Jennie George v. Consolidated Lighting Co.
| Decision Date | 28 January 1914 |
| Citation | 89 A. 635,87 Vt. 411 |
| Parties | JENNIE GEORGE v. CONSOLIDATED LIGHTING COMPANY |
| Court | Vermont Supreme Court |
November Term, 1913.
PETITION for a writ of prohibition, brought to the Supreme Court for Washington County at its November Term, 1913, and then heard on petitionee's motion to dismiss. The opinion states the case.
Petition for writ of prohibition dismissed with costs.
Theriault & Hunt for the petitioner.
Robert C. Bacon and Senter & Senter for the petitionees.
Present POWERS, C. J., MUNSON, WATSON, HASELTON, and TAYLOR, JJ.
This is a petition for a writ of prohibition to stop proceedings pending before the Public Service Commission. Such proceedings were for the taking, in the exercise of the power of eminent domain, of lands of this petitioner, Jennie George, for the purpose of the construction of a transmission line by the erection of poles and the stringing of wires. The proceedings were brought by the defendant, the Consolidated Lighting Company, before the Public Service Commission of this State under § 13 of No. 116 of the Laws of 1908. The defendants, other than the Lighting Company, make up the Public Service Commission.
Some questions discussed in the briefs were expressly waived in open Court, and on the hearing it was agreed that there were but two questions in the case.
1. Is the section 13, above referred to, constitutional?
2. If it is constitutional does it apply to the case of a Public Service Corporation with a Charter, granted prior to the general law of which the section in question is a part providing a constitutional method of exercising the right of eminent domain.
Section 13, of No. 116, Acts of 1908, provides that whenever it is necessary in order to meet the reasonable requirements of service to the public that any company, of a class to which this Lighting Company belongs, should cross the lands of any person with pipe lines, conduits, or lines of poles and wires, and the company cannot agree with the owner of the lands as to the matter of necessity or of compensation it may prefer a petition to the Public Service Commission, and that the Commission shall then, upon due notice to all parties in interest, determine the questions of necessity and compensation and render a judgment which shall be final, except as an appeal to the Supreme Court is allowed from the order or decrees of the commission.
No claim is made in this case that the use for which the statute authorizes private property to be taken is not a public one within the meaning of the constitutional provision relating to the matter of eminent domain. But it is claimed by the petitioner that the provision for the determination of the facts of necessity and due compensation in a particular case is unconstitutional.
We go a long way with the petitioner in her argument as to constitutional requirements in those regards. Such facts must ultimately be determined by an impartial tribunal proceeding on due notice to all parties in interest, hearing before deciding, basing its conclusion upon matters properly before it, and not acting unreasonably and arbitrarily. Wheeler v. St. Johnsbury, 87 Vt. 46, 87 A. 349; Rutland v. Clarendon etc. Co., 86 Vt. 45, 83 A. 332, 44 L.R.A. (N. S.) 1204; Deerfield etc. Co. v. Wilmington etc. Co., 83 Vt. 548, 77 A. 862; Burlington v. Central Vermont Ry. Co., 82 Vt. 5, 71 A. 826; Barber v. Vinton, 82 Vt. 327, 73 A. 881; Stearns v. City of Barre, 73 Vt. 281, 50 A. 1086, 58 L.R.A. 240, 87 Am. St. Rep. 721; Lynch v. Rutland, 66 Vt. 570, 29 A. 1015; LaFarrier v. Hardy, 66 Vt. 200, 28 A. 1030; Farnsworth v. Goodhue, 48 Vt. 209.
Our later holdings are that where the Legislature delegates to private corporations affected with a public interest the power of eminent domain by way of what has been called "a roving franchise" the necessity for its exercise in a particular case and with respect to particular property must exist or such exercise will be invalid; and the necessity and its extent must be determined by an impartial tribunal.
Since such corporations although affected with a public interest are organized for private gain, if they are to judge of the necessity of a taking in a particular case and of the extent of the necessity, they are made judges in matters in which their private and pecuniary interests are involved. If tribunals may reap profit from their decisions they might as well be paid in money as in lands. The evil which our decisions combat is not of the subtle kind which baffles detection.
To leave one to be a judge in his own case and to say that his decision of facts must stand unless it can be affirmatively shown that he acted unreasonably or in bad faith or abused the power conferred is contrary to every principle of justice. All experience shows that one may act honestly and in good faith and yet, if his private interest is involved in the matter before him, may arrive at conclusions at which an impartial man would not arrive.
To say that the function in question is a legislative or political one is to make no progress.
When the Legislature acts directly in such a matter, as it sometimes though rarely does, it acts as an impartial body, and when it delegates the power to take, it is bound to provide an impartial tribunal for the ultimate determination of the questions upon which the power to take depends.
This delegation of power is, in the case of most private corporations affected with a public interest, in the nature of a valuable concession. And when the power conferred is a general power to take so far as necessity requires, the necessity and extent of the taking ought in decent observance of fundamental principles to be determined by an impartial tribunal.
The Law Quarterly Review, a periodical edited by Sir Frederick Pollock, has in its number for July, 1910, a very timely article on the subject we are now considering. The writer of the article says, and we can only quote here and there:
This writer speaks of "leaving the economic question of the access to lands" to a partisan and interested tribunal as of a fact which needs only to be stated to be condemned.
We are told that proceedings for a taking of property by the power of eminent domain were at common law inquisitorial and ex parte. But our constitution intended to provide that they should not be inquisitorial and ex parte. In the orderly administration of constitutional government inquisitorial and ex parte measures may be taken for the institution of proceedings but not for their determination. Our Constitution of 1777 was the first to contain a provision respecting the taking of private property for public use, for while in the main we copied the Pennsylvania Constitution of 1776, the provision referred to was not found therein.
By our constitutional provision the right to take for public uses was recognized, but was limited to the requirements of necessity and carried with it the right of the owner to due compensation. Though many courts put upon constitutional provisions similar to our provision, though in general less specific than it, a different construction from that which we put upon our provision, we are content to abide by the doctrine hereinbefore stated.
In the discussion of the doctrine of eminent domain rather too much is said about the common law. The phrase itself was not known to the common law nor was the doctrine itself in any other application of it than was found in the exercise by the sovereign of the prerogative right to enter upon lands for the defence of the realm. Att. Gen. v. Tamlane (1879), 12 Ch. 214.
To concede that at common law the doctrine was in embryo is to make an abundant concession.
While the common law was developing the English Government was asserting its rights to defend its existence at all hazards. But the granting of the power of eminent domain to a private corporation organized for the purpose of gain as a valuable concession, on the ground that the corporation will be of service to the public as well as to its stockholders is a modern device finding its justification in modern conditions, and to be exercised in accordance with sound principles of economy and sociology, and to be safeguarded by fundamental principles.
References are also frequently made to Grotius, Vattel, Puffendorf, and other continental publicists none of whom wrote anything fairly applicable to the concession of the power of eminent domain to private corporations affected with a public interest.
Vattel recognizes the right of expropriation only so far as its exercise is required by the public safety, Vattel, Law of Nations, § 244.
Puffendorf is quoted as saying that the eminent domain is something that some are afraid of more on account of the name than the thing....
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