there was a strong sentiment in the Com-
mittee to do so. However, we felt upon four
or five afterthoughts and reflections that
historical site was probably apropos and
worthy of consideration but did not belong
in the natural resources section. The in-
tent of natural resources was to protect,
conserve those matters that nature has
created, birds, bees, and flowers, and things
of that sort but not historical sites, which
seemed to be a different basket of fruit. We
did not want to become entangled in our
own self-spun cobwebs, where perhaps this
whole thing would be cluttered up.
THE CHAIRMAN: Delegate Hanson.
DELEGATE HANSON: Scenic beauty,
then, is construed to be in this clause on
scenic beauty, natural beauty?
DELEGATE BOYER: That is right.
DELEGATE HANSON: And not archi-
tectural?
DELEGATE BOYER: Not manmade.
THE CHAIRMAN: Delegate Adkins.
DELEGATE ADKINS: I would like to
ask the Chairman if any consideration had
been given to whether or not there is any
potential conflict between this provision
and the provision relating to taking prop-
erty without just compensation; more
specifically, since the legislature has been
mandated to do these various things, would
it be possible, for example, for the legis-
lature to take extensive scenic easements
over existing private property without just
compensation?
DELEGATE BOYER: I think not, Judge
Adkins. We got into this rhubarb and
rumble about the power of eminent domain,
and there were some state constitutions
that had it included; but to make a long
story short, after long consideration and
discussion about it, we concluded that cer-
tainly our Declaration of Rights somewhere
in the Constitution would prohibit taking
any property without just compensation
and we would not get into the problem of
eminent domain in this section.
THE CHAIRMAN: Are there any fur-
ther questions for purposes of clarification?
Delegate Adkins.
DELEGATE ADKINS: Is it quite clear
that the taking of a scenic easement is a
taking of property in the sense that the
language is used in the Bill of Rights?
DELEGATE BOYER: It is clear to me,
Judge. |
THE CHAIRMAN: Delegate Adkins, I
might mention that the proposal which will
probably be reported by the Committee on
Personal Rights provides that no private
property shall be taken or damaged for
public use.
Delegate Hardwicke.
DELEGATE HARDWICKE: Mr. Chair-
man, I wonder if you would clarify whether
you intend this to be a mandate to the
legislature or whether you really are not
possibly considering this as a policy state-
ment, something to the effect that it shall
be the policy of this State that these things
shall be done. My question to you, follow-
ing the questioning of Delegate Schneider,
is whether or not if the legislature does
not act, some kind of action can be taken
against them; and since you apparently
think not, I wonder if this is not in the
policy area.
DELEGATE BOYER: Perhaps I was
not on the same wave length with you,
Delegate Hardwicke. It certainly is our
intention to make this mandatory. "The
General Assembly shall by law provide,"
et cetera is language requiring action. I
understand to indicate in response to the
previous question that there is recourse
through the courts should the General As-
sembly fail and neglect to do so; that it
is mandatory.
THE CHAIRMAN: Delegate Hardwicke.
DELEGATE HARDWICKE: How would
you propose that a court would frame the
decree to the legislature compelling them
to pass legislation of this kind?
DELEGATE BOYER: I think you
have to take the case before it, the facts
of the case before it. I do not think the
court can tell the legislature to make any
broad catchall mandatory provision by de-
cree. I think that in a particular case in
which a citizen or a taxpayer felt ag-
grieved, upon application to the court for
recourse, the court could then, as it has
done so many times in reapportionment and
other matters, compel the State, the Gen-
eral Assembly to do so.
THE CHAIRMAN: Delegate Hardwicke.
DELEGATE HARDWICKE: And then
if the legislature did not frame an approp-
riate piece of legislation, would the court
then be empowered to draft legislation as in
the case of redistricting or reapportion-
ment?
DELEGATE BOYER: This would be a |
