Connecticut College v. Calvert

The "Thames College" was duly incorporated. 16 Special Laws, p. 101. Section 2 recites: "The sole and exclusive purpose of said corporation shall be to establish, organize, maintain, and conduct an institution for the higher education of women." By a later Act (16 Special Laws, p. 291) its name was changed to "Connecticut College for Women." By a later Act (16 Special Laws, p. 385) the General Assembly empowered it to take such real estate in the towns of New London and Waterford as its trustees should find to be necessary for its corporate purposes, upon payment of just compensation.

The College brings its application under this Act to condemn land which it alleges is necessary for its site.

The defendant demurs to the application, claiming that the General Assembly could not constitutionally delegate to this College the power of eminent domain, because the land to be taken is taken for a private use, and not for a public use.

The constitutionality of the Act is assailed because its purpose — the higher education of women — is claimed to be a private and not a public use. Private property cannot be taken for a private use; it can only be taken for a public use. In determining whether the purpose of this Act be public or not, the court should resolve every reasonable intendment in favor of the legislative declaration that the purpose of the Act is public. In case of doubt it should resolve the doubt in favor of the validity of the Act. Unless it be so clear that there can be no reasonable doubt that the purpose declared to be public is in fact private, the court must uphold the Act. This is a rule of construction heretofore uniformly adhered to by us. Beach v. Bradstreet, 85 Conn. 344,349, 82 A. 1030.

The opinion of the court holds that a use administered for a private interest may be a public use within the constitutional limitation, if it be (1) a use governmental or public in its nature, and (2) one to the benefit of which the public have a common and equal right.

It further holds that the higher education of women, which is the purpose of the petitioner's charter, is public in its nature, but that there is nothing in its charter, or in its application, which shows that the public have or can acquire a right to the benefit of its corporate purpose upon equal terms. In short, it holds that the right of eminent domain might be granted a private corporation whose purpose was the higher education of women, provided that, under its charter, the public had the right to enjoy upon equal terms the education so provided, and the application showed that the corporation was to use the land taken for this purpose. If such a use had been shown, the grant to the petitioner must have been sustained. The court thus holds that there is no insuperable constitutional objection to granting to a private corporation engaged in the higher education of women the right of eminent domain.

Since the charter is a part of the application, no further allegation was necessary. Whether the use granted is open to the public or not, is to be determined by the terms of the charter read in the light of its history. An allegation in the application, for example, that the trustees had voted to open the doors of the College to all women, could not add to or subtract from the terms of the charter. What the trustees do they can undo; what the charter gives remains.

A college is open to the public on equal terms, although admission to it is surrounded by reasonable regulations which do not prohibit, in a partial way, the public from the right to enjoy the benefits of the institution. For example, an examination for admission, or a limitation of the number of students, would be reasonable regulations, provided all of the public have the equal opportunity to take the examination and to be admitted without discrimination. With this interpretation of the meaning of "open to the public on equal terms," I do not understand my brethren to differ. It is my clear conviction that under this charter the petitioner is bound to furnish to all women upon equal terms the higher education provided for by its charter, and that the land sought to be taken is to be used for this purpose. If this conclusion be sound, the foundation on which the opinion rests falls.

Let us now assume, as my brethren hold, that a prerequisite of the grant of eminent domain to the Connecticut College for Women is that the education it provides shall be open to the public upon equal terms.

With little or no argument, the opinion holds: "There is nothing in the petitioner's application or charter to show that the public has or can acquire a right to the benefit of its corporate purposes." We think a fair and reasonable construction of the charter leads to the conclusion that the education to be furnished by this College will be open to all women of our State upon equal terms. It is worth noting that the counsel, who have twice argued this question to this court, refrained from making the claim upon which the opinion rests, but contended that the right of eminent domain was limited to the taking of private property for a governmental purpose, which they asserted was the equivalent of governmental control, and therefore the constitutional inhibition limited the right to take save when done under the control or regulation of the State. The opinion holds that governmental purpose, as used by it, is such use as "might properly be administered by the State itself, or by some political subdivision thereof."

These ideas of governmental purpose are thus seen to be diametrically opposed. The former has some authority to support it; the latter none which we have found. Each principle acknowledges many exceptions, and all, when analyzed, are found to rest upon the public welfare served. And neither makes provision for new public uses, which the changing conditions of society have developed in the past, and are sure to develop in time to come.

The Connecticut College for Women was chartered for the sole and exclusive purpose of establishing, maintaining, and conducting an institution for the higher education of women. The purpose as expressed is not in terms limited to some women, nor to such classes of women as its board of trustees may select. Its education is for women. The charter does not in terms impose upon the trustees the obligation of affording to all women the benefits of the institution. Nor does it, in terms, attempt to discriminate against any women or classes of women. There is nothing in the charter inconsistent with the existence of an obligation to furnish its education to all women.

It was not necessary that this obligation should be imposed in express terms. By the everyday construction placed upon general language of a similar character in all kinds of charters, the imposition of such duty would be implied from the general language used. In very few of the charters of private water companies granted by our General Assembly, containing authority for the exercise of the right of eminent domain, do we find a specification that they shall serve the public on equal terms. Unless the language used necessarily forbids, this duty would be implied. By the acceptance and exercise of the power, the corporation impliedly undertakes to serve the public located along its mains and laterals, without discrimination, upon equal terms. In other charters granting the right of eminent domain, we find the grant in general terms, without specification of a use by the public. This we find, for example, in the charters of the North Branford Light, Water, and Power Company (15 Special Laws, p. 839) and of the Connecticut River Company (15 Special Laws, p. 774). And this is the only permissible legal construction of the charter of the Connecticut College.Rockingham County L. P. Co. v. Hobbs, 72 N. H. 531,537, 58 A. 86.

In the amendatory Act according the corporation the power of eminent domain, the General Assembly recited that "the higher education of the women of this State is a matter of great public concern," and that the corporation was incorporated "for the purpose of providing such education." The higher education referred to is that designated in the first preamble to the amendment, viz., "the higher education of the women of this State." The amendment and charter are to be construed together, and held to afford its benefits to the women of the State. Browne v. Turner,174 Mass. 150, 54 N.E. 510. In terms it is not limited to a portion of the women of the State, but may refer to all women of the State. It is repulsive to all of our legislative history to conceive that a Connecticut General Assembly intended by its general language, "women of the State," to refer to a part of the women of the State rather than all, or to such only as the trustees might esteem entitled to the blessings of the higher education. What reason can be assigned for its desire to benefit the few rather than the many? The College is to perform the duty of the State. It is common knowledge that a college of this character entails a great expenditure. The interest of the State is to have it serve all the women of the State. Why, then, should the General Assembly be assumed to have acted against the interest of the State? Where adherence to the letter of the law will work injustice, courts are accustomed to give to an Act a reasonable construction so as to avoid injustice. Carter v. Whitcomb, 74 N. H. 482,69 A. 779; Kelley v. Killourey, 81 Conn. 320,70 A. 1031; In re King's Estate, 105 Iowa 320, 75 N.W. 187. A construction of the Act such as my brethren make leads to injustice to the women of the State and to the State itself. It is a fundamental principle that an Act is to be construed so as to effectuate the intent of the General Assembly. In re Kilby Bank, 40 Mass. (23 Pick.) 93. When the General Assembly, three months after the granting of the charter, by amendment changed its name, and gave to this institution its own name, their act was of peculiar significance. It was done upon knowledge, reflection, and deliberation. It marked this institution as a quasi-public one, and helped justify the faith of the General Assembly, as subsequently expressed, that its cause was of "great public concern." Is it conceivable that the State would have given its own proud name to a purely private institution whose trustees could, at will, exclude from its priceless privileges any woman of the State, upon any ground it chose, religious or otherwise, or upon no ground at all?

The legislative intent and the necessary meaning of the language, "women of the State," is shown when the character of this institution is considered in connection with the grant of the right of eminent domain and the necessity of the grant for the fulfillment of its purpose. The charter creates a corporation, organized without capital stock, and one which can never be operated for a profit to it, or to the interest of its incorporators or trustees. It is conceded to be a charity, engaged in a service upon which the State and society lean. In virtue of its character, the State exempted it from taxation, and gave it the power of eminent domain. In virtue of its character, the law attaches to it certain duties, and accords it certain protection, to the end that all of its activities and resources shall be devoted, inperpetuam, to its charitable purpose, the higher education of women. General Statutes, § 4026. The law as administered by our courts will hold institution and trustees to this purpose, and the State will exercise its care, through its proper law officers, to see that it fulfils its trust. Jackson v. Phillips, 96 Mass. (14 Allen) 539, 576-580. Moreover, by its acceptance of the charter, the Connecticut College contracted with the State to carry out the purpose of the grant. While it lives, its estate is pledged to execute this trust. Such an institution is not a mere private one, but a quasi-public one. It will perform duties which the State might directly perform, but thus far, in the main, has left for private agency to support. The use and not the agency employed give it its public purpose and character. The General Assembly regarded this College in this way, and did not intend to narrow the scope of its usefulness.

The trustees can enact by-laws in consonance with the charter, but no by-law or act of theirs can conflict with the purpose of the charter. If the trustees attempt to limit the education afforded to defined classes, or to exclude, in a partial way, certain women or classes of women from its benefits, their action would negate the purpose of the charter by denying to some women the privileges accorded by the charter to all.

The State may directly provide "the higher education" for the women of the State, or it may delegate to a private agency this duty. Our courts will take judicial knowledge of the fact that there is within the State no other college for women. In the charter granted the petitioner, there was no power of eminent domain given. By amendment the General Assembly recited that "the higher education of the women of the State is a matter of great public concern"; that the Connecticut College for Women had been incorporated "for the purpose of providing such education through voluntary contributions without the necessity of levying taxes for the support thereof"; and that it was a matter of great public concern that a suitable site should be provided for this purpose. Therefore, it enacted that this College "shall have the right to take such real estate in the towns of New London and Waterford as its trustees shall find to be necessary for the purpose of said educational corporation upon payment of just compensation therefor." The General Assembly thus found a necessity for this grant. Is it not apparent that the General Assembly thought this institution would perform duties of great service to the public, and provide through voluntary contributions, without cost to the State, an education for the women of the State which she might well provide? Therefore, in consideration of these benefits to the State and of these voluntary contributions, the grant of eminent domain was made. The consideration of the grant is the provision by this College for the higher education, thus relieving the State from the duty of supporting it, or of providing a like education. In effect, the State has entered into a contract with the College and all of its contributors, in presenti and in futuro, that it gives the College the right to secure a site by condemnation in consideration of the benefit to the State through having such an institution within her borders supported by voluntary contributions. Whether it be wholly true or not, the demurrer admits that this institution is to be maintained wholly by voluntary contributions, and that it is to such an institution this grant is made. And the demurrer further admits that upward of $1,150,000 and land of great value have been donated to this College. With each contributor the State entered into a contract that it had granted this charter with its right of eminent domain in consideration of his contribution. The State has pledged its faith to the corporation and to all contributors that this grant of eminent domain shall stand while the institution exists. The State would not have entered into such a contract unless it had intended the benefits of the charter to be enjoyed by all the women of the State. The contributors would not have showered their bounty upon the new institution had they understood that the blessings of their bounty would fall upon a part only of the women of the State, and that its trustees might, at will, shut its doors upon any it chose, favoring some, excluding others.

The construction which my brethren accord the Act violates the faith of the State, breaks its contract with the contributors, and may tend to check the growth of the College. Can it be believed that the General Assembly and Governor Baldwin intended to limit the privileges of the College to such women of the State as the trustees decided could enjoy its privileges, and thus cripple the new College, whose great promise led the State in its pride to give its own name? The Act locates the College in New London. It is a part of the history of the State that New London sought the honor of this institution. She and her people have, with a self-sacrifice and generosity never excelled in modern times by any town in the State, given to this institution. As much as a town and its people can, they have stamped it of great public concern to them and to the people of the State. Did New London intend to give of its wealth to a College whose trustees could at will admit to its privileges some women of the State while denying them to others? Did New London intend to help rear a College of this character? Rather, did they not hope for a College like unto the great institutions for the higher education of men and women in New England, whose doors are open to all alike, and whose influence is nationwide? The history of this charter shows the legislative intent. The history of Yale's charter shows a similar intent. In terms its privileges are not open to all; but none can dispute that such was the legislative intent. Yale University v. New Haven, 71 Conn. 316,329, 42 A. 87.

The concluding words of the amendment providing a method of condemnation similar to that for the condemnation of land for the site of a county building reveals the legislative mind. The site of the College was put upon a parity with the site of a county building. This indicates its public character. The General Assembly did not intend to close the doors of the College to the public any more than it did the doors of a county building.

The General Assembly declares that a suitable site for this College is of great public concern. It could not speak thus of a purely private institution of learning whose doors were not open to the public on equal terms. By the admission of the demurrer, the land to be taken is necessary for the purpose of the charter. So that the case is that of a College charged with the perpetual duty of furnishing the higher education to the women of the State, and given the right to take private land for a site and intent on taking land which it needs to carry out the purpose of its existence.

The construction of the charter as made by the majority of the court is, it seems to me, a restricted and narrow one. It disregards the intent and purpose of the General Assembly. It ignores the fact that we are passing upon the validity of an Act of a co-ordinate department of government. It treats the question with a circumscription not permitted in construing an ordinary legislative Act. It forgets that we are applying to this Act a rule of constitutional construction, and not interpreting a private contract, nor even an ordinary legislative Act. And, above all, it ignores that foundation rule of constitutional construction that a legislative Act is to be upheld unless its repugnancy to the Constitution is so clear as to be beyond a reasonable doubt. The public welfare demands, in this case, that that rule be adhered to.

In stripping this College of its power to condemn land for its site, the court was compelled to go even further than to make a narrow, unfortunate, and untenable construction of the Acts comprising this petitioner's charter. It was forced to give to the term "public use" a meaning contrary to that long held by us, and in effect to overrule decisions of this court which have stood for over sixty years, and rest upon, what seems to me, the better reason. I shall not attempt to point out or discuss much of the argument of the opinion, but shall confine my discussion to its misconception of the term "public use" as heretofore understood in Connecticut jurisprudence.

From an early time we have had a clear conception of the principle underlying "public use," and we have steadily adhered to it. When the opinion holds that that only can be a public use which is governmental, or in its nature so, and defines such use to be one "which might properly be administered by the State, or some political subdivision of the State," I think that instead of stating a well-settled principle, as it asserts, it invokes a novel proposition, and a test of public use not found in the opinions cited in its support or elsewhere. It seems futile to combat the statement further than to suggest that the right of eminent domain has been supported when granted to individuals and corporations in their private business in aid of all sorts of public utilities, — mining enterprises, grain-elevators, cemeteries, grain-mills, petroleum transportation, and schemes of private drainage and irrigation; and in our State in aid of a mill for the manufacture of axe handles and tinware. Todd v. Austin, 34 Conn. 78. Many of these are activities which neither the State nor any of its political divisions has essayed in aid of private enterprise, and some the universal opinion would forbid its trying. The opinion supports Acts giving the right of eminent domain in aid of private ownership of mills, mining, drainage, and irrigation. None of these can be properly held to be a purpose which the government or any of its political divisions could administer. Thus, I think, the opinion refutes its doctrine that governmental use is a prerequisite of public use.

Its second prerequisite, that the use must be one in which the public has or can acquire a common right on equal terms to the use of the property taken, is a view which we expressly repudiated in Olmstead v.Camp, 33 Conn. 532, 546, and impliedly rejected in other decisions. Some authorities hold that a grant of eminent domain cannot be delegated to a private corporation which is not under governmental control or regulation, and make this the test of "public use." But generally speaking, there have been two general views of what constitutes a public use, and under one head or the other most of the authorities are ranged: one, holding that there must be a use or right of use on the part of the public or some limited portion of it; the other, holding that public use is equivalent to public benefit or utility. 1 Lewis on Eminent Domain (3d Ed.) § 257. These two views are the only ones we need consider. Nichols on Eminent Domain, § 206, note, says: "The weight of authority supports this view" (the second). An examination of the authorities tends to support this conclusion. There are a host of decisions supporting each view; it is quite immaterial which has the major number. We, from the beginning, have adopted the second view, and, unless there be good reason, we should not now depart from it. When first called upon to consider a grant to a railroad of the right of eminent domain, we adopted the public utility view as the test of "public use." Bradley v.New York N. H.R. Co., 21 Conn. 294, 305. In Olmstead v. Camp, 33 Conn. 532, in sustaining the constitutionality of the grant to a grist-mill of the right to flow land, the question, which of these conflicting views should prevail, was elaborately and ably presented by the most eminent lawyers of that day. Judge Origen S. Seymour, for the respondent, maintained (p. 539) that "no taking . . . is for public use unless the property is to be used by the public . . . to answer some public exigency, and must be appropriated for that service. . . . Public use means possession, occupation, direct enjoyment by the public. The thing taken is used by the public, and is taken that it may be so used." The court considered and repudiated view one, that "public use means possession, occupation, direct enjoyment by the public." "Public use," says McCURDY, J., "may therefore well mean public usefulness, utility or advantage, or what is productive of general benefit; so that any appropriating of private property by the State under its right of eminent domain for purposes of great advantage to the community, is a taking for public use. . . . The term ``public use' is synonymous with public benefit or advantage." Six months later the court, in Todd v. Austin, 34 Conn. 78, had before it the same question, and it said that this point "was decided after full consideration in the case of Olmstead v. Camp." In Bradley v. New York N. H.R. Co., 21 Conn. 294, the power of eminent domain given the railroad was sustained upon the ground of the public benefit to be subserved. This case and Nicholson v. New York N. H.R. Co., 22 Conn. 74, were cited in Olmstead v.Camp, in support of its holding that public utility was the test of public use. In New York, N. H. H.R. Co. v. Offield, 77 Conn. 417, 421, 59 A. 510, we said, BALDWIN, J.: "It [property taken by eminent domain for a railroad] is so taken because the public benefit will be promoted by such a railroad." So in EvergreenCemetery Asso. v. Beecher, 53 Conn. 551, 553,5 A. 353, we said, PARDEE, J.: "Corporations take land by right of eminent domain primarily for the benefit of the public, incidentally for the benefit of themselves." And in the latest utterance of this court upon this subject we have held to the same underlying principle.Water Commissioners v. Johnson, 86 Conn. 151, 164,84 A. 727.

All authorities place Connecticut among the courts committed to the utility test. It has behind it the authority of our greatest jurists, such as CHIEF JUSTICES STORRS, BUTLER, and BALDWIN. Before we overrule so settled a principle of law, it ought to be very apparent that it does not rest upon a logical basis, or that in its practical operation it either has worked injustice or promises to.

The utility test is not subject to such attack. It rests on the better reasoning, and in its application it has not worked harm. Every valid exercise of this right in all jurisdictions can be supported upon this underlying principle of public utility. The instances which the opinion holds to be exceptions to its test of employment, viz., Acts giving the right of eminent domain in aid of mills, mining, drainage, and irrigation, have been and can be justified by the public good to the locality of its exercise.

It is objected that the utility test leaves it open to the legislature to determine, in each instance, what is for the public welfare, and thus private property is liable to be stripped of its necessary safeguard. We must recognize, as most do, that public use is an elastic term, varying with different ages, and different circumstances, and different localities. "The term ``public use' is flexible, and cannot be confined to public use known at the time of framing the constitution. All improvements that may be made, if useful to the public, may be encouraged by the exercise of eminent domain. Any use . . . which will satisfy a reasonable public demand for facilities of travel, for transmission of intelligence or of commodities, would be a public use."Trenton N. B. Turnpike Co. v. American E. C.News Co., 43 N.J.L. 381, 384. What have been recognized as public uses are not conclusive of what may at a later time be recognized as such by a legislature. Were this not true, this right could not have been given each new public utility. What is a public use in a given case depends upon the surrounding facts; it is a question of degree and kind. A new public use must first secure legislative approval, and, if questioned, the sanction of the courts. Unless it clearly appears that public utility will not be subserved, the court will uphold the legislative declaration. The scope and limitations of this test were pointed out by McCURDY, J., in Olmstead v. Camp, 33 Conn. 532, 551: "The power requires a degree of elasticity to be capable of meeting new conditions and improvements and the ever increasing necessities of society. The sole dependence must be on the presumed wisdom of the sovereign authority, supervised, and in cases of gross error or extreme wrong, controlled, by the dispassionate judgment of the courts." So controlled, there can be no danger to private ownership. In the end the courts decide whether the public benefit is great enough to warrant the exercise of this power in the given case. When my brethren apply, as one test of public use, that the use must be for or in the nature of a governmental purpose, the only tribunal which can finally decide whether the given instance is a governmental purpose or not is the court. If there be no danger in the court deciding this, there can be none to its deciding that the public welfare is great enough to make the instance a public use.

The employment test puts the doctrine of public use in a straight-jacket, and, unless the court finds the use to be open to the public, it must automatically deny the power. If this test be strictly applied, many instances where the right of eminent domain has been exercised will fall outside. To escape this difficulty, my brethren assert that there is a class of exceptions which, though clearly not open to the public, are upheld as instances of the development of the natural resources of the State. Under this head they place Acts in aid of mills, mining, navigation, drainage, and the development of water-power. A reference to these cases will show that they were supported by reason of the great public good subserved. The cases of Olmstead v. Camp, 33 Conn. 532, and Todd v. Austin,34 Conn. 78, upholding mill Acts, do not recognize such an exception. The very fact that so many cases of recognized public use fall without the employment test discredit it.

On the other hand, the utility test will meet every instance in the future where changing conditions make the declaration of a new public use necessary for the public good. The question for the court will be, is this new use of so great a public benefit that it cannot be said to be wholly private, but must be held to be for the public use? All private property should be available whenever its use will be of great public benefit. The right so to take is "vital to the public welfare of every self-governing community." If the right of the public to use the land taken be the test, all forms of private activities, such as theatres, hotels, and the like, would meet the test, and the court must so hold. Whereas, under the public welfare test, all of these private activities would be held to serve private interests, and the public benefit would be but an incident of the private ownership. And instances might occur in which the public were given the use of land taken for a private business for which the public had no use. So the grant would be held to serve a public use when the public received no benefit from it.

When we say the public benefit is the underlying principle by which to test the public use, we do not mean that in all cases where the taking may be of public benefit private property may be taken. It can be taken only when the public benefit is so great as to make the taking a public use. Each case stands, as we have pointed out, on its own facts.

The legislative declaration of a public use is subject to the supervision of the courts in case the use be palpably without reasonable foundation. The courts will exercise control only in cases of palpable abuse. This is the doctrine of the United States Supreme Court as last announced. Clark v. Nash, 189 U.S. 361,25 Sup. Ct. Rep. 676. This case is, of course, in conflict with Brown v. Gerald, 100 Me. 351, 61 A. 785, on which the opinion relies. Originally it was thought, and the argument of the opinion seems in accord, that this right could not reach beyond material ends; this is no longer the general view. In United States v. GettysburgElectric Ry. Co., 160 U.S. 668, 16 Sup. Ct. Rep. 427, this right was upheld when invoked in aid of a patriotic public aim — the preservation of an historic battlefield. In its holding that the power of eminent domain, "it is universally agreed, depends upon the common and equal right of the public to the benefit of the service rendered, free from unreasonable discrimination," I think the opinion is in error in failing to note the conflict of the authorities between the utility and the employment view. Ordinarily, in jurisdictions upholding the utility view, it would be clear, where the public had no right to use the land taken, that private interest alone was served, and no basis would be present for holding the public benefit so great as to make it a public use. But instances occur where the public have not the right of service, as in the Acts in aid of mills, mining, and irrigation, where the right of eminent domain is upheld, and the immediate benefit is to private ownership alone. The resultant benefit to the public through the private enterprise is the foundation of the grant. Generally speaking, these have been confined to purposes giving the public material benefits. No good reason can be suggested why purposes which benefit the body and mind of citizens, or which educate, uplift, and ennoble a community, should not be esteemed of as great public good as the things which add directly to its wealth or give employment to its citizens. The development and encouragement of the things of the spirit are more enduringly vital to the State than the development of its material resources. The value to a State of a great educational institution for the higher education of women cannot be measured. No institution has done as much for the strength and fame of our State and for the lives of its people as Yale. Yet Yale, so far as its charter goes, is a private institution, as much so as the Connecticut College for Women.

Does it appeal to the common-sense of the average man that it is justifiable to give a private mill the right to flow another's land, an electric light company the right to take land by eminent domain, an individual the right to flow another's land in order to irrigate his own arid land, or to carry a water supply across another's land in order to conduct his mine, or to drain another's land in order to cultivate his own, and deny a corresponding right to a college for the higher education of women to take land for its site, when it is ready to begin its noble charity with resources at its inception greater than most of our New England colleges had years after their foundation?

The opinion relies greatly upon Evergreen CemeteryAsso. v. Beecher, 53 Conn. 551. I do not think it upholds the employment view of public use; on the contrary, I think it reasserts the utility view of Olmstead v. Camp, 33 Conn. 532. And it holds that a taking for a private cemetery, in which the public have not and cannot acquire the right to bury, was not for the benefit of the public. The case was a clear one. There was no great public good to be served by giving to this private cemetery the right of eminent domain. The fact that the public could not use the cemetery helped to indicate that the use of the land to be taken was private and not public; but the case does not, nor was it intended to, establish a general rule of law making any and all grants of such a right to private cemeteries for all time not for a public use. No automatic rule for so elastic a subject as public use will do. The public utility view would leave each case to be measured by its facts in its day and location and in the light of the service to be rendered. In the definitions of those who prefer the employment view, we find the promotion of the general welfare is made the foundation principle of eminent domain. 1 Lewis on Eminent Domain (3d Ed.) § 1, p. 1; Cooley on Constitutional Limitations (7th Ed.) p. 754. Eminent domain is the right of the sovereign to appropriate private property (directly or by delegation) for the public benefit or welfare. The right is justified only when the grant is for the public welfare. It never should be disassociated from the public benefit.

The opinion holds that a grant of eminent domain to a private collegiate institution cannot be sustained unless the education furnished be for the public on equal terms.

My own conclusion is that the State can make such grant provided it be one for the public use; that whether it be for the public use or not depends upon the extent of the public welfare to be subserved; and when, in a given case, the public good to be served is large enough, the grant may be made, even though it be in the power of the trustees of the institution to administer it so that its benefits may not be open to the public on equal terms. Ordinarily this limitation would mark the grant as serving a private use; but the situation surrounding the grant may be so exceptional as to make the public good loom large enough to constitute the grant one for a public use. In this case the character of the Connecticut College for Women, a charity maintained at private cost and without profit, serving a great public need, and relieving the State from a duty which it might well assume, renders it impossible for the court of its own knowledge to say that the resultant public welfare is not so great as to make of it a public use as the General Assembly declared it to be.

I think the court cannot hold it to be clear beyond a reasonable doubt that the purpose of the Act is not a public use, and hence that the Act is unconstitutional.

Were this rule of construction generally followed, the instances where legislative Acts were held unconstitutional would be comparatively few, and criticism of the judiciary for its invasion of the legislative field would be seldom heard. The State will be stronger the better the judiciary maintains the balance between the departments of government.

In my opinion, the demurrer should be overruled.