Childs v. City of Columbia

• Decision Date: 28 February 1911
• Parties: CHILDS v. CITY OF COLUMBIA.
• Court: South Carolina Supreme Court

70 S.E. 296

87 S.C. 566

CHILDS v. CITY OF COLUMBIA.

Supreme Court of South Carolina

February 28, 1911

Appeal from Common Pleas Circuit Court of Richland County; S.W. G Shipp, Judge.

Action by W. G. Childs for an injunction against the City of Columbia. Temporary restraining order set aside and injunction refused, and plaintiff appeals. Affirmed.

D. W Robinson, for appellant. Christie Benet, for respondent.

WOODS J.

This action was brought by W. G. Childs to enjoin the city of Columbia from cutting off his water supply or charging him a water rate alleged to be exorbitant discriminatory, and unreasonable. Judge Shipp, on September 28, 1910, made a temporary restraining order in which the city was required to show cause why an injunction should not be granted. On hearing the return of the city, Judge Shipp refused to enjoin it, and rescinded the restraining order. The appeal is from this order refusing the injunction.

The appellant first contends that, as the complaint was for injunction only, the circuit judge had no discretion to refuse to enjoin the defendant until the trial of the cause. The right to an injunction does not arise merely because the plaintiff asks for injunction and nothing more, nor because the plaintiff alleges that without the injunction he would suffer irreparable injury. This results from the truism that all judicial action is taken on the conviction of the judge as to the rights of the parties, and not on the opinion of the parties themselves as to their rights. Hence there are two essential conditions to the granting of even temporary injunctions: First, the complaint must allege facts which appear to be sufficient to constitute a cause of action for injunction; and, second, on the entire showing from both sides it must appear, in view of all the circumstances, that the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation. Alderman v. Wilson, 69 S.C. 159, 48 S.E. 85; Northrop v. Simpson, 69 S.C. 554, 48 S.E. 613; Marion C. L. Co. v. Tilghman, L. C., 75 S.C. 221, 55 S.E. 337; Boyd v. Trexler, 84 S.C. 51, 65 S.E. 936; Keller v. Tiner, 86 S.C. 160, 68 S.E. 465.

Analysis of the complaint, we think, shows conclusively that the plaintiff has failed to state a cause of action against the city of Columbia. The case as presented by the complaint is this: The city of Columbia, owning and operating a water supply system, has for years past and up to the present time furnished water for domestic and other purposes to persons and corporations. The plaintiff lives outside of the city, but the city agreed about 10 years ago to furnish water for his residence and other houses occupied by others as residences, but belonging to plaintiff, also beyond the corporate limits, "at the customary and usual price." The plaintiff in pursuance of the agreement at his own expense connected his houses by pipe line with the city water mains; and the city supplied water to the plaintiff for a number of years, receiving from him prompt payment of the "usual and customary charges." About two years ago the city doubled the charge it had before made to the plaintiff, which was the charge made to most of its customers; but the plaintiff regularly paid the increased charges, and stands ready to continue to pay any reasonable charge. "On or about the 23d day of September, A. D. 1910, the plaintiff received notice from the defendant that, beginning October 1, 1910, said defendant would charge a minimum rate of $3 per month for each of the dwellings of the plaintiff connected with and supplied by water from the said city, which rate is more than four times the maximum charged, and to be charged, by said city to the general customers and consumers; and the said city, as the plaintiff is informed and believes, threatens to cut off the supply of water to the plaintiff if he does not agree to this excessive and exorbitant rate." In the last paragraph of the complaint, the allegation is made that "said proposed rate of charges is excessive, unreasonable, and discriminatory, and in violation of the contract between plaintiff and defendant." The relief asked is "that defendant be enjoined and restrained from cutting off said water supply, and also charging and requiring the plaintiff to pay said exorbitant and unreasonable charge."

Evidently the complaint is framed on the theory that the city of Columbia is to be considered, with respect to the contract alleged, as if it were a private business corporation, bound by any contract made by the city authorities to furnish water beyond the city limits. Counsel for appellant has submitted an elaborate argument supported by many authorities in support of that theory. Assuming the correctness of this position, it does not by any means follow that the city occupied towards the plaintiff, a nonresident, the relation of a public service corporation, under obligation to contract with him for his water supply at a reasonable rate without discrimination.

All powers and privileges conferred by the Constitution and statutes on municipal corporations must be held to be limited in their exercise to the territory embraced in the municipal boundaries and for the benefit of the inhabitants of the municipality, unless the Constitution or statute expressly provides that such powers and privileges may be exercised beyond the corporate boundaries, or for the benefit of nonresidents. 28 Cyc. 266; Dillon, Mun. Corp.§ 565. Applying this principle, the provision of section 5, art. 8, of the Constitution, that "cities and towns may acquire, by construction or purchase, and may operate waterworks systems and plants for furnishing lights to individuals, firms, and private corporations for reasonable compensation," cannot be held to...