannot otherwise be realized, and which continues to exist although the public has no use or benefit of the property taken.

The next subject of inquiry is whether the petitioner brings itself under the rule above stated; and in approaching that question we desire to reaffirm our acceptance and approval of the legislative declaration that the higher education of women is a use which is governmental in its nature. But, to paraphrase the language of Evergreen Cemetery Asso. v. Beecher, 53 Conn. 551, 5 Atl. 353, it is a matter of common knowledge that there are many colleges for the higher education of women in which the public have not and cannot acquire the right to be educated. Clearly the proprietors of these cannot take land for such continued private use by right of eminent domain. There is no allegation in the petition that the public has or can acquire the right to enjoy the benefits of the land sought to be taken, no provision to that effect in the petitioner’s charter, and the stated corporate purposes of the petitioner are not such as to impose upon it, as a necessary legal consequence of its corporate character, the obligation of admitting to its courses of instruction all qualified candidates, to the extent of its capacity, without religious, racial, or social distinction. The petitioner, although directly challenged on this point by Judge Case’s memorandum sustaining the demurrer, has not, either by amendment, assignment of error, or in its brief or argument, disclaimed authority to select its own beneficiaries. This case falls directly within the decision of Evergreen Cemetery Asso. v. Beecher, 53 Conn. 551, 5 Atl. 353.

It is argued that a sufficient measure of governmental control may be found in the supervisory power of the courts to enforce charitable trusts. But governmental control, except as a means of enforcing an existing public right of use or enjoyment, has no direct relation to the delegation of the power of eminent domain, for it is limited only by the extent of the police power. Moreover, the power of courts to enforce charitable trusts extends no further than the power to interpret and enforce the provisions of the instrument creating the trust. The question whether a given individual has or has not a right to be admitted to the Connecticut College for Women—if anybody at all shall have an enforceable right of admission to that institution—will depend not upon the will of the State, but upon the question whether such a right is given by the terms of some charitable bequest or deed of trust expressing the wishes of a private benefactor. In fact, the statute of charitable uses is, so far as any public right is concerned, the negation of State control.

The petitioner also claims that the higher education of women is a matter of great public utility within the meaning of the Flo wage Act cases; so that the public benefit resulting from the establishment of the Connecticut College for Women is a sufficient justification for the delegation of the power of eminent domain, and that it is not necessary that the public should have any right, independent of the will or caprice of the peti tioner, to share in its educational advantages. This claim brings us to a consideration of the statutes and decisions of some of the States, as bearing upon the relation of higher educational institutions to the State.

Excluding agricultural and other technical colleges, there are, in at least thirty-two States, universities for the higher education of men and women, owned directly by the State, or held for the State by corporations created for that purpose. These universities are governed by boards of directors, appointed or elected as other public officials are, except in Indiana, where the trustees are elected by the alumni; but in that State the governor, lieutenant-governor, speaker of the house, and judges of the Supreme Court are ex officio members of the board of visitors. These boards all have power, either specifically expressed in statutes or necessarily to be inferred from their broad general authority, to appoint and remove professors, to regulate the curriculum, and to fix tuition fees where they are required; although in some States the tuition fees are fixed by statute and in a few States the curriculum is outlined by statute. In many States these universities are expressly declared by law to be open to all; in others sectarian or partisan tests for admission are forbidden; in some the proportionate representation of students from different parts of the State is regulated by statute; and in some the common and equal right of the public to the benefit of the institution is left to be inferred from State ownership and control. In Kansas it has been held that the faculty has no power to exclude a student from the library for nonpayment of library fees. State v. University of Kansas, 55 Kan. 389, 40 Pac. 656. And in Minnesota a writ of mandamus will lie to reinstate a student wrongfully expelled. Gleason v. University of Minnesota, 104 Minn. 359, 116 N. W. 650.

The fact that these public universities exist and flourish in so many States is conclusive proof that the necessity which justifies the grant of eminent domain to private persons in order to develop the material resources of a State, does not exist in the case of institutions for the higher education of women. In other States, and formerly in Connecticut, the proceeds of the Federal grants for education have been paid over to privately owned colleges; and in such cases the rule appears to be the same elsewhere as it was in this State, that the institution is required to furnish free education to a stated number of students nominated by the State. General Statutes (1888), §2255. In this respect higher educational institutions have been put on the same footing as hospitals and other charitable institutions receiving State aid. General Statutes (1902), § 2852. The cases relating to educational institutions have not dealt directly with the right of eminent domain, but with the right to expend public funds for their benefit and support. In the following cases the right to use the public funds in favor of educational institutions was denied, on the ground that the iristitutions were not under public control. Curtis v. Whipple, 24 Wis. 350; Jenkins v. Andover, 103 Mass. 94; St. Mary’s Industrial School v. Brown, 45 Md. 310. In State v. Graham, 25 La. Ann. 440, an appropriation in favor of Straight University was held to be unconstitutional, not only because of the lack of State control, but also because “it is not bound to accept any indigent students unless the State extends aid to the institution.” In Elsberry v. Seay, 83 Ala. 614, 3 So. 804, an Act establishing a State University for colored people was held unconstitutional because it conflicted with the fundamental conception that public education should be in favor of all, and disturbed the apportionment of the school funds between the races in proportion to the number of children of each race. In Brooke Academy v. George, 14 W. Va. 411, an appropriation in favor of the Academy was held unconstitutional, both on the ground of lack of governmental control, and because “the citizens of the State of Virginia had no privileges in the Brooke Academy, that were not common to the people of Ohio and Pennsylvania or those of any other State. The trustees of the Brooke Academy might exclude any and all citizens of Virginia from having any control of the institution or from even sending their children to the Academy.” In Holt v. Antrim, 64 N. H. 284, 9 Atl. 389, a statute authorizing school districts to contract with academies or other educational institutions for the education of their pupils, and to use the school funds for that purpose, was sustained as constitutional expressly on the ground that the requirements of a public use were satisfied because the public had “a common and equal right, free from unreasonable discrimination,” to the education contracted for.

We find no authority in the decided cases for the position that colleges stand in any different relation to the State from other public charities; and we are unable to see how any distinction can be drawn which would justify the delegation of the power of eminent domain to colleges, while denying it to private hospitals, orphan asylums, or cemeteries. In truth the charitable character of such institutions is of no logical significance in this discussion, except as it brings them within the more general classification of governmental uses. If the use is governmental in its nature, and the public right to the promised benefit is secured, it is immaterial whether the corporate purpose is administered as a public charity or for profit. West Hartford v. Water Commissioners, 44 Conn. 360. Therefore, if we should grant that the legislature had constitutional authority to delegate the right of eminent domain in favor of private corporations because their purposes were high and charitable, although the public had no common right on equal terms to the benefit promised, we should be logically unable to restrain the exercise of the same authority in favor of private corporations operated for profit and administering purposes governmental in their nature for the exclusive, use of their own members and selected beneficiaries. As we said in the recent case of Beach v. Bradstreet, 85 Conn. 344, 359, 82 Atl. 1030: “The right of private property should, and does, rest upon a firmer basis than this.”

The term “public use” has nowhere received a wider judicial definition than in Olmstead v. Camp, 33 Conn. 532, and Todd v. Austin, 34 Conn. 78, and, from another aspect of the same general subject, in Yale University v. New Haven, 71 Conn. 316, 42 Atl. 87. The principle which these cases establish for this State is that our General Assembly has discretionary jurisdiction to declare any use public which is greatly for the benefit of the community, and that this discretion is subject to review by the courts only in case of extreme error.

Nevertheless, there must still remain for the courts, in all cases where the use in question is capable of being administered either for a public or for purely private end, the question whether the public has or can acquire the right to the use or benefit of the property sought to be taken.

If the property is to be privately administered, and the public has not and cannot acquire a right to its use or benefit, the power of eminent domain cannot, upon principle and upon authority, be delegated in aid of a governmental use; unless, as in the development of the natural resources of the State, a direct benefit to the State results from the taking, which benefit continues to exist although the property taken be subsequently used for a private use, and then only when such benefit cannot otherwise be fully realized.

There is no error.

In this opinion Prentice, C. J., Thayer and Roraback, Js., concurred.