I think the authority to proceed in the exercise of powers of eminent domain must be specifically alleged and proven. There must be a strict compliance with the statutory requirements in all such special proceedings. Lacik et al. v. Colorado, T. M. Ry. Co. et al., 25 Okla. 282, 105 P. 655.
It may be that the Legislature delegated the power of eminent domain to the Highway Commission as applied to state roads. With that we are not concerned in the case at bar. This action concerns a county highway, and by section 8, chapter 48, Session Laws 1924, it is expressly provided that the highways or public roads of said state shall be divided into state highways and county highways for the purpose of deriving aid from the state highway fund and the federal government, and said act reads in part as follows:
"Provided, further, that the county commissioners *Page 244 of the various counties shall have exclusive jurisdiction over the designation, construction and maintenance and repair of all of said county highways and bridges thereon. That the decision of the county commissioners in all matters pertaining to the county highways shall be final and that the empowering clause in this act gives to the county commissioners the same final jurisdiction to designate, construct, hard-surface, maintain or repair county highways and bridges thereof, as is given the State Highway Commission on state highways."
In the case at bar there is an affirmative showing that the lands sought to be taken have never been designated or declared necessary for use in the construction of said county roads by the county commissioners of Pottawatomie county.
I am of the opinion then that, as applied to county highways, if there has been any delegation by the Legislature of the powers of eminent domain, it has been to the county commissioners and not to the State Highway Commission, but conceding for the sake of argument that there may have been some delegation of such powers to the State Highway Commission. I think it necessary that such delegation of authority should be specifically alleged in such a special proceeding.
In the case at bar the action seems to be brought by one Jno. F. Rightmore, and the affidavit reads as follows:
"I, Jno. F. Rightmore, of lawful age being first duly sworn deposes and says as follows: That I am employed as __________ by the Oklahoma State Highway Commission."
I cannot understand how such an affidavit attached to such a pleading can be construed as an allegation of authority to exercise delegated powers of eminent domain.
As to whether a court, in this state, in actions seeking to condemn private property for public or private use, acts judicially or ministerially, has never been an open question in Oklahoma. The Constitution, by article 2, section 24, forever settled that matter in the following language:
"* * * In all cases of condemnation of private property for public or private use, the determination of the character of the use shall be a judicial question."
See Tuttle v. Jefferson Power Improvement Co.,31 Okla. 710, 122 P. 1102, wherein said constitutional provision is cited, construed, and applied.
See Sholl v. German Coal Co., 118 Ill. 427, 10 N.E. 199, as to necessity of a judicial determination in cases wherein the powers of eminent domain are exercised, in the absence of constitutional provision such as ours.
The power to exercise the right of eminent domain should not be gathered from doubtful inferences, but should be unmistakably expressed. Jenks v. Taunton (Mass.)116 N.E. 550; Washington Water Power Co. v. Waters, 186 Fed. 572; Ryan Lumber Co. v. Ball (Tex. Civ. App.) 197 S.W. 1037; Central Pacific R. Co. v. Feldman (Cal.) 92 P. 849; Binney's Case, 2 Bland (Md.) 99.
It does not necessarily follow that because the carrying out of an authorized work would be impossible unless the power of eminent domain was exercised, therefore the Legislature intended to grant the right to exercise it. Thatcher v. Dartmouth Bridge Co., 18 Pick. (Mass.) 501.
The power to acquire does not imply a power to condemn. State v. King County Sup. Ct. (Wash.) 124 P. 127; Littleton v. Berlin Mills Co. (N.H.) 58 A. 877.
I think the trial judge's action in dismissing this cause correct and proper. I think the reason assigned was a proper one. I think, should it have been an erroneous reason, there are many others which sustain the court's action. This matter might be properly presented on appeal. I think there is an adequate remedy at law, and I am, therefore, of the opinion that the extraordinary writ should be denied.