56 to be awarded to the lowest bidder, it is the measure of the municipality's power in that respect. Under the California Constitution it is intended that there should be no restriction upon competition for the privileges therein granted of the use of the public streets under certain conditions and regulations for the purpose of supplying a city and its inhabitants with illuminating light; and as such restriction upon competition would result, if the privilege could only be granted to the highest bidder, the constitutional provisions will be held mandatory and prohibitory and to exclude the right of the municipality to award such privileges to the highest bidder.57 § 271. Withholding and signing warrants - Validating contracts for lighting city. In Pennsylvania the director of public works of a city has authority, without an ordinance therefor, to withhold warrants to pay an electric company for lighting the streets, where, in respect to furnishing lights in certain public buildings free of charge, there is a breach of the condition of the company's grant of right to use the city streets." Although a city council has declared a certain electric lighting contract invalid, it may validate the executed parts thereof, and order warrants to issue to pay therefor, and it is the mayor's duty to sign such warrants.59 66 561 Dill. on Mun. Corp. (4th ed.), § 466 et seq. The Greater New York charter (§ 416) provides that such ordinances, among other matters, must provide that the award, if any, must be made to the lowest bidder, unless the board of public improvements " (whose duty it is to prepare and recommend to the municipal assembly all ordinances and resolutions as to lighting the streets and to make all contracts for public work or supplies by which the city shall be liable to pay money)" by a vote of a majority of its members, of whom the mayor and comptroller shall be 58 two, shall determine that it is for the public interest that a bid other than the lowest should be accepted, and that no contrast shall be made until the comptroller certifies thereon that the necessary funds are provided and applicable thereto." Green's Greater New York Charter (1897), p. 147. See §§ 159, 230b, herein. 57 Pereria v. Wallace, 129 Cal. 397, 62 Pac. 61. 58 Kensington Elec. Co. v. Philadelphia, 187 Penn. St. 446, 43 Week. N. of Cas. 186, 41 Atl. 309. 59 Frederick v. People, 83 Ill. App. 89. 291a. Duty of court to determine question of interference of telegraph line with use by railroad - Statute. 291b. Where statute allows attorney's fees to defendant in condemnation proceedings. 291c. No allowance for costs in proceedings under Rapid Transit Act in New York. 291d. Where land sold after commencement of condemnation proceedings. 291e. Right to writ of error. 291f. Power of court as to report of commissioners in condemnation proceedings. 291g. Injunction to restrain unauthorized exercise of power of eminent domain. Petition owner of 292. Condemnation Petition Location line. 293. 288a. Condemnation Petition of Roads Act Nature of Post Private Right Separate parcels property. 288b. Joinder of actions to con 294. Exclusive Contract of way. § 272. Eminent domain-Definition of Generally.- Eminent domain is the right, inherent in the sovereign power, paramount to the right of individual ownership, to appropriate private property, either for a public use or for the public benefit and welfare, subject to the right of the owner to a just com 1 pensation therefor. So it is declared in a recent case that "Whenever the public use of property requires it, the private rights of property must yield to this paramount right of sovereign power to take it for the public use. When so taken, it is the character of the use for which the property is taken, and not the means or agencies by which it is taken, which determine the question whether it is legally taken under the legitimate exercise of the right of eminent domain, but in all cases the use for which it is proposed to take private property in the exercise of this right must be a public use or for a public purpose." This right of eminent domain is founded upon the principle that every owner of property traces his title to a grant from the sovereign power, that this grant is in the nature of a contract, and that into every contract there enter certain conditions, "superinduced by the pre-existing and higher authority of the laws of nature, of nations, or of the community, to which the parties belong." Subject to this sovereign power the private ownership is absolute and the Con 66 2 1 Judge Cooley has given a some what broader definition of it as the rightful authority, which exists in every sovereignty, to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control private property for the public benefit, as the public safety, necessity, convenience, or welfare may demand." Cooley's Const. Lim. (6th ed.) 644. "Eminent domain is the right or power of a sovereign State to appropriate private property to particular uses, for the purpose of promoting the general welfare." Lewis on Eminent Domain, § 1. Eminent domain is "the sovereign power vested in the State to take private property for public use, providing first a just compensation therefor." Trenton Cut-Off R. Co. v. Newtown Elec. St. Ry. Co., 8 Penn. Dist. Rep. 549. "Eminent domain is one of the highest attributes of sovereignty. By it the sovereign power, State or 3 West River Bridge Co. v. Dix, 6 How. 532, 533; Todd v. Austin, 34 Conn. 78. stitution of the United States safeguards it by the provision that private property can only be taken by due process of law and then on payment of just compensation. So it is said in this connection in a recent case that the proposed use must rest upon something more than a mere public benefit or the fact that it is of great public utility, as neither public benefit, public interest, or public utility is synonymous with public use. And the following words from the court in a recent case are also pertinent in this connection: "The right of eminent domain has been so freely conferred upon corporations, upon the mere suggestion that their business is in some way connected with service to the public, that we are in danger of forgetting that it is one of the most delicate and dangerous powers conferred by the people upon their government. Public franchises have been so generously and lavishly conferred and so freely used without compensation that those who wish to enjoy them forget that one of the chief ends for which government is created and taxes paid is the protection of private property." And in another case it is declared that the true test of what is a public use "is whether the taking is essential to the service of the public franchise or whether it pertains only to the private interests of the company in the details of its business." 7 Constitutional provisions have been 4 Western Union Teleg. Co. v. Penn. R. Co., 120 Fed. 362, 371, affirmed 195 U. S. 594. See Amendment 5 of U. S. Const., which provides: "No person shall be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation." 5 Brown v. Gerald, 100 Me. 351, 61 Atl. 785. The court said in the course of an exhaustive consideration of what was meant by the term "public use that: 66 Taking the decided cases generally, we think that the weight of authority does not sustain the doctrine that a public use, such as justifies the taking of private property against the will of the owner, may rest solely upon public benefit, or public interest, or great public utility. This was, no doubt, the early doctrine in Massachusetts, as applied to mill acts and drainage acts, and we think the cases show that the doctrine was adopted in other States largely on the authority of the Massachusetts decisions. But, plainly, it has since been repudiated by Massachusetts herself. Something more than mere public benefit must flow from the contemplated use," per Savage, J. 6 Brown v. Ashville Elec. L. Co., 138 N. C. 533, 543, 51 S. E. 62, per Connor, J. 7 In re Rhode Island Suburban Ry. Co., 22 R. I. 457, 461, 48 Atl. 591, 52 L. R. A. 879, per Stiness, J. |