WALKER, J., dissents; BROWN, J., concurs in dissenting opinion. The Hendersonville Light and Power Company was chartered in 1904 for the purpose of supplying electric lights and power *Page 135 to Hendersonville and the surrounding community. Its power plant is located on Big Hungry Creek near Hendersonville; its lands consisting of three small tracts known as Power No. 1, Power No. 2, and Power No. 3, the first only being fully developed and supplying the electric power used at this time. The second is partly developed, and the third held for development in connection with the others. The company has furnished for ten years electric light and power to the people of Hendersonville and the vicinity. In 1912 George E. Laidlaw and others obtained a charter in South Carolina under the name of the Manufacturers' Power Company, but finding that they could not condemn water-power under our laws, it being prohibited to any water-power company to do this by Laws 1907, ch. 74, they organized the Blue Ridge Interurban Railroad Company, claiming that under the laws of 1907, ch. 302, having the power to construct an interurban railroad, they could condemn water-powers for that purpose.
The plaintiffs instituted this proceeding to condemn for their purposes the tracts No. 2 and No. 3 above described, belonging to the defendants. The summons was dated 27 February, 1913, but the prosecution bond which is required by Revisal, 450, to be given "before issuing the summons" is dated 10 March, 1913, and (169) summons was served on that day on the defendants.
Chapter 74, Laws 1907, conferring the power of condemnation on telephone and electric light and power companies, contains the following provisos: "Provided, that the power given under this act shall not be used to interfere with any mill or power plant actually in process of construction or in operation; and Provided further, that water-powers, developed or undeveloped, with the necessary land adjacent thereto for their development, shall not be taken." Chapter 302, Laws 1907, authorizes street and interurban railway companies "owning land on one or both sides of a stream" as follows: "Whenever such company shall not own the entire water front, or all the lands, water rights, or other easements necessary to be used in fully developing such water-power, then such railroad company shall have the power to acquire any other lands, water rights, or easements which may be needed to fully develop such water-power; and if such company cannot agree with the owner or owners for the purchase of such lands, water rights, or other easements, the same may be condemned, appropriated, and taken by such railway company for that purpose, and the procedure shall be the same as that provided by chapter 61, Revisal 1905, entitled `Railways' and relating to the condemnation of lands for railroads."
It would therefore seem that if a company needed a water power to produce electric power, and styled itself an electric light and power company, it could not condemn the water-power of another for that purpose. *Page 136 Chapter 74, Laws 1907. But if it styled itself "a street and interurban railway company," and should "own land on one or both sides of a stream which can be used in developing water-power," it might have condemned the additional lands "needed to fully develop such water-power." Chapter 302, Laws 1907. Power Co. v. Whitney, 150 N.C. 34, held that water-powers could not be condemned in this State, being against our public policy as declared by chapter 74, Laws 1907.
While matters were in this state, the Legislature enacted (170) chapter 94, Laws 1913, ratified 8 March, 1913, which was entitled "An act to amend chapter 302, Laws 1907, relating to the right of eminent domain." The amendment consisted in the addition to said chapter 302, sec. 1, Laws 1907, of the following words: "Provided further, that such company or companies shall not have the power to condemn any water-power, right, or property of any person, firm, or corporation engaged in the actual service of the general public, where such power, right, or property is being used or held to be used, or to be developed for use in connection with or in addition to any power actually used by such persons, firms, or corporations serving the general public." This act, ratified 8 March, 1913, was subsequent to the date in the summons issued by the plaintiff in this proceeding (27 February), but was prior to giving the prosecution bond in that case, which is required to be done "before the summons is issued," and was also prior to the service of the summons in this case. At that time the plaintiff had acquired no vested right in the land sought to be condemned, and the Legislature had the power to withdraw, or repeal, any provision of law under which the plaintiffs could have acted, if indeed they were authorized to condemn this property by chapter 302, Laws 1907.
In Dyer v. Ellington, 126 N.C. 945, it is said: "Until the right becomes vested, we think it can be destroyed by the Legislature. As the laws of one Legislature do not bind another, except in so far as they may be absolute contracts, we must take Revisal, 2830, as merely a rule of construction, having no application where the intention of the Legislature clearly and explicitly appears to the contrary." In Williamsv. R. R., 153 N.C. 365, the Court said: "Where the suit is brought during the life of a statute, and is pending at its repeal, without having gone to judgment, the Legislature may, by express terms, take away the right of action. Dyer v. Ellington, supra. The power of the Legislature to destroy, by a repealing act, a penalty before it has become vested by a judgment, is placed upon the ground that it is a right (171) created by statute — a favor conferred by legislative act which may be withdrawn by express provision before judgment."
In Pearsall v. R. R., 161 U.S. 637, cited and approved in Bank v.Glenn, 163 U.S. 425, it is said: "Where no act is done under the *Page 137 provision and no vested right is acquired prior to the time when it is repealed, the provision may be validly recalled without thereby impairing the obligation of the contract." To same effect R. R. v. Texas,107 U.S. 240.
The Legislature may alter a provision of law at any time before the rights of parties are settled. Phifer v. Commissioners, 157 N.C. 150; S.v. Cantwell, 142 N.C. 616. In R. R. v. Nesbitt, 10 Howard (U.S.), 395, it was held that even after the acts required to condemn had been performed, except payment of compensation assessed, it was competent for the Legislature to repeal. Wilson v. Jenkins, 72 N.C. 9.
A man's land should stand condemned when, and only when, every step which the law prescribed to that end has been complied with. S. v. Jones,139 N.C. 639. There is no vested right under any general statute until all necessary steps have been taken. Gaslight Co. v. Hamilton, 146 U.S. 269. A right is vested when judgment is entered. Dunham v. Andrews,128 N.C. 213. It is when the right becomes absolute that no subsequent repeal can invalidate it. Copple v. Commissioners, 138 N.C. 134.
Even if the right to condemn water-powers had been conferred upon the plaintiff company by a special act of the Legislature, it was competent for the Legislature to repeal it. The Constitution of North Carolina, Art. VIII, sec. 1, prescribes: "Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes, and in cases where, in the judgment of the Legislature, the object of the corporation cannot be attained under general laws. All general laws and special acts passed pursuant to this section may be altered from time to time or repealed." This provision was placed in our Constitution, as it has been placed in the constitutions of all the other States, to avoid the effect of the Dartmouth College decision. which held that the charters of corporations were contracts, (172) and not privileges revocable at the will of the State. This provision in our Constitution fixes every corporation taking out a charter since 1868 with notice that the State has the right to repeal or alter such charter at will. Wilson v. Leary, 120 N.C. 92; Ward v. E.City, 121 N.C. 2; Coleman v. R. R., 138 N.C. 354.
At the time the act of 8 March, 1913, was enacted, the plaintiff had filed no prosecution bond nor complaint, and the summons was not served. It goes without saying that it had acquired no vested right to condemn the defendants' land and could not do so until judgment had been obtained in such proceeding. The matter turns, therefore, on the question whether upon the terms of chapter 94, Laws 1913, the land in question is subject to condemnation.
It is true that from the decision in R. R. v. Davis, 19 N.C. 451, *Page 138 down to the present it has been held that as to property within the scope of condemnation proceedings a jury is not required except as to the assessment of damages. But whether or not land comes within the scope of property subject to condemnation is a matter of law depending upon the finding of fact by a jury as to the nature of the land sought to be condemned, when that is put in issue by the pleadings, as in this case.
If, therefore, the tracts Power No. 2 and Power No. 3 were either "a water-power, right, or property of any person, firm, or corporation, engaged in the actual service of the general public, where such power or right of property is used or held to be used, or to be developed for use in connection with or in addition to any power actually used by such person, firms, or corporations serving the general public," it is specifically withdrawn from the power of condemnation by chapter 94, Laws 1913, as is also a graveyard or other property also exempted from condemnation by the statute.
The essence of the defense in this proceeding is that tract, Power No. 2, was such property as was exempted from condemnation by plaintiff under chapter 94, Laws 1913. This was an issue of fact which the judge properly submitted to the jury, and the jury found that it (173) was property which "could be developed as a water-power or used as such in connection with or in addition to the power actually in use by the defendant company." Upon this verdict judgment should have been entered for the defendant on that issue.
There was ample evidence to submit that issue to the jury. The judge did not set aside the verdict as being against the weight of the evidence nor as a matter of discretion, but erroneously held that this was a "question of fact," and not an issue of fact, and thereupon struck out the response of the jury "Yes" to the tenth issue, that it was such property, and entered his own response "No" to that issue as a matter of law, or rather as a finding of a question of fact which was for the court. In this he erred.
The action of the court in this respect is reversed, and the verdict of the jury as to the tenth issue must be restored, with directions to enter judgment thereon in favor of the defendants as to the tract Power No. 2. It seems that there is no real controversy over the other tract.
The defendants need this water-power for their own use, as the jury find, upon the evidence.
Reversed.