company, irrespective of the enjoyment of that right, is already in the service of the public; since private property can by the provisions of most of our constitutions be taken by eminent. domain only for a public purpose.

In at least one early case it was doubted whether the operation of a railroad was such a public enterprise as to justify the giving of eminent domain to it. In that case, Raleigh & Gaston Railroad v. Davis, it was finally decided that the right might be granted to the company, Chief Justice Ruffin disposing of the matter thus: "Upon the supposition that the legislature may take the property to the public use, it is next said that this taking is not legitimate, because the property is bestowed on private persons. It is true that this is a private corporation, its outlays and emoluments being individual property; but it is constituted to effect a public benefit by a means of a road, and that is publici juris. In earlier times, there seems to have been a necessity upon governments, or at least it was a settled policy with them, to effect everything of this sort by the direct and sole agency of the government. The highways were made by the public, and the use was accordingly free to the public. The government assumed the exclusive direction as well as authority, as if they chose to be seen and felt in everything, and would avoid even a remote connection between private interests and public institutions. An immense and beneficial revolution has been brought about in modern times by engaging individual enterprise, industry, and economy in the execution of public works of internal improvement. The general management has been left to individuals, whose private interests prompt them to conduct it beneficially to the public; but it is not entirely confided to them. From the nature of their undertaking and the character of the work, they are under sufficient responsibilities to insure the construction and preservation of the work, which is the great object of the govern

1 Raleigh & Gaston Ry. v. Davis, 2 Dev. & Bat. (N. C.) 451 (1837).

ment. The public interest and control are neither destroyed nor suspended. The control continues as far as it is consistent. with the interests granted, and in all cases as far as may be necessary to the public use. The road is a highway, although the tolls may be private property by force of the grant of the franchise to collect."

§ 43. Pipe lines as an example.

Upon the same principle it has been held that the right of taking property by eminent domain may be conferred upon a pipe line system. The right having been conferred by the legislature, the act was attacked as unconstitutional, because the taking was not for a public purpose.

In a West Virginia case,2 Mr. Justice Moore said upon that point: "It has been decided, time and time again, and is therefore settled by the best authority, that the construction of railroads, turnpikes, canals, ferries, telegraphs, wharves, basins, etc., constitutes what is generally known by the name of internal improvements, and gives occasion for the exercise of the right of eminent domain. And other measures of general utility in which the public at large are interested, and which require the appropriation of private property, are within the power where they fall within the reasons underlying the cases mentioned. The charter granted to the West Virginia Transportation Company by special enactment of the legislature, shows that the object was to construct a line for the transportation of petroleum. The charter also established the maximum charges the company should make for transportation of oils. I cannot see the propriety of admitting a railroad or canal or aqueduct to be an internal improvement, and declare this tube highway not to be."

2 West Virginia Co. v. Volcanic Co., 5 W. Va. 382 (1872).

3 See, also, Columbia Conduit Co. v. Com., 90 Pa. St. 307 (1879); W. Va. T. Co. v. Ohio R. Pipe Line Co., 22 W. Va. 600, 46 Am. Rep. 527 (1883).

44. Cemeteries as an example.

When the power of eminent domain is conferred on a private corporation, public necessity, it is clear, must be proved in every case; but public service must be shown also. Unless the management of the enterprise undertake to serve all that apply upon reasonable conditions, the public have no interest in the promotion or conduct of the enterprise, its success or failure; and in such a case the Constitution forbids the taking of private property. An unusual decision in point is the case of Evergreen Cemetery Association v. Beecher, which arose out of a complaint asking leave to take land for burial purposes by the right of eminent domain.

4

In sustaining a demurrer to the petition, Mr. Justice Pardee discussed the general problem along these lines: "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. Corporations take land by right of eminent domain primarily for the benefit of the public, incidentally for the benefit of themselves. As a rule men are not allowed to ride in cars, or pass along turnpikes, or cross toll-bridges, or have grain ground at

453 Conn. 551, 5 Atl. 353, B. & W. 26 (1885).

the mill, without making compensation. One man asks and pays for a single seat in a car; another for a special train; all have rights; each pays in proportion to his use; and some are excluded because of their inability to pay for any use; nevertheless, it remains a public use as long as all persons have the same measure of right for the same measure of money.

"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." 5

$45. Aid from taxation.

The basis of the right of public regulation is often said to be the receipt by the regulated company of aid from taxation. It is doubtless true, in general, that a business which receives public aid from taxation is a public business, and is subject to public regulation; but again the effect has been taken for the cause. Under our Constitutions State aid can be granted only for a public purpose; the public character of the enterprise does not result from the grant of State aid, for it must precede it in order to make the grant valid. "The general grant of legislative power in the Constitution of a State does not enable the legislature, in the exercise either of the right of eminent domain or

5 These cases, among others, show the public character of public cemeteries: Oakland Cemetery v. St. Paul, 36 Minn. 529, 32 N. W. 78 (1887); Re Deansville Cemetery Assn., 66 N. Y. 569, 23 Am. Rep. 86 (1876); Henrý v. Trustees, 48 Ohio St. 671, 30 N. E. 1122 (1892); Cemetery Assn. v. Redd, 33 W. Va. 262, 10 S. E. 405 (1889).

of the right of taxation, to take private property without the owner's consent, for any but a public object. Nor can the legislature authorize counties, cities or towns to contract, for private objects, debts which must be paid by taxes." 6

It is only on the ground that the railroad is employed in the public service that it may receive State aid from taxation. "It was said that roads, canals, bridges, navigable streams and all other highways had in all times been matter of public concern; that such channels of travel and of the carrying business had always been established, improved, regulated by the State, and that the railroad had not lost this character because constructed by individual enterprise, aggregated into a corporation. We are not prepared to say that the latter view of it is not the true one especially as there are other characteristics of a public nature conferred on these corporations, such as the power to obtain right of way, their subjection to the laws which govern common carriers, and the like, which seem to justify the proposition." 7

§ 46. Irrigation canals as an example.

Whenever, therefore, the propriety of the grant of State aid to a corporation is in question, the inquiry always is whether the business conducted by the grantee is affected by a public interest. It would be an obviously absurd method of solving the problem to say that the business is made public by the grant of State aid, and therefore the grant of State aid is justifiable as the business has been proved to be public. The courts therefore wish to know from some external tests whether the business is public in character. Thus, in the case of Fallbrook Irrigation District v. Bradley, it was claimed that a statute by which

6 Gray, J., in Cole v. La Grange, 113 U. S. 1, 6, 28 L. Ed. 896 (1885).

7 Miller, J., in Loan Association v. Topeka, 20 Wall. (U. S.) 655, 658, 22 L. Ed. 455, 460 (1874).

8 164 U. S. 112, 41 L. Ed. 369, 17 Sup. Ct. 56 (1896).