Opinion
No. 5154.
July 6, 1929.
PETITION for Writ of Mandamus. Writ heretofore issued quashed.
N.D. Wernette, for Plaintiffs.
In the case of McLean v. District Court, 24 Idaho 441, 460, Ann. Cas. 1915D, 542, 134 P. 536, the court said: "There are allegations in the petition, and argument was made upon the hearing, to the effect that the railroad company was not organized for the purpose of serving the public, but was organized for the sole purpose of carrying lumber and logs for personal use, and that there was to be no public use when the railroad was completed and put in operation. The company was organized under the laws of the state and for a public use, and under the constitution of this state, sec. 5, art. 11, that all railroads are public highways and common carriers, which brings it within the constitutional and statutory requirement that all railroads are to be public highways and common carriers 'subject to legislative control,' and it matters not what the intention of the corporation is or may be, it is made a common carrier by the constitution, and if the railroad company refuses to perform any of the duties it owes to the public, it may be compelled to act, and if it fails to operate its road, the property condemned reverts to the owner of the freehold."
In said case you will note that the supreme court expressly stated that "it matters not what the intention of the corporation is or may be, it is made a common carrier by the constitution," and that "all railroads are to be public highways and common carriers, 'subject to legislative control.' "
And said decision was with reference to one of these logging railroads, so called, similar to the one in question. ( Conholly v. Woods, 13 Idaho 591, 92 P. 573; Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho 556, Ann. Cas. 1918A, 189, 155 Pac. 680.)
The Blackwell Lumber Company, to all intents and purposes, was identical to the McGoldrick Lumber Co., the defendant herein. It was an ordinary lumber company seeking the right of eminent domain, not incorporated as a regular railroad corporation, but in fact did construct and operate a railroad. We desire to call your particular attention to the language used by the court in said decision when it said: "No doubt, under the provisions of said section of the constitution, the logging railway purposed would be required to haul logs of other land owners along its line, provided such land owners delivered their logs to the railroad for transportation."
Robert H. Elder and Randall Danskin, for Defendant.
Unlike most states in the Union, there are two purposes for which eminent domain may be exercised under the Constitution of Idaho. Under art. 11, sec. 5, all railroad corporations organized as such are guaranteed that right. Under Const., art. 1, sec. 14, all persons or corporations may exercise the right for the development of the material resources of the state. With these two constitutional provisions it was quite natural that the supreme court of Idaho would early in its history be called upon to decide between two conflicting lines of decisions dealing with the right of eminent domain, the one line of decisions adhering strictly to the doctrine of a public benefit. The supreme court of Idaho has adopted the latter rule. ( Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 118 Am. St. 233, 88 P. 426; Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho 556, Ann. Cas. 1918A, 189, 155 P. 680; 20 C. J. 553.)
It was quite obvious that if the power of eminent domain could be exercised by persons or corporations for the purpose of developing the material resources of the state of Idaho, and if as said by Judge Sullivan in the case of Potlatch Lumber Co. v. Peterson: "It is enough if the taking tends to enlarge the resources, increase the industrial energies and promote the productive power of any considerable part of the inhabitants of a section of a state or leads to a growth of towns and the creation of new channels for the employment of private capital and labor as such results indirectly contribute to the general prosperity of the whole community," — that the exercise of the right of eminent domain in Idaho under art. 1, sec. 14, would not make a person or corporation exercising that right a common carrier or public utility, and whenever the question has come before the courts of Idaho they have held that the exercise of the right of eminent domain in Idaho does not make a company a public utility.
In Nampa Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 Pac. 75, the contention was made that an irrigation district was a public utility and a common carrier of water, one of the reasons being because it could exercise the power of eminent domain and in that connection the court said:
"It is true as has been suggested that a corporation such as the appellant is may exercise the power of eminent domain, but it must be remembered that in Idaho, the right to take private property for a public use, upon just compensation therefor, does not of necessity constitute a corporation invested with that right a public service corporation in the sense that the public may exact any service from it." ( Potlatch. Lumber Co. v. Peterson, supra.)
In the case of Washington Water Power Co. v. Montana Power Co., Public Utilities Reports, 1916E, 144, 3 I. P. U. C. 96, the Idaho Public Utilities Commission said: "The right of eminent domain, however, is not conclusive that the person exercising it is a public utility and as such under the jurisdiction of this commission."
E.W. Wheelan, Amicus Curiae.
The courts have held that to compel one to devote his private property to a public use and to make a common carrier of one devoting his private property to his private use violates the due process of law clause of the fourteenth amendment to the United States Constitution. ( Associated Pipe Line Co. v. Railroad Commission of Calif., 176 Cal. 518, 169 P. 62, L.R.A. 1918C, 849; Producers' Transp. Co. v. Railroad Commission of Calif., 251 U.S. 228, 40 Sup. Ct. 131, 64 L. ed. 239; Chicago, B. Q. R. Co. v. Illinois, 200 U.S. 561, 4 Ann. Cas. 1175, 26 Sup. Ct. 341, 50 L. ed. 596; Northern Pac. R. Co. v. North Dakota, 236 U.S. 585, Ann. Cas. 116A, 1, 35 Sup. Ct. 429, 59 L.ed. 735, L.R.A. 1917F, 1148, P. U. R. 1915C, 277.)
Tannahill Leeper, Amici Curiae.
The term "railroad companies" as used in Const., art. 2, secs. 5 and 6, refers only to the legal entity engaged in the common carriage of persons or property for compensation, and the term "railroad" as used therein signifies only the physical structure and equipment used in such transportation by the railroad company. Neither a lumber company operating a private logging railroad for its own private purposes nor its physical facility falls within the purview of the sections.
This is a legitimate conclusion from the context of the Constitution itself. (Const., art. 2, secs. 5, 6.)
This was the intent of the framers of the Constitution. (Idaho Const. Debates, p. 660 et seq., particularly pp. 875, 876, 880, 881 and 882.)
All legislatures of the state have accepted and used these terms in this significance, prior to, contemporaneous with and subsequent to the adoption of the Constitution. This construction by the legislature is of impelling weight. ( Board of Railroad Commrs. v. Market Street By. Co., 132 Cal. 677, 64 P. 1065; Cooper Mfg. Co. v. Ferguson, 113 U.S. 727, 733, 5 Sup. Ct. 739, 28 L. ed. 1137, 1138; 1923 Sess. Laws, p. 103; 1925 Sess. Laws, p. 133.)
This construction of terms "railroad company" and "railroad" comes from the common law. ( Murch v. Concord Railroad Corp., 29 N.H. 9, 61 Am. Dec. 631; Coe v. New Jersey etc. R. R. Co., 28 N.J. Eq. 100; Sanford v. Catawissa etc. R. R. Co., 24 Pa. St. 378, 380, 64 Am. Dec. 667; Clarke v. Rochester, 24 Barb. (N.Y.) 446, 484.)
This cause was formerly before this court on the question of the sufficiency of the petition (mandate) which was there sustained. ( Codd v. McGoldrick, 46 Idaho 256, 267 P. 439), and is now before us for determination upon the merits, evidence responsive to the issues having been introduced before a district judge to whom the matter was referred for that purpose, the question being whether the evidence shows that the defendant should be held to be a common carrier of logs and compelled to operate as such.
The evidence shows without conflict that, for the purpose of securing the right of way through the village of Tensed and over variously privately owned farms, and across and along the highways of Benewah county, the company represented and offered that after construction it would haul, in carload lots, cordwood and the products of the farmers living adjacent to the right of way, providing the same could be done by private contract and without the defendant becoming a public carrier. At all times, though, defendant's officers and agents on the ground took the position that it would not haul logs under any terms or conditions. The defendant, in one instance, exercised the right of eminent domain to secure a portion of its right of way, a decree therein being entered in its favor after an award by commissioners under statutory proceedings.
Though no farm products have been offered for transportation, the company, through its officers, indicated at the trial that it would not haul anything for anyone.
At the time defendant was securing its right of way it represented to some of the farmers in the locality that it would furnish the materials for sidings if the farmers would construct such sidings. No sidings have been constructed, nor has defendant furnished materials for the same.
At the trial defendant urged that it had no facilities for carrying freight, since it owned only one engine and one car on which was a log loader; also that it had no facilities for loading or hauling cars for other log shippers.
Defendant built this logging road in connection with its business as a lumber company and has never operated the road as a common carrier. Is the situation above detailed, combined with the fact that the defendant exercised the right of eminent domain, sufficient to authorize a judicial determination that it is a common carrier?
In the recent case of Michigan Public Utilities Commission v. Duke, 266 U.S. 570, 45 Sup. Ct. 191, 69 L. ed. 445, 36 A.L.R. 1105, the supreme court of the United States said:
"It is beyond the power of the state by legislative fiat to convert property used exclusively in the business of a private carrier into a public utility, or to make the owner a public carrier, for that would be taking private property for public use without just compensation, which no state can do consistently with the due process of law clause of the 14th Amendment."
Art. 1, sec. 14, of the Idaho Constitution is as follows:
"The necessary use of lands for the construction of reservoirs or storage basins, for the purpose of irrigation, or for rights of way for the construction of canals, ditches, flumes or pipes to convey water to the place of use, for any useful, beneficial or necessary purpose, or for drainage; or for the drainage of mines, or the working thereof, by means of roads, railroads, tramways, cuts, tunnels, shafts, hoisting works, dumps, or other necessary means to their complete development, or any other use necessary to the complete development of the material resources of the state or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the state.
"Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor."
In McLean v. District Court, 24 Idaho 441, Ann. Cas. 1915D, 542, 134 P. 536, the Renfro Creek Railroad, seeking to exercise the right of eminent domain, was a railroad company organized as such. The court found that the land sought therein was for use by the railroad in its business as a common carrier and that the company would operate and maintain said railroad as a common carrier. Therefore, while the court commented on the contention urged that the railroad was organized for the sole purpose of carrying logs for its own use, the finding that the railroad was organized and proceeding as a railroad, and as such was a common carrier under the statutes and the Constitution, did not decide the question involved here.
Such also was the case in Connolly v. Woods, 13 Idaho 591, 92 Pac. 573. The court therein decided that the Idaho Northwestern Railway was a railroad corporation and as such a common carrier, and hence it was unnecessary to decide whether, if it were not, it would still have the right to exercise the right of eminent domain.
In Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho 556, Ann. Cas. 1918A, 189, 155 P. 680, the Blackwell Lumber Company evidently, in its organization, similar to the defendant, offered to haul the lumber of the Empire Mill Company through whose holdings it sought to condemn a right of way. The Blackwell Company evidently considered such an offer a necessary prerequisite for exercising the right of eminent domain and the court, citing the McLean case, indicated that the company could be compelled to haul the products of others in view of the fact that it had availed itself of the right of eminent domain. The court indicated that a logging road of the kind under consideration probably did not come within the provisions of art. 11, sec. 5, of the Idaho Constitution, providing that all railroads shall be common carriers and public highways. In other words, a logging railroad was not a railroad as contemplated by that section. (See, also, "Proceedings and Debates," Idaho Constitutional Convention, vol. 1, pp. 821, 874.) Furthermore it is to be noticed that in the Blackwell case Justice Budge concurred merely in the conclusion reached, while Justice Morgan dissented. It cannot be said, therefore, that the opinion as written by Justice Sullivan was a holding that before eminent domain could be exercised by a lumber company, such organization had to submit to becoming a common carrier.
In Potlatch Lumber Co. v. Peterson, 12 Idaho 769, 118 Am. St. 233, 88 P. 426, which did not involve the building of a railroad but of a boom and dam, Justice Sullivan, discussing the exercise of the right of eminent domain, said that under art. 1, sec. 14, of the Constitution, supra, "it is enough if the taking tends to enlarge the resources, increase the industrial energies and promote the productive power of any considerable part of the inhabitants of a section of the state, or leads to the growth of towns and the creation of new channels for the employment of private capital and labor, as such results indirectly contribute to the general prosperity of the whole community. . . . .
"There is no doubt when a person or corporation exercises the power of eminent domain, he or it assumes certain obligations to the public, and the grant of the right of eminent domain carries with it the right of public supervision and reasonable control. The improvement of said river is not for the use of respondent alone, although under the conditions which exist it may be more benefited than others."
The concurrence by Stockslager, C.J., in the conclusion and Ailshie, J., does not necessarily mean that they concurred in the above statements, since they could have concurred in the conclusion that the lumber company had the right of eminent domain for its sole and exclusive use on other grounds, the only question being whether the complaint stated a cause of action authorizing the company to exercise the right of eminent domain.
Whether the dissertation on the right of eminent domain found in this case was the thought of the entire court is, due to the limited concurrences, perhaps questionable, but it is harmonious with the ideas expressed in the Constitutional Convention.
When art. 1, sec. 14, supra, was under consideration by the Constitutional Convention, the debates clearly showed that there were two questions at issue in connection therewith; 1st, whether in connection with the right of eminent domain, the Constitution could declare uses therefore generally considered private to be public uses, and 2d, whether such a declaration should be made. The discussions with reference to this question, the amendments made and the final vote show clearly that it was the intention of the Convention to do both. ("Proceedings and Debates," Idaho Constitutional Convention, vol. 1, pp. 288-367, and vol. 2, pp. 1596-1633.)
As to irrigation and mining, the section itself shows, and similar provisions have been construed to mean, that it confers the right to condemn for individual use on the theory that the development of individual property tends to the complete development of the entire state. ( Clark v. Nash, 198 U.S. 361, 4 Ann. Cas. 1171, 25 Sup. Ct. 676, 49 L. ed. 1085; Strickley v. Highland Boy Gold Min. Co., 200 U.S. 527, 4 Ann. Cas. 1174, 26 Sup. Ct. 301, 50 L. ed. 581; Lake Koen Irr. Co. v. Klein, 63 Kan. 484, 65 P. 684.) This court has previously held that under the Constitution, the exercise of the right of eminent domain did not impress irrigation or mining with the obligation of rendering service to the public as a public corporation. ( Nampa Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 Pac. 75; Marsh Mining Co. v. Inland Empire Co., 30 Idaho 1, 165 Pac. 1128.) Unless the Convention intended by the last clause in the first paragraph to extend a similar right to any other use necessary to the complete development of the material resources of the state, such phrase is meaningless, inasmuch as the condemnation of property for a use recognized as public by the common law, that is, a use by the public or directly for the public, was specified by the second paragraph. No logical distinction based on the Constitution can be drawn between irrigation and mining, and logging.
The right of eminent domain is an attribute of sovereignty. Fundamentally, there are no restrictions on the exercise of this power. That is, property may be taken under eminent domain proceedings for any purpose the sovereign chooses. ( Potlatch Lumber Co. v. Peterson, supra; State v. Superior Court, 77 Wn. 585, 137 P. 994.)
In some of the western states it was seen at an early date that a local situation, particularly in connection with irrigation, required that it would be necessary, in some cases, to permit the taking of private property for individual use though thereby a general ultimate benefit would indirectly accrue to the public. For instance, art. 2, sec. 14, of the Colorado Constitution provides that private property shall not be taken for private uses except for private ways of necessity, reservoirs, drains, flumes or ditches for agricultural, mining, milling, domestic or sanitary purposes. The next section of the same article provides for the taking of property for public uses.
Our Constitution was written and must be interpreted in the light of this historical background.
Article 1, sec. 14, contains two paragraphs. The second paragraph is a simple expression of the general rule found in the Constitution of practically every state that private property may be taken for public uses on payment of a just compensation. In a word, this second paragraph expresses the whole law of eminent domain as it had developed in this country prior to 1850 or about the time that some of the western states began to write their Constitutions. It covered the whole field of public uses and left open to be determined by the courts the question of what constituted a public use.
With the development of irrigation and mining in the west, however, it soon became apparent that the judicial definition of a public use, as it had been defined up to that time, was too narrow for the necessities of this region. To meet the exigencies of this situation, the definition of a public use was broadened by constitutional fiat. The first paragraph of art. 1, sec. 14, of our Constitution is an expression of this policy.
What are the implications of this expanded definition of a public use as declared by our Constitution? Does the phrase "public use" mean only a use that is generally available to the public, or has it a wider connotation? In providing that the use of land for ditches, dumps, tunnels and hoisting works was to be a public use, it seems reasonable to assume that it was not intended thereby to grant the use of such facilities to any user thereof, other than the owner, who might be willing to pay a reasonable rate for the privilege. It certainly was not intended to make an individual ditch a public facility. The same is likewise true of any other use that might come under the general phrase, "for the complete development of the material resources," etc. The uses which the authors of that paragraph had in mind were individual uses, — uses affected with a public interest, it is true, but essentially and legally individual. When they wrote "public uses," they meant certain individual uses affected with a public interest. It was under this particular provision that the McGoldrick Lumber Company acted in exercising the right of eminent domain in the construction of its railroad.
The question of the right of eminent domain for logging roads or similar plant facilities has been considered in numerous cases listed in the note below. In none of the jurisdictions indicated were there constitutional provisions like our own. Conceding that many of such cases have decided that the right of eminent domain may not be exercised for a logging road to be used solely and exclusively by the owner thereof, such cases cannot be considered as controlling in view of the special wording of our Constitution.
Hairston v. Danville R. Co., 208 U.S. 598, 13 Ann. Cas. 1008, 28 Sup. Ct. 331, 52 L. ed. 637; North Carolina Pub. Service Co. v. Southern Power Co., 282 Fed. 837; Pacific Spruce Co v. McCoy, 294 Fed. 711; Weidenfeld v. Sugar Run Co., 48 Fed. 615; Colorado E. Ry. Co. v. Union Pac. Ry. Co., 41 Fed. 293; Denver B. L. C. Co. v. Union Pacific Co., 34 Fed. 386; Inspiration Copper Co. v. New Keystone Co., 16 Ariz. 257, 144 P. 277; Ozark Coal Co. v. Pennsylvania R. R. Co., 97 Ark. 495, Ann. Cas. 1912D, 1000, 134 S.W. 634; Amador Min. Co. v. Dewitt, 73 Cal. 482, 15 P. 74; Sutter County v. Nicols, 152 Cal. 688, 14 Ann. Cas. 900, 93 P. 872, 15 L.R.A., N.S., 616; Madera Ry. Co. v. Raymond Granite Co., 3 Cal.App. 668, 87 P. 27; People v. District Court of Pitkin Co., 11 Colo. 147, 17 Pac. 298; Connecticut College for Women v. Culvert, 87 Conn. 421, 88 Atl. 633, 48 L.R.A., N.S., 485; Dawkins Lumber Co. v. Carpenter, 213 Ky. 795, 281 S.W. 1013; Riley v. Louisville B. Co., 142 Ky. 67, Ann. Cas. 1912D, 230, 133 S.W. 971, 35 L.R.A., N.S., 636; Kansas City etc. Ry. Co. v. Louisiana W. Ry. Co., 116 La. 178, 7 Ann. Cas. 831, 40 So. 627, 5 L.R.A., N. S., 512; Paine v. Savage, 126 Me. 121, 51 A.L.R. 1194, 136 Atl. 664; Albright v. Sussex Lake etc. Commission, 71 N.J.L. 303, 108 Am. St. 749, 2 Ann. Cas. 48, 57 Atl. 398, 69 L.R.A. 768; Rhyne v. Flint Mfg. Co., 182 N.C. 489, 109 S.E. 376; Cozard v. Kanawha Hardwood Co., 139 N.C. 283, 111 Am. St. 779, 51 S.E. 932, 1 L.R.A., N.S., 969; Bridal Veil Lumbering Co. v. Johnson, 30 Or. 205, 60 Am. St. 818, 46 P. 790, 34 L.R.A. 368; Anderson v. Smith-Powers Logging Co., 71 Or. 276, 139 Pac. 736, L.R.A. 1916B, 1089; Tennessee Coal etc. Co. v. Paint Rock etc. Co., 128 Tenn. 277, 160 S.W. 522; Alfred Phosphate Co. v. Duck River Co., 120 Tenn. 260, 113 S.W. 410, 22 L.R.A., N.S., 701; Dismal Swamp R. B. Co. v. Roper, 114 Va. 537, Ann. Cas. 1914C, 641, 77 S.E. 598; State v. Kuykendall, 130 Wn. 674, 228 P. 853; Healy Lumber Co. v. Morris, 33 Wn. 490, 99 Am. St. 964, 74 P. 681, 63 L.R.A. 820; Monetaire Min. Co. v. Columbus Mines Co., 53 Utah, 413, 174 P. 172; Caretta Ry. Co. v. Virginia etc. Coal Co., 62 W. Va. 185, 57 S.E. 401; Elliott on Railroads, 3d ed., secs. 1206, 1207.
In the Constitutional Convention and in the debates in connection with the use of the phrase, "the development of the material resources of the state," reference was made to what the compiler of the "Proceedings and Debates," Idaho Constitutional Convention, considers was sec. 5, 14 U.S. Stats. at Large, p. 252; sec. 43, Title 30, U.S. Code Ann., p. 326.
The Constitutional Convention convened July 4, 1889, and adjourned August 6, 1889. Repeated reference was made during the debates to the Colorado and California constitutions. Colorado in 1887, in People v. District Court of Pitkin County, 11 Colo. 147, 17 P. 298, and California in the same year in Amador Min. Co. v. Dewitt, 73 Cal. 482, 15 P. 74, held that under their respective Constitutions property could be taken only for a public use or for certain restricted individual uses, and the Convention evidently desired that the Constitution of this state should grant broader powers than the Constitutions of those states.
The conclusion that the Convention intended to depart from the accepted theory as to what had previously been considered public uses is strengthened by the reference made during the Convention to Judge Cooley's statement with regard to what is the result of an attempt to go beyond the earlier conception of what uses authorized the exercise of eminent domain. ("Proceedings and Debates," Idaho Constitutional Convention, vol. 2, p. 1598; Cooley's Constitutional Limitations, 8th ed., p. 1131; Nicholas on Eminent Domain, 2d ed., p. 222.)
Washington has evidently changed its attitude on this matter, first holding adverse to defendant's position, now contra. ( Ruddock v. Bloedel Lumber Mills, 28 Fed. (2d) 684.)
It must be conceded, as stated in the Blackwell case, that the development of the lumber industry is a development of one of the greatest natural resources of the state. As to irrigation and mining the Constitution has been construed as giving to an individual the right to condemn property for use by him alone in connection with his individual property without such condemned property or the use thereof in any way becoming subject to use by the public or for the benefit thereof except as the individual by the development of his own property tends to develop the entire state.
The Constitution, then, by its plain terms extends such right, by making them public uses, to all other uses of similar kind and character. If they were public uses at common law, they are covered by the last paragraph of the section of the Constitution under consideration, that is, art. 1, sec. 14; if not, they are covered by the first paragraph.
In the Blackwell case, the sole point involved was whether under the complaint the lumber company had the right to condemn land for a logging railroad. The consequences attendant on the exercise of such right here involved were there only inferentially and argumentatively considered.
It is evident from the Constitution that its framers in presenting, and the people in enacting, art. 11, sec. 5, making all railroads public highways, did not have in mind the kind of a transportation facility we are here considering.
The following statements by this court, anent a question similar in essential respects to that considered herein, appearing in Humbird Lumber Co. v. Public Utilities Commission, 39 Idaho 505, 228 P. 271, if they do not support the conclusion reached herein, are at least not out of harmony therewith:
"It was said by this court in Stoehr v. Natatorium Co., 34 Idaho 217, 200 P. 132, that: 'To hold that a water corporation is a public utility, because it receives compensation for water owned by it and furnished to a limited number of the inhabitants of Boise, within a limited area, would be an unreasonable interpretation of the foregoing statutes. . . . .' (C. S., secs. 2392, 2396; Allen v. Railroad Com., 179 Cal. 68, 8 A.L.R. 249-260, 175 P. 466.)
" 'A corporation becomes a public service corporation, and therefore subject to regulation as a public utility, only when and to the extent that the business of such corporation becomes devoted to a public use.' Stoehr v. Natatorium Co., supra; Thayer v. California Development Co., 164 Cal. 117, 128 Pac. 21.
" 'To hold that property has been dedicated to a public use is 'not a trivial thing' ( San Francisco v. Grote, 120 Cal. 60, 65 Am. St. 155, 52 P. 127, 41 L.R.A. 335), and such dedication is never presumed 'without evidence of unequivocal intention.' ( Niles v. Los Angeles, 125 Cal. 572, 58 P. 190.)" ( Stoehr v. Natatorium Co., supra; Public Utilities Com. v. Natatorium Co., 36 Idaho 287, 211 P. 533.)
"The test for determining whether the lumber company is a public utility would seem to depend upon whether it has held itself out as ready, able and willing to serve the public generally, or some portion thereof. The stipulation hereinbefore quoted and the evidence show conclusively that it has never done more than serve the railway company, one concern, under a private contract, and that it has never devoted its business, either wholly or partly, to the use of the public. We conclude that the lumber company was not a public utility and was not within the jurisdiction of the utilities commission. Because of this fact, the commission exceeded its jurisdiction in making order No. 475 ( Public Utilities Com. v. Natatorium Co., supra, concurring opinion of McCarthy, J.; Van Hoosear v. Railroad Com., 184 Cal. 553, 194 Pac. 1003; Thayer v. California Develop. Co., supra; State ex rel. Danciger v. Public Service Com., 275 Mo. 483, 18 A.L.R. 754, 205 S.W. 36; De Pauw University v. Public Service Commission of Oregon, 247 Fed. 183; Pinney v. Los Angeles, 168 Cal. 12, Ann. Cas. 1915D, 471, 141 P. 620, L.R.A. 1915C, 282; Associated etc. Co. v. Railroad Com., 176 Cal. 518, 169 P. 62, L.R.A. 1918C, 849; Allen v. Railroad Com., supra). . . . .
"The ultimate fact sought to be established in this proceeding was that the lumber company was a public utility. The complaint before the commission alleged that 'the said lumber company is now operating as a public utility and exercising the rights and privileges thereof. . . . .' The lumber company according to the commission's recitation, 'denied . . . . that it has at any time or now is exercising the rights or privileges of a public utility. . . . .' The commission found that the lumber company was operating as a public utility and directed it to 'cease and desist from the furnishing of water . . . . or in any way operating as a public utility. . . . .' The commission has power to supervise and regulate public utilities (C. S., sec. 2450); and it may without doubt, while acting within the scope of its jurisdiction, exercise judicial functions in determining the question before it, but the law does not authorize the commission to exercise a judicial power or make a judicial order. That power is possessed by the courts and cannot be vested anywhere else. The legislature has not and could not vest such power in the commission."
In announcing this conclusion we expressly refrain from in any way expressing any opinion upon the rights of parties other than the owners of such logging roads in connection therewith, under the section of the Constitution under consideration and C. S., chap. 270, with particular reference to C S., sec. 7406, subd. 3, as referred to in Portneuf Irrigating Co. v. Budge, 16 Idaho 116, 18 Ann. Cas. 674, 100 P. 1046, or in any other connection. ( Berg v. Twin Falls Canal Co., 36 Idaho 62, 213 Pac. 694.)
Having reached the conclusion that the evidence shows that defendant did not hold itself out as a common carrier and that under our Constitution the mere exercise of the right of eminent domain did not stamp it as such, the conclusion follows that the writ heretofore issued should be quashed.
Any expressions in the previous opinion in this case contrary to the conclusions reached herein are overruled.
Costs awarded to defendant.
Wm. E. Lee, J., and Baker and Adair, D. JJ., concur.