The Bridgeport evening farmer., 1913-11-06
JUDGE WHEELER SHOWS DANGERS OF INVASION OF LEGISLATIVE FIELD
 BY THE JUDICIARY
(continued from Page s.)

CT the public benefit is great enough to warrant the exercise of this power in the given case.
 When my brethren apply as one test of public use that the use must be for or in the nature of a governmental purpose the only tribunal which can finally decide whether the given in stance is a governmental purpose or not is the court If there be no dan ger in the court deciding this, there can be none to it's deciding that the public welfare is great enough to make the instance a public use.
 The employment test puts the doc Urine of public use in a straight-jack- ct and unless the court finds the use to be open to the public it must automat- tcaI1y deny the power. If this test be strictly applied, many instances where the right of eminent domain has been exercised will fall outside To escape this difficulty my brethren assert that there is a, class of excep- tions which though clearly not open to the public, are upheld as instances of the development of the natural re- sources of the State.@under this head they place Acts in aid of mills, mining, navigation and drainage and the de- velopment of water power.
 A reference to these cases will show that they were supported by reason of the great public good subserVed.
 OImstead vs. Camp and Todd vs Austin (supra) uphoIding mills Acts do not recognize such an exception. The very fact that so many cases of recognized public use fall without the employment test discredit it.
 ~On the other hand, the utility test will meet every instance in the futur e where changing conditions make the declaration of a new public use nec- essary for the public good.
 l. The OI1AStiOn for the will he is this new use of so great a public benefit that it. cannot be said to be wholly private but must be held to be for the public use?
 All private property should be avail able whenever it's use will be of great public benefit The right so to take is vital to the public welfare of every self-governing community
 If the right of the public to use the land taken be the test all forms of private activities, such as theatres, ho- tels and the like would meet the test and the court must so hold. Where as, under the public welfare test all of these private activities would be held to serve private interests and the public benefit would be but an incl dent of the private ownership. And instances might occur in which the public were given the use of land for a private business for which the public had no use. So the grant would be held to serve a public use when the public received no benefit from it.
 When we say the public benefit is the underlying principle by which to test the public use we do not mean that in all eases where the taking may be of public benefit private prop erty may be taken. It can be taken only when the public benefit is so great as to make the taking a pub lie. .use Each case stands, as we have pointed out. on it's own facts
 The legislative declaration of a pub lie use is subject to the supervision of the courts in case the use be paIpabIy withou reasonable foundation. The court will exercise control only in cases of pa1pable abuse.
 This is the doctrine of the United States Supreme Court as last announc- ed. Clark vs. Nash, 19s U. S. 361. This case is, of course, in conflict with Brown vs. Gerard, 100 Me. 351, on which the opinion relies.
 Originally it was thought, and the argument of the opinion seems in &C., cord, that this right could not reach beyond material ends: this is no long CT the general view.
 In United States vs. Gettysburg Ell Ky. Co.,, 16O U. S. 668, this right was upheld when invoked in aid of a pa- trfotic public aim-the preservation of an historic battlefield.
 In it's holding that the power of em- inent domain "it is universally agreed depends upon the common and equal right of the public to the benefit of the service rendered, free from unrea- sonable discrimination" we think the opinion is in error in failing to note the conflict of the authorities betwe cen the utility, and the employment view. Ordinarily in jurisdictions upholding the utility view, it would be clear where the public had no right to use land taken that private interest alone was served and no basis would be present for holding the public benefit so great as to make it a public use.
 But instances occur where the pub lie have not the right of service, as in the Acts in aid of Tnillss mining and irrigation, where the right of eminent domain is upheld and the immediate benefit is to private ownership alone.
 The resultant benefit to the public through the private enterprise is the foundation of the grant Generally speaking, these have been confined to purposes giving the public material benefits. No good reason can be sug gested why purposes which benefit the body and mind of citizens, which educate, uplift and ennobIe com munity should not be esteemed of as great public good as the things which add directly to it's wealth or give em- ployment to it's citizens
 The development and encourage ment of the things of the spirit are more enduringly vital to the State than the development of it's material resources.
 The value to a state of great edu- catfona1 institution for the higher ed ucation of women cannot be measur- ed.
 No institution has done as much for the strength and fame of our State and for the lives of it's people as Yale. Yet Yale, so far it's charter goes, is a private institution, as much so as the Connecticut College for Women.
 Does it appeal to the common sense of the average man. that it is just1- fable to give a private mill the right to flow another's land, an electric light company the right to take land by em- inent domain, an individual the right