Miller v. Town Of Pulaski

• Citation: 63 S.E. 880,109 Va. 137
• Parties: MILLER et al. v. TOWN OF PULASKI.
• Decision Date: 14 January 1909
• Court: Supreme Court of Virginia

63 S.E. 880

109 Va. 137

MILLER et al.

v.TOWN OF PULASKI.

Supreme Court of Appeals of Virginia.

Jan. 14, 1909.

Rehearing Denied March 11, 1909.

1. Statutes (§ 90^*)—Special Laws—Affecting Municipal Corporations—Amending Town Charter.

Const. 1902, art. 4, § 63 (Code 1904, p. ccxxiii), prohibits local, special, or private laws in certain classes of cases, none of which include acts in relation to the incorporation of cities or amending their charters, and article 8, § 117 (Code 1904, p. ccxxxviii), prohibits the passage of special acts for the organization and government of towns except as provided by article 4, and then only by a two-thirds vote of each house. Held, that the Legislature could amend the charter of a municipal corporation in the manner provided in article 4 if the special act was passed by a recorded vote of two-thirds of each house as required by section 117.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 99; Dec. Dig. J 90.*J

2. Eminent Domain (§ 66*)—Delegation op Power—Public Use.

The question whether a particular use for which property is condemned is a public use is one for the courts, and not the Legislature, but, if the use is in fact public, the necessity or expediency of exercising the power is a legislative, and not a judicial, question.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 165; Dec. Dig. § 60.*]

3. Eminent Domain (§ 66*) — Exercise of Delegated Power—Extent of Appropriation—Determination by Court.

The use for which private property is taken being in fact public, the extent to which the right should be delegated and exercised is to be determined by the Legislature, and not by the courts.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 107; Dec. Dig. § 66.*]

4. Eminent Domain (§ 14*)—Delegation of Power—Public Use—What Constitutes.

To make.the purpose for which property is condemned a public use, it is not necessary that it inure to the benefit of the whole public or any large part of it, but it may benefit only the inhabitants of a restricted locality, though the benefit must be in common, and not to particular individuals or estates.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 54; Dec. Dig. § 14.*]

5. Eminent Domain (§ 35*)—Delegation of Power—Public Use—Electric Lighting.

The condemnation of land by a town to enable it to furnish light to the inhabitants thereof is for a public use.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 80; Dec. Dig. § 35.*]

6. Eminent Domain (§ 28^*)—Delegation or Power—Public Use—Water Supply.

Condemnation of land by a town to enable it to supply water to the inhabitants thereof is for a public use.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 75; Dec. Dig. § 28.*]

7. Eminent Domain (§ 28*)—Delegation op Power—Public Use.

Section 12 of the charter of the town of Pulaski (Acts 1898, p. 210. c. 190), as amended by Acts 1900, p. 460, c. 262, authorizing the town to condemn land for supplying to the inhabitants of the town, or other persons or corporations with water and light, in so far as it authorizes the condemnation of land to enable it to furnish water, etc., to others than the inhabitants of the town, is unconstitutional as not being for a public use.

[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 28.*]

8. Statutes (§ 64*) — Validity — Effect op Partial Invalidity—Eminent Domain.

If a private use is combined with a public use in a statute authorizing the condemnation of land, in such a way that they cannot be separated, the whole act is void, so that section 12 of the charter of the town of Pulaski (Acts 1898, p. 210, c. 190), as amended by Acts 1906, p. 460, c. 262, authorizing the condemnation of land for the purpose of furnishing water, etc., to the inhabitants of the town or other persons, companies, etc., being unconstitutional in so far as it authorized land to be taken to enable it to furnish water to others than the inhabitants of the town, the whole section is invalid; the provisions authorizing condemnation for a public and a private use being inseparable.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 5S-66; Dec. Dig. § 64.*]

Error from Circuit Court, Carroll County.

Condemnation proceedings by the Town of Pulaski against J. R. Miller, trustee, and others. Defendants' exceptions to the report of the commissioners allowing compensation were overruled, and the report confirmed, and defendants bring error. Reversed.

M. M. Caldwell, for plaintiffs in error.

A. A. Phlegar and J. C. Wysor, for defendant in error.

KEITH, P. The town of Pulaski filed its petition in the circuit court of the county of Carroll, in which it states that, by virtue of its charter and the general laws of Virginia, it has authority to erect, equip, and operate electric light plants for the purpose of lighting its streets, and to sell light to individuals and corporations; that, in pursuance of said power, it owns an electric light plant, which it is now operating, and is furnishing lights for its streets and to the citizens of the town, but that it is wholly inadequate for its needs, and it is unable properly to light its streets with the present equipment, and is unable to carry out Its contracts for light with its citizens; that the present plant Is entirely too small for the size of the town, and the cost of operating the same is of necessity in excess of the returns therefrom, and there is a public necessity for the erection of a larger and better plant; that the town council have de cided to acquire water power to operate said plant, believing that such power is the best and most economical; that they have inspected numerous sites for the location of a power plant along the streams near the town, and have decided that the most available is the site situated on Big Reed Island creek, in the county of Carroll, known as the "Narrows"; that for the purposes aforesaid It has acquired the right from all the lower riparian owners to divert the water of the creek across the Narrows, and has purchased the fee-simple title to what is known as the "Tunnel" along the course of the proposed diversion of the stream, and owns in fee simple land adjoining and surrounding said point; that J. E. Caldwell claims to have purchased from said riparian owners certain water rights, including the right to divert said stream for the creation of power, which rights so claimed by him are set forth in a deed from him to J. R. Miller, trustee, which has been duly recorded, and is to be read as a part of the petition; that Miller, trustee, and those claiming under and through him, assert that their rights as set out in the deed from Caldwell to Miller, trustee, have priority over some of the rights owned by petitioner; that petitioner has made an honest and bona fide effort to agree with Miller, trustee, and Caldwell, as agent for all parties interested, upon the price and terms to purchase their rights, but they have been unable to agree because they, refuse to sell their rights or to allow the water to be diverted at a reasonable price; that under its charter and the general laws of the state petitioner is authorized to condemn lands or other property, or any interest or estate therein, for its uses and purposes, and that the property and rights owned by said Miller, trustee, which are sought to be condemned in this proceeding and hereinabove set forth, are wanted for the uses and purposes of petitioner in constructing, maintaining, and operating its proposed electric light plant; that petitioner intends to take by this proceeding 12 1/2 acres of land owned by Miller, trustee, hereinbefore mentioned and described, and shown on a map filed with the petition, and to take the perpetual right and privilege of diverting the waters of Big Reed Island creek from their usual course, and utilize said water perpetually for its uses and purposes, free from the right or claim of all persons whomsoever; that it has given notice to all parties in interest of its intention to make this application at this term of court, and it therefore prays that five disinterested freeholders may be appointed for the purpose of ascertaining a just compensation for the aforesaid property and property rights, which petitioner proposes to condemn, and to award the damages, if any, resulting to adjacent and other property owners from the construction and operation of petitioner's work. The commissioners were appointed andmade their report to the court that in their opinion the sum of $250 would be a just compensation to the defendants. This sum was paid into court by the petitioner, all the exceptions on the part of the defendants to the report were overruled, and the report confirmed. To that order a writ of error was allowed by this court.

The act under which this proceeding was had is to be found in Acts Assem. 1906, p. 460, c. 262, amending section 12 of an act to provide a charter for the town of Pulaski (Acts 1898, p. 210, c. 190). Section 12, as amended, or so much thereof as is pertinent to this inquiry, is as follows:

"To establish, improve or enlarge waterworks and electric light works, or gas works, or to construct and equip and operate new electric light plants or waterworks, electric wires, poles, pipes, and other appurtenances to said plants within or without the corporate limits of said town for the purpose of supplying the inhabitants of said town, or other persons, companies or corporations with water, electric lights or power; to contract with the owners of any land, or water, or water rights, or other rights, for the use and purchase thereof, or to have the same condemned for the purposes aforesaid, whether situated within or without the corporate limits of the said town, for the location, extension, enlargement, or improvement of said works, or for the construction of new works, the pipe lines, wires, or pole lines connected therewith, or any fixtures and appurtenances thereof. * * *"

It is claimed...