Jones v. North Georgia Electric Co.

54 S.E. 85, 125 Ga. 618, 1906 Ga. LEXIS 231

Opinion

' Atkinson, J.

The right of the court to refuse to grant the injunction depends upon the constitutionality of the act of 1897 (Acts 1897, p. 68). The act is called into question upon one ground only, that is to say, it is challenged as being violative of that clause, found substantially identical in' the constitution of this State and in the constitution of the United States, which guarantees that “No person shall be deprived of life, liberty, or property, ex-cejot by due process of law.” It is insisted that the act violates that provision of the two constitutions for a single reason, namely, that it is an attempt to authorize individuals to. exercise the State’s right of eminent domain for other than public purposes. If this contention is well founded, it is manifest that the act would be unconstitutional, because it.is elementary that the State’s right of eminent domain can never be exercised for other than such purposes. Our State constitution provides that the right of eminent domain shall never be abridged. Constitution, art. 4, sec. 2, par. 2 (Civil Code, §5798). It is settled law that the State may primarily jexercise the right for any public purpose, but there is no limitation .which prevents the State by -legislation from delegating to others the authority to exercise its right of eminent domain for any public 'use or purpose. The right of eminent domain is inherent in .the State, but lies dormant until quickened into activity by appropriate legislation. See United States v. Jones, 109 U. S. 513; Hand Gold Mining Co. v. Parker, 59 Ga. 423; Cooley’s Const. Lim. (7th ed.) 759. In the Hand Gold Mining Co. case, supra, it is said: “The right of eminent domain may be exercised by the General Assembly in this State when it is for the public good, either through the officers of the State or through the medium of corporate bodies or by means of individual enterprise.” See also Hopkins v. Fla. Cen. R. Co., 97 Ga. 107; Mims v. Macon & Western R. Co:, 3 Ga. 338. Thus we see it is not so much the character of the person exercising the right 'as the uses to which the object is to be applied. See also, in this connection, Chestatee Pyrites Co. v. Cavenders Creek Gold Mining Co., 119 Ga. 354. It is the State’s right always, and in the discretion of the legislature as to whom authority to exercise it shall be delegated, but the character of the purposes for which the power shall be'exercised is altogether a different .question. The legislative discretion in granting the right is conIfined to uses of public necessity. In no case can the legislature authorize the State’s right of eminent domain to be employed for a purely private purpose. The announcement just made needs no argument in its support; it follows from the fundamental law' which forbids the taking of private property except for public purposes. “The definition given of the right of eminent domain implies that the purpose for which it may be exercised must not be a mere private purpose; and it is conceded on all hands that the legislature has no power, in any ease, to take the property of one individual and pass it over to another without reference to some use to which it is to be applied for the public benefit. ‘The right of eminent domain,’ it has been said, ‘does not imply a right in the sovereign power to take the property of one citizen and transfer it to another, even for a full compensation, where the public interest will be in no way promoted by such transfer.’ ” Cooley’s Const. Lim. (7th ed.), 763.

We now come straight to the inquiry as to whether this act attempts, under guise of the law of eminent domain, to authorize a taking of property from an owner against his will for other than a public purpose. Judge Cooley declares, that “We find ourselves somewhat at sea, however, when we undertake to define, in the light of the judicial decisions, what constitutes a public use,” and, after consideration of able opinions on the-subject, evolves the following general rule for the ascertainment of the character of the use: “The reason of the case and the settled practice of free governments must be our guides in determining what is or is not to be regarded a public use; and that only can be considered such where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, or welfare, which, on account of their peculiar character, and the difficulty — perhaps impossibility — of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide.” Cooley’s Const. Lim. (7th ed.) 766-769. In applying this general rule, we must bear in mind that “public necessity” and “public convenience” and “public welfare” are to be accommodated under so many different conditions that there can be no definite and fixed state of facts which will invariably determine the character of the use. The most that can be done is to recognize the general rule that the subserving of public necessity or public convenience or public welfare under conditions which render the State’s intervention necessary is a condition precedent to the exercise by an individual of the State’s right of eminent domain, and let each case as it arises under its particular attendant conditions be determined by that rule.. See Clark v. Nash, 198 U. S. 361. The constant change of conditions accounts in a large measure for the great conflict in judicial expression upon the subject. In fact there are hardly two cases alike, and there is of necessity a diversity in the decisions upon the subject; but underlying nearly the entire current of precedent may be seen a faithful adherence to the general rule which has been quoted. Applying the rule to this particular case, it seems manifest that the public necessity and public convenience and public welfare are to be sub-served, and that for the accomplishment of these purposes it is necessary and proper for the State to make suitable provision, by the delegation of authority, to condemn such property as may be needful for carrying those purposes into execution.- By the terms of the act one of its direct .purposes is to call into use the great water-powers of this State, in order to accommodate the necessities of the people. The present conditions are such that, under modern appliances, this result can be accomplished in no way except that which is proposed. It involves the problem of creating light, heat, and power at a remote point, for delivery by transmission over wires to the consuming public in neighboring and distant districts and cities, thus becoming necessary to pass over the lands of others. Thus we see the public purpose is twofold; for it has the object, first, to develop the resources of the State by bringing its great water-powers from a condition of waste to one of profitable employment; 'and, second, to supply the demands and necessities of the public with light, heat, and power. There are many respectable authorities that hold that the right of eminent domain may be exercised wherever the public interest will be subserved, when directed to purposes tending to the development of the natural resources of the State, or tending to the accommodation of the public welfare and convenience; and it seems to us that when the legislature saw the opportunity of directing the attention of science, industry, and art to the water-powers of the State, with a view to supplying our people with such utilities as light, heat, and power for the promotion of our domestic and industrial welfare, its action in lending the State’s aid to the end of affording the necessary right of way over the private lands of individuals was fully justified under the law which permits the taking of private property for public uses. We do not mean to say that a use which only re1 m'otely tends to the public good or convenience will justify the exercise of the State’s right of eminent domain. Such a position would lead to unreasonable results, for there is scarcely an industrial enterprise which has not the features of public benefit; but .such is not the case which we now have under consideration. Here is the direct benefit to the State in developing its natural resources, and here are the resulting uses to the public which are so direct and far-reaching as to extend to every industrial enterprise and to the home of every individual. We are safe in holding that, under the conditions of this day and time, the legislature, did not unconstitutionally exercise its power in passing the act now under review. This act is only directed to a coercion of those who will not for the common good submit their property to the right of passage. It provides just compensation to them, but authorizes compulsory submission to the interests and welfare of the State and the good of the public. It may.be noted that the pretension of the act is to go no further than to provide for the acquisition of an easement over the land of another, which is authorized to be enjoyed only for a public use. Indeed the constitution prohibits any further taking of the owner’s property without his consent, and it must follow that any use of the property for a purely private purpose would not fall within the pale of the act. Such private use, if any should be attempted, could not be justified under the act, and would be a trespass as against the owner. The possibility of a use which is not authorized by the act could not serve to render unconstitutional those provisions of the act which are the real object of the legislation and which are themselves constitutional. It is readily seen that one of the essential and constituent obligations upon the part of the individual who attempts to exercise the right of eminent domain under this act is that he shall serve all of the public fairly and without discrimination. Without such public service, his right would have no sanction under the act. The conclusion just announced follows as a matter of logic from a consideration of the case at bar, and is well supported by authority. See, in this connection, Central Union Telephone Co. v. Bradbury, 106 Ind. 1; State ex rel. Webster v. Telephone Co., 17 Neb. 126; Zanesville v. Gaslight Co., 47 Ohio St. 1; Griffin v. Goldsboro Water Co., 122 N. C. 206; City of St. Louis v. Bell Telephone Co., 96 Mo. 623; Spring Valley Waterworks v. Schottler, 110 U. S. 347; Gibbs v. Consolidated Gas Co., 130 U. S. 408; Munn v. Ill., 94 U. S. 113; Snell v. Clinton Electric Co., 89 Am. St. R. 341; Cincinnati, H. & D. R. Co. v. Bowling Green, 57 Ohio St. 336; 2 Beach on Priv. Corp., §§834-836. Under the particular conditions then existing, this court in Loughbridge v. Harris, 42 Ga. 500, said: “We do not think a mill, although it has some of the attributes o£ public use and is regulated by law for certain defined purposes, can be regarded such public use as the constitution recognizes, to authorize the exercise of this great constitutional power.” After-wards, in the case of Hand Gold Mining Co. v. Parker 59 Ga. 424, under the particular conditions then existing, this court held that a provision in a charter of a mining company authorizing the company, upon just compensation to the owner, to condemn over the lands of another a right of way for the carriage of water necessarily used in gold mining, was not an unconstitutional exercise of the right of eminent domain. This ruling was put upon the principle that the development of the mineral resources of the State, and the production of the metal in which our constitutional currency is stamped, are of public benefit. The ease last cited distinguishes the case of Loughbridge v. Harris. Upon the subject of what is or is not a public use, the following other decisions of this court may be mentioned: Mayor of Macon v. Harris, 73 Ga. 428; Butler v. Thomasville, 74 Ga. 570; Hopkins v. Fla. Cen. R. Co., 97 Ga., 113; Garbutt Lumber Co. v. Georgia and Alabama Ry., 111 Ga. 714; Jones v. Venable, 120 Ga. 1. These cases are not in their facts like the case at bar; and in view of the difference, and inasmuch as these cases arose under different conditions from those which at this time command our attention, we do not deem it necessary to make further reference to them. The act being constitutional, and the facts showing the contemplated use of the land of the plaintiff to be designed for no other than public purposes it follows that the court did not err in refusing the injunction.

Judgment affirmed.

All the Justices concur.