Bookhart v. Central Elec. Power Co-op., 16514

CourtUnited States State Supreme Court of South Carolina
Citation219 S.C. 414,65 S.E.2d 781
Docket NumberNo. 16514,16514
PartiesBOOKHART v. CENTRAL ELECTRIC POWER COOPERATIVE, Inc.
Decision Date12 June 1951

Marshall B. Williams, and Moss & Moss, all of Orangeburg, for appellant.

Brown & Jefferies, Barnwell, Robert McC. Figg, Jr., Charleston, T. B. Bryant, Jr., Orangeburg, for respondent.

PER CURIAM.

This action by appellant as plaintiff was to enjoin the prosecution of a statutory proceeding by respondent to condemn for its use a right-of-way over appellant's farm and timber land for the erection and maintenance of a transmission line. It is planned to connect two of respondent's substations and over it will be conducted electric power which will be purchased from South Carolina Public Service Authority and delivered to respondent's members and customers. The local cooperative now obtains energy at wholesale from a private corporation, South Carolina Electric & Gas Company, which also supplies the inhabitants of the nearby incorporated town of Elloree. No franchise right of that company is involved.

Light upon the controversy is afforded by reference to South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, 215 S.C. 193, 54 S.E.2d 777. That case was an unsuccessful effort by the named plaintiff power company and others to prevent the construction of the transmission lines for one of which Central Electric Power Cooperative, Inc., now seeks a right-of-way over appellant's property. Central Electric was, in effect, an unnamed party to the cited action, just as S. C. Public Service Authority is for all practical purposes an unnamed party to the present action. The former decision largely foreordained this.

The instant appeal is from the judgment of the Circuit Court whereby temporary injunction was dissolved and injunction pendente lite refused. The pleadings and counter affidavits were considered by the lower Court and have been here, for the purpose of ascertaining the facts and legal positions of the parties.

Appellant's main contentions are that the attempted exercise of the power of eminent domain is in violation of the State and Federal constitutions because (1) the use to which the property is proposed to be put is private rather than public, and (2) there is no prima facie showing of reasonable necessity for the taking.

Is the transmission of electric power by respondent a public purpose? It was said of respondent in South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, supra, 215 S.C. at page 199, 54 S.E.2d at page 779, as follows: 'Central Electric Power Cooperative, Inc., is a cooperative membership corporation, formed under the Rural Electric Cooperative Act of 1939 (now Sections 8555-91 to 8555-123 of the Code) for the purpose of supplying, etc., electricity in rural areas and exempt from all control of the Public Service Commission. Central Electric is nominally sponsored by fourteen cooperative membership corporations which have distribution systems, financed by the Rural Electricification Administration of the United States, in sections of the State in which the plaintiff power companies are also engaged in business. It was formed to borrow funds from the federal Rural Electrification Administration for the cost of construction of a transmission system for operation and ultimate ownership by the defendant (S. C. Public Service Auth.).' It appears from the present record that respondent now has, instead of the then fourteen cooperative components, seventeen such subsidiary cooperatives.

'No cases deny that the right of eminent domain may be lawfully exercised for use in producing and furnishing electricity * * * and for distribution to the inhabitants for lighting their homes and places of business.' 18 Am.Jur. 694, Eminent Domain, sec. 66. 'The power of eminent domain usually is conferred by the legislature on electric light and power companies, see supra § 24, and the erection, maintenance and operation of plants for generating electricity and distributing the same to the public for light, heat, or power ordinarily is regarded as a public use for which private property may be appropriated.' 29 C.J.S., Eminent Domain, § 58, page 845.

Reference to the enabling act under which respondent was created is necessary. Code sec. 8555-93 contains a lengthy enumeration of the powers of a 'Cooperative,' which respondent is. These express powers include: '(d) To generate, manufacture, purchase, acquire, accumulate and transmit electric energy, and to distribute, sell, supply, and dispose of electric energy in rural areas to its members, to governmental agencies and political subdivisions, and to other persons not in excess of ten per centum (10%) of the number of its members; * * * (1) To exercise the power of eminent domain in the manner provided by the laws of this State for the exercise of that power by corporations constructing or operating electric transmission and distribution lines or systems; * * * (o) To do and perform any and all other acts and things, and to have and exercise any and all other powers which may be necessary, convenient or appropriate to accomplish the purpose for which the cooperative is organized.'

The intended nature and purpose of respondent is further evidenced by section 8555-119 by which cooperatives are exempt from all jurisdiction and control of the Public Service Commission of the State. If not public, the exemption was unnecessary, and the grant of the power of eminent domain of course improper. The purpose of a 'cooperative' was defined in an opening section of the act, now No. 8555-92 of the Code, as follows: 'Cooperative, nonprofit, membership corporations may be organized under this chapter for the purpose of supplying electric energy and promoting and extending the use thereof in rural areas.'

The foregoing legislative expressions leave no doubt of the intention to make of the cooperatives public service corporations. As pointed out in the judgment under review, the need of available electric energy in rural, farm areas, of which this State is chiefly composed, was compelling and the great progress by which it has been met since the passage of the law is common knowledge. Here the record indicates that the town of Elloree and some of its environs are supplied with electricity by a private company but the rural areas thereabout are largely dependent upon a cooperative. Appellant contends that the unit cost will be greater for the power which will be furnished by the Authority than that now purchased from the private company, but the Court has nothing to do with that in this litigation.

Appellant lays stress in argument upon sub-section (d), which is quoted above and provides that the service by cooperatives is limited to their members, governmental agencies and subdivisions and other persons not in excess of ten per cent of the number of members; and a clause in Code section 8555-98, as follows: 'The bylaws (of the cooperative) may prescribe additional qualifications and limitations in respect of membership.' This contention was well answered in the circuit judgment in the following language: 'Implicit in the purpose for which cooperatives are authorized by the Act, that 'of supplying electric energy and promoting and extending the use thereof in rural areas,' is the obligation of such corporations to make membership available, without arbitrary or unreasonable limitations thereon, to all coming within the purview of that purpose. It cannot properly be assumed that a cooperative will unreasonably depart from the purpose of its creation, and it would be pre-judging that question to decide it before it arises. Cf. McMeekin v. Central Carolina Power Co., 80 S.C. 512, 518, 61 S.E. 1020, 128 Am.St.Rep. 885.' See also, Augusta Power Co. v. Savannah River Electric Co., 163 S.C. 541, 161 S.E. 767, 163 S.E. 822.

Universality of patronage of a public utility is not essential to 'public use' of its property. The public use and the right to condemn land for an electric transmission line are not affected by the fact that many persons in the community proposed to be served are not interested in or desirous of using electric current. Webb v. Knox County Transmission Co., 1920, 143 Tenn. 423, 225 S.W. 1046. A power company may serve a public use, though not compelled or intending to furnish current to scattered customers along its high-tension transmission lines unless it would be renumerative to intall the necessary transformers. Webb v. Knox County Transmission Co., supra, wherein the court said: 'In furnishing electricity, it is not possible to construct lines and facilities, so as to deliver electric current to every person who may reside along the line, because it requires large outlays of moneys to construct a transforming or reducing station at any point on the line for the purpose of delivering electricity at such point, and in view of these requirements it is the purpose of petitioner * * * to furnish electricity to any customer or customers, where the necessary contruction for that purpose would be justified. * * * We do not think it necessary that every inhabitant of the community shall be benefited by the use which it is proposed to be made of the lands taken, in order to constitute a public one.' 44 A.L.R. 736.

By a simpler concept which seems sound and applicable the same result is reached with respect to the curious wording of the provision of the law which relates to 'membership.' It is that the customers, which are called 'members,' of the cooperatives are in the territories of their operation the 'public' which must be reasonably served, and to whom the service must be available on equal terms, in order to satisfy the undoubted rule that the power to condemn can only be delegated for, at least principally, a public use. There is no 'public' which is separable from the members in the rural areas where the cooperatives do business; and they at once...

To continue reading

Request your trial
29 cases
  • Ozark Border Elec. Co-op. v. Stacy, 7878
    • United States
    • Missouri Court of Appeals
    • August 8, 1961
    ...customers of privately owned utilities; they are both owners and customers * * *.' (Emphasis ours.) Bookhart v. Central Electric Power Co-operative, 219 S.C. 414, 423, 65 S.E.2d 781, 784; Bush v. Aiken Electric Cooperative, 226 S.C. 442, 85 S.E.2d 716, 717-718; Lamar Electric Membership Cor......
  • Alston v. BLACK RIVER ELEC. CO-OP.
    • United States
    • South Carolina Court of Appeals
    • January 24, 2000
    ...a cooperative. However, South Carolina has recognized the similarities between members and stockholders. In Bookhart v. Central Elec. Power Co-op., 219 S.C. 414, 65 S.E.2d 781 (1951) the Court There is no `public' which is separable from the members in the rural areas where the cooperatives......
  • Collins v. City of Greenville
    • United States
    • South Carolina Supreme Court
    • November 5, 1958
    ...not simply a use which may incidentally or indirectly promote the public interest or general prosperity. In Bookhart v. Central Elec. Power Co-op., 219 S.C. 414, 65 S.E.2d 781, 788, it is 'Appellant attacked in argument the authority of Boyd v. Winnsboro Granite Co., 66 S.C. 433, 45 S.E. 10......
  • Edens v. City of Columbia
    • United States
    • South Carolina Supreme Court
    • January 30, 1956
    ...or indirectly promote the public interest or general prosperity.' That holding was recently reaffirmed in Bookhart v. Central Elec. Power Co-op., 219 S.C. 414, 65 S.E.2d 781, 788, from the opinion in which the following is 'Appellant attacked in argument the authority of Boyd v. Winnsboro G......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT