State Ex Rel. North Carolina Utilities Commission v. Story

84 S.E.2d 386, 241 N.C. 103, 1954 N.C. LEXIS 558

• Court: Supreme Court of North Carolina
• Decided: November 10, 1954
• Docket: 169
• Status: Published

Opinion

HiggiNS, J.

Two questions are presented by this appeal: First, does the North Carolina Utilities Commission have authority to issue to the North Carolina Wildlife Resources Commission a certificate of public convenience and necessity for the establishment of the Green River Game Management Area in Polk and Henderson Counties ? Second, if so, did the Wildlife Resources Commission' authorize the application for the certificate ?

The General Assembly of 1925 enacted Chapter 122, now G.S. 113-2, creating a Department of Conservation and Development. Among its duties were declared to be, to aid (a) in the promotion of the conservation and development of the natural resources of the State, (b) to promote a more profitable use of lands, forests and waters. The control and man agement of the Department was vested in the “Board of Conservation and Development,” consisting of 15 members appointed by the Governor. The Act creating the Board provided for a director whose duty it was to make surveys of the economy and natural resources of the State and to perform such other duties as the Board might prescribe, all under the direction of the Board.

Succeeding sessions of the General Assembly added new duties to the Board, among them that of collaborating with “the several United States Government bureaus and other sources as may assist in carrying out the objects of the Department.” Chapter 486, section 4, enacted in 1935, now G.S. 113-84, provides among other things, that the Board may “acquire by purchase, grant, condemnation, lease, agreement, gift or devise, lands or waters suitable for the purposes hereinafter enumerated:

“(a) Game farms or game refuges.

“(b) Lands or waters suitable for game, bird or fur-bearing animal restoration, propagation or protection.

“(c) For public hunting or trapping areas to provide places where the public may hunt or trap in accordance with the provisions of law or the regulations of the Board.”

Section 5 provides that the Board may “enter into cooperative agreements with Federal agencies, municipalities, corporations, organized groups of land owners, associations and individuals for the development of game, bird, or fur-bearing animal management and demonstration projects.”

In 1941 the General Assembly enacted the North Carolina "Wildlife Besources Law, now G.S. 143-237 to 143-254.1. G.S. 143-240 creates the North Carolina Wildlife Resources Commission, consisting of nine members to be appointed by the Governor, and subsection 247 provides that the duties, powers, jurisdiction and responsibilities theretofore vested by statute in the Department of Conservation and Development, the Board of Conservation and Development, the Director of Conservation and Development, the Division of Game and Inland Fisheries, the Commissioner of Game and Inland Fisheries, or any predecessor organization, board, commission or commissioner, or other official relating to the wildlife resources of North Carolina, excluding all commercial fish and fisheries, be transferred to and vested in the North Carolina Wildlife Resources Commission. The Act provides for the taking over of the duties from the organization of the latter commission appointed by the Governor.

The application filed before the North Carolina Utilities Commission recites that the Wildlife Resources Commission in co-operation with the Federal Government has under option to purchase approximately 8,000 acres of land in Polk and Henderson Counties, comprising a project known as the Green River Wildlife Management Area. The application further alleges that 5,000 acres are already under lease to the North Carolina Wildlife Resources Commission. The application further alleges that the lands of the respondents are necessary for a more complete and satisfactory development of this area for the purposes above mentioned in order that the Wildlife Resources Commission may better protect, propagate and preserve the game animals, birds, fur-bearing animals, and fish in this area. The application states that the Wildlife Resources Commission desires to acquire respondents’ property in the manner provided in Article 3, Chapter 40, General Statutes of North Carolina, entitled “Public Works Eminent Domain Law.” The certificate is requested in order that the Commission may exercise its right of eminent domain and take the property. The certificate is necessary under G.S. 40-53, which is as follows:

“Necessity for certificate of public convenience and necessity from Utilities Commission. — Notwithstanding any finding of public convenience and necessity, either in general or specific, by the terms of this article, the right of eminent domain shall not be exercised unless and until a certificate of public convenience and necessity for such project has been issued by the Utilities Commission of North Carolina, and the proceedings leading up to the issuing of such certificate of public convenience and necessity, and the right to appeal therefrom shall be as now provided by law and said rights are hereby expressly reserved to all interested parties in said proceedings. In addition to the powers now granted by law to the Utilities Commission of North Carolina, the said Utilities Commission is hereby vested with full power and authority to investigate and examine all projects set up or attempted to be set up under the provisions of this article and determine the question of the public convenience and necessity for said project.”

In construing the above section, Justice Denny, in the case of In re Housing Authority of the City of Charlotte, 233 N.C. 649, 655, 65 S.E. 2d 761, says: “We think the finding of public convenience and necessity, either in general or specific terms, as pointed out in G.S. 40-53, has reference to any finding made ‘either in general or specific’ terms by the Legislature and set forth in the Housing Authorities Law, which findings shall not be sufficient to warrant the exercise of eminent domain in connection with any project authorized thereby. But a certificate of public convenience and necessity for such project must be obtained from the Utilities Commission — that is, the public need for such a project in a particular community must be made to appear and a certificate of public convenience and necessity must be obtained before the petitioner may proceed to condemn property for such project.”

From the foregoing, it seems clear that the Wildlife Eesources Commission has authority to undertake the project outlined in the application in collaboration with the Federal Government. However, before lands for the purpose can be acquired by condemnation under the Eminent Domain Law, a certificate of public convenience and necessity is required from the North Carolina Utilities Commission. The Utilities Commission, upon a proper application and showing, has authority to issue the certificate.

The remaining question is whether the Wildlife Eesources Commission authorized the application for the certificate of public convenience and necessity. The respondents^challenge the application for the certificate upon the ground that the application was not authorized by the Wildlife Eesources Commission. The evidence on this question consists of excerpts from the minutes of a meeting of the Commission held on 21 January, 1952, as follows: “Mr. Connoly moves that the Director he authorized to negotiate for the purchase of the Green Eiver Mountain and Dugger Mountain areas, using funds appropriated at the November 16, 1951, meeting for the purchase of the South Mountain tract. Mr. Kennett seconded the motion. When put to a vote, the motion carried unanimously.” The only other reference in the Commission’s records consists of Item 2800 in the Budget for the Year 1952-1953, as follows: “Land acquisition (Green Eiver-Polk County Deer Eestoration Area) $75,-000.00.”

The question was raised in the hearing by the cross-examination of Mr. Barick, Chief of the Game Division, North Carolina Wildlife Eesources Commission, who examined the minutes of the commission and testified to the above quotations as coming from its records. Eespondents requested the Utilities Commission on this evidence to find “that the application filed in this matter on behalf of the North Carolina Wildlife Ee-sources Commission was filed and presented to this Commission without any resolution authorizing the same by the members of the Wildlife Ee-sources Commission and without authority given by the Commission. And upon this finding to conclude as a matter of law that the application for the certificate was without authority.” The Utilities Commission refused to find as requested, but did make the following finding:

“1. The Commission finds as a fact that the Wildlife Commission authorized the acquisition of the area in question (Eesolution passed at a regular meeting of said Wildlife Commission on January 21, 1952) from funds appropriated at its meeting on November 16, 1951, and that in its Budget for the fiscal year 1952-53 and also in its Budget for 1953-1954 it set aside $75,000 for the purchase of the area known as the 'Green Eiver, Polk County Deer Eestoration Area’; that this proceeding was instituted at the direction of Mr. Patton, Executive Director of said Wildlife Commission, and the application was signed by Mr. Whitmire, attorney for said Wildlife Commission. The Commission further finds as a fact that although the minutes of said Wildlife Commission fail to specifically authorize the institution of this proceeding, that, by approving the acquisition of the land and the appropriation of the money to pay for same, that the implied authority is inescapable that said director should proceed in every way provided by law to consummate the acquisition of the land, either by purchase or by such other means as the law provides, one of which is to obtain a certificate of convenience and necessity to condemn under the Eminent Domain Statute, which latter course the director has followed in the instant case. All of said findings of fact as requested by the protestante in paragraph 2 inconsistent with the foregoing are denied.”

From this finding the Utilities Commission concluded as a matter of law that the application was properly filed. The respondents appealed to the Superior Court. Record was transmitted in due course to the Superior Court of Polk County and heard by consent in McDowell County. On the hearing all of respondents’ objections and exceptions were overruled, the order of the Utilities Commission granting the certificate was upheld, whereupon the respondents filed exceptions, made assignments of error, and appealed to the Supreme:Court.

The facts found by the Utilities Commission do not warrant its conclusion of law that the application for the certificate of public convenience and necessity was filed by the North Carolina Wildlife Resources Commission. The certificate is the first step in the exercise of the sovereign power of condemnation. This first step leads, and is intended to lead to the taking of property of the citizen without his consent and often against his will. Only necessity justifies a .taking under such circumstances. That just compensation be made for that which is taken does not make allowance for the sentimental values the citizen attaches to his home. He must submit, and it is proper that he should submit to inconvenience because of the public necessity and for the public good. The Wildlife Resources Commission has been given the power to take land by condemnation when the Utilities Commission has issued a certificate of public convenience and necessity.

The Wildlife Resources Commission is a body of nine members. It is one of the important agencies of the State. It is charged with important duties and with expending large sums of public money. Obviously it can act only by resolution duly passed in a legal meeting. The members must meet as a commission and be in session as such to give validity to its acts. The acts of the Commission must be recorded in its minutes and when so recorded the minutes become the best evidence of the commission’s actions.

Tbe Commission’s records bearing on tbe question for decision here disclose that tbe Commission authorized tbe Director to negotiate for tbe purchase of Green Biver Mountain and Dugger Mountain Areas, and that $75,000 was set up in its budget for that purpose. Tbe wording of tbe resolution raises a serious question as to whether tbe Director was authorized to purchase Green Mountain. Technically, be was authorized to negotiate only. It seems reasonable to assume from.tbe resolution that tbe Commission did not expect the Director to purchase Green Mountain, but only to negotiate for tbe purchase and report tbe result of bis negotiations for tbe final determination of tbe Commission. Nevertheless, if we assume tbe authority was given not only to negotiate but actually to purchase, it by no means follows that tbe Director was authorized to invoke tbe sovereign power of eminent domain and initiate a proceeding to take tbe property by making application for tbe certificate. For tbe Commission to authorize tbe purchase is one thing — to authorize condemnation is something else. Under proper circumstances tbe Commission can purchase when tbe land is desirable for its legitimate purposes. Only tbe force of necessity gives it the right to condemn.

Tbe conclusion of tbe Utilities Commission that tbe application for a certificate of public convenience and necessity was authorized by tbe Wildlife Kesources Commission is not supported by its findings of fact. The Commission was not justified in issuing tbe certificate because of tbe lack of a proper application. Tbe Superior Court committed error in affirming tbe Commission’s orders. The respondents’ assignment of error No. 3 must be sustained.

Beversed.