dissenting:
I dissent. The first and second syllabus points correctly state the law applicable to this proceeding, but, in my opinion, the third syllabus point states an entirely erroneous principle of law. The respondent has jurisdiction of proceedings in eminent domain arising in his circuit, including this one, but he has clearly exceeded his legitimate power by the action taken herein, as shown by the petition and the return.
The respondent relies upon the provisions of Code, 54-2-11, to confer upon him authority for his actions herein, as does this Court as evidenced by the majority opinion. Two other sections of Chapter 54 must be considered, and the pertinent portions of all three are quoted in their *324proper order. Code, 54-2-9, as amended by Chapter 28, Section 9, Acts of the Legislature, Kegular Session, 1933, provides that: “* * * The report shall be signed by at least three of the commissioners, and forthwith returned to the clerk’s office of the court, to be filed with the papers of the case.” Section 10 provides that: “Within ten days after such report is returned and filed as aforesaid either party may file exceptions thereto, * * *.” Section 11 provides that: “If good cause be shown against the report, or if it be defective or erroneous on its face, the court or judge thereof in vacation, as may seem to be proper, may set aside or recommit it to the same commissioners for further report; or other commissioners may be appointed in the manner hereinbefore provided, with or without further notice, as the court or judge may order. If the commissioners report their disagreement, or fail to report in reasonable time, other commissioners may in like manner be appointed. And so again, from time to time, as often as may be necessary.” When read together, it is obvious that the power exercised was not conferred upon the respondent by Code, 54-2-11, until the mandatory provisions of Code, 54-2-9, as amended, requiring the “forthwith” filing of the report of September 14,1955, had been complied with. “Good cause” cannot be shown against a report, nor can it be determined whether such report is “defective or erroneous on its face” until it has been filed. The plain unambiguous language of Section 9 provides that the report shall be forthwith filed in the office of the Clerk of the Circuit Court of the county in which the proceeding is pending. The mailing of the report to the Judge of the Circuit Court of such county is not even a substantial compliance with that requirement.
The relators, the landowners, had resisted the condemnation proceeding from the time it was instituted. They had employed counsel for that purpose, and filed a plea in abatement and special pleas. They had appeared before the commissioners when evidence was taken. Thereafter, they have been excluded from participation *325in the proceeding to take their land. Unless there is inherent, constitutional or valid statutory authority for such action, their property is being taken without due process of law. Only Code, 54-2-11, is relied upon for such authority. In the majority opinion, the Court said: “An analysis of Code, 54-2-11 hereinafter quoted confers on the Judge of a Circuit Court or the Judge thereof in vacation the power to set aside or recommit to the same commissioners a defective or erroneous report with or without further notice.” Even if the filing of the report was not mandatorily precedent to any further action by respondent, Code, 54-2-11, confers no such power upon respondent as the majority opinion delegates to him. At the risk of repetition, the first sentence of Section 11 is again quoted: “If good cause be shown against the report, or if it be defective or erroneous on its face, the court or judge thereof in vacation, as may seem to be proper, may set aside or recommit it to the same commissioners for further report; or other commissioners may be appointed in the manner hereinbefore provided, with or without further notice, as the court or judge may order.” It will be observed that this sentence is divided by a semicolon. First, authority is given for the court or judge thereof to set aside or recommit the report to the same commissioners for further report if good cause be shown against the report, or if it be defective or erroneous upon its face. Following the semicolon is the provision that: “or other commissioners may be appointed in the manner hereinbefore provided, with or without further notice, * * * .”
In the case of McLeod v. Nagle, Comm., 48 F. 2d. 189, a deportation proceeding was based upon the fact that McLeod, an alien, had been convicted of a felony previous to his entry into the United States. The statute involved (T8 §155, 39 Stat. 889, §19) reads in part as follows: “That at any time within five years after entry, any alien who at the time of entry was a member of one or more of the classes excluded by law; any alien who * * there follows several clauses involving anarchy, becoming *326a public charge, of prostitution, et cetera, each set off by a semicolon, then “any alien who was convicted, or who admits the commission, prior to entry, of a felony or other crime or misdemeanor involving moral turpitude; * * * McLeod admitted the conviction, but contended that the order of deportation was void, inasmuch as the proceeding was not instituted within five years. The court, in holding the five year limitation did not apply to the clauses separated from the initial phrase by semicolon, had this to say: “The Oxford Dictionary, after defining a semicolon, says that it is used for ‘marking off a series of sentences or clauses of co-ordinate value.’ * * * According to this statement of usage every clause separated by a semicolon in the section under consideration is co-ordinate with each of the others, and therefore must each be read separately with the verb * * *. Under this construction the beginning phrase, ‘at any time within five years’, cannot be carried over to each of the succeeding clauses; each of the latter must be modified only by the time limit specifically stated therein, and, if no time limit is expressed, then the section must be interpreted to mean ‘at any time after the entry of the alien into the United States.’ * * * ‘Again, Ward’s Sentence and Theme’ * * * at page 331 says the semicolon ‘shows that two sentences, each of which could stand alone, have been combined into one sentence’; and continues ‘a semicolon is used to show that what follows is grammatically independent, though closely related in thought.’ ”
“From the point of view of strict grammatical construction, therefore, it is evident that, since the semicolon has been used to set off the various subdivisions of the section, the initial phrase, ‘within five years after entry’, cannot be presumed to carry over into the subsequent clauses that are separated from the initial clause by a semicolon. * * *”
Conversely, the writer of this dissent is of the opinion that, in the instant case, the words “with or without *327notice” in the second clause of the sentence cannot revert back. “In the manner hereinbefore provided” has reference to Code, 54-2-6, not to the part of Section 11 which] precedes the semicolon. The language “with or without notice” refers to the appointment of other commissioners, under Code, 54-2-6, and obviously does not confer upon the “Judge of a Circuit Court or the Judge thereof on vacation the power to set aside or recommit to the same commissioners a defective or erroneous report with or without further notice.”, as stated in the majority opinion. Such a fallacious conclusion, as to the meaning of Section 11, can be arrived at only by disregarding the plain language thereof, as well as the elementary principles of statutory and grammatical construction.
It is not contended by the return, or in argument or brief, that the report of September 14, 1955, is not in proper statutory form. The third syllabus point in State Road Commission of West Virginia v. Georgia McMurray, 103 W. Va. 346, 137 S. E. 530, states: “The rule that the finding of commissioners appointed in eminent domain proceedings to assess damages is not to be disturbed unless good cause be shown against it by clear proof, applies where the error complained of does not appear upon the face of the report.” To show good cause against such a report, when it is not erroneous or defective on its face, requires evidence adduced in the courtroom of the judge’s chambers with all litigants having an opportunity to be present.
The action taken by the respondent in the condemnation proceeding, subsequent to the filing of the petition in this Court, seeking a rule in prohibition, and prior to the service of the rule upon respondent, raises a question as to whether prohibition is the proper remedy. However, such action in regard to the second and third papers referred to in the majority opinion, before the original report of the commissioners was filed, and which has not yet been filed, was not only palpably and plainly erroneous, but was also clearly in excess of his legitimate *328power, and for that reason prohibition lies. Mandamus to require the respondent to file the original report in the clerk’s office might have been the more appropriate remedy. The relators could have proceeded in both prohibition and mandamus. However, I would award the writ prayed for herein, prohibiting the respondent from filing in the clerk’s office any of the reports except the original report of September 14, 1955, or taking any other action in the case until that report was filed. If the report was not subsequently filed, mandamus would lie to require such action.
I am authorized to state that Judge Haymond joins in this dissent.