/,
No. 1798
IN THE Supreme Court of Appeals of Virginia AT RICHMOND
THOMAS JACKSON RUDACILLE ...... Appellant
vs.
STATE COMMISSION ON CONSERVATION, ETC., AND DEVELOPMENT ...... Appellee
From the Circuit Court of Warren County
Rule of the Supreme Court of Appeals with Respect to How Briefs of Counsel Shall Be Printed "The Briefs shall be printed in type not less in size than small pica and shall be nine inches in length and six inches in width, so as to conform in dimensions to the printed records along with which they are to be bound, in accordance with Act of Assembly approved March 16, 1903; and the Clerks of this Court are directed not to receive or file a Brief not conforming in all respects to the aforementioned require ments." The foregoing is printed in small pica type for the information of Counsel. HAMPTON H. W A YT, Clerk.
"!' a E ~Ic Cu; nr: Co . . ixc. . Pez xTr:ns . 5-T~t""XTOX. Y • . - IN THE StlPBf.liAB OQDB! OF Alll'BALB OF 'VIBGlliU ··At B1olDon4 • .... Ste.~e c·cali1i.ea1en on O·OD1!Utr;Y,a1:1o:n &D4 ~yeiopmeat~ AJ)peU.e.o~~. .. • 0 '
Inaezt at end of laat PaJSBiap• \Uliez let A:eaipment of DUO% • OD· P888 'I* bafoxe G1_1iat 1on. of liul1ll8 Qa·a• L&Wl . · . · 4\G't of .Congreaa. -app:ZOve4 Mq 22., ltBf:._ aac1 &leo f_OUJ24 111 Aot·s o~ Alee~lllJ .ot. Vba$nia•. 1928. •.PP,•• ..22.8~1M.-' -•4 1.9~8 .. Supp1. to ~4e ot V1~sinia. aa S.eO.~t 1-86 ·1 14.); ~o.ta ·•.f QqDP.ess, Appzo.vet. Feb'l"uat:;v 16, ltaa. am·end.~q; .ab.ove· ..&a.t.· · . · . Ad4 ·at eJ1d' o~ 4iae:uaion Una.u B4 Aeatsmun.~ of ·Exzoz, pap 12l- . :. . ; !llblio Laws· of _ll.... o•• 4t2f.,_ Ohap.,. 4S • .£44 to list of oai.a_, P·• ·11. uni'e~ ·a Ass~~' of··Eszors Bult. v. .. Bell. 141 lf1..- ilP •. l.eO s .• E. 116$ 2 ~B!A·· _:6.lf, a.Di ·11. i•ll;•-'·• .!fl4. -~~~ . · · .· . .. . · · . ·· . · xove7 v •.El11o't~ -~., :u.,s.· :40t. 4:2 L~ ~4 •. 2·1s~ ··~· A44 a' bottom of'psle 20. ·uniez 34 AssisDment ·ot Exzoz: · C-.B. & P:• B. Oo• v •. Ohl,,.o, 166 u.s. 226 .. 41 L. Ed. 9~9. Ad4 ·at bOt tam of pase 24, UDcler 84 4esiSJjmant of •,zozs lil: ze Karl4~ (QQ.t. U·) .• 5~ Fed. «K)l, 20 ao·rpus ·JUts,. M9•t88t . _ . . . . "'·· L.ew18 .. on. Emll;lerit llOm_ain f 3d Ed) s eo~ 6'13. Ali at ead of •t:b. line· on pase · 2f a· oOJ1SU. f.). alld.t "but makes ~he pe1itlo~ez a JU4ge in his om. oas•"·· Faaes •· ahtiatiaa,. va .•- , -J.Ia .s•:m. ·aes •. ··
A4l at bot.tom of· p·a~e ao, ith AseisllJJJent oi· ,E~%oz, "Q•etion of or.mp•n,atJ. on la a .11141ola1 qu.est:lon•.. •·4'• u.s, v. lfew Bive-r OoUtet·iea,· 261 V•S• 1&1, 48· S.... : at. vu 1 m.· .• w. B .. Oo •. y., Nott1ng·bam v. Wxen• 139 va._. '148• :.-: · -~• s.~-. 40·1. · · ·
A44-tat ;bottan o~ p~e 40, UDdez 6th Asaigmlent af EZioz: o._I·.'l'· oozp. v~ oomnn., -153 va. if, 149 s-.E. 528; Fumez v .• Ohzia·tian . · Va. , 162 S•E• 382-. - ,C: • In the ·Circuit Cotu1 of Warren County alt Front R~yal, Virginia TH& STAn COMIDUJOIII' Ofll eotQUY'Al'IOfll .tJio DCVI-I.UPIIIOI'L 0# THK HA1'1. 0# \'DG.UitA. r....l.... HCma OF CONDEMNATION - ' ; N•ZZl AT LAW ¥taG.DIIA A1'WOOO AIIID OTHIU. AJCD TNtan ~ ( .....) AC&I.Io 1110~ oa uaa, ... UJIU .,.r ... ai.&No<:OUNn. YIICiau., ..,_,_.... To Whom lti May Concern I Ptn'suant to an order of the Court in tbi8 cuso, made nnd entered ott October 26, 1929, this notlco u hereby given: . ln. tbis suit, tho "P~tloner" seeks to acquire, by c:ontlomnlition~ tor its uses, and for use as a public park, and for public park purposes, a fco simple Utlo to a tra.ct of about thlrtf. .thouSIUld (:lO,OOOI acres of iand, ~ritnnLed itt Warren County, va., and desenbed as follows: . . BEXliNNING at a point 4n · thb division line between the Countie;!l ol War~un and R•ppahllnnoek, the same beln~t a center crunmon In tbu lt'nds of N. S. ·Waller, deceASed, Lllcy Barbee and W. D. Sealoek, und marked by a chi&eled cross on a large boulder, tbe same being distant 3.8 fuet frcm n null in a blnzed tree in a fence eomor and likewise dilitant 6. '1 feet Lo u nail in a blazed locu!lt tree In fenee line; . 'l'HENCE N. s• E. 664 feet to Position No. 2, which I& a nail in tl'ian~~:ular blnze in 18 ineh ~r~~m treo ot oprobablo property corner; 'l'HENCE N. s• 10' E. 2,224 foot. to Pes, Nn. ll, which Ia a nail in"'S-inch !!lump 8 indies b.igb at approximale comer uf anlde In property line bet\\'een J. Brn\Yn on north and welt and N. S. Waller Eitato on south; T.HENCE N. ts• 40' W. li14 feet to Po11. No. 4, which is n mril in n triom.:ular blaze in 15-lnch ilickory at edge of N. S. Wollcr·Estato at point of Drown 1ll'Puerty given to Park lll'eiL .Position Ia in feneo line .and 0 teet north-wast of klrgc poplar stamp; · 'l'HElNCE N.,o2• So' W. 3'14 feet to Pns. No. 6, which. is o nail.ln LrilliiJtulur blaze Jill !IOilth side of 3-foot onk st comer in prpoerly line ~otween Brown'11 property Oft cast and N: S. Wollt•r Estnle ou WC'8L ami Bu!Kh; THENCE" S. &.a• !16' W. 2,293 feet to P011. No. 6, \Vhich Ia a null in H-inch &tump 1 foot high on proposed boundary line ot top of hill In N. S. Waller Eltute. ·Position Is 20 feet northwest of rq~.
1 ~HENCE N. 20" 25' w. 620 foot to ·POll. No1 ll7, which is a locust stoke In fence lme ut ·bond in property lin& between W. C. Carter nad Rudncllle. Reforcmcea !1.1. feet oust from nail in blnzcd ·wnliuat and 25 .feet south from blazo eut· lli-mch oak; . : 1r: THENCE N. 5" or;• W. 553 foot to ·P,os. No. 38, which Ia a bklzed 1"5-lnm bleko1oy In fence comer (U.S. 3S pnlntod on tree) at bend in property line between w. c. Cat-ter and Rudacitle; 1'11ENOE N. ts• ]5' E. 1J8 feet to Pos. No. 3D, Whleh l• •·loeuat Stake in Hne wltb fonces nt nnglo nl Park line, l)t'oblibly bend in property line. Relereneet~, 13 foi't SOU"th from null Jn 15-lneb oak, 8.4 feet west from lO•Inch GGk• TIIENCE S. 83" 55' E. 188 feet tO Pos. No. 401 which .Ia a 6-lnc:h doubie blazed oak, ~b "U. S: 40" painted on it at. GJ~~rla in •Park bo,unda~ ~t. ~011co, and on llGSt. saclu of trail. Uefercnea, 6.'1 feot northwett from nall•ln 4-lncb oak and 11Jo6 foot aouthCftllt from· mril -in 5-il:tO'h-wlld· c~:- -~--- ... 'IIHENCi N. ii' 35' E. i,657leeHo Pot. No. 4f,1r&tcrl t. a~ stan m-e in .Park boundary at. bend in tnril In soathwe&t ·corner of ft« Refn111cea, 20 feC!'t northwest from 'llall in -trlangle cut In So-lneh oak. 10 ffctt. eut from nail in trinnll'lc cut lrr B..meh hicllory; · . · '" MEHCE-N. u• 35' E. 1,008 feet to Po& No. 42, wlileh is a locust stake at comer of fence Qt edge of eleared fleld in ~artar Pl'OPCII'IIY. Pro&.bly 'PNPerty comer of Henry F~x. W. C. Cartsr and Henry Mma. 11dir~nteea, 13 foot wMt from mrllln biaSed 6-ineh wild ehorey and 71. ftot northOait from 11011 In blued 1 . 2~ln tRi& auwpy-, - ·- . •n --~ -·-. ---- TBENOE N. as• 20' E. 543 feet to Pos. No. 43, ~ is a locust stab on cme& sido of tl'ltte In fence betwoen w. C. Ollrter and B"CIU')' !'ox. ~nees, 119.5 feet 10utb trom nail Jn triangutnr blue on do\iblo oak and Sl.G feet east" fr.om nail In blue on 12-inch hickory; · · · THENCE N. '12" 35' E. 1,168 feet to Pos. No~ 44 ~ Ia 11 locus' ·.take .t Priiilert;' eomor of w. C. Onrter, Helll'y Fox nnd Hes. Sealoak... .Referenc:a1 26 feet south from ooilln triangle cut In 30-lneh cmk and 1U feet east from na1l fn trinn~rkt cut In 5-inm oak; · · · · · THENCE N. 14" 26' E. 2,-tDO feet to Pos. No. 45, vblch Ia loc:ust stake soath of sninll roek jlile on .ridge,- prpoet'ty comer of Henry Fox ancl Buddy Fox and probably Seaiock and ·A. G. Weaver. References, 12 feet II'OrL'h f.rom nail in trnmgle ent in 20-inch oak and 1611 feet west from nail in .bla~i~ ~n.s-tneb oak; THENCE N. 20" 30' E. 1,217 feet to Pos. No. 46, wtlic:h is probable·PIV])el'ty · eomur between A: G. Weu.ver, Buddy Fox and C. P. Montgomery, south Of fence post In eomer. Refe!oences, 10 feet n~l'llh trom nail in blaze on S.indt poplar and 10 feet east from nail in 6-ineb poplar; . THENOE N. 25• 25' E. 1,302 feet to .Pos.. No. 47, which~~~ conc:rete post No. 40 of U. S. Army .Remount Stctlon at cornet· of ·Pr®erV of Buddy Fox and ~;~r;rw.:47" 30' E. 312 feat to .Pes. No. 4S, which Is eoncrete post "No. 41 of U.S. Army Renrount Station on property llno of C. P. Mcnrtgomery; THENOE S. '19" 40' E. _1,664 feet to Poa. No. 4D, wblcll is coneretc post No. 42 of U• .S. Army Remount Station on C. P. Montgomery's properly line 10 feet south of feDc:e; · THENCE N. sa• 46' E. 1,103 feet to ·Pos. No, 491, wtlicb Is concrete post No. 48 of U. S. Army Remount ·Stntlon in comer of fence- on property line ot C. P. Mo~omery; . · ~~~ A~7:-n~o~nt~~~ ~t ~~""J 0;~~~r~~J:~go~~~~ Her.c:ellm Mnd
properLy Uno between E. Rudaelllo and Tilden Updike. Referenc1111, 20 teet nortbi!'ast l)f blaze on lO·indl w:llnut and 1!3 feet northwest of blaze on 10-inch locust· THENCEN. oo· 35'\Y. 290 fuet to Pos. No. t:J9, which is a locust stake fence o~.'Omer at propel'ty comer of Tilden Updike nnd E. E. Boyd•• Reference, 1:1 feet 110uth of nail in bklze on 14·inc:h pino and below blnze on 24·Jnch pine; THENCE N. 77" 00' w. 470 lect to Poa. No. 140 which is a locust stake ot eol'ller of fence nt property corner of Tilden Updike and E. E. Boyd. References, 18 feet southwest crf blnze on IJ'Illple and 10 feet west of blnze on chestnut ~Stump !fJF1NCCk N. 65" 20• \V. 1,078 feet to Pos. ):lo. 141, which is ~ locust 11Wce ~U:J!e!:lli~ U~t::c:.Jo:.cs,B~=~ O~~~~!!!n!!s,3~f==J:~!~~~ bhlz.J on 10-inch uh and 5~ feet. no1-th of blaze on 4-inch ash; THElNCE N. 111" 00' £. 947 feet. to Pot. No. 142, \fbic:h is t.1le ceuter atone of pile of roeka at property comer of 'rilden Updike, E. Compton and .M. Tbamp:M~n. References, 9 feet west of hlazo o~ 26-lnch white pino and 18 feet south of blaze~ blrdl treo; T.HENCE N. 15" 05' E. 27 feet to Pos. No. 143, which Is a Ioeust stake on eoutb side of road nnd M. Thompson propetty. Stake is 'below tri.anglo bw.od on north tilde of 12·inch cmk; THENCE N. 80" 4u' W. 2,281i I~n tu P~ Nu. 1-'.J, whi.:h ~5 & loc11:1L staku at soat.11 side nf :road At fcneo corner at. .property line of W. B. Meuck and M. Thompson. Rofen:nc:es, !ll feet northenlf~ nof blaze on large s~JIT~<~ek true and OA teet north of blaze on wild -c:hurry; , 'f.HENCE S. 1" 16' W. 6!14 Ceet Lo .Pos. No. 146, whkh is slight a~le in property line botween 1\f. Thom)mon unrl w. D. J\olaur.k, whc.re stone (llld wire Iunc:u · cbungell t-o wire fence; . THENCE S. 8" 40' .F.:. 1,056 fcet to Poa.··No. 146, which ia a Ioeust stake in fence R~t/!~~n~~2ge;~~t ~:;:e!f 0~:~~ J~~~~l0cl; h%;k!y ~:~7ife! n~r~h;;rn::~ on 5-inch locu/11.; . · THENCE S. 4" 4Cl' W. 1,111:1 ffll!t. to rns. No. 147, whieh is a loeust atuke in fenec line betwce11 prpoert)' of J. E. Thompson and E. Fristoe. References, 24 f-eet south of nnll In bloazo un 311-inr.h onk and S feet :west of bmze on 32 inch' black oak; TllENCE S. 44" 00' W. ll08 f..-et to p.,"- No. 148, which is a locust st4ku at angle in Park line un E. Fa·istuu propcl11' un siole of ridge. References,. 27 feet soutbeG~~L of trluugle blazed on 24-inch pine and 20 feet north of blaze Ol'l 4-incb 0 1 ;ff.EN.C'ka~- ~.f; ':.pl,~;l:o ct';:'.tN~ ~~':[',~hieb isa locust stake at property corner of E. Fristoe 11nd 0. K. Brown's &!tate. Referenee11, 15~ feet east of 11 11 4 !f':FlicE~'t'a~~c:~olf"~. at~1a~ ~~ ~~ ~~:'~.~'1 ~~~~~e~ i!< i~~~hst~:lee below triangle blazed on north t~lcfe of 30-inch white oak, nt property corner of E. Fristoo, a small trnct of 0. K. BMwn Estate, Robert l.ac!.-burt and Fristoe and o. K. Brown; • · THENCE N. 65" liG' W. 1,267 feet to Pos. No. 151, which is a locust stake &Outh of pile of rocb in ~mull clrnin at nn~ in .Park line- in 0, K. Brown Estate. References, a feel WC!iL uf trinn~tlu on 8-int'h at
property corner of Ovo1111l1 E#tat.c; tho same bolnS' 11 point In tho dlvfllion Uno between the eoUiltics of Wlm'CD and Page; THENCE running with and following the tlivlsioh lines betwoen tbo ~ounties of Worron and Page to a point ~onl'JIIOn to Ute llnet1 of tbo aounUcs of Warren and Page azid Rappahannock; thence running with an followin~r the boundury line of 1111id County of Won-en to tho point of beginning. _ A complete deseription of Bald hmd, by metes, bounds alld ·limits, im:luding R m11p sottlng fort11 tho apptoximate loclltion of dio Jlno herein before dcacribod, by courses 1U1d distaMes, and Indicating the supposoct ownel'llhip of the londs on ooch aide of SAid line, .is on ftlo in my o.lfico us 'A part of the ~ndem110tlon in this t:w~e, and the aame Ia hereby and herein referroato for fullll1' or more n~utate description. And, it appoaring that the followi~IF opersona and classes of persons OWD or claim, w possibly own or have or ela1m somo rl~tht, title, o!ltnte or interest in or to tbofmxl (or !he .tate or inteJ'ost in the ·land) or some part or parte af the. land souzht to obo condemned, or In or to tho .proceeds tU'isin~t upoli 11 condenl- naUon tiloreof; viz. · NAMES OF PERSONS OR Roaldoat of the PLACE OF RESIDENCE CLASS OF PERSONS Stato of v •. Aleshire, Nom W., Resideot, . Bentomille, Va. AWood, Vh'gin!a, RL'6Ident, ·Happy oCreok, V& &rbtte, !lias Lue.r, r.esldcm, Front Royal, Vc. Barnhart. ·Lura, Non Resident, cllm) Gordo, m. . Bailey, ~ Realdent, Browntown, Va. Barbee, Hns. Augie R., Resident, Browntown, Ve. D!!&tt.J, PG'I11. ·Resident, Arco, V.a. - Beatty, H. W'a beiro & deviaeell, Unknown, UnknDwn Dentty, Jaa. \V,, • Besldent, Areo, Va. Bardon, D. F. & Co., Resident, Front~, Va. Bordeb, 0. w.. Resident, Front" RoYal, Va. Drown, Jandon, Resident, Front Royal, Va., •R. F. D. Brown, T. B., Resident, Bentonville, Va. BamrerJy, Albert R's hetrs .t de:. vlsees, UDimown, Unlrnown BanerlJ, C. N., Resident, BI'OW11town,Vo. Baggerly, s. J., Rnldent. Browntown, Va. Ootnpton, Tlmd., Resident, Browntown, Ve. Chapin, Elizabeth R., Resident, Norfolk, Va. Cullora, Dr. R. D's t1ei.TS & devisees, Unknown, Unknown .Clatterbuck,_ B. U., Resident,' Browntown, Va. ResldeDt. DentonviUe, Va. ~~k~~.Fj., Resident, Brovmtown., Va. Corbin., C. A., Real dent, Bentonville, Va. Oompt6n, Zed T'a itelrs & devisees, Unknown, Unknown Carter, w. C., Resident, . Front·Ro:ll81, Va. Frbtoe, Earl, Rcsldetlt, BcntonviHa. Va. Fox, Anthony, Residmt, -Gkln Echo, Va. Fox, Geora;ianDB, Reddent, Gkln Eeho, Va. Fox, Winfield, Rcsidcot, .Aaeo, V11. Fox, Buddy, .Resldcot, l~ront Roym, Va. Resident, ~~~~~. -Resident,- --~~:!-.-.-___ Fox, Ellsll, Resldeot. Glen Echo, Vo. Fristoe, & Lockhart, Resident, Beatonvillo, Va. Grovo, L, Realdem, Lime-ton, Va. Hillidge, B. J,, Resident, · Front Royal, Ve. Hartloy,l!l, M., RoaidMt, Dentonvllkl, Vo, ·- • f HeiU'Y. Richard, Resident, DrCJowniiOwn, Va. Hickerson, ChA& D., Resldeut, A.rco, .vo. i H"~ekonon, Ella V., Resident, Aloeo, V.a. BiekersOD, J. E. & D. W., Resident, .Areo, V11. Hickerson, Wm., Rnident, Arco, Vel. HiekeDOn, Daniel's bolrs & de- visees, Unknown, U~lmcnm Jones, Lewis .Q., Resident, Brownt0Wl1, Va. Joneo, Mllt'Y (Booten), Reeident, Drownto\Vn, Va. Johnaon, S. A., Resident. Browntown, Va. Kenner, Joa. W's helra-& devileu, Unknown, Unlawnm Mnm~ol, Hillary, Resident, Browntown, Va. lllanuel, J. MiltOn, Resident, Browntown, Va. Mulowe, J. K., Resident, Browntown, Va. Merchant, Edgw,· Ruldent, F'roJit· RoyAl, Va. Mwre, Flora B., Resident, Area, Va. Morrison, James 1, Reai®nt, Deatonvillo, V.a. 4~-.~Jo Matthews, W. J., Rll$ldent, Beatonville, Va. ·Morrison, Mrs. Mary, Reaktcnt, · Bentonville, V.a. Mauck, W. B., Ra.ttlem, Bentonvllla, V.a. Munuel, Amelia. Resident, Ulan Ecbo, Vo. Morrison, B. G., Resident, Dontonvillo, Va. Manuel, Mirmio, ltcsiclent, Frout lto;ral, V:J. Marlowe, LeVI, Non Resident, Hngbl'l!town, Md. M::arlowo, W. A., ltoaident. Browntown, Vii. Millar,S.•R., !o~ldent., Front Royal, V11. rr .. 1.... -·•- Miller, John J's heirs & devisees, unxno\m, v.,,.,,., ... u Mills, Henry's hoh·u & devl!leea, Unknown,, Unknown Moore, L. D., Resident, Arco, Va. Mntthewa, Mrs. Annie R., Resident, Browntown, Vn. OventH, H'lllTict, Unknown, Unknown Overall, William C., Unknown, Un!mown Pnrtlowe, M. A., Resident, Browntown, Vu. Portlowe, &1. L., Resident, Brctwntvwn, Ve. Pomeroy, J. B.'s heirs & devisees, Unknown, Unknown ·Pomeroy, Wm.'s beira & devisees, Unkno\1/n, Unknown Pomeroy, Letlillt, . lltlidtRt J'm»~ .B9]Sil, VB, Pomeroy, ·Martha J., Bcaldant, Ji.reo, VA. Pomeroy, ·Mo.ry B., Rosfdent, P'rout Rt>yal, Va. RudadUe, T. & J. w. F., Non Rosldonta, .HeUtown,.W. V«. Rudactue, Isaac, Rotddent. Jho.owDtown, Vn. Rwlncille, T.'a belra &: devfnn, UnlcnowD, UnlmOwn Radacille, Edith P., Beeklent, Fnrot Royal, Va. Re~nount, U. s.. Resident, Fnrot Bo)Gl, Va. SmlllkYooct, .C. W., Realdent, St.ep!icila City, Va. Sigler, oC. C., Resident, Lunly, ·Va. · Smelser, Ed., Realdont, Browntown, V«. Snritil, Oarendon, Non Beai
,· • 0 l IN THE Supreme Court of Appeals of Virginia AT RICHMOND
THOMAS JACKSON RUDACILLE ...... Appellant
vs.
STATE COMMISSION ON CONSERVATION, ETC., AND DEVELOPMENT ...... ·...... Appellee
PETITION FOR APPEAL
To the Honorable Judges of the S~tpreme Court of Appeals of Virginia: Your petitioner, Thomas Jackson Rudacille represents that on the 30th day of April, 1929, a suit in Chancery was instituted in the Cir cuit Court of Warren County, Virginia, by your petitioner against Virginia State Commission on Conservation and development; where upon such proceedings were had that a final decree in said cause was rendered against your petitioner in the said court on the first day of October, 1929. A transcript of the r~cord of which suit and of the final decree therein rendered is herewith exhibited, from which it appears that the Supreme Court of Appeals has jurisdiction.
STATEMENT OF FACTS
The Congress of the United States, by an Act approved lVIay 22nd, 1926, provided for the establishment ofa National Park within the State of Virginia to be known as the Shenandoah National Park, if and when title to the land described in said Act, containing 521,000 acres, be vested in the United States of An1erica. The General Assembly of Virginia, by an Act approved March 2 Thos. J. Rudacille vs. State Com. on Conservation, etc.
17, 1926 (Chapter 169 of Acts of Assembly 1926) and now found in 1926 Su.Pplement to the Virginia Code of 1924 as Section (34) to (51) inclusive, created as an agency of the Commonwealth of Vir ginia the State Commission on Conservation and Development, to consist of seven members to be appointed by the Governor and con firmed by the State Senate. And by Section 1 of said Act, it is pro vided: "The Commissioners appointed and their successors in office shall constitute a body corporate under the style of the 'State Com mission on conservation and development,' and may, in such corporate capacity, sue and be sued, contract and be contracted with, purchase, lease, or otherwise acquire, enter, and convey property, real and per sonal." And. by Act approved March 22nd, 1928, (Chapter 371 of Acts of Assembly 1928) and now found in 1928 Suppletnent to the Vir ginia Code of 1924 as Section 585 (52) to (58) inclusive, the short title of which Act is "National Park Act," the General Assembly of Virginia declared that a tract of land therein described, containing 327,000 acres, and different from the. lands described in said Act of Congress "are hereby specifically designated and set apart as lands suitable for use as a public park and for park purposes and the State Commission on conservation and development is hereby expressly au thorized and empowered to acquire title to said lands or any part thereof for such use." 0 0 0 And the provisions of said Act purport to vest said Commission with the power of eminent domain to con demn lands in said area for use as a public park and for park purposes. And by an Act approved March 23rd, 1928, (Chapter 410 of Acts of Assembly 1928) and now found in 1928 Supplement to the Virginia Code of 1924 as Section 4388 ( 1) to ( 43) inclusive, the. short title of which Act is "Public Park Condemnation Act," the Gen eral Assembly of Virginia attempted and purported to provide a form and mode of procedure for said Commission to acquire title to the lands in said proposed park area, together with all improvements thereon, and convey the same to the United States of America; and it is specifically provided that said Commission shall acquire title to said lands by the exercise of the right of eminent domain in condem nation proceedings or by gift, devise, purchase or any other means. Said Act of Congress has given no power to the Department of Interior or to any other branch of the government to purchase any Thos. J. Rudacille vs. State Com. on Conservation, etc. 3
land for the Shenandoah National Park and specifically provides that the United States shall not purchase said lands but that such lands shall be secured by the United States only by public or private dona tion; and no provision is made by said Act of Congress that the park will ever be established or developed even if the land is acquired, but only authorizes the Secretary of the Interior, in his discretion to ac cept the land on behalf of the United States and has reference only to the particular tract of land described in the Act of Congress and '"hich contains approximately 521,000 acres. And no appropriation has been made by Congress for the development and maintenance of the park. l'he Virginia National Park Act purports to designate and set apart as suitable for a public park and for public park purposes a certain tract of land containing approximately 327,000 acres of land and which presumably is a portion of the 521,000 acres of land de scribed in said Act of Congress but which lacks approximately 194,000 acres of being the same land described by the Act of Congress. And not only that but it is a generally known and an undisputed fact that the State Commission on Conservation and Development has had nmn erous surveys made, and the land now conte1nplated to be condemned by said Commission for this particular park is an entirely different tract of land from that described in the Virginia Act and is of much smaller acreage and in fact not much greater if any greater than · one-half of the tract of land described in the Act of Congress and there is no assurance whatever and no reason to assume or even pre dict that if Virginia acquires title to the smaller tract, or the present contemplated Shenandoah National Park area and thereafter conveys the same to the United States, that the United States government will ever establish such park, and the Act of Congress above referred to does not provide for the establishment of said park upon any other terms or conditions than that the fee simple title to all of the 521,000 acres of land be vested in the United States. The General Assembly of the State of Virginia has not enacted any law nor in any way attempted to provide for the establishment of the Shenandoah National Park, b~tt n1erely declares that certain described lands are suitable for public park purposes and merely pur ports to provide a mode of procedure whereby the sovereign State of Virginia shall, by the exercise of the power of eminent domain 4 Thos. J. Rudacille vs. State Com. on Conservation, etc. acquire title .to certain lands (much smaller acreage and a different tract from that described in said Act of Congress) and without in any way providing that said land is to be used for any public purpose or for any public use to be exercised or controlled by the sovereign State of Virginia, but that the said State Commission on Conserva tion and Development shall acquire title to said land and convey the same to the United States of America and without any restriction or requirement that a National Park must necessarily be established and no provisions of forfeiture or reversion of the title of the land to. its present owners or to the State of Virginia in the event such a park is not in fact established. Neither the National Park Act nor the Public Park Condemnation Act makes any provision for the payment for said lands, but to the contrary Sec. 5 of said National Park Act, specifically provides that :
"In acquiring title to any of the said property by condemnation proceedings or otherwise, the Commission shall have no authority to pledge the credit of the state or to incur any indebtedness on behalf of itself or of the state."
And no adequate provision has been made, either by appropria tion or otherwise, and no adequate fund has been raised sufficient to pay just compensation for the land situate in the contemplated Nat ional Park area or anything like an adequate amount to pay just and reasonable compensation for this land and there is no fund available which is adequate to pay for this land if condemnation proceedings are brought and all the land in· the smaller or present contemplated park area should be condemned and just compensation paid therefor and no fund is available or in sight which would anything like be adequate or sufficient to pay just compensation for all of the land described in the above referred to Act of Congress. Thus: NO FUND WHATSOEVER HAS BEEN PROVIDED OR IS AVAILABLE FOR PAYMENT FOR THE LANDS SOUGHT TO BE CONDEMNED AND FROM WHICH THE LAND OWNERS CAN COERCE OR COMPEL PAYMENT FOR THEIR LANDS, AFTER THE SAME HAVE BEEN CON DEMNED, AS THE ACT ITSELF PROHIBITS THE COM- Thos. I. Rudacille vs. State Com. on Conservation, etc. 5
MISSION FROl\1 PLEDGING THE CREDIT OF THE STATE OR INCURRING ANY INDEBTEDNESS ON BEHALF OF THE COMMISSION ·OR THE STATE. Plaintiff filed his bill for injunction and, after alleging his own ership of certain land located in the proposed park area, and the pas sage, purpose, and purport of said Acts, alleges as grounds for in junction the specific grounds set out in paragraphs 5, 6, 7, and 8 of his bill. (See Clerk's Transcript of Record filed herewith and made a part of this Petition for Appeal.) Defendant's answer admits all of the allegations contained in the first seven paragraphs of plaintiff's bill but denies the unconstitution ality of the Acts as alleged in paragraph 8 of the bill; thus admitting that plaintiff is entitled to the relief asked for if any of the allegations of paragraph 8 of plaintiff's bill are sustained. ·
ASSIGNMENT OF ERRORS
Your petitioner is ~d vised and represents to the court that the said decree is erroneous, and that petitioner is aggrieved thereby in the following particulars:
ASSIGN!viENT OF ERROR NO. 1
Your petitioner assigns as error the action of the trial court in holding that the establishment of the proposed Shenandoah .National Park is a necessary public use and that the Act of the General Assem bly affirmed March 23, 1928 (Chapter 410 of Acts of Assembly, 1929, and now found in 1928 Supplement to Virginia Code of 1924 as Section 4388, ( 1) to ( 43) inclusive, the short title of which Act is: "Public Park Condemnation Act," wherein ·it purports to vest in the State Commissioners on Conservation and Development the power of eminent domain for the purpose of acquiring lands in the area therein mentioned for use as a public park or for public park purposes and authorizes said commission to convey said lands within said area, if and when acquired, to the United States of America, is not repugnant to and in violation of Sections 6, 11, and 58 of the Constitution of Virginia and the Fourteenth A~endment to the Constitution of the United States and the fundamental prindples of a republican form of government. 6 Thos. J. Rudacille vs. State Com. on Conservation, etc.
Neither the National Park Act nor the Public Park Condemna tion Act declares any public necessity for the establishment of the Shenandoah National Park, nor that it is in any proper sense a public use or a use in which the public will have an interest, nor was any showing made in the trial Court upon which this Court can make a finding that the establishment of said park is a necessary public use as will authorize the taking of Plaintiff's land for use as a public park or for public park purposes. And before Plaintiff's land can be taken by the exercise of the right of eminent domain, it must be shown that the use for which said property is sought to be acquired is a necessary public use.
14th Amendment to Constitution of U. S ; Sees. 5,. 8, 11, and 58 of Constitution of Virginia, Tail's Ex. ·v. Central Lunatic Asylum, 84 Va. 271, 4 SE 697; Fallsburg 'lJ. Alexander, 101 Va. 98, 43 S. E. 194; Duce et al., v. Sherman, 107 ya. 424, 59 SE 388; llfiller v. Town of Pulaski, 109 Va. 137,63 SE 880; Jeter ·v. Vinton-Roanoke JtVater Co., 114 Va. 769, 76 SE 921; Boyd v. C. L. Ritter Lumber Co., 119 Va. 348, 89 SE 273; City of Richmond v. Carneal et al., 129 Va. 388, 106 SE 403; Nichols et al v. Cent. Va. Pr. Co., 143 Va. 405, 130 SE 764; 1l1adisonville T1·ac. Co. v. St. Bernard Mining Co., 196 U. S. 239, 25 S Ct. 251; Rindge C. v. Los Angeles Co., 262 US 700, 43 S Ct 689; Clark v. }lash, 198 US 361, 25 S Ct 676; lvft. Vernon Woodberry Duck Co. v. Alabama· Inter state Pr. Co., 240 US 30, 36 S Ct 234; Shoemaller v. U. S., 147 US 282, 13 S Ct 361; U. S. v. Gettysburg Elec. R. Co., 160 US 668, 16 S Ct 427. Thos. I. Rudacille ~'S. State Com. on Conservation, etc. 7
The case of Fallsburg & Co. v. Ale.. 'rander, 101 Va. 98, 43 S. E. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855, as quoted from and fol lowed in Nichols v. Central Va. Power Co., 143 Va. 405, 130 S. E. 764, held that:
"A use, to be public, 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."
Neither the National Park Act nor the Publk Park Condemna tion Act provide for the actual establishment of a park or for control of it, if and when the land is acquired. These Acts merely declare the land in this area is "suitable for park purposes," and create an agency of the State of Virginia to acquire title to the land without any provision for the establishment of a park by the State of Virginia, and provides that said Commission shall then convey title to the United States, without any requirement that the park ever be estab lished and without any power to carry out or compel the United States Government to carry out any announced or proposed plan to establish any such park and without requir"ing that the Secretary of the In terior exercise the discretion given him under the aforesaid Act of Congress and establish a National Park ; and such a taking is con trary to fundamental principles of a republican form of government.
6 Ruling Case Law, Titl. Const. Law, Sec. 434-471; 4, 5, and 6 R. ·C. L. Supp., Tit. Const. Law.
ASSIGNMENT OF ERROR .NO. 2
Your petitioner assigns as error the action of the trial court in not holding that the General Assembly of the State of Virginia is without power to authorize the State Commission on Conservation and Development as an agency of the State of Virginia to exercise the power of eminent domain and condemn land for a public use not to be exercised or controlled by the State of Virginia but for the purpose of conveying the land to the United States of America for an alleged public use to be exercised by the United States; and the court erred ---~------~-~
8 Thos. J. Rudacille vs. State Com. on Conservation, etc.
in holding that the sovereign State of Virginia has a right to exer cise the right of eminent domain for an alleged public use to be exer cised by another sovereign state, the United States of America. It is a thoroughly established proposition of law that the power of eminent domain can be exercised by a state only for its own pur pose and for a public use to be exercised and controlled by the State itself, and that the a state does not have power to exercise the right of eminent domain and condemn land for the use of another state or sovereign power, and it has been so held in the following cases :
Grover Irrigation & Land Co. vs. Lovella Ditch Co., etc., 21 Wyo. 204, 131 Pac. 43 Ann. Cas., 1915 D 1207 and note; Columbus Watenoorks Co. v. Long, 121 Ala. 245, 25 So. 702; Washington Water Power Co. v. Waters, 19 Idaho, 595, 115 P. 682; Kohl v. U. S., 91 U. S. 367, 23 L. Ed. 449; People v. Humphrey, 23 Mich., 4(1, 9 Am. Rep. 94; Rocllaway & Pac. Corp. vs. Stotesbury, 255-Fed. 345, 352; See also: Nichols on Power of Eminent Domain, Sees. 22 and 24.
It is true that a state n1ay authorize pr~:>eeedings to be brought in a state court on behalf of and by the United States to acquire land for the public use, and this on the theory that the state may delegate the power to the United States the same as it delegates to other agencies or corporations. But the proceedings themselves must be brought by the United ~tates and not by some state agency for the use of the United States. In other words, the public use must be exercised by the same sovereign power that exercises the power of eminent domain.
Gilmer v. Lime Point, 18 Cal., 229; Burt v. Ins. Co., 106 Mass. 356; Kohl v. U. S., 91 U. S. 367, 236 L. Ed. 449; Chappell v. U. S., 160 U. S. 499, 16 S. Ct. 297. Thos. J. Rudacille vs. State Com. on Conservation, etc. 9
A use, to be public, must be one in which the public has an inter est and the terms and manner of its enjoyment 1nust be within the control of the State.
Fallsbury & Co. 'i-'. Alexander, 101 Va. 98, 43 S. E. 194; Nichols v. Cent. Va. Po'wer Co., 143 Va. 405, 130 S. S. 764.
The case of Gilmer v. Line Point, 18 Cal. .229, was a case under statute of California which provided for relinqu.ishment to the United States in certain cases of title to lands for sites for light houses, forts, etc., and authorizing proceedings at the instance of the United States, in Courts of the State. Proceedings were begun by Captain of En gineers in the Army of the United States and at the instance of the United States. The case of Burt ·v. Ins. Co., 106 Mass. 356, was a case where the State of Massachusetts passed a statute giving its consent to United States to conden1n additional land adjacent to Boston post office as a site for new post office building and sub-treasury of the United States and the proceedings were instituted by a.n agency of the United States. Both the California and Massachusetts cases are cases where the state statutes merely conferred jurisdiction to their respective state courts for the United States to institute condemnation proceedings which could be instituted· in the Federal Courts without any consent of the states, and did not confet any new right of eminent domain on the United States, nor did either state statute give the right of eminent domain to. any state agency to acquire title to any land to be conveyed to the United States. The case of People vs. Humphrey, 23 Mich. 471, 9 Am. Rep. 94, is a case on all fours with the case at bar and in that case the Supreme Court of the State of Michigan held that the State of Michigan had no authority to condemn private lands within its boundary for the purpose of turning the sarne over to the United States for the erection and maintenance of light houses thereon, the court holding that the United States in the exercise of its sovereignty and as a part of its provision for regulation, control, and protection of commerce could by Acts of Congress provide for the exercise by it of its own sovereign power and condemn private property for public use. 10 Tltos. !. Rudacille vs. State Com. on Conservation, etc.
The Supreme Court of the United States in the case of J(ohl. v. U. S., 91 U. S. 367, 23 L. Ed. 449, cited in the cases of Gilmer v. Lime Pt., 18 Cal. 229, where lands conden1ned by a proceeding brought by an agency of the United States in a state court and under a state law for a United States fortification; Burt v. Ins. Co., 106 Mass. 356, where land was taken by the United States under a state law as a site for a post office and sub-treasury building; and the case of Trombley v. I-Jumphrey, 23 Mich. 71, holding that the state could not exercise the power of eminent domain to condemn land for use of United States to construct and maintain a light house, and the Court held that the latter doctrine was founded on better reason, and the Supreme Court said:
"The proper view of the right of eminent domain seems to be, that it is a right belonging to a sovereignty to take private property for its O\v'n public uses, and not for those of another. Beyond that, there exists no necessity, which alone is the foundation of the right."
The Michigan case of People v. Humphrey, and the case of J(ohl Z'. U. S., quoted from above, are the only cases that counsel for ap pellant have been able to find where the exact question presented in this cause has been decided by any court of last resort, either state or Federal, namely, whether a sovereign state has by virtue of the power of eminent domain the right to acquire title to private property in its name or in the name of an agency of the state, and convey the same to the United States for an alleged public use to be exercised by the United States; and both these cases held that the power of eminent domain can be e~ercised by one sovereignty only for its own purpose and not for the use of another sovereignty, even by the United States. Lewis on Eminent Domain (Sec. 309), says:
"Property taken for the use of the general governn1ent is taken for a public purpose, for which the state n1ay exercise its power of eminent domain. Thus it has been held that the United States may, through the machinery of the States, take private property for a post office, for a fort, for naval purp0ses, for works to supply the National capitol Thos. J. Rudacille vs. State Com. on C onservationJ etc. 11
with water, or for the purpose of prosecuting the coast survey. This power has been denied in Michigan."
And all of the cases cited by this authority in support of these public uses, except the lVIichigan case, were cases '":here the power of eminent domain was given to the United States and all such pro ceedings were brought by agei1cies of the United States Government. While in the Michigan case the exact question to be decided in the case at bar was raised and the Court held that the power of eminent domain could not be so exercised. The same author in the next succeeding section (Nichols on Em inent Domain, Sec. 310), says :
"The public use for which property may be taken is a public use within the State from which the power is derived It seems to be an admittted fact generally, that the power inheres in a State for domestic uses only, to be exercised for the benefit of its own people, and cannot be extended merely to promote the uses of a foreign State."
In the latest work on this subject, Nichols on Eminent Domain, Vol. 1, Sec. 22, that writer says:
"It has been intimated that one State cannot conden1n property within its limits for the use of another state (cit ing Kolzl'u. U.S. 91 U. S. 367, 23 L. Ed. 449), and a tak ing for such a purpose has never received the sanction of the courts."
And this same authority says (Vol. 1,. Sec. 34) :
"It is now, however, generally considered to be the sounder rule that a state cannot authorize the exercise of eminent domain except for the use of its own people, and that consequently a state cam1ot authorize the use of the United States in carrying out the public and governmental . functions assigned exclusively to the United States by the Constitution." · · " · · 12 Thos. J. Rudacille vs. State Com. on Conservation, etc.
The cases of Falsbury & Co. v. Alexander, 101 Va. 98, and Nichols v. Central ·v. Power Co., 143 Va. 405, hereinbefore referred to, held, in effect, that the manner of enjoyment of any private prop erty taken for public use must be within control of the state, and therefore, infereptially, that one sovereignty could not condemn land for another sovereign state. The case of Yarbrough v. N. C. Parll Com., 196 N. C. 284, 145 S. E. 563, is not controlling here because it was a suit. by a taxpayer and· not by a land owner, and for the reason that the decision is con trary to decisi0n of U. S. Supreme Court in the case of Kohl 'V. · U. S., supra. The Yarborough case is now pending on appeal in U. S. Supreme Court.
ASSIGNMENT OF ERROR NO. 3
The trial court erred in holding that the Public Park Condemn ation Act is not repugnant to and in violation of the Fourteenth Amendment to the Constitution of the United States and Sections 6, 8, 11, and 58 of the Constitution of Virginia in that said Act pro vides for the taking of private property without due process of la'V and without paying just compensation therefor. Sec. 5 of said Condemnation Act provides that a condemnation proceeding under this Act shall be commenced by filing a petition in the office of the clerk of the county where the land is situate. And this is about the only respect in which the Condemnation Act is similar to provisions of C~apter 176 of the Code. Sec. 6 defines what shall be contained in said petition, and, among other things, states :
"The value ~f the land or of any part or parcel thereof specifically described and set out in the petition may be stated or charged, according to the petitioner's knowledge, information, and belief, as a fact, in the petition; and un less denied or disputed by some person owning an interest in the land, or having a material claim to the proceeds aris ing from a condemnation of the land, such statement or charge as to the value shall be final and conclusive as to all parties to the condemnation proceeding and as to all other Thos. J. Rudacille vs. State Com. on Conservation, etc. 13
persons whomsoever, upon notice being given as hereinafter provided, except as to persons appearing to be infants, or insane, or under other legal disability."
And the notice required 'to be given "as hereinafter provided" is by publication. Sec. 7 of said Act pr~vides that upon presentation of petition (only ex parte presentation conten1plated) the Court or Judge shall make and direct an order of notice, fixing a day certain thereafter, in term or vacation, on or before which the land owner shall appear and plead, designating some newspaper published in the county, or in lieu thereof two newspapers published in some adjoining county or counties, for publication of notice. Sec. 9 provides that such notice must be delivered to newspaper (or newspapers) within five days -from date of order and shall be published for four consecutive weeks and the last publication shall be at least three days before the day certain fixed for hearing on the petition. Thus, the day certain set for hearing on petition must be 30 days from the time of the presentment of the petition to the Judge, or· 25 days after the first publication, as 22 days are required for four weeks' publication if the first and last publications are on too same· day of the week. But this time can be shortened by five days if the first publication be made on Saturday and the last one on Monday, so if so shortened the hearing could be had in 25 days after present ment of the petition to the Judge, or 20 days after the first publication. Sec. 9 further provides that the Clerk shall, as early as is prac ticable and not exceeding twenty days after the first publication, 'ttnless otherwise ordered, mail to the land owner· at his address as stated in the petition a copy of one of the newspapers containing the notice, but the clerk is not required to send same by registered mail and no way of ascertaining that the land owner ever received copy of said newspaper or that he will see or read the notice if he receives the newspaper; and if full time is taken for mailing the newspaper, he may not receive it, if at all, until after the date certain set for the hearing, and cannot receive it until after such date if the time of pub lication is shortened by having first publication made on Saturday and the last one on Monday; and this mailing of such newspaper may be 14 Thos. J. Rudacille vs. State Com. ·on Conservation, etc. dispensed with by order of Court. And even if such newspaper is actually sent by the Clerk to the land owner, there is no provision for changing the date of hearing, or of postponement or continuance in the event the land owner is away from home, is sick, or fails to see and read said notice; but to the contrary this same Section 9 that if the land owner does not "so appear and assert and present their claims, the statements and charges in the petition will be considered by the Court or Judge, upon the hearing of the petition and the notice or notices in the case, as adrnitted by such persons, and the case will thenceforth be proceeded in ex parte as to them." In fact, the Act itself shows that it is not intended to give actual notice to the land owner that his land is sought to be condemned and that it is really intended that he shall not be given any actual notice, for this same section 9 contains this most astounding statement or admission, as follows, to-wit : "And inasnutch as the only purpose in requiring the mailing of newspapers containing the published notice is to bring about a possible wider distribution or circulation of the notice, a failure of any newspaper so mailed to reach or to be delivered to or received by any person, to whom the same has been mailed, or the failure of the clerk to mail a copy of such newspaper to any person whose address is stated in the petition shall, in either or in any of said events be deemed and held. to be immaterial and as in no way nor to any extent affecting or modifying the· effect of the notice by publication and posting in respect to the sufficiency of such publication and posting as notice to such persons and ev:ery of them. so far as any right, title, estate or interest in the land, or the estate or interest herein sought to be con demned, which they or any of them own or claim, is con cerned." The posting referred to in the above quotation is also provided for in this same section 9, which is that the sheriff, unless otherwise ordered, shall post a notice of publication at the front door of the courthouse or usual posting place for legal notices, and this is also called "notice of publication." And there is nothing provided in lieu of this posting if the sheriff "is otherwise ordered." Thos. J. Rudacille vs. State Com. on Conservation, etc. 15
Sections 10 and 11 of this Act, specifically provide that this notice of publication (which he may, and more than likely, will never see or know anything about) is deemed sufficient process, and that personal. service is unnecessary. Sec. 12 provides for hearing, provided the land owner files an answer and disputes the amount alleged in the petition as the value of his land, but if he does not hear of the case and does not file an answer and dispute said alleged value, such alleged value will be determined to be final and conclusive and the hearing proceeding with e% parte and judgment rendered accordingly. If a hearing is had the land owner may (for a few minutes only) demand a jury, but it is provided by Section 28 that if before the ·c-'fact" of the value of the land has been submitted to the jury the pe titioner, The State Commission on Conservation and Development, may demand and the Court shall submit the determination of the value of the land, and all other questions, to a Board of Appraisal Com missioners. A person cannot be deprived of his property without due process of law; and due process of law requires that a person whose land is sought to be acquired shall have a reasonable notice and a reasonable opportunity to be heard before an impartial tribunal, before any bind ing decree can be passed affecting his rights to property.
14th Amendment to the Constitution of the U.S. Sections 5, 8, and 11 of the Constitution of Virginia. Violett v. City of Alexandria, 92 Va. 561, 23 S. E. 909; City of Norfolk v. Young, 97 Va. 728, 34 SE 886; Ward v. Henderson-White Co., 107 Va. 626, 59 SE 476; Com'n v. Hampton Roads 0. Ass'n, 109 Va. 565, 64 SE 1041; Com'n v. Carter, 126 Va. 469, 102 SE 58; Withers v. Jones, 126 Va. 500, 102 SE 83; Baldwin v. Hale, v Wall (U.S.) 223; Pennoyer v. Neff, 95 U.S. 714; Davidson v. New Orleans, 96 U. S. 104; Hurtado v. California, 110 U.S. 516,4 S Ct 111; 16 Thos. J. Rudacille VS. State Com. on Conservation, etc.
Mo. Pac. R. Co. v. Humes; 115 U.S. 520,6 S Ct 112; Riverside, etc., v. Menefee, 237 U. S. 189, 35 Ct 579; Orchard v. Alexander, 157 U. S. 372, 15 S Ct 635; Siuwn v. Craft, 182, U. S. 427, 21 S Ct 836; Twiningv. New Jersey, 211 U.S. 78,29 S'Ct 14; Roller v. I-I oll:y, 176 U. S. 398, 20 S Ct 410; Jacobs v. Roberts, 223 U. S. 261, 32 S Ct 303; Bragg v. JtVeaver, 251 U.S. 57,40 S Ct 62; North Laram£a Land Co. v. Hoffman, 268 U. S. 276, 45 S Ct 491; Ex Parta J(emmler, 136 U. S. 436, 10 S Ct 930; Hallinger ~~. Davi-s, 146 U. S. 320, 13 S Ct 105; Allen v. Georgia, 166 U. S. 141, 17 S Ct 525; Chicago etc. R. Co. v. Chicago, 166 .U. S. 436, 10 S Ct 930; U. S. v. Lee, 106 S Ct 240; Iowa C. R. Co. v. Iorr,a, 160 389, 16 S Ct 344; L. & N. R. Co. v. Schmidt, 177 U.S. 230,20 S Ct 620; Leigh v. Green, 19.3 U. S. 79, 24 S Ct 390; Howard~~. Kentucky, 200 U.S. 164,26 S Ct 189'; Tracy v. Ginzberg, 205 U. S. 170, 27 S Ct 461; Moyer v. Peabod'y, 212 U. S. 78, 29 S Ct 235; American Lead Co. v. Zeiss, 219 U.S. 47, 31 S Ct 200; Wagner v. Leser, 239 U. S. 207, 36 S Ct 66; Trau:r v. Corrigan, 257 U. S. 312, 42 S Ct 124; Hebert ·v. Louisiana, 272 U. S. 312, 47 S Ct 103·; 24 Lad Ed·. 436, and 42 Law Ed. 865.
Notice and opportunity to be heard are essential to due process of law. · 6 Ruling Case Law, Title Const. Law, Sees. 442-450. 21 Ruling Case Law, Title Process, Sec. 26 and 27 .. 22 Ruling Case Law, Title Publication, Sec. 2. 2 R. C. L. Suppl., Title, Const. Law, Sees. 442-450. 4 R. C. L. Suppl., Title, Const. Law, Sees. 442-446. 5 R. C. L. Suppl., Title, Const. Law, Sees. 442-446. Buck vs. Bell, 43 Va. 310. Thos. 1: Rudacille vs. State Com. on Conservation, etc. 17
Fundamental rights cannot be taken away without due process of law. Holden v. Hard)', 169 U. S. 389; Logan v. U. _S., 144 U. S. 288; Caldwell v. Te.1:as, 137 U. S. 697; Hurtado v. California, 110 U. S. 535; Campbell vs. Evans, 45 N. Y. 358; Taylor v. Porter, 4 Hill 140; Monongahela Nav. Co. v. U. S., 116 U. S. 635; Long Island Water Supply Co. ·v. Brooklyn, 166 U.S. 695; Walker v. Savinet, 92 U. S. 92; Allen v. Georgia, 166 U. S.·138; Mo. Pac. Ry. v. Nebraska, 164 U. S. 417; C. B. & Q. R. R. v. Chicago, 166 U.S. 231; Scott v. M~Neal, 154 U.S. 34.
The case of Wuchter v. Pizzutti, 276 U. S. 13, in construing a New Jersey statute providing for service of summons on Secretary uf State as contemplating service on a non-resident motorist, and which statute did not require Secretary of State to communicate the notice to the motorist, the Supreme Court, in an opinion by Chief Justice Taft, held that the function of process is to give defendant a reasonable notice and that the statute was void as repugnant to the 14th Amend ment. The cas~ of Riverside Afills vs. M enefct, 237 U. S. 189-193, says:
"To condemn without a hearing is repugnant to the due process clause of the Fourteenth Amendments neec].s nothing but statement."
King Tonapah Mining Co. vs. Lynch, et al, 232 Fed. 485, holds that:
"A method of service of process, though prescribed by state statute, is not sufficient, if it. does not amount to due process of law." Citing Fayerweather v. Ritch, 195 U. S. 276; C. B. &· Q. R. R. R. vs. Chicago, 166 U. S. 226. 18 Thos. J. Rudacille vs. State Com. on (, onservation, etc.
The case of Bragg v. Wem1er, 251 U. S. 57, a Virginia case, cited in our former brief and con1.mented upon at oral argument by counsel for defendant, holds: ·
"But it is essential to due process that the mode of determining the compensation be such as to afford the owner an opportunity to be heard."
In this case it was held that due process does not require that a hearing before the viewers be afforded, but is fully satisfied "by the full hearing that may be obtained by exercising the right of appeal, and having a full hearing de novo before the Circuit Court," and JUry. There are private rights beyond the control of the State in every free government.
Loan Assn. v. Topeka, 20 Wall. 603.
A State has control of the procedure in its courts, but cannot de prive citizens of funda~ental rights.
Brown v. Ne1.o Jersey, 175 U. S. 175; West v. Louisiana, 194 U. S. 258; Bertholf v. 0'Reilly, 74 N. Y. 515; Zeigler v. South & North A. R. Co., 58 Ala. 594, holds:
"Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of pri vate rights. . . . They were intended to secure the indi vidual from the arbitrary exercise of the powers of govern ment, unrestricted by -the established principles of private rights and distributive justice."
Coley's Canst. Law, 355. Thos. J. Rudacille vs. State Cont. on Conservation, etc. 19
"Due process of law implies the right of the person affected thereby to be present before the tribunal which pro nounces judgment upon the question of life, liberty, or prop erty, in the most ·comprehensive sense; to be heard by testi mony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law."
The case of Baltimore Belt. R. Co. v. Baltzell, 75 Md. 94 ( 1 c. 100, 101), 23 Atl. 74, distinguishes between the summary process sanctioned by the common law for the collection of the public revenue, and the taking of one's property under the power of eminent domain for a public use. This case was an eminent domain proceeding, and the Court cited authorities as far back as Lord J{ardwicke in Vennor's Case, 3 Atkyns 76, holding that the owner is entitled to such notice as will afford him the opportunity of submitting evidence before the jury at the time of the inquisition, or before the justices on appeal. And this case holds that the owner is entitled to notice to enable him to submit evidence to the jury, which in that case was the tribunal which a warded compensation. Due protection of rights of property has been regarded as a vital principle of republican institutions, and every republican form of gov ernment is duly bound to protect all its citizens in the enjoyment of equality of rights. · The fundamental principles referred to are those principles of judicial procedure which existed and were recognized in the courts of England prior to the adoption of the Federal and State Constitutions, and no change in procedure can be made which disregards those fun damental principles, to be ascertained from time to time by judicial action, which have relation to process of law, and protect the citizen in his private right, and guard him against arbitrary act of govern ment. 6 Ruling Case Law, Title Const. Law, Sees. 432-441; 4 Ruling Case Law, Supp. Title Const. Law, Sees. 432, 3,8,40; 5 Ruling Case Law, Supp. Title Const. Law, Sec. 438; And cases cited. 20 · Thos. J. Rudacille vs. State Com. on Conservation, etc.
The right of due process of law is of such importance that the people have never delegated to either the state or federal government the power to deprive a person of property except by observing its re quirements.
Ruling Case Law citations, supra. Twining v. New Jersey, 211 U. S. 78; Ochoa v. Hernandez y Morales, 230 U. S. 139, State v. Height, 117 Iowa 650, 94 A. S. R. 323, 59 L. R. A. 437; Ulman v. Baltimore, 72 Md. 587,. 11 L. R. A. 224; Poulsen v. Portland, 16 re, 450, 1 L. R. A. 673; Bourdick v. People, 149 Ill. 600, 24 L. R. A. 152; Dougherty v. Thomas, 174 Mich. 371, 45 L. R. A. (NS) 699; Jenkins v. Ballantyne, 8 Utah 245, 16 L. R. A. 689; State ex rel Hurwitz v. North, 304 Mo. 607, affirmed 271 us 40.
The protection of due process of law extends to rights in the broadest sense of the term, and in determining whether the require ment has been observed regard must be had rather· to the substance than to form; for the mere form of the proceeding cannot convert the process used into due process of law, if the necessary result is illegally to deprive a person of his property without just compensation.
Ruling Case Law, supra; Ekern v. McGo.wan, 154 Wis. 157, 46 L. R. A,.. (NS) 796; Chi. etc. R. Co. v. Chicago, 166 U.S. 226; Simon v. Craft, 182 U. ·s. 427; Washington & Nav. Co. v. Fairchild, 224 U.S. 510; Barber .Asphalt Pm/. Co. v. French, 158 Mo. 534, 54 L. R. A. 492; French v. Barber Asphalt Pav. Co., 181 U. S. 324; State v. Cutshall, 110 N. C. 538, 15 S. E. 261, 16 1.. R. A. 130; Truax v. Corrigan, 257 U. S. 312, 27 A. L. R. 375; Thos. J. Rudacille vs. State Com. on Conservation, etc. 21
Rabbit v. Weber, 297 Ill. 491, 130 N. E. 789; 111t. Carnul Utility Cont. v. Publ. Util. Comm., 297 Ill. 303,21 A. L. R. 571; Blacknzan Health Resort v. Atlanta, 151 Ga. 507, 107 S. E. 525, 17 A. L. R. 516; Turtle First Nat'l Bank v. Bovey (.N. D.) 191 N. W. 765; Ala. Publ. Com. v. Mobile Gas Co., 213 Ala. 50, 41 41 A. L. R. 872.
The mere fonn of the proceeding against the owner of land can not convert the process used into due process of law, if the necessary result to be derived him of his. property without just compensation.
Oregon R. R. & N. Co. v. Fairchild, 224 U. S. 510, 524; Chi. etc. Ry. v. Chicago, 166 lT. S. 226, 236.
The legislative power of a state can only be exerted in subordi nation to the fundamental principles of right and justice which the guaranty of due process in the Fourteenth Amendment is intended to preserve~ and a purely arbitrary or capricious exercise of that power, whereby a wrongful and highly injurious invasion of property rights is practically sanctioned and the owner stripped of all real remedy, is wholly at variance with those principles.
Trua~: v. Cirrigan, 257 U. S. 312.
Bardwell v. Collins, 44 Minn. 97, is a case to foreclose a me chanic's lien, the court, in passing upon the constitutionality of a statute providing for constructive service by publication in actions to foreclose mortgages on mechanics' liens, held that :
"Service by publication in a newspaper, upon resident defendants, who are personally within the state and can be found therein, is. not due process of law."
The case of Friedman vs. First Nat'l Bank of Cleveland, 39 Okla. 486, held that, -~------~------
22 Thos. J. Rudacille vs. State Com. on Conservation, etc.
"A default judgment obtained upon service by publica tion against a resident defendant is absolutely void."
The case of Follett vs. Pacific L. & P. Co. (Cal.), 208 Pac. 295, 23 A. L. R. 965, held:
"The provisions of the Torrens Land Law which pur ports-to entitle a purchaser of a title registered without per sonal notice to one in possession with a valid interest in the land violate the constitutional guaranty of due process of lay."
Curtis v. Hoyt, 192 Iowa 1334, 186 N. W. 460, holds:
"Publication service on an actual resident of the county where the action is brought is a nullity."
Sparks v. Standard Lum,ber Co., 92 Wash. 584, 159, Pac. 812, holds that :
"A necessary defendant may not be served by publica tion whose personal service might be had by the exercise of ordinary diligence."
Section 7 provides that the court or judge shall make an order ·. fixing a day certain on or before which the land-owner may appear and file answer (under oath) and if he fails to appear and file answer on or before said date, judgment will be entered against him. And he can not be heard on anything-his interest or estate in the land, the quantity or value of the land, or of damages to adjacent or other prop erty-he can not be heard on any issue in the case if he has not filed on or before such day certain an answer under oath, giving his name and post office address, description of the land, or the right, title, interest, or estate he claims therein (all of which information is re quired to be stated in the petition) and any additional later amplifica tion required by the court-and no provision is made whereby he can be given additional time in which to file answer and "be entitled to be heard," even if it should conclusively appear that the land-owner Thos. J. Rudacille vs. State Com. on Conservation, etc. 23 should at that time be confined to his bed with pneumonia, paralysis, or cholera, or for any other reason unable to appear and file answer no such discretion being given even to the judge to give the land-owner additional time, and if the land-owner fails to see the published notice, or learn of being sued, or because of any disability is unable to appear and file answer, his rights are forever foreclosed and he is "not en titled to be heard." And by fifteen tin1es in this condemnation act (once each in Sections 8, 29, 30, 33, 35, and 38; twice each in Sections 7 and 39; and five times in Section 12) declaring when the land-owner is "entitled to be heard," and by declaring (Sec. 39) "any other person not entitled to be heard at the hearing ptovided in Section 12 hereof, upon the land," etc., and by providing (Sec. 8) that the special investi gators "under the direction and counsel of the court or judge" (thus making the judge a director of the inquisition), shall make diligent inquiry (and later report) as to the interest in or claim to the proceeds of any land described in the petition and which is owned by "any per son who fails to appear and answer or file the necessary pleadings to entitle him to be heard at the hearing by the court provided in Section 12 hereof, upon the value of the land, or estate or interest sought to be condemned," it conclusively appears that it is the clear intention of said Act that the land-owner shall never have any fair and reasonable op portunity to be heard, and in many instances has not and cannot have any opportunity to be heard, for the Act in plain English says he is "not entitled to be heard." And not only that, but as provided by Sec tion 12 of the Natural Park Condetnnation Act and as shown by a printed advertisement published in the Warren Sentinel of November 7, 1929, as the "Notice to Defendants," in a condemnation proceeding in the Circuit Court of Warren County, Virginia, an owner of land in said proposed National Park area is required to take affirmative action to prove his own title, which provision violates every fundamental property right and destroys the security of the home; and we herewith attach said advertisen1ent as "Exhibit A" to this Petition for Appeal. Private property cannot be taken for a public use except by due process of law and upon paytnent of Just Cmnpensation.
14th Amendment to the Constitution of t~e U. S.; Sees. 5, 8, 11, and 58, Constitution of Virginia; Tait's Ex. v. Central Lunatic As:ylttm, 84 Va. 271; 4 S. E. 697; ---~ ~~-----
24 Thos. J. Rudacille vs. State Com .. on Conservation, etc.
Fallsburg Po·wer etc. v. Alexander, 101 Va. 98, 102 S. E. 194; Swift & Co. v. Newport News, 105, 108, 52 SE 821; Arnzinins Chem. Co. v. Laudrum, 113 Va. 7, 73 S. E. 459; 38 L. R. A. (.N. S.) 272, Ann. Cas. 1913 D 1075; Va. Hot Springs v. Lowman, 125 Va. 326, 101 SE 326; So. Ry. Co. v. Fitzpatrick, 129 Va. 246, 105 S; E. 663; City of Riclznzond ~'. Goodwyn, 132 Va. 442, 112 S. E. 787; . Raleigh Court Corp. v. Faucett, 140 Va. 126~ 124 S~ E. 433; C. & 0. R. Co. v. Ricks, 145 Va. 10, 135 SE 685; Fonticello Co. v. Richmond, 147 Va. 355, 137 SE 458; Nusbaum v. Norfolk, 151 Va. 801, 145 SE 257.
While it is true that it is not necessary that the amount of com pensation should be actually ascertained and paid before the land is condemned, yet it is necessary that adequate provision for compensa tion and a fund and mode provided for its payment shall pre-exist, and it must be so definite and certain as to leave nothing open to litigation except the title. to the property taken and the amount of damages which the land-owner can recover, that is, "certain and ample provision must be first made by law so that the owner can coerce payment through the judicial tribunals or otherwise without any reasonable or unnecessary delay. There must be a fund that is both adequate and available with which to pay for the land condemned and from which the owner can coerce payment.
Bloodgood v. R. R. Co., 18 Wend. (N.Y.) 9, 31 Am. Dec. 313; People v. Hayden, 6 Hill (N. Y. 359); Litchfield v. Pond, 186 N. Y. 66, 78 N. E. 719; Sweet v. Rechel, 159 U. S. 380, 398, 16 S. Ct. 43, 40 L. Ed. 188; Rockaway Poe Corp. Statesbury, 255 Fed. 345; Cro~ier v. Krupp, 224 U. S. 290, 32 S. Ct. 488, 56 L. Ed. 771; Thos. J. Rudacille vs. State Com. on Conservation, etc. 25
Cherokee Nation v. So. J(an. R. Co., 135 U. S. 641, 10 S. Ct. 965, 34 L. Ed. 295. Or, as said in Cooley's Constitutional Limitations, 7th Ed., p. 813-815, as follows:
"When the property is taken directly by the state, or by any municipal corporation by state authority, it has been repeatedly held not to be essential to the validity of the law for the exercise of the right of eminent domain that it should provide for making compensation before the actual appropriation. · It is sufficient if provision is made by the law by which the party can obtain compensation, and that · an impartial tribunal is provided for assessing it."
The decisions on this point assume that, when the State has pro vided ·a remedy by resort to which the party can have his compensation assessed, adequate means will be afforded for its satisfaction; since the property of the municipality, or of the state, is a fund to which he can resort without risk of loss. ''[ f is essential, however, that the remedy be one to. 'ltrhich the pari)' can resort on his own nwtion; if the provision be such that only the public authorities appropriating the land are authorized ·to tal~e proceedings for the assessment, it nutst be held to be valid." Hicllman v. CitJ' of Kansas, 120 Mo. 110, 25 S. W. 225, 23 L. R. A. 658, held :
"The constitutional guarantee is for the protection of a right and not for the redress of a wrong, and a rule which pennits land to be taken without proof of the right to do so, and casts upon the owner the burden of instituting proceed ings to save his property, does not meet the constitutional requiretnent," citing: Stearns v. Barre, 73 Vt. 281, 50 Atl. 1086; 87 Am. St. 781.
No adequate fund is provided for by the National Park Act or the Public Park Condemnation Act to pay for the land in the park area, and no provi.sion is made whereby the state will be made liable 26 Thos. f. Rudacille vs. State Com. on Conservation, etc.
for compensation for land taken, but to the contrary, Sec. 5 of the N atic:>nal Park Act provides :
"That in acquiring title to any of said property by condemnation proceedings or otherwise, the commission shall have no authority to pledge the credit of the State or ·incur any indebtedness on behalf of itself or of the State."
.No adequate fund has been raised from which to pay for the land sought to be condemned, the fund which has been raised by private subscription and by appropriation by the legislature is not more than one-fourth of the amount that would be necessary for that purpose; . and the fund that has been raised is not available, because of the fore going provisions of Sec. 5 of the National Park Act. Just compensation is what property is worth in the market at the time it is taken, from its availability and adaptability for valuable uses, both now and in the future; and all the uses for which it is adapted should be considered.
Richmond & C. R. Co. v. Chamblin, 100 Va. 401, 405, 41 S. E. 750; Richmond & P.R. Co. v. Seaboard etc., 103 Va. 399, 49S.E.512; Hunter's Ad. v. C. & 0. R. Co., 107 Va. 158, 59 S. E. 415; Burger v. S. Female Normal School, 114 Va. 491, 77 S. E. 489; Appalachian Pr. Co. v. Johnson, 137 Va. 12, 28, 29, 119 S. E. 253; Duncan v. State Highway Com., 142 Va. 135, 142, 3, 128 S. E. 546; Charles v. Big Sandy R. Co., 142 Va. 512, 527, 129 S. E. 384; Fonticello v. Richmond, 147 Va. 355, 361, 137 S. E. 458.
And no notice is given to defendant and he has no opportunity to present evidence and prove what his land is worth or the uses for Thos. J. Rudacille vs. State C 01n. on Conservation, etc. 27 which it is adaptable in such condemnation proceeding; and what the petitioner in such proceeding would allege on his knowledge, infonna tion and belief as the value of the land certainly would not establish what is proper and just compensation for the land. Such a proceeding is in no sense a judicial determination of the value of the land. The Constitutions of the United States and Virginia guarantee that no person can have his property taken away from him except upon clue process of law and upon payment of just compensation, and the Supreme Court of the United States and Virginia have interpreted these constitutional provisions to require a reasonable notice and a reasonable opportunity to be heard and establish the true market value of the land, and that to mean its real market value market value for all of the uses for which it is adaptible, and the land owners in the park area are by said Condemnation Act deprived of all of those Con stitutional guarantees. There is no semblance of any such rights given by said Act.
ASSIGNMENT OF .ERROR NO. 4
The trial court erred in holding that the said Public Park Con demnation Act is not repugnant to and in violation of the Fourteenth Amendment to the Constitution of the United States and Section 11 of the Constitution of Virginia, in that said act provides for the tak ing of private· property without giving to the owner thereof the right to a trial by jury or before any other disinterested and fair and im partial tribunal. The land owner is entitled to an opportunity to be heard before an impartial tribunal-not necessarily what is commonly known as a jury, but before some sort of a tribunal composed of disinterested, fair, and impartial men or women. In all other cond~mnation pro ceedings in this state commissioners are provided for who shall be dis interested freeholders and the land owner has ten days' notice of their appointment and can be present in person and be represented by coun sel and object to the qualifications of any suggested commissioner. But not so under the Public Park Condemnation Act, for by Sections 29 and 8 it is provided that the Board of Appraisal Commissioners shall consist of three members, any two of whotn tnay act, and their only qualifications are that they shall be citizens of Virginia and resi dents of the judicial circuit where the proceedings have been insti- 28 Thos. J. Rudacille vs. State Com. on Conservation, etc. tuted or of any adjoining judicial circuit, but shall not be residents of the county where the proceedings are pending. They are not re quired to be disinterested freeholders and residents of the county, such as the qualifications prescribed by law for commissioners in all other condemnation proceedings under the Code. In fact, they need not be disinterested, nor need they be freeholders. They may be male or female, white or black, minor or adult, sane or insane, capitalist or pauper, prejudiced or fair, disinterested or interested in the findings to be made. There is no parallel to these limited qualifications in the entire history of American jurisprudence. And said Condemnation Act n1akes no provision for and gives no right to the land owner to have .any voice in the selection of the appraisal commissioners, and no right is given him to object or except to their qualifications or the manner in which they are selected. And the land owner is given no opportunity to suggest any instructions given by the Court to such ap praisal commissioners, nor to object or except to any instructions given, nor to demand that any instructions be given. The authorities cited under Assignment of Error No. 2 uph~ld appellant's contention that he is entitled to have the value of his land fixed by a disinterested tribunal and that he should have a voice in its selection.
ASSIGNMENT OF ERROR NO. 5
The trial court erred in holding that said Public Park Condemn ation Act is not repugnant to and in violation of Sections 8, 11, 58, 63, an.d 88 of the Constitution of Virginia, in that it denies to the land-owner the right of appeal to the Supreme Court of Appeals of Virginia. The land-owner is denied the right of appeal from judgment and order of Circuit Court approving report of Board of Appraisal Com missioners. The Public Park Condemnation Act was passed and ap proved by the Governor, with an emergency clause, on March 23, 1928, and therefore took effect on that date, which was prior to the adoption of the Amendments to the Virginia Constitution on June 18, 1928. At the time of the passage of this Act, the right of Appeal jn Condemnation proceedings, and in all other judicial questions, was guaranteed by the Constitution of Virginia and by the decisions of this Court. · Thos. J. Rudacille vs. State Com. on Conservation, etc. 29
Wilburn v. Raines, 111 Va. 334, 68 S. E. 993, holds:
"The matter of ascertaining a just compensation for the property condemned, is judicial in its character, and the owner is entitled to have that question investigated and de termined by an impartial tribunal, and by section 88 of the Constitution, with the ultimate right of appeal to this court. And this latter right is, as we have seen, fully safeguarded." "It is true that under the general road law there is an unrestricted right of appeal to this court; but it is also true that it is within the competency of the Legislature to limit that right to judicial questions only."
State Highway Commissioner v. Kreger, 128 Va. 203, 105 S. E. 217, holds:
"There is, under the Constitution and general statute law on the subject, a right of appeal in such a case on the question of compensation, as it concerns a 'r9adway' and is a judicial question. See Constitution of Virginia, 1902, Sec. 88, and the statute (Code 1919, Sec. 6336) putting such constitutional provision into effect." . "It does not purport or attempt in any way to deal with the right of appeal to this court from the decision of the Circuit Court on the subject of 'damages or compensa tion,' but leaves that wholly unaffected by such statute, and hence leaves it to be governed by the Constitution and gen eral statute law aforesaid on that subject. "The only question which is suggested in argument as being thus in fact withdrawn from judicial review in the case before us is the question of whether the use for which the alteration of the route of the road is proposed to be made is a public use. N.ow, it is true that whether a con demnation is for a public or a private use is a judicial question and is subject to review by the courts." . Miller v. P~tlaski, 109 Va. 137, 63 S. E. 880, 22 L. R. A. (N. S.) 55; . Zircle v. Southern Railway Co., 102 Va. 17, 45 S. E. 802,102 Am. St. Rep. 805." 30 Thos. !. Rudacille vs. State Com. on Conservation, etc.
Richrnond v. Good1.uyn, 132 Va. 442, 112 S. E. 787, holds:
"In eminent domain proceedings, whatever is an es sential element in just compensation cannot be excluded, even by legislative enactment."
1\1/iller v. Tmun of Pulaski, 109 Va. 137, 63 S. E. 880, holds:
"It is established in the jurisprudence of this state that the question as to whether or not in a particular case there is a public use is one for the courts to determine. It is judicial and not legislative in its character. Zircle v. South ern Ry. Co., 102 Va. 17,45 S. E. 802, 12 Am. St. Rep. 805; Fallsburg, etc. Co. v. Ale.1:ander, 101 Va. 98, 43 S. E. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855. Lewis on Eminent Domain (2nd Ed.) Sec. 158.
"But it is well settled 'that, when the uses are in fact public, the necessity or expediency of taking private prop erty for such uses by the- exercise of the power of eminent domain, the instrumentalities to be used, and the extent to which such right shall be delegated are questions apper taining to the ·political and legislative branches of the gov ernment.' Lewis on Em. Dom. Sec. 238."
3 Corpus Juris, pps. 372, 373, says:
"What is a judicial decision is a question depending too much upon the circumstances of the particular case to admit of detailed discussion here. l{owever, it may be stated as a general rule that, where any power is conferred upon a court, to be exercised by it as a court, in the manner and with the formalities of a court, and in its ordinary proceed ings, the action of such court is to be deemed judicial, ir respective of the original nature of the power, and the de termination of the court thereon may be, therefore, ap pealable." Thos. J. Rudacille vs. State Com. on Conservation, etc. 31
Therefore, the Condemnation Act, in denying the right of the land-owner to appeal to the Supreme Court of Appeals, was repug nant to the Constitution of Virginia and absolutely void and is void ab initio and is to be regarded as having never at any time been pos sessed of any legal force, and it cannot be made valid by amendment.
Cooley's Const. Lim. 8th Ed. pps. 382-4; Burks v. Common~uealth, 126 Va. 763, 101 S. E. 230.
And a statute void. for inconstitutionality is dead and cannot be vitalized by a subsequent amendment of the Constitution removing the constitutional objection, and must be re-enacted before it will have any validity.
Cooley's Const. Lim. (8th Ed.) 384, Note. Seneca lY.lining Co. v. Sec. of State, 82 Mich. 573; Banaz v. Smith, 133 Cal 65 Pac., 309; Whetstone v. Slonaker, 110 Neb. 343, 193 N. W. 749; Fleming v. Hance, 153 Cal. 162, 94 Pac. 620; State v. Tufiey, 20 Nev. 427, 22 Pac. 1054, 199 S. R. 372; Stockyards NatJl Banll v. Banmour Co. Treas., 5 F. (2d) 905; Re Rahner, 43 Fed. 556, 10 L. R. A. 444; Wilkerson v. Rahrer, 140 U. S. 545; Re Speckler, 43 Fed. 653, 10 L. R. A. 446; Re Van Vliet, 43 Fed. 761, 10 L. R. A. 451; Hammond v. Clark, 136 Ga. 313, 71 S. E. 479.
ASSIGNMENT OF ERROR NO. 6
!he trial court erred in holding that said Public Park Condemn ation Act is not repugnant to and in violatio.n of the Fourteenth Amendment to the Constitution of the United States in that it de prives citizens of the United States equal protection of the laws; and in holding that said Act is not repugnant to and in violation of Sec tion 63 of the Constitution of Virginia in that said Act is a Special Act regulating the practice in. and the jurisdiction of and changing 32 Thos. J. Rudacille vs. State Com. on Conservation, etc. the rules of evidence in judicial proceedings and inquiries before the courts and other tribunals, and providing and changing the methods of enforcing judgments, and because said Act is a Special Act grant ing unto the State Commissio? on Conservation and Development special and exclusive rights, privileges, and immunities. The Constitution of the United States declares that no state shall deny to any person within its jurisdiction the equal protection of the laws. 14th Amend. Canst. U. S. And Section 63 of the Constitution of Virginia, in defining and limiting the powers of the General Assembly, declares that: "The General Assembly shall not enact any local, special, or private law in the following cases":
"3. Regulating the practice in, or the jurisdiction of, or changing the rules of evidence in any judicial proceedings or inquiry before the courts or other tribunals, or provid ing or changing the methods ·of collecting debts or enforc ing judgments or prescribing the effect of judicial sales of real estate. "18. Granting to any private corporation, association, or individual any special or exclusive right, privilege or im- munity." ·
The Park Act purports to vest the power of eminent domain only in said Commission and for the sole and specific purpose of acquiring title to lands in the specified park area, but the "Condemnation Act" does _not purport nor attempt to vest the power of eminent domain in any person or agency but purports to provide a form and mode of pro cedure for any person who has by some other authority been vested with the power of eminent domain to condemn land for a park, Sec tion 3 of said Act reading as follows :
"In any cases wherein any person heretofore has been, or hereafter shall be authorized by the laws of the State of Virginia to acquire lands or lands within the State of Virginia for use as a public park, or for public park pur poses, and has been vested with power to condemn such land or lands in the exercise of the right of eminent domain, Thos. J. Rudacille vs. State Com. on Conservation, etc. 33
and wherein such person seeks to exercise such power, the condemnation proceedings shall be instituted, conducted, and maintained under the provisions of this act, anything con tained in any existing statute, law, or rule of procedure to the contrary notwithstanding."
And as the proposed Shenandoah National Park is the only public park within the State of Virginia for which any provision has been made by law, and as the State Commission on Conservation and De velopment is the only person or entity vested by law with the power of eminent domain to condemn land for use as a public park or for public park purposes, said Condemnation Act was enacted by the General Assembly of Virginia as a SPECIAL ACT for the sole and specific purpose of providing a form and mode of procedure for said Commission to acquire title to the lands embraced within said specified park area (and no other land) and for the sole purpose that such lands, when acquired, may be conveyed to the United States of America irt order that the Shenandoah National Park may be estab lished; and said Condemnation Act is not ·for any other purpose. The mode of procedure provided for in said Conde~nation Act cannot be made applicable for any other public park, or for any other public park purpose, because no other public park has not been provided for by law; nor can it be made applicable to any other person or entity than said Commission, because no other person or entity has been vested with the power of eminent domain to condemn land, even for this particular park. And as it is alleged in Plaintiff's Bill that said Condemnation Act is unconstitutional and void, and as it is particu larly alleged that said Act is in violation of Section 63 of the Consti tution of Virginia the parts of said Act which are unconstitutional (if any) may be more easily pointed out and more readily detected by contrasting the provision of said Act with the other provisions of the Virginia Code providing for the exercise of the right .of eminent domain in other condemnation proceedings. Schools. Sec. 672 of the Virginia Code of 1924 (hereinafter referred to as the Code) provided for condemnation of land for school purposes and that "same proceedings shall be had as are prescribed by laws relating to the exercise of the right of eminent domain, found in Chap. 176 of the Code. 34 Thos. J. Rudacille vs. State Com. on Conservation, etc ..
Courthouse, Clerk's Office, and Jail. Sec. 2722, 2728, 2729, 2730, and 2854 of the Code (as construed by Supreme Court of Appeals of Virginia in case of Board of Norfolk County Supervisors vs. Coz, 98 Va. 279, 36 S. E. 380) gives board of supervisors authority to con demn land for courthouse, clerk's office, and jail. And the provisions of the general law are applicable. Highways. Sec. 1969 j of the Code provides that procedure for condemnation, except so far as is altered, shall be the same as is pre scribed for railroads, and the rights of persons shall be subject to the general laws of the State. (<:;hap. 176.) And the right to appeal from the commissioners to the Circuit Court is specifically given, and under the general law the right of appeal to the Supreme Court of Appeals has been maintained. Telegraph and Telephone Companies. Sec. 4040 of the Code gives telegraph and telephone companies the power of eminent domain in the manner provided by law (Chap. 176 of the Code) where such companies and the owners of land sought to be acquired cannot agree upon terms of purchase. Heat, Power, Light, Electric Railway, Cold Storage, Viaduct, Conduit, Bridge, Gas, and vVater Companies. By sec. 4058-4063 of the Code such companies, where they cannot agree with the owners on price of their land, are given the same power of eminent domain as railroad companies; which is the general law found in Chapter 176 of the Code. Chapter 176 of the Code (as amended) provides the form and mode of procedure for exercising the right of eminent don1ain to ac quire private property for railroad purposes and for all of the other above mentioned public uses, and is the only procedure for condemna tion proceedings that has ever been employed in the State of Virginia, and is the only statutory authority for any such proceedings, save and except this new born babe, the "Condemnation Act" of 1928. Sec. 4364 provides for the institution of condemnation pro-· ceedings by the filing of a petition, and defines what shall be con tained in such petition. Sec. 4365 provides that upon filing petition as provided in Sec. 4364, any such corporation may give ten days' notice to the land owner of its in~ention to apply to the Court or Judge for the appoint ment of commissioners, etc., thus giving to the land-owners notice and Thos. J. Rudacille vs. State Cont. on Conservation, etc. 35
an opportunity to be present and participate in the selection of the comtnissioners, and such notice is personally served upon the land owner if he is a resident and can be found. And this same section provides that if such tenant or land-owner be a non-resident, or can not with reasonable diligence be found within the State, or if it ap pears by affidavit that his residence is unknown, he may be notified by publication in a newspaper published in the county, or if no paper be published in the county, then in some convenient county as prescribed in sections 6043, 6069, and 6070 of the Code. · Sec. 4366 provides for the appointment of commissioners by the Court or Judge "upon it appearing that such notice has been given," . and that petition has been filed, etc., and these commissioners shall be "disinterested freeholders," and they are authorized to determine the value of land sought to be condemned; and in the order appointing such commissioners the Court or J udge~hall designate the clays and hour for them to meet, and directs them to meet, vie~ the land, and hear evidence and argun1ents, etc. And the land-owner has had notice of their appointment and has every opportunity to be present and attend the viewing of the land and to present evidence and make argu ments, either himself, or represented by counsel or both. Sec. 4368 provides for a report to be made by said Commission ers, and Sec. 4369 provides that such report shall remain on file with the clerk for thirty days, and unless good cause shown upon excep tions filed within the thirty days, the report will be confirmed and recorded; and judgment will be entered pursuant to said report. Sec. 4370 provides that if good cause is shown, the report of the commissioners will be set aside by the Court and the new commission ers will be appointed, and this as often as to the Court seems proper. An appeal is allowed from any order of the Court, either approving or disapproving of said rep<;>rt. Sec. 4375 provides for consolidating condemnation cases and for the same set ·of commissioners to act in several cases. · C otting v. Kansas Cit)' Stock)rards Co., 183 U. S. 79, is a case in which the Supreme Court of the United States construed a Kansas statute very similar to the Public Park Condemnation Act, in that the statute was general in form as applying to all stock yards within a certain class, but which in fact was applicable to only one stock yard; just the same as the condemnation act is worded so as to apply to all 36 Thos. J. Rudacille vs. State Com. on Conservation, etc.
public parks and purports to confer the power of eminent domain upon any agency of the state authorized by law to condemn land for public parks or public purposes, but in fact the Condemnation Act is applicable only to the proposed Shenandoah National Park, and con fers the unusual, exclusive, ~nd special privileges therein contained upon the State Commission on Conservation and Development; only Section 1 of said Kansas Act reads as follows :
"Section 1. Any stock yards within this State, into which livestock is received for the purpose of exposing or having the same exposed for sale or feeding, and doing business ·for a compensation, and which for the preceding twelve months shall have had an average daily receipt of not less than one hundred head of cattle, or three hundred head of hogs, or threeBhundred head of sheep, are hereby de clare.d to be public stock yards."
Then followed other provisions of the act applying to public stock yards. The Supreme Court held that the Kansas Statute "is in violation of the Fourteenth Amendment of the Constitution of the United States, in that it applies only to the Kansas City Stock Yards Com pany, and not to other companies or corporations engaged in like business in Kansas, and thereby denies to that company equal protec tion of the laws," and in a lengthy and well considered opinion the Supreme Court quoted from the following adjudicated cases and text book:
Vanzant v. Waddell, 2 Yerger, 260, 270; Barbier v. Connollj', 113 U.S. 27, 31; Bell's Gap R. R. Co. v. Pa., 134 U. S. 232, 237; .. Gulf, Colo. & S. F. Ry. Co. v. Ellis, 165 U. S. 150, 159; Y ick W o. v. Hopkins, 118 U. S. 356, 369; M agoun v. Ill. Tr. & Sav. Bk., 170 U. S. 283; State v. Haun~, 61 Kansas 146; Coolej''s Const. Lim., 5th Ed., 484, 486. Thos. J. Rudacille vs. State Com. on Conservation, etc. 37
State ex rel Kinse:y v. 111 esserly, 198 1vlo. 351, is a case in which the Supreme Court of Missouri had before it the construction of a statute putting justices of the peace on a salary in· "cities having a population of fifteen thousand and under thirty-five thousand and lying ~holly within one township, except cities operating under special charters." This statute, like the Condemnation Act, was general in form and applied to all cities within that classification. But as there was only one city that came within that classification, Sedalia, and the Act, therefore, was applicable to Sedalia, alone, the court held the act as special legislation and unconstitutional. State v. Barkowitz, 250 Mo. 82, Ann. Cas. 1915 A, 477, held a statute as class legislation and a violation of Art, 4, Sec. 53, subd. 26 of the State Constitution, providing, "that the general assembly shall not pass any local or special law granting to any corporation or indi vidual any special or exclusive right, privilege, or immunit)t." The statute Ul}der consideration provided from the "registration of their trademarks by all partnerships, corporate bodies, manufacturers of glass bottles, bottlers, manufacturers of and dealers in mineral and soda water, or other beverages, using bottles stamped with their trade marks, and for the giving of notice thereof"; and providing "that it shall be a misdemeanor for any junk dealer, or dealer in second-hand bottles, without the written consent of the owner to destroy, sell, or traffic in such bottles." The court held the law as discriminating between bottlers engaged in soda and mineral water business and those engaged in the business of bottling ale, porter, lager beer, milk, and patent medicines. · The following cases have likewise held similar bottling statutes unconstitutional : ·
Lippman v. People, 175 Ill. 106; Horwich v. Walker Gardner Laboratory, 205 Ill. 497, 98 A. S. R. 254; State v. Sch'mucl~, 77 Q. St. 438, 14 L. R. A. (NS) 1128.
Cit·y of Laurens v. Anderson, 75 S. C. 62, 55 S. E. 136, 9 Ann. Cas. 1003, held that the South Carolina statute ( 24 Stat. 441), pro viding that "all sailors and sailors of the Cenfederate States, who ------
38 Thos. J. Rudacille vs. State Com. on Conservation, etc. enlisted from this state, and who were honorably discharged from such service, shall hereafter be exempt from any license for the carry ing on of any business or profession," is violative of the prohibitions of the state and federal constitution against the denial of the equal protection of the laws, as it ignores the veterans of other wards than the Civil War, and ignores those soldiers of the Confederacy who en listed from other states and were honorably discharged. Other cases holding similar statutes unconstitutional :
State v. l¥itcom, 122 Wis. 110,99 N. W. 468; State ·v. Garbroslli, 111 Iowa 496, 82 N. W., 959; Ex parte Jones, 38 Tex. Crim. 482, 43 S. W. 513; State v. Sltedroi, 75 Vt. 277, 54 Atl. 1081.
Fountain Park Co. v. Hensler, 199 Ind. 95, 50 A. L. R., 1518, held that an act, "Conferring the power of eminent domain, upon voluntary incorporated associations, maintaining a religious chautau qua, which have been in existence and operation for fifteen years with an annual program of not less than sixteen days of each year, which have held a lease of timberland for such period, and acquired the land so held, not exceeding 40 acres, creates an arbitrary and unconstitu tional classification.". And also holding: "The intention of the author of a statute and the legislature granting the right to exercise the power of eminent domain, that it shall apply to one corporation only, invalidates it under the equal protection and special privileges and immunities clauses of the Constitution." Jones v. C. R. I. & P. Ry. Co., 231 Ill. 302, 83 N. E. 215, 121 A. S. R., 313, is a case holding:
"A constitutional provision that the legislature shall pass no local or special law granting to any corporation, association, or individual, any special or exclusive im munity or privilege, is a guaranty that all valid enactments of the legislature shall be uniform in their operation upon persons and property, and by it all citizens are assured the equal protection of the laws." Thos. J. Rudacille vs. State Com. on Conservation, etc. 39
And also:
"Every citizen has an equal right with every other to resort to the courts of justice for the settlement and en forcement of his rights, and a statute that n1akes a discrimi nation between different classes of litigants which is merely arbitrary in its nature is a denial of that. right and of the equal protection of the law." ·
And also:
"If a law is made applicable only to one class of indi viduals, to be valid, there must be some actual, substantial difference between the individuals so classified and other in dividuals in the state of community, when considered with reference to the purpose!) of the law. The class upon which the benefit is conferred n1ust be composed of individuals possession in common son1e disability, attribute, or qualifi cation, or in some condition making them proper subjects in whom to vest the specific right granted them."
West Virginia v. Goodwill, 33 W. Va., 179, 10 S. E. 285, 6. L. R. A. 64, holds:
"It is not competent for the legislature, under the Con stitution, to single out owners and operators of mines, and manufacturers of every kind, and provide that they shall bear burdens not imposed on other owners of property or employers of labor, and prohibit them from making con tracts which it·is competent for other owners of property or employers of labor to make. Such legislation cannot be sustained as an exercise of police power."
And also:
"The third section of Chapter 63, Acts 1887 (Code 1887, p. 983) which prohibits persons engaging in mining and manufacturing from issuing for the payment of labor any order or paper, except such as is specified in said Act, is unconstitutional and void." 40 Thos. J. Rudacille vs. State Com. on Conservation, etc.
See also to the same effect, Millett v. People, 117 Ill. 294.
Wynehamer v. People, 13 N. Y. 433, holds:
"To forbid an individual or a class the right to the acquisition or use or enjoyment of property in such a man ner as should be permitted to the community at large, would be to deprive them of liberty in particulars of primary im portance to their pursuit of happiness. Cooley, Canst. Lim. 485-7."
People v. Mar.x, 99 N. Y. 377, holds:
"The rights of every individual n1ust stand or fall by the same rul~ of Ia wthat governs every other member of the body politic, under similar circumstances; and every partial or private law which directly proposes to destroy or effect individual rights, or does the same thing by affdrding remedies leading to similar consequences, is unconstit~tional and void."
Littleton v. ·Hagerstown, 150 Md. 163, 132 Atl. 773, holds:
"In order that a statute, applicable only to a class, sball not fall within the constitutional prohibition of special legis lation, the members of the class must be all so situated as to require, or at least justify, 'legislation different from that applicable to others, and the basis of classification must bear a reasonable relation to the subject-matter of the Act."
And the Courts have uniformly held that although a law be gen- , eral in form, if it be special in purpose and effect, it violates the spirit of the constitutional prohibition. An evasion of the prohibition "by dressing up special laws in the garb and guise of general statutes" will not be permitted.
Campbell v. Br'yany, 104 Va. 509, 52 SE 638; Polglaise v. Com'n, 114 Va. 850, 865, 76 SE 897; Martin's E.x. v. Com'n, 126 Va. 603, 102 SE)7, citing Thos. f. Rudacille vs. State Com. on Conservation, eft~· 41
1 Dillon on Munic. Corp. (5th Ed.) Sec. 147 et seq.; 1 Lewis' Sutherland on Stat. Const. (2nd Ed.) Sec. 200; Reaves et al v. Com'n 141 Va. 191, 126 SE 87, 46 S. Ct. 481; Breckenridge v. Co. School Bd., 146 Va. 1, 135 SE 693; Ethridge~·. City of Norfolk, 148 Va. 795, 139'SE 508; lvlcClintock v. Richland Bricll Corp.,- Va.- 145 SE 425; ·M. 0. Do1.e.1d's Sons & Co. v. Augusta, 141 Ga. 748, 82 SE 148; Danville v. Wilkinson Co.,- Ga.-, 143 SE 769; Sirrine v. State,- S.C.-, 128 SE 172.
ASSIGNMENT OF ERROR NO. 6
That the trial court erred in not holding said Public Park Con demnation Act and certain portions thereof, as pointed out in the foregoing Assignments of Error, to be unconstitutional and void; and for not holding that the portions of said Act which are unconstitu tional cannot be separated from the rest of the Act, and therefore, the whole Act should be declared unconstitutional and void. Appellant contends that the entire Public Park Condemnation Act is unconstitutional and void for the reasons pointed out in th_e fore going assignments of error; and it is a well established principle of law that where a portion of an Act ~s unconstitutional and it is not possible to separate that which is unconstitutional from the rest of the Act, then the whole statute fails.
6 Ruling Case Law (and Supplement) Title Consti tutional Law, Sec. 121-125 and cases cited. Note, Annotated Cases 1916 D, p. 7 et seq.
The completeness of what remains in a statute is the test of its severability. 42 Thos. J. Rudacille vs. State Com. on Conservation, etc.
Stra·wberry Hill Land Corp. v. Starbucll, 124 Va. 71; 97 S. E. 362, and cases cited. Gherna v. State, 16 Ariz. 344; Annot. Cas. 1916 D p. 94; State v. Duncan, 265 Mo. 26; A'nnot. Cas. 1916 D p. 1 Note Annot. Cas. 1916 D p. 9 et seq.
A provision to be separable must be such that legal effect can be given to it standing alone.
Dorch)' ·v. Kansas, 264 U. S. 286.
And an essential feature of a state statute may not be eliminated hy the courts for the- purpose of saving the constitutionality of other parts of the Statute. 4 Rul. Case Law Supp., Title Const. Law, Sec. 125; Lemke v. Farmers Crain Co., 258 U.S. 50.
The Lemke case holds that :
"A state statute unconstitutional in a part essential and vital to its whole scheme, cannot be enforced by the courts in its other provisions."
It is, therefore, very apparent from these authorities, that the pro visions of the Condemnation Act providing that where a where a value of the land sought to be condemned is alleged in the petition and no notice is served upon the land-owners, and he fails to appear and file answer and dispute the alleged value on or before the day certain fixed by the court or judge for the hearing, and an ez parte award of judgn1ent being made in conformity with said alleged value and the land-owner denied the right to question or appeal on any matters touching the form or sufficiency of the petition, or as to the form, sufficiency or service, or failure to have service of notice, or from any other steps in the proceeding, are absolutely unconstitutional and void ; and that they constitute the main part and substance of said con demnation act and therefore cannot be separated therefrom. Thos. J. Rudacille vs. State Com. on Conservation, etc. 43
And not only that, but all of the foregoing provisions relating to the award of judgment in accordance with the value of the land so al leged in the petition and the denial of- the right to appeal constitute such a change in the form and procedure in condemnation proceed ings in the State of Virginia as to be a departure from and repugnant to the fundamental principles of a republican form of government under the authorities cited supra, and constitute special legislation and denial of equal protection of the laws, and are contrary to the pro visions of the Fourteenth Amendment to the Constitution of the United States and Section 63 of the Constitution of Virginia and authorities cited in the foregoing Assignment of Errors. The text of the constitutionality of a statute is not what has been done but what can be done under its provisions.
Violett v. Ale.1:mulcr, 92 Va. 561, 23 S. E. 909, 913; City of Riclmwml·v. il1odcl Stemn Laundry, 111 Va. 758, 69 S. E. 932; Richmond v. Carneal, 129 Va. 388, 392, 106 S. E. 403.
ARGUMENT
The defendant's answer admits all of the allegations in para graph 1 to 7 inclusive, and paragraph 9 of plaintiff's bill, and there fore plaintiff is entitled to all of the relief prayed for, if any of the allegations of paragraph 8 of his bill are sustained. There is no question but that the burden is on the State Com mission of Conservation and Development to prove that the establish ment of the proposed Shenandoah National Park is a necessary public tise to be exercised and controlled by the State of Virginia, before it can condemn any land for the Park, and plaintiff should be granted the injunctive relief prayed for unless such public use is proved by the defendant to the satisfaction of the court, and defendant has abso lutely failed to make any such proof whatever. Neither the National Park Act nor the Public P'itrk Condemnation Act contains any pro vision declaring that any public necessity exists for the establishment of said park or that it is in any sense a public use to be exercised by the ·state of Virginia or a use in which the public will have any interest, but to the c;ontrary, Sec. 6 of the National Park Act provides that the ------
44 Thos. I. Rudacille vs. State Com. on Conservation, etc.
Commission shall convey the land to the United States of America, without establishing any park at all. And not only that, but the Vir ginia National Park Act describes a smaller and different tract of land from that described in the Act of Congress aforesaid, and is now at tempting to condemn and convey to the United States an entirely different area than that contemplated by said Act of Congress. It is also a well established principle of law that one sovereign state cannot exercise the power of eminent domain and acquire private property for a public use to be exercised, performed, or controlled by another sovereignty. Therefore, the provisions in the Virginia Acts for the acquiring of title to the land described in said Acts by the State of Virginia for the purpose of conveying same to the United States for an alleged or contemplated public use, which tnay never be exercised by the United States, is absolutely void. The Constitutions of the United States and Virginia provide that private property may not be taken for a private purpose except with the consent of the owner, and can not be taken for a public use except by due process of law and _upon payment of just compensation there for: And the Supreme Courts of the United States and Virginia have defined due process of law to mean that the landowner shall be given a reasonable notice and a reasonable opportunity to be heard before an impartial tribunal. .No such notice is provided for in the Condemna tion Act and no opportunity for hearing is afforded. An opportunity to be heard means an honest opportunity and an actual hearing had, uriless the same has been waived, and a land-owner cannot be said to have waived such a hearing if he has had no notice and no knowledge that such a hearing was ever contemplated. Section 7 provides that the court or judge shall make ·an order fixing a day certain on or before which the land-owner may appear and file answer (under oath) and if he fails to appear and file answer or or before said date, judgment will be entered against him, And he cannot be heard on anything-his in.terest or estate in the land, the quantity or value of the land, or of damages to adJacent or other - property-he cannot be heard on any issue in the case if he has not filed on or before such day certain an answer under oath, giving 'his name nnd post office address, description of the land, or the right, title, interest, or estate he claims therein (all of which information is required to be stated in the petition) and any additional la.ter amplifi- - cation required by the court-and no provision is made whereby he Thos. J. Rudacille vs. State Com. on Conservation, etc~ 45 can be given additional time in which to file answer and "be e.ntitled to be heard," even if it should conclusively appear that the land-owner. should at that time be confined to his bed with pneumonia, paralysis, or cholera, or for any other reason unable to. appear and file answer-· no ·such discretion being given even to the judge to give the· land owner additional time, and if the land-owner fails to see the published notice, or learn of being sued, or because of any disability is unable to appe_ar and file answer, his rights are forever foreclosed and he is "not entitled to. be heard." And by fifteen times in this condemnation act (once each in Sections 8, 29, 30, 33, 35, and 38; twice each in Sections 7 and 39; and five times in Section 12) declaring when the land-owner is "entitled to be heard," and by doclaring (Sec. 39): ·
"any other person not entitled to be heard at the hearing provided in Section 12 hereof, upon the land," etc. and by providing (Sec. 8) that the special investigators "under the direction and counsel of the ·court or judge," (thus making th~ judge a director of the inquisition) shall make diligent inquiry (and later report) as to the interest in or claim to the proceeds of any land described in the petition and which is owned by "any person who fails to appear and answer or file the necessary pleadings to entitle him to be heard at the hearing by the court provided in Section 12 hereof, upon the value of the land, or estate or interest sought to be con demned," it conclusively appears that it is the clear intention of said Act that the land-owner·shall never have any fair and reasonable op portunity to be·heard, and in many instances has not and cannot have any opportunity to be heard, for the act in plain English says he is "not entitled to be heard." Not only does this Act provide that the land-owner's home and fireside may be taken without giving him any reasonable notice and a reasonable opportunity to be heard by plainly stating that he need not be notified, but it is only in rare instances and upon a~rmative action on his part that he is entitled to be heard, and even when "entitled to be heard" he is not given a heari:J;lg before any tribunal that he has any voice in selecting (or objecting to) and has no assurance whatever of an opportunity to be heard before an im partial tribunal, notwithstanding the solemn guarantees of the United States and Virginia Constitutions. And not only that, but even when 46 Thos. J. Rudacille vs. State Com. on Conservation, etc. the value of the land has been ascertained, even by the unfair method provided; there is no assurance, even then, that the compensation will be paid to the land owner, because no privision has been made for pay ing for the land, no adequate fund has been raised, and no n1ode is provided for raising the tund or paying for the land, and no certain· or ample provision made by law so that the owner of the land can co erce payment through a judicial tribunal or in any other manner with out (or even with); unreasonable or unnecessary delay. In .other words, no provision is made for the payment of just (or unjust) com pensation, even after the amount has actually been ascertain~d and de termined, and no matter how unfair to the land-owner has been the method of condemning his land and stating or determining its value. This entire Act is certainly unconstitutional as denying to the land-owner due process of law and just compensation for his land and equal protection of the laws, and is also a change in the fundamental principles of a republican form of government and is absolutely void. The authorities above cited show unquestionably that the con demnation act is a special law regulating the practice in and the jurisdiction of and changing the rules of evidence in a judicial pro ceeding or inquiry before the courts, and providing and changing the methods of enforcing judgments in the Commonwealth of Virginia, and is also a special law granting to the State Commission on Con servation and Development special and exclusive rights, privileges and immunities, and therefore repugnant to and in violation of the pro visions, of Section 63, subdivisions 3 and 18, of the Constitution of Virginia, as such Constitution existed on the 23rd day of March, 1928, and as it has continued to exist from and after that date to the present time. And according to the rule for the contest of the constitutionality of a statute, as laid down by the Supreme Court of Appeals of Vir ginia in the three cases cited under appellant's Assignment of Error No. 6, the test of the constitutionality of the condemnation act is not what has been done or what is now contemplated to be done, but what in fact can be done under such act.
· ASSIGNMENT OF OTHER ERRORS .
Your petitioner represents further that said decree is erorneous, uncertain, and informal in other respects. Tltos. J. Rudactlle vs. State Com. on Conservation, etc. 47
QUESTIONS OF GREAT PUBLIC CONCERN
Your petitioner further represents this suit was brought by him to protect his own rights and is in the nature of a test suit to determine the rights of all parties similarly situated; that the ques tions involved in this cause are of great public concern and involve the construction and interpretation of the Constitutions of the United States C!_nd of the State of Virginia and involves the property rights of over 2,000 resident land-owners and the title to approximately . 3000,000 acres of land, as well as the establishment of a national park; that there are constitutional and other questions involved herein that have not heretofore been passed upon by this Court, and until all of such questions are decided by- this Court the State Commission on Conservation and Development cannot safely proceed with the con demnation of lands in the proposed park area and thereby incur the great expense and liability that would arise if it brought a great num ber of such suits and appeals be taken in each suit to test the constitu tionality of said Condemnation Acts; that these questions are of grave public concern, riot only to said Commission and the land-owners, but to the public generally; and, therefore, the questions are of such im portance as to justify prompt and thorough consideration by this Court and possibly by the Supreme Court of the United States, and your petitioner verily believes that an appeal should be granted in this cause and that the hearing therein should be advanced on the docket under Rule VI of this Court. Your petiitoner therefore prays that an appeal be granted and awarded him, that said decree may be reversed and annulled, and that yo~tr petitioner be granted the relief prayed for in said bill.
THOMAS JACKSON RUDACILLE, By John H. Downing and Holmes Hall, of FULTON AND HALL, Counsel. 48 Thos. J. Rudacille vs. State Com. on Conservation, etc.
I, Holmes Hall, an attorney practicing in the Supreme Court of Appeals of Virginia, hereby certify that in my opinion there is error in the decree of the first day of October, 1929, of the Circuit Court of Warren County, Virginia, in favor of Virginia State Commission on Conservation and Development against Thomas Jackson Rudacille as set forth in the foregoing annexed petition, for which the same should be reviewed by the Supreme Court of Appeals.
HOLMES HALL, Attorney.
Service of a copy of the above and foregoing petition for appeal to the Supreme Court of Appeals of Virginia is hereby acknowledged this 25th day of November, 1929.
WEAVER & ARMSTRONG, Counsel for State Commission on Conservation and Development.
Your petitioner adopts· and relies upon this petition as his opening brief.
THOMAS JACI Filed and received February 25, 1930. LOUIS S. EPES. Appeal allowed, and supersedeas granted. Bond, $500.00. LOUIS S. EPES. Thos. 1. Rudacille vs. State Com. on Conservation, etc. 49 1* *VIRGINIA: Pleas before the Circuit Court of the County of Warren, at the Court House thereof on Wedne:;day, November 13, 1929. BE IT REMEMBERED that heretofore, to-wit, on the 30th of April, 1929, came T. J. Rudacille, by counsel, in open court, and filed his bill of complaint in words and figures as follows : towit, To the Honorable Phillip Williams, l·udge of the Circuit Court of Warren CountJ•, Virginia: Your complainant, Thomas Jackson Rudacille, respectfully rep resents unto Your Honor, the following as the grounds of this, his bill of complaint : 1. That he is the owner of in fee simple absolute, and is like wise in present possession, of a certain tract or parcel of land lying, being, and situate in South River Magisterial District of Warren County, Virginia, in area approximately Six Hundred and Twenty-six ( 626) acres, which said tract of land contains a large quantity of valuable timber growing thereon; 2. That said tract of land is within the area of land set forth and described in Sections three and four of an Act of the General Assembly of Virginia, approved March 22, 1928 (chapter 371 of Acts of Assembly, 1928) the short title of which Act is "National Park Act"; which said area is declared by the aforesaid Act to be specifically designated and set apart as lands suitable f.or use as a public park; 3. That by an Act of the General Assembly of Virginia, ap proved March 17, 1926 (chapter 169 of Acts of Assembly, 1926) there was created as an agency of the Commonwealth of Virginia, a State Commission on Conservation and Development, and that the provisions of the aforesaid "National Park Act" in ·express terms pur ports to authorize and empower the said Commission to acquire title to all or any part of said lands in said area for public park purposes and vest the said Commission under Section 5 thereof, with the power of eminent domain to condemn the lands in said area for use as a public park, or for public park purposes; 2* *4. That by a further Act of the General Assembly of Virginia, approved on March 23, 1928 (Chapter 410 of Acts ------ 50 Thos. J. Rudacille vs. State Com. on Conservation, etc. - of Assembly, 1928), the short title of which act is "Public Park Con- demnation Act," there was provided a form and ·mode of procedure for the condemnation of lands and buildings and other improvements thereon, or of any estate and interest therein for use as a public park, or for public park purposes; 5. That complainant is desirous of making sale of said tract .of land and of the timber thereon, and to that end has offered and con tinues to offer, and is now offering the same for sale, but he has been thwarted and prevented in all such efforts and has been unable to con clude any such sale, by reason of the acts and conduct of said State Commission on Conservation and Development, its agents, servants, and employees, whereby said Commission has repeatedly announced and published notice to the effect that it was and is the purpose of said Commission to acquire complainant's said tract of land by condemna tion proceedings under the authority claimed by it to have been con-· ferred upon it by the aforesaid Acts; that said Commission has not as yet instituted any condemnation proceedings under the provisions of the said Act, but on the contrary it announces and proclaitns that it is its purpose to ascertain first whether or not lands embraced within said area may be acquired with the funds at its disposal for use in such ac quisition and to that end said Commisison has caused its agents and employees to confer with the owners of the land embraced within said area and to enter into negotiations with such owners for the purpose of acquiring options on said lands, at low prices, under the threat, that unless such options are given, it is the purpose of said Commission to acquire said lands by condemnation proceedings; and to decline to even take said land at any option price or under any judgment of con demnation, unless the aggregate of said option prices and condemna tion awards shall be within the fund at the disposal of said Commis- sion for the acquisition of the whole of the lands within the 3* said area; and as a result of *the aforesaid acts, conduct and threats of said Commission, its agents, servants, and employees, the market for lands within said area, especially of timber lands, and for the timber growing thereon, has been wholly destroyed; that prospective purchasers and persons interested in the purchase of such lands and especially timber lands announce that they cannot with safety bargain for, or acquire any lands or timber within the aforesaid area, because it is feared that said lands will be acquired by said Commission under the powers claimed by said Commission to be conferred upon it by said Acts; 6. That one of the provisions of said "National Park Act" pur- Thos. J. Rudacille vs. State Com. on Conservation, etc. 51 ports to confer power and authority upon said Commission under certain conditions therein named, to convey such lands within said area as may be acquired by said Commission to the United States of America, for use as a public park, or for public park purposes; and that said Commission announces it to be its purpose, as and when said land shall have been so acquired, to convey the same to the United States of America, for use as a public park, or for public park pur poses; 7. That by reason of the aforesaid acts, threats and conduct of said Commission, its agents, servants, and employees, with respect to the lands aforementioned, your complainant is being deprived of his proper use and enjoyment of said lands and that such deprivation will continue for an indefinite period of time, without any certainty of any acquisition whatever of said lands by said Commission by the exercise of the power purported to be conferred upon it by said Act, or otherwise; and this, even though at the termination of the threat ened condemnation pro~eedings, a Judgment of award should be en tered, in favor of complainant; 8. That your complainant has been advised, and therefore, charges that said State Commission on Conservation and Development is without power or authority in law to acquire complainant's said tract of land by the exercise of the right of eminent domain as claimed by it for the reason that said "Public Park Con- 4* demnation Act" *is contrary and repugnant to, and in viola- tion of the provisions of the Constitution of the State of Vir gtma and the Constitution and Laws of the United States, in the following particulars and for the following reasons, to-wit: (a) Because said "Public Park Condemnation Act" purports to vest in said State Commission on Conservation and Development the power of eminent don1ain for the purpose of acquiring lands in the area therein mentioned for use as a public park, or for public park purposes, and is, therefore, void and contrary to the provisions of the Constitution of the United States and to the fundamental principles of · a republican form of government for the reasons that the use for which said land is to be acquired under the provisions of said Act is not in any proper sense a public use, nor properly a use in which the public will have an interest, and the General Assembly of the State of Virginia is without power to authorize said Commission to convey said lands within said area, if and when acquired, to the United States of America; (b) Because said "Public Park Condemnation Act" provides . 52 Thos. !. Rudacille vs. State Com. on Conservation, etc. for the exercise of the right of eminent domain and the condemnation of lands by said State Commission on Conservation and Development without due process of law and without providing just compensation therefor as guaranteed by sections 8, 11, 58, and 88 of the Constitution of Virginia and the Fifth and Fourteenth Amendments to the Con stitution of the United States, in that said Act provides that lands may be acquired by the Commission from the owners thereof without personal notice duly served upon sai9 land-owners and without giving them any reasonable notice and a reasonable opportunity to be heard before an impartial tribunal, and without providing just compensation for the land-owners and without providing any lawful manner of establishing what is in fact just compensation for the land to be 5* acquired; but to the contrary, *said Act provides that if the value of any interest in the land sought to be condemned is stated or charged in the petition and in the published notices, such alleged values shall upon the hearing of the 'case be accepted as final and conclusive as to all persons named in sucp. notices who do not appear in such suit and deny or dispute such values, and this notwith standing such persons may have had no notice and possessed no knowl edge of such condemnation proceedings having been instituted, and therefore, there can be no hearing of any kind before any tribunal (not even an ex parte hearing) to determine the value of the land; and because the proceedings provided in the said Act for the condemnation of lands sought to be acquired thereunder are wholly impracticable, unworkable, and insufficient to enable petitioners thereunder to submit and maintain a proper case for the condemnation of land thereunder or for the land-owner to make a proper defense, or to sup port a valid judgment of this Court awarding title to lands for use as a public park or for public park purposes; (c) Because said "Public Park Condemnation Act" denies the right of trial by jury as guaranteed by section 11 of the Constitution of Virginia and the Seventh Amendment to the Constitution of the United States; and further, because said Act does not provide for any impartial tribunal before which may be determined the value of the lands to be acquired and the question of respective rights, titles, and in terests of the various land-owners and claimants of interests in land in said park area, but to the contrary said Act provides that all ques tions concerning the value of petitioner's land and other lands in said park area and questions of title and and interests of claimants to own ership of other lands in said area shall be submitted to and shall be conclusively determined by a Board of Appraisal Commissioners con- Thos. J. Rudacille vs. State Cont. on Conservation, etc. 53 sisting of three persons who shall be citizens of Virginia and 6* . residents of the *judicial circuits wherein the condemnation proceedings have been instituted or of any adjoining circuits, but shall not be residents of any county wherein such proceedings arc pending, which said members of said Board of Appraisal Commis sioners may be by the terms of said Act either male or female, white or ·black, minor or adult, sane or insane, capitalist or pauper, pr~ju: diced or fair, disinterested or interested in the findings to be made, and no notice nor opportunity is given by said Act to the land-owner to be present and take any part in, nor to object or ~xcept to the ap pointment of any of the members of said Board of Appraisal COln missioners, nor to offer or request any instructions nor to object or except to or review any instructions given by the Court, nor to de mand that any instructions be given by the Court to said Board of Appraisal Commissioners-and in fact, no notice other than two weeks' publication is required to be given of hearings before said board, and no provision is made for any view of the land by said Board of Appraisal Con1missioners, any two of whom may make a finding and award which is subject only to the approval of the Circuit Court, which Court is not a Court of last resort in the State of Vir ginia or any other State; and by the terms of said Act said finding and award, when approved by the Circuit Court, is final and conclusive in all matters arising in the condemnation proceedings and from which there is no appeal or right of review, save and except upon the sole ground of the r~pugnancy of the "Public Park Condemnation Act" or some other law (presumably meaning only some other law affecting such condemnation proceedings) or the proceedings upon which the final order was based, to the Constitution of Virginia or the Consti tution of the United States; all of which is contrary to the provisions of sections 8, 11, 58, and 88 of the Constitution of Virginia, and the Fifth, Seventh, and Fourteenth Amend111ents to the Constitution of the United States, which guarantee due process of law and the right of trial before a jury or some other fair and impartial tribunal created by law. (d) Because said "Public Park Condemnation Act" denies the land-owner the right to appeal to the Supreme Court of Ap- 7* peals of Virginia because of any defect *or insufficiency of said petition, or because of any errors of the Court in making and directing an order of notice fixing a day certain when the land-owner may appear and plead to the petition, or because of any errors relat ing to the form or sufficiency of the notice of condemnation or to the -----~ ------~---~ 54 Thos. J. Rudacille vs. State Con~. on Conservation, etc. publication or service of said notice, or the failure to make personal service of notice on the land-owner or to give him any reasonable opportunity to make his defense and be heard before an impartial tribunal, or to findings based on values alleged in the petition and published notices, or to the appointment of Special Investigators or Board of Appraisal Commissioners, or as to the qualifications of ei_ther or any such Special Investigators or members of Board of Ap praisal Commissioners, or of any instructions given or failure to give instructions to any such Board of Appraisal Con1missioners, or to any of the proceedings before the Court or before any Board of Appraisal Commissioners, or of any order of the Court approving of any findings or award of any Board of Appraisal Commissioners, or to the final award and judgment, or the distribution of the funds awarded, or to except to or appeal from any step or part of said condemnation pro ceedings save and except as to the constitutionality of said Act, and is repugnant to and in violation of the provisions of sections 8, 11, 58, and 88 of the Constitution of Virginia, and Article III, section 2, and the Fourteenth Amendment to the Constitution of the United States and Acts of Congress passed pu~suant thereto. (e) Because said "Public Park Condemnation Act" is a special law granting to the State Commission on Conservation and Develop ment special rights, privileges and immunities; and denying to com plainant and other land-owners equal protection of the laws of the State of Virginia and of the United States; and regulating the practice in and the jurisdiction of and changing the rules of evidence in judi cial proceedings or inquiries before the Court and other tribunals of the State of Virginia, and changing the methods of determining and enforcing judgments: and, as such, is forbidden by and is contrary to the provisions of section 63 of the Constitution of Virginia and the Fourteenth Amendment to the Constitution of the United 8* *States. 9. Your complainant has been advised, and, therefore, charges there are not less than one hundred ( 100) other land-owners in said County of Warren, State of Virginia, and not less than two thousand (2,000) resident land-owners in said park area, whose lands are embraced within the aforementioned area and are likewise threat ened to be taken by said Commission, and who are in like situation to complainant with respect thereto and this suit is brought on behalf of all such land-owners, or as many of them, as will come in and con tribute to the costs of this suit; Thos. 1. Rudacille vs. State Com. on Conservation, etc. 55 FOR AS lVIUCH, therefore, as complainant is without adequate remedy, save in a Court of Equity, where matters of this nature are alone properly cognizable and relievable, he, therefore, prays that the said State Commission on Conservation and Development may be made a party defendant to this bill of complaint and required to an swer the same, but not under oath, answer under oath being ex pressly waived; that said Commission, its officers, agents, servants, and employees may be perpetually enjoined and restrained from in stituting proceedings in your Honor's Court under the provisions of the aforesaid Acts, for the acquisition of the aforesaid land of Com plainant, or of the land of any other person for and on whose behalf this suit is brought and from threatening to institute any such pro ceedings, under color of authority of the aforementioned Acts; that the aforesaid "National Park Condemnation Act" and the aforesaid "National Park Act" be declared to be void and of no effect because in contravention and violation of the provisions of the Constitution of the State of Virginia and the Constitution of the United States, as herein alleged; and from interfering with the use and enjoyment of the lands of other parties who may become complainants herein; and that complainant and others who may become complainants may have all such other and further relief as the nature of their case may require, or to Equity may seem meet. 9* *And he will ever pray, etc. THOMAS JACKSON RUDACILLE, By HOLMES HALL, JOHN H. DOWNING, Counsel. 10* *And, on the same day, to-wit, on the 30th day of April, 1929, ~arne The State Commission on Conservation and De- . velopment of the State of Virginia, a body corporate, and filed its answer to the foregoing bill of complaint, which answer is in words and figures, as follows : to-wit, 11 * *THE ANS\VER of The State Commission on Conser- vation and Development of the State of Virginia, to a Bill in Chancery exhibited against it in the Circuit Court of Warren County, Virginia, by Thomas Jackson Rudacille, as com plainant: --~------~ - ~~- 56 Thos. J. Rudacille vs. State Com. on Cotzservation, etc. This respondent for answer to said bill, or to so much thereof as it is advised it is material to answer, answers and says: 1. Respondent admits as true, that complainant is the owner in fee simple absolute of the tract or parcel of land set forth and de scribed in paragraph one of the bill of complaint and that same ·con tains the acreage alleged and likewise contains a large quantity of valuable timber growing thereon; 2. Respondent likewise admits as true that complainant's said land is within the area of land set forth and described in Sections three and four of the Acts of the General Assembly of Virginia, known as the "National Park Area" as alleged in paragraph ? of complainant's bill ; 3. Respondent likewise admits as true, that by an act of the General Assembly of Virginia, approved March 17, 1926 (Chapter 169 of Acts of Assembly, 1926, there was created as an agency of the Commonwealth of Virginia, a State Commission on Conservation and Development, and that the provisions of the aforesaid "National Park Act" authorizes and empowers said Commission. to acquire title to all or ariy part of the lands set forth and described in said "National Park Act" for public park purposes and to vest said Commission under Section 5 thereof with the power of eminent domain to condemn the lands in said area for use as a public park, or for public park purposes ; and respondent avers that it is the C01nmission which· was created by the aforesaid Act; that its membership has been duly designated, appointed, and qualified, and that it is now function- ing under the provisions of said Act and of other acts o_f the 12* *General Assembly of Virginia enacted with relation thereto; 4. Respondent likewise admits as true the "Public Park Condemnation Act" was enacted by the General Assembly of Virginia, and that the same contains the provisions alleged in .paragraph 4 of complainant's bill ; 5. Respondent likewise admits as true as alleged in paragraph 5 of cotnplainant's bill, that it has repeatedly announced and published notices to the effect that it was, and now is the purpose of respondent to acquire complainant's said tract of land by condemnation proceed ings under the power and authority conferred upon and vested in re spondent by the aforesaid acts; and respondent further admits as true, that it has not as yet instituted any condemnation proceedings under the provisions of said Acts for the reason that it is respondent's Thos. J. Rudacille vs. St~te Com. on Conservation, etc. 57 purpose to ascertain, before instituting any such proceedings, whether or not the lands embraced irr said area may be acquired with the funds at its disposal for such purposes; and for the purpose of ascertaining whether or not such funds will be sufficient for such purpose; re spondent admits as true that it has caused its agents, officers, and em ployees to confer with the owners of the land embraced within said area for the purpose of setting a price and of giving and taking op tions on said lands, at low prices ; and respondent likewise admits that it has infonned the land-owners in said area, that unless it can acquire their respective lands at prices low enough to be within the fund at the disposal of respondent for that purpose, then respondent would institute condemnation proceedings for the acquisition of said lands by that means, instead of acquiring the same by purchase; and respondent further admits that it has been, is .now, and will be its pur pose to decline to take said lands at any option price, or any judgment of condemnation, unless the aggregate of said option prices and con demnation awards shall be within the fund which is at the disposal of respondent for the acquisition of the whole of the land within said area. 13* *Respondent here avers that it is its purpose and intention to institute proceedings for the acquisition of complainant's land when it has good reason to believe that the fund ·at its disposal is entirely sufficient for the acquisition of the whole of the lands within said area, but respondent cannot now set the approximate date on which it will institute such proceedings for the reason that it has not completed its estimate and surveys qf the acreage and value of said land and desires to continue its efforts to acquire as much acreage as possible by option, or purchase, before resorting to condemnation proceedings; and respondent further admits as true that its efforts to acquire options on the lands within said area at low prices and its statement to the effect that the lands within said area will be acquired under copdemnation proceedings had had the effect of preventing complainant and other land-owners within said area of selling the lands owned by them or of selling or marketing the growing timber thereon; 6. Respondent likewise admits as true, the provisions of ·said . "National Park Act" purporting to confer power and authority up9n · respondent under the conditions therein named are to convey such lands within said area as respondent may acquire to the United States of America for use as a public park, or for public park .pur poses ; and respondent further admits that it is its purpose when it 58 Thos. J. Rudacille vs. State Com. on Conservation, etc. shall have acquired such lands, to convey the same to the United States of America for use as a public park or for public park purposes, as alleged in paragraph six of complainant's bill. 7. Respondent does not deny that it may be true as alleged in paragraph seven of complainant's bill that complainant is being de prived to some extent of the use and enjoyment of his lands by reason of the acts of respondent as alleged in said bill ; yet respondent avers that if such deprivation exists, it is merely a necessary and un- avoidable consequence of the lawful and proper acts and con- 14* duct of respondent in *its efforts to acquire title to the land of complainant and to the lands of others within the afore- ~aid area. . 8. Respondent denies as charged in paragraph eight of com plainant's bill that it is without power or authority in law to acquire compla~.nant's said tract of land by the exercise of the right of eminent domain conferred upon it and further denies that said "Public Park Condemnation Act" is contrary to the provisions of the Con stitution of the State of Virginia or of the Constitution of the United States, for the reasons alleged in complainant's bill; but on the con trary, respondent avers that aforesaid "National Park Act" vesting in respondent the power of eminent domain for the purpose of acquir ing the lands within the aforesaid area and the aforesaid "Public Park Condemnation Act" provide the form and mode of procedure for the acquisition of lands for public parks, or for public park purpose, are valid in every respect and in no wise contravene or are forbidden by the Constitution of the State of Virginia or the Constitu tion of the United States, or any section thereof or any provisions therein contained, nor is any provision in either of the aforesaid Acts contrary to the fundamental principles of a republican form of government; and respondent further avers that the General Assembly of the State of Virginia had full and complete power to authorize it to convey the said lands, within said area acquired by respondent, to the United States of America; and respondent denies as further charged in paragraph eight of complainant's bill, that said Public Park Condemnation Act does not provide due process of law for the exercise of the right of Eminent Domain and the ·condemnation of lands because said Act provides that lands may be acquired from the owners thereof upon notice other than personal notice, and asserts that personal service of noti~e is in no wise necessary to constitute due process of law in all cases, and that the publication and notice pro vided by said "Public Park Condemnation Act" is sufficient and Tho.i. J. Rudacille vs. State Com. on Conservation, etc. 59 reasonable notice as to give all owners of land a reasonable IS* *opportunity to be heard before an in1partial tribunal before any binding decree can. be made affecting his property rights; and respondent denies that the denial of the right of trial by jury and the right to appeal are in violation of the Constitution of Virginia or the Constitution of the United States; and re~pondent further denies that the proceedings provided by the aforesaid Act, are in any wise impracticable, unworkable, and insufficient to enable petitiQner' s there under to submit and maintain a proper case for the condemnation of land thereunder, or to support a valid judgment of the Court with respect thereto; but, on the contrary, respondent avers that said Act is direct, plain, and unambiguous with respect to the procedure pro vided thereby and in all its details is entirely practicable, workable, and sufficient. · 9. Respondent admits as true as alleged in paragraph nine of complainant's bill that there are not less than one hundred ( 100) othe~ land-owners in the County of Warren, State of Virginia, and not less than two thousand resident land-owners in said park area, whose lands are embraced within said area, who are in like situation to complain ant with respect to said lands; 10. Respondent avers that it is its purpose, when it shall have completed its surveys and estimates of the acreage and reasonable valuation of the lands embraced within the aforen1entioned area and when it has been reasonably satisfied that said lands can be acquired, at a sun1 within the fund at the disposal of respondent for that pur pose, to proceed to acquire said lands; that it will be necessary to the acquisition of the same that condemnation proceedings be instituted therefore, under the provisions of the aforesaid Acts, and that in the institution and prosecution of such proceedings a large sun1 of money will necessarily have to be expended ; and respondent prays the 16* decision of the Court upon the questions raised by com*plain- ant's bill to the end that it may be protected and the interests of the public conserved so that if the Court be of opinion that the Acts of the General Assembly of Virginia alleged by complainant's bill to be void, are void, then all such expenditures as would other wise have been necessary may be saved. And respondent prays to be hence dismissed with its reasonable costs, etc. 60 Thos. J. Rudacille vs. State Com. on Conservatiint, eft:. THE STATE COMMISSION ON CONSERVATION AND PEVELOPMENT OF THE STATE OF VIRGINIA. By W. E. CARSON, Chairman. 17* *IN THE CIRCUIT COURT FOR VvARREN COUNTY THOMAS JACKSON RUDACILLE v. STATE COMMISSION ON CONSERVATION AND DEVELOPMENT. OPINION OF THE COURT 18* *IN THE CIRCUIT COURT FOR WARREN. COUNTY THOMAS JACKSON RUDACILLE vs. STATE COMMISSION ON CONSERVATION AND DEVELOPMENT This is a suit in chancery for an injunction, instituted in the Cir cuit Court of \Varren County, by Thomas Jackson Rudacille, a land owner in the area designed to be acquired for the Shenandoah National Park, against the State Commission on Conservation and Development, an agency of the Commonwealth of Virginia vested with authority to acquire lands for this park. The congress of the United States, by an act approved May 22, 1926, designated an area situated in the counties of Rappahannock, Madison, Greene, Albemarle, A1:1gusta, Rockingham, Page, and War ren in the State of Virginia; and provided that when the title to the lands within that area shall have been vested in the United States in fee simple, by p.ttblic or private donation, such area shall be established, dedicated, and set apart as a public park for the benefit and enjoyment of the people, and shall be known as the Shenandoah National Park. Thos. J. Rudacille vs. State Com. on Conservation, etc. 61 The general assembly of Virginia, by an act approved March 22, 1928, provided that the area designated by the act of congress should be specifically designated and set apart as suitable for use as a public park and for public park purposes, and authorized the State Com mission on Conservation and Development to acquire title to the lands in such area for such use, and to hold the same in trust for the State of Virginia; and provision is made for the transfer of such lands to the United States of America for use as a public park or for public park purposes. This act vests the State Commission on Conserva- 19* tion and Development with *the power of eminent domain to condemn lands and property for the purpose therein au thorized. By an act, approved March 23, 1928, the general assembly pro vi~ed a system ·of procedure for the condemnation of property for use as a public park or for public park purposes. This act is chapter 410 of the Acts of Assembly of 1928 and is section 4388 of the 1928 Supplement to the Code of Virginia. The short title of this act is "public park condemnation act." The act authorizing the State Com mission on Conservation and Development to acquire lands for the Shenandoah National Park is chapter 371 of the Acts of Assembly of 1928, and is section 585 (52) to 585 (58) of the 1928 Supplement to the Code of Virginia. The short title of this act is the ".National Park Act." The ·bill in this suit avers that both of these acts of the general assembly are unconstitutional, and prays that the State Commission on Conservation a~d Development shall be enjoined from instituting, and from threatening to institute, proceedings for the purpose of condemning property under the authority of these acts for the Shen andoah National Park. Complainant is the owner of a tract of land containing six hun dred and twenty-six acres, situated in the Shenandoah National Park area in Warren County. He complains that while no proceedings have been instituted to condemn land for this park, that the State Commission on Conservation and Development has had its agents enter into negotiations with owners of land in the park area for the purpose of securing options for the purchase of such land, and that said agents have stated that unless the land can be purchased at · 20* low *prices, condemnation proceedings will be instituted to ac- quire the land; and that the commission has announced and published notice to the effect that it was its purpose to acquire the complainant's land by condemnation; and that the effect of these acts 62 Thos. J. Rudacille vs. State Com. on Conservation, etc. has been to deter prospective purchasers of lands and timber situated · within the park area from buying the same, and, therefore, the market for such property has been destroyed, and the con1plainant has there by been prevented from making sale of the land owned by him in said area. Complainant also alleges that the said commission has an nounced that unless the lands ·within the park area can be acquired with the funds at its disposal, that it will decline to exercise options which it may obtain for the purchase of such lands, and will also de cline to accept any such lands under judgment of condemnation; and that the result is to deprive him of the use and enjoyment of his property for an indefinite time, without any certainty that his land will be ultitnately acquired by the commission. The complainant charges that there are not less than one hundred other land owners in Warren County, and not less than two thousand resident land-owners in the park area, who are in like situation with himself, as a result of the alleged invalid acts of the general assembly and of the conduct of the said commissioner under the authority of those acts; and that, he therefore brings this suit on behalf of all of such land-owners who will come in atid contribute to the costs of the suit. The bill of complaint specifically states the grounds upon which the court is asked to declare these acts to be unconstitutional and invalid; and these grounds will be stated during the course of this opinion, and, therefore, need not be repeated here. 21 * *The State Commission on Conservation and Development has filed answer, admitting the material averments of the bill except those which charge the invalidity of the National Park Act and the Public Park Condemnation Act. The answer asserts that these acts are valid, and that the conduct of the commission, complained of, is lawful and proper in carrying out the purpose of these acts and exercising the power thereby conferred upon it to acquire title to the land 'of the complainant and of others situated within the park area. The answer states that it is the purpose of the respondent, when it shall have completed surveys and estimates of the acreage and valua tion of the lands embraced within the park area, and when it has been reasonably satisfied. that the said lands can be acquired at a sum within the funds at its disposal for this purpose, to proceed to ac quire the said lands; that it will be necessary in acquiring such lands to institute condemnation proceedings under the provisions of the said acts, and that thereby a large sum of money will necessarily be ex pended; and the respondent, therefore, prays the decision of the court Thos. J. Rudacille vs. State Com. on Conservation, etc. 63 upori the questions raised by the complainant's bill, to the end that it may be protected and the interests of the public conserved. The suit has been submitted for decision upon the bill and answer. It is asserted that the National Park Act is in violation of the Constitution of Virginia and the Constitution of the United States, and is cot1trary to the fundamental principles of a republican form of gov~rmnent, because it authorizes the taking of private property under the power of eminent domain for a use not public, and because the general assembly of Virginia is without power to authorize the con veyance of the land within the park area to the United States of America. · 22* *The National Park Act provides that the lands situated in the State of Virginia, described by the act of congress pro viding for the establishment of a national park to be known as Shen andoah National Park, are designated and set apart as lands suitable for use as a public park and for public park purposes, and that the State Commission on Conservation and Development is vested with authority to acquire title to these lands for such use, by the exercise of the right of eminent domain in condemnation proceedings or by gift, devise, purchase, or any other legal means, but that the commis sion shall have no authority to pledge the credit of the State· or to incur any indebtedness on behalf of itself or of the State in acquiring such lands. The act of congress is incorporated in this act and pro vides that when title to the lands within the park area shall be vested in the United States, the lands "shall be, and are hereby" established, dedicated, and set apart as a public park "for the benefit and enjoy ment of the people" ; and the secretary of the interior is authorized to accept titleto these lands on behalf of the United States. Provision is made by the National Park Act, that the title to the lands acquired thereunder .shall be held by the State Commission on Conservation and Development in Trust for the State of Virginia, and that under terms and conditions approved by the governor, and sub ject to the provisions of section seven of this act, the commission is vested with power to contract to give, grant, convey, and transfer to the United States of America, title to these lands, for use as a public park or for public. park purposes; and the governor and the commis sion are vested with power to execute any lawful conveyance or deed proper or necessary for this purpose. Section seven cedes to the United States of America exclusive jurisdiction over and within 23* the territory in *the State of Virginia included within the area described by this act, when the same shall be conveyed to the United States in accordanc1! with the provisions of this act. There is 64 Thos. J. Rudacille vs. State Com. on Conservation, etc. reserved, however, to the State of Virginia certain rights to serve criminal and civil process within the ceded territory, the right of taxation in certain specified cases therein; and the right to vote is re- served to persons residing therein. · By the terms and provisions of the National Park Act, there fore, the legislature of Virginia has vested an agency of this State with the power to exercise the right of eminent domain in the ~on demnation of private property for transfer to the United States of America for the establishment of a national park "for the benefit and enjoyment of the people." Is this a taking for a public use? Whether the use for which private property is to be taken is a public use, is ultimately a question for the courts, nevertheless, if a use is in fact public, the necessity, propriety, or expediency of exercising the power of eminent domain, the instrumentalities to be used, and the extent to which the right shall be delegated, are questions for the legislative branch of the government; and where the legislature de clares a particular use to be a public use, the presumption is in favor of its declaration, and the courts will not interfere therewith unless the use is clearly and n1anifestly of a private character. i Norfolk County Water Co. v. Wood, 116 Va. 142, 81 S. E. 19; Jltliller v. Pulaski, 109 Va. 137, 63 S. E. 880, 22 LRANS 552; Dice v. Sherman, 107 Va. 424,59 SE 388; Roanolu City v. Berko1.vitz, 80 Va. 616; Jeter v. Vinton Roanoke Water Co., 114 Va. 769, 76 SE 921; Hodges v. Richntond Cedar Works, 120 Va. 492, 91 SE 644; Zircle v. Southern R. Co., 102 Va. 22, 45 SE 802; Alexandria R. Co. v. Alexandria R. Co., 75 Va. 780, 40 Am. Rep. 743; Tail v. Central Lunatic Asylum, 84 Va. 271, 4 SE 697; Roanolu Gas. Co. v. Roanoke, 88 Va. 810, 14 SE 665; 20 c. J. 549. It is specifically declared that this property is authorized to be taken for the use and enjoyment of the people as a public park. As said by the court in St. Louis County Court v. Griswold, 58 Mo. 175: "A stronger instance cannot be given of the taking of private property for public use than that of property converted into a public park." It has been decided in numerous cases that the taking of lands for a public park is a taking for a public use under the right of eminent do main. See the cases collected in 20 C.]., section 74, note 30. The same act of congress authorizing the establishment of the Shenandoah .National Park authorized undey like provisions the Great Thos. J. Rudacille vs. State Com. on Conservation, etc. 65 Smoky Mountains National Park in the States of North Carolina and Tennessee. In the case of Yarborough v. North Carolina Park Com- 1nission, 196 N. C. 284, 145 SE 563, the validity of legislation in North Carolina authorizing an agency of that State to condemn private property for that park was questioned upon the like ground as that now being considered. Upon this question the Supreme Court of N01~th Carolina made the followil}g statement in its opinion in this case. "One class of cases defining a public use includes those in which the United States, a state, or a municipal corpora 'tion seeks to acquire land on which to carry on its proper public functions or to perform some act directly enhancing the security or health of the community. Nichols, The Power of Eminent Domain, sec. 211. In accordance with these principles, the power of eminent domain has been ex ercised by taking private property for highways, railroads, streets, playgrounds, memorial halls, monuments, statues, public buildings, and many other similar purposes. Those which are primarily aesthetic are not excluded. The old doctrine that land could be taken only when needed by the public for necessary purposes is now little more than a theory or a canon of construction. In Shoetnal~er v. United States, 147 U. S. 282, 297, 13 S. Ct. 361, 37 L. Ed. 170, 184,. it is said that a proposition to take private property, without the consent of the owner, for a public park, would formerly have been regarded as a novel exercise of legis- 25* lative power, but now the validity of *legislative acts erect ing such parks and providing for their cost is uniformly upheld. 'The park principle has been gradually extended far beyond the original notion of breathing spaces in con gested parts of populous cities. It' has already been pointed out that pleasure drives may be laid out. Land may be taken by a city for a park outside the city limits. Vast tracts of uninhabitable woodland, or spots made beautiful by· nature, may be taken for state or national parks, and the whole site of a famous battle may be reserved. It is ap parent that pleasure and sentiment must be the principal factors in justifying such things.' Nichols, the Power of Eminent Domain." 66 Thos. J. Rudacille ·vs. State Com. on Conservation} etc. The case last cited also considers the right of the legislature of North Carolina to authorize the transfer of lands to the United States for the establishment of the Great Smoky Mountains National Park. In deciding that the legislature could rightfully exercise such authority, · the court there said : "The appellant's contention that the General Assembly cannot vest in the federal government the power of eminent domain is based upon an erroneous assumption. The act in question does not purport to confer such power. In section 18 the defendant, as an agency of the state, is given the power to acquire land and other property, not for itself, but in the name of and in behalf of the state of .North Carolina. As an individual entity or a corporate body the defendant cannot acquire title to land by instituting a proceeding for condemnation. It is exclusively an agency of the state; it may acquire title only in the name of the state. Section 3. This provision is not impaired by the fact that the state is authorized to cede the acquired property to the federal government in consideration of the public benefit to be de rived from the establishment of a national park. There is no transfer of sovereignty from the state to the federal gov ernment. The State Constitution is not a grant but a re striction of powers, no clause of which prohibits the power of condemnation as authorized by the recent act. The Great Smoky Mountains National Park cannot be 'established, dedicated, and set apart as a public park for the benefit and enjoyment of the people' until title to the lands within the designated area is vested in the United States in fee simple. The tnethod provided for the final vesting of the title is about the only one available to the state. The land covered by some of the national parks, such as the Sequoia, Yo semite, Mesa Verde, Crater Lake, Wind Cave, Glacier, and others, was reserved and withdrawn from settlement, oc cupancy, or sale under the laws of the United States; but land sought for the Great Smoky Mountains National Park is held by private owners. Under the doctrine of eminent domain, the title may be acquired on behalf of the state and 26* then by *legislative and congressional assent it may be trans ferred to the United States." Thos. J. Rudacille vs. State Com. on Conservation, etc. 67 The Constitution of Virginia is a restraining instrument, and the legislature possesses all legislative power not prohibited by the Con stitution. Brown v. Epps, 91 Va. 726, 21 SE 119; 111iller v. Comm., 88 Va. 618, 14 SE 161. Unless restrained by the Constitution, therefore, the legislature of Virginia has the authority to provide for the acquisition and transfer of land~, as directed by the National Park Act. There is no such re striction in the Constitution, therefore this contention for the in validity of this act cannot be sustained. The conclusion thus follows that neither of the objections urged to the validity of the National Park Act are tenable. Attention may now be directed to the grounds o( objection to the validity of the Public Park Condemnation Act. It is asserted that the act in question is defective because it pro vides for the taking of private property without due process of law and without just ~ompensation, contrary to sections eleven, fifty-eight, and eighty-eight of the Constitution of Virginia and to the fourteenth amendment to the Constitution of the United States. Of the specifications 1nade under this general ground there may be first considered that one which states, that the procedure provided by this act is wholly impracticable, unworkable, and insufficient to effect a condemnation of private property under the right of eminent domain. 27* *While superficially the act appears somewhat lengthy and complicated, and repetition in the interest of precision does not make it easy to read, a careful study produces the conviction that not only is it not subject to objection upon the ground specified, but, on the contrary, that it is a very carefully drawn ad, based on established principle and precedent of the law of eminent domain and upon pro cedure which experience has demonstrated to be practical and suffici ent; and that it has been apparently well designed for the purpose of providing a systen1 of procedure especially adapted for the condemna tion of extensive areas of land, where many tracts and owners will be involved and problems of title and boundary will be numerous and intricate. There is nothing radical or novel in the act, but, for the most part, it is identical with the provisions of a statute, which has been in force in this State since the year 1918, and under which the federal government has acquired by condemnation thousands of acres of lands for the national forests in this and other states. (Code of Virginia, sections 4388a to 4388v. ) The most satisfactory and convincing discussion of this .ground 68. Th.os. J. Rudacille vs. State Con~. on Conservation, etc. ot objection should include a review and analysis of the act, but that would unduly prolong this opinion. It must suffice, therefore, to state in general terms the conclusions reached, and to refer to the act itself to support them. · Another specification under the ground of objection adverted to is, that the act provides for notice of the condemnation proceedings by publication rather than by personal service. The provision for notice in this act requires that the court of judge shall enter an order designating some newspaper published within the county wherein the lands sought to be condemned 28* are located, *or, in his discretion, two newspapers published in some county or counties adjoining the county wherein the lands are located, in which the notice shall be published. (Section 7.) Publication of the notice is required to be made once a week for at least four consecutive weeks, the last publication to be made least three days prior to the day fixed in the notice for the appearance of parties. (Section 9.) A longer period of publication may be ordered in the discretion of the court or judge. (Section 19. 9.) The notice required is comprehensive and definite, and appears to be adequate for the purpose of notifying the land-owners involved in the condemnation proceedings of the nature of those proceedings, the lands affected, and the time when and the court in which parties in interest are required to appear and plead. A form of notice is prQ vided. (Section 9.) It is also required that a copy of the notice shall be posted at the front door of the court house of the county road where the land is . situated, within ten days after the entry of the order of notice. (Sec. tion 9.) It is further provided that one copy of the newspaper containing the notice shall be mailed to each ·person charged in the petition for condemnation as owning or having any interest in the lands to be condemned. (Section 9.) While it is provided that notice by publication shall be deemed sufficient process for all purposes in any condemnation proceedings under the provisions of this act, without the issuance of summons or of other original or mesne process (Section 10), it is also provided that at any time prior to the judgment fixing the award for the land condemned, the court or judge, in his discretion, may 29* *specially direct that notice be served personally upon any of the persons in interest; and there is also provision that the petition.er, if he so desire, may have p.ersonal service of the notice in place of service by publication. (Section 11.) Thos. J. Rudacille vs. State Com. on ConservationJ etc. 69 In addition to these provisions made for notice of the institution of the condemnation proceedings, it is provided that notice of the time and place of hearings by boards of appraisal commissioners, ap pointed to determine compensation, shall ·be given by the entry of an order and the posting of a copy thereof at the usual place for posting legal notices in or about the court house, and by the mailing of the copy of the order 'to each of the persons claiming compensation, all not less than ten days before the time set for the hearing, or, that notice by publication may be ordered by the court or judge, in which case the notice shall be published once a week for two or more con secutive weeks, in some newspaper published in the county in which the land proposed to be condemned is situated, or in his discretion in two newspapers, published in adjoining counties. (Section 29.) These provisions for notice appear to be reasonable, and if per sonal service is not required, nevertheless, the act is not rendered invalid because the proceedings may be had upon notice by publication. Condemnation proceedings are proceedings in rem, and it is held com petent for th~:)egislature to provide for consstructive notice by publi cation to parties interested. Personal notice is not a constitutional prerequisite to the validity of condemnation proceedings. 20 C. J. sec. 349, and the cases collected in the footnote 22, among which is Wight v. Davidson} 181 U. S. 371, 21 Sup. Ct. 616, 45 L. ed. 900. Appleton v. Ne1.oton} 178 Mass. 276, 59 N. E. 648. 30* *It is asserted that no reasonable opportunity to be heard is provided by this act. Specifically, objection is made to the provision that as to persons who shall fail to appear and plead within the tin1e fixed by the notice, the statements and charges in the petition will be considered as admitted, and the case will be proceeded in ex part as to them. (Section 9. ) · .Reference has been made to the provisions of this act for notiCe, which require that where notice is by publication, the notice shall be published for at least four weeks and the last publication at least three days prior to the day fixed for the appearance of parties, with the right of the court to extend the period o"f publication in his dis cretion. It is provided th~t on the day next succeeding the day for ap pearance fixed by the order of publication, or on the day fixed for ap pearance where the notice is served personally, or at such subsequent time to which adjournment may be taken, the court or judge shall consider the petition, the notice, the pleadings filed by respondents, and the objections to the proposed condemnation, and if satisfied that 70 Thos. J. Rudacille vs. State Con~. on Conservation, etc. the petitioner is entitled to the relief sought in the petition, and that notice has been given as required by the act, shall set the case for hear: ing. At such hearing the court shall determine the value of the land or interest or estate which the petitioner seeks to have condemned and the damages, if any, sustained by or through the proposed condemn ation, regardless of conflicting claims of right or title in or to the premises. A trial by jury may be had, as of right, ripon demand of the petitioner or of any respondent in interest. (Section 12.) But 31 * before determination *by court or jury, decision may be re- ferred to a board of appraisal commissioners upon the com pensation to be a warded, upon demand therefor by the petitioner or a respondent, or by the court or judge of his own motion. Before de termination, the appraisal commission is required to hold a hearing, after due notice of the time and place to the petitioner and to the re spondents, which notice may be by posting and mailing copies thereof not less than ten days before the time set for the hearing, or, upon· special order of the court or judge, by publication of notice one a week for two or more consecutive weeks. (Sections 28 and zy.) It is provided that the report of a board of appraisal commis sioners shall not be filed with the record of the case in the office of the clerk of the court earlier than six months after the day fixed for the appearance and pleading of owners and claimants. (Section 32.) After the filing of the report it remains subject to exceptions for a period of sixty days, or for a period of ten days where notice of filing has been given to parties. (Section 33.) The court or judge may dispose of the exceptions upon the motion setting forth the ex ceptions, the answers thereto, and affidavits filed ·in support of the motion or answers, unless he is of the opinion that a hearing shall be granted thereon. (Section 35.) After determination of the compensation, either by the com:t, or by the court and jury, or by the board of appraisal commissioners and the court, as above outlined, it is provided that judgment as in rem shall be entered by the court, condemning the land, or estate or inter est therein, sought to be condemned, to the use of the petitioner, upon such petitioner paying into the custody of the court, for the 32* use *and benefit of the person or persons entitled thereto, the sum or sums ascertained or determined, as aforesaid; and such sum or sums shall be stated in said judgment as constituting the award for the property condemned. ( Sectio.n 13 and 38.) After this judgment has been entered a procedure is provided for determining how distribution of the award shall be made. It is Thos. f. Rudacille vs. State Com. on Conservation) etc. 71 provided that any party to the suit or any person having a material in terest in the fund awarded may apply to the court or to the judge for an order or judgment for the distribution of said fund or any part thereof. If, upon such application, it appear that the petition for con demnation states how, in the opinion of the petitioner, the award shall be distributed, and it shall also appear that the record in the suit does not disclose any denial or dispute, by any party or person in interest, of such statement, distribution may be ordered in accordance with such statement; except that in respect of any parties appearing to be under legal disability, inquiry shall be made into their rights or claims, upon the evidence, independent of any statement in the petition, and the rights of such persons shall be conserved and protected. .But, if it · shall appear that there is controversy among clain1ants to the fund, or that any parties to the suit are under legal disability, hearing shall be held and the distribution decided by the court, and for this purpose inquiries may be submitted to a commissioner and an order of publica tion may be made to require all persons interested to appear before the commissioner and present their claims. On application of any party in interest a jury trial may be had. (Section 15.) From this outline of provisions of this act relating to notice and hearing it will appear that there is no denial of an 33* *opportunity to be heard. Appearance and pleading by a day certain is required to entitle persons in interest to be heard in the proceedings, and there is a warning in the notice of the institution of the proceedings that failure to appear and plead by the day certain will cause the case to be proceeded in e~'r parte as to those persons who do not appear. Such proceedings as those provided for in this act involve numerous persons and interests, some unknown and unsus pected often times, and they could not proceed at all unless authorized to proceed e.v parte against persons in interest who failed to appear, nor could such proceedings be conducted in an orderly manner to a prompt conclusion without some such requirement. There is, in this act, no undue restriction or limitation upon the right to appear and plead. The form of pleading required is untechnical and simple, and provision is made for assisting claimants in the preparation and state ment of their claims. (Sections 7, 8.) The time provided for the publication of the notice to require persons interested to appear and plead is reasonable to provide an opportunity for appearance. More over, notwithstanding any person in interest shall fail to appear and plead at the time fixed, the court, or the judge, is authorized to make an order extending the time or times for appearances and pleadings 72 Thos. J. Rudacille vs. State Com. on Conservation, ·etc. (Section 19), and, at any time before the order ·for the distribution of the award is made, any person may appear before the court or judge . and make application to have himself made a party to the case, which application shall be granted upon good and sufficient cause .shown, and thereupon such person shall be entitled to share in the distribution upon establishing this claim. (Section 21.) In section six the act provides that the petitioner may charge the value of the land to be condemned, according to the petitioner's knowledge, information, and beilef, in the petition and in the 34* notice *to require the appearance of persons in interest, and unless there is denial of this charge by some person in interest; such charge of value shall be final and conciusive as to all parties and persons affected by the proceedings, except persons under legal dis ability; and section twelve provides that such charge shall be accepted as final and conclusive at the hearing by the court provided for by that section, exception being made in favor of persons under legal disability. But it is also provided in section six that nothing therein contained shall be held or construed to make it obligatory upon the petitioner, in any case, to charge the value of the land, if he is unable to do so, or deems it inadvisable to do so. · It is asserted that this provision will deny any hearing for the fixing of compensation, and that, therefore, the entire act is rendered invalid because unconstitutional. This provision is expressly optional, the petitioner may never at tempt to make use of it in any case brought under the act. Even if the provision were declared to be· invalid, the entire act would not be thereby invalidated, for the provision is clearly severable. There fore, this court would not in any event be justified in enjoining the in stitution of proceedings under this act upon this ground ofobjection; and that, it must be remembered, is the relief prayed for by the com plainant. This is a matter of defense which may be asserted in any proceedings brought under the act, where petitioner charges the value of the land, and in such case decision would be proper and necessary; but the court deems it improper for the decision to be made in .this suit. Objection is made to the validity of this act because, it is con tended, the board of appraisal commissioners as therein provided for is not an impartial tribunal for the determination of the 35* *compensation to be awarded for the taking of property and the damages incident to such· taking. This contention is based chiefly upon the assertion that the act does not require that the ~p praisal commissioners shall be disinterested. Thos. J. R-ztdacille vs. State Com .. on Conservation, etc. 73 It is true that the act does not declare in so many words that the commissioners shall be disinter_ested, but it is nevertheless expressly required that they shall be. In section thirty-four of the act one of the grou_nds upon which the report of an appraisal commission is authorized to be rejected is, partiality, fraud, and corruption of the commissioners. Moreover, under the provisions of the act, appraisal con1missioners are selected and appointed by the court or judge to perform a function which re quires itnpartiality for its lawful performance, by the section of this act just referred to, by constitutional provisions, and by the very nature of the duties imposed upon them by the terms of this act. And in order that parties may have a right to enforce this requirement, it is provided in section thirty of the act, that objection may be made to the board of appraisal commissioners and to any member thereof. In the foregoing discussion, the conclusion has been reached that the Public Park Commission Act does not violate the constitutional re quirements of due process of law and just compensation.· It remains, however, to consider two other objections made to the validity of this act. The contention is made, that this act is repugnant to section sixty-three of the Constitution of Virginia, prohibiting the enact ment of local, special, or private laws in certain cases therein enumer ated, and that it denies the equal protection of the law in contraven tion of the fourteenth amendment to the Constitution of the United States. 36* *In form, the act in question is not a special, private, or local for, for in section three it is express~y made to apply: "In any cases wherein any person heretofore has been, or ·hereafter shall be authorized by the laws of the State of Virginia to acquire land or lands within the State of Vir ginia for use as a public park, or for public park purposes, and has been vested with power to condemn such land or lands in the exercise of the right of eminent domain." There is one exception made to this application of the act, which is, that it shall r.ot be construed to affect or impair the jurisdiction .of any courts-which, under existing laws, have jurisdiction of suits or actions for the condemnation by cities and towns of lands for use as a public park or for public park purposes, or as altering or affecting in any way the procedure in or conduct o"f any such suit or action under existing laws." ( Sectio!l 44.) But the contention is made that 74 Thos. J. Rudacille vs. State Com. on Conservation, etc. notwithstanding it is in form of general application, it in effect applies to only the one park, namely, the Shen~ndoah National Park, and that the form is merely for the purpose of evading these constitutional re strictions. It is_ true that this is the only national park contemplated to be established in the State of Virginia, but it is hardly plausible to assume that no other public park will ever be established in this state. While it may be that the park in question was the immediate object and occasion for the enactment of this legislation, the act is not so framed as to be applicable to that park only, but it provides a method of procedure for all other parks; nor is there any spacious or arbitrary classification whereby the act could only be made to apply to this par ticular park. The legislature is entirely within its power in providing a form of procedure for the condemnation of property for public park pur poses different from the procedure provided where it is to be 37* acquired for other purposes. The difference *in purpose jus- tifies and requires a difference in procedure. Instances to sup port the classification on this basis may be found in present and past legislation in this state; and such is the usual and common policy gen erally in other jurisdictions (-20 C. J. sec. 302, page 875). The discussion need therefore not be prolonged further on this point, because it is clear that this is a general statute, and it is not made a special law within the meaning of the section of the Constitu tion of Virginia, al;ove alluded to, because it prescribes a special pro cedure applicable to a particular class of condemnation proceedings. Thus in Ex .Parte Settle, 114 Va. 715, 77 S. E. 496, in holding that the act in questiqn there was not forbidden by section 63 of the Constitution of Virginia, the court said by Judge Keith: "It is true that the act applies only to the county of Alexandria, that being the only county in the state which has a population of 300 or more to the square mile. But the fact that a law applies only to certain ·territorial dis tricts does not render it unconstitutional provided it applies to all districts and all persons who are similarly situated, and to all parts of the state where like conditions exist. Laws may be made to aply to a class only, and that class may be in point of fact a small one, provided the classification itself be a reasonable, and not an arbitrary, one, and the law be. made to apply to all of the persons belonging to the class without distinction." Thos. J. Rudacille vs. State Cont. on Conservation, etc. 75 The discussion of this act with reference to the Constitution of Virginia also applies when it is considered with relation to the Consti tution of the United States. 1\tlany cases might pe cited to show that this act does not deny equal protection of the law, but citation may be confined to a recent federal case in point and to the cases therein re- ·ferred to, namely, the case of Suncrest Lumber Co. v . .1Vorth Carolina Park Commission) 30 Federal Reporter (2nd) 121. It was in that case contended that legislation of North Carolina providing for the condemnation of lands for the Great Smoky Mountains National Park was unconstitutional upon the same ground as that 38* *asserted in this case. The opinion sustaining the constitution ality of the statute contains this statetnent: "There is .a perfectly good reason for the Legislature to make a distinction between proceedings for condemnation for the purposes of this national park and ordinary con demnation proceedings. In ordinary proceedings, but few persons are affected, and there is no reason to apprehend that the superior court of the county. where the land lies will not afford an impartial tribunal, and that freeholders of the county will not be absolutely imp~rtial commissioners. This national park, however, will take a large portion of Swain and Haywood counties, and will directly or indirectly affect practically every citizen of those counties. The Legis lature may well have thought that, to insure an impartial tribunal, it should pern1it the park commission to institute the proceedings in Haywood county, which adjoins Swain, or in Buncombe, which adjoins Haywood, and that in the choice of commissioners, the court should not be confined to. the county where the land was situate. All persons owning property subject to condemnation for this park are subject to the same laws; and we see no ground for complainant's contention that it is unjustly discriminated against, because in ordinary condemnation suits, which do not effect the whole community, as ·do the suits for condemnation of the vast park area, suit is required to be instituted in the county where the land lies and commissioners are selected from that county. As said in Barbier v. C onnollyJ 113 U. S. 27, 32, 5 S. Ct. 357, 360 ( 28 L. eel. 923: 'Class legislation, discriminating against some and favoring others, is prohib- . ited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its opera- 76 Thos. J. Rudacille vs. State Com. on Conservation, ·etc:. tion it affects alike all persons similarly situated, is not within the amendment.'" The remaining objection made to the validity of the act under discussion is, that the limitation placed upon the right of appeal from the circuit court to the Supreme Court of Appeals renders the act un constitutional because in violation of section eighty-eight of the Con stitution of Virginia. This limitation is found in section thirty-seven of the act, which provides in effect that from an order of the court or judge dismissing a motion to reject or to disapprove a report submitted by a board of appraisal commissioners, there shall be no appeal, "except on the ground of the repugnancy of this act or of some other statute, or of the proceedings on which the order is base.d, to the Constitution of this State or of the United States." The contention is that section eighty-eight of the. Consti- 39* tution of *1902 confers appellate ju~isdiction, in proceedings to condemn property, upon the Supreme Court of Appeals, and that the legislature violated this section of the Constitution in under taking in this act to limit such appellate jurisdiction to constitutional questions. (It is necessary to parenthetically explain that the condemnation act was passed as an emergency act and became a law prior to the adoption of the constitutional amendments of 1928 : hence the refer ence to the Constitution of 1902.) This contention seems clearly contrary to the decisions in which the meaning of this section of the Constitution has been considered by the Supreme Court of Appeals of Virginia. Those decisions are to the effect that the jurisdiction of the Supreme Court of Appeals is con ferred by statute and not by the Constitution-with certain exceptions which need not be stated in this connection. Barnett v. Meredith ( 10 Gratt.), 51 Va. 650; Page v. Clopton (30 Gratt.), 71 Va. 417; Gresham v. Ewell, 84 Va. 786, 6 SE 134; Prison Association v. Ashby, 93 Va. 671, 25 SE 893; Price 1'. Smith, 93 Va. 15, 24 SE 474; Flanary ·vs. J(ane, 102 Va. 547, 46 SE 312; Hulvey v. Roberts, 106 Va. 189, 55 SE 585; Forbes v. State Council, 107 Va. 853, 60 SE 81. While a number of the cases cited above were decided under con stitutions prior to that of 1902, and while the section of the Constitu- Thos. J. RudaCille vs. State Com. on Conservation, etc. 77 tion tu:tder discussion has been altered in some respects as it was car ried down through the various constitutions, these alterations have not been such as to change this construction and render these decisions inapplicable. . The leading case of Barnett v. Meredith, above cited, has again and again been followed and the fundamental construction in that case made, has been reaffirmed under the various constitutions. That con struction is : "The Constitution does not Proprio Vigore confer jur isdiction upon this court, and, therefore, whatever jurisdic tion it exercises must be by virtue of statutory authority made in pursuance of the Constitution." Price v. Smith, supra. 40* *In Prison Association v. Ashby, cited above, it is said: "The c~nstitution does not prescribe any case in which the appellate powers of this court shall be exercised, nor declare that it shall exercise original jurisdiction in all cases of habeas corpus, mandamus, and prohibition. The excep tion as to original jurisdiction in cases of mandamus, habeas corpus, and prohibition invests the court with ca pacity to receive original jurisdiction in those cases in the event the legislature shall see fit to confer it, but it does not, of itself, confer the jurisdiction. "The question was fully considered by this court in the case of Barnett v. A1 eredith, 10 Gratt. 650, and the con clusion reached-which has since been followed-that what ever jurisdiction this court exercises must be by virtue of some statute enacted in conformity to the constitution." It is asserted that jurisdiction to hear appeals in condemnation proceedings is invested in the Supreme Court of Appeals by this language in the third paragraph of section 88 of the Constitution : "The court shall not have jurisdiction in civil cases where the matter in controversy ...... is less in value or amount than three hundred dollars, except in controver sies concerning the title to, or boundaries of land, the con- demnation of property, . . . " 78 Thos. J. Rudacille vs. State Com. on Conservation, etc. Speaking to the point in Barnett v. Meredith, the court sai~: "Similar terms are used in the second clause of section 11, limiting. the jurisdiction of this court in civil cases where the matter in controversy, exclusive of costs, is less in value or amount than five hundred dollars, except in con troversies concerning the title or boundaries of land, etc., and en1bracing in this section also cases of habeas corpus, mandamus and prohibition. If the exception is to be con strued as amounting to an affirmative and direct grant of jurisdiction in all the controversies enumerated, without regard to the amount involved, it would be imposing a lim itation on the power of the legislature by mere implication, and would preclude it from withdrawing from the appellate or original jur~sdiction of this court many controversies which, from the amount involved, or the business of this, or from other causes, should be left to the final determination of other tribunals. The object of the exception was not to confer jurisdiction in all controversies of the kind en~imer ated, but to e:rcept such controversies from the operation of the provision limiting the jurisdiction where the matter in controversy was less in value or amount than five hundred dollars. The function of the exception in this as in the other clause of the 11th section, and of the exception in the 9th section, is to remove a restriction which, but for the exception, would have been imposed on the legislature; and to enable it to confer, under its general power to regulate the jurisdiction of the courts, appropriate appellate or orig inal jurisdiction in the controversies mentioned, without re gard to the value or amount in controversy: giving to the 41 * court the capacit)/ to receive and *exercise such jurisdiction in such cases, and in conformity with such regulations as the legislature may prescribe." (The underscoring is not in the text quoted.) The cases of Wilburn v. Raines, 111 Va. 334, 68 SE 993, and State 1-Iighway Commissioner v. J(reger, 128 Va. 203, 105 SE 217, are cited as authorities to sustain the contention, that limitation of appeal as provided in the Public Park Condemnation Act is contrary to section eighty-eight of the Constitution of 1902. But in neither of these cases was it decided that the legislature Thos. J. Rudacille vs. State Com. on Conservation~ etc. 79 could not restrict appeals to constitutional questions in condemnation proceedings. In the case first named the question was whether or not the legis lature could constitutionally limit appeals under a county road con demnation, ac to the question of compensation only. The decision is found in this paragraph of the opinion: "It is true that under the general road law there is an unrestricted right of appeal to this court; but it is also true that it is within the competency of the Legislature by special enactment to limit that right to judicial questions only." The question in the last nm:ned case was, whether or not a high way condetnnation statute by implication denied an appeal from the circuit court to the Supreme Court of Appeals. The decision is found· in this language of the opinion: · "There is, under the Constitution and general statute law on the subject, a right of appeal in such case on the question of compensation, as it concerns a "roadway," and is a judicial question. See Constitution of Va. 1902, 88, and the statut~ (Code 1919, 6336) putting such constitutional provision into effect. "It (referring to the statute) does not purpose or at tempt in any way to deal with the right of appeal to this court from the decision of the circuit court on the subject of 'damages or compensation,' but leaves that wholly un affected by such statute, and hence leaves it to be governed by the Constitution and general statute law aforesaid on the subject." ( The decision in neither of these cases required the scope of con struction contended for; in neither of them was reference made 42* to the decisions which *have construed this section of the Constitution of 1902 and the corresponding sections of the constitutions which preceded it; it is not believed that these cases were intended to be authority for any such construction. Having concluded, then, that the provision in the Public Park Condemnation Act limiting appeals to constitutional questions is not repugnant to th~ 1902 Constitution, which was still in force when this .act became law, it should also be stated that neither does this provision of that act appear to violate the 1928 amendment of this section of the Constitution. · It may be stated in closing this discussion of the objections made to the exercise of power of eminent domain as provided in this l~gi~ lation, that it is fundamental that : l "In the absence of a constitutional prov1s10n on the subject, the mod~ of exercising the right of eminent domain is within the discretion of the. legislature, untrammeled by any limitation except that the purpose is a public one, and that just compensation be paid or tendered the owner of the property _taken." 20 C. J. 874. "The power of eminent domain is an incident of sov ereignty. It is vested in the legislature, and it can only be set in motion by virtue of legislative enactment by which the time, manner, and occasion of its exercise are directed and controlled, except as restrained by the const!tution. The legislature is clothed with exclusive authority to determine when the necessity exists for exercising the power. It may exercise it directly, or it may select such agencies as it pleases, and confer upon them the rig~t, subject only to the limitations contained in the constitution; and, with respect to it, 'due process of law' only requires that it shall be ex ercised in subordination to the established principle that pri vate property ·cannot be taken for public use without the consent of the owner, save upon payment to him of just compensation." Painter v. St. Clair, 98 Va .. 85, 34 SE 989. "All that is essential is that in some appropriate way, before some properly constituted tribunal, inquiry shall be made as to the amount of compensation, and where this ha$: been provided there is that. due process of law which is re"" quired by the Federal Constitution." Backus v. Fort Street Union Depo't Co., 169 U. S. 557, 18 S. Ct. 445, 42 L. Ed. 853. - It is the opinion of this court that the National Park Act and the 43* *Public Park Condemnation Act are valid and constitutional enactn1ents. Therefore the injunctive relief prayed for in the complainant's bill will be denied and this suit will be dismissed~ PHILIP \VILLIAMS, Judge. Thos. l. Rudacille vs. State Com. on Conservation, etc. 81 The foregoing opinion was rendered and filed October 1, 1929. MARVIN A. TROUT, Clerk. 44* *And, at another day, to-wit, on October 1, 1929, catne complainant, by counsel, and defendant, by counsel, whereupon the following decree was entered : On April 30, 1929, the complainant, Thomas Jackson Rudacille, appeared in open Court and tendered his Bill of Complaint, praying for an injunction against The State Commission on Conservation and Development of the State of Virginia, the defendant therein named; And, thereupon, leave was granted said complainant to file his said bill, and thereupon he filed the same ; • And, thereupon, on the same day and at the same time, came the said The State Commission on Conservation and Development of the State of Virginia, the defendant named in said Bill, and· asked leave of the Court to file its An~wer to said Bill of the complainant, which leave was granted ; · And, thereupon, it filed its said answer to said bill of com}llaint, and said case was thereupon ordered to be docketed. And, thereupon, the same was argued by counsel for both the complainant and defendant, but the Court, not being then advised with respect to its opinion upon the questions and issues raised and sub mitted by said bill and answer and by the argument of counsel thereon, took time to consider ; And the Court now, on this, the 1st day of October, 1929, being duly advised with respect to its said opinion upon said questions and issues, is of the opinion, for reasons stated in writing and filed 45* with and made a part of the record *of this case, that the in- junctive relief sought by the complainant and as prayed for in his said bill of complaint, should be denied, and doth accordingly so adjudge, order, and decree. And, it is further adjudged, ordered, and decreed that the defend ant recover from the complainant, its costs by it in this behalf ex pended. 82 Thos. J. Rudacille vs. State Com. on Conservation, etc. STATE OF VIRGINIA, COUNTY OF WARREN, to-wit: I, Marvin A. Trout, Clerk of the Circuit Court of the County of Warren, in the State of Virginia, do hereby certify that the foregoing is a true copy and transcript of the whole of the record and proceed ings in the chancery cause lately pending in said Court between T. J. Rudacille, complainant, and The State Catnmission on Conservation and Development of the State of Virginia, defendant; and I further certify that the notice required by Section 6339 of the Code of Vir·· ginia was duly given by said complainant to said defendant. In Testimony Whereof, I hereunto set my hand this 13th day of November, .1929. l\1A.RVI.N A. TROUT, Clerk 'Clerk's fee for transcript of the record, $22.50. A Copy, Teste: H. H. Vv A YT, Clerk. INDEX Rudacille v. State Commission on Conservation PAGE Petition ...... 1-48 Appeal allowed and supersedeas granted ... : ...... : ...... 48 0 CIRCUIT COURT RECORD Bill ...... 49 Answer ...... 55 Opinion of the court ...... 60 Decree of October 1, 1929 ...... 81 Exhibit "Insert" ...... Authentication of record ...... 82