Light v. City Of Danville

• Citation: 190 S.E. 276
• Parties: LIGHT . v. CITY OF DANVILLE
• Decision Date: 11 March 1937
• Court: Supreme Court of Virginia

190 S.E. 276

LIGHT .

v.CITY OF DANVILLE

Supreme Court of Appeals of Virginia.

March 11, 1937.

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[COPYRIGHT MATERIAL OMITTED]

Error to Circuit Court, Patrick County; J. T. Clement, Judge.

Condemnation proceeding by the City of Danville against Harry L. Light, who was served without the State by a Deputy United States Marshal. To review a judgment for the city, entered on a report of commissioners, defendant brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, EGGLESTON, and SPRATLEY, JJ.

Carter & Williams, of Danville, R. E. Woolwine, of Stuart, and Margaret L. Carter, of Danville, for plaintiff in error.

A. M. Aiken, of Danville, for defendant in error.

SPRATLEY, Justice.

The council of the City of Danville, a municipal corporation, adopted an ordinance on August 27, 1935, authorizing the construction of a hydro-electric plant and transmission lines for the city, and providing for the financing thereof subject to the approval of its qualified voters. The ordinance was approved by the mayor, and upon being submitted to the judge of the corporation court, a special election was, in accordance with law, ordered to be held for the purpose of submitting to the voters of the city the question, whether the bonds in the principal sum of $1,513, 000, provided for in the ordinance should be issued. The election was duly held, and a majority of the votes cast in the election being in favor of the bond issue, an order was duly entered by the judge of the court, showing such approval by an affirmative vote. The estimated cost of the plant was $2,750, 000. The aforesaid ordinance authorized the council to secure, by grant or loan, from the Federal Government the additional sum required under the provisions of either, or both, of the acts of Congress known as the National Industrial Recovery Act (48 Stat. 195) and the Emergency Relief Appropriation Act of 1935 (15 U.S.C.A. § 728 note). It was found necessary for the construction of this plant to acquire many acres of land. Fifty-five per cent, of the cost of the plant was raised and made available by revenue bonds of the city, and the remaining 45 per cent, was granted to the city by the United States Government.

Among the parcels of land desired was a tract of thirty-nine acres in Patrick county, standing in the name of Harry L. Light of Washington, D. C. It is on a barren mountain side, not susceptible of cultivation, and without mineral or other valuable rights. It was planned to build roads and a pipe line to carry water from the dam to the power house over this land in connection with the development of the plant. The city was unable to come to terms with the owner as to the purchase price, and filed condemnation proceedings, with the result that he was awarded by the commissioners $150, which award was confirmed by the court, and the amount deposited to the credit of the court by the city for the benefit of the owner.

The evidence discloses that the City of Danville owns and operates a steam electricgenerating plant about twenty years old, which has a normal expectancy of life of twenty-five years; that it has found it necessary in order to take care of its present and increasing needs to provide an increase of electric power; that the proposed new plant will only provide for the next ten years; that the city has been disposing of some of its surplus electric energy, at a period of time when it does not need it, to its rural neighbors along its transmission lines, amounting to approximately 5 per cent, of its production, which otherwise would go to waste; that the needs of the city and its inhabitants are such that this new development is required whether it has now, or will hereafter have, a single consumer outside of the city; that it was not proposed in the beginning, or now, to operate this plant except for the use and benefit of the city and its inhabitants; and that it expects to continue serving consumers outside of its limits so long as it has surplus energy, but that if it becomes necessary to protect its own inhabitants, it will cut off that service.

The city council accepted the offer of the United States to aid, by way of loan and grant, in financing the project, and entered into an agreement to abide by all the rules and regulations relating to such loan and grant as were made a part of the contract, and as were contained in the rules and regulations which were a part of the government's offer.

The contract made with the Federal Emergency Administration of Public Works, under the Emergency Relief Appropriation Act of 1935, and according to the PWA (Public Works Administration) circular made a part thereof, contained many provisions with reference both to the loan and grant, as well as to the construction of the plant. It contained provisions among others for the character of employment and labor preferences, for inspection by the Administrator and the Works Progress Administration, wages to be paid, materials to be furnished, and a submission by the city of construction reports, as well as the deposit of the moneys for the construction of the plant in a construction fund, to be expended therefrom upon the approval of some official of the Federal Government. As a part of the contract, the city sold to the Federal Government the $1,513, 000 of bonds authorized to be issued, and the remaining money required, was a gift or grant from the Federal Government.

Work has begun upon the project. It is still progressing, and a very large sum has already been expended.

The caption, or title, of the ordinance of August 29, 1935, recited its purpose as "An ordinance to authorize the city of Danville to construct a hydro-electric plant and transmission lines for the city of Danville * * *."

Thereafter came the following recital and the first section of the ordinance, setting out the needs, objects, and purposes:

"Whereas, the Committee of Citizens appointed to make a study of Danville's power problem has, upon the advice of Charles T. Main, Inc., Consulting Engineers, recommended a proposed hydroelectric development at the Pinnacles of the Dan; and,

"Whereas, the President of the United States has made an allotment of federal funds for the purpose,

"Be it ordained by the Council of the City of Danville as follows:

"Section 1. In order to enable the City of Danville to carry on more economically and adequately the undertaking of generating and supplying electric light and power to the City and its inhabitants, it is deemed expedient for the City to construct a new hydro-electric plant at the Pinnacles of the Dan and appropriate transmission lines, structures and facilities incidental thereto; to borrow, in aid of the financing thereof, $1,513, 000.00, and to issue and sell its bonds in the principal amount of the money so borrowed. Accordingly, such construction and borrowing and the issuance and sale of such bonds are hereby authorized."

The next five sections of the ordinance deal with the issuance and sale of the bonds.

Then comes section 8, in the following language:

"Section 8. The new hydro-electric light and power plant and transmission lines shall be constructed for the use of the City, its inhabitants and customers; and the City shall agree with the holders of the bonds that it will maintain and operate such plant and transmission lines with the necessary distribution lines within the City as a municipally owned and operated public utility and that the City will take, use and distribute the current generated thereby and that it will charge reasonable and adequate rates for such current."

The remaining sections deal with matters connected with the revenue, the manage-ment of the plant, and a request for a special election for authority to issue bonds.

The public notice given of the special election on the question of issuing the bonds followed the language of the title of the ordinance. The city filed its petition instituting these proceedings on December 4, 1935. It alleged that the uses and purposes to which the land was to be put as a justification for its condemnation was: "That the city of Danville is to construct a hydroelectric plant at the Pinnacles of the Dan to be used as a municipal plant to serve its its inhabitants with electric energy, under the authority of the laws of Virginia." The name and address filed with the petition alleged that "Harry L. Light, 3929 Huntington Avenue, N. W., Washington, D. C, " was the owner of the property sought to be condemned. No order of publication was had, but on December 5, 1935, Light was served with a copy of a notice that on December 18, 1935, the city would apply to the circuit court of Patrick county, Va., or to the judge thereof, for the appointment of commissioners of condemnation. Service of this notice was made on Light in the City of Washington, D. C, by a deputy United States marshal, and return made under oath in accordance with Virginia Code, § 6071.

Light appeared specially by counsel, and filed a motion to quash the notice and return thereon, in that there was no proper and lawful service, which motion was overruled. He then filed a demurrer to the petition for condemnation, assigning as grounds that the City of Danville, by the terms of its charter, is limited to the ownership of land within said city, or within the county of Pittsylvania; that the city is without the power of eminent domain for the purpose set out in the petition because such a use, is a private use, and not a public use; and that the petition failed to allege that the hydro-electric plant contemplated, was for the exclusive use of the citizens of Danville. The demurrer was overruled; and thereupon Light filed an answer, a part of which was struck out by the court on motion of the city. The court denied the city's motion to strike out ground 5 of said answer, which is as follows:

"(5) Your respondent specifically asserts that the City of Danville now conducts a municipal electric plant for the...