Paris Mountain Water Co v. City Of Greenville

• Decision Date: 01 April 1918
• Docket Number: (No. 9047.)
• Citation: 96 S.E. 545
• Court: South Carolina Supreme Court
• Parties: PARIS MOUNTAIN WATER CO. v. CITY OF GREENVILLE et al.

96 S.E. 545

PARIS MOUNTAIN WATER CO.

v.CITY OF GREENVILLE et al.

(No. 9047.)

Supreme Court of South Carolina.

April 1, 1918.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Majority.]

Fraser, J., dissenting.

Appeal from Common Pleas Circuit Court of Greenville County; Mendel L. Smith, Judge.

Action by the Paris Mountain Water Company against the City of Greenville and others. From the sustaining of defendant's demurrer and dismissal of the complaint, plaintiff appeals. Affirmed.

The amended complaint herein is as follows:

The plaintiff, by its amended complaint, respectfully shows to the court: 1. The defendant city of Greenville is a municipal corporation created by and existing under the laws of the state of South Carolina, and the other defendants are the officers of the said city, the defendant C. S. Webb, being mayor, and the other defendants being members of the city council of the said city; plaintiff is a corporation duly incorporated under the laws of the state of South Carolina, and is a public service corporation engaged in providing and supplying a supply of water to the city of Greenville and its inhabitants, as well as to a large number of persons, firms and corporations in the neighboring mill villages and elsewhere, including large neighborhoods and villages, such as Mills Mill, Dunean Mills, Judson Mills, and Monaghan Mills villages, and the town and inhabitants of West Greenville.

2. That the extent of the service rendered the public outside the city of Greenville by the said public service corporation is large; in fact, it is almost or quite equal to that rendered inside of said city. Furthermore, the demand for said service is rapidly increasing and according to normal growth, plaintiff alleges that its experience shows that within a short time, probably in a year or two, the limit of its capacity for service will be reached.

3. Under a franchise granted by the said city of Greenville to plaintiff, and under its charter, plaintiff has acquired real estate, and has proceeded to obtain water sheds, to erect reservoirs, lay pipes and mains, and acquire valuable tools and machinery, and a large amount of other personal property, all at an expense of hundreds of thousands of dollars, and proceeded to furnish, and has ever since been furnishing, water to the city of Greenville and to the private citizens thereof, and is now engaged in said purpose, and is the owner of said property and plant which is located in the county (and partly in the city) aforesaid, and, as plaintiff is informed and believes, is now worth more than $1,000, 000.

4. That on the 14th day of December. 1916, the defendant city of Greenville, by reason of a resolution passed by its mayor and city council during the year 1916, caused to be served upon plaintiff the following notice: "To Paris Mountain Water Company, a Corporation Owning and Operating Waterworks Partly Within and Partly Without the City of Greenville: You will please take notice that the city of Greenville, a municipal corporation under the laws of the state of South Carolina, desires to own and operate as such municipality, a system of waterworks to be used in supplying water to the city of Greenville and to the citizens thereof, and that to this end the said city requires the water plant belonging to you, including all pipes, mains, reservoirs, land and watersheds and all other property, fixtures and appliances used in connection with and appertaining to the business of supplying water; and you will further take notice that the city of Greenville will begin condemnation proceedings for the purpose of acquiring all of said property used for said purpose, pursuant to the provisions of law in such case made and provided. Oscar Hodges, City Attorney for City of Greenville. J. J. McSwain, H. J. Haynsworth. of counsel for the City of Greenville. Dec. 13th, 1916."

And on the 12th day of January, 1917, plaintiff served upon defendants the following notice: "State of South Carolina, Greenville County. In the Matter of the Proposed Condemnation of the System of Waterworks, Property and Plant of the Paris Mountain Water Company, a Corporation Duly Incorporated under the Laws of the State of South Carolina. To Oscar Hodges, Esq., Mess. Haynsworth & Haynsworth, and J. J. McSwain, Esq., Attorneys for the City of Greenville: Please take notice that the Paris Mountain Water Company, which is a corporation duly chartered under the laws of the state of South Carolina, refuses to allow the city of Greenville to enter upon its lands in the county and state aforesaid, and hereby signifies its refusal to consent to or allow the taking or use of any of its property by the said city under the proposed condemnation proceedings heroin, denying the city's right to condemn, and the said corporation hereby signifies its refusal (in case such right is sustained) to allow or consent to entry upon its property, or the taking thereof, without just compensation being first made therefor. The Paris Mountain Water Co., a Corporation as Aforesaid, by W. C. Miller, Cothran, Dean & Cothran, McCullough, Martin & Blythe, Its Attorneys, January 12th, 1917."

And plaintiff alleges upon information and belief, that it is the purpose and announced intention of the defendants aforesaid to acquire all of the aforesaid property and the plant by condemnation, and alleges that the said proceeding, for reasons hereinbelow set out, is without legal authority and a violation of plaintiff's rights. The sources of this information are the city clerk, the records of the said city and the said officials.

5. Plaintiff is informed by its counsels of record in the case, and believes, that the defendants in said condemnation proceeding and for the purpose of carrying out their announced intention are relying upon what purport to be acts of the General Assembly of South Carolina appearing in the twenty-ninth volume of Statutes at Large, of said state, at pages 939-942, inclusive; but plaintiff alleges that the second of said acts, appearing at pages 941 and 942 of said volume, for the reason that there were no enacting words, and for the further reasons hereinbelow set out, is utterly null and void, and alleges that the first of said acts cannot avail said defendants for the said purpose for the reasons below set out, which reasons apply to all attempted or purported legislation sought to be invoked, as plaintiff is informed by its counsel and believes.

6. Plaintiff alleges upon information and belief, the source of its information being the city clerk, and the records of the city, that the said city of Greenville has enacted no condemnation ordinance, and has taken no steps under the law in regard thereto, upon which it can rely in this proceeding, other than a mere resolution, a copy of which was attached to our original complaint, and which is here referred to and incorporated as a part of this amended complaint, and plaintiff further alleges that under the general statutory and constitutional powers of municipalities, such ordinance is necessary before such condemnation can be had.

7. That said legislation provided for an election ordered by the city council, at which shall be determined the policy of the city in regard to municipal ownership of waterworks, said election to be decided by a majority of the qualified electors of the city. Plaintiff alleges upon information and belief, the source of its information being the city's registration books and officials, that there were throughout the year 1916 more than 1, 300 qualified electors in the city of Greenville, but alleges that in an election ordered under the said act for the purpose of determining the policy of the said city in regard to municipal ownership, only 588 persons cast their ballots in favor of such policy, while 58 persons cast their ballots against such policy.

8. Plaintiff further alleges upon information and belief that the legislation aforesaid does not give the power of condemnation outside the city limits of Greenville, although it is now sought and intended to exercise such power with reference to all the property of the plaintiff company, the major portion of which lies outside the city limits of the said city of Greenville. A great part of said property, both real and personal, is used in serving outside villages and the municipality referred to, and other sections, and the inhabitants thereof, and is wholly unnecessary for service to the defendant city, and not at all needed for such purpose. But plaintiff's watersheds, reservoirs and other property are necessary and indispensable to such outside service. Furthermore, many of plaintiff's said outside patrons are far removed from the city of Greenville and in no wise contiguous thereto. Plaintiff alleges upon information and belief, the source of its information and belief being the records and laws of the city and state, the city officials, and its attorneys; that it is the purpose of said city to take said property and plant by condemnation to serve such outside persons, firms and corporations and to supply them with water for a higher compensation, and plaintiff alleges that to construe the Statutes aforesaid as permitting such taking for such purpose would bring them in conflict with the South Carolina Constitution of 1895, art. 1, § 17, providing that private property shall not be taken for a private use without the consent of the owner, and article 1, § 5, of said Constitution of 1895, providing that no person shall be deprived of his property "without due process of law, " and article 14, § 1, of the Amendments to the Constitution of the United States, providing that no state shall deprive any person of his property without due process of law; and plaintiff further alleges that this will bring said statutes into conflict with article 8, § 3, S. C. Constitution of 1895, limiting the power of cities to levy taxes and contract debts, "for public...