# Light v. City of Danville > Supreme Court of Virginia · March 11, 1937 · 168 Va. 181 URL: https://www.frixlaw.com/law-library/cases/9579256 ## Case - **Full name:** Harry L. Light v. City of Danville - **Court:** Supreme Court of Virginia - **Decided:** March 11, 1937 - **Citations:** 168 Va. 181; 190 S.E. 276 - **Precedential status:** Published - **Opinion:** Dissent by Campbell - **Judges:** Campbell, Holt, Hudgins, Gregory, Eggleston, Spratley - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9579256 ## How later opinions describe it (automated extraction) - holding that a power plant constructed to supply power to the locality in which it was built does not become a private use when power generated there is sold also to persons outside that locality ## Opinion text Campbell, C. J., dissenting: I am unable to agree with the conclusion reached in this case for the very good reason apparent on the face of the record, to-wit: it permits the talcing of private property for a private use. Section 8 of the city ordinance needs no construction. It is as plain as the English language can make it. The purpose for which this plant is to be erected, is set forth as follows: “The new hydro-electric light and power plant and transmission lines shall be constructed for the use of the city, its inhabitants and customers. (Italics added.) In view of the admissions and contentions of counsel for the city upon the argument of the case, we conclude that the insertion of the word “customers” was not an accident. Counsel admitted that the city was now selling electric power to its customers, residing in the adjoining county of Halifax, and contended that under the grant to supply customers the city had the right to supply power to any community within the Commonwealth. The test of the constitutionality of a statute is not what has been done, but what may be done. Richmond v. Carneal, 129 Va. 388 , 106 S. E. 403 , 14 A. L. R. 1341. If we can judge the future by the past, it is conceivable *214 that the city of Danville may decide to supply its inhabitants power generated at its present plant, and supply its customers throughout the State with power generated at its proposed plant. He would, indeed, be a bold man who would assert that in the latter case the use was public. In Nichols v. Central Virginia P. Co., 143 Va. 405 , 130 S. E. 764, 767 , 44 A. L. R. 727, it is said: “ ‘A use to be public must be fixed and definite. It must be one in which the public, as such, has an interest, and the terms and manner of its enjoyment must be within the control of the State, independent of the rights of the private owner of the property appropriated to the use. The use of property cannot be said to be public if it can be gainsaid, denied, or withdrawn, by the owner. The public interest must dominate the private gain.’ ” Under the law, the city of Danville is absolved from supervision by the State Corporation Commission, and can fix its own rates. If the proposed customer resides in Halifax county, he must take the service at the rate fixed by the city, and he must run the risk of being denied service whenever it pleases the representative of the city. That being true, of course the use as to the customer is private and not public. It is unquestionably true that a municipality has the power to establish an electric plant within or without its corporate limits, and may for that purpose condemn necessary lands. It is likewise true that excess power may be sold to the residents of an urban community, but when power is thus sold, it is justified on the ground that it is merely incidental, and not an integral part of the output of the plant. The question herein involved is not a new one. In Miller v. Pulaski, 109 Va. 137 , 63 S. E. 880 , 22 L. R. A. (N. S.) 552, it appears that the city undertook to establish a hydro-electric plant. The General Assembly, Acts 1906, p. 460, ch. 262, amended the charter of the town of Pulaski. As amended, the town was given authority, “To establish, improve, or enlarge water works and electric light works, *215 or gas works, or to construct and equip and operate new electric light plants or water works, electric wires, poles, pipes, and other appurtenances to said plants within or without the corporate limits of said town for the purpose of supplying the inhabitants of said town, or other persons, companies or corporations with water, electric lights or power; # # #.” This court, speaking through Keith, President, said: “The act before us embraces an object which is constitutional and one which is unconstitutional, and they are so united as, in our judgment, to be inseparable. We cannot suppress the grant of the power to condemn for private purposes and maintain the act so far as it authorizes a condemnation for a public use, * * *.” This case was reversed because Pulaski was given the power to condemn for the purpose of supplying light, etc., to “other persons, companies or corporations.” Danville is given a still more comprehensive right. It is true that Pulaski was afterwards given the power to condemn. Miller v. Pulaski, 114 Va. 85 , 75 S. E. 767 . But it was not until these objectionable powers had been stricken out by an act of the Legislature. I believe in progress and likewise in the application of the rules of common sense to the solution of economic problems, but we should not in the name of progress, nuL lify the fundamental law. Holt, J., concurs in dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9579256. Public record. Not legal advice.