The Missouri constitution provides, as, do those of Colorado, Mississippi, and Washing ton, that it shall be a judicial question whether the use contemplated is public, and that question will be determined without the aid of a jury; City of Savannah v. Hancock, 91 1Nlo. 54, 3 S. W. 215.
The Massachusetts Bill of Rights uses the term "public exigency" and the existence of one was said by. Shaw, C. J., to be made by implication a prerequisite; Harback v. City of Boston, 10 Cush. (Mass.) 295. There is a similar provision in Maine, and in both states the rule making the necessity a legis lative question is followed as in other states ; Lynch v. Forbes, 161 Mass. 302, 37 N. E. 437, 42 Am. St. 402; Hayford v. City of Bangor, 102 Me.. 340, 66 AU., 731, 11 L. R. A.
(N. S.) 940a The Michigan constitution re quires the necessity of all takings, except by the state, to be determined by a jury, and in Wisconsin a similar provision applies to condemnation by municipal corporations.
The presuMption is in favor of the public character of a use declared so by the legis lature ; Appeal of Edgewood R. Co., 79 'Pa. 257; Varner v. Martin, 21 W. Va. 534; and unless it is clear that it is not possible for the use to be public, the courts cannot inter fere; Mills, Em. Dom. § 10.
In an early case it was said that in general the dtestion whether a particular structure, as a bridge, or a lock, canal, or road, is for the public use, is a question for the legislature, and it may be pre sumed to have been decided by them ; Hazen v. Essex Co., 12 Cush. (Mass.) 475; citing Com. v. Breed, 4 Pick. (Mass.) 463; but in a later case when this position was broadly urged, it was held to be obviously untenable, and that, where the power was exercised, it necessarily involved an inquiry into the rightful authority of the legislature under the organic law, and that the legislature had no power to determine finally upon the extent of its authority over private rights ; Talbot v. Hudson, 16 Gray (Mass.) 417. In this case what Is probably the true doctrine was stated, that it is the duty of the courts to make all reasonable presumptions in favor of the validity of the legislative act. But this Is simply the applicatiOn to this particular subject of the gen eral presumption of the constitutionality of legis lative acts.
This right of the courts to determine the question of public use was maintained in In re Niagara Falls & W. Ry. Co., 108 N. Y. 375, 15 N. E. 429; but if the court determine the matter in question to be a public use,. their power is exhausted and the extent to which property shall be taken for it is wholly in the legislative discretion; Shoemaker v. U.
S., 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170. Whether the necessity exists for tak ing the property is a legislative question ; Lynch v. Forbes, 161 Mass. 302, 37 N. E. 437, 42 Am. St. Rep. 402.
The grant of the right is a determination on the part of the legislature that the object is necessary; Central R. Co. of New Jersey v. R. Co., 31 N. J. Eq. 475 ; and of this it is the judge ; Tracy, etc., v. R. Co., 80 Ky. 259; In re Application of Jacobs, 98 N. Y. 109, 50 Am. Rep. 636; North Missouri R. Co. v. Gott, 25 Mo. 540; and parties cannot be heard on the question of necessity ; Holt v. City Council of Somerville, 127 Mass.. 408. If it is a public use there is no restraint on legislative discretion and the judicial func tion is gone ; Mills, Em. Dom. § 11. If the use is certainly public courts will not inter fere; only, when there is an attempt to evade the law and procure condemnation for pri vate uses will courts- declare it void; Mills, Em. Dom. § 11; Baltimore & 0. R. Co. v. R. Co., 17 W. Va. 812. The fact that a rail road has located its line across certain land, is prints facie proof that it is necessary for it to take that land for the use of its road; O'Hare v. R. Co., 139 Ill. 151, 28 N.
923... Whether the land is reasonably required is a question of fact.-to be de termined by the court or jury, and the burden of proof is on the plaintiff ; Spring Valley Water Works v. Drinkhouse, 92 Cal. 528; 28 Pac. 681.
It has been held that when under the con stitution a federal question arises, the su preme court will determine the law without reference to state decisions ; Ohio Life Ins. & Trust Co. v. Debolt, 16 How. (U. S.) 432, 14 L. Ed. 997. See Olcott v. Fond du Lac County, 16 Wall. (U. S.) 678, 21 L. Ed. 382; People v. Batchellor, 53 N. Y. 128, 13 Am. Rep. 480. But in determining what is a tak ing of property, the federal courts will ac cept the definition of the word property by the state court, where it is clearly Pumpelly v. Canal Co., 13 Wall. (U. S.) 166, 20 L. Ed. 557; D. M. Osborne & Co. v. R. Co., 147 U. S. 248, 13 Sup. Ct. 299, 37 L. Ed. 155 ; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224'; Yates v. Milwaukee, 10 Wall. (Ili S.) 497, •9 L. Ed. 984 ; even following re versals by the latter; Leffingwell v. Warren, 2 Black.. (U. S.) 599, 17 L. Ed. 261; Green v. Neal, 6 Pet. (U. S.) 291, 8 L. Ed. 402; Olcott v. Fond du 'Lac County, 16 Wall. (U. S.) 678, 21 L. Ed. 382.