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if not impossible, to give a satisfactory and the general prosperity. There may definition of this power. Freund, on Police arise conflicts in the exercise of these two Power, says:

powers by the respective sovereignties. In “From the mass of decisions, in which

Hoke v. United States, Mr. Justice Mcthe nature of the power has been discussed

Kenna, speaking for the Court, said: and its application either conceded or de

""Our dual form of government has its nied, it is possible to evolve at least two

perplexities, state and nation having differmain attributes or characteristics which dif

ent spheres of jurisdiction, as we have said ; ferentiate the police power; it aims directly

but there must be kept in mind that we are to secure and promote the public welfare,

one people; and the powers reserved to the and it does so by restraint and compulsion.

states and those conferred on the nation are It will be necessary to offer a few general

adapted to be exercised whether independtobservations upon these two points, bearing

ly or concurrently to promote the general in mind that it is not by general statements,

welfare, material and moral.”. but only by a detailed examination of statutes and decisions that the power can be It is believed, and the proposition is now fully understood and defined. Such an ex here advanced, that a business may be of amination will show what has been done and

such nature, carried on under such condiwhat has been approved by experience;

tions, circumstances and obligations to the what has been attempted and has failed; what has been surrendered, and what is

citizens of the state, that under the police aimed at and in process of being accom power of the state, applicable thereto, the plished. It will reveal the police power not state may enact and enforce laws respecting as a fixed quantity, but as the expression of such business, so that the principal comsocial, economic and political conditions.

modity of such business, arising in the state, As long as these conditions vary the police power must continue to be elastic, i. e.,

shall be furnished or supplied to the citizens capable of development."

of the state, living or doing business in the

communities served by such business, to the The Supreme Court of the United States

extent of an adequate service to them, withat different times and in different cases has

in the limits of the supply; if necessary, said of this power that it “is not subject to

even to the extent of the entire supply of definite limitations, but is co-extensive with

the commodity, to the exclusion of citizens the necessities of the case and safeguards of

of other states desiring such commodity; public interest ;" "one of the most essential

and this notwithstanding that a part of such powers, at times the most insistent, and

business is supplying or furnishing to citialways one of the least imitable of the pow

zens of other states such commodity by ers of government;” “it may be said in a

existing means for transporting such comgeneral way, that the police power extends

modity from the source of supply in the to all the great public needs;" “not suscep

state to the point of delivery in other states tible of circumstantial precision;" “this

for sale there to citizens thereof. power can neither be abrogated nor bargained away and is inalienable even by ex- l. If it be said that the proposition as stated press grant.”

amounts to a restriction of the sale of the

commodity into other states, by or through As the commerce clause of the Federal

the means of transportation thereof, it is Constitution is to the nation-essential to

answered that the restriction, if a restricthe nation's national sovereignty—so is the

tion, is one under the police power of the reserved police power to the state essential

state reserved to itself for the general welto the state's sovereignty. And it must be

fare, happiness and prosperity of the people kept in mind that in the exercise of this

of the state; and, further, that the exercise power the public welfare to which the power

of this power for such purpose is not in extends embraces not only health, morals and safety, but also the public convenience

the public convenience 1 (1) 227 U. S. 308.


conflict with the commerce clause or other entire line traversed, and for reasonable provisions of the Federal Constitution re

rates, fixed by themselves or by statute or by specting the flow of commerce through in

contracts or ordinances of municipalities.

*** The rights of the people are thus proterstate channels; or, if it is claimed that

tected in nearly every case where the public interstate commerce is affected thereby, that is served by public service corporations, furit is only affected indirectly and incidentally nishing water, gas, electricity or transportaand not in violation of the provisions of the tions.” Federal Constitution. The demonstration (3) “The public use for which property of the proposition will now be attempted.

may be taken is a public use within the state Let it be assumed, for sake of demonstra

from which the power is derived. It seems

to be an admitted fact generally that the tion, that the commodity either is power or

power inheres in a state for domestic use energy generated by a hydro-electric com only, to be exercised for the benefit of its pany, or natural gas supplied or furnished own people, and cannot be extended merely by one engaged in the business of transport- to promote the public use of a foreign ing or furnishing, or both transporting and furnishing natural gas for public use.

In Grover Irrigation Co. v. Lovella Ditch

| Co., 4 this phase of eminent domain is re(1) The business in each instance deals

viewed and annotated. The following exwith a commodity necessarily and absolutely

cerpts are quoted from the opinion of the needed by the public. True, the commodity

Court: in each instance, when reduced to possession, is a commodity belonging to the owner

"Eminent domain is generally defined as and may be the subject of both intrastate

the right or power of a sovereign state to

appropriate private property to particular and interstate commerce. It is not contend uses, for the purpose of promoting the gened that the state has the power to forbid the eral welfare. It embraces all cases where, sale of such commodity to persons out of

by authority of the state and for the public the state, nor the transportation thereof to

good, the property of the individual is taken points outside the state; on the contrary, it

without his consent, for the purpose of being

devoted to some particular use, either by the is at once conceded that the state does not

state itself or by a corporation, public or have such power.

private, or by a private citizen.' (1 Lewis

on Eminent Domain, 3d Ed., § 1.) In this (2) In each instance the one engaged in

respect the several states are distinct and the business has the right to condemn prop independent of each other, respectively erty for the uses and purposes of the busi- | possessing and exercising the power for ness; this, of course, upon the ground that

| their own purposes or their own public welthe property so condemned will be devoted

fare. “The eminent domain in any sover

eignty exists only for its own purposes.' to public use. In Carnegie Natural Gas

(People v. Humphrey, 23 Mich. 471, 476, Co. v. Swiger,” the Court said:

9 Am. Rep. 94.) “It means nothing more “We observe that the legislature, by gen- I founded on a common necessity and inter

or less than an inherent political right, eral law, has conferred upon pipe line com

est, of appropriating the property of indipanies, organized for transporting oil and

vidual members of the community to the natural gas, the right of eminent domain,

great necessities of the whole community.' and has thereby necessarily imposed upon

(Bloodgood v. Mohawk, etc., R. Co., 18 them, as public service corporations, the

Wend. (N. Y.) 9, 31 Am. Dec. 313.) 'The right and duty of performing a public serv

proper view of the right of eminent domain ice. That right and duty is fixed as firmly

seems to be that it is a right belonging to a as if written into the statute. *** Pipe line

sovereignty to take private property for its companies organized for transporting gas,

own public uses, and not for those of anmust serve the people with gas, under reasonable and proper regulations, along the

(3) Lewis' Eminent Domain.

(4) 21 Wyo. 204, 38 Am. & Eng. Annotated (2) 72 W. Va. 557.

Cases, 1207.

| Dom., 3.d Ed.): U. SNo. 14, etc., alte cam

1 208 1.419 Cov. Cras No. 1nes, 1 Woover,

Alabamnerally that | 974, 10 Antwhe

other. Beyond that there exists no neces for the purpose alone of serving a public sity; which alone is the foundation of the use in another state. (115 Pac. 682, 686. right.' (Kohl v. U. S., 91 U. S. 367, 23 U. See, also, Walbridge v. Robinson, 22 Idaho S. (L. ed.) 449.)

236, 125 Pac. 812, 43 L. R. A. (N. S.] "If the particular improvement or use

240.) * * * will be of sufficient benefit to the people of

"It is said in Nichols on the Power of the state to authorize an exercise of the

Eminent Domain: 'It has been intimated power, it will not be prevented by the fact

that one state cannot condemn property that the people of another state will also be

within its limits for the use of another benefited. (Gilmer v. Lime Point, 18 Cal. 229; Washington Water Power Co. v.

state (citing Kohl v. U. S., supra), and a Waters, 19 Idaho 595, 115 Pac. 682 ; Colum

taking for such a purpose has never received bus Water Works Co. v. Long, 121 Ala.

the sanction of the courts.' (§ 22.) 245, 25 So. 702.) * * * And in the Idaho

“It is also well settled that a state cannot case it was said: 'But where the use for

take or authorize the taking of property or which condemnation is sought is a public

rights in property situated in another state. use in this state, and will serve the citizens

(Nichols on E. Dom., § 19; 1 Lewis on Em. of this state—their demands, necessities and Dom., 3d Ed., § 385, 10 Am. & En. Enc. of industries—the fact that it may incidentally

Law (2d Ed.), 1051; Crosby v. Hanover, also benefit the citizens and industries of a

36 N. H. 404; U. S. v. Ames, 1 Woodb. neighboring state will not defeat the right

& M. 76, 24 Fed. Cas. No. 14, 441; Illinois of condemnation.' ***

State Trust Co. v. St. Louis, etc., R. Co., "In Lewis on Eminent Domain it is said: 208 Ill. 419, 70 N. E. 357.) 'One state can""The public use for which property may

not expropriate for its public purposes prop

erty within the territory of another state.' be taken is a public use within the state from which the power is derived.' (§ 310.)

(McCarter v. Hudson County Water Co., The Supreme Court of Alabama says: 'It

70 N. J. Eq. 695, 65 Atl. 489, 14 L. R. A.

(N. S.) 197, 207, 118 Am. St. Rep. 754, seems to be an admitted fact generally that

774, 10 Ann. Cas. 116, 125.) “The question the power inheres in a state for domestic uses only, to be exercised for the benefit of

has arisen whether, by virtue of the right

of eminent domain, one state can take, or its own people, and cannot be extended

subject to public use, land in another state, merely to promote the public uses of a for

and the decisions have naturally been eign state.' But it was held that the right is not to be denied where public uses are

against such a power.' (Holyoke Water

Power Co. v. Connecticut River Co., 52 subserved in the state granting condemnation, because in connection therewith public

Conn. 570, 575, 20 Fed. 71 79.” uses in another state may likewise be pro

(4) Therefore, it is concluded, in each moted. And the principle was applied in favor of a corporation engaged in supply

instance, that one engaged in the business ing water to two cities in Alabama and one must supply or furnish to the citizens of the city in Georgia, the Court saying: 'While a state, living or doing business in the comstate will take care to use this power for

munities served by such business, under the benefit of its own people, it will not refuse to exercise it for such purpose, be

reasonable and proper regulations, at a fair cause the inhabitants of a neighboring state

and reasonable price therefor, in adequate may incidentally partake of the fruits of its quantities, within the limits of the supply, exercise.' (Columbus Water Works Co. v. the commodity of the business; and such is Long, 121 Ala. 245, 25 So. 702.)

primarily the duty of the one in the busi"In the Idaho case of Washington Water ness—the undertaking with and obligation Power Co. v. Waters, 19 Idaho 595, 608, | to the public. 115 Pac. 682, 686, above cited, the same doctrine was stated, and, while the fact that ! (5) That to acquire performance of such another state might be incidentally benefited | duty does not necessarily deny the sale of was not deemed sufficient to deny condemn- | the commodity to persons outside of the ation for an improvement which would be a public use in Idaho, it was said: 'Condemn- i

state nor the transportation thereof to ation could evidently not be had in this state' points outside the state in contravention of the Federal Constitution. The one engaged thereby making an unfortunate situation for in the business may supply or furnish the himself, as well as the consumers. In either commodity to citizens of both states, or event, interference, if interference at all it transport the commodity to points outside is with interstate commerce, to so require of the state, provided the undertaking to one to keep and perform his undertaking furnish the commodity to the citizens of the with the public of the state, is an indirect state living or doing business in the com and incidental interference and, therefore, munities served by such business, in ade not in violation of federal provisions. quate quantities, within the limits of the supply, is kept and performed within the

(6) It is believed there is a clear distincstate from which the power is derived. If | tion between the proposition stated and the one in the business may partially keep endeavored to be demonstrated and the and perform the undertaking and deny the

proposition arising and decided by the citizens of the state a part of that to which Supreme Court of the United States in they are entitled. why may not such one West v. Kansas Natural Gas Co." entirely deny to such citizens that to which they are entitled? Or, should the demand

Oklahoma enacted a statute prohibiting for the commodity at the point of delivery

the construction of pipe lines for natural out of the state be equal to or greater than

gas or transportation of gas except by the limit of the supply, and the price out

domestic corporations; and then only for side of the state more attractive than the

transportation and delivery of natural gas price within the state, then can one in the

to points within the state; and expressly business deliver the entire supply outside

forbididng the transportation and delivery the state and deny all duty to the public of

to points outside the state. The statute the state? If the one in the business has

came before the Supreme Court of the the right to do the first, why has he not the

United States, assailed as in conflict with right to do the latter? One in the business

the provisions of the Federal Constitution. has not the legal right to do either, for to

The state asserted and largely relied for do so would be to give away, partly or en

defense of the statute upon the proposition tirely, the police power of the state—some

that the statute's “ruling principles is conthing which the state cannot do itself.

servation, not commerce; that the due pro

cess clause is the single issue.” The majorOf course it may be argued that to re

ity of the Court held the statute invalid as quire one in such business to furnish an

interfering with interstate commerce and adequate quantity to the public of the state

not justified as an exercise of the police entitled to be served, within the limits of

power of the state to conserve its natural the supply, would interfere with interstate

resources. commerce in the commodity. Not at all. The quantity delivered to the outside con

(7) The legislature has the power to vest sumer may be less, indeed may be cut off

in the Public Service Commission authority entirely. Whether it is or not may be and jurisdiction to require one exercising dependent upon the attitude of the one in

the power of eminent domain, and serving the business on account of his failure to

a commodity arising in the state to citizens provide adequate facilities to furnish the

of the state and other states, to furnish to public in the state and consumers without

| the public in the state, in the commodity the state; or because he has contracted to served, adequate quantity of the commoddeliver to consumers without the state a ity, within the limits of the supply, under greater quantity of the commodity than he

fair and reasonable regulations. And, it has a supply to furnish the public of the state and the consumers without the state, (5) 221 UL. S. 229.

would seem, it is altogether probable that the states, is merely incidental to the right the Public Service Commission, under the granted; and being merely incidental, will existing law, has now such authority and not, therefore, defeat the primary purpose jurisdiction; and, if I am correct in this of the grant. To require performance of view, the proposed legislation, when enact the primary purpose, therefore, can intered, will be ancillary and supplemental to fere with no higher right than an incidental the present existing statute and more spe

right or benefit, and to require performance cifically directed to one subject to the

of the primary purpose, therefore, cannot power.

be an interference with interstate commerce

nor an unreasonable burden thereon. The power of the legislature to vest such

Bases of Conclusions—The conclusions authority and jurisdiction in the Public

reached in this paper, upon the proposition Service Commission is grounded in the

stated, are based (1) upon the undertaking police power of the state, and can be so

by one who has been granted the power to exercised by the state to promote the gen

exercise and has exercised the right of emeral welfare and prosperity of the state.

inent domain and in consideration for this The courts have repeatedly sustained the

sovereign right, so given and so exercised, authority and jurisdiction of a state com

has undertaken to furnish to the public in

the state from which such power was demission, respecting the performance of duties owed by one, exercising the power of

rived, in the community served, an adequate eminent domain, to the public in the state

quantity of the commodity arising in the

state, within the limits of the supply; and granting the power, notwithstanding that the one so exercising such power is engaged

(2) the exercise by the state of its reserved in an interstate business.

police power to promote the general wel

fare and prosperity of its citizens. The (8) As already pointed out, grant of the conclusion so reached does not necessarily right to exercise the power of eminent do- deny to such a one, in such business, the main is primarily for the benefit of the pub- right to sell such commodity to consumers lic in the state granting the right. The right in other states, nor to deliver such commodto condemn will not be denied, however, ity to connecting organizations at the state because citizens and communities of other line for delivery in other states, provided states will be benefited thereby; comity will that the undertaking with the state granting extend such benefit to citizens and com- the power has been kept and performed. munities of other states, to the extent of supplying their requirements to the fullest

The province of courts is to enforce—not degree, if the one carrying on the business

destroy – obligations and undertakings. can do so and yet perform his undertaking

And when one has undertaken with a state with the state which granted the right, but

to serve the public thereof with a commodthe benefit so extended, as comity between

ity, particularly a natural product of and arising in the state, in exchange for the sov

ereign right conferred on such one to exer6) C. & 0. Railway Co. v. Public Service Com

cise the power of eminent domain, the mission, 75 W. Va. 100, affirmed by United States Supreme Court, U. S. Adv. Ops. 1916, page 234; courts will not destroy that undertaking nor United Fuel Gas Co. v. Public Service Commis

relieve from that obligation. sion, 73 W. Va, 571; Man. Light & H. Co. v. Ott, 215 Fed. 940; Atl. Coast Line R. Co. v. North Car Corp. Com., 206 U. S. 1; Minn. Rate Cases, 230

FRED O. BLUE. U. S. 352; Chicago, M. & St. P. R. R. Co. v. State

Charleston, W. Va. Pub. Com., U. S. Adv. Ops. 1916, page 173.

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