Handley v. Cook

Jeopardy III, Clause in Article Section 5 the West Virginia Constitution, defendant is not entitled to judgment acquittal. Therefore, this case is reversed proceedings and remanded for further inconsistent opinion. with this

Reversed and remanded. et al. Handley, Gene P. Jerry Cook, Judge, etc.

Hon. corporation Apco, (No. 14262) February Decided 1979. Marshall, Jr., Ratliff, Ratliff, E. Ray & G. E. Kaufman Clair, for relators. St.

Marshall & respondents. John O. Kizer Lycan, amicus curiae. David Neely, Justice: grant- prohibition challenges an order action in

This entry ing Company a of over Appalachian Power high voltage power aof relators’ lands for construction mining operation. a single coal We issued line serve a to questions: an rule limited to two whether to show cause entry a granting for construction of a of order notwithstanding that appealable line is fact begun compensation not nor been de- construction electricity and, single termined; supplying to a whether contemplated mining operation is a W. Va. 54-l-2(b) Code, Having §3, Art. and W.Va. [1962]. Const. 9 entry granting in a that an order condemna- determined appealable supply- an order and that proceeding tion is electricity single regardless his ing a consumer of to public use, an or a business is status as individual prayed discharged and the writ rule cause is to show denied. Wayne County, plan to its to mine coal

Pursuant Lynn Monterey Company Virginia, East Coal Company sup- prevailed upon Appalachian to Power power company ply respondent to its mine and necessary rights-of-way across to obtain determined agreement failing lands. After to reach an relators’ concerning Appalachian rights-of-way, Pow- the relators proceedings Company in the Cir- er filed condemnation Wayne County entry and obtained orders cuit Court surveying laying proposed purpose out for the authorizing right-of-way.1 orders were entered Further respondent power company allege entered Relators authority upon causing damage proper enter lands before to their allege It is whether relators this as had been obtained. unclear proceedings merely in an the condemnation effort bar to entry proceedings persuasion. That unlawful before condemnation clear, Waynesburg taking R.R. does act as a to is Southern not bar Appalachian Company possess, appropriate, Power to operation and use relators’ lands for construction adjudicating Ap- electric line palachian Company’s right take. Relators seek prohibition maintaining a writ principal- this Court ly respondent judge legitimate pow- abused his supplying electricity ers a single because commercial enterprise public use, is not a granting and since the entry may order, a writ appealable not be an there is remedy prevent irreparable no damage other effective judge’s from the powers. action in excess his lawful

I question prohibi- The threshold in this case whether proper procedure tion challenge the lower prohibition court’s orders. It is well established does lie to correct mere errors and cannot allowed error, usurp appeal, the functions of writ of or certio- rari, Laurita, Woodall 156 W. Va. S.E.2d (1973); Huntington Lombardo, ex rel. State v. 149 Va.W. (1965). 671, Clearly, 143 S.E.2d 535 the lower court had jurisdiction proceedings, condemnation W.Va. Code, [1923], and, legiti- 54-2-1 unless it so exceeded its powers jurisdiction, mate prohibition as to vitiate that proper remedy. allege not the Relators that there awas jurisdiction vitiation of when the lower court ruled that taking eminent domain for power construction of an electric transmission line to single public serve a commercial customer is a use. We find, however, properly. that the lower court acted It is apparent Appalachian Company to us that Power power with clothed of eminent domain for construc- 54-l-2(b) power Code, tion of transmission W.Va. lines. [1962].2

remedy for trespass. Co. v. phone, 2 taken W.Va. “For Lemley, electric Code, or any damage damaged: construction 154 W. Va. 54-l-2(b) light, heat ^[1962] caused would 728, and provides 178 S.E.2d 833 maintenance power plants, that an private action telegraph, systems, The law for lines, proper tele- may only question decide service to for us to is whether The the ambit a comes within industrial customer one public use.

Interestingly, respondent call our relators both anomaly cases, easily virtually the same attention precedents. upon All the examination understood proposition private prop- that stand for the broad cases erty for use. The cases then cannot be taken presented patterns apply principle to fact that broad cases demon- the cases. An examination these prevail respondent must on facts strates analogous in this The cited cases most us case. before dealing gas and at bar those the one are public where, exception, found a we have lines without imply anything for present.3 We do not mean company gas seeks to condemn a only public use, a but property will be considered energy provide rights-of-way have condemnations serving consistently as been considered this Court public use. Legislature available has in order make upon power companies

conferred electric domain, necessarily imposed thereby and has eminent them, corporations, upon condemner, duty performing Ap- service. supply Company, must electrical ser- palachian it; pay are those who it and able to vice to desire arbitrarily service or in- company cannot discontinue and, provision charged; company’s the rates crease branch, conduits, (including spur lines, stations lines) use... and service when Lucas, Shepherdstown Light v. 498, & Water Co. 107 W. Va. Paull, (1929); Brooke Electric Co. 96 W. Va. 123 S.E. S.E. Beall, v. 637, Brooke Electric Co. (1924); 123 S.E. 96 W. Va. 587 590 Maryland Valley Virginia Power Racoon v. Coal (1924); & Co. Pittsburgh Virginia Co., (1923); & West 505, 93 W. Va. 117 S.E. 891 Carnegie Cutright, (1918); 42, v. Co. Gas 97 83 W. Va. S.E. 686 Swiger, (1913); v. Pitts 557, Natural Gas Co. 72 W. Va. 79 S.E. 3 Liston, burgh Hydro-Electric 83, (1911); v.Co. 70 W. Va. 73 S.E. 86 Butler, Trustees, Natural v. Lowe & Gas. Co. Charleston W. Va. (1901). 662, 33 S.E. dependent upon Legislature is the will of the and, turn, in the Public Service Commission. Relators contend service to one customer does not serve public need; however, it is the nature of the use rather persons than the para- number served which is the Waynesburg mount consideration. Southern R.R. Co. Lemley, 154 W. Va. S.E.2d 833 Further- more we find no distinction between residential users; seeking separate commercial the two as to deserving pro- use” treatment utility unavailing vision of services to the relators. Appalachian Company makes available electrical all, alike, individuals and businesses and would pressed deny high voltage power anyone hard along proposed Undoubtedly, line who it. needed re- lators themselves are users and would be horri- fied if their forthcoming service had not been due adjacent to a recalcitrant landowner.

II allegations correct, prohibition Even if relator’s were an inappropriate challenge adjudi- would be means to cation aof condemner’s to take because appealable such orders though are final even orders they retain being interlocutory; some characteristics therefore, complainants, relators, such as are left not remedy. admittedly without While language our past crystal always cases has been clear about time at which proceeding orders an eminent domain appealable, become the results have been reasonable. adjudicated, After to take has been the meat tried, of the case has and a been writ of error should lie. Requiring actual entrance and use the condemner precedent appeal a condition to the landowner’s would produce results; why litigants absurd required should perhaps wait until been used and ruined purposes they for their seek before can relief? any past language implies

To the extent of our actually land possession must be taken into compensation actually paid use or determined before implications lie, we declare such of error will a writ cases, at the time In all future overruled. apply a can for’ the landowner has been determined take supersedeas. error and writ of above, to show cause the rule reasons stated For the prohibi- discharged and the writ of heretofore issued prayed denied. tion denied.

Writ dissenting: McGRAW, Justice, majority opinion the Court because from the I dissent makes mistakes When Court made two mistakes. patience to admit and courage and have the it should rectify them.

I delays jus- the Court the two mistakes of The first of petitioner’s constitutional denies tice and therefore landowners, orig- invoking the Petitioners, small rights.1 Court, sup- five issues in jurisdiction raised of this inal agreed to prohibition.2 the Court port writ of When of a Virginia. 3, § 17 of the Constitution Article powers (1) APC, respondent, of eminent exceeded its lawful lands, petitioners’ their by entering without on certain of domain same; respon any consent, prior further order of court Cook, Judge Jerry Boone dent, of the Circuit Court of W. Honorable jurisdiction by entering County, overbroad orders of exceeded his requiring survey; purpose entry and that a rule issue for the Prohibition should not be respondents what a Writ of to show cause petitioners. these awarded constitutionally (2) petitioners entitled to are otherwise These respondent, question day in court on the their day property; in court has further such to take their APC effectively petitioners; and that rule issue these denied been why repondents Writ of Prohibition requiring cause to show petitioners. awarded these not be should Cook, Judge Jerry (3) respondent, of the Circuit W. Honorable Appli- jurisdiction County, APC’s to entertain lacks of Boone Court to obtain petitioners’ because APC failed lands to Condemn cation Code, necessity, §54-2- W.Va. convenience a certificate respondents requiring to show cause 1(a); said a rule issue and that petitioners. why awarded these should not be a Writ of Prohibition petitioners, unwisely hear the limiting argu- acted majority ment3 to what now declaims to be two issues: question

“The ... prohibition ... is whether proper procedure challenge the lower court’s orders.” question ...

“The ... is whether service to one public industrial customer ... a [is] use.” The Court refuses to consider the small landowner’s jurisdiction claim that the court below had no to enter majority the order says which the appealed. now can be say The small landowners judge the circuit lacks jurisdiction power company’s to hear the application to condemn company lands because the has failed to “proper” application file a necessary which is under the law. say by

The small landowners affidavit the line power company which the going poten- to build has a capacity 200,000 tial in excess of volts and that the law requires approved by such a line to be the Public Service say, effect, Commission.4 The small in landowners (4) petitioners’ sought by respon- The lands to be condemned the dent, APC, use; public are not destined for and that a rule issue requiring respondents (sic) said to show cause a what Writ of Prohi- petitioners. bition should not be awarded these (5) respondent, Cook, Jerry Judge Honorable W. of the Circuit County, jurisdiction Court of Boone lacks or otherwise exceeded his jurisdiction, compliance because APC failed obtain the Feder- Energy Regulatory al Commission the National Historic Pres- §470(f). of ervation Act 16 U.S.C. 9/18/78, question grant Granted limited to toas whether order ing entry appealable proper subject prohibition; of or of public use, Jan., day and versus returnable on the 16th of 10:00 A.M. Code, 24-2-11a, entirety: W.Va. reads its (a) public utility, person corporation begin No shall construc- voltage high tion a transmission line of two hundred thousand over, ordinary existing volts or which line is not an extension anof system in the course usual of business as defined commission, unless and until or he shall have obtained from service commission a certificate conve- hearing

proper procedure entitle them to where- would objections the Public Ser- could be evaluated their Code, Commission, the terms of 24-2a- vice under W.Va. 11a, convenience of the certificate of before the issuance course, right; building necessity. They are, proposed necessity approving construction loca- nience transmission line. tion of such (b) application certificate shall be in such form as for such may prescribe and shall contain: commission (1) may prescribe, description, in such detail as commission A type applicant pro- of line facilities which the of the location and construct; poses to (2) facilities; justifying the need for such A statement (3) impact line the environmental of such facili- A statement ties; and (4) applicant may as the deem relevant or Such other information may require.” the commission (c) application, applicant pub- Upon filing shall of such direct, legal lish, shall a Class II in such form as the commission provisions compliance [§ with the of article three advertisement Code, publication seq.], chapter fifty-nine area 59-3-1 et county any portion publication to be each in which for such constructed, proposed is to be notice line may approve application filing that the commission the of such and days publication completion fifteen after of same unless within request hearing been received the for a thereon has written persons alleging proposed person that the commission from a or against the interest. If line or its location is received, request timely the mat- the commission shall set such sixty days completion hearing from of said ter for on a date within publish publication, require applicant the shall notice of the and required place hearing of in the same manner as is herein time and filing application. publication for the of notice (d) sixty days filing application, if after of said or Within the thereon, ninety days hearing within after final shall be held sub- may brief, approve argument on or the commission mission oral proposed application find and determine trans- if shall mission line: (1) reliably economically, adequately to meet- and contribute Will power ing present anticipated requirements for electric of and applicant necessary or and desirable the customers served reliability power anticipated present of for electric and region; area or and its service (2) acceptable balance between reasonable Will result an environmental factors. needs and reasonable any high potential capacity tension line which has 200,000 excess of volts must be considered the Public Commission, Service otherwise statute becomes meaningless. high The determination of what tension lines are power company covered must not be left to the obviously for it would desire to avoid the of strictures Code, proven 24-2-lla W.Va. as it has here. say judge small landowners the circuit has authority entry” upon

no to enter an “order pow- company’s er improper application. I agree with the “[Qailure that, small landowners copy to file a certified of such necessity] [of certificate convenience shall ‘petition.” result in a dismissal (emphasis provid- ed). Code, W.Va. 54-2-2a [1973]. It has been the law for at least one hundred years twenty-nine that: prohibition

The writ of shall lie as a matter of usurpation in all cases of pow- and abuse of er, jurisdiction when the inferior court has no subject controversy, or, having matter jurisdiction, legitimate powers. such exceeds its Code, W.Va. 53-1-1 [1849]. clearly

The small landowners have demonstrated authority the court had no below lawful decree entry” company, by “order because the its fail- necessity, ure to file a certificate of convenience (e) may impose upon approval The commission conditions its application, modify applicant’s proposal, to achieve an acceptable balance between reasonable needs and reason- able environmental factors. (f) provisions apply of this section shall not to the construc- part tion of line facilities which will a transmission line for any right-of-way acquired prior day been to the first January, seventy-three. one thousand nine hundred (g) prescribe regulations The commission shall such rules and as may proper deem for the administration and enforcement provisions section, regulations of this which and rules shall be promulgated applicable provisions chap- in accordance with the twenty-nine-A seq.] [§ ter 29A-1-1 et of this Code as if the same (1973, 112). were set forth herein in extenso. c.

638 application. to file a “proper” Failure file a

failed to peti- in a dismissal of proper petition “shall result landowners, denied the small The court below tion.” man, should lie. process due of law. Prohibition little

II has made was its which the Court The second mistake Amicus Curiae take the time to consider the refusal to of Law of prepared two eminent Professors Brief University. If the Court had taken Virginia provided the time, could have the Amicus Curiae Brief origins insight eminent domain into the Court “public use.”5 law on and modern American today, pronouncement thought-free To the Court’s Cady, perhaps anticipating McGinley and the Professors apt reply: outrage,6 wrote with the and Bar more familiar In order to make Bench origins law as herein current direction eminent domain of and Appendix arguments discussed, including A the contained I am as I Court refused to consider. am also includ in the brief which the argument ing Appendix the Amicus Curiae B the succinct from Wayne County Lycan, Mr. Counsel te Com Brief filed David mission, and the social con was considered which illustrates which case. in which Court decided this text Brannon, My original. Judge noted and is neither new nor view development, said, judicial support dis his of industrial lauded for Co., Ry. Virginia-Pocahontas senting W. Co. v. Coal Coretta 185, 194-95, (1907), that: 57 S.E. Va. proposed purpose for it is to I hold that which On facts public, private; not but this railroad condemn the land is general public, simply projected, to serve the but and was Company get only coal to Coal to its enable the Pocahontas really truly market, and that the railroad sub- timber to company need no want or or behest. coal serves price likely failing agree with the land owner as accomplish way, of the state to result invokes the accomplish contract. The which it could not perverted eminent domain cannot be to such use. state under land, life, land, ownership Sacred, free on next bread, live, to earn to rest at which to from which legislatures tell last. The noble American Constitutions courts, only shall be taken answer need, need, no matter how never subserve may great need be. guise “public use,”

Under Appalachian Company seeking is to benefit interests of its own stockholders. has no interest in or need for the expansion of electric lines which only

will company; [particularly, serve one coal here, already where exists]; electric rather, is harmed in that citizens are being deprived constitutionally-protected of their rights. process requirements Due should, therefore, attach, and the Court should vigorously review each such condemnation to en- delegee sure that abused its discre- tion, but has chosen the alternative most benefi- cial to the it is bound to serve.

Ill surely These people landowners are of modest means. ability support lawyers Their financial protracted litigation limited, particularly compared when to the powerful power which, rich and company with its rela- tively assets, unlimited can sustain almost endless liti- gation.

While the might appeal small landowners the failure of power company comply with the law which re- quires certificate necessity, they convenience justice day. are denied this company gets a great deserves, deal including more than it entry private property, landowners, but the small people, get virtually nothing.

APPENDIX A

ARGUMENT I. PREFACE appropriate just

An rights resolution of the parties remedies in the necessarily case at bar requires analyze this underpin- Court the historical nings concepts use” and “eminent do- necessary put It main.” these terms in historical they context are because used the instant case to pri- another taking of facilitate corporation; procedure profit-making vate citizen —a contemplated framers of have would never been our federal Constitution. IS EXERCIS- POWER COMPANY

II. RESPONDENT OF THE POWER GRANT ITS ING LEGISLATIVE THE IN VIOLATION OF DOMAIN OF EMINENT AND STATE CONSTITUTIONS FEDERAL AND THAT THE TAKING IS IN STATE STATUTES PRIVATE PURPOSE FOR AN ESSENTIALLY FOR PURPOSE IS PUBLIC WHICH NO NEEDFUL THEREBY SERVED. Requirement Public Use

A. Basis Historical of domain was an of eminent The notion that sovereign state articulated of a was inherent century Hugh philosopher/attorney seventeenth Pads, Ill, § Grotius, et 7. Mait- De Belli Lib. C. Jurre theory in neatly the statement: land summarized King of England must be held of the All land in King not be the England, he would otherwise ownership an of land England. wish for all To royal subject rights shall Maitland, Pollock, for a state of nature. wish (1895). Law, History English government to exercise of the federal While private property domain to take of eminent Constitution, it explicitly was confirmed was not Rights. recognized in Bill of The Fifth implicitly that: Amendment commands property taken for ... nor shall just use, compensation. without S. Const. U. Amendment V. Madison, suggested it James

It been was Rights, draftsperson incorpo- Bill principal who “just compensation” require- “public and rated use” Grant, Higher Fifth Amendment. “The ments Domain,” Background L. Rev. 67 Law of Eminent 6 Wis. (1931). “taking” restrictions on the The inclusion such sovereign concept. Rather, of a not a was new may equitable judicial poli- be traced as far back as the Empire century cies of the Roman in the second B.C.: possibly The Roman as the result of ex- Senate — periences owners of land— passed decree that could be use, upon taken being an estimate by good made (emphasis origi- therefore men. nal) Watson, III The Constitution the United (1910). States, 1458-1459, at A Napoleonic similar limitation is found Code “(n)o compelled the effect give up one can be his property except public good, just for the for a previous indemnity.” Napoleon, 454, Magna Code Art. Carta, Lord Coke’s Institutes and Blackstone’s Commen- provided precedent taries also are said to have for the “just Fifth Amendment’s use” compensa- provisions. Nichols, tion” See 1 The Law Eminent Do- main, 4.1, § (1970); Bosselman, Taking Issue, Thus, historically recognized principle of law was incorporated into the Fifth Amendment as a restriction implicit sovereign power. e.g., on the See Boom Co. v. Patterson, (1878); States, 98 367 U.S. Kohl v. United 91 (1875). U.S. 367 Delegation

B. the Power Eminent Domain to Pub- of of Agencies lic power While the exercise of the of eminent domain was early recognized sovereign power as an inherent of the government, thought federal power the such a formally delegated legislature could be the did not century. arise until the middle of the e.g., nineteenth See People Smith, (1860); v. 21 N.Y. 595 Harmony, Mitchell v. (U.S. 1850). 115, 13 How. 139 generally accepted

The delegation rationale behind of power of the eminent domain was that of execution the legislative Randolph, laws not a function. The Law of (1894). Domain, argued Eminent at 94 It was that corn- 642 impractical to it would be have dictates

mon sense every steeped condemna legislature in the details of Co., Bangor Hydro-Electric 314 A.2d 800 See, In Re tion. Bryson, (Me. 1974); County v. 290 Freeburn N.W.2d of 1973); Valley Volpe, 302 F. (Minn. Citizens Hudson (S.D.N.Y. see, 1969); v. Patter but Boom Co. Supp. 1083 (1878). statutory delegation The son, 98 U.S. legislature power domain sovereign of eminent logical growing agencies was the offshoot limits drawn complexity government. of Within the statute, public delegee was delegating entitled relating whether will make determinations exercised, what ex it be exercised and to when will be Lewis, given See, situation. be tent will exercised Domain, § (1909); on the Law Eminent 1 A Treatise (3). supra, § Nichols, 3.21 Requirement Expansion the Public Use C. statutory delegation of the emi- time the At the same acceptance, meeting growing domain was nent concept use” were un- parameters expansion. the time of the dergoing At considerable Amendment, adoption use was strict- Fifth literally the land had ly mean construed takings roads, canals, occupied by public; used or See, examples public parks of such uses. would be Domain, Note, on Eminent Use Limitation “The Public (1949). 602, L. 58 Yale J. “pub- construction term

The rationale for strict principally on three considerations: lic use” was based (1) accepted practice time the Fifth Amend- at the only could drafted was that ment was dams, rights way cases of taken for mill See, Lewis, necessity, 1 Eminent Do- extreme main, eminent domain was police powers distinct from other state read as therefore justifies public purpose eye “a towards sovereignty ...” Matter preogative invoked 375, Co., 379, Niagra Whirlpool R.R. 135 N.Y. Falls and (1888). (2) 429, the most Strict construction 432 15 N.E. Lewis, interpretation “use.” 1 Emi- logical of the word (1909). (3) “public Domain, reading of A strict nent at 506 discriminating takings provisions more use” makes restriction on the gives it effect as a constitutional vindicating intent power, thus eminent domain Id. the framers. construction use re-

The rule of strict steadily quirement eroded in the federal courts and was many This erosion has been attributed to: state courts.

(t)he pre- expanding philosophy social (which) century brought in the courts sent complete abandonment of the “use an almost See, Note, public” “The Public Limi- test. Use Domain,” 599, Eminent 58 Yale L. J. tation on (1958); Project, Private “The Use Public Power,” Rev. Vand. L. expanding policy large part to the social refers This government- to force use of the eminent domain expan redevelopment of urban slums. This sanctioned “public greatest boost in Ber use” received its sion Parker, (1954), approved man v. 348 U.S. 26 benefit,” “public project as a cast federal urban renewal “public mandate because ing the narrower use” aside police power as the of eminent domain as well involved. was expansive view of use should not be fol- cases, here, police as where the

lowed this Court abroga- must limit not involved. This Court requirement “public use” to situations tion of the strict is exercised as a in Berman where eminent domain warding corrolary police power off threats to the gener- health, safety and welfare. This Court has ally apply the rule of strict construction. continued Relators, cited, at 9-18. cases Brief of See Legislative Delegation the Power Eminent Do- D. Corporations to Private main Contemporaneous the erosion of the use” statutory expansion requirement of the trend of was delegation power. legislatures condemnation State began to bestow authority private condemnation on cor- porations public agencies; railroads, as well private utility companies, mining companies and others were recipients statutory authority. of such impetus The delegation public agencies for corpora- and tions is attributed to the rise of the “Industrial Revolu- tion” in the latter century. half of the Thus, nineteenth early approving state decision the condemnation property drainage for a deep tunnel for mining held that:

the definition of use must be such as to give degree elasticity it a capable meeting improvements new conditions and and the ever increasing society. needs of Treasury Tanner v. Co., Tunnel and 593, Reduction 35 Col. P. E. The Constitutional Statutory Requirements and “Public Ejfect Use” Must Be Given in This Case question While the statute in the pur- case at bar ports delegate to, of eminent domain inter alia, private profit-making corporations, judicial in- quiry compliance to determine with the constitution and rigorous statute must be a one if the term any meaning use” is to have statutory at all. provi- sion which extends pri- eminent domain to corporations vate Appalachian such as Company 1, Chapter Section Article Virginia 54 of the West Code Annotated. “The uses

may damaged be taken or are as follows: “(b) For the construction and maintenance telegraph, telephone, light, electric heat and power plants, systems, lines, lines, conduits, (including branch, stations spur and lines), public use;” when (emphasis added) Code, § W. Va. 54-1-2. provisions limiting pertinent state constitutional Virginia power are found in Article III of Constitution: are, by nature, equally

Ҥ1. All men free and rights, independent, have certain inherent society, which, they they enter a state of when cannot, by any compact, deprive or divest their namely: enjoyment posterity, of life and lib- erty, acquiring possessing with the means of obtaining property, pursuing happi- and of safety. ness and

“§9. property shall not be taken Private use, just compensa- damaged public without for tion; ...” Article III. W. Va. Const. following

Also relevant are the clauses of the Fifth to the Constitution of the United States: Amendment deprived property, person ... of ... No shall be law, process due nor shall without public use, just for without be taken Const., compensation. Amend. V. U.S. has, course, appli-

The Fifth Amendment been made by process of the due clause of cable to the states virtue the Fourteenth Amendment. public corpo- that it is a

Respondent contends generation power, engaged in the of electric ration by legislature to be a has been determined by argues public Respondent that virtue bus- use. recognized legislature must have that it iness it is in the by public This view is underscored in the interest. acts Appalachian Company’s plead- inadequacy baldly Respondent in its ing asserted in the Court below. taking sought petition was for that condemnation alleged. use”; nothing further was a smugly appears have assumed that a Respondent public without more is self-serving use declaration § compliance of the West Vir- 54-1-2 tantamount ginia Code the state federal Constitutions. Such clearly assumption is erroneous. Requirement

F. The Public Use Section Must 5^-l-2 Strictly Construed. peremptory Respondent’s public distain § requirement presumptuous 54-1-2 is in the extreme. Respondent’s assumption legislative incorrect that au- thorization to take concomitant with a determination public ignores that the use is a one the limitation found delegating granted in the statute taking public Code, § when the is “for use.” W. Va. 54-1- language every 2. Such surplusage would mere if taking delegee automatically a were deemed to be for language a recognized use. This was aas limita- right tion of the to condemn Charleston Natural Gas Low, (1901), Co. v. W. Va. S.E. 410 where the Court noted that qualified “when for a use” to condemn. give full This Court must force and effect to this statu- tory restriction doing to condemn. In so meager Court will find that record in case es- beyond tablishes doubt this is condemnation private, for-profit business elec- private, for-profit tric to another business. To as- any sert direct will benefit be derived taking ignore is to who the true benefactors of the con- will legislature demnation be. hold that To the has sanc- mockery tioned such action tois make a limiting language authorizing in the statute. Utility Company’s Right

G. A to Condemn Inferior Subject Rigorous Should Be Judicial Review Due to the Potential Abuse Inherent in the Unre- strained the Exercise Eminent Domain of of by Entity. a Non-Public power the When eminent delegated of domain is to a private entity, particularly profit one which is motivat- ed, potential there is increased for abuse of discretion due to unavoidable of private, conflicts interest. A inves- Appalachian corporation Power Com- such as tor-owned duty nature, pany is, its its motivated duty public provide neces- profitable as well its as sary services.

Historically easy why courts is to understand they to be a been liberal in what deemed have increasing pub- and the use. The rise of industrialization gas transportation, lic natural and electric- demand for ity simple test to be made it a matter today. longer No is it neces- met. Such is the case blindly promote the ex- sary expansion industrial pense rights. individual Most residents of the State of of electricity, presently supplied Virginia can strictly time has for the Court scruti- and the come utility company’s right of eminent exercise its of nize a ensure it is one demanded and needed domain to may Although at one public. an increase automatically to the deemed beneficial time have been public, longer oftentimes the delete- this is no true since and the invasion of constitu- environmental effects rious outweigh rights tionally-protected far may public advantages which result from any indirect expanded expansion. industrialization Just power use, potential of concept abuse of of scrutiny rigorous judicial result eminent domain must takings by private, for-profit entities. in the context government en between The fundamental distinction respective corporations exer their tities and expressed domain was well of eminent cise of Fairmont, Morgan Regents Virginia Board in West Pittsburgh R.R., Va. 189 S.E.2d 40 155 W. town & (1972): an attri- to condemn is “The of the state sovereignty, utilities while bute by legislative granted act.

to condemn superior to that the state is therefore added) utility.” (emphasis step towards effective Recognition distinction universally accepted principal judicial It is a review. do- statutory delegations of eminent 648 strictly against delegee. See,

main are construed the Delaware, Morristown, L v. & W R.R. U.S. Co. (1927).

The rationale behind this rule of construction is that taking for a is un- avoidably against deemed to be the common authority; clearly expressed. so do must be The bur- proving proposed den of power exercise of the scope delegating within statute either ex- pressly by necessary implication must therefore placed delegee. See, e.g., on the Hwy Arkansas State Morgan’s Estate, 450, v. Comm. 243 Ark. 420 S.W.2d 525 (1965). It should be noted that when the state or its employing officials are of eminent domain the apply. rule strict construction has been held not See, e.g., City Bay Utilities, Palm Inc., General Dev. (Fla. 1967). 912, Thus, 201 So.2d some courts have rightly recognized public/private dichotomy ap- ply the rule of strict construction on the basis delegee. character The rule of strict construction provide judicial can an effective framework for review of possibility delegee of abuse where a has a substan- private involved; tial interest the rule can serve as a strictly for the basis Court scrutinize the exercise of non-public of eminent entity. domain early perceptive judge As as 1906 dissented from the majority’s determination a proposed railroad was for a use: Company

‘The Pocahontas Coal could not con- demn the land its name and resorts to a rail- road charter to attain the end ... The the state under eminent domain per- cannot be verted to such use.” Virginia Carretta R.R. v. Co., Pocahontas Coal 62 W. Va. 57 S.E. 401 primarily promoted Where interests will condemnation, effectively the Court must review the taking deny purpose where the for the taking or is its chief inducement or incentive appropriation. See, Gauley & Summersville R.R. v. (1914). of The burden Vencill, 80 S.E. 73 W. Va. private placed on the be “public use” should proving by preponderance of the a prove it delegee should who the so- addition, should balance the Court In evidence. prop- utility proposed condemnation of the cial See, “Public Use individual landowner. erty rights of the Eminent Domain of the the Exercise a Limitation on Parties,” L. Rev. 799 by 50 Iowa Private give the a more substan- balancing would Court a Such by private brought reviewing condemnations role in tial statutory general pursuant to a power delegees of the balancing process would Moreover, a delegation. such they will have to be delegees put private on notice in terms of proposed condemnation justify their able to requirement. Mandate Constitutions Both the Federal State H. Protection Cases Where Due Process Substantial Delegat- Been Profit-Making Entities Have Private ed the Power Condemnation. of by rights secured protection of a will fall victim to and federal constitutions our state sovereignty of of medieval notions grossly view distorted private cor- to the discretion here defers if the Court have Constitutions the framers of our porations. Would property rights could be private intended that citizens’ any type for-profit without by private, businesses taken capricious arbitrary action? against protection have con- Revolution the American the leaders of Would in the case at advanced procedure as that a such doned repressions bar, having fought the authoritarian in- have sovereign? or Jefferson English Would Madison proper- protection of process the due tended inappli- be Fifth Amendment ty rights in the contained delegated corporation’s condemnation a cable to perhaps be whether question would power? A better unbridled exer- at all the tolerated would have framers profit-making private, sovereign a of a cise questions are obvious to these corporation? The answers constitu- acquaintance with passing have a all who pow- delegation to and exercise history. The tional by private, for-profit er eminent domain were entities simply part sovereignty a never notions of recognized context, were In the framers. this if a private corporation has no constitutional ex- constraints cept legislature its action be declared to be Rights use” Bill dead would Sovereignty sys- letter. must have its limitations in our government; bar, tem in the case exercise inherently type of in conflict with the constitu- tionally-protected right of enjoy pri- citizens to hold property. vate

Surely process guarantees due should afforded sought owners land whose to be taken under Any delegee attempting of eminent domain. power to exercise its of eminent domain should be re- quired compile addressing public evidence need being by condemnation, which is filled the merits of all taking, feasible alternatives to the and the reasons choosing particular adopted. for alternative de- legee required be should to submit data similar to that required Policy Act, the National Environmental fully possible impacts which should reveal (c). proposed See, § condemnation. pub- U.S.C. That capable abusing monopolistic lic utilities are pow- granted them myriad ers is evidenced statutes regulations proved necessary and that have to curtail private them. The corporations’ Court must not defer to potential discretion where perhaps for is abuse greatest taking person’s private a —the against his will. B

APPENDIX

ARGUMENT sought The use the land to be taken construction, operation maintenance power electric transmission line is a private property may acquired which eminent domain. Your company Amicus is informed that coal or com- panies spent many in millions preparing dollars open large Lynn Wayne coal mine near East in County, Virginia; expected that such coal mine is produce approximately two million tons of coal annu- ally employ ultimately approximately and to 800 work- mine; company proc- men at its that such is now in the employing workmen; company plans ess of that such open employ many such mine and to workmen within approximately months; operation four that such is in power dire and immediate need of electric which would provided by line now under construction company may operate and that such coal be unable to such mine completed. unless and until such line is Your Amicus is further informed that such coal mine expected ultimately payroll Wayne have a in Coun- ty $15,000,000 annually of more than and that such em- ployment payroll great will be of benefit to the economy county and to the citizens and residents thereof, particularly employed whose who would be says and about such mine. Your Amicus further payable by company taxes would be such coal Wayne County operation when it will be of vital importance system government to the school and the Wayne County. 54-l-2(b) §

W. Va. Code makes it clear property may damaged be taken or for construction maintenance of electric lines and such use is a use. question versus use raised in proceeding squarely this has been answered in favor of Respondent company in the recent case of Waynesburg Lemley, Southern R.R. Co. v. 154 W.Va. (1970), 178 S.E.2d 833 where this Court affirmed the company acquire necessary rights- of a railroad of-way by only major eminent domain to serve two coal companies operating Lemley in the area. The case also long authority only affirms a line of well reasoned country throughout recognizes but State versus is to be determined persons character and not the use number of who avail themselves thereof. The character of the use proposed power proceeding line involved in this unquestionably public only person even where one will directly avail present itself of the use of such line contrary holding by time. A this Court would have a devastating effect on the Wayne citizens and residents of County bring long to virtual standstill awaited development improvement area generated by to be specific company’s many one coal activities and others similarly plan situated who utilities to be able provide essential services. Virginia Inquiry Judicial Commission Allamong

Elden (No. 14313) February 13, Decided 1979.

Case Details

Case Name: Handley v. Cook

Court Name: West Virginia Supreme Court

Date Published: Feb 13, 1979

Citation: 252 S.E.2d 147

Docket Number: 14262

Court Abbreviation: W. Va.