Evening journal., 1912-07-19
DECIDE BOULEVARD
LAW CONSTITUTIONAL

Legislature And the Courts cannot
control such discretion when the
Legislature has determined and fixed
the quantity that may be taken.
I'VE do not undertake to decide
whether or not the Courts might in
terrier where theer had been a gross
abuse of legislative discretion, or
manifest fraud IN the passage of the
bill, because II is not contended that
any such conditions existed I'm the
passage Of the bill In question"
But the most important question
still remains,-can the land sought
to be taken be regarded as taken for
public use when there Is not only
no express requirement that II shall
ever be used, other than the thirty
foot road. but a clear implication In
the statute that the corporation shall
not have to use the one hundred and
seventy feet for fifty years, II ever?
The plaintiff insists, not only that
the construction and operation OF
none OF the utilities Is compulsory,
but that the corporation may fail 10
construct any one or all OF them With
out subiecting itself TO the penalty
of an abandonment, or the loss Of
the right to the land condemned, be-
cause the corporation is authorized
to hold the state-long strip Of land of
one hundred and seventy feet in
width without deyoting it TO any kind
Of public use for fifty years, and per-
haps forever
The authorities cited by the plain
tin upon the point now under consid-
GRAFTON, undoubtedly show that one
of The fundamental priclples of emf
nont domain, is that Il shall not he
exercised unless the property Is to
he devoted TO n public use within q
reasonable time thereafter. and this
Is "a proposition of law that viii not
be denied.
Neither can IL be denied that the
rule, or doctrine, of reasonable time
applies when no time limit is set for
the construction OF the proposed road.
After discussing the arguments, tho
Court continues:
The use Of the land for any util-
ity. must be employed within a rea-
sonable time and the employment by
the corporation of one utility within
a reasonable time will not extend or
enlarge to the corporation the right
TO employ the land for another util-
ity at a time that is unreasonable.
IL was unquestionably the purpose
Of the Act, and the intention Of the
Legislature, to authorize the taking
Of the entire strip for public pur-
poses, and any provision in the Act
which undertakes TO exempt, or re-
lieve, the corporation from such use
indefinitely or forever, could not be
effective. II would be an unwar-
ranted and unconstitutional exercise
Of legislative power. II would not
however affect the validity of the ro-
naming parts Of the Act for the
statute Ne complete without t.
THE Legislature could not relieve
the corporation from the public use
of the land for which alone the ex-
ercise OF the power of eminent do
main IS conferred and which was tho
manifest and general scope and pur-
pose OF the act
Notwithstanding such attempted
exemption OF relief, the Courts would
still have tho power to enforce the
public use within a reasonable time
or to impose the appropriate penal
ties for the failure 10 devote the larC
to public use. The power OF th,
courts I'm this regard would be th,
same as il would be where the Aci
makes no reference at all to the yimt
when the work authorized was TO be
constructed. as in ten charters fol
railroad companies passed before the
enactment of the General Corpora.
ton Law, The owner of the land
condemned would have the same
judicial remedy and redress.
That hte courts would have thi'
power under the Act In question II
noh really denied by counsel for th'
corporation.
I'VE are OF the opinion that th'
Act in question is not obnoxious t'
the above mentioned provision of th'
/ Constitution which prevents an
mans property from being taken o
applied to public. use without th'
consent Of his representatives am
without compensation being made.
I'm this connection II may be note'
that while statutes delegating IN
power Of eminent domain are TO b.
strictly construed and restricted e
their clear expression and intention
nevertheless the usual presumption
In favor OF the constitutionality o
legislative enactments apply. And IN
duty rests upon the Court Of so con
strung the statute as to sustain it
! constituuonahty il possible"