adopted in nearly all the States of the Union, conferring upon the legislature the right to exercise this power, subject to the restriction that the right shall only be exercised for "public use," and upon making just compensation to the owner whose property is appropriated; and in most of the States also statutes are in existence, conferring the right upon telegraph and other electrical companies to condemn necessary property for the construction of their lines, subject to certain legislative restrictions.

§ 272a. Right of eminent domain cannot be delegated.The right of eminent domain cannot be delegated and where a statute confers power upon a telegraph or telephone company to exercise this right, an execution of a lease by such company to another will confer no power upon the latter to exercise the right.8

*

§ 273. Public use What is. It is difficult to formulate a definition of the term "public use." One court has defined it as meaning "public utility, advantage, or what is productive of public benefit." While in another case the court has said: "The term 'public use' is flexible. * * Any use of anything which will satisfy a reasonable public demand for facilities of travel, for transmission of intelligence or commodities, would be a 'public use.'” 10 A public use may be one affecting the whole country in general, independent of any particular community, or it may be one local in character, con

8 Western Union Teleg. Co. V. Pennsylvania R. R. Co., 195 U. S. 594, 46 L. Ed. 332, 25 Sup. Ct. 150.

Olmstead v. Camp, 33 Conn. 532. 10 State, Trenton & New Brunswick Turnp. Co. v. Am. & European Com. N. Co., 43 N. J. L. 381, 1 Am. Elec. Cas. 345, citing Mills, 21. See New Orleans M. & T. R. Co. v. Southern & Atlantic Teleg. Co., 53 Ala. 211; Concord R. Co. v. Greeley, 17 N. H. 47. Mr. Lewis, in his work on Eminent Domain, seems to incline to the view that the words "public use," as used in the pro

vision of the Constitution of a
State, delegating to the legislature
the right of exercising this power,
are to be construed as words of
limitation, and he says: "They
must be construed as limiting the
power
to which they relate.
As the power is by its
nature limited to such purposes as
promote the general welfare, it is
evident that the words 'public use,'
if they are to be construed as a
limitation, cannot be equivalent to
the general welfare or public good."
Lewis on Eminent Domain, § 163.

cerning or benefiting directly only a particular community."1 It would seem that in order to come within the requirements as to "public use," that the use must be one, not merely incidentally of benefit to the public, but one directly subservient to public necessity or convenience, or a use which concerns the whole community in which it exists. 12 In order to render the use public, so that the legislature may be authorized in bestowing the power upon a corporation to appropriate private property, the duty must be expressly imposed upon the company to serve all who make reasonable demands upon 13 it.1 The term "public use" also is variable, and is not confined to what may have been a public use at the time of the framing of the Constitution. The changing conditions, the ever-increasing needs of a growing community or State are continually presenting new demands. 14

§ 273a. Public use What is - For court to determine.Although the necessity or expediency of the exercise of the right of eminent domain is declared to be one for the legislature to determine, yet it is decided in a recent case that the question whether the use proposed is a public or private one is for the courts to determine, independent of the objects expressed in the charter of the corporation claiming to be the recipient of the authority, or of the statute purporting to confer it.15 So it is said that: Whether the use for which it is granted is a public one, must in the end be determined by the court." 16

11 Williams v. School District, 33 Vt. 271.

12 Anderson's Dict. of Law; Century Dictionary.

13 State, Trenton & New Brunswick Turnp. Co. v. Am. & European Com. N. Co., 43 N. J. L. 381, 1 Am. Elec. Cas. 344.

14 State, Trenton & New Brunswick Turnp. Co. v. Am. & European Com. N. Co., 43 N. J. L. 381, 1 Am. Elec. Cas. 345, citing Mills, 21. See also, New Orleans M. & T. R.

Co. v. Southern & Atlantic Teleg. Co., 53 Ala. 211; Concord R. Co. v. Greeley, 17 N. H. 47.

15 Grande Ronde Electrical Co. v. Drake (Oreg. 1905), 78 Pac. 1031.

10 Brown v. Gerald, 100 Me. 351, 61 Atl. 785, per Savage, J. See also Rockingham County Light & P. Co. v. Hobbs, 72 N. H. 531, 58 Atl. 46, 66 L. R. A. 581.

In re Rhode Island Suburban Ry. Co., 22 R. I. 457, 48 Atl. 591, 52 L. R. A. 879.

§ 274. Public use- Telegraph company. In one of the earlier cases, the business of conducting a line of telegraph was said to be a quasi-public employment, one not merely to be exercised for the purpose of private gain, but for the general benefit and welfare of the community.17 The owner or manager of such a line becomes a voluntary agent or servant of the public. There can be no discrimination, but he must serve all alike, who make demands upon the company for the service which it undertakes to render. 18 This service being of a public nature, 19 one which the company operating the business, must render to all who desire the benefit thereof — it naturally follows that the business of operating such a line is a public use, and that the use of the streets or highways or the appropriation of private property for the construction and operation of such a líne is for a public use.20 "That the tele

17 Ellis v. American Teleg. Co., 13 Allen (Mass.), 226; Allen's Teleg. Cas. 312, per Bigelow, C. J., cited in True v. International Teleg. Co., 60 Me. 9, Allen's Teleg. Cas. 537.

18 Gray v. Western Un. Teleg. Co., 87 Ga. 350, 3 Am. Elec. Cas. 622, 623; 13 S. E. 562; Ellis v. American Teleg. Co., 13 Allen (Mass.), 226, Allen's Teleg. Cas. 312; Passmore V. Western Un. Teleg. Co., 78 Penn. St. 242, 1 Am. Elec. Cas. 171, per Hare, C. J. "Telegraph companies exercise a public employment which imposes upon them duties to the public, which give to every person the right to have their services in the transmission of proper messages, upon payment of the requisite consideration, and this public duty creates an obligation, honestly and faithfully to perform that duty." Gulf, Col. & S. F. R. Co. v. Levy, 59 Tex. 542, 1 Am. Elec. Cas. 549, per Stayton, Ass. J.

19 True V. International Teleg. Co., 60 Me. 9, Allen's Teleg. Cas. 530, per Kent, J.; Western Un. Teleg. Co. v. Guernsey & Scudder

Elec. L. Co., 46 Mo. App. 120, 3 Am. Elec. Cas. 420; State v. Central N. J. Teleph. Co., 53 N. J. L. 341, 3 Am. Elec. Cas. 546, 21 Atl. 460; Pearsall v. Western Un. Teleg. Co., 124 N. Y. 256, 3 Am. Elec. Cas. 724, 26 N. E. 534, per Fol lett, C. J.

20 Pierce v. Drew, 136 Mass. 75, 1 Am. Elec. Cas. 571. See also Alabama: New Orleans, Mobile & Tex. R. Co. v. Southern & Atlantic Teleg. Co., 53 Ala. 211, 1 Am. Elec. Cas. 190. Arkansas: Western Un. Teleg. Co. v. Short, 53 Ark. 434, 3 Am. Elec. Cas. 592, 14 S. W. 649. New Jersey: State, Trenton & New Brunswick Turnp. Co. v. Amer. ican & European News Co., 43 N. J. L. 381, 1 Am. Elec. Cas. 343. New York: Eels V. American Teleph. & Teleg. Co., 143 N. Y. 133, 62 N. Y. St. R. 138, 38 N. E. 202, 5 Am. Elec. Cas. 92. Virginia: Western Un. Teleg. Co. v. Reynolds, 77 Va. 173, 1 Am. Elec. Cas. 487; Western Un. Teleg. Co. v. Williams, 86 Va. 696, 3 Am. Elec. Cas. 184, 11 S. E. 106.

graph is a public use, and the business of telegraphy is obviously a public business, is well established. It is a quasipublic employment, one not merely exercised for the purpose of private gain, but for the general benefit and welfare of the community. A telegraph company is a public servant, which must serve all alike who make demands upon it, and its right to exercise the power of eminent domain is recognized by our statutes and by numerous decisions of the courts.'

" 21

22

§ 275. Public use Public use Telephone company. The telephone is now regarded as a new means or species of telegraph.2 The application of the vocal method of transmission of intelligence and news, while a change in detail, is not one in substance of the business for which telegraph companies were granted corporate rights; 23 and the rule that common carriers and telegraph companies are bound to serve the public impartially, applies in the same degree to telephone companies.24 Likewise they are both services of a public nature and come within the requirement of a public use.2

25

§ 276. Public use-Electric light company. The planting of necessary poles and stringing of wires for the purposes of street lighting and supplying light to citizens is one of the uses to which the streets of a city may be devoted, and is a public use. So in a recent case in New York, it is decided

26

21 Postal Teleg. Cable Co. v. Oregon S. L. R. Co., 23 Utah 474, 65 Pac. 735, 738, per Hall, J., citing Rev. St. 3588, subsec. 8; Joyce Elec. Law, § 274; Lewis Em. Dom., § 172.

22 American Teleph, & Teleg. Co. v. Pearce, 71 Md. 535, 18 Atl. 910; Central Penn. Teleph. & Supply Co. v. Wilkesbarre & West Side Ry. Co., 11 Penn. Co. Ct. Rep. 417, 4 Am. Elec. Cas. 262.

23 State, Duke v. Central N. J. Teleph. Co., 53 N. J. L. 341, 3 Am. Elec. Cas. 549, 21 Atl. 460.

24 Central Un. Teleg. Co. V. Swoveland, 14 Ind. App. 341, 42 N. E. 1035; Louisville Transfer Co. v. Am. Dist. Teleph. Co. (Louisville

Ch. Ct.), 1 Ky. L. 144, 1 Am. Elec.
Cas. 305.

25 Irwin V. Great Southern
Teleph. Co., 37 La. Ann. 63, 1 Am.
Elec. Cas. 709; State, Duke V.
Cent. N. J. Teleph. Co., 53 N. J.
L. 341, 3 Am. Elec. Cas. 546, 549,
21 Atl. 640; Readfield Teleph. &
Teleg. Co. v. Cyr, 95 Me. 287, 49
Atl. 1047, 7 Am. Elec. Cas. 820, 822;
State ex rel. Laclede Gas L. Co. v.
Murphy (Mo., 1895), 5 Am. Elec.
Cas. 82, per Macfarlane, J.

26 Levis v. Newton, 75 Fed. 884; State ex rel. St. Louis Underground Service Co. v. Murphy, 134 Mo. 548, 34 L. R. A. 369, 34 S. W. 51, 6 Am. Elec. Cas. 77. per Mac

that the furnishing of electricity for the use of the inhabitants in a thickly settled and extensive territory for illuminating purposes, and for the use of extensive street surface railroads, constitute a public use within the definition of that term as used with reference to the right of eminent domain.27

$277. Public use Subway. It is held that the construction of a subway under city streets, which upon its completion is to be leased to a street railway company for the purpose of carrying passengers of the company, is for public use, and that the legislature has power under the Constitution to order taxation for the same. 28 But where a city undertook to make an exclusive grant to a company of the right to construct a subway for the purpose of placing the wires of electrical companies therein, giving such company the exclusive control and management of the same for a period of fifty years, the court, although the company contended that it was under the or dinance declared to be a common carrier, and that its employment was of a public nature, held that it was not for a public use, and that only a private business was contemplated.29 The subway in this case was held to be merely an instrumentality for private gain, by the means of which others might subserve the public interest. It was declared that it was the electric wires, the uses of which were of a public character and not the subway, and the court held that a single instrument, though a necessary part of a public work, is not a public instrumentality, for the manufacture of which the power of eminent domain could be exercised, even by the State. In a later case, however, in this State, this decision was overruled, it being declared that such a corporation is not a mere private one for personal gain only, but that the business in which it is engaged is for the benefit of, and used for the benefit of, the general public, and that the use of the streets by a company of this character for such a purpose is a public one.30

farlane, J. But see McLean v. Brush Elec. Lighting Co., 9 Cin. Law Bull. 65, 1 Am. Elec. Cas. 483. 27 In re Niagara L. & O. Power Co. (N. Y. App. Div., 1906), 97 N. Y. Supp. 853.

28 Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610.

29 State ex rel. St. Louis Underground Service Co. v. Murphy, 134 Mo. 548, 34 L. R. A. 369, 34 S. W. 51, 6 Am. Elec. Cas. 64.

30 State ex rel. National Subway Co. v. St. Louis, 145 Mo. 551, 46 S. W. 981, 7 Am. Elec. Cas. 195.