Stewart v. Great Northern Railway Co. ( 1896 )

CANTY, J.

I concur in the foregoing opinion, but my reason for holding that the statute is not class legislation, and therefore unconstitutional, because it authorizes only the condemnation of the railway right of way for a site for the elevator, and does not authorize the condemnation of private property adjoining the right of way, which private property is sometimes equally as available as an elevator site, is as follows: The legislature has undoubted constitutional power to give the petitioner a right to select either a site on the right of way or on private property (Cooley, Const. Law [5th Ed.] 668), and the constitutional provision was not intended to prohibit this. If the legislature has the power to delegate to the petitioner the right to select the right of way, it must have the power to make the selection itself, as the power is peculiarly a legislative one. The fountain cannot rise higher than its source. The delegated power cannot be greater than the source of that power. It is clearly, then, a case where the clause of the constitution prohibiting class legislation does not apply.