Southern Power Co. v. Walker

• Decision Date: 23 May 1911
• Parties: SOUTHERN POWER CO. v. WALKER.
• Court: South Carolina Supreme Court

71 S.E. 356

89 S.C. 84

SOUTHERN POWER CO. v. WALKER.

Supreme Court of South Carolina

May 23, 1911

Appeal from Common Pleas Circuit Court of Spartanburg County; J. W De Vore, Judge.

"To be officially reported."

Condemnation proceedings by the Southern Power Company against L. P Walker. From the decree, defendant appeals. Appeal dismissed.

The exceptions referred to in the opinion are as follows:

"(1) Because his honor erred in holding that the fact that the state of New Jersey did not give to the respondent corporation the right and power to condemn lands would not prevent this state from so doing if it should see proper to do so; it being submitted that a foreign corporation coming into this state cannot exercise larger powers than those conferred upon it by the parent state.

"(2) Because his honor erred in holding that the act of the Legislature of the state of South Carolina found in the Acts of 1904, p. 489, is not in violation of article 3, § 17, of the Constitution, which provides that 'every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title'--it being submitted that the title to said act gives no intimation of what is in the act itself--and the real subject and the real contents thereof are the right given to electric light and power companies to condemn private property, when no such drastic or unusual power is even hinted at in the title. The act is therefore unconstitutional, because not complying with the provisions of the section just herein mentioned.

"(3) Because his honor erred in holding that the title of the act just mentioned, to wit, the act of 1904, shows that 'electric light and power companies' is the subject, when he might as well have held that 'telephone and telegraph companies' is the subject, and, if this is true, then the act in question relates to two subjects, and is therefore unconstitutional.

"(4) Because his honor erred in not holding that it is not a compliance with the constitutional provisions above referred to to refer to the original act merely by the number of sections of the published laws, and that the true and actual subject of any act must be expressed in its title, and not by way of reference to some other law, in order to make it constitutional and valid.

"(5) Because his honor erred in not holding that the act referred to refers to two subjects, and is therefore unconstitutional, it being submitted: (1) That it attempts to confer upon electric light and power companies certain rights and powers theretofore enjoyed by telephone and telegraph companies. (2) It attempts to amend the then existing law with regard to the powers of telephone and telegraph companies.

"(6) Because his honor erred in holding that the Southern Power Company comes under that class of corporations known as quasi public corporations when he should have held that under the terms of its charter and the laws of the state of South Carolina the said corporation is a private corporation, and therefore has no right to condemn private property for its own use, as section 17, art. 1, of the Constitution of South Carolina, forbids this.

"(7) Because his honor should have held that since the state of South Carolina has no power of regulation or control over the affairs of the said corporation, Southern Power Company, with respect to the manner in which it shall do business--the rate it shall charge the people whom it shall serve--it is therefore a private corporation, and cannot have given to it the power to condemn private property for its uses.

"(8) Because his honor erred in not holding from the undisputed evidence shown by the several contracts introduced in evidence that the petitioner, Southern Power Company, has been making, and does make, with its various patrons contracts differing in rates of charges and in other particulars and that it thereby establishes itself as a private corporation with the right to furnish its power and other products to such persons and on such terms as it may choose.

"(9) Because his honor, the circuit judge, erred in not holding that certain of the powers and privileges named in its charter at least, if not all of them--with the exception of the power to light the streets of municipalities--were, and are, private and in no sense public, and, inasmuch as the public uses and the private uses for which the said power company has sought to condemn appellant's lands cannot be separated so that condemnation may be had for the one and not for the other, the said Southern Power Company cannot, under the law, have any right to condemn at all, and the circuit judge should have so held.

"(10) Because his honor, the circuit judge, erred in not holding that inasmuch as very nearly all, if not quite all, of the powers given to the respondent Southern Power Company are for private uses and purposes, and in no sense public, the said corporation did not have the power to condemn for any of these uses, and its power to condemn should have been, and should be limited to the condemnation for those of the uses and purposes named in its charter, which are clearly public.

"(11) Because his honor erred in dismissing each and every of the grounds of appeal of this defendant, and in not holding that each and every of the said grounds should be sustained.

"(12) Because his honor, the circuit judge, erred in sustaining all grounds of the appeal of the original petitioner, Southern Power Company, when it was distinctly understood and agreed between the parties to this proceeding that all questions affecting the condemnation money to be paid and the methods of reaching the amount thereof should be postponed until after the determination of the legal questions now raised, with the exception that, if the right to condemn should be established in this proceeding, the amount of compensation to be paid to the defendant should then be fixed by a new jury in the court of common pleas."

J. W. Nash and Simpson & Bomar, for appellant. Osborne, Lucas & Cocke, Nicholls & Nicholls, and John Gary Evans, for respondent.

GARY A. J.

The petitioner herein seeks a right of way through the land of the defendant under condemnation proceedings. In accordance with the practice in such cases, a jury was impaneled, and assessed the damages, to be paid by the petitioner, to the defendant. Both the petitioner and the defendant appealed to the circuit court. The petitioner's grounds were sustained, but those of the defendant were overruled. The defendant then appealed to this court upon exceptions, which will be reported.

"When the right to institute condemnation proceedings is contested, the proper remedy is to bring an action in the court of common pleas, in order that the court may, in the exercise of its chancery powers, determine such right." Water Co. v. Nunamaker, 73 S.C. 550, 53 S.E. 996. In the case under consideration the defendant did not bring an action to contest the petitioner's right to condemnation proceedings, but raised the questions involved on an appeal from the verdict of the jury. As no objection has been interposed to the manner in which the questions are presented, we will not decline to consider them, especially as they are of public interest.

The first question that will be considered is whether the petitioner, being a foreign corporation, without the power to condemn in the state of its origin, was empowered under the laws of this state to exercise the right of condemnation. The petitioner's certificate of incorporation under the laws of the state of New Jersey contains this provision: "Nothing herein shall empower the said corporation to construct, maintain or operate railroads, telephone or telegraph lines, canals, turnpikes, or any other business which shall need to possess the right of taking and condemning lands, within the state of New Jersey; but nothing herein contained, shall prevent the taking and condemnation of lands, without the state of New Jersey." Section 1790, c. 44, Code Laws, is as follows: "All and every such foreign corporation, carrying on business or owning property in this state, shall be subject to the laws of the same, in like manner as corporations chartered, under the laws of this state. ***" Section 1895, c. 48, Code Laws, is as follows: "Corporations organized for any purpose, under the provisions of this article, shall have power to construct and operate a railroad, electric railway, tramway, turnpike or canal, for their own use and purposes, and shall have the right to effect a crossing, with any existing railroad or public roads, as is now provided by law for railroad corporations; but they shall have no power to condemn lands, except for crossing any existing railroad or public road, as herein provided." Acts 1904, p. 489, is as follows:

"An act to grant unto electric lighting and power companies all the rights, powers, and privileges, subject to the same duties and liabilities, as are conferred upon telegraph and telephone companies, under sections 2211, 2212, 2213, 2214, 2215, 2216, 2217, 2218, and 2219, of the Civil Code of South Carolina, and

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