concurring.
I am in full accord with the views expressed and the result reached in the majority opinion. However, I cannot condone by silence the practice employed in this case and in others which have come before us from some jurisdictions in the State, where the parties are permitted to summon the commissioners to explain their report and testify as to how they arrived at their award, and to impeach such award by attempting to show that the commissioners misunderstood or misapplied the court’s instructions.
In Virginia the right of eminent domain is recognized and preserved in our Constitution (§ 159, Virginia Constitution, 1902), and has been exhaustively treated by statute (Vol. 5, Title 25, Eminent Domain, Virginia Code, 1950), which supersedes the common law. Hicks v. Anderson, 182 Va. 195, 28 S. E. (2d) 629.
Generally there are two methods by which damages to lands sought to be condemned are ascertained. In some jurisdictions the jury system is employed while in others commissioners are appointed to ascertain the damages. Except in condemnation proceedings instituted by the Federal Government in the courts of this State, under Code, § 25-56, etc., and under some special acts, where provisions are made for a jury trial, the amount of the just compensation due the property owner is fixed by commissioners appointed by the court. Code, § 25-12. The latter section provides that if a bona-fide effort to purchase the property fails then upon application the court shall “appoint five disinterested freeholders, residing in such county or city, any three or more of whom may *280act, for the purpose of ascertaining a just compensation”, etc. Section 25-13 provides that the court shall set a date and hour for the meeting of the commissioners, and § 25-16 prescribes the oath which shall be taken by them. Section 25-17 provides that “the commissioners, after viewing the property # # affected by the construction and operation of the works of such company, and hearing such proper evidence as may be offered by the parties touching the compensation and damages, shall ascertain what will be a just compensation * # # and shall make report to the following effect * * A form of the report is thereinafter set out in detail. Section 25-18 provides that “the report * * *shall be * * * returned to the clerk’s office * * * , where it shall remain for at least thirty days, after which, unless good cause be shown against the report, the same shall be confirmed* * .
We have held that the report of commissioners is allowed great weight and if no illegality or irregularity appears on its face it is prima facie evidence of the propriety and correctness of the award and it must be confirmed “unless good cause be shown against the report”. Kornegay v. City of Richmond, 185 Va. 1013, 41 S. E. (2) 45. We have also held that where commissioners have been instructed, as in this instance, without objection from either party, as to the elements of damages to be considered by them, and they have made a report in accordance with such instructions, neither party should complain that they did what they were told to do. Tidewtater R. Co. v. Cowan, 106 Va. 817, 56 S. E. 819.
In the instant case the formalities of the above statutory proceedings were complied with, and within thirty days after the reports had been lodged in the clerk’s office the condemner filed its exceptions. In them it prayed that the commissioners be required to appear in court “for the purpose of explaining their aforesaid report and advising the court as to how they made their awards.”
Trial courts charged with the duty of selecting commissioners, as contemplated by statute, usually pick the highest type (freehold) citizens. Commissioners so selected serve not of their own volition but because the court has ordered them to do so. Ordinarily when commissioners are being selected, if there is valid objection raised by either party to a commissioner, his name is withdrawn and another selected. This usually results in the appointment of a commission free from objection.
It is inconceivable that after these precautions have been taken, *281and a commission free from objection has met, considered the evidence, mandatorily viewed the premises, heard the instructions of the court, the permissible argument of counsel, and, under oath, returned its award to the clerk’s office, that they should, in the absence of some alleged fraud, chicanery, or corruption, be required to appear before the court “for the purpose of * * * advising the court as to how they made their awards * * There is no provision in the statute authorizing such practice.
Statutes conferring the power of eminent domain are to be strictly construed and the authority conferred must be carefully observed. Charles v. Big Sandy &c. R. Co., 142 Va. 512, 129 S. E. 384. In the construction of such statutes every reasonable doubt is to be resolved against the right; any rights claimed must be affirmatively embodied in the statute, as silence is negation; and unless both the spirit and the letter of the statute clearly confer the right claimed it cannot be exercised. School Board v. Alexander, 126 Va. 407, 101 S. E. 349. See Richmond v. Childrey, 127 Va. 261, 103 S. E. 630; West v. Anderson, 186 Va. 554, 42 S. E. (2d) 876.
As a matter of course, for reasons of public policy, commissioners and jurors should be kept free from every suspicion of influence by any party to the litigation. New River &c. R. Co. v. Honaker, 119 Va. 641, 89 S. E. 960, Ann. Cas. 1917C 132. In this instance there was no suspicion of influence or misconduct of any kind alleged nor attempted to be shown.
The reports filed in this case needed no “explaining”; they were perfectly plain. Both reports responded in the language of the statute (§ 25-17) and answered all inquiries directed. Yet, Stanley N. Brown, one of the commissioners, was permitted to be called as a witness by the condemner for the ostensible purpose of explaining the report and “advising the court as to how they made their awards”. The harrowing examination of this commissioner covered sixteen printed pages and was a clear attempt to show that the commissioners had misunderstood or misapplied the instructions of the court.
The only color of authority for such practice is the language in Code, § 25-18, that “unless good cause be shown against the report, the same shall be confirmed”. Crawford v. The Valley R. Co. (1874), 25 Gratt. (66 Va.) 467, 470; Washington, etc. R. Co. v. Switzer (1875), 26 Gratt. (67 Va.) 661, 664. In an attempt to show “good cause * * * against the report”, or that the report is based upon erroneous principles, the practice of examining com*282missioners has grown up in some jurisdictions of the State. The propriety of such practice has never been fully discussed or inquired into by this court. The nearest direct approval of the practice is the dictum in Lanford v. Air Line Ry. Co., 113 Va. 68, 74, 73 S. E. 566, where the court, after having held that the point was not properly preserved by a bill of exceptions, said “* * * (T)his evidence was admitted for the purpose only of explaining and making clear the report of the commissioners, and for that ruling authority is abundant.” However, in 6 M. J., Eminent Domain, § 78, p. 766, the dictum in the Lanford case is cited as the sole authority for the proposition that the testimony of commissioners is receivable for the purpose of explaining and making clear their report. Even the Lanford case does not contemplate an examination for any other purpose.
Undoubtedly the practice of examining commissioners for the purpose of explaining or even impeaching their award has been, without objection, impliedly approved in a number of Virginia cases. Tidewater Ry. Co. v. Cowan, supra, (report confirmed; judgment affirmed); Appalachian Power Co. v. Johnson, 137 Va. 12, 26, 27, 119 S. E. 253, (report confirmed by lower court, but award set aside on appeal on testimony of commissioners); Chairman Highway Commission v. Fletcher, 153 Va. 43, 149 S. E. 456, (report confirmed but judgment reversed); Talbot v. City of Norfolk, 158 Va. 387, 393, 163 S. E. 100, (report confirmed, but judgment reversed on appeal on testimony of commissioner); Kornegay v. City of Richmond, supra, (report confirmed, judgment affirmed). In my opinion, in so far as these cases lend approval to the practice of summoning commissioners for the purposes indicated they should be disapproved.
Apparently the majority rule outside of Virginia is that the impeachment of a commission’s award is placed upon the same basis as the impeachment of a jury’s verdict, in which a juror may not be examined as to whether he or his colleagues properly applied the court’s instructions. 29 C. J. S., Eminent Domain, § 317, p. 1353. The courts generally take the view that a report may be set aside upon the showing that the commissioners adopted erroneous principles. 29 C. J. S., Eminent Domain, § 309, pp. 1341-42. But this should appear from the transcript of the evidence in order to ascertain whether or not improper evidence had been admitted, and for the further purpose of ascertaining whether the damages were speculative as alleged.
*283It is true that under our procedure the commissioners are not bound by the opinions of experts or by the apparent weight of the evidence and may view the property affected and form their own opinion of the amount of compensation due. Kornegay v. City of Richmond, supra. But in so doing, what elements they should consider and what principles they should apply are matters to be controlled by the court’s instructions.
There is, however, no express provision in our statute which authorizes a party to the litigation to summon commissioners and subject them to unreasonable examinations regarding every detail of their report for the purpose of impeaching their award, as was done in this case. Such practice is not permitted in some courts of this Commonwealth, and in my opinion it should not be sanctioned by this court.
Eggleston and Spratley, JJ., concur in this opinion.