FIFTH ANNUAL YEAR BOOK — PART VI. 503 



Ga., 418, it was decided that public benefit or utility was enough to justify 

 the exercise of the power of eminent domain. 



The reason of the case, and the settled practice of free governments, 

 must be our guides in determining what is, or what is not to be regarded as 

 a ''public use;" and that only can be considered such where the govern- 

 ment is supplying its own needs, or is furnishing facilities for its citizens in 

 regard to those matters of public necessity, convenience, or welfare, which 

 on account of their peculiar character and the difficulty, perhaps impos- 

 sibility, of making provision for them otherwise, it is alike proper, useful 

 and needful for the government to provide. 



Under this broader conception of the term ' 'public use" it may fairly be 

 held that when a thing is of public utility, or is conducive to the public 

 health or to its convenience, or to its welfare, it comes within the connota- 

 tion of the term "public use," and is, therefore, not obnoxious to the Con- 

 stitution, and as said by Judge Cooley, Constitutional Limitations, page 

 767, it is ' 'not necessary that the works are to serve all the inhabitants of 

 the municipality, if they are to serve all in a particular district. 



Three classes of cases may arise in the establishment of drainage districts. 

 First, the class where the public element is so pronounced that there can be 

 no dispute about it; second, the class where the public element is doubtful; 

 and third, where the public element is entirely wanting. In the last named 

 case it is to be presumed, the question being a judicial one, and a question 

 for the courts, that the supervisors, sitting as a court, will refuse to establish 

 the district, and, if they do establish it, the district court, on appeal, will 

 dismiss the proceedings. If the district court, on the showing made, re- 

 fuses to dismiss the proceedings, their findings become an adjudication that 

 a public element does exist in the case and that, therefore, the establish- 

 ment of the drainage district is constitutional. The first of the above named 

 cases could never give any trouble, the second class is where most of the 

 trouble is likely lo arise. However, notice carefully the last words of section 

 1 of the Drainage Act. They read as follows: "And the drainage of the 

 surface waters from agricultural lands shall be considered a public benefit 

 and conducive to the public health, convenience, utility, and welfare " In 

 the case of Hazen vs. Essex County., 12 Gushing, 546 the. court says: "If a 

 public use be declared by the legislature (and in this case you will observe it 

 was declared) the courts will hold the use public unless it manifestly appears 

 by the provisions of the act that they can have no tendency to advance such 

 public use." This holding of the Massachusetts court is quoted with ap- 

 proval by our own Supreme Court in Bankhead vs. Brown, 25 Iowa, 546. 

 In section 600 of the 4th edition of Dillion on Municipal Corporations, it is 

 said (and what it there said is supported by many authorities cited in the 

 footnotes). "If the legislature has declared the use or purpose to be a 

 public one, its judgment will be respected by the courts unless the use be 

 palpably private or the necessity for the taking plainly without reasonable 

 foundation." In the case of the United States vs. Gettysburg Electric R. 

 R. Co.y 16 Supreme Court Reporter, 429, the Supreme Court of the United 

 States, in commenting on the rule laid down by Dillon, says: "The rule 

 commends itself as a rational and proper one." This rule has also met 

 with the approval of the Supreme Court of Wisconsin. It has also been held, 

 88 Am. State Rep., 936, that where there is any doubt whether the use to 



