Rudee Inlet Authority v. Bastian

Carrico, J.,

concurring in part and dissenting in part.

I agree that the decree of the trial court should be affirmed because the powers of eminent domain, granted in the Rudee Inlet Authority Act, go beyond constitutional limitations and are unconstitutional. I would go further. I would sustain the assignment of cross-error and hold that the establishment of the facilities described in the Act is not for a public purpose and that the whole Act thus goes beyond constitutional limitations and is unconstitutional.

I take this position for what, to me, is a very obvious reason. There is nothing in the Act to indicate that the facilities, when established, are to be held and operated for use by the public. So far as the Act is concerned, not only may private property be taken by eminent domain for private use, as the majority holds, but public funds, as well, may be expended for private use and the enjoyment of the facilities be limited to a select few.

While the decision of the majority will prevent the Authority from condemning private property and putting it to private use, there is nothing to prevent the Authority from acquiring private property, with public funds, by purchase or lease and putting it to *914private use. This the Authority may do, so far as the Act and the majority opinion are concerned, either by operating the facilities as a private yacht club itself or by selling or leasing the facilities to a private owner who could operate them as a private venture for his personal profit.

The situation here is quite different from that in the case of Opinion to the Governor, 76 R. I. 365, 70 A. 2d 817. There the act creating the authority contained a declaration of public purpose. The fact that the marina there authorized was to be for use by the public was of significant importance. It was stated, “The promotion of service to the public is considered to be the primary object of guch a development.” And, quoting 1 Dillon, Municipal Corp., 5th Ed., 506, § 269, the court said, “The construction of docks and wharves by a municipality for general public use is a public purpose. . . .”

The act before the Rhode Island court provided for that general public use which is of such crucial importance in situations like this. The act before us does not provide for such general public use and there is nothing in the Act to indicate that “promotion of service to the public” is a primary object of the development authorized, as was true in the Rhode Island case.

I cannot equate the establishment of the facilities here in question with the development and operation of harbor facilities that concerned us in the case of Harrison v. Day, 200 Va. 764, 107 S. E. 2d 594.1 see little comparison between the small facility here envisioned for the enjoyment of the limited class owning pleasure craft and the development of major harbor facilities for general public use, through which food, fuel and the other necessities of life may flow freely in the stream of commerce.

The majority opinion states that a declaration by the General Assembly that a contemplated use is a public one is presumed to be right. I heartily agree. But the majority opinion admits that the Act before us does not contain such a declaration as, indeed, it does not. Nonetheless, the majority opinion attaches the presumption of rightness to this Act because the powers granted to the Authority are “of a character sufficient to declare a public use.” With that I disagree.

The mere fact that the Authority is empowered to construct facilities for pleasure craft is not enough to sustain the validity of the Act. The facilities here contemplated to be established can be, and ordinarily are, best provided by private enterprise.

An examination of the powers granted to the Authority discloses, *915with but one real exception, that the Authority is going to be performing the same function as any private yacht club incorporated in this state. That one exception is the power to acquire property by condemnation, and that power has now been taken away from the Authority.

Without the usual, necessary declaration of public use, the Act is entitled to no presumption of rightness. Stripped of that presumption, the Act stands before us in the bare bones of its invalidity. I am of opinion that the Act never drew the first breath of constitutional life, and we should not now attempt to breathe life into it.