Paris Mountain Water Co. v. City of Greenville

This is an action to enjoin condemnation proceedings instituted by the defendant.

The facts out of which the controversy arose are thus stated in the decree of his Honor, the Circuit judge:

"The authorities of the city of Greenville desire to acquire the water plant of the Paris Mountain Water Company, now established, and furnishing water to said city. The water company wants something like $1,000,000 for the property; the city authorities do not agree that this is a reasonable price; the water company will not sell at a price which the city authorities will agree is reasonable; so the city resorts to condemnation — that is, to force the company to sell, at a price to be fixed, in condemnation proceedings. This power of condemnation is given to the cities of Greenville, Charleston, and Spartanburg by sections 3027-3031 (as amended by an act of 1914, 28 Stat. 499), Code 1912. The city gave the water company notice that it was about to proceed under this power, whereupon the water company got up a complaint against the city claiming therein that these laws are unconstitutional, as in violation of section 34, article III, of the Constitution, as being local or special laws, and of section 1, article VIII, as giving power to these three cities not given to other cities of the same class, and, by the proposed amendment to the complaint, that these laws are further constitutionally objectionable as in violation of sections 17 and 18, article III, in reference to the title and method of passage of legislative acts, and further claiming in the complaint that as the city could not, under the provisions of the Constitution, set out in the complaint, pay for the plant, even if condemned, without exceeding the bonded indebtedness allowed by law, and could not proceed to condemn without a vote of the people upon the question, that, therefore, it is wrong and inequitable that the city should be allowed to go ahead and condemn without taking such a vote, thereby the water company claims, subjecting it to *Page 191 having its property undervalued by a local jury, to the injury of its credit, and at the expense of a litigation which must prove fruitless.

"Upon this complaint the water company obtained from Special Judge Ansel, at the last term of Court, a temporary restraining order preventing the city from going on with the condemnation. The city now comes in with a demurrer, which says that, admitting all the facts set out in the complaint, that yet, as a matter of law, the complaint states no cause for equitable interference, and the question is raised, as to the claim of the complaint, that the city could not pay for the waterworks, that, as a matter of law, under the amendment to the Constitution of 1911, all limit as to municipal bonded indebtedness is removed when the proceeds of the bonds are to be used for the purchase of waterworks, and that, anyhow, this objection is totally premature, as it is not now for the water company to say whether the city can pay the price fixed in the condemnation proceedings as an objection thereto; furthermore, that as a vote of the people has to be taken as to whether the condemnation price shall be paid, and the bonds issued therefore, no intelligent vote can be taken until the price is fixed by condemnation proceedings, as the people would not know for what price the plant was to be had nor the amount of the proposed bond issue.

"As to the constitutional objections raised in the complaint to sections 3027-3031, the city claims that these are not well founded, as these laws, the city claims, are neither local nor special laws, nor giving to the three cities named special powers not given all cities of the same class, and as to the objections raised by the proposed amendment, as they all relate to the method of the passage of the laws relied upon by the city, that, as they are included in the Code of 1912, such objections are not available."

His Honor, the Circuit Judge, sustained the demurrer, and dismissed the complaint, and the plaintiff appealed. *Page 192

The first question that will be consider is: Whether there was error on the part of his Honor, the Circuit Judge, in refusing to allow the plaintiff to amend its complaint by inserting the following proposed paragraph:

"And the plaintiff alleges further that the said legislation was not properly included nor enacted in the Code of 1912, not being a part of the General Statute Laws of this State then in force, not being properly included in the report of the Code Commissioner, and not being an abridgment or amendment of any existing legislation nor properly suggested by him as such, and not being read over three times nor passed according to the forms of said Constitution for the enactment of laws, nor under the formalities prescribed in said Constitution for the passing of laws in article III, sections 17 and 18, of said Constitution, and is, therefore, unconstitutional and void under said sections and under section 5 of article VI of said Constitution."

It is only necessary to cite the case of Nexsen v. Ward,96 S.C. 313, 80 S.E. 599, to show that the exception raising this question cannot be sustained. Furthermore, even if there was a failure to comply with the requirements of the Constitution in the particulars specified in the exceptions, the act of 1914 amending section 3027 of the Code of Laws 1912 authorized the condemnation proceedings.

The next question to be determined is whether sections 3027 to 3031, Code of Laws 1912, contravene section 1, article VIII, of the Constitution, in that they confer powers upon the three cities of Charleston, Spartanburg and Greenville, not given to other corporations of the same class.

Section 3027 of the Code of Laws, after its amendment in 1914, now reads as follows:

"Any municipal corporation in this State desiring to establish waterworks or to enlarge or extend the same, whether they own or operate the plant or not, shall have the right to condemn lands, water rights and water privileges, or any *Page 193 other property, including existing waterworks or pipe lines, or any part thereof, necessary for the purpose of establishing, maintaining, extending or operating waterworks plants for supplying water to said municipal corporations and to citizens thereof: Provided, That proper compensation be first made to the owners thereof, such condemnation to be made in the same manner as condemnation are now made by railroad corporations."

Section 3028 is as follows:

"Any other corporation now engaged exclusively in the business of supplying water for fire, sanitary or domestic purposes in this State, or which may intend to engage exclusively in the business of supplying water for such purposes, shall have the same rights and same powers as are herein conferred upon municipal corporations in section 3027."

Section 3029 relates to damages to land, which it declares cannot be condemned, unless it is necessary for the proper use and maintenance of the waterworks.

Section 3030 is as follows:

"The condemnation, therefore, is to be made in the same manner and same way as provided * * * in sections 2472 to 2484, inclusive, of this Code."

Section 3031 is as follows:

"The provisions of sections 3027 to 3030, both inclusive, shall apply only to the cities of Charleston, Greenville, and Spartanburg, and to other corporations engaged exclusively in supplying water to said cities and to the inhabitants thereof."

Section 1, article VIII, of the Constitution provides that:

"The General Assembly shall provide by general laws for the organization and classification of municipal corporations. The powers of each class shall be defined so that no such corporation shall have any powers or be subject to any restrictions other than all corporations of the same class."

Section 5, article VIII, of the Constitution provides that:

"Cities and towns may acquire by construction or purchase, *Page 194 and may operate waterworks systems and plants for furnishing lights: * * * Provided, That no such construction or purchase shall be made except upon a majority vote of the electors in said cities or towns, who are qualified to vote on the bonded indebtedness of said cities or towns."

The following amendment to section 7, article VII, was adopted in 1905:

"Provided, further, That the limitation imposed by this section, and by section 5, article X, of this Constitution, shall not apply to bonded indebtedness incurred by the city of Greenville, but said city of Greenville may increase its bonded indebtedness in the manner provided by said section of said article to an amount not exceeding 15 per cent. of the value of all taxable property therein, where the proceeds of said bonds are applied solely to the payment of past indebtedness to expenses and liabilities incurred or to be incurred in the improvement of streets and sidewalks, and for providing sewerage for said city or any part thereof, for purchasing, establishing, owning or operating waterworks or electric light plants."

In 1911, section 7, article VIII, of the Constitution was also amended by adding thereto the following:

"Provided, further, That the limitation imposed by this section and by section 5, article X, of this Constitution, shall not apply to the bonded indebtedness in and by any municipal corporation when the proceeds of said bonds are applied solely and exclusively to the purchase, establishment and maintenance of a waterworks plant, or sewerage system, or lighting plant, and when the question of incurring such indebtedness is submitted to the freeholders and qualified voters of such municipality, as provided in the Constitution upon the question of other bonded indebtedness."

The provisions of the amendment which was added in 1911 show that two important changes were contemplated: First, the repeal of the limitation theretofore imposed upon the power of municipal corporations to incur a bonded *Page 195 indebtedness when the proceeds of the bonds are applied solely and exclusively for the purchase, establishment, and maintenance of a waterworks plant, etc.; and, second, to confer upon any and every municipal corporation in the State the power to incur a bonded indebtedness, without limitation as to the amount thereof, provided the proceeds of the bonds are applied solely and exclusively for the purchase, establishment, and maintenance of a waterworks plant. Lillard v.Melton, 103 S.C. 10, 87 S.E. 421.

If this is the correct construction of the said amendment, then the provision in section 1, article VIII, that the General Assembly should provide by general laws for the organization and classification of municipal corporations is inapplicable, as under said construction no municipal corporation would have any powers or be subject to any restrictions different from those affecting all municipal corporations in the State.

Section 3031 of the Code of Laws, which provides that the provisions of sections 3027 to 3030 should apply only to the cities of Charleston, Greenville, and Spartanburg, did not confer upon those cities any rights which they did not have already under the said amendment to the Constitution in 1911. What we have just said disposes of the question whether his Honor, the presiding Judge, erred in ruling that sections 3027 to 3031 are obnoxious to article III, section 34, subdivisions 2 and 9, of the Constitution as to classification.

The next question is whether his Honor, the presiding Judge, erred in ruling that the condemnation statutes are not in contravention of the Constitution.

It will be observed that section 5, article VIII, of the Constitution uses the words "construction" and "purchase," and that the constitutional amendment in 1905 provides that the limitations imposed by the sections therein mentioned should not apply to the bonded indebtedness incurred by the city of Greenville when the proceeds of the bonds are applied solely *Page 196 for purchasing, establishing, owning, or operating waterworks, and that the constitutional amendment in 1911 provides that the limitations should not apply when the proceeds of the bonds are applied solely and exclusively for the purchase, establishment, and maintenance of the waterworks plant.

There can be no doubt that the words "construction" and "purchase" in section 5, article VIII, and the words "purchasing, establishing, owning or operating" in the amendment of 1905, and the words "purchase, establishment and maintenance" in the amendment of 1911, were intended to confer the same powers and to accomplish the same result.

In the interpretation of the words "construction," "purchase," "establish," "own," "operate," and "maintain," they should be construed together and not singly. Their evident intention was to empower the municipality to acquire ownership of the waterworks plant in any manner authorized by law. There is another reason why the exceptions raising this question cannot be sustained. The power of the legislature is plenary and unrestricted, except in so far as limitations are imposed upon its action by the Constitution.State v. Aiken, 42 S.C. 222, 20 S.E. 221, 26 L.R.A. 345;Carrison v. Kershaw County, 83 S.C. 88, 64 S.E. 1018;Lillard v. Melton, 103 S.C. 10, 87 S.E. 421. In the absence of constitutional limitations restricting its powers, the legislature could have conferred upon the city of Greenville the right to resort to condemnation proceedings, and it still has such power, unless the authority to acquire ownership by condemnation proceedings is inconsistent with the power to construct, purchase, establish, or own a waterworks plant. Norton v. Brabham, 21 S.C. 375.

The use of different words for the purpose of conferring upon municipal corporations the power to acquire ownership in waterworks plants shows that the intention of the amendments to the Constitution was to remove all obstacles to the accomplishment of that object, and cannot be successfully *Page 197 contended that condemnation proceedings are inconsistent with those words; but, on the contrary, are in furtherance of their plain and obvious intention.

In Bascom v. Oconee, 48 S.C. 55, 25 S.E. 984, it was held that power conferred upon the county commissioners to open and establish a public road with a bridge over a stream included the authority to purchase the bridge already constructed. In Dick v. Scarborough, 73 S.C. 153,53 S.E. 87, the Court says:

"It is true, power to hold an election to authorize the issuance of bonds to purchase waterworks is not given in this statute by use of the word `purchase,' but `establishing' municipal waterworks may be accomplished by purchase as well as by construction. Establishing waterworks obviously here means the acquirement and inauguration of a system of waterworks as a municipal enterprise and as municipal property by either construction or purchase."

In Verner v. Muller, 89 S.C. 545, 72 S.E. 393, the Court uses this language:

"The purpose of the Constitution (section 6, article X) was to leave the legislature free to authorize counties and townships to establish and maintain public roads, buildings and bridges. The word `build' may be employed in the sense of obtain, secure, or acquire, as well as the ordinary meaning."

The next question is whether there was error in the ruling that the allegation of the complaint that the city has not sufficient funds to pay for the property sought to be condemned states a good ground for injunction. The question is not only premature, but as there is no limitation on the power of the city of Greenville to contract a bonded indebtedness in the manner provided by law, it is unreasonable to suppose that it would not be able to meet any obligation it might contract. Furthermore, such question pertains to the remedy, *Page 198 for the enforcement of the condemnation proceedings, and presupposes authority on the part of the city to resort to condemnation proceedings. Therefore it does not properly arise until it is determined whether the defendant has the right to condemn. If it has not such right, then the question is merely speculative, and is not properly before the Court for consideration; while, on the other hand, if it has the power, the Court would enjoin the defendant from taking the property of the plaintiff without just compensation being first made therefore. But it is not a taking of property without compensation merely to ascertain the amount of compensation to be paid, in case it is determined in the manner provided by the Constitution, that the qualified electors are in favor of the city becoming the owners of the plaintiff's waterworks plant. Section 5, article VIII, empowers cities and towns to acquire by construction or purchase waterworks plants: Provided, That no such construction or purchase shall be made except upon a majority vote of the electors of said cities or towns, who are qualified to vote on the bonded indebtedness of said cities or towns. Section 7, article VIII, provides that no city or town shall incur any bonded debt and unless a majority of the electors voting on the question shall be in favor of creating such bonded debt none shall be created.

The intention of these sections is that the result in each instance shall be determined by a majority of the qualified electors voting upon the respective questions, and there is no good reason why both questions cannot be submitted to the qualified electors, provided the questions are so submitted that the electors shall be able to vote on each question.

The next question is whether there was error in the ruling that it was not necessary to hold two elections — one upon the question of adopting the policy of public ownership, and the other as to the issue of bonds — before resorting to condemnation proceedings. The condemnation proceedings are *Page 199 only intended at this time to determine the amount of damages to be paid by the defendant in order to acquire the ownership of the waterworks plant, and such question is preliminary in its nature. After this question has been settled then the question whether the voters are in favor of acquiring the ownership of the plant, and, if so, whether bonds should be issued for such purpose, will be determined in the manner provided by the Constitution.

It is contended that the condemnation proceedings are unconstitutional. It is, however, only necessary to cite the case of Railway v. Ellen, 95 S.C. 68, 78 S.E. 963, Ann. Cas. 1915b, 1042, to show that the exceptions raising this question cannot be sustained.

The next assignment of error is because his Honor, the Circuit Judge, should have overruled the demurrer on the ground that the complaint states a cause of action for equitable relief, against the condemnation of the personal property described in the complaint. The Constitution confers upon the city the power to acquire ownership of the plaintiff's waterworks plant, and that is the only property the defendant is seeking to condemn.

The last question is whether the plaintiff is entitled to an injunction on the ground that the city has already incurred a bonded indebtedness to the exent of 15 per cent. of the value of the taxable property therein, and that there is no legislation authorizing the city to exceed that amount.

In their argument the appellant's attorneys thus state the proposition for which they contend:

"The complaint alleges and the demurrer admits that a bond issue is necessary and is actually contemplated for the purpose of raising funds to pay for plaintiff's plant, and such bond issue is impossible because section 3050 of the Code of 1912 fixes the legal limit of bonded indebtedness for the city of Greenville at 15 per cent. of the value of its taxable property; and said limit has been reached and there has been no further legislation authorizing any issue beyond *Page 200 15 per cent., although such legislation is absolutely essential, and although we concede that the constitutional limitation upon the power of the legislature had been removed, and it may now enact such legislation if it sees fit."

Section 3050 of the Code of Laws merely enacts in statutory form the exact words of the constitutional amendment of 1905 hereinbefore set out. By reference to that amendment it will be seen that it provides that the city of Greenville may increase its bonded indebtedness to an amount not exceeding 15 per cent. of the value of taxable property therein. The effect of the amendment of 1911 was to repeal so much of the amendment of 1905 as placed a limit on the power of the city to incur a bonded indebtedness for the purposes therein set forth, so that the amendment of 1905 must now be read as empowering the city of Greenville to increase its bonded indebtedness to an unlimited amount. It cannot be successfully contended that it was necessary for legislation to give force and effect to this power, as there is nothing whatever indicating such intention. Furthermore, the amendment of 1911 repealed so much of section 3050 as limited the power of the city to incur a bonded indebtedness, and that section must now be read as authorizing the city to increase its bonded debt for the purposes therein mentioned, to an unlimited amount.

For these reasons I dissent.

MESSRS. JUSTICE WATTS and GAGE, and CIRCUIT JUDGES SEASE and GARY concur in the dissenting opinion delivered by the CHIEF JUSTICE. *Page 201