Virginia-Western Power Co. v. Kessinger , 122 Va. 135 ( 1917 )

Sims, j.,

after making the foregoing statement, delivered the following opinion of the court:

The first, third and fourth exceptions above noted will be considered in their order as stated below.

1. In regard to the first (1st) exception, as these causes have to go back to the court below for further proceedings and the same question will probably arise concerning what, if any, instructions the trial court, if asked by either party* should give to new commissioners in such proceedings, we deem it proper to say that we think the statute on the subject (subsection (6) of section 1105-f, Pollard’s Code), is. sufficiently specific as to what were the duties of the commissioners in the premises, and that if the orders of court,, appointing the commissioners substantially contain instructions as to what all of such duties are as prescribed by statute, as they did in the instant case, that is sufficient; and the trial court may, and properly should, refuse to give any further instructions defining what such duties are. A contrary rule would tend to the presentation to trial courts of lengthy commentaries on the statute law involved and the urging of same upon the court for the adoption, and the simple and plain meaning of the statute might be obscured rather than elucidated thereby, and the result might be confusing ' to the commissioners instead of being helpful to them in informing them of their duties. Not so, however, as to the manner in which they should discharge their statutory duties. We think it would be helpful to the commissioners and greatly tend to the proper discharge of their duties if the courts appointing them would, on their own motion, or upon request of any party to the case, instruct the commissioners as to what character of testimony and argument or statements of counsel' are admissible or inadmissible before them; and caution them not to discuss the case in any aspect of it with any one other than among themselves or allow it to be discussed in their presence, except when together assembled for and engaged in the discharge of their duties in public as commissioners as the statute provides. These commissioners practically discharge the duties of juries, as we had occasion to remark in effect in the case of New River, etc., Railway Co. v. Honaker, supra, and every precaution should be taken by such commissioners and by the courts to preserve public confidence in their findings. Neither they, however honorable ■men they may be, by careless and thoughtless disregard of the proprieties, nor • others, whether acting designedly or with the purest of motives, should be allowed to so conduct themselves in any way as to cast suspicion upon the integrity of the commission or upon its decisions.

2. In regard to the third (3rd) exception aforesaid:

While we are satisfied that there was no private communication between counsel for the land owners and any of the commissioners which was intended to improperly influence the later or which did so, yet we think the' practice of counsel in a case notifying the commissioners of their appointment in condemnation proceedings should be discontinued. It is a position in which counsel should not be put or put themselves. It is a difficult position to fill with absolute absence of some expression which may have or seem to have the ulterior object, or effect of inducing a special feeling of favor on the part of the commissioner communicated with toward counsel having the communication and his client, especially when the communication is verbal, and only in a less degree when it is in writing. The notice of their appointment and of the date fixed for the view, should be communicated to the commissioners, (or to the minimum number authorized to act, if only such number is desired to act), by the clerk or other disinter-

Led person, as the order of court may specially direct by consent of all parties to the case, or, in the absence of such consent, by a certified copy of the order being delivered to the commissioners by the sheriff of the county or sheriff of sergeant of the city in the court of which the proceedings are had.

3. In regard to the fourth (4th) exception aforesaid:

The causes before us fall within the rule on the subject laid down in the case of New River, etc., Railway Co. v. Honaker, supra, unless it can be distinguished on the ground that the entertainment of the commissioners in the instant cases was by the free and untrammelled consent of all parties, by counsel.

There are but few things which may not be done in civil causes by consent of all parties who are affected.

If prior to the possibility of any information of it having reached any of the commissioners, the land owners or their counsel had conferred with the power company or its counsel on the subject, and the power company, in person or by counsel, had consented to the entertainment being given, a different case would be presented, to which the rule aforesaid might not apply. But for reasons of public policy which rise above all personal considerations, or considerations of the effect in particular cases, we have no disposition to relax in any degree the rule referred to as heretofore established. And it is manifest that in any case where information has come to commissioners in condemnation proceedings that entertainment has been provided for them by parties to the proceedings before counsel for other parties thereto have been informed of the proposed entertainment and their consent thereto is asked, the latter and their client are not in a position to refuse such consent untrammelled. If they refuse consent they are taking an attitude which, would inevitably be offensive to the commissioners, because indirectly reflecting upon their integrity. The risk of injurious result is obvious. And since the evidence in the proceedings before us tends to show that the situation predicated in the next preceding sentence existed when said consent was asked as aforesaid, we do not think that the rule referred to should be relaxed In the instant causes, and we feel that to do so would be to establish an unwise precedent. It is true that while counsel for the power company urge this position in the petition and in their brief, they did not take it at the time consent was asked to the proposed entertainment. But counsel was given but scant time for reflection and besides did not then know of the then recent ruling of the court aforesaid, and it seems to us that it would not be just or right to apply any rule of estoppel or waiver of right to such a case.

For the foregoing reasons we are constrained to the opinion that there was error in the action of the trial court In overruling the fourth exception aforesaid to the report of the commissioners for which these causes must be reversed. The judgments complained of will therefore be set aside and annulled and these causes remanded to the court below for further proceedings to be had therein not in conflict with the views expressed in this opinion.

Reversed.