dissenting. This is an eminent domain case and the majority is consistent with past judicial approaches which are liberal and approve most claims of the power of eminent domain. The legislation which is the basis of the asserted power of eminent domain is arbitrary at the least, vague at best, and cannot in my judgment be the basis of the proposed condemnation. If the General Assembly intended what has been approved, then it was neglectful of its duty.
What has been approved is that a corporation, a subsidiary in fact of a foreign partnership, has filed articles declaring it has the power of eminent domain. There is no claim by the corporation that it is a pipeline company; indeed, in all candor the corporation declares its purpose is to simply condemn rights of way over Arkansas land and then transfer the property to the foreign interests, that will undoubtedly construct a pipeline. What will happen thereafter can only be speculated upon. My point is that the General Assembly has not passed an act authorizing this pipeline, declaring it in the public interest, defining the conditions under which it can condemn Arkansas land, and limiting or expanding its authority or power in any way. It is a claim for a blank check which has been duly signed by the majority.
Surely somewhere we have gone astray. To begin with, Arkansas recognizes this sovereign right of eminent domain as resting in the General Assembly. At the same time it recognizes “[T]he right of property is before and higher than any constitutional sanctions...” ARK. CONST, art. 2, §§ 22 & 23. Such constitutional provisions allowing the exercise of eminent domain should be liberally construed in favor of the property owner. Delaware, L. & W. R. Co. v. Morristown, 276 U.S. 182 (1927). Both parties concede the only authority the corporation can claim for its exercise of the power of eminent domain is under Ark. Stat. Ann. § 73-1901, passed in 1921 with an emergency clause. It reads in its entirety:
All pipeline companies operating in this State are hereby given the right of eminent domain and are declared to be common carriers, except^pipelines operated for conveying natural gas for public utility service. All gas lines or companies operating within the State who render a domestic or general service to the public in furnishing and sale of gas are hereby required to buy or furnish from the lowest or most advantageous market. Failure to do so shall deprive them of the difference in price between such market and the one of which purchases are made.1
It is fundamental that such statutes must be strictly construed in favor of the landower because they are in derogation of the common law. City of Little Rock v. Sawyer, 228 Ark. 516, 207 S.W.2d 30 (1958).
Does this statute mean any corporation can file articles of incorporation with the Secretary of State declaring itself a pipeline company, and then proceed to condemn land, without any limitations or restrictions whatsoever, and then build a “pipeline” for any purpose? Does it mean any corporation claiming to be a “pipeline” company, no matter what will be carried (water to Texas would be a cruel example) has a forehand stamp of approval? Evidently that is so because that is what the majority has approved.
The fault does not lie with the appellee corporation because, no doubt, if it were required to obtain specific authority to build a coal-slurry pipeline it would probably be found to involve a proper public purpose. The fault lies in the historical attitude of the legislature and courts towards the exercise of the power of eminent domain. When this state and country were expanding and developing, “progress,” being deemed wise, was aided and encouraged by a liberal attitude toward the exercise of the power. Precedents, both legislative and judicial, while giving lip service to holding the power in check, actually allowed the power to run unrestrained. No longer can we afford that luxury. Land, trees and water are being rapidly depleted and changed from their natural state; “progress” can no longer be automatically equated with the public good.
At the least it is time to give more than lip service to the law. Rather than construe the constitution and acts of the General Assembly liberally to favor the exercise of the power of eminent domain, as we have done and continue to do, it is time to restrict the exercise of this power as it should have been restricted from the beginning.
The statute in issue, in my judgment, cannot be used by a corporation contemplating building a pipeline because it is too arbitrary and vague. The General Assembly cannot by fiat make any use of property a public use; any attempt to do so arbitrarily can be declared invalid by the courts. Walker v. Shasta Power Co., 160 F. 856 (9th Cir. 1908). In fact, the statute makes no declaration a pipeline is for a public purpose, or defines what kinds of pipelines are for a public purpose.
When a fertilizer pipeline was to be constructed in Arkansas, a specific grant of authority was obtained from the General Assembly. See Ark. Stat. Ann. § 73-1904. At the very least that is the type of legislation I would require for a “pipeline” to use this most powerful legal authority. Otherwise, a private individual or company and not the General Assembly nor the courts, decides when, where, and how the power of eminent domain will be used. That is the ultimate corruption of a power reserved solely for a sovereign state.
Our hands have not been idle in this matter. In Patterson Orchard Co. v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S.W.2d 1028 (1929), and Southwestern Gas & Electric Co. v. Patterson Orchard Co., 180 Ark. 148, 20 S.W.2d 636 (1920), we did approve, in a sense, the legal approach used by the appellee corporation. And in Starr Farms, Inc. v. Southwestern Electric Power Co., 271 Ark. 137, 607 S.W.2d 391 (1980), we said the Patterson decisions had become a “rule of property,” which is another way of saying we were probably wrong but it is too late to change; but, in those cases the subsidiary was a bona fide electric utility company subject to existing regulations of an Arkansas agency. There is no such control over the subsidiary in this case. It declares its authority; it decides how it will exercise its authority, how much land it will need, and where it will go. That is not to say it will, when operating, be free from regulation, but its use of the power of eminent domain, the central issue in this case, is decided and formulated by it — not the General Assembly.
I would not permit the corporation to proceed under Ark. Stat. Ann. § 73-1901; I would require a specific grant of authority from the General Assembly since that is what the law requires.
Adkisson, C.J., and Purtle, J., join in this dissent.The act may have been passed because a pipeline operating in Arkansas needed a statute to condemn property, hence the emergency clause.