Light v. City of Danville

• Decision Date: 11 March 1937
• Court: Virginia Supreme Court
• Parties: HARRY L. LIGHT v. CITY OF DANVILLE.

Page 181

168 Va. 181

HARRY L. LIGHT v. CITY OF DANVILLE.

Supreme Court of Virginia, Richmond.

March 11, 1937.

Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.

1. EMINENT DOMAIN — High Prerogative Right — Power of State to Delegate Right. — The power of eminent domain is a high prerogative right, and there is no doubt about the power of the State to exercise it, or to delegate it to subordinate agencies to be exercised in proper proceedings for the public welfare.

2. EMINENT DOMAIN — Construction of Statutes — Power to Be Carefully Exercised. — The statutes confirming the power of eminent domain are to be strictly construed, and the authority conferred thereby is required to be carefully exercised.

3. EMINENT DOMAIN — Both Parties Required to Follow Prescribed Statutory Procedure. — Both parties to a condemnation proceeding are bound to follow the prescribed statutory procedure in the attempt to exercise the right of eminent domain and in the defense offered to oppose its exercise.

4. EMINENT DOMAIN — Defenses — Defenses Which May Be Made. — A defendant in a condemnation proceeding may attack on the grounds of lack of constitutional capacity to exercise the power; he may show that the statute conferring the power has not been strictly followed in procedure, or he may show any fact tending to prove that the exercise of the power is unauthorized, that the land is not being taken for public use, or that he has not been allowed a just compensation ascertained according to law.

5. EMINENT DOMAIN — Collateral Attack — Wisdom, Means or Manner of Construction of Improvement. — A condemnation proceeding is not subject to collateral attack upon the question of the wisdom of the construction of a public improvement, or the means, or the manner in which such improvement is to be constructed, or the economic soundness of the proposition. The decision of such questions lies within the judgment of the agency proposing to enter into and effectuate the public purpose.

6. EMINENT DOMAIN — Questions Not Involved — Manner of Construction — How Payment to Be Made. — How a public improvement is to be constructed, through what constructural agencies, or by what agents and employees, and out of what funds the land and improvement shall be paid for, are not questions involved in a condemnation proceeding, either on the merits or the method of procedure.

7. EMINENT DOMAIN — Questions Not Involved — Good Faith of Proceeding — Decision Dependent upon Validity of What Is to Be Done. — One has not the right to inquire into the good faith of a condemnation proceeding, if the purpose is clearly set out, for the case is not to be decided by the purposes and plans that may be hidden in the minds of the agency undertaking to condemn for a public purpose, but by the validity of what is to be done and may be done as shown by the record.

8. EMINENT DOMAIN — Defenses — Condemnor without De Jure Existence — Lack of Authority to Undertake Improvement. — In Virginia a condemnee in an eminent domain proceeding may not raise the defense that the condemnor has no de jure existence, or lacks the necessary authority under its charter, or franchise, to undertake the public improvement for which the land is sought.

9. EMINENT DOMAIN — Landowner Protected by Receipt of Compensation — Not Entitled to Relief as Taxpayer. — The financial interest of the landowner is protected when he receives a just compensation for his land taken for a public use, and even as a taxpayer in the community, while he might be concerned with the raising of the money to pay for the improvement, he cannot seek relief from such taxation in the condemnation proceeding.

10. EMINENT DOMAIN — Defenses — Extraneous Matters — City's Lack of Money — Incurring of Indebtedness beyond Ability to Pay. — When the right of the condemnor to exercise the power of eminent domain is made out satisfactorily, the courts cannot deny it for any extraneous reasons which do not touch the real merits of the case, and so it is no defense that the city has no money to pay for the land taken, or that it will incur an indebtedness beyond its ability to pay.

11. EMINENT DOMAIN — Defenses — Invalidity of City's Contract with Federal Government — Federal Government's Lack of Power to Grant Money — Case at Bar. — In the instant case, a condemnation proceeding to secure land to be used in the construction of a hydro-electric plant, which plant was to be paid for, in part, by funds granted to the city by the federal government under a contract containing provisions for the character of employment and labor preferences, for inspection by federal officers, and for wages, materials, and the deposit of the moneys for construction in a fund to be expended upon the approval of a federal official, defendant contended that the city lacked power to construct the plant because the contract with the federal government constituted an unlawful attempt to delegate power and discretion, and because the grant of money by the federal government exceeded its constitutional powers.

Held: That the questions were collateral to the condemnation proceeding and affected neither the capacity nor right to condemn, but related to the manner of raising the money and the manner and means of constructing the plant, were irrelevant and immaterial, and did not constitute proper defenses.

12. SERVICE OF PROCESS — Modes of Service. — A service of a process or notice in a legal proceeding may be had on the person or persons affected thereby, either actually or constructively, or by publication.

13. EMINENT DOMAIN — Service of Process — On Non-Resident — Sections 4365 and 6071 of the Code of 1936 Not in Conflict. — There is no conflict between section 4365 of the Code of 1936, providing for service by publication on a non-resident in a condemnation proceeding, and section 6071 of the Code of 1936, providing generally for personal service on a non-resident. Under the latter section, the general law simply provides an alternate or substitute means to accomplish the purpose of the notice intended to be given by an order of publication.

14. SUMMONS AND PROCESS — Function of Notice or Order of Publication. — The sole function of a notice, or an order of publication, is to give information of its contents to the person to whom it is directed.

15. EMINENT DOMAIN — Service of Process — On Non-Resident — Personal Service — Case at Bar. — In the instant case, a condemnation proceeding, defendant, the landowner, a resident of Washington, D.C., was served personally in that city with a copy of the notice of application for the appointment of commissioners of condemnation. Defendant contended that personal service on a non-resident could not be taken to be in lieu of the publication required by section 4365 of the Code of 1936.

Held: That personal service of the notice under section 6071 of the Code of 1936 makes such notice not only equivalent to an order of publication duly executed, but gives to the receiver of the notice the advantage and benefit of actual knowledge which he might not otherwise receive.

16. EMINENT DOMAIN — Definition. — Eminent domain is the right of the nation or the State or of those to whom the power has been lawfully delegated to condemn private property for public use, and to appropriate the ownership and possession of such property for such use upon paying the owner a due compensation to be ascertained according to law.

17. EMINENT DOMAIN — Public Use — Definition. — The term "public use" under the law of eminent domain means that there must be a right on the part of the public, or some portion of it, or some public agency, to use the property after it is condemned, and the right to the use must exist as a matter of right and not a favor.

18. EMINENT DOMAIN — Public Use — Definition. — A use to be public under the law of eminent domain must be fixed and definite. It must be one in which the public, as such, has an interest, and the terms and manner of its enjoyment must be within the control of the State, independent of the rights of the private owner of the property appropriated to the use. The use of property cannot be said to be public if it can be gainsaid, denied, or withdrawn by the owner. The public interest must dominate the private gain.

19. EMINENT DOMAIN — Defenses — Incidental Service by Municipal Electric Plant to Persons Outside City Limits — Case at Bar. — In the instant case, a condemnation proceeding to secure land to be used in the construction of a hydro-electric plant, defendant contended that the city had no power of eminent domain to construct the contemplated plant, because a phrase in the ordinance providing therefor showed that at least in part the plant was to be constructed for private purposes. Defendant relied upon a statement in the ordinance that the plant should be constructed "for the use of the city, its inhabitants and customers," and contended that the words "and customers" applied to persons who might receive electrical energy residing outside of the city.

Held: That the word "customers" simply specified a group coming within the classification of inhabitants and might be disregarded as surplusage, and even if construed to include an incidental service beyond the city limits to those along the transmission lines, that would not destroy or vitiate the dominant purpose of the condemnation proceeding.

20. MUNICIPAL CORPORATIONS — Powers — To Sell Surplus Electricity to Persons Outside City Limits. — The surplus energy created by a new municipal electric plant may be sold to others in the community, separated from the city only by an invisible geographical line, who are willing to take it and pay for it. At the same time that such service promotes their personal convenience and business interests, it results in a benefit to the city, its inhabitants and customers, in lessening the cost per unit.

21. MUNICIPAL CORPORATIONS — Powers — In General....