(dissenting)—In this case I am unable to agree with the conclusions reached in the majority-opinion upon two points. The first is the holding that, under the statutes of this state, Remington’s Code, §§ 7612 and 8005, which authorize cities to condemn property “within or without the corporate limits” thereof, cities have the power to condemn land not only in this state, but in the state of Oregon, providing that state shall have given its consent. When the legislature provided that cities of this state might acquire property by condemnation or purchase within or without, the corporate limits thereof for the purpose of providing a water supply, it was certainly not within the contemplation of that body that the power would be exercised in a foreign state. It goes without saying, of course, that the legislature of this state had no power to authorize the taking- of property in the state of Oregon without the consent of that state. This question, however, is of minor importance, because, if the language of the statute is not broad enough, the legislature at its approaching session could, and probably would, grant the power in more comprehensive terms.
The other question upon which I am constrained to disagree with the majority is the holding that property in one state may be taken for a public use in another, state. While the present case is an attempt on the part of a city of this state to condemn land in the state of Oregon for water works purposes, the question is treated in the majority opinion as though it were an Oregon city seeking to do in this state what Walla Walla is seeking to do in Oregon. I will therefore treat the question in the same manner. Under Const., art. 1, § 16, private property may be taken for a public use, and whenever an attempt is made to take prop*474erty for such purpose, “the question whether the contemplated use he really public shall be a judicial question, and determined as such without regard to any legislative assertion that the use is public.” Under this provision of the constitution, it becomes the duty of the court to determine whether public use as there used means public use for the benefit of the people of this state, or whether it has a broader meaning and includes a public use for the benefit of the people of an adjoining state. In Grover Irrigation etc. Co. v. Lovella Ditch etc. Co., 21 Wyo. 204, 131 Pac. 43, the supreme court of Wyoming, as I read the opinion, had this precise question before it and determined it, holding that public use meant public use for the benefit of the people of the state from which the power is derived. In that case an irrigation company in the state of Colorado sought to condemn land across the border in the state of Wyoming. The public use for which the property would be acquired was for the benefit of the people of Colorado. Two points were urged there against the right to condemn: “First, that land in this state cannot be taken by condemnation where the only proposed use in this state is the irrigation of lands in another state.” The second question it is not necessary here to refer to. In deciding the first ques.tion it was said:
“It will not be necessary to consider the second proposition or either of its divisions suggested by the argument, for in the view we take of the case the fact that all the water to be diverted by means of the head-gate and ditch is to be used exclusively for the irrigation of land in another state is sufficient to cause a reversal of the judgment.”
The trial court had sustained the claimed right to condemn. Before the opinion concluded, it was suggested that it probably would be difficult to find author*475ity in the statutes to condemn land for the benefit of the business of a foreign corporation conducted exclusively in another state, but this question was not decided because the “petitioner has shown no right under the constitution or statute of this state to condemn the land in controversy.” In Washington Water Power Co. v. Waters, 19 Ida. 595, the plaintiff, a Washington corporation engaged in the business of supplying light and power in the state of Washington and also in the state of Idaho, sought to condemn land in the latter state for the purpose of enlarging its plant. The right to condemn was there sustained upon the sole ground that the condemning company was serving people of the state of Idaho and that the purpose to which the property would be devoted was a public use within that state. The fact that the same company was serving the people of another state also, would not deprive it of the right to condemn. In the course of the opinion it was said:
“Condemnation could evidently not be had in this state for the purpose alone of serving a public use in another state, but where the use for which the condemnation is sought is a public use in this state, and will serve the citizens of this state—their demands, necessities and industries—-the fact that it may incidentally also benefit the citizens and industries of a neighboring state will not defeat the right of condemnation.
“It would be difficult, and indeed unreasonable, to say that the energy generated by the water power of this state should only be used in operating cars to and from the state line, and that in order to propel them thence to Spokane and back to the state line the company must secure its power in some other way and from some other source. . . . This demonstrates the correctness of the proposition above stated that the test must be—is the use a public use within this state, and does it serve the interests-of the people of *476this state? If it does so, the fact that it incidentally or in connection therewith likewise serves the interests of a neighboring state, and the people of such state, will not render it any the less a public use, or the service any the less a public service, subject to the regulation and control of the state.”
While the right of condemnation there was sustained, it was upon the sole ground that the property taken would, in part at least, be devoted, to a public use in that state. The court recognized that, if the property was being taken solely for the public use in another state, the right of condemnation would not exist.
The writer of the article on Eminent Domain in 10 E. O. L., at page 20, expresses the opinion that property in one state cannot be taken under the power of eminent domain for a public use in another state. In Lewis on Eminent Domain, § 310, upon the same question, it is said:
“The public use for which property may be taken is a public use within the state from which the power is derived.”
In Nichols on Eminent Domain (2d ed.), vol. 1, p. 97, the author states the law to be as follows:
“One state cannot take or -authorize the taking of property situated within its limits for the use of another state. Any employment of the power of eminent domain for other purposes than to enable the government of the state to exercise and give effect to its proper authority, effectuate the purpose of its creation and carry out the policy of its laws could not be rested upon the justification and basis which underlie the power, and has never received the sanction of the courts. Accordingly, it would seem that if a municipality was located close to the boundary of another state, and the only available property for satisfying the necessity an.d convenience of its people for such *477purposes as a water supply, a sewer outlet, or a park was situated across the boundary line, it would be impossible to take the necessary land by eminent domain even with the consent of the state in which it was situated, for the legislature of neither state would have power to grant the requisite authority—in one case because the property sought to be taken was not within its jurisdiction, and in the other because the use for which it was sought to take the property was not one for which it lay within its power to invoke the exercise of eminent domain. . . .”
Two cases are referred to in the majority opinion as supporting the conclusion there reached, but I did not so read them. In the New York case of In re Townsend, 39 N. Y. (App. Div.) 171, the right to take property in that state by the New Jersey Canal Company was sustained because the canal was a public benefit and of public use to the people of the state of New York. It was there said:
“It does not follow, because the canal is outside the state limits, that its construction and maintenance are not for a public use, within the meaning of our constitution. If it were within our limits, what are the public benefits to result from its construction? Not merely that our citizens may use it for transportation or travel. Providing transportation to market and facilitating intercommunication are some of the public purposes of such improvements; but communication between our chief cities and the productive regions which lie outside our state, and intercourse with those who dwell there, are as truly objects of public interest and advantage as between two sections of the state itself. Besides, the court cannot say that the Morris canal does not run within the reach of a portion of our own citizens, and directly aid them in the conduct of their intercourse with our eastern border, or the counties along the Hudson river to which it runs.”
The doctrine there applied is similar to the doctrine which permits a railway company to condemn land. *478The other case is that of Reddall v. Bryan, 14 Md. 444. There the court had before it a statute which granted to the Federal government the right to exercise the power of eminent domain in the courts of that state for the purpose of acquiring property necessary to the furnishing of the city of Washington with water. This case is not in point, for two reasons, first, the relation between the Federal government and the state is very different from the relation which exists between two states; and second, even without the act of the legislature of the state, the Federal government had the power to acquire by condemnation such property as was necessary to the exercise of the powers conferred upon it by the constitution. Kohl v. U. S., 91 U. S. 367. This right is sustained upon the ground that property acquired for the purpose of the national government, being for the use of the people of all the states, is as well for the use of the people of that state where it is located. Lewis on Eminent Domain (3d ed.), vol. 1, §309; Cooley’s Constitutional Limitations, 655, and Grover Irrigation etc. Co. v. Lovella Ditch etc. Co., supra. So far as I am informed, there is no authority for the holding of the majority opinion that property may be taken in this state for a public use in the state of Oregon when it is disassociated with any public use or benefit to the people of this state. Not only is such a holding not supported by authority, but reason is against such a conclusion. When it was provided in the constitution that private property in this state might be taken for a public use, and that whether a contemplated use should be really public should be a judicial question, it was undoubtedly and plainly contemplated that that public use was a public use for the benefit of the people of this state, and that it was not contemplated by the framers of the *479constitution that the language there used should be stretched to include the public use in a neighboring-state in no way connected with the public use in this state. If the term public use is to be given this broad meaning, then the public service company in Oregon, or any other adjoining state, may come into this state and acquire property by condemnation for a public use in another state which does not in any way serve the people of this state. It seems to me that the language of the constitution should be adhered to and that its meaning should not be thus broadened.
For the reasons stated, I am unable to concur in the majority rule on the two points mentioned, and I therefore respectfully dissent.
Mitchell and Mackintosh, JJ., concur with Main, J.