Burnett v. Markley, 23 Or. 436, 31 Pac. Mr. G. W. Hurd, with Mr. F. S. Jack-1050; Call v. Hamilton County, 62 Iowa, son, Attorney General, for plaintiff in er- 448, 17 N. W. 667; State ex rel. Herren v. Hall, 37 Or. 479, 63 Pac. 13; Tasker v. Garrett County, 82 Md. 150, 33 Atl. 407; Richmond v. Dickinson, 155 Ind. 345, 58 N. E. 260; Fleener v. Litsey, 30 Ind. App. 399, 66 N. E. 82; Disbrow v. Cass County, 119 Iowa, 538, 93 N. W. 585; Wilhelm v. Cedar County, 50 Iowa, 254; Hawk v. Marion County, 48 Iowa, 472; Shinn V. Cunningham, 120 Iowa, 383, 94 N. W. 941; Reed v. Cunningham, 121 Iowa, 555, 96 N. W. 1119.

the county property and the management of, ernments for the maintenance of which they the business and concerns of the county, in had denied the payment of a small portion all cases where no other provision is made of their accumulated wealth. Our state has by law." The statute has prescribed a com- had equitable tax laws from its first organplete and entire system of listing, valua-ization, which, if obeyed, would have fairly tion, and taxing of all real and personal property, and has also prescribed a procedure for discovering and listing property for taxation which has escaped the surveillance of the assessors, and has assigned the several steps in the system and procedure to designated officers of the townships and counties of the state. It has imposed upon certain officers the very duties which, by the contract in question, the county commissioners undertook to employ Moir to perform. Articles 11 and 12, chap. 107, Gen. Stat. 1901. It was beyond the power of the board of county commissioners to employ any other agency to perform these duties which had been imposed upon county officers, and the contract is therefore ultra vires and void. Brown v. State, supra; Pomeroy Coal Co. v. Emlen, 44 Kan. 117, 24 Pac. 340; Waters v. Trovillo, 47 Kan. 197, 27 Pac. 822. See also Chase v. Boulder County, 37 Colo. 268, 86 Pac. 1011; Stevens v. Henry County, 218 Ill. 468, 4 L.R.A. (N.S.) 339, 75 N. E. 1024; Grannis v. Blue Earth County, 81 Minn. 55, 83 N. W. 495; Storey v. Murphy, 9 N. D. 115, 81 N. W. 23; House v. Los Angeles County, 104 Cal. 73, 37 Pac. 796; Platte County v. Gerrard, 12 Neb. 244, 11 N. W. 298.

equalized the necessary burdens, but, as administered, they have resulted in great injustice and dissatisfaction. Even the beneficent exemption from taxation of $200 worth of property to the family has been abused. Assessing officers, sworn to perform their duties impartially, have felt compelled to depart from the plain provisions of the law to avoid injustice to their respective townships. Men generally honorable and accounted good citizens have, in listing their property, done so in accordance with the general custom, and not at its true value. Indeed, so general has been the evasion of the law that the citizen has been compelled to choose between following the custom and suffering a wrong. Taxing officers have held conventions to agree upon a basis of assessment other than that provided by law. On the other hand, the tax ferret, coming upon the scene with a contract for fat commissions, acquaints himself with the evasions that have occurred in past years, and by threats of public exposure, and even criminal prosecution, in short, by all the methods known to the blackmailer, forces from the citizen a statement of property to be taxed, and even The contract in this case grew out of an a payment of money for past delinquencies attempt to solve a problem in civil govern- far beyond the requirements of the law. ment which has vexed the ages since the The situation has been such that it is not a dawn of history. The calling of the pub- wonder that boards of county commissionlican who sat at the receipt of customs furers should embrace almost any plan that nished Hebrew literature with the most promised a reasonably fair collection of nechated name it recorded. The question how essary public revenues in proportion to the to collect the necessary revenues to main- amount of property really owned by the tain the government was as distracting in citizens of their respective counties. Probthe economy of Greece and Rome as it is in ably no board of county commissioners modern nations. In the Middle Ages the which ever made a contract such as is inquestion was attempted to be met by repris- volved in this action anticipated the methals in war or by arbitrary assessments upon ods that would be employed under it. They wealthy subjects. Later the greater govern- probably had not studied the iniquities ments exploited their colonies, and this was which have at all times grown up under a deciding factor in the rebellion of the every system that has been in vogue of American colonies against Great Britain. The farming out the collection of the public difficulties present led the founders of our revenues. The experiences of the past, howgovernment to the evasion of indirect tax-ever, have been such that it is impossible to ation, without which, possibly, the union contemplate any civilized community, with of the states had long since been dissolved. a knowledge of its history, again reviving Even this evasion has evidently not eliminated all the difficulties, as it has furnished the dominant questions in politics for two generations. Under all governments and in The question whether the defendant in all times, one of the greatest strifes has error is entitled to recover in quantum merarisen from attempts to shift the burden uit is, if a contract, which the county comof taxation upon other shoulders. Men have missioners had no power to make, should sent their sons into battle or recklessly be implied. Such a contract will not be imgiven their own lives to preserve their gov-plied, especially in payment for services

the odious practice. The contract is not only void for want of authority, but as being against public policy.

.

which were, as in this case, illegal in them- may have occasion to avail themselves of selves. There are cases in which counties the privilege. and municipalities are, upon the avoiding of a contract, held under obligations to put the opposite party in statu quo, or, if this

CHESAPEAKE STONE COMPANY, Appt., get her stone from her stone quarry to the

circuit court, and filed in that court a court. But, in substance and effect, the cirtranscript of the record made in the county cuit court entered as its judgment the judgcourt. This record was introduced as evi- ment of the county court; and, as the judg dence, and a witness was introduced who ment of the county court defined with pretestified that since the proceedings in the cision the rights of the parties, and awarded county court C. S. Moreland had sold the compensation to be paid before the tramway land upon which the tramway was to be lo- could be taken possession of, no question cated to the Norton Iron Works Company. can arise as to the meaning and effect of the reserving the roadway over the land so sold judgment of the circuit court. The arguto be used for any purpose she desired. The ment of counsel for appellant that the cirland sold to the Norton Iron Works Com-cuit court did not award any compensation .pany is between the land of the Chesapeake is not well taken, because the judgment of Stone Company and the land originally the county court, which was adopted by the owned by C. S. Moreland. There is a stone circuit court, provides, in terms, that, "bequarry on the land of C. S. Moreland, and fore said land shall be taken by the petialso on that sold by her to the Norton Iron tioner for said purpose, said petitioner shall Works Company. No other evidence was pay, or offer to pay, said Chesapeake Stone introduced by either party. Thereupon the Company the sum of $100." It is therefore circuit court entered the following judg clear that, under the judgment of the cirment: "This cause coming on for trial, and cuit court, appellee cannot take possession the court having heard all the evidence of of the property until the compensation alfered, and the argument of counsel, and be- lowed has been paid. ing sufficiently advised, orders and adjudges that each and all of the motions and exceptions filed herein by appellant in the Carter circuit court on July 31, 1906, and in the Carter county court on March 3, 1906, be and they are hereby overruled, to which ruling of the court the appellant objected and excepted at the time said rulings were made; and it is adjudged by the court that the appellee, C. S. Moreland, is entitled to the tramroad adjudged by the Carter county court, and the report of the reviewers therein is confirmed. To which judgment of court appellant objected and excepted at the time."

The act provides that "either party may appeal to the circuit court by executing bond as required in other cases within thirty days, and the appeal shall be tried de novo upon the confirmation of the report of the commissioners in the county court or the assessment of damages by said court as herein provided." § 3. The first objection made by appellant is that, in a proceeding under this act, the circuit court must do more than confirm the judgment of the county court, as was done in this case; that the proceeding must be determined in the circuit court without reference to what takes place in the county court, and judgment entered in the circuit court fixing or defining the rights of the parties and awarding compensation that shall be paid for the tramway as ordered. It is said that the judgment of the circuit court does not fix or define the rights of the parties, or award compensation, but merely confirms the judgment of the county court. In the disposition of proceedings of this character the circuit court should enter a final judgment fixing the rights of the parties and awarding compensation, without reference to the action taken in the county

A more serious question is presented in the contention that the act of 1904 is unconstitutional. Under the Revised Statutes adopted in 1852, when it was necessary for a citizen to have a private pass way over the land of one or more persons in the county to enable him "to attend courts, elections, a meetinghouse, a mill, or warehouse,” he might have a pass way condemned and established. The General Statutes adopted in 1873 added to the uses for which a private pass way might be established the right to condemn to enable a citizen "to pass from one tract of land to another owned by him, or to a railroad depot most convenient to his residence." By subsequent acts embraced in § 4348, Ky. Stat. 1903, ferries and steamboat landings were included. By the act of 1904, which is an amendment to § 4348 of the Kentucky Statutes of 1903, the uses for which private ways might be condemned was again extended, so as to allow the establishment of "a private tramroad or haul road over the land of one or more persons to enable him to reach a warehouse, steamboat landing, ferry, railroad switch, or navigable stream, for the purpose of marketing the products of a lead mine, iron works, salt works, coal mine, fire clay, and other minerals, oil wells, stone quarry, sand bank, or merchantable forest timber." This section also provides that "nothing in this act shall operate to give any person, firm, or corporation exclusive use of such passage; but any other person, firm, or corporation shall have the right to use the same upon paying proper compensation therefor; if no agreement can be made for such compensation, then the right to such use may be condemned as herein provided." It will thus be seen that the legislature has gradually been enlarging the uses for which

private property may be taken. Our Constitution does not define what is "public use," merely providing in § 242 that "municipal and other corporation and individuals invested with the privilege of taking private property for public use shall make just compensation for property taken, injured, or destroyed by them;" and this provision was, in substance, in each of the preceding Constitutions, and may be found in the Constitution of nearly all the states of the Union.

Under these constitutional provisions, it is said by Judge Cooley, in Constitutional Limitations (page 530), to be "conceded on all hands that the legislature has no power in any case to take the property of one individual and pass it over to another without reference to some use to which it is to be applied for the public benefit." There is, however, a difference of opinion held by the courts as to what constitutes a public use, some of them ruling that, if the public interest can be in any way promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain, and to authorize an interference with the private rights of individuals for that purpose; in other words, holding that whatever is or may be beneficially employed for the community is a public use. On the other hand, numerous cases hold that, to constitute a public use, the property must be taken into the direct control of the public or public agencies, or the public must have the right to use in some way the property appropriated. Indeed, so conflicting are the authorities upon what constitutes a public use that Judge Cooley, in his Constitution al Limitations (page 766), deemed it proper to remark that "we find ourselves somewhat at sea, however, when we undertake to define in the light of judicial decisions what constitutes a public use;" and any person who undertakes to arrive at a satisfactory conclusion from an investigation of the authorities will find himself in the same condition as Judge Cooley.

the editorial notes to Beekman v. Saratoga & S. R. Co. 22 Am. Dec. 686, and to Lynch v. Forbes, 42 Am. St. Rep. 402, and Chicago & N. W. R. Co. v. Morehouse, 88 Am. St. Rep. 919, the authorities on this point are collected and commented upon. Indeed, the courts in several states seem to have adjudged the question in such manner as was best adapted to the needs and wants of the people. In discussing this question, Lewis, on Eminent Domain, § 165, says: "Public use means the same as use by the public; and this, it seems to us, is the construction the words should receive in the constitutional provision in question. The reasons which incline us to this view are: First, that it accords with the primary and more commonly understood meaning of the words; second, it accords with the general practice in regard to taking private property for public use in vogue when the phrase was first brought into use in the earlier Constitutions; third, it is the only view which gives the words any force as a limitation, or renders them capable of any definite and practicable application. If the Constitution means that private property can be taken only for use by the public, it affords a definite guide to both the legislature and the courts."

This view seems to have been adopted by this court in the well-considered case of Robinson v. Swope, 12 Bush, 21, where it is said: The citizen may occupy and use his land in any lawful manner he chooses, "subject only to the right of the public to take it upon compensation previously made for some public use; that is, to be occupied and enjoyed by the public, or for some use necessary to enable the public to command the services of citizens, or to enable the citizen to perform his duties to the public." And in this view we concur; our opinion being that the public must have some right to use and enjoy the property taken, as distinguished from the absolute control of the individual. In other words, an individual, for his own use and benefit, unless it be necessary to enable him to perform some public service, cannot take the private property of another, however needful or convenient to Some of the courts hold that the establish him the use might be. It seems entirely ment of private roads or ways like the one probable that only a few persons aside from here in question is deemed inhibited by con- the individual at whose instance it was esstitutional provisions similar to ours. Sholl tablished will have occasion to use this v. German Coal Co. 118 Ill. 427, 59 Am. Rep. tramway; but this fact does not destroy its 379, 10 N. E. 199; Osborn v. Hart, 24 Wis. public use in the meaning of the Constitu89, 1 Am. Rep. 161; Wild v. Deig, 43 Ind. tion. It is not the number of people who use 455, 13 Am. Rep. 399; Welton v. Dickson, the property taken under the law of eminent 38 Neb. 767, 22 L.R.A. 496, 41 Am. St. Rep. domain that constitutes the use of it a pub771, 57 N. W. 559. In others they are al- lic one; nor does the fact that the benefits lowed. Latah County v. Peterson, 3 Idaho, will be in a large measure local enter into 398, 16 L.R.A. 81, 29 Pac. 1089; Sherman the question. In short, according to the genv. Buick, 32 Cal. 241, 91 Am. Dec. 577. Inerally recognized rule, the length of the pub