Dissenting.
As I view this case, the most important question presented by it is whether the courts or the legislature shall determine under what circumstances the power of eminent domain, reserved to the state by the general provision of sec. 14, art. 1, of the constitution, shall be. invoked. This general provision follows the designation of certain specified uses for which private property may be taken, and reads, “or any other use necessary to the com*583píete development of the material resources of the state, or the preservation of the health of its inhabitants, is hereby declared to be a public use, and subject to the regulation and control of the state.” In other words, who shall say, the legislature or the courts', what are and what are not the material resources of the state? What is and what is not necessary to be taken in order to bring about the complete development of these material resources and to preserve the health of the inhabitants of Idaho? In which branch of the government is the “regulation and control of the state” reposed? There can be but one logical answer to these questions. That power is vested in the legislature, and the members of the constitutional convention so understood and so intended.
There were some excellent lawyers in that convention and, as such, they must have known the universal rule to be: “That the right to appropriate private property to public use lies dormant in the state, until legislative action is had, pointing out the occasions, the modes, conditions and agencies for its appropriations” (Cooley’s Const. Lim., 7th ed., 759), and they had a right to believe that those who came after them, to place an interpretation upon the constitution, would be familiar with that fundamental rule and would be governed by it. Furthermore, the constitutional convention was a legislative body and could not have mistaken itself for a court. It formulated and submitted to the sovereign people of Idaho, for their ratification or rejection, a constitution, and by so doing performed a legislative act of the highest order, thereby recognizing that eminent domain was a legislative rather than a judicial function, and therein expressly provided for the taking of private property for uses appertaining to the mining and agricultural industries which had to do, at that time, with the material resources of the state.
In 1889 timber was not deemed to be a material resource, and during the decade following the adoption of the constitution timber, growing upon thousands of acres of land in Idaho, was destroyed in order that the land might be reduced to a state of cultivation. The framers of our constitution, by *584their legislative act of incorporating the specific provisions in sec. 14, art. 1, took care of such industries as appertained to the resources then material to the well-being of Idaho, and, by the general provision above quoted, placed it within the power of the legislature, as other industries developed and as other resources became material, to provide that private property might be taken under the power of eminent domain in aid of them. Had it been the idea of the framers of the constitution that the power of eminent domain should be invoked by the courts in aid of private enterprise, it would have submitted to the people of Idaho, for their approval, only the portion of the section hereinabove quoted and would not have itself undertaken to legislate upon the subject in behalf of developing resources of the state then deemed to be material.
Not only was the general rule that it is within the legislative, and not the judicial, power to designate the uses and purposes, the interests and industries, for and on behalf of which eminent domain may be invoked, recognized and acted upon throughout the United States at the time our constitution was proposed and adopted, but it had been the subject of legislation in the territory of Idaho, and see. 5210, Rev. Stats., of the territory (which is now, as amended, see. 5210, Rev. Codes) designated the public uses in behalf of which the power of eminent domain might be exercised, and that convention proposed and the people of Idaho adopted sec. 2 of art. 21 of the constitution, which is as follows: “All laws now in force in the territory of Idaho, which are not repugnant to this constitution, shall remain in force until they expire by their own limitation or be altered or repealed by the legislature.” No stretch of the imagination can make see. 5210, Rev. Stats., repugnant to sec. 14, art. 1, or any other provision of the constitution, and it was therefore the intention of the constitutional convention to not only recognize the power to designate the use on behalf of which eminent domain might be invoked as a legislative, and not a judicial power, but it was expressly provided that legislation already had upon the subject should be continued in full force and effect until —not the courts — the state legislature, thereafter to be assent-*585bled, should see fit to change it. Whether or not it will, as Btated in the majority opinion, be conceded “that the courts are better equipped to investigate and determine whether a logging railroad is necessary to the ‘complete development’ of the timber resources of the state,” it is perfectly apparent the constitutional convention did not think so and, therefore, left that power with the branch of the state government nearest and most responsive to the sovereign people.
Nor can I concur in that statement made in the majority opinion to the effect that the legislature, recognizing the superior efficiency of the courts in this behalf, “has not attempted, since the adoption of the constitution, to specify by name or define what are the many material resources of the state that cannot be ‘completely developed’ without the exercise of the right of eminent domain.” I find that in 1903 (Sess. Laws 1903, p. 203) the legislature amended see. 5210, Rev. Stats., by adding to it the following public uses on behalf of which eminent domain may be exercised, to wit, electric railroads, reservoirs for public transportation, supplying mines and farming neighborhoods with water, and draining and reclaiming lands, and for storing and floating logs and lumber on streams not navigable; also telephones and lines used in transmitting electric current for power, lighting, heating or other purposes, and caused said section to read as follows: “Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses: 1. Public buildings and grounds for the use of the state, and all other public uses authorized by the legislature; 2. Public buildings and grounds for the use of any county, incorporated city, village, town, or school district; canals, aqueducts, flumes, ditches, or pipes for conducting water for the use of the inhabitants of any county, incorporated city, village or town or for draining any county, incorporated city, village or town, raising the banks of streams, removing obstructions therefrom and widening, deepening, or straightening their channels, roads, streets, alleys, and all other public uses for the benefit of any county, incorporated city, village, or town or the inhabitants thereof; 3. Wharves, *586docks, piers, chutes, booms, ferries, bridges, toll-roads, byroads, plauk and turnpike roads, steam, electric and horse railroads, reservoirs, canals, ditches, flumes, aqueducts and pipes, for public transportation, supplying mines and farming neighborhoods with water, and draining and reclaiming lands, and for storing and floating logs and lumber on streams not navigable; 4. Roads, tunnels, ditches, flumes, pipes and dumping places for working mines; also outlets, natural or otherwise, for the flow, deposit, or conduct of tailings or refuse matter from mines; also, an occupancy in common by the owners or possessors of different mines of any place for the flow, deposit or- conduct of tailings or refuse matter from their several mines; 5. By-roads leading from highways to residences and farms; 6. Telephone, telegraph and telephone lines, and lines used in transmitting electric current for power, lighting, heating or other purposes; 7. Sewerage of any incorporated city.” I further find that by chap. 108, Sess. Laws 1913 (p. 429), the legislature amended sec. 5229, which was as follows: “Nothing in this Code must be construed to abrogate or repeal any statute providing for the taking of property in any city or town for street purposes, ’ ’ and caused that section to read: “Nothing in this Code must be construed to abrogate or repeal any statute provided for the taking of property in any city or village for street purposes : Provided, That any city or village, at its option, may exercise the right of eminent domain under the provisions of Part 3, Title 7 of Revised Codes of Idaho for any of the uses and purposes mentioned in Subdivisions Twenty-sixth and Twenty-seventh of Section 2238 of the Revised Codes of the State of Idaho as amended by Chapter 81 of the Laws of the Eleventh Session of the Legislature of Idaho, approved March 13, 1911, in like manner and to the same extent as for any of the purposes mentioned in Section 5210 of said Revised Codes of Idaho.” Upon the other hand, I find that the courts have not, heretofore, sought to invade the legislative province and to designate, without statutory authority, what shall and what shall not be subject to the power of eminent domain, but that the legislative power in these matters has been recog*587nized, either expressly or by implication, in the following Idaho cases: Latah County v. Peterson, 3 Ida. 398, 29 Pac. 1089, 16 L. R. A. 81; Hollister v. State, 9 Ida. 8, 71 Pac. 541; Potlatch Lumber Co. v. Peterson, 12 Ida. 769, 118 Am. St. 233, 88 Pac. 426; Village of Twin Falls v. Stubbs, 15 Ida. 68, 96 Pac. 195; Portneuf Irrigating Co. v. Budge, 16 Ida. 116, 100 Pac. 1046, 18 Ann. Cas. 674; Washington Water Power Co. v. Waters, 19 Ida. 595, 115 Pac. 682; Idaho-Western Ry. Co. v. Columbia Conference etc. Synod, 20 Ida. 568, 119 Pac. 60, 38 L. R. A., N. S., 497; Thomas v. Boise City, 25 Ida. 522, 138 Pac. 1110, and Idaho-Iowa Lateral etc. Co. v. Fisher, 27 Ida. 695, 151 Pac. 998.
The case of Latah County v. Peterson, above cited, arose immediately after the adoption of the Idaho constitution, and the opinion of the court, in that case, was written by the late Justice John T. Morgan, who was a member of the Constitutional Convention. The court then recognized the rule ‘ ‘ that the right to appropriate private property to public use lies dormant in the state until legislative action is had, pointing out the occasions, the modes, conditions, and agencies for its appropriation,” for it said: “The constitution (article 1, section 14) substantially recognizes the right of the legislature to provide for laying out private roads or by-ways,” and compared our statute upon that subject to those of other states, and held that by reason of the provision therein that a private road, when opened, can be used for any purpose to which it is adapted, b^ the general public and by any individual thereof, the taking in that case was not for a private, but for a public, use, and did not violate the constitution.
In case of Hollister v. State, the court recognized the validity of sec. 5212, Rev. Stats. 1887 (sec. 5212, Rev. Codes), which indicates what private property may be taken under the power of eminent domain, and sec. 13 of an act of the legislature approved February 25, 1899 (Sess. Laws, 1899, p. 381), providing that the right of way over and upon any and all lands owned and controlled by the state of Idaho is granted for certain purposes therein enumerated, and further providing that no property shall be taken under the provi*588sions of said section until full compensation shall be paid therefor, to be ascertained in the manner prescribed by law for the taking of private property for a public use. In that ease the court concluded: “We have examined the entire record, and are fully satisfied that the use for which the lands are claimed is a public use, as defined by see. 5210, of the Revised Statutes, and section 14 of article 1 of the state constitution.”
In case of Potlatch Lumber Co. v. Peterson, this court, after stating that appellants demurred to the complaint on the ground that it did not state a cause of action, and relied upon two propositions of law in order to support the demurrer : 1. That the taking of said land was not for a public use; and 2. That the statutes of Idaho were not sufficiently broad to cover such use, quoted at considerable length from sec. 5210, Rev. Codes, and said, in addition to the portions of that opinion quoted here by the majority of the court: “The legislature well knew that many of our streams were floatable for logs in places, and not in others; it had in view those streams in the enactment of see. 5210, and it intended to and did grant the right to exercise the power of eminent domain in order to make such streams floatable at places where they were not floatable unless improved by dams or otherwise.” In that ease the court also said:
“In limine, we shall make a few observations upon the power of eminent domain. That power is an incident of sovereignty inherent in the federal government and the several states by virtue of their sovereignty. This power with all its incidents is vested in the legislatures of the several states. (1 Lewis on Eminent Domain, see. 237; Cooley’s Constitutional Limitations, 7th ed., 755; Hollister v. State, 9 Ida. 8, 71 Pac. 541.) ”
If the paragraph last above quoted was the law in 1906, when it was written by the author of the majority opinion in this ease, since there has been neither constitutional amendment nor legislative enactment on the subject between now and then, the query is invited: When and how was it changed Í It undoubtedly contains a correct statement of the rule that *589the power of eminent domain, with all its incidents, is vested in the legislatures of the several states, and, while the decision of the court in Potlatch Lumber Co. v. Peterson possesses some legislative excuse in sec. 5210, supra, the majority opinion in this case has none.
I have never been in entire accord with the opinion of the court in case of Potlatch Lumber Co. v. Peterson, especially with that portion of it expressed in the tenth and eleventh paragraphs of the syllabus which state: “10. The term ‘public use,’ as used in said section 14, article 1, of the constitution, means public usefulness and productive of general benefit. That term is a flexible one, and necessarily has been of constant growth as new public uses have developed. 11. The power of eminent domain under our constitution and laws is given a degree of elasticity, thus making it capable of meeting new conditions and improvements of the ever-increasing necessities of society.”
My theory has always been that our constitution cannot be amended except, as therein provided, by the sovereign people, and not by the courts. That case and this one have a tendency to invite the inquiry: Does judicial construction ever reach a point where it ceases to be constitution stretching and becomes law breaking?
Village of Twin Falls v. Stubbs was a case wherein the village, now city of Twin Falls, sought to condemn certain lands for purposes of a sewer system. This court in that case, in sustaining the right of the municipality to invoke the power of eminent domain, based its decision and opinion upon the act of the legislature approved February 24, 1905 (Sess. Laws 1905, p. 335), authorizing and empowering cities, towns and villages to construct and maintain sewer systems and to condemn land for that purpose, and upon subdivision 2, sec. 5210, Rev. Stats., as amended by the act of March 3, 1903 (Sess. Laws 1903, p. 203).
The case of Portneuf Irr. Co. v. Budge grows out of another case wherein one irrigation company sought to condemn a portion of the canal and right of way of another for the purpose of so enlarging the canal as to not only carry the *590volume of water owned and used by its owner, but also such additional volume of water as would be necessary for the uses and purposes of the company seeking condemnation. The right to take private property for the uses therein sought is expressly recognized as being provided for, not only in sec. 14, art. 1, of the constitution, but by the legislature. In that case this court said: “The constitutional provision with reference to the exercise of the power of eminent domain is a limitation upon the power and authority of the legislature to act in this matter, and cannot be viewed or construed as a grant in any respect. The power of eminent domain adheres in sovereignty as an essential element thereof and cannot be alienated. (Lewis on Eminent Domain, secs. 10, 237.) Primarily, the power and exercise of this right for and on behalf of the state rests with the legislature. That body may determine the necessity for the taking, and its determination thereon is final. In this state, however, that power has been delegated by the legislature through general statutes defining the uses for which property may be taken, and vesting in the courts the jurisdiction and authority to determine when the use falls within any of the enumerated classes, and also as to when the necessity for the taking arises. ’ ’ The case at bar differs from the Portneuf Irr. Co. case in this, that no statutory provision has been made for taking private property for the purposes herein sought to appropriate it, nor have these purposes been specified by the constitution as appertaining to the material resources of Idaho, so that in this case the general statutes, mentioned in that decision as vesting in the courts the jurisdiction and authority to determine when the use falls within any of the enumerated classes, and also as to when the necessity for the taking arises, do not apply.
The case of Washington Water Power Co. v. Waters was between the same parties, and grew out of the same state of facts as that cited and quoted from at length in the majority opinion appearing in 186 Fed. 572. That ease was one wherein Washington Water Power Company was seeking to condemn the lands of certain riparian owners for reservoir purposes in order to increase the capacity of Coeur d’Alene *591Lake and its tributaries, with the end in view of generating electrical power to be used in lighting municipalities, operating railroads, and numerous other public uses, and is a purpose expressly provided for by our constitution and statutes heretofore frequently referred to. In that case this court said: “As we said in the Hollister ease, we repeat here, that the use for which the land is sought to be taken in this case is clearly a public use within the provisions of see. 14, art. 1, of the constitution and the provisions of see. 5210, Rev. Codes. Our determination of the first question as above announced renders it unnecessary to deal in this opinion with the other question that has been raised. Whether the ascertainment and determination that any use other than those specifically enumerated is ‘necessary to the complete development of the material resources of the state’ is a legislative or a judicial question, becomes immaterial in this case.” Since Judge Dietrich’s opinion, above referred to, was based upon a state of facts identical with those of the case from which quotation was last above made, this decision, by our own supreme court, rendered subsequent to that of Judge Dietrich, disposes of that opinion as an authority upon the question here under consideration, as it would seem to classify his observations, now relied upon by the majority of the court, as obiter dictum.
The case of Idaho-Western Ry. Co. v. Columbia Conference etc. Synod was an action to condemn lands for a railroad right of way. The court in that case again recognized the legislative authority in matters of eminent domain, and said: “The statute requires the condemnor to disclose the purpose for which he is seeking to condemn the property, and the general nature and character of the improvement or structure he expects to erect in order to bring himself within the constitution and statute. (Sec. 14, art. 1, Const; see. 5210, Rev. Codes.) ”
In case of Thomas v. Boise City, wherein an attempt was made to condemn property for street purposes under the provisions of sec. 2238, Rev. Codes, this court, recognizing the necessity for legislative authority in condemnation proceed*592ings in addition to those conferred by the general provisions of sec. 14, art. 1, of the constitution, said: “Sec. 2238, subds. 26 and 27, provides no method for condemning real property to public use under art. 1, sec. 14, of the constitution of this state, and has no force in the proceedings in this case, because there is no provision in either subdivision, or any other provision, that provides for the condemnation proceedings attempted to be enforced as shown by the record in this case. ’ ’
While, in ease of Idaho-Iowa L. etc. Co. v. Fisher, Mr. Justice Budge dissented from the conclusion reached by the court, upon the ground that title to the school land therein involved had not, in his opinion, passed to appellant as provided by law, and while the author of this dissenting opinion agreed with him that the right, or power, of eminent domain was not involved in that case, the chief justice placed an interpretation upon the language of the constitution providing that the necessary use of lands for certain purposes “is hereby declared to be a public use and subject to the regulation and control of the state, ’ ’ which did not invoke the disapproval of any member of the court, and should set the troublesome question involved herein forever at rest, which is: Which branch of the state government is intended to exercise that regulation and control? It is said in the opinion last above mentioned: “Sec. 14, art. 1, of the constitution does not provide that the fee-simple title for state lands used as reservoirs must be taken, but does provide that ‘The necessary use of lands for the construction of reservoirs’ shall be ‘subject to the regulation and control of the state, ’ meaning thereby that such matters shall be controlled by the legislature of the state by legislative enactment.”
There can be no doubt that the foregoing quotation is a correct statement of a sound rule of law, and, applied to this ease, it means that since the legislature has made no provision for the taking of private property for the use to which respondent’s property is sought to be applied; it cannot be taken under the power of eminent domain.
If there was specific statutory or constitutional authority for taking the land here sought to be taken under the power *593of eminent domain, for tbe use to which it is desired to put it, the demurrer in this case would have been properly sustained, for the complaint would not, even then, state facts sufficient to constitute a cause of action. The purpose for which this right of way is sought to be condemned is that a temporary logging railroad may be constructed across the land of respondent to the land of appellant, in order that it may transport certain timber which is situated thereon to its mills for manufacture. Paragraph 5 of the complaint describes, by legal subdivisions, 400 acres of land which, it is alleged, is owned by appellant and which, it appears, is sought to be reached by this logging railroad. The quantity and value of this timber is thus described in paragraph 5, and not otherwise in the complaint: “That situated upon said lands above referred to are quantities of valuable timber which the plaintiff desires to transport to its mills for manufacture. ’ ’
We are not informed how numerous or how extensive are these quantities, whether large or small, many or few, nor are we enlightened as to how valuable is the timber or for what purpose it is valuable, whether for lumber, railroad ties, eordwood, fishing poles or Christmas trees. Still this court is asked to infer from this meager allegation, and the majority of the court does infer, that the removal of this timber will, in the language of the constitution, £ £ develop the material resources of Idaho.” I do not believe it was intended by the framers of the constitution that sacred property rights should be invaded except for the purpose of promoting the material welfare of the people of this state to a perceptible and substantial degree, and there is nothing in this complaint to indicate that the wealth or well-being of the people of Idaho, or of any of them, will, by the taking of this private property, be augmented to the value of a single dime.
It is said in 15 Cyc. 567: “Inasmuch as the right of eminent domain is one which lies dormant in the state until legislative action is had pointing out the occasion, mode, conditions, and agencies for its exercise, the right to exercise the power must be conferred by statute, either in express words or by neces*594sary implication. The power should not be gathered from doubtful inferences, but should be unmistakably expressed.
“The power of eminent domain being in derogation of the common right, acts conferring it are to be strictly construed and are not to be extended beyond their plain provisions. The right to exercise the power is strictly limited to the purposes specified in the statute conferring it. The proposed use of the lands of the owner must be clearly embraced within the legitimate object of the power conferred. Where there is any doubt in regard to the extent of the power the land owner must have the benefit of that doubt. Statutes conferring the power of eminent domain on private corporations do not render compulsory or obligatory the exercise of those powers. ’ ’
Not only can I find no legislative authority to invoke the power of eminent domain in this ease, but it appears to me the attempt to do so is an effort on the part of appellant to pervert the good intentions of the framers of the constitution.
Petition for rehearing denied.