The exercise of the power by such cies is governed in the main by the same principles and limitations as when it is di rectly exerted by the federal or state govern ment, and the exceptions to this rule .readily disclose themselves In the consideration of the natural divisions of the subject. When' its exercise by a private corporation is au thorized it has been termed not a franchise but a means to the enjoyment of corporate franchises; Coe, v. R. Co., 10 CU) St. 372, 75 Am. Dec. 518; but the contrary view was expressed by Bradley, J., in California v. R. Co., 127 U. S. 1, 8 Sup. Ct., 1073, 32 L. Ed. 150; "a power conferred upon certain cor porations, which is not possessed by the citi zens generally, and which is in derogation of their rights, so nearly resembles a fran chise as to justify its treatment" under that title; 4 Thomp. Corp. § 5587. The use of the term franchise is not defined, by those who most use it, with sufficient precision to be conclusive against either view. It is as much a franchise, if one at all, if exercised by- an individual as a corporation, though the writer quoted seems to overlook the pos sibility of this. It is, however, a grant of• power or privilege from the sovereign to the citizen or subject, to 00 what would but for the grant be unlawful, and it un does come within the usually ac cepted definition of the word franchise (q. -v.). As is true with respect to franchises gener ally, the grant of the power is never presum ed unless the intent to part with it is clearly expressed; id. § 5588; Lewis, Em. Dom. § 240 ; Appeal of Pennsylvania R. Co., 93 Pa. 150 ; Butler v. Mayor, etc., of Thomasville, 74 Ga. 570; Schmidt v. Densmore, 42 Mo. 225; Chamberlain v. Steam Cordage Co., N. J. Eq. 43, 2 Atl. 775; and its exercise by the state may determine a preceding con tract made by the state without impairing the obligation of such contract, the right itself being always reserved by implication, if not expressly ; Tait's Ex'r v. Central Luna tic Asylum, 84 Va. 271, 4 S. B. 697.
' It is no objection to a grant of the power to a corporation that the latter is seeking to effect its own private gain; 4 Thomp. Corp. § 5589; for that is said to be merely compensation for the risk assumed for the benefit of the public; Concord R. R. v. Gree ly, 17 N. H. 47. When unrestrained by con stitutional provision, the discretion of the legislature in selecting agents through whom the ,power is to be exercised is absolute. In a state whose constitution• prohibits its exer cise by foreign corporations they cannot of course act unless domesticated in the state; St. Louis & S. F. R. Co. v. Foltz, 52 Fed. 627; :but otherwise' they may do so ; New York, N. H. & H. R. Co. v. Welsh, 143 N. Y. 411, 38 N. E. 378, 43"Am. St. Rep. 734; New York & E. R. 'Co. v. Young, 33 Pa. 175; Dodge v. City of CounCil Bluffs, .57 Ja. 560, 10 N. W. 886 ; but a constitutional incapacity cannot be avoided by through a domestic corporation ; Koening y. R. Co., 27 Neb. 699, 43 N. W. 423 (see State v. Scott, 22 Neb. 628, 36' N. W. 121) ; though by consolidating with a domestic corporation it may exercise the power ; Toledo, A. A. & G. T. R, Co. v. Dunlap, 47 Mich. 456, 11 N. W. 271; In re St. Paul & N. P. R. Co., 36 Minn. 85, 30 N. W. 432 ; as thereby the consolidated com pany becomes a corporation of the state; Trester v. R. Co., 33 Neb. 171, 49 N. W. 1110.
Foreign Corporation& A state cannot con fer upon any corporation, public, quasi pub lic or private, the power to exercise the right of eminent domain outside of its own limits; St. Louis & S. F. R. Co. v. Telegraph Co., 121 Fed. 276, '.58 C. C. A. 198 ;. Cliestatee Pyrites Co. v. Mining Co., 119 Ga. 354, 46 S. E. 422; 100 Am. St. Rep. 174 ;,Helena Pow er Co. v. Spratt, 35 Mont. 108, 88 Pac. 773, 8 L. R. A. (N. S.) 567, 10 Ann. Cas. 1055 ; Duke v. Cable Co., 71 S. C. 95, 50 S. E. 675 ; but the fact that a corporation duly organ ized under the law of the state is subsidiary to a foreign corporation does not affect its right to power; Oregon Short Line R. Co. v. Cable Co., 111 Fed. 842, 49 C. C. A. 663. A domesticated foreign corpo ration may, in the absence of constitutional prohibition, be authorized by statute to ex ercise the power within a state; Columbus Water Works Co. v. Long, 121 Ala. 245, 25
South. 702; Illinois State Trust Co. v. R. Co., 208 Ill. 419, 70 N. E. 357 ; Southern Illinois & M. Bridge Co. v. Stone, 174 Mo. 1, 73 S. W. 453, 63 L. R. A. 301; In re New York & N. H. Co. (In. re Marks) 53 Hun .633, 6 N. Y. Supp. 105; Abbott v. Railroad, 145 Mass. 450, 15 N. E. 91 ; New York & Erie R. Co. v. Young, 33 Pa. 175 ; or the district of Alaska; St. Louis & S. F. R. Co. v. Telephone & Tele graph Co., 121 Fed. 276, 58 C. C. A. 198.
Statutes conferring the power of eminent domain are to be construed strictly; God dard Ry. Co., 202 Ill: 362, 66 N. E. 1066; Chesapeake & 0. Ry. Co. v. Walker, 100 Va. 69, 40'S, E. 633, 914 ; State v. Superior Court for Chelan County, 36 Wash. 381, 78 Pac. 1011; City of Puyallup v. Lacey, 43 Wash. 110, 86 Pac. 215 ; aliter, Petersburg School Dist. v. Peterison, .14 N. D. 344, 103 N. W. 756.
The power can only be delegated for a public use ; People v. R. Co., 2 McCarty, Civ. Pro. (N. Y.) 345; a statute authorizing a telegraph company to construct, maintain, and operate its lines over and along any military or post road of the United States does not confer authority to condemn a right of way over private property ; Western Un ion Telegraph Co. v. R. Co., 195 U. S. 540, 25 Sup. Ct. 133, 49 L. Ed. 312, 1 Ann. Cas. •17; land may be taken for a private road if it is open to the public ; County of Madera v. Granite Co., 139 Cal. 128, 72 Pac. 915; the laying out of private roads may be au thorized ; Dickinson Township Road, 23 Pa. Super. Ct. 34; contra, Beaudrot v. Murphy, 53 S. C. 118, 30 S. E. 825; Varner v. Martin, 21 W. Va. 534.
How the Question of Public Use is Deter mined. It is well settled that the power ex ists only in cases where the public exigency demands its exercise. See remarks of Wood bury, J., and cases cited by him in West Riv er Bridge Co. v. Dix, 6 How. (U. S.) 545, 12 L. Ed. 535. But the practice of all the states and of the federal government, since this decision, in condemning land for pur poses of public convenience 'but not neces sity, has been so frequent that the legislative control over the necessity and the particular location is almost universally conceded. Mills, Em. Dom. § 11 ; Nichols, Em. Dom. ch. liii. In a proceeding to condemn land, the term "necessary" does not mean that it is indispensable or imperative, but only that it is' convenient and useful ; and if an improve ment is useful, and a convenience and bene fit to the public sufficient to warrant the ex pense in making it, then it is necessary ; Com'rs of Parks and Boulevards of City of Detroit v. Moesta, 91 Mich. 149, 51 N. W. 903 ; but it is no ground for a right to take land that its resources could be utilized at a much less expense than the land already owned; Spring Valley Water Works v. San Mateo Water Works, 64 Cal. 123, 28 Pac. 447. In 4 Thomp. Corp. § 5593, in concluding a discussion of the various theories as to what uses are public uses, the author says : "But it is a sound conclusion that the use must be a public use in the sense that it is open to such members of the public as may choose to use it upon the performance of reasonable or proper conditions; or in the sense a satisfying a great public want or exigency. On the other hand, where the public use is not compulsory, but is optional with the private corporation seeking the condemnation, it is not a public use." In U. S. v. Ry. Co., 160 U. S. 668, 16 Sup. Ct. 427, 40 L, Ed. 576, it was said: "The constitution provides that private proper ty shall not be taken for public uses with out just compensation. These words are a limitation, the same in effect as 'You shall not exercise this power except for public use.'." legislature cannot so determine that the use is public as to make its determina tion conclusive on the courts, and the ex istence of a public use in any class of cases is a question for the courts ; Tyler v. Beach er, 44 Vt. 648, 8 "Am. Rep. 398; Varner v. Martin, 21 W. Va. 534; McQuillen v. Hatton, 42 Ohio St. 202; New Central Coal Co. v. George's Creek Coal & Iron Co., 37 Md. 537; Consolidated Channel Co. v. R. Co., 51 Cal. 269; Sadler v. Longhorn, 34 Ala. 311.