Paris Mountain Water Co. v. City of Greenville

96 S.E. 545, 110 S.C. 36, 1918 S.C. LEXIS 62

• Court: Supreme Court of South Carolina
• Decided: April 1, 1918
• Docket: 9947
• Status: Published

Opinions

April 1, 1918. The opinion of the Court was delivered by Action by the Paris Mountain Water Company, hereinafter referred to as the company, against the city of Greenville, hereinafter referred to as the city, to enjoin the city from proceeding to condemn for the city's use the company's water plant. Demurrer to the complaint; the same sustained; appeal by the company. Let the complaint be reported. A like, but not identical, controversy has been hither once before. 105 S.C. 180, 89 S.E. 669.

There are 14 exceptions to the order of the Circuit Court, but they have been argued under half as many heads. We shall consider the exceptions therefore under seven subjects. Let the exceptions be reported, except the ninth, which was abandoned. The second exception was not argued. The third, fourth, fifth, sixth, eighth and tenth exceptions were argued together. The twelfth and thirteenth exceptions were argued together. The other exceptions were arguedseriatim. We consider them in the same fashion.

The Circuit Court was clearly right to hold that the law is satisfied if the election was carried by a majority of the electors voting thereat. The appellant relies strongly upon a case from Wyoming, and from other States with constitutional provisions like that State. The Constitution of this State is markedly different from that of Wyoming on the subject under consideration. The Wyoming decision had reference to an election to amend the Constitution of that State. That Constitution plainly declares that such an amendment shall be allowed if a majority of the electors shall ratify it. But the Constitution of this State may be amended by a majority of the electors voting thereon. Article XVI, sec. 1. More than that, in at least eleven other instances recited in our Constitution, that instrument prescribes only a majority of the electors voting in order to express the will of the body of electors voting at the polls. They are: Article II, sec. 13; article VII, sec. 2; article VIII, sec. 2; article VIII, sec. 5; article VIII, sec. 7; article VII, sec. 8; article VII, sec. 10; article VIII, sec. 8; article XVI, sec. 3; article X, sec. 11. The general scheme of the Constitution, then, is that in elections by the people on the most important issues of State, the will of the people shall be sufficiently expressed by a majority of those who go to the polls and vote.

With reference to the specific subject under consideration, which is an election for the acquisition of a water plant, the Constitution is plain and to the same effect. Article VIII, sections 5, 7. Section 5 declares that in such cases there shall be "majority vote of the electors * * * who are qualified to vote on the bonded indebtedness of said city." The closely following section 7 declares how a bonded debt shall be voted on, to wit, as provided in Article II, section 13, of the Constitution. Reference had thereto shows that "a majority of those voting in said election shall be necessary to authorize the issue of said bonds." And the above mentioned section 7 of article VIII itself declares:

"Unless a majority of such electors voting on the question shall be in favor of creating such further bonded debt, none shall be created."

We find no provision in the Constitution which prescribes that a majority of all the electors, those voting and those not voting, shall be necessary to carry an election by the people save in one instance, and that refers to an election to determine if a town shall be incorporated. Article VIII, section 2. The other instance cited by the appellant proves the contrary of his argument. It is true article VII, section 1 (the instance cited), requires that one-third of the qualified electors within an area of a county shall petition for a new county. But section 2 of the same article declares that the election may be carried by two-third of the qualified electors voting at such election. Another counsel for the appellant cites other provisions of the Constitution than those we have referred to touching what is a sufficient electorate, but they mostly refer to elections and to procedures other than by a vote of the people.

But the argument is that the act of 1916 (29 Stats. 940, proviso at the end of the act), under which the city is proceeding, prescribes, by apt words which may not be ignored, that the policy of the city towards condemnation shall be fixed "by a majority of the qualified electors of the city." If the quoted words mean by a majority of the qualified electors of the city the sum of those voting and those not voting, then the legislature has changed the general rule stated by the Constitution; and it has required one electorate for acquisition of water plants by purchase, and another electorate for acquisition by condemnation. But we need not go that far; we need only hold that the words the statute has used mean what words of like import have been construed to mean by Courts of undoubted authority, and that the legislature employed the words in full view of those decisions.

We rest the case, as largely did the Circuit Court, on Cassv. Johnston, 95 U.S. 360, 24 L.Ed. 416. It was there held that: "All qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares, * * *" and "unless the legislative will to that effect is clearly expressed."

The second exception was not argued; it need not, therefore, to be considered; it is overruled.

The appellant makes one bifold question out of exceptions 3, 4, 5, 6, 8 and 10, and that makes the third head. The question arises out of the circumstance that the company now serves with water closely lying communities to the city, yet out of the corporate limits of the city. The facts are set out in paragraphs 1 and 8 of the complaint. The appellant's postulate is this: "The city must operate the outside property not needed for this purpose, and serve for hire the town of West Greenville and noncontiguous communities, or (2) it must cease to operate this public utility as to them."

We follow each horn of that dilemma. The Constitution authorizes towns to "operate waterworks systems, * * * and may furnish water * * * to individuals, firms and private corporations for reasonable compensation." These words do not expressly or by necessary implication limit the service to individuals, firms, and private corporations situate within the corporate limits.

The town is a creature of the legislature, and the legislature may (within the limits of the Constitution) define the powers of the town.

Directly after the Constitution was adopted the legislature authorized towns to furnish water to "persons, firms or corporations without the corporate limits but contiguous thereto." Section 3025, Code of Laws. The appellant argues that a part of the service in the instant case is to be to territory noncontiguous to the city. It is true that the complaint alleges that inference, but it does not state the facts which are the basis of the inference, and there is nothing in the complaint to identify the situs of the communities now served by the company and proposed to be served by the city, from which it may be ascertained whether they are contiguous to the city or not. The argument suggests "West Greenville," which, as everybody knows, is only separated from the city of Greenville by Reedy River. The argument also suggests Monoghan Mills, the locality of which is at least not unknown.

It is a matter of common knowledge that generally the water supply and reservoirs and lead pipes of many towns are of necessity many miles without the corporate limits. It is also a matter of common knowledge that many of the towns of the State, and chief amongst them Greenville, are surrounded by manufacturing plants domiciled just out of the corporate limits, and by suburban villages operated under separate charters, and divided off from the city by an arbitrary line.

The suggestion of appellant that the city will go into "municipal trading," condemned by Mr. Dillon, does not raise a question of law, but of policy, and that policy has been determined by the Constitution and by the legislature. See Omaha v. Omaha, 218 U.S. 199,30 Sup. Ct. 615, 54 L.Ed. 991, 48 L.R.A. (N.S.) 1084.

The second horn of the dilemma is, that the city may choose to cease to serve the outlying communities, in which event a present public service will be destroyed. And the appellant calls that a taking of property without due process. It is true the city, when it acquires the company's plant, may choose not to serve the contiguous communities outside the corporate limits. Childsv. Columbia, 87 S.C. 570, 70 S.E. 296, 34 L.R.A. (N.S.) 542. But the present water convenience of the takers in West Greenville and Monoghan is not property; and if it is, the city by acquiring the plant is not by that act taking service away from those communities. The appellant, however, suggests that if such service shall be abandoned by the city, then the city will not have the constitutional power to condemn a way to restore the service. We think that apprehension cannot affect the city's right to acquire the essential plant. Paralleling what the Court said in the Omaha case,supra:

"If those outside disturbing pipes could not be lawfully used by the city for the purpose for which the water company had used them, it does not follow that (the acquisition) would be thereby any less (an acquisition) as an unitary system."

The fundamental right of the city to acquire the company's water plant cannot be defeated by the suggestion that certain takers outside the city now supplied by contract with the company may be hereafter cut off from the use of water. That would be to defeat an essential right by the failure to include in it an incidental practice.

The fourth head (seventh exception) goes to the meaning of section 5 of the eighth article of the Constitution. The appellant asserts that the Constitution there limited a town to acquire a water plant by two methods alone; that is to say, by construction and by purchase, and corollary to that the appellant asserts the Constitution denied by necessary implication the right to acquire by process of condemnation. And that is the issue to be decided.

Sections 5 and 7 are in the form of a statute; they operate directly on towns, without the need of legislative mediation. Like many provisions of the modern Constitution, these sections are self-executing. 6 R.C.L., p. 57. There is nothing in them to suggest a limitation of legislative power. Other sections of the article are directions to the General Assembly; of such are sections 1, 3, 6, 10 and 11. The counsel for appellant says:

"The spirit of restriction upon the legislature to delegate its powers to a municipal corporation is breathed throughout the Constitution of 1868 and 1895 as to the power of taxation."

And counsel says the instant procedure involves taxation. The restriction of the Constitution is not upon the legislature, but the injunction is to the legislature to restrict the powers of the town to levy taxes. Section 3. And at section 5 of article X, the legislature is enjoined, when vesting towns with power to tax, to require the tax to be uniform. And at the same place the Constitution limits the legislature to increase the bond debt of towns beyond a fixed per cent. But we have been cited to no provision of the Constitution which limits the power of the legislature in the matter under consideration. The legislature confessedly has the power to condemn, unless the Constitution has denied it.

There is no apparent reason why the Constitution should have granted to towns the power to acquire water plants by construction or by purchase, and have denied to towns the power to acquire the same by condemnation. On the other hand, the reason is against such a conclusion. If a town is shut up to acquire property for a water plant by purchase, then a great public necessity may be balked at the outstart. There may be no person willing to sell. The power to acquire must be coextensive with the right to have. If the public ought of right to have water at the hands of the town, then the town must have the power from some source and somehow to secure it.

The primary right to acquire rests in eminent domain, and that power resides in the State of right and by necessity; the Constitution did not create it, but has only affirmed it (article XIV), and limited its exercise (article I, section 17; article IX, section 20). The exercise of the right resting in the legislature, that body may prescribe how it shall be exercised. 10 R.C.L., pp. 11-14, and cases cited; Kohl v.U.S., 91 U.S. 371, 23 L.Ed. 449. The suggestion of the appellant is that the legislature may exercise the power, and for the benefit of the town, too, but cannot delegate its exercise to a town. And for that postulate reliance is had uponFloyd v. Perrin, 30 S.C. 1, 8 S.E. 14, 2 L.R.A. 242, andState v. Whitesides, 30 S.C. 519, 9 S.E. 661, 3 L.R.A. 777. The citations are inapt. The first case only held that a township could not levy a tax to pay the interest on bonds issued by the township to aid in railroad construction, but because the bonds were not issued for a corporate purpose. The last case held that the State might create the debt for the county, and might authorize the tax to pay interest on the bonds. Those cases involved the power of a township to create a valid debt for railroad construction, and of the State to do the same thing. They did not hinge on the right of the State to delegate the taxing power to a municipality, but upon the right of the municipality to exercise the power. The power of eminent domain is more frequently committed by the State to its accredited agencies than it is exercised directly by the State. 10 R.C.L., p. 195. And water plants are common subjects to which the power of eminent domain may be directed to acquire. 10 R.C.L., p. 48.

The seventh exception is overruled.

The fifth head (eleventh exception) goes to the Court's failure to sustain so much of the admitted allegations of the complaint as charges that the instant bond issue will exceed 15 per cent. of the city's assessed taxable property. The issue of law was considered by the Chief Justice on a former hearing of the allied cause. 105 S.C. 199,89 S.E. 669.

The suggestion of the appellant is, that a city may not issue bonds at all, notwithstanding the constitutional warrant to do so, unless there shall be machinery devised by the legislature to that end. That is generally true, unless the Constitution shall itself provide the machinery, as it nearly, if not quite, does in cases like the instant one. But the further suggestion is, that the legislature has not by proper enactment proceeded to execute the constitutional amendment of 1911; but, on the contrary, the only legislation on the subject (section 3050) limits the bond issue for Greenville to an amount not exceeding 15 per cent. of the value of the taxable property therein. All the constitutional amendment of 1911 (27 Stats. 14) purported to do was to remove the limitations theretofore imposed on Greenville by a prior constitutional amendment of 1905 (24 Stats. 955), and to leave Greenville without any limitation in certain cases, of which the instant case is admittedly one. The statutes on the subject (section 3050) which grew out of the Constitution of 1895 is appropriate to the Constitution as amended. The constitutional amendment of 1911 is manifestly self-executing. Cooley, *83. The statute remains of force, save the limitation of 15 per cent. is read out of it, and none other is fixed or could be fixed. The exception is overruled.

The sixth head (twelfth and thirteenth exceptions) challenges the validity of those statutes "now provided for by law for railroad corporations to acquire rights of way." The act of 1916 (29 Stats. 940) subrogates the city to these statutes in the acquisition of the instant water plant. Counsel for appellant by oral argument "stressed this issue," and his brief avers:

"That the railroad condemnation statutes are unconstitutional, not because they deny due process of law, but because they permit the taking of the property, not only `without just compensation being first made therefor,' but before just compensation has even been judicially determined."

And to sustain this postulate counsel relies on Railway v.Ellen, 95 S.C. 68, 78 S.E. 963, Ann. Cas. 1915b, 1042. The statute prescribing the manner by which lands of persons may be taken for the construction of railways was enacted in 1868. 14 Stats. 89. And the question now made is raised after a half century's administration of that statute. That reflection is sufficient to throw more than a doubt upon the soundness of the appellant's contention. There are two provisions in the Constitution on the subject, one in the Declaration of Rights (section 17) and the other in the article on Corporations (section 20). The act under consideration (29 Stats. 940) refers to the latter. For authority appellants rely on Lewis on Eminent Domain, and cases from Dakota, California, and Pennsylvania, construing the Constitution of those States. Those authorities make a literal construction of the Constitution as against a reasonable construction which we make. We rest the cases onRailroad v. Ellen, supra. The Court en banc there sustained the statute in its cardinal features, and that included of necessity the right of the condemnor to make compensation in the time and method prescribed by the statute, though so much was not said.

The seventh and last head (exception 14) goes against the constitutionality of section 3015, and by consequence against the amendment of it. The alleged infirmity in section 3015 is that it does not follow to the full that part of the Constitution (article VIII, section 5) which directs that "no such construction or purchase shall be made except upon a majority vote of the electors in said cities," etc. The amendment to the statute sought to add to it two materially new features: (1) A vote by the electors on the policy of acquisition; and (2) the acquisition of a water plant by procedure of condemnation. It is true that a statute which is without constitutional authority cannot be amended. But it is too broad a statement to say that a statute which fails in some even essential features to come up to all the requirements of the Constitution may not be amended. So far as the instant act (1916) dealt with a procedure by construction and purchase, it entered a field which the Constitution authorized it to enter and enacted generally in the very words of the Constitution; it only fell short of the total procedure prescribed by the Constitution, to wit, to provide a preliminary vote on policy. A deduction that a subsequent act by amendment might not supply that omission would be manifestly contrary to good sense, and we think contrary to law. See 6 R.C.L., p. 120; Note 4, Ann. Cas., p. 920, and cases there cited. The second particular in which the statute was amended was foreign to the Constitution; it added to the constitutional methods of procedure by construction and purchase, the third method of procedure by condemnation. And for the reason above stated the amendment was allowable.

The fourteenth exception is overruled, and the judgment below is affirmed.

MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES HYDRICK and WATTS concur.

MR. JUSTICE FRASER. I dissent. In a case between these same parties, reported in 105 S.C. 187, 89 S.E. 669, it was decided that in grants of the power of eminent domain, the grant must be strictly construed. There are two distinct classes of majorities: (1) A majority of those who vote. (2) A majority of those entitled to vote. It seems to me that a substitution of class No. 1 for class No. 2 would require not merely a very liberal construction, but an amendment, and this Court has no power to amend. It seems to me, further, that a grant of the power to construct or purchase is intended to restrict the power of construction and purchase. To construct is to create a new use. To purchase is to transfer the exercise of a power by mutual consent of all the parties. To condemn an already existing plant creates no new use, but simply transfers the property, franchises and profits from a quasi public corporation to a public corporation. If this can be done without a change of the use, then I see no reason why one quasi public corporation could not be given the right to condemn the property of another. Could the Southern Railway be empowered to condemn the property, rights and franchise of the Atlantic Coast Line Railroad Company? It is not suggested that the plaintiff has failed in its duty to serve the public, or that the city of Greenville can supply a more efficient service. R. C.L., vol. X, sec. 157:

"Property devoted to the public use may be taken by authority of the legislature for a different public use, even if the earlier enterprise is thereby wholly destroyed; but property of a private corporation devoted to one public use cannot be taken for the same use, because no public use or public necessity can be served by such a taking."

Mr. Lewis, in his work on Eminent Domain, says:

Section 276: "General principles deduced from the foregoing decisions in respect to taking of property already devoted to public use.

"First. All property held for public use is still subject to the eminent domain power of the State, with this exception, that it cannot be taken to be used for the same purpose in thesame manner." (Italics his.)

For these reasons I dissent.