Johnston v. Alabama Public Service Commission

252 So. 2d 75, 287 Ala. 417, 39 Oil & Gas Rep. 381, 1971 Ala. LEXIS 742

• Court: Supreme Court of Alabama
• Decided: June 30, 1971
• Docket: 3 Div. 470
• Status: Published

Opinions

PER CURIAM.

This is an appeal from a decree approving and affirming an order of the Alabama Public Service Commission and holding Tit. 10, § 74, Code 1940 constitutional.

Appellee Hunt Oil Company filed a petition in the Public Service Commission under § 74 for a certificate to permit it to acquire rights of way by condemnation for the construction of a pipeline. After an adversary hearing, the certificate was issued. Appellants appealed to the Circuit Court of Montgomery County and contended that § 74 is unconstitutional. The circuit court affirmed and the cause was appealed to this court.

The facts and contentions of the parties are contained in the dissenting opinion of Bloodworth, J., and need not be here repeated. The sole question presented to us is whether § 74 violates Sec. 23 of the Constitution of Alabama of 1901 when applied to the proposed right of way for the pipeline. A majority of the court for this case holds that § 74 of Tit. 10 is constitutional as applied to the facts of this case.

One of the fundamental principles of our political system is that a legislature possesses all power except as it is limited or restricted by the state or federal constitutions. Mangan v. State, 76 Ala. 60; State ex rel. French v. Stone, 224 Ala. 234, 139 So. 328; Hall v. Underwood, 258 Ala. 392, 63 So.2d 683; Opinion of the Justices, 263 Ala. 151, 81 So.2d 688; Young v. State, 283 Ala. 676, 220 So.2d 843.

It is equally well established that the right of eminent domain antedates constitutions, and is an incident of sovereignty, inherent in and belonging to every sovereign state. Steele v. County Commissioners, 83 Ala. 304, 3 So. 761; Denson v. Alabama Polytechnic Institute, 220 Ala. 433, 126 So. 133; Gerson v. Howard, 246 Ala. 567, 21 So.2d 693; Blanton v. Fagerstrom, 249 Ala. 485, 31 So.2d 330.

There is no question in this case of a conflict with the federal constitution, so we must ascertain if the plenary power of the legislature is limited or restricted by our state constitution. If it is restricted, the restriction is found in Sec. 23 of the Constitution of 1901, the applicable portion of which reads:

“That the exercise of the right of eminent domain shall never be abridged nor so construed as to prevent the legislature from taking the property and franchises of incorporated companies, and subjecting them to public use in the same manner in which the property and franchises of individuals are taken and subjected; but private property shall not be taken for, or applied to public use, unless just compensation be first made therefor; nor shall private property be taken for private use, or for the use of corporations, other than municipal, without the consent of the owner; provided, however, the legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner; * *

To the first semicolon, the right of eminent domain of the sovereign is reiterated, and it is clearly stated that it includes property of corporations as well as individuals. The next clause requires just compensation for any private property taken. This is the first restriction. The next clause contains a second restriction, that private property shall not be taken for private use or for the use of nonmunicipal corporations, without the consent of the owner. But there is a proviso that is entitled to just as much consideration and applicability as the two restrictions which precede it. The proviso is repeated because it is of utmost importance: “ * * * provided, however, the legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner; * *

The legislature, under the proviso, saw fit to grant the right to persons in Tit. 19, § 56, Code 1940, by granting a land-locked owner access to a public road. In Harvey v. Warren, 212 Ala. 415, 102 So. 899, the statute was attacked as violating Sec. 23 of the Constitution of 1901 and Sec. 1 of Art. 14 of the Constitution of the United States. This court upheld the constitutionality of the statute. The legislature granted similar rights to mining, manufacturing and quarrying corporations in a provision that has remained unchanged in the Codes of 1907, 1923 and 1940. Tit. 10, § 89, Code 1940.

• In Steele v. County Commissioners, 83 'Ala. 304, 3 .So. 761, the “material question presented by the record involves the constitutionality of sections 1676 and 1677 of Code of Í876, which provide for and regulate the establishment of private roads.” The proviso there was substantially the same as before us in the instant case. The court said, in reference to what is now Sec. 23 of the Constitution of 1901:

“ * * * It will be observed that, in respect to the power to secure to persons and corporations the right of way over the lands of other persons and corporations, the provision in the preceding constitutions is unchanged. The purposes of this section are unmistakable. It is intended to prohibit the abridgment of the exercise of the right of eminent domain, in reference to the property and franchises of corporations; to require just compensation in all cases; and to prevent private property from being taken for private use, or for the use of corporations other than municipal, without the consent of the owner, qualified by the proviso to the section. [Emphasis supplied]

* * * * * *

“ * * * The proviso in the section of the constitution serves the natural and appropriate office of restraining or qualifying the preceding general provisions; and its operation is to except the right of way over the lands of persons and corporations from the general prohibition against taking private property for private use, by impliedly declaring the same to be a public use. The conclusion is that the legislature may provide for the establishment of private roads, and that private property to the extent of the right of way, may be taken for such purpose upon just compensation being first made, and that the enactment of sections 1676 and 1677 is a constitutional exercise of the power. * * * ” [Emphasis supplied]

This court, per. Clopton, J., evidently thought the constitutional question required decision even though it was held that.certiorari was not the proper remedy to test the “constitutional authority to establish such road over the land of another without the consent of the owner.”

Later, the constitutionality of Section 3485, Code 1907 (the precursor of Tit. 10, § 74), was before the court in Sloss-Sheffield Steel & Iron Co. v. O’Rear, 200 Ala. 291, 76 So. 57, where it was said:

“ * * * The correct doctrine is that thus stated in Lewis on Em.Dom., at section 374:

“ ‘Strictly speaking, the Legislature cannot delegate the power of eminent domain. It cannot divest itself of sovereign powers. But, in exercising the power, it can select such agencies as it pleases, and confer upon them the right to take private property subject only to the limitations contained in the Constitution. Accordingly it has been held that the right may be conferred upon corporations, public or private,' upon individuals, upon foreign corporations, or a consolidated company composed in part of a foreign corporation, and upon the federal government. Such has been the common practice since the Revolution, and the right to do so has never been a matter of serious question; and it may be regarded as settled law that, in the absence of special constitutional restriction, it is solely for the Legislature to judge what persons, corporations or other agencies may properly be clothed with this power.’

“There is no provision in our Constitution declaring or enforcing a restraint of the character indicated. Indeed, the proviso, in section 23 of the Constitution, through the employment of the disjunctive or, commits to the Legislature a discretion to secure to either persons or to corporations rights of way over the lands of others. The designation by the Legislature of one or many that may, as an agent or agents of the sovereign, exercise the right of eminent domain does not effect to confer or to grant any exclusive special privilege or immunity, within the purview of section 22 of the Constitution of 1901. When the Legislature, expressing the sovereign will, designates and commissions the agent to exercise the right of eminent domain, the fundamental theory is that a public purpose and the public welfare will be promoted and effected through the activity of the agent so designated by the authority competent to declare the sovereign will. The advantage that may and does accrue to the one or to the many thus designated to serve the public purpose is secondary and incidental only to the public benefit that is always supposed to be derived from the exercise of the power of eminent domain. [Emphasis supplied]

* * * * * *

“ * * * Our conclusion, therefore, is that the statute (section 3485) is valid as written; that the fact that its authority is not available to individuals or associations of individuals other than corporations does not render it invalid.

In that case also, the court held that a partnership was not covered by § 3485, but all the justices concurred in the opinion that the statute did not violate Sec. 22 of the Constitution of 1901.

It is true that Tit. 10, § 74, Code 1940, is broader than § 3485, Code 1907, having been amended in 1915 and in 1932. One of the amendments specifically added “pipe lines.”

Another amendment provided: “The acquisition of rights of way for mining, manufacturing, industrial power and quarrying purposes as provided herein, is hereby declared to be a public use and necessary to the development of the state.” The legislature was evidently putting into the statute the expressions of this court (emphasis supra) as to the determination of a public use.

In view of this we cannot agree that § 74 is unconstitutional, because it is the duty of a court to sustain an act unless it is convinced beyond a reasonable doubt of its unconstitutionality. Reed v. Alabama Public School and College Authority, 284 Ala. 22, 221 So.2d 381; Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667. We are not so convinced.

The wisdom of the legislature in broadening the statute may be questionable, but courts have nothing to do with the wisdom, policy or expediency of a statute. These are matters purely of legislative deliberation and cognizance. City of Mobile v. Yuille, 3 Ala. 137; Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 [5], 4A Ala.Dig., Constitutional Law, <®=:>70(3). We have held that courts cannot and will not interfere with the discretion vested in other units or branches of government, except in case of fraud, corruption, or bad faith, the equivalent of fraud. Finch v. State, 271 Ala. 499, 124 So.2d 825, and cases there cited.

It appears that Tit. 10, § 74 gives a landowner more protection than did the original statute which was considered in the O’Rear case. Prior to the 1932 amendment, which included “pipe lines” among other additions, the corporations were forbidden to start condemnation proceedings “under this section until the approval of the public service commission is first obtained,” (§ 7019, Code 1923). There was no provision'for a hearing and for aught appearing, the “approvel” could be given on an ex parte basis. But that same 1932 amendment provided the hearing now included in Tit. 10, § 74. Now the corporation must obtain a certificate from the Public Service Commission before commencing condemnation proceedings. Thirty days’ notice must be given and, after a hearing, the Commission must be of the opinion that “the proposed use would be in the furtherance of industrial development by such company * * * in this state.”

In the instant case, an adversary hearing was had before the Commission “and each of the Protestants was given full opportunity and was heard by the Commission.” The certificate of the Commission goes into considerable detail to show why the certificate should be issued and found that “the use of the proposed pipeline is in furtherance of industrial development in this State,” and that each and every requirement of Tit. 10, § 74 “has been met and proved by Applicant.”

Section 74 provides that “the right to condemn herein given shall not include the right to condemn any private residence, nor the outhouses, garden, nor orchard within the curtilage of any private residence. The acquisition of rights of way for mining, manufacturing, industrial power and quarrying purposes as provided herein, is hereby declared to be a public use and necessary to the development of the state.”

The opinion and certificate of the Public Service Commission shows that appellant produced the first oil well in Alabama in 1944 in Choctaw County and later built the first oil refinery plant in this state at Tuscaloosa, and that “it was conceded by all witnesses that the industrial development planned by Applicant would be of benefit to the State of Alabama.”

The legislature has historically approved and encouraged the industrial development of Alabama. The oil and gas industry is comparatively new in Alabama, but the rights and privileges granted under § 74 are equally applicable to this new industry whenever the statutory provisions are met. We should not hold that an oil refinery cannot be considered as coming within the statute merely because there was no oil industry or no oil refining plant in Alabama when the statute was last amended in 1932.

We agree with the Public Service Commission that the undisputed evidence in this case shows that “the use of the proposed pipeline is in the furtherance of industrial development in this State.”

We find no error in the trial court’s decree holding § 74 to be valid under Sec. 23 of the Constitution and as applied to the facts of the instant case.

In this case, McCall, J., recused himself because the proposed pipeline would go through property owned by him. The court was divided four to four and under the provisions of Tit. 13, § 15, Code 1940, as amended, this fact was certified to the governor and he appointed Honorable Sam W. Pipes, III, a member of the bar, to sit as a judge of this court in the determination of the cause.

Affirmed.

HEFLIN, C. J., and MERRILL and MADDOX, JJ., concur. LAWSON, J., concurs specially. PIPES, J., concurs in the result. SIMPSON, COLEMAN, HARWOOD and BLOODWORTH, JJ., dissent.