Appeal from district court, Allen county; L. Stillwell, Judge.

John Gill was prosecuted for violations of the liquor law, and appeals. Affirmed.

Oscar Foust & Son, for appellant. John T. Goshorn and A. H. Campbell, for appellee.

JOHNSTON, J. John Gill was prosecuted for violations of the prohibitory liquor law upon an information containing 10 counts, and was found guilty of the charges stated in three of the counts. He appealed, and contends first that the information should have been quashed because the verification was indefinite. It was verified positively by Adell B. Beaumont, and it was also verified upon information and belief by G. R. Gard, as county attorney. In the transcript the printed words "County Attorney" followed the signature of Beaumont, and the presence of these words is said to be a clerical error in copying the information. There is some assurance of that in the record itself, where it is stated and the concession made by the defendant that Beaumont is a private person. The fact that the information was twice verified did not weaken the charge, nor can we see that it operated to the prejudice of the defendant. Either verification was sufficient to accomplish the purpose of the law, and the motion to quash was properly overruled.

It is next contended that some of the offenses relied upon for conviction were not in the mind of the prosecuting witness when the information was filed. It was charged in the information that on or about certain days in June, 1899, the offenses set up in the information were committed, and in the election under some of the counts the state relied on sales to particular persons, who testified that the sales of liquor made to them were in May, 1899. From the fact that the offenses were shown to have been committed in May, and were alleged to have been committed on or about certain days in June, the defendant contends that the offenses proven were not in the mind of the prosecuting witness when the information was filed. As will be observed, the time is not definitely fixed in the information, and the slight disparity between the dates named in the information and those fixed by the proof does not show that the offenses were not the ones in the mind of the prosecutor at the beginning of the prosecution. The state is not required to prove that an offense was committed on the particular day charged, but may show that it was committed at any time within two years next preceding the time of the filing of the information. It has been frequently held that the prosecuting witness or county attorney will be presumed to have knowledge of the offenses proved or relied upon, in the absence of a showing to the contrary. State v. Brooks, 33 Kan. 708, 7

Pac. 591; State v. Lund, 51 Kan. 1, 32 Pac. 657. Again, as one of the verifications was positive in form, there could be no question as to the validity of the warrant issued, nor of the arrest made; and, besides, in such cases the secret reasons of the prosecuting witnesses cannot be inquired into for the purpose of invalidating warrants for arrest. City of Holton v. Bimrod, 61 Kan. 13, 58 Pac. 558, and cases cited.

Further complaint is made that the court gave an additional instruction at the conclusion of the argument. It was deemed to be necessary because of some claim or contention that was made during the argument, and simply stated to the jury that the precise time of the commission of the offense need not be averred in the information, but that it is sufficient in regard to the matter of time if it appears from the information that the offenses complained of were committed within two years next preceding the time of the filing of the information. No exception is taken to the law as stated by the court in this additional instruction, but it is contended that it cut them out of the right to argue the instruction to the jury, and that it was therefore prejudicial to the defendant. It not infrequently happens that some circumstance arises which requires an additional instruction after the charge has been given, and before the case is finally submitted. In some cases argument subsequent to the giving of the instruction might be important and necessary, and the court in such cases would doubtless permit additional argument. In this case the matter upon which the instruction treated was simple and hardly open to any contention, and, besides, counsel made no request for permission to make additional argument, and is therefore in no position to complain that such an opportunity was not given.

We think the case was fairly submitted to the jury, and that no prejudicial error has been pointed out. The judgment of the district court will be affirmed. All the justices concurring.

PER CURIAM. This was an action by Owen Duffy against the city of Leavenworth, the Rapid-Transit Railway Company, and the Kansas City, Wyandotte & Northwestern Railway Company to recover damages resulting from the construction of a railroad on the street in front of Duffy's prop erty, by reason of which the approaches to the property were cut off, and the property rendered almost inaccessible. After the testimony was introduced, the Kansas City, Wyandotte & Northwestern Company filed a demurrer to the evidence, which was sustained by the court. A motion for a new trial as against that company was filed by Duffy, which motion is still pending and undisposed of. At the conclusion of the trial, a verdict was returned against the city of Leavenworth for $1,570. The city alleges error, but did not serve its case upon or bring into this proceeding either of the railroad companies. They are necessary parties to a review of the judgment, and the motion to dismiss because of their absence will require a dismissal of the proceeding. It appears from the pleadings that the Rapid-Transit Company agreed to respond to the city, and save it harmless from all damages, costs, and expenses caused by the construction of the railroad on the street. A reversal of the judgment and another trial might result in enlarging the costs, damages, and expenses it would be required to pay. The judgment rendered is practically in its favor for costs, and it appears to be satisfied with the same, or, at least, it is not complaining. It also appears that the controversy involved has not been finally determined as between the Kansas City, Wyandotte & Northwestern Company and the other parties, as a motion for a new trial is still pending. As both the railroad companies are necessary parties to the proceedings, their absence compels a dismissal.

(63 Kan. 484)

LAKE KOEN NAVIGATION, RESERVOIR & IRRIGATION CO. v. KLEIN. (Supreme Court of Kansas. July 6, 1901.) EMINENT DOMAIN-PUBLIC USE-IRRIGATIONREGULATION-CORPORATE POWERS.

1. It rests with the courts to decide what is a public use, for the promotion of which the legislature is authorized to confer the power of eminent domain; and with the legislature to determine when this power may be exercised, and the character, quality, method, and extent of such exercise.

2. Irrigation in this state is a public use, for the promotion of which the legislature may authorize a private person or corporation to exercise the power of eminent domain.

3. Whether chapter 133, Laws 1891 (the same being chapter 52a, Dassler's St. 1899), has conferred such power to be exercised east of the ninety-ninth meridian, quære.

4. Such power is conferred by chapter 151, Laws 1899 (same being section 3642, Dassler's St. 1899). and by section 1, c. 95, Laws 1899 (same being section 1325, Dassler's St. 1899). And the power therein conferred is not taken away by either section 2, c. 95, Laws 1899

(same being section 1326, Dassler's St. 1899), or by section 1327, Dassler's St. 1899, or by both together.

5. A private person or corporation receiving and exercising the power of eminent domain for the promotion of a public use is liable to respond to all reasonable regulations in the matter of the administration of such public use as the legislature shall thereafter prescribe.

6. The fact that the charter powers of a private corporation embrace both private purposes and public uses does not deprive such corporation of the right to exercise the power of eminent domain in the promotion of such public use.

7. The cases of State v. Osawkee Tp., 14 Kan. 419, and Railroad Co. v. Smith, 23 Kan. 745, distinguished.

(Syllabus by the Court.)

Error from district court, Barton county; Ansel R. Clark, Judge.

Condemnation proceedings by the Lake Koen Navigation, Reservoir & Irrigation Company against J. J. Klein. Proceedings Reversquashed, and plaintiff brings error.

ed.

The Lake Koen Navigation, Reservoir & Irrigation Company is a corporation organized under the general laws of the state of Kansas. The purposes for which it was organized are set forth in its charter as follows: ** The accumulation, storage and conservation of storm, flood and seepage waters and the supply of water to the public; to manufacture and supply light and heat to the public; the construction and maintenance of dams and canals and reservoirs for the purpose of water works, irrigation, navigation and manufacturing purposes; and to also have and exercise each and all the powers referred to and conferred on canal corporations for the purpose of irrigation under the laws of the state of Kansas, and to acquire and hold all real estate and property necessary to construct and maintain such dams, canals and reservoirs from a point in the Arkansas river near Pawnee Rock, Kansas, on the north side of said stream, thence in a northerly direction through Barton county, Kansas, to and including what is known as the Cheyenne bottoms, which bottoms are to be converted. into a lake to be called Lake Koen; and to acquire and hold all necessary property to construct and maintain aitches, dams and canals to and from said lake." In pursuance of such objects it has already acquired the right to construct a canal from a point near Pawnee Rock in a northerly direction, some eight or ten miles, to the Cheyenne bottoms,-a tract of land of comparative small value, and forming a natural basin. For the purpose of acquiring land in these bottoms upon which to accumulate waters to be discharged from this canal, and thus to form a reservoir or lake, it instituted condemnation proceedings in the manner pointed out in the statute for the condemnation of lands for railroad and other purposes. Its application to the judge of the district court for the appointment of commissioners for

this purpose was as follows: "The Lake Koen Navigation, Reservoir & Irrigation Company respectfully represents unto your honor that it is a duly chartered and organized corporation, and authorized under the laws of Kansas to construct, operate, and maintain irrigation ditches, lakes, and reservoirs in and through the county of Barton, in the state of Kansas; that it is necessary for the proper construction, operation, and maintenance of such ditches, lakes, and reservoirs, as located in said county, to acquire for the said purposes certain lands for said ditches, lakes, and reservoirs in said county." The commissioners were appointed, made their condemnation, and reported to the court. From this condemnation defendant in error appealed to the district court of Barton county, filing his proper petition therein, to which plaintiff in error answered. After the issues were thus formed, defendant in error filed in said court his motion to quash the condemnation proceedings and declare the same null and void upon the following grounds: "First. That said alleged condemnation proceedings are null, void, and of no effect. Second. There is no law under which plaintiff's said land, or any interest or easement, can be taken or appropriated against plaintiff's will for the purpose for which said land is sought to be appropriated. See charter of said defendant's corporation, a copy of which is hereto attached, marked 'Exhibit A.' Third. That the purpose for which said land or an easement therein is sought to be taken under said alleged condemnation is for private purposes, and not for public uses. Fourth. That the alleged laws under which said pretended condemnation proceedings were had were and are unconstitutional and void. Fifth. That said chapters 95 and 151 of the Session Laws of Kansas for 1899 were and are unconstitutional and void. Sixth. That the proceedings in this alleged condemnation proceedings are illegal and void, and contrary to the general irrigation laws of the state of Kansas (chapter 52a, p. 732, Dassler's St. 1899)." This motion was by the court sustained, and plaintiff in error brings the case here. The questions presented, in brief, are: First. Is irrigation in Kansas a public use, such as that the power of eminent domain may be invoked for its promotion? Second. Has the legislature, by statute, authorized the exercise of the power of eminent domein therefor? Third. Does the fact that other purposes than those of a public character are found in the charter of plaintiff in error destroy its authority to exercise the power of eminent domain in the promotion of the public uses authorized therein? Fourth. Does the object as specified in its application for the appointment of commissioners to make condemnation control as to the purposes of such condemnation, or do the objects of its creation as found in its charter control?

Trimble & Braley, John A. Eaton, and Osmond & Cole, for plaintiff in error. Sam Jones, C. F. Foley, and Nimmocks & Swartz, for defendant in error.

CUNNINGHAM, J. (after stating the facts). It is a basic principle of our form of government that no person can be deprived of life, liberty, or property except by due process of law. It is equally fundamental that the legislature possesses no power to take the property of any one and give it to another for the advancement of simply private objects. To argue these propositions, or state authorities in their support, would be but a pedantic display of learning. It is equally well settled that the legislature may authorize the taking of private property by private persons or corporations for public uses, the owner of such property being compensated there for. Courts determine what is a public use legislatures, when the power of eminent domain may be exercised in its promotion. Courts may not interfere to limit or control the discretion of the lawmaking power as to the character, quality, method, or extent of the exercise of the power of eminent domain by a private person or corporation engaged in the promotion of a public use, when once it has been determined that such use is a public one. This being so, they should be careful in pronouncing upon the question as to whether a given project is such a public use as to permit the exercise of the power of eminent domain in its promotion. We are met at the threshold of the inquiry in hand with the question as to whether, under the conditions existing in this state, irrigation is such a public purpose as that we are warranted in permitting the exercise of the power of eminent domain for its accomplishment. After careful consideration, we answer this question in the affirmative. Agriculture is by far the most important of our industries. It engages the attention of a very large per cent. of our people. In it a vast amount of capital is employed. Heretofore a scarcity of moisture when most needed for the growth of crops has been a thing most dreaded by our farmers. This has been true in the western portion to a greater degree than in the eastern, but in all portions of the state has this been true to a greater or less extent. Any scheme which has as its legitimate purpose the alleviation of these conditions is of general use and benefit. It is not necessary that all portions of the state be equally benefited by a given enterprise, to constitute it a public use, or even all persons living within the limited area to which its operations are confined. All that is necessary is that the use and benefit be common to all within the designated area, not to particular individuals or estates. It is a very difficult matter to define what is a public use. Courts of last resort have departed quite widely from each other in the effort. The local conditions and needs of the

people have much to do with the question. Wet countries need ditches and dikes; dry countries, irrigation. And yet necessity is not definitive of a public use. Without attempting a definition, we may state that we find no difficulty in coming to the conclusion that the promotion of irrigation in this state is a public use, and that the legislature is authorized, in its discretion, to commit the power of eminent domain to private persons or corporations for its promotion. Indeed, we understand that there is no serious contention by either party as to the correctness of this conclusion, and we have made these remarks more by way of inducement than demonstration.

We are then advanced to the next question: Has the legislature in this state exercised this right, and has it authorized the use of the power of eminent domain for the accomplishment of irrigation purposes? All the parties answer this question in the affirmative as to all the territory west of the ninety-ninth meridian. Chapter 133, Laws 1891 (being chapter 52a, Dassler's St. 1899), clearly shows this to be a fact. The act is entitled "An act providing for and regulating the diversion, appropriation, storage, and distribution of waters for industrial purposes within prescribed limits and of the construction, maintenance and operation of works therefor," etc. It is an elaborately wrought out act, divided into many articles, and evidently designed to cover the entire range of questions likely to arise out of the irrigation problem. Its first section by its terms applies only to that portion of the state west of the ninety-ninth meridian. At least two other of the sections refer to these limits, two or more specifically apply to the entire state, and several inferentially so apply. It is a hard måtter to reconcile this act, the one part with the other; and we are left in doubt whether articles 2 and 3 (being the ones authorizing the exercise of the power of eminent domain for condemning lands for irrigation purposes) are to be applied to the entire state, or only to the western part. We are inclined to take the former view, but, without so deciding, we pass to the consideration of other statutes.

Chapter 151 of the Laws of 1899 (being section 3642 of Dassler's Statutes of 1899) reads as follows:

"An act to provide for the condemnation of lands for the storage of water.

"Be it enacted by the legislature of the state of Kansas:

"Section 1. Any irrigation, canal, or reservoir company, for the purpose of establishing any reservoir, lake or pond for the storage of water, shall have the right to condemn lands in the same manner as is provided for the condemnation of lands for railroad and other purposes."

The material portion of section 1 of chapter 95 of the Laws of 1899 (the same being section 1325 of Dassler's Statutes of 1899) is

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* *

**

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in

as follows: "Lands may be appropriated for the use of irrigation the same manner as is provided in this article for railway corporations so far as applicable; and any * * * irrigating * company desiring the right to condemn or take water from any stream, to conduct water in canals or race-ways or pipes, may obtain such right or right of way for all necessary canals, race-ways and pipes * * in manner as aforesaid." This last section was enacted as an amendment to the general corporation law, and must be construed in connection therewith. It took effect on May 15, 1899. The aforesaid chapter 151 took effect April 6th of that year. These two acts are, on their face, confessedly applicable to the entire state, and would seem to provide both for condemnation of lands for canals or race ways, and for reservoirs for the storage of water. These sections would undoubtedly bestow upon plaintiff in error abundant authority for the exercise of the power of eminent domain to accomplish its irrigation purposes, standing alone. The defendant in error, however, claims that these acts do not have this effect, for the reason that a public use must be necessarily under the public direction; that to withdraw any use from the public direction and control necessarily destroys its character as a public use, and upon these premises bases his argument that because other portions of the general corporation law give to any irrigation company the right to furnish water to whom it may choose, and to refuse to furnish whom it may choose, the character of such company as a public factor is destroyed, and it is therefore ousted of the right of the exercise of eminent domain given it by the sections we have quoted. The sections which defendant in error cites as accomplishing this are as follows: Section 2 of chapter 95 of the Laws of 1899 (the same being section 1326 of Dassler's Statutes of 1899), so far as applicable to the question at bar, reads as follows: "That any # * irrigation company may furnish, sell, let or lease for such time as such corporation may determine any portion of its water or power to any person or persons or corporation or partnership who may wish to use the same." Section 1327 of Dassler's Statutes of 1899 (the same being a section of the corporation law found in the General Statutes of 1868), so far as applicable to this question, reads as follows: "Every canal corporation, for the purpose of irrigation, shall, in addition to the powers hereinbefore conferred, have power fifth, to furnish water for irrigation at such rates as such organization or corporation may by its by-laws and regulations prescribe." Now, the argument is that inasmuch as under these provisions any irrigation company may furnish water to those whom it chooses, and refuse to furnish whom it chooses, and to charge such rates as it may prescribe, it is

* 串

entirely independent of any public control by legislature or courts, and hence that while the purpose of irrigation may be inherently a public use, such as would authorize the exercise of the power of eminent domain, yet, the legislature having accompanied the right of such exercise with these characteristics of a purely private purpose, such irrigation company is thereby ousted of its public character. In the first place, we hardly think that section 1326 will bear the interpretation placed upon it by the defendant in error. The authority there granted is to do the act therein named, to wit, to furnish, etc., in such manner as the corporation may determine, water to any one wishing it, and not an authority to determine to whom it will furnish it. It is an authority to do, and not to limit the doing. But admitting that this section is what defendant in error claims for it, and admitting that section 1327 of Dassler's Statutes of 1899 does by its terms confer upon any irrigation company the power to unqualifiedly fix rates, do these sections then serve to produce the results claimed? The term "public use," ex vi termini, implies that the public is interested therein, and that in its sovereign organization and capacity the public retains the right of regulation and control, at least in a limited or qualified degree, over the exercise of any corporate power or function granted in the accomplishment of such public use; and we are free to say that if we are held to consider the language of these sections as giving an unqualified right to the irrigation company to fix its charges for the use of water supplied by it, and determine whom its customers shall or shall not be, such action on the part of one legislature would not bind future ones; that irrigation being, as we have already decided, a public use, the public may not be forever foreclosed and bound upon the question of such details by the action of any legislature; and especially is this true in view of the control over all corporations which section 1 of article 12 of the state constitution vests in the legislature. The facts that the legislature has bestowed the power of eminent domain upon irrigation companies, and that they have availed themselves of such right for the promotion of that object, renders such companies liable to respond to all reasonable regulations in the matter of supply and rates as the legislature may thereafter impose, or courts fix in proper cases. In view of this, we cannot assent to the proposition of defendant in error that the bestowal of the right of eminent domain by the legislature in 1899 was immediately taken away by virtue of the prior provisions quoted, but must hold that, if there is any conflict between them, that the last act is of superior force; but we doubt if there is any conflict. Section 1327 authorizes any irrigation company to fix the rates for water furnished, but there must be read into that provision the further clause

that such rates must be reasonable and just, inasmuch as we have already seen that such irrigation companies, by reason of the fact that they are a public use, are under legislative and judicial control. It is also held by many authorities that irrigation companies authorized to carry water for hire are quasi public carriers, and as such are under the same rules as to the regulation of rates as other public carriers. See Long, Irr. § 130; Flume Co. v. Souther, 32 C. C. A. 548, 90 Fed. 164; Merrill v. Irrigation Co., 112 Cal. 426, 44 Pac. 720; Wheeler v. Irrigation Co., 10 Colo. 582, 17 Pac. 487; Irrigation Co. v. Flathers, 20 Wash. 454, 55 Pac. 635; Farmers' Independent Ditch Co. v. Agricultural Ditch Co., 22 Colo. 513, 45 Pac. 444; White v. Reservoir Co., 22 Colo. 191, 43 Pac. 1028. In view of the fact that the legislature of Kansas has in so many ways recognized the principle of irrigation, and bestowed upon companies organized for that purpose so many rights, we cannot hold that sections 1326 and 1327 take away from such companies all their characteristic rights as promoters of a public use. If said sections are antagonistic at all to those provisions of the statute conferring the power of eminent domain, which we doubt, they must be overthrown by the latter, rather than that the latter should be overthrown by the former.

Both private purposes and public uses are set out in the charter of plaintiff in error as being the objects of its creation. Does this fact render it incapable of the exercise of the power of eminent domain for the promotion of such public uses? The learned counsel for defendant in error insist that this is the result, and cite several cases from this court to sustain that contention. They insist that the two purposes-public and private are so blended that the private purpose drags down the public one, and, as it were, ousts the plaintiff in error from its exercise. Much stress is laid upon the case of Railroad Co. v. Smith, 23 Kan. 746, and the claim is made that this case settles the law in accordance with their view. We do not so read it. The legislature had authorized the voting of bonds in aid of the Irving Manufacturing Company; the purpose of this company, as set out in its charter, being "to purchase all needed lands, and construct and maintain a dam across the Big Blue river, within two miles of Irving, and build and maintain mills and their machinery for manufacturing purposes." Bonds were voted in aid of this company, and the action was for the purpose of enjoining the collection of the tax to pay interest thereon. The court says (and most properly) that: "It is a private corporation which is sought to be aided. It is a private benefit which is sought to be secured. Obviously the purpose was a private, and not a public, use." There are some de. tached portions of the opinion which, read alone, support the contention of the defendant in error; but we must not so read them.