Paris Mountain Water Co. v. City of Greenville

• Decision Date: 24 July 1916
• Docket Number: 9479.
• Citation: 89 S.E. 669,105 S.C. 180
• Parties: PARIS MOUNTAIN WATER CO. v. CITY OF GREENVILLE.
• Court: South Carolina Supreme Court

89 S.E. 669

105 S.C. 180

PARIS MOUNTAIN WATER CO. v. CITY OF GREENVILLE.

No. 9479.

Supreme Court of South Carolina

July 24, 1916

Gary C.J., and Watts and Gage, JJ., and Sease and Gary, Circuit Judges, dissenting.

Prince Rice, and Moore, Circuit Judges, dissenting in part.

Appeal from Common Pleas Circuit Court of Greenville County.

Suit by the Paris Mountain Water Company against the City of Greenville. From an order dismissing the complaint, plaintiff appeals. Reversed.

See also, 89 S.E. 225.

Cothran Dean & Cothran, of Greenville, for appellant.

Oscar Hodges, J. J. McSwain, and H. J. Haynsworth, all of Greenville, for respondent.

FRASER J.

The city of Greenville is supplied with water by the Paris Mountain Water Company, a private corporation. The city desires to own and operate its waterworks. Not being able to agree upon the purchase of plaintiff's system, the city served notice of condemnation proceedings to take the plaintiff's system at a price to be fixed by the juries. The plaintiff then brought suit to enjoin the proceedings. The defendant demurred to the complaint, and upon a hearing on circuit the complaint was dismissed. From that order this appeal was taken.

I. The appellant attacks the law under which these condemnation proceedings are taken, on the ground that it is special legislation. The Constitution (article 8, § 1) says:

"The General Assembly shall provide by general laws for the organization and classification of municipal corporations. The powers of each class shall be defined so that no such corporation shall have any powers or be subject to any restrictions other than all corporations of the same class. Cities and towns now existing under special charters may reorganize under the general laws of the state, and when so reorganized their special charters shall cease and determine."

The statute law is set forth in the Code of 1912, §§ 3027-3031, and the act of 1914 amending the same. This question, however, is not affected by the amendment. The amendment of 1914 becomes section 3027 of the Code, according to the express language of the statute of 1914.

The statutes (§§ 3027-3030) provide for a condemnation of property for waterworks, by all municipalities. Section 3031 provides:

"The provisions of sections 3027 to 3030, both inclusive, shall apply only to the cities of Charleston, Greenville, and Spartanburg and to other corporations engaged exclusively in supplying water to said cities and to the inhabitants thereof."

It is claimed that the statute really created a class, though only three cities are mentioned. This position is untenable, as Columbia (admittedly in the class) is omitted from the statute. It is said that Columbia owns its waterworks, and therefore is unaffected. It is not what Columbia may want to do, but what Columbia has a right to do, that includes it in, or excludes it from, the class. It may be that Columbia may need a new system or will annex a suburban town having a private waterworks system. Columbia may find it necessary to protect its "watershed" from contamination. In neither event can Columbia condemn, under the statute, and yet Charleston, Greenville, and Spartanburg can condemn under similar circumstances.

Under Nexsen v. Ward, 96 S.C. 313, 80 S.E. 599, and subsequent cases, the Code not only contains the statutory law, but is the only general statutory law of this state. The unconstitutional features of the original act involved here are not eliminated by the Code. The Code, like all laws, must be read as a whole. The Code makes a general rule that applies to all municipalities in section 3027, but section 3031 confines its operation to Charleston, Greenville, and Spartanburg. It says it shall apply to no other cities. Under no rule of construction can the law apply to any other city when the statute says it shall not apply. The rule is well known and indisputable that in statutes and wills subsequent provision governs, and when in conflict, controls a former provision. If the statute had provided a general rule and exempted three cities entirely from its operation, then it might have been said that the exemption alone shall fail. Here the statute declares it shall not apply as a general rule, and that is fatal.

II. Conceding for the present that the right to "purchase and construct" carries with it the right to "condemn," i. e., "condemnation" is "purchase" and still the Constitution says (article 8, § 5):

"No such construction or purchase shall be made except upon a majority vote of the electors in said cities or towns who are qualified to vote on the bonded indebtedness of said cities and towns."

There has been no election. The right to purchase is based upon a vote and if "purchase" means "condemn," then there can be no condemnation, except upon a vote. It is said the voter wants to know the price before he votes to buy. The first vote simply gives power to purchase. It binds no one to buy. He has the right to refuse to buy when he votes for or against the bonds. The voter is not bound to vote for the bonds after he learns the price. If a man wants a piece of property, then he considers the price. If he does not want it, the price does not affect him. That is the logical order, but whether it is logical or illogical, desirable or undesirable, a vote is necessary before a municipality can bind itself by a contract of purchase, or the "owner" by condemnation. When a man calls upon a court to enforce a right that he has not now, but hopes to have in the future, the courts should say to him, "When your right accrues, it will be time enough to seek its enforcement."

To illustrate: A corporation is formed to carry freight by water. Its management desires to extend its business by a railroad, but first desires to know the cost of construction of a railroad over the proposed route. Could any one think that the courts would permit the power of condemnation under the promise that if the prices should be within its reach it would apply for an extension of its charter and in future secure the right it now seeks to enforce? Surely no court would aid condemnation until the amendment of the charter. Of course, in case of a tentative contract of purchase, the vote to purchase and the vote for bonds may be held at the same time. The same will apply to a proposed construction.

III. In Lewis on Eminent Domain (1st Ed.) § 254, it is said:

"All grants of power by the government are to be strictly construed, and this is especially true with respect to the power of eminent domain, which is more harsh and peremptory in its exercise and operation than any other."

"An act of this sort," says Bland, J., "deserves no favor; to construe it liberally would be sinning against the rights of property."

The taking of private property for public use should be done in strict accord with law and only when all the formalities are complied with. It is said individual whim must not stand in the way of public progress and public good. This is true, but there is no public good that is not dearly bought, too dearly at the price of impaired private rights. The line that defines the boundary between private rights and public good should be clearly marked by law and strictly observed. Security in the enjoyment of private property, when acquired, is public good and is that public good, and that supreme public good, that makes all other public good desirable. Security in possession and enjoyment is the incentive to acquirement. Take away the one and you destroy the other.

The condemning corporation should not complain that it is difficult to take property from the possession of another. It should remember that as soon as it takes (according to law) the property of another, its own interest in the security of property will shift and the right to hold that which it has taken will become of paramount importance to the condemning corporation. The fact that the corporation that seeks to condemn is a governmental agency, may be a protection and then again it may not.

IV. It is said, however, that even if the statute is unconstitutional, the Constitution itself gives the right of condemnation when it gives the right to purchase; that condemnation is purchase.

In Cummings v. Coleman, 7 Rich. Eq. 518, 62 Am. Dec. 402, it is said:

"A general rule in the interpretation of statutes is to define the words employed by the Legislature, in their popular sense."

The same rule applies to Constitutions (Kent's Com. vol. 4, p. 441):

"A purchase in the ordinary and popular acceptation of the term is the transmission of property from one person to another, by their voluntary act and agreement, founded on a valuable consideration."

Condemnation has a valuable consideration, but it is in its nature not voluntary. There may be something in the context or general surroundings to show that the word is not used in its popular sense. There is nothing in the context to show that the word "purchase" is not used in its popular sense. The surroundings are the other way. If the state could lend to a private corporation its right of eminent domain for the purpose of supplying its citizens with necessities, comforts or conveniences; allow the private interest to assume all the risks of a new business and all of its expense and then, when "the luxuries of yesterday have become necessities of to-day" and the business is on a secure basis and the patrons secured, who can no longer, or will no longer, be deprived of the service, and then take over the business and carry on that same business in the same way and take to itself the profits at such price as its taxpayers are willing to pay, the intention to do so must appear in express words or by necessary implication. This is no reflection on the...