Opinion of the Court-Morgan, J. It is immaterial for the purpose of this litigation whether the title to this strip of land stood in the name of the appellant or of the Shoshone railway, inasmuch as it furnishes the only way and means by which the timber of the appellant can be marketed. (State v. Superior Court, 65 Wash. 129, 117 Pac. 755.) John P. Gray, C. H. Potts and W. F. McNaughton, for Respondent. Sec. 5226, Rev. Codes, is constitutional, and the proceeding is therein set forth whereby upon the appointment of the commissioners and the assessment of damages the condemnor may enter in the possession of the property sought in behalf of the public use without waiting for the termination of any litigation that may be instituted. (Portneuf Irr. Co. v. Budge, 16 Ida. 116, 100 Pac. 1046, 18 Ann. Cas. 674.) In the case of McLean v. District Court, 24 Ida. 441, Ann. Cas. 1915D, 542, 134 Pac. 536, this same section of the statute was given very careful examination by the court to ascertain whether or not it accomplished the purpose for which it was designed. MORGAN, J.-This case has heretofore been before this court upon appeal from a judgment of dismissal made and entered upon the refusal of the above-named respondent (appellant in that case) to further plead after a demurrer to its complaint had been sustained. (Blackwell Lumber Co. v. Empire Mill Co., 28 Ida. 556, 155 Pac. 680.) The decision of the trial court was reversed and the cause remanded for further proceedings. A trial has been had and judgment condemning sufficient land for a right of way for a temporary logging railroad and appointing commissioners to assess the damages appellant will suffer, by reason of the condemnation and appropriation, has been entered, from which an appeal is now pending in this court. The case is before us now upon appellant's application, supported by an affidavit, for an order staying all proceedings pending the determination of the appeal, from which it Opinion of the Court-Morgan, J. appears that appellant contends it had, prior to the commencement of this action, acquired and dedicated to use for railroad purposes the land sought to be taken from it by respondent, and that, subsequent to the commencement of the action, it had deeded a right of way over the land to a corporation organized for the purpose of constructing and operating a common carrier railroad thereon; that the use to which the last-mentioned corporation intends to put the land is a greater and more necessary public use than is that to which respondent proposes to apply it, and that this action cannot, therefore, be successfully maintained. Respondent demurred to and moved to dismiss the application upon the ground that neither it nor the affidavit filed in support of it states facts sufficient to constitute a cause of action or any ground for relief; that this court is without jurisdiction to entertain the proceeding or to grant the relief applied for, and that a stay of proceedings is not authorized by law in a condemnation suit during the pendency of an appeal to the supreme court. Counsel for respondent cites and relies upon the case of McLean v. District Court, 24 Ida. 441, Ann. Cas. 1915D, 542, 134 Pac. 536, wherein it was held, and we believe correctly, that an appeal in a condemnation suit does not operate to stay proceedings under the provisions of our Code of Civil Procedure. While it may be conceded that no stay has been provided for or even intended by the legislature in cases of this kind, it must also be conceded that the constitution invests this court with considerable discretionary power in the matter of the issuance of such writs as it may deem to be expedient in the exercise of its jurisdiction, and prohibits the legislature from interfering with that power. Sec. 9, art. 5, of the constitution is as follows: "The supreme court shall have jurisdiction to review, upon appeal, any decision of the district courts, or the judges thereof. The supreme court shall also have original jurisdiction to issue writs of mandamus, certiorari, prohibition, and habeas corpus; and all writs necessary or proper to the complete exercise of its appellate jurisdiction." Opinion of the Court-Budge, J., Dissenting. In sec. 13, art. 5, it is provided: "The legislature shall have no power to deprive the judicial department of any power or jurisdiction which rightfully pertains to it as a co-ordinate department of the government; but the legislature shall provide a proper system of appeals, and regulate by law, when necessary, the methods of proceeding in the exercise of their powers of all the courts below the supreme court, so far as the same may be done without conflict with this constitution." Had the legislature sought to expressly prohibit the issuance of an order of this court staying proceedings upon appeal in condemnation cases (which it has not attempted to do), its effort in that behalf would have been in conflict with the foregoing provisions of the constitution and ineffectual. Since the construction of respondent's logging railroad upon the land in controversy will involve considerable useless expense, in the event its right to do so is not finally sustained, and since it is the intention of this court to hear the appeal of this case at its forthcoming term, to be held at Coeur d'Alene in August of this year, and to speedily dispose of it, to the end that if respondent's claim of right to appropriate the land is sustained no very great delay will result from our action in this behalf, we have concluded to overrule the demurrer and motion to dismiss and to continue in full force and effect the order heretofore made staying proceedings in this case, and it is so ordered. Costs will abide the result of the appeal. Sullivan, C. J., concurs. BUDGE, J., Dissenting.-I find myself not in accord with the majority opinion, and am forced to dissent from the conclusions reached. The facts stated in the majority opinion, so far as they relate to the case of Blackwell Lumber Co. v. Empire Mill Co., reported in 28 Ida. 556, 155 Pac. 680, are correct. This case, however, has been in this court before, and will be found reported in Empire Mill Co. v. District Court of Eighth Judicial District, 27 Ida. 383, 149 Pac. 499, and Empire Mill Co. v. Opinion of the Court-Budge, J., Dissenting. District Court of First Judicial District, 27 Ida. 400, 149 Pac. 505. From an investigation of the various appeals that have been taken by the Empire Mill Co. involving the subject matter of this litigation, it will appear that in February, 1915, the Blackwell Lumber Co. instituted an action in condemnation against the Empire Mill Co. for the purpose of condemning a strip of land across three forty-acre tracts of land owned by the Empire Mill Co. for the construction of a temporary logging railroad, to transport from the lands of the Blackwell Lumber Co. large quantities of timber to its mills to be manufactured into lumber. The Blackwell Lumber Co., it appears, is the owner of about four hundred acres of timber lands situated at the head of a gulch down which it proposes to construct said logging railroad. It also appears that on this four hundred acres of land there is a large amount of white pine and mixed timber now standing which is ripe and ready for market; that there has also been cut on said timber land in the neighborhood of one and one-half million feet of timber which, unless removed, will materially deteriorate, if not become wholly valueless; that the only way this timber can be removed, transported and manufactured is over a railroad to be constructed down the gulch located on the land of the Empire Mill Co. which is sought to be condemned by the Blackwell Lumber Co. for said right of way; and that a portion of said temporary logging railroad has already been constructed over lands adjoining the land of the Empire Mill Co. and over a portion of land of the Empire Mill Co., leaving but a short distance still to be constructed in order to make it possible to transport the timber already cut and that growing on the lands of the Blackwell Lumber Co. When this case was brought to this court in the first instance (27 Ida. 383, 149 Pac. 499, and 27 Ida. 400, 149 Pac. 505), it was for the purpose, mainly, of having determined the question of whether, in the absence of all of the officers of the Empire Mill Co. from the state of Idaho, service of summons could be legally made under the provisions of secs. Opinion of the Court-Budge, J., Dissenting. 5226, 4890 and 5228, Rev. Codes. This question was determined by this court in favor of the Blackwell Lumber Co., the court holding in substance that in the absence of all the officers of a corporation from the state, substituted service in an action for condemnation was valid. The next question presented to this court in this litigation arose upon demurrer to the sufficiency of the complaint in the case of Blackwell Lumber Co. v. Empire Mill Co., 28 Ida. 556, 155 Pac. 680. The Empire Mill Co. contended in that case that the use sought, namely, the condemnation of the land described in the complaint of the Blackwell Lumber Co. for the purpose of constructing a temporary logging railroad, was not a public use authorized by law, and that therefore the Blackwell Lumber Co. had no right to condemn the lands. In a majority opinion this court held that the use was a public one, as recognized by the constitution of this state; that the provisions of the constitution were self-executing, and that the Blackwell Lumber Company had the right, upon a proper showing, under the constitution and laws of this state, to condemn the land described in its complaint, for the purpose of constructing a temporary logging railroad. The cause was thereupon remanded to the district court, with directions to overrule the demurrer and require the Empire Mill Co. to answer. The Empire Mill Co. then filed its answer denying the necessity for the condemnation, and setting up the incorporation of the Shoshone Railway Co. (which corporation was organized immediately prior to the handing down of the opinion of this court in the case of Blackwell Lumber Co. v. Empire Mill Co., 28 Ida. 556, 155 Pac. 680), and the transfer to it of the right of way sought by the Blackwell Lumber Co., and alleging that the land sought to be condemned had already been appropriated to a public use. Notice was thereupon given by the Blackwell Lumber Co. for the appointment of commissioners to assess and determine the damages that might accrue to the Empire Mill Co. by reason of the condemnation and appropriation of the land described in the complaint of Idaho, Vol. 29-16 |