quiring respondents to appear and show been made by one who is, even though higher cause, if any they had, why an injunction in price, the best responsible bidder. pendente lite should not issue, and commanding them to desist from taking any further action in the premises until the further order of the court.

The matter came on to be heard in the district court upon the amended complaint, the order to show cause, and an answer filed by all the respondents, except the mayor. There were submitted for the court's consideration a certified copy of the council proceedings had at the special session of June 1, 1916, and certain affidavits filed by the respective parties, all of which appear in the record in this court. After considering the showing so made, the district judge, on June 24, 1916, made and entered an order vacating, setting aside, and dissolving the order to show cause and the temporary injunction or restraining order.

[3] If any such facts do exist, they must be weighed and considered by the mayor and council, or board of trustees, while in session, and if the contract is let to another than the lowest bidder, the ultimate facts upon which that action is based should be entered in the clerk's minutes for the information of taxpayers, the protection of the officers who let the contract from unjust criticism for the commission of an act which, in the absence of explanation, would appear to be an unjustified expenditure of public money, and to the end that the courts may, if called upon to do so, review the facts and reasons upon which the contract was awarded and pass upon their sufficiency.

Discussing the discretion of governing boards of municipalities in matters of this kind, McQuillin, in his work on Municipal Corporations (volume 3, § 1227), says:

This appeal is from the order dissolving the injunction. Pending the hearing upon appeal "This discretion is not an arbitrary uncontrolappellants made application for and were fide judgment, based upon facts tending reasonled one, but one limited to the exercise of bona granted an order in the nature of an injunc-ably to the support of their determination. Action pendente lite, and application was made cordingly it has been held that an award to one by respondents to dissolve that order. How- who is not the lowest bidder will be set aside where no plausible reason for making it is ever, by agreement of counsel and with the given." consent of this court, the case was heard upon the appeal and upon the record made in the district court.

In advertising for bids and in awarding the contract respondents were attempting to proceed pursuant to the provisions of subdivisions 15 and 16 of section 2238f, Rev. Codes of Idaho (Sess. Laws 1915, p. 231), which are as follows:

This court, in case of Caldwell v. Village of Mountain Home, 29 Idaho, 156 Pac. Municipal Corporations (5th Ed.) § 811. An909, quoted with approval from Dillon on other part of that same section is:

that the contract shall be let to the lowest re"Even when the provision of the statute is sponsible bidder' or 'lowest and best bidder,' the body or officer awarding the contract cannot exercise the discretion intrusted arbitrarily, and without reason reject the lowest bid and accept a higher one."

"15. All contracts which are made by the city or village for any improvements authorized by this section or any subdivisions thereof, shall be made by the council in the name of the city or The Supreme Court of the state of New village upon such terms of payment as shall be Jersey, in case of Faist v. Mayor, etc., of fixed by the council, and shall be made with the the City of Hoboken, 72 N. J. Law, 361, GO lowest and best responsible bidder upon sealed proposals, after public notice of not less than Atl. 1120, construing a statute which providthree (3) weeks issue of the official weekly news- ed that a certain class of contracts should paper of said city or village, which notice shall be entered into only with the responsible contain a general description of the kind and amount of work to be done, the material to be bidder or bidders who shall give satisfactory furnished, as nearly accurate as practicable, and bonds or security for the faithful performshall state that the plans and specifications for ance of the work, said: said improvement work are on file in the office of the city engineer or city clerk.

"16. Each contractor shall be required to give a good and sufficient bond to the city or village, to be approved by the city council or village board of trustees for the faithful performance of the contract."

"If a responsible bidder tenders himself ready to fulfill his bid by entering into the contract, and offers the bondsman or security required, he is entitled to be awarded the contract as against any person whose bid was higher than his. If there be an allegation that a bidder is not responsible, he has a right to be heard upon that question, and there must be a distinct finding against him, upon proper facts, to justify it. McGovern v. Board of Works, 57 N. J. Law, 580, 31 Atl. 613."

[1, 2] It was manifestly the purpose of the Legislature, in enacting the foregoing provisions, to procure competitive bidding for contracts for making public improvements of the See, also, Inge v. Board of Public Works, kind here under consideration, and thereby | 135 Ala. 187, 33 South. 678, 93 Am. St. Rep. to safeguard public funds and prevent favoritism, fraud, and extravagance in their expenditure, and it is equally clear that it was the legislative intent that a contract of the kind here proposed to be entered into must not be let to any other than the lowest bidder, unless some fact, or facts, exist by reason of which a bid, other than the lowest, has

20; Armitage v. Mayor, etc., of City of Newark, 86 N. J. Law, 5, 90 Atl. 1035; Attorney General v. City of Detroit, 26 Mich. 263; People ex rel. Coughlin v. Gleason, 121 N. Y. 631, 25 N. E. 4; Fourmy v. Town of Franklin, 126 La. 151, 52 South. 249; People v. City of Buffalo (Sup.) 84 N. Y. Supp. 434; Berry v. Tacoma, 12 Wash. 3, 40 Pac. 414;

Times Pub. Co. v. Everett, 9 Wash. 518, 37 | trict No. 4 according to the plans and specifi.. Pac. 695, 43 Am. St. Rep. 865.

dissolving the temporary injunction is reversed, and the cause is remanded, with instructions that the same be continued in full force and effect until the case is finally disposed of. Costs are awarded to appellants. SULLIVAN, C. J., and BUDGE, J., concur.

(29 Idaho, 421)

BLACKWELL LUMBER CO. v. EMPIRE
MILL CO.

(Supreme Court of Idaho. Oct. 3, 1916.) 1. EMINENT DOMAIN 262(4) REVIEW QUESTIONS OF FACT-FINDINGS OF COURT. In an action wherein the condemnation of land is sought under the exercise of the right of eminent domain, the question of necessity is a question of fact, and where there is a substantial conflict in the evidence, the findings of the trial court will not be disturbed.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. § 685; Dec. Dig. 262(4).] 2. RAILROADS 53 — RIGHT OF WAY-LOCATION-REQUISITES.

The power to locate a railroad right of way by a corporation is vested in its board of directors, and some official corporate action is necessary before such corporation can make a valid location. The act of an officer of the company in making a preliminary survey of such right of way does not by itself constitute a valid appropriation of such right of way to a public use.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 121, 122; Dec. Dig. 53.] 3. EMINENT DOMAIN 47(1)-PROPERTY SUBJECT-PRIOR APPROPRIATION.

Held, under the facts of this case as disclosed by the evidence, the lands of appellant were not devoted to a public use at the time they were sought to be condemned by respondent, and were subject to condemnation by respondent in proper proceedings.

[Ed. Note. For other cases, see Eminent Domain, Cent. Dig. §§ 107, 109, 110, 116-120; Dec. Dig. 47(1).]

5. EMINENT DOMAIN

171, 266-NATURE OF RIGHT-EFFECT OF PRIOR OCCUPATION. Prior occupation of land without authority of law by one seeking to exercise the right of eminent domain does not preclude the condemnor from taking subsequent measures authorized by law in order to condemn such land to a public use, but such illegal occupation renders the condemnor liable in trespass.

[Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 468, 469, 694-696, 702, 703, 705; Dec. Dig. 171, 266.] 6. EMINENT DOMAIN 241

PROCEEDINGS

FOR CONDEMNATION-JUDGMENT. Where in an action for condemnation for a logging railroad it appears from the findings of fact that the condemnor will not require the use of such road for more than one year, the court in its judgment of condemnation should limit the

Appeal from District Court, Shoshone County; John M. Flynn, Acting Judge.

Action by the Blackwell Lumber Company against the Empire Mill Company. From judgment for plaintiff, defendant appeals. Affirmed.

C. W. Beale, of Wallace, and Charles L. Heitman, of Rathdrum, for appellant. John P. Gray, C. H. Potts, and W. F. McNaughton, all of Coeur d'Alene, for respondent.

BUDGE, J. This case has been before this court on three prior occasions, and will be found reported in 27 Idaho, 400, 149 Pac. 505; 28 Idaho, 556, 155 Pac. 680; and 29 Idaho, -, 158 Pac. 792. In the interest of brevity we will limit ourselves so far as practicable to the questions involved upon this appeal. An investigation of the above authorities will elicit a history of the case from its inception. However, at this point it may be well to call attention to the fact that this court has heretofore held that the lumbering industry of this state is one of its material resources, which cannot be completely developed in the absence of the right to exercise the power of eminent domain, under the provisions of section 14, art. 1, of the Constitution, which provides that: "The necessary use of lands to the complete development of the material resources of the state, is hereby declared to be a public use." Potlatch Lumber Co. v. Peterson, 12 Idaho, 769, 88 Pac. 426, 118 Am. St. Rep. 233;, Washington Water Power Co. v. Waters, 19 Idaho, 595, 115 Pac. 682.

In construing the above constitutional provision, this court has held it to be broader in its terms, and consequently entitled to receive a more liberal construction, than constitutional provisions of a somewhat similar character, dealing with the subject of eminent domain, found in a majority of the various state Constitutions; which liberal construction has also been justified by this court in view of the varied industries of the state, coupled with their rapid and phenomenal development. Connolly v. Woods, 13 Idaho, 591, 598, 92 Pac. 573. In effect, under the above constitutional provision this court has held that private property may be taken under the power of eminent domain for any use necessary to the complete development of any of the material resources of the state, upon the payment of a just compensation therefor, to be ascertained in a manner prescribed by law.

Upon a former hearing (Blackwell Lumber Co. v. Empire Mill Co., 28 Idaho, 556, 155 Pac. 680) this court held that the respondent company is vested with the power of eminent domain, and that the allegations of its complaint stated a cause of action. Just previous to the pronouncement of the opinion of this court, wherein it so held, the [Ed. Note. For other cases, see Eminent Do- Shoshone Railway Company was organized main, Cent. Dig. §§ 621-625; Dec. Dig. 241.] by the officers of the Empire Mill Company, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

period of use accordingly.

the appellant herein, and the land sought to of error, all of which we have carefully conbe condemned by the respondent company sidered, but which we will not discuss seriawas by the Empire Mill Company conveyed tim. These assignments of error in the main to the Shoshone Railway Company. The are that the evidence was insufficient to supEmpire Mill Company immediately there- port the findings of fact and conclusions of after filed its answer to respondent's com- law made by the trial court; that the findplaint in this action, denying the necessity ings of fact and conclusions of law are infor the construction of the proposed rail- sufficient to support the judgment; that the road and for the appropriation and condem- court erred in admitting certain evidence nation of the land sought to be taken by the over the objection of counsel for appellant respondent, alleging an appropriation of the and in its refusal to admit certain evidence lands sought to be condemned by the Empire offered by appellant, in admitting certain Mill Company for railroad use, and alleging evidence offered by respondent, in refusing to in substance and effect that the respondent strike out and in striking out certain evicompany surreptitiously, wrongfully, and un- dence during the course of the trial. In adlawfully went upon the lands of appellant, and dition to these assignments of error, appelunlawfully constructed thereon a temporary lant makes the general assignment that the logging railroad, without the consent and court erred in its failure to make findings of against the protest of the appellant, which fact upon all of the material issues raised by acts constituted a bar to the proceedings the pleadings. brought by the respondent company in condemnation, and that said railroad so constructed thereby became the property of the Empire Mill Company, and was by it, together with the right of way, conveyed to the Shoshone Railway Company. It further appears that shortly after the respondent filed its complaint in the original action it also filed its notice of lis pendens. When the respondent company filed its original complaint, notice was given by it for the appointment of commissioners to assess and determine the damages accruing to the appellant by reason of the condemnation and appropriation of the lands sought to be taken.

On the issues made by the pleadings a hearing was had, pursuant to notice, on May 25, 1916, at Wallace, in the district court of the First judicial district in and for Shoshone county, Honorable John M. Flynn presiding, for the purpose of determining whether or not the Blackwell Lumber Company was entitled to the appointment of commissioners and to have entered a decree of condemnation for the purchase of the land sought to be taken. After hearing the testimony that is presented upon this appeal the district court made its findings of fact and conclusions of law and entered its judgment, wherein it was adjudged and decreed that the respondent company was entitled to condemn a strip of land across the lands of the appellant company for a right of way for a temporary logging railroad, as prayed for in its complaint, and thereupon the court appointed three commissioners pursuant to notice, as provided by law, to assess appellant's damages; from which judgment an appeal was immediately taken to this court, followed by an application on behalf of appellants for an order staying all further proceedings pending a final determination of this appeal, which order was by a majority of this court granted. Blackwell Lumber Co. v. Empire Mill Co., 29 Idaho,, 158 Pac. 793.

For a reversal of this case, counsel assigns and relies upon 39 separate assignments

In our opinion there are but four controlling questions involved in this present appeal: First, whether there was sufficient legal evidence introduced at the trial to establish a necessity for the construction of the temporary logging railroad and for the condemnation of the lands sought to be taken by the respondent company for that purpose; second, whether the lands sought to be taken were already appropriated to a public use, prior to the commencement of the action to condemn by the respondent company; third, whether the transfer of the lands sought to be condemned and appropriated by the respondent company to the Shoshone Railway Company, a common carrier, by the appellant company, defeated or in any manner affected the right of respondent company to condemn said lands for right of way purposes, or affected the necessity for it to take and condemn said lands in order to remove and manufacture its timber from its lands described in its complaint; and, fourth, whether the logging railroad constructed by the Blackwell Lumber Company upon the lands of the Empire Mill Company became the property of the Empire Mill Company under the facts of this case.

[1] Directing our attention to the first proposition, which we do not deem necessary to discuss at length, the question of necessity is one of fact, and where there is a substantial conflict in the evidence the findings of the trial court will not be disturbed. In passing, however, we might say that the record conclusively shows that there is no other feasible way whereby either the appellant or respondent will be able to move the timber from their respective holdings, except over a railroad to be constructed along the route sought to be taken by the respondent herein, as was said by Mr. Blackwell, president of the respondent company, among other things in his testimony (and upon this point he is corroborated by witness Mr. Connolly), in answer to the following question propounded by