(concurring).
[¶ 26.] I concur in the majority opinion in all respects. I add this opinion to comment on SDCL 21-35-10.1 and our affirming the use of that statute by the trial court to overturn a city’s declaration of taking.
[IT 27.] At first blush our opinion appears to beat a retreat from the traditional deference given by the courts to the legislative branch of the government when it delegates the power of eminent domain. Basin Elec. Power Co-op. v. Payne, 298 N.W.2d 385, 388 (S.D.1980)(citing Otter Tail Power Company v. Malme, 92 N.W.2d 514, 521 (N.D.1958)).
[¶ 28.] The Constitution of South Dakota, art. VI, § 13, and art. XVII, § 18, by implication if not direction, limit the use eminent domain to acquire property in the public interest.
[¶ 29.] Article VI, § 13 reads in part: “Private property shall not be taken for public use, or damaged, without just compensation, which will be determined according to legal procedure established by the legislature and according to § 6 of this article.”
[¶ 30.] Article XVII, § 18, reads in part:
Municipal and other corporations and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured or destroyed, by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury or destruction.
[¶ 31.] A brief historical review of the relationship between the judiciary and the legislative branch when it delegates the power eminent domain discloses that by the middle of the Twentieth Century, the courts had almost totally yielded overview of takings and ceded to the legislative branch the power to define what was taking for a public purpose.
[¶ 32.] Although the determination of whether a use is public or not is said to be a judicial question, the courts have moved so far from the idea that actual use by an appreciable part of the public is a requisite to public purpose, toward a conclusion that if any public purpose is served public use is unnecessary, that it is almost correct to say that the question of whether a taking of land is for a public use is a legislative and not a judicial one see United States ex rel. T.V.A. v. Welch, 327 U.S. 546, 66 S.Ct. 715, 90 L.Ed. 843 (1946). Thus, use of the condemnation power has been upheld where the purpose was to clear slums, beautify and area, construct low-cost housing, provide off-street parking and promote industrialization. Encyclopedia Britannica, 1963, Volume 8, Eminent Domain p. 336.
[¶ 33.] In South Dakota we concurred with this historical trend. In 1950 we held the following:
The question of the existence of the necessity for exercising the right of eminent domain, where it is first shown that the use is public, is not open to judicial investigation and determination, but that *331the body having power to exercise the right of eminent domain is also invested with power to determine the existence of the necessity.
City of Bristol v. Horter, 73 S.D. 398, 403, 43 N.W.2d 543 (1950) (quoting Chicago, M. & St. P.R. Co. v. Mason, 23 S.D. 564, 122 N.W. 601, 603 (1909)).
[¶ 34.] A review of the code shows dozens of grants of eminent domain power. Municipalities can clear entire city blocks on a finding that the area is a slum or blighted area, for example. SDCL 11 — 8— 50. Even recycling and waste management districts, SDCL 34A-16-16 and television translator districts, SDCL 49-32A-17 have the power of eminent domain.
[¶ 35.] This is not the first case where a landowner challenged a taking under SDCL 21-35-10.1. The landowner in Basin Elec. Power Co-op v. Payne, supra, challenged the taking under the statute. The statute is relatively new in the eminent domain law only having been adopted in 1976 and amended in 1977. The pertinent parts of that statute read as follows:
Within thirty days from the date the summons described in § 21-35-9 is served, the defendant may demand a hearing in circuit court on the petitioner’s right to take.... The finding of necessity by the plaintiff, unless based upon fraud, bad faith or an abuse of discretion, shall be binding on all persons.
[¶ 36.] A reader of that statute might conclude that the legislature granted the courts new powers to review and perhaps, some might fear, micromanage condemnation proceedings. A review of the cases, however, teaches us that the legislature only codified the standards followed by the courts in eminent domain cases.
[¶ 37.] In City of Bristol v. Horter, supra, 73 S.D. at 403, 43 N.W.2d 543, we recognized the right of the courts to review a taking on the basis of fraud, bad faith or abuse of discretion when we stated:
In this case the purpose was public and the necessity was determined by the legally authorized municipal authority. It is not contended that the city is appropriating more land than is necessary for the use intended, and there is no claim of fraud, bad faith or abuse of discretion. Therefore the city’s determination that the necessity for the taking exists is conclusive.
[¶ 38.] We continued to recognize the residual power of the judiciary to examine takings noting that the entity delegated the condemnation power must strictly follow the requirements established by the legislature. Illinois Cent. R.R. Co. v. East Sioux Falls Quarry Company, 33 S.D. 63, 144 N.W. 724 (1913). Two quotations from that opinion show our thoughts in the use of and limitations on the eminent domain powers.
Appellants declare, and we think correctly, that it devolves upon a party seeking, through delegated power, to exercise the right of eminent domain to show:
(1) That such party is within the class to whom the power has been delegated.
(2) That all conditions precedent have been complied with.
(3) That the purpose for which the property is to be taken is one of the purposes enumerated in the statute.
(4) That the property is to be taken for a public use.
(5) That the particular property sought to be taken is necessary to the *332accomplishment of the public purpose intended.
144 N.W. at 724 and 725, and
Has respondent complied with the statutory conditions precedent to the exercise of the power of eminent domain in this case? The power of eminent domain being a power which is possessed by a railway corporation solely by being delegated to such corporation by the sovereign power of the state, its existence depends upon a strict compliance with each and every condition prescribed by such sovereign power, (citations omitted).
144 N.W. at 726.
[¶ 39.] As we can see from a cursory view of the cases, the statute really adds nothing to the power that the courts continued to reserve, although we might deduce that the legislature intended the judiciary to be more assertive in its review and less deferential to the condemning power.
[¶ 40.] The bench and bar really have nothing to fear from this opinion. The opinion does not change the relationship among the entities using eminent domain and the judiciary when we examine the cases and compare them to the statute. The facts in this case are extreme and even absent the statute, SDCL 21-35-10.1, the trial judge was proper in overturning the city’s actions.