Consolidated Channel Co. v. Central Pacific Railroad

By the Court, Niles, J.: The plaintiff, by this proceeding, sought to procure, by condemnation, certain lands belonging to the several defendants, to serve as a site for a bed-rock flume to carry the dirt and gravel from its mining claims; and also as a place of deposit for the tailings and refuse matter from its claims.

The demurrer raises the question of the constitutionality of subdivision five of section one thousand two hundred and thirty-eight of the Code of Civil Procedure, authorizing proceedings of this character.

This statute provides that the right of eminent domain may be exercised in behalf of certain enumerated public uses, and in subdivision five names, among other things, “tunnels, ditches, flumes, pipes and dumping-places for working mines; also outlets, natural or otherwise, for the flow, deposit or conduct of tailings or refuse matter from the mines.”

It is clear, from the averment of the complaint, that the object sought is the appropriation of the private property of the defendants to the private use of the plaintiff. The proposed flume is to be constructed solely for the purpose of advantageously and profitably washing and mining plaintiff’s mining ground. It is not even pretended that any person other than the plaintiff will derive any benefit whatever from the structure when completed. No public use can possibly be subserved by it. It is a private enterprise, to be conducted solely for the personal profit of the plaintiff, [272]and in which the community at large have no concern. It is clear that this case does not come within the meaning of that clause of the Constitution which permits the taking of private property for a public use after just compensation made.

In the case of Loan Association v. City of Topeka (20 Wall. 655), the defendant, acting under the authority of an act of the Legislature of Kansas, had issued certain bonds to the plaintiff as a donation to encourage that company in its design of establishing a manufactory of iron bridges in that city. The act gave to the city council “power to encourage the establishment of manufactories, and such other enterprises as may tend to develop and improve such city, either by direct appropriation from the general fund, or by the issuance of bonds of such city in such amounts as the council may determine.”

The court held that the purpose for which the bonds , were issued was not of a public character; that the statute authorizing their issue was unconstitutional and void, and that no lawful tax could be levied for their payment. Mr. Justice Miller said, in announcing the opinion of the court: ■ “If it be said that a benefit results to the local public of a town by establishing manufactures, the same may be said of any other business or pursuit which employs capital or labor. The merchant, the mechanic, the innkeeper, the banker, the builder, the steamboat owner, are equally promoters of the public good, and equally deserving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the public treasury to the importunities of two-thirds of the business men of the city or town.”