Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1914-04-07

Quoted, we see no reason why this
should not be called a public use.
10. Just here, however, the petition
ers contend for q distinction between
all these illustrations and the case at
bar.
They say that in the case of the
distribution of water, and of light and
heat by gas or electricity, the use of
The public highways is required for
the mains and poles and wires, that
the purpose is public because it is
necessary TO obtain permission from
public authorities, either state or mu-
nicipal in order to carry it out. We
grant that in those cases this element
of public permission exists, but it does
not follow that the converse is true
and that no purpose is public, where
such permission does not exist. How
can this criterion be applied to the
erection of public buildings, the ere
alton of a park, the building of a
memorial hall. or of market house,
or the maintenance of a public clock?
In other words. under this rule. public
service of this sort would be limited to
one which only can be performed by a
not by an individual or corporation, in
dependent of chartered rights This is,
in our judgment, too narrow. 1t makes
an incident to some forms of public SER
vice an essential element. 1t trans
forms the method of means of render
ing the service into the essence of the
service itself. 1t makes the exercise
of public rights In supplying the ne:
cessities of a community a prerequisite
to the public use. But this exercise of
public right can itself be authorized only
by the legislature and if that branch of
the government sees fit to bestow the
public service in a manner that may OBJ
Viate the use of the public right they
certainly should have the right and the
power so to do. 1t is matter within
their control,
II. Let us look at the question free
from practical and concrete stand
point. Can it make any real and vital
difference and convert a public into a
private use if instead of burning the
fuel at the power station to produce the
electricity or at the central heating
plant to procure the heat and then con-
Quoting 1t in the one case by wires and
.
the coal itself is hauled over the same
highway to the same point of distribu-
ton? We fail to see it 1t is only a
/ different and simpler mode of distribu-
/ ton and, il the Legislature has the power
to authorize municipalities to furnish
heat to its inhabitants sit can do this
by any appropriate means which it may
think expedient" The vital and essen
i tial element is the character of theaser-
vice reEdered and not the means by
! which it is rendered
1t seems illogical to hold that a
municipality may relieve its citizens
from the rigor of cold if ii can reach
them by pipes or wires placed under OF
above the highways but not if it can
i reach them by teams travelling along the
! identcally same highway.
! r. That we adopt the definition of a
+ public use laid down by Judge Cooley in
his work on Constitutional Limitations
+ 9Th ed. p. 655, viz: THAT only can be
considered public use where the gov
/ eminent is supplying its own needs or is
/ furnishing facilities for its citizens in
regard to those matters of public ne
i cessity, convenience or welfare which on
account of their peculiar character and
the difieulty-perhap impossibility-ot
making provisions for them otherwise. is
f alike proper, useful and needful for the
government to provide.
It's two tests are first. the subject
matter. or commodity. must be one "oi
public necessity. convenience or vel
fare" Fuel clearly comes within this
+ nj. Htst3
Guilty which individuals have In proYid-
ing it for themselves. The causes ere
ating the difficulty may vary. but if the
difficulty exists, the test is met Fol-
/ instance, in the case of a water supply
! the difficulty arises from the fact that
! individual sources are inadequate or un
sanitary and the conditions can be
/ remedied only by the municipality Itself
providing or allowing some public ser
vice corporation to furnish the com
munity at large from a single and com
mon source. This is a matter of com
mon knowledge and the court in passing
upon the question Of public use canno
/ ignore il.
In the case of fuel the practical diih
Guilty is caused by the existence O
transportation and distribution OF coal
has, in the process of industrial de
velopment fallen into the hands o
these combinations to such an extern
that the greater part of the supply is il
the absolute control OF the few Th'
difficulty and practical impossibility o
obtaining an adequate supply for private
needs at times in the past, and the con
sequent suffering among the people es
pecially in the more populous cities, art
matters of history, and this difficulty
may as well be caused by unreasonable
prices as by shortage in quantity. Al
this is matter Of common knowledge
and cannot be overlooked by the court
The supply of water may be Inadequate
for one cause, that of fuel from another
but out of each arises the condition
which renders the furnishing of it by
the municipality a public use
3D. But it is urged, why, il a city car
establish a municipal fuel yard. can i
not enter upon any kind of commercial
business, and carry on a grocery store
or a meat market or bakery? Tit