Mcmeekin v. Cent. Carolina Power Co

• Citation: 61 S.E. 1020,80 S.C. 512
• Parties: McMEEKIN. v. CENTRAL CAROLINA POWER CO.
• Decision Date: 13 July 1908
• Court: United States State Supreme Court of South Carolina

80 S.C. 512

61 S.E. 1020

McMEEKIN.

v.CENTRAL CAROLINA POWER CO.

Supreme Court of South Carolina.

July 13, 1908.

1. Navigable Waters—Rights of Public— Obstruction as Nuisance.

Obstruction of a navigable stream is a public nuisance.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Navigable Waters, § 69.]

2. Nuisance—Public Nuisance—Remedy.

The remedy for a public nuisance is by indictment, unless the person instituting civil proceedings can show special damage differing in kind from that to which all others in common with him are exposed.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Nuisance, § 164.]

3. Statutes — Special Act — Legislative Powers—Constitutional Provisions.

On complying with Const, art. 9, § 2, providing that the General Assembly may by a two-thirds vote of each house, on a concurrent resolution, allow a bill for a special charter to be introduced, and, when so introduced, may pass the same as other bills, the Legislature was authorized to pass Act Feb. 24, 1906 (Acts 1906, p. 352), ratifying and confirming the charter of the Central Carolina Power Company, and investing the company with the power to construct and maintain a dam across Broad river, together with the right to acquire by purchase or condemnation proceedings, etc., notwithstanding Const, art. 3, § 34, providing that the General Assembly shall not enact local or special laws in certain cases.

4. Eminent Domain—Nature of Power— Public Purpose.

Act Feb. 24, 1906 (Acts 1906, p. 352), incorporating the Central Carolina Power Company, and giving it power to acquire land by condemnation proceedings, provides in section 5 (page 353) that the company shall on demand furnish power to any person or corporation for manufacturing or lighting purposes on payment of the usual charges therefor. Held, that the company was incorporated for a public purpose, and that the act did not contravene Const, art. 1, § 17, providing that private property shall not be taken for private use without the consent of the owner.

[Ed. Note.—For cases in point, see Cent. Dig. voi. 18, Eminent Domain, § 80.]

Petition by John C. McMeekin for an injunction against the Central Carolina Power Company. Petition dismissed.

The petition and the return to the rule to show cause, referred to in the opinion, are as follows:

Petition.

"To the Honorables, the Chief Justice and the Associate Justices of the Supreme Court:

"The petition of John C. McMeekin respectfully shows:

"(1) That the respondent is, and at thetimes herein mentioned was, a corporation created and existing under the laws of the state of South Carolina. That said respondent under and by virtue of an act of the General Assembly of South Carolina entitled 'An act to ratify and confirm the charter of the Central Carolina Power Company, granted by the Secretary of State on the 17th day of February, 1906, and to confer additional powers on said company, ' approved 24th day of February, 1906, was invested and is still invested with the power, among other powers granted, to construct and maintain a dam or dams in and across Broad river, at a point between Frost's Mills and Alston, together with the right, power, and privilege to acquire by purchase, or by condemnation proceedings, all lands which may be overflowed by the construction and maintenance of such dam or dams as may be constructed and maintained under the power and authority conferred by said act.

"(2) That your petitioner is the owner, in fee simple, and is now and was possessed at the times herein mentioned of the following described real estate, to wit: 'All that tract or parcel of land situate in the county of Fairfield, state of South Carolina, on Broad river, containing 33.79 acres, bounded on the north by track of Southern Railway, on the east by lands of Metz, on the south by Broad river, and on the west by lands of Yarborough.'

"(3) That heretofore, to wit, on the —— day of ——, 1908, your petitioner was served with notice by said respondent that the above-described tract or parcel of land, the property of your petitioner, was required by it for the purposes of overflowing and spbbing the same by and with back water created by the erection of a dam across Broad river, to which notice your petitioner replied in writing on the ———day of ——, 1908, signifying his refusal to consent to an entry thereon by said respondent.

"(4) That your petitioner now learns that notwithstanding said refusal said respondent is prosecuting condemnation proceedings and is preparing to have a jury impaneled for the purpose of ascertaining the compensation to be paid your petitioner for the use of said lands.

"(5) That your petitioner, upon information and belief, alleges that said act of the Legislature ratifying and confirming the charter granted by the Secretary of State on the 17th day of February, 1906, and conferring additional powers, of and on the Central Carolina Power Company, respondent herein, is illegal and void, and of no effect, in that: (a) It provides for the erection of a dam across a navigable stream, contravening section 28 of article 1 of the Constitution of the state of South Carolina, which provides, 'All navigable waters shall forever remain public highways free to the citizens of the state and the United States without tax, impost or toll imposed; and no tax, toll, im post or wharfage shall be imposed, demanded or received from the owners of any merchandise or commodity for the use of shores or any wharf erected on the shores or in or over the waters of any navigable stream unless the same be authorized by the General Assembly'; also contravening section 1, art. 14, which provides, 'The state shall have concurrent jurisdiction on all rivers bordering on this and any other state bounded by the same, and they, together with all navigable waters within the limits of the state, shall be common highways and forever free, as well to the inhabitants of this state as to the citizens of the United States, without any tax or impost therefor, unless the same be expressly provided for by the General Assembly.' (2) Said act is special legislation, in contravention of section 34 of article 3 of the Constitution of South Carolina, and is not permissible under the proviso of section 2 of article 9 of the Constitution of South Carolina. (c) Said act permits the acquiring by condemnation of private property for private purposes without the consent of the owner in contravention of so much of section 17 of article 1 of the said Constitution as provides: 'Private property shall not be taken for private use without the consent of the owner.'

"(6) That your petitioner is informed and believes that the said Central Carolina Power Company, respondent herein, will condemn the property of your petitioner herein described, and deprive him of the free use and enjoyment thereof, unless restrained by the order of this court.

"Wherefore, your petitioner prays that the respondent be enjoined and restrained from further prosecuting proceedings for the assessment of compensation for use of said property, and for such other and further relief as may be just, and your petitioner will ever pray, " etc.

Return to Rule.

"Now comes the Central Carolina Power Company, a corporation duly created and organized under the laws of the state of South Carolina, and by William H. Lyles, its attorney, makes return to the order of this honorable court served on it and dated the 18th day of May, 1908, and, for cause why the injunction prayed for in the petition should not be granted, shows as follows, to wit:

"(1) That your respondent was duly chartered by the Secretary of State for the state of South Carolina on the —— day of——,

and empowered by said charter for the purpose 'of developing, transmitting and selling electric power, buying and selling land, building and. erecting cotton and other mills, constructing and operating electric and other railways, lighting towns and cities, and doing such other things as electric power enters into as a motor power.' Your respondent, considering that the said Broad river might be a navigable stream, the navigable portions be-ing wholly within the state of South Carolina, and that it would be necessary to have special authority by an act of the Legislature, both so far as the state of South Carolina is concerned and so far as the authority of the United States of America is also concerned, made application to the General Assembly of the state of South Carolina, which caused to be introduced and duly passed by a two-thirds vote, in either house on a yea and nay vote a concurrent resolution for leave to introduce a bill to ratify and confirm the charter of the Central Carolina Power Company granted by the Secretary of State on the——day of——, 1906, and to confer additional powers on said company, all of which will be more fully seen by reference to the House Journal, Session 1906, at page 73, and to the Senate Journal, Session 1906, p. 63. The said concurrent resolution having been so duly passed by a two-thirds vote of each house as provided by section 2 of article 9 of the Constitution of the state of South Carolina of 1895, the General Assembly of the state of South Carolina duly passed an act 'to ratify and confirm the charter of the Central Carolina Power Company, granted by the Secretary of State on the 17th day of January, 1906, and to confer additional powers on said company.' See 25 St. at Large, p. 352, whereby it was enacted:

" 'Section 1. That the said charter granted by the Secretary of State to the Central Carolina Power Company, on the 17th day of January, 1906, be, and the same is hereby, ratified, confirmed and made valid to the same extent as if the same had been granted to said Power Company directly by the General Assembly of the state of South Carolina.

" 'Sec. 2. That the right, power and privilege to construct and maintain a dam or dams in and across Broad river, at a point between Frost's Mills and Alston, be, and the same...