Gandy v. Public Service Corporation of Mississippi

• Decision Date: 28 March 1932
• Docket Number: 29919
• Citation: 140 So. 687,163 Miss. 187
• Court: Mississippi Supreme Court
• Parties: GANDY et al. v. PUBLIC SERVICE CORPORATION OF MISSISSIPPI

140 So. 687

163 Miss. 187

GANDY et al. v. PUBLIC SERVICE CORPORATION OF MISSISSIPPI

No. 29919

Supreme Court of Mississippi

March 28, 1932

Division B

Suggestion Of Error Overruled, May 9, 1932.

APPEAL from circuit court of Covington county, HON. EDGAR M. LANE Judge.

Petition by J. W. Gandy and others against the Public Service Corporation of Mississippi for a writ of prohibition. The petition was denied, and the temporary writ was discharged and petitioners appeal. Affirmed.

Affirmed.

Lotterhos & Travis, of Jackson, for appellant.

The appellee was not shown to have any valid franchise for the distribution of natural gas.

Secs. 2641, 2653, Code of 1930.

The appellee could not condemn the property of the appellants for the constructing of telephone or telegraph lines, since there is no statute which gives the right of condemnation of private property to private telephone and telegraph lines.

Pennsylvania Railroad Company's Appeal, 93 Penn. State, 150, 159; Wise v. Yazoo City, 96 Miss. 507, 51 So. 453.

A comparison of other statutes of this state conferring the right of eminent domain shows that the legislature did not, by section 1508, Code of 1930, grant to a gas company the right to condemn private property for use in constructing thereon its pipe lines.

Secs. 1502, 7061, 7062, 1505, 1506, 1509, 6085, 6086, 6088, 6089, 2413, Code of 1930.

A grant of power of eminent domain, which is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice, will never pass by implication, and when the power is granted, the extent to which it may be exercised is limited to the express terms or clear implication of the statute in which the grant is contained.

10 R. C. L., p. 196, sec. 168; Fork Ridge Bapt. Cemetery Ass'n v. Redd, 33 W.Va. 262, 10 S.E. 405; Wise v. Yazoo City, 96 Miss. 507, 51 So. 453; Dean v. County Board of Education, 97 So. 741, 210 Ala. 256; Young v. Red Fork Levee District, 186 S.W. 604, 124 Ark. 61; Bell's Committee v. Board of Education, 234 S.W. 311, 192 Ky. 700; Northern Pacific Ry. Co. v. City of Duluth, 189 N.W. 937, 153 Minn. 122; Indiana Harbor "Belt Railroad Co. v. Green, 124 N.E. 298, 289 Ill. 81; Union Mfg. Co. v. Spies, 195 N.W. 326, 481 Wis. 497; Comiskey v. City of Lynn, 115 N.E. 312, 226 Mass. 210.

The authority in the appellee to condemn the private property of the appellants cannot be implied or presumed.

A. & V. Railroad Co. v. Cumberland Telephone & Telegraph Co., 41 So. 258; 4 Thompson on Corporation (3 Ed.), sec. 2799; 2 Cooley's Constitutional Limitations (8 Ed.), p. 119; 3 Fletcher, Corporations, secs. 1499, 2513; Lewis on Eminent Domain (3 Ed.), sec. 371; Western Union Telegraph Co. v. Pennsylvania, Railroad Co., 195 U.S. 594, 49 L.Ed. 332; Clark v. Coburn, 108 Me. 26, 78 A. 1108, 27 Ann. Cases, 167.

Any doubt as to the existence of the right to condemn must be resolved in favor of the appellants.

Ferguson v. Board of Supervisors of Wilkinson County, 115 So. 779.

Necessity alone is the foundation of the right of eminent domain.

Cole v. United States, 91. U.S. 367, 23 L.Ed. 449.

Whenever an attempt is made to take private property for a use alleged to be public, the question whether the contemplated use be public shall be a judicial question, and as such determined without regard to legislative assertion that the use is public.

Sec. 17, Constitution of 1890.

Petitioner must show that the proposed taking is proper and necessary and that the proposed use is a public use.

20 C. J., sec. 382, p. 976; Neff v. Redd, 98 Ind. 341; Madera Railroad Co. v. Raymond Granite Co., 82 P. 27; Menetaire Mining Co. v. Columbus Mines Co., 174 P. 172; McMillan v. Noyes, 75 N.H. 258, 72 A. 759; Y. & M. V. R. R. Co. v. Long View Sugar Co., 65 So. 638, 135 La. 542; Ferguson v. Board of Supervisors of Wilkinson County, 115 So. 779.

A primary rule of construction is that the legislature must be assumed to have meant precisely what the words of the law, as fully understood, import; and this may be said to be the fundamental and controlling rule of construction.

Green v. Weather, 32 Miss. 650; Alexander v. Worthington, 5 Md. 485; United States v. Goldenburg, 168 U.S. 95, 42. L.Ed. 394; Koch et al. v. Bridges, 45 Miss. 259.

Stevens & Heidelberg, of Hattiesburg, for appellee.

Section 1508 of the Code of 1930 expressly confers upon all companies or associations of persons incorporated or organized for the purpose of building or constructing pipe lines and appliances for the conveying and distribution of oil or gas, the power to exercise the right of eminent domain.

The work of supplying natural gas to cities is a public one, for which property may be appropriated under the right of eminent domain.

Kincaid v. Indianapolis Natural Gas Company, 124 Ind. 577, 8 L.R.A. 602.

A company organized to transport oil by means of pipes or tubing is organized for a public use. So the supplying of the public with gas is a measure of public utility for which there may be an appropriation of private property, under the power of eminent domain, for the purpose of laying the necessary pipes and mains, and the fact that only a few persons are being served at the time the property is sought to be taken, or that a company organized to transport and sell natural gas will indirectly add to its profits from gasolene taken from gas by means of pipe lines on land condemned therefor, will not render the use of the property a private one.

20 C. J. 583; Calor Oil & Gas Co. v. Franzell, 128 Ky. 715, 109 S.W. 328, 36 L.R.A. (N.S.) 456.

Two things are granted to such companies by section 1508, Code of 1930.

(a) They are "hereby empowered to exercise the right of eminent domain in the manner now provided by law;" and,

(b) They are granted the right to build and construct said pipe lines and appliances along and across highways, etc., in a manner to be provided by the board of supervisors.

Appellee has the power, under its charter, of engaging in the business of distributing gas to cities and the public generally, and being such a corporation, it may exercise the right of eminent domain.

Robinson Land & Lumber Company of Alabama v. Avera & Northeastern Railroad Company, 128 So. 738.

It is immaterial that the gas company seeking to secure a right of way to a city in which the gas is to be sold had not secured a franchise from the city.

20 C. J. 583; Calor Oil Company v. Franzell, 128 Ky. 715, 109 S.W. 328, 36 L.R.A. (N.S.) 456.

The only right sought to be condemned, so far as telephone or telegraph lines are concerned, was for the construction and maintenance of such lines as private lines, mere appliances in connection with the pipe line. All it sought was the right to maintain along the right of way where the line was constructed its private telephone and telegraph, in order that its business might be quickly dispatched, and in order that danger to the public on account of leaks or explosions might be quickly ascertained and remedied. Such a telegraph or telephone line is a mere appliance within the meaning of the statute. The statute confers not only the right to condemn for pipe lines, but uses the word "appliances" as well.

A municipality is wholly without power to grant an exclusive franchise to anyone, either for the distribution of gas, or for any other purpose.

Secs. 2399, 2401, Code of 1930.

Undoubtedly, the public welfare requires the freest competition in all things pertaining to the common interest; and it has always been contrary to law to establish a monopoly.

Calor Oil & Gas Company v. Franzell, 128 Ky. 715, 109 S.W. 328, 36 L.R.A. (N.S.) 456.

OPINION

Anderson, J.

This is an appeal from a judgment rendered by the circuit judge of the district of which Covington county is a part on a vacation hearing under section 1510, Code of 1930, denying appellants' petition for a writ of prohibition. Appellee had begun an eminent domain proceeding--the same to be heard before a court to be organized in the manner required by chapter 26 of the Code of 1930 (section 1480, et seq.), particularly section 1508 of the Code, whereupon appellants obtained a writ of prohibition. There was a hearing on appellants' petition, answer thereto by appellee, and proofs. The prayer of the petition was denied and the temporary writ of prohibition discharged. From that judgment appellants prosecute this appeal.

Appellants' petition for the writ of prohibition set up three grounds, namely: (1) That appellee is not a public service corporation, not having dedicated its property to public use, but is seeking to condemn the property of appellants (quoting from the petition) "for the purpose of building and laying thereon a gas line through which it expects to deliver gas from the Jackson gas fields to the city of Hattiesburg in pursuance of a private contract, over which your petitioners and the people generally have no control, ownership, management or interest therein;" (2) that the appellee is not such a corporation as under the law has the right of eminent domain, "and any attempt by the legislature to confer upon the said Public Service Corporation of Mississippi, or any other company similarly situated, the right to condemn property for the construction of gas lines to be used in the manner aforesaid is unconstitutional;" (3) that there is no public necessity for condemning appellants' lands because there is already a gas pipe line running from the Jackson gas fields to Mobile, Alabama, and Pensacola, Florida, by way of Hattiesburg, which could serve the same communities as would be served by appellee, which pipe line parallels the line being constructed by appellee. Appellee answered, denying the allegations of the petition.

The following facts...