concurring. I concur with the result reached by the majority but upon the basis of a different section of the statutes and a different construction of those to which they refer. They rely on Act 155 of 1935 [Ark. Stat. Ann. § 35-902 (Repl. 1962)] as the source of the city’s power by giving it a strained construction rather than a strict one as is required.
In determining whether the city has the power to condemn the waterworks system, it should be kept in mind that grants from the sovereign are to be construed strictly against the grantee; that the authority for taking private property should be clearly expressed; that statutes relating to the delegation of the state’s’ power of eminent domain should he strictly construed in favor of the property owner and against the condemnor and any fair, reasonable and substantial doubt about the existence of a power in a municipal corporation must be resolved against it. City of Little Rock v. Raines, 241 Ark. 1071, 411 S. W. 2d 486 ; City of Osceola v. Whistle, 241 Ark. 604, 410 S. W. 2d 393 ; City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30.
The majority holds that the power, exists because it cannot he said that “a lawful purpose” can he constructed. It is no more logical to say that “a lawful purpose” can be condemned, hut giving, the Act the interpretation they have requires that construction. As they construe the section, it would read:- ..
‘ ‘ The right and power of eminent, domain is hereby conferred upon municipal corporations to enter upon, take and condemn * * * other-lawful purposes. The term, or other lawful purposes., as used-in this section, shall include a waterworks system in its entirety,***”
Applying the rules of strict construction, the statute should be construed as relating to waterworks systems as. if it read:
“The right and power of eminent domain is hereby conferred upon municipal corporations to enter upon, take and condemn private property * * * for * * * a waterworks system in its entirety, or any integral part thereof, or any extension or betterment or improvement to an existing waterworks system operated by such municipal corporation.”
Under this construction, authority to condemn an existing waterworks, cannot be found in this section alone.
Nor do I agree with them that condemnation is a method of purchase. A condemnation is a taking. Even if full compensation must be made, the exercise of the power of eminent domain is no less a taking.
This does not mean that the city cannot proceed in this action under the very section of the statute wherein the majority finds authority. Ark. Stat. Ann. § 19-2317 (Repl. 1956), as amended, is basically § 14 (as amended) of Act 1 of 1875, the comprehensive “Municipal Code” then adopted. This section gives municipalities the “power to provide a supply of water by constructing or requiring [acquiring] by purchase or otherwise, wells, pumps, cisterns., reservoirs or. waterworks * * * ”. The bracketed word is supplied by the compiler of the statutes. His action in so doing was proper. It is a well-settled rule of statutory construction that statutes should receive a common-sense construction and where one word has been erroneously used for another and the context affords the means of correction, the proper word will be deemed substituted when the' intent is plainly deducible from other parts of the statute. Graves v. Burns, 194 Ark. 177, 106 S. W. 2d 602 ; Daniels v. Johnson, 216 Ark. 374, 226 S. W. 2d 571 ; Howze v. Hutchens, 213 Ark. 52, 209 S. W. 2d 286. The intention of the General Assembly to have used the word ‘ ‘ acquiring” is obvious.
An analysis of Act 1 of. 1875 indicates the explicit legislative intention that § 741 be the section governing proceedings for the condemnation of property, for proper municipal purposes authorized by the Act. § 7 gave authority to cities and towns, to supervise and control streets, highways, bridges and alleys. § 8 gave authority to establish and construct landing places, levees, wharves, docks, piers and basins. § ,15 authorized the provision of cemeteries. § 18 authorized establishment of streets, alleys, public grounds, wharves, landing places, market places, and construction of sewers and drains. § 30 prohibited any improvement requiring proceedings to condemn private property without the concurrence of two-thirds of the whole number of members of the council. The sub-title of the Act which precedes sections 74 and 75, both inclusive, is: “APPROPRIATION OF PRIVATE PROPERTY.” The title of § 74 is “Proceedings to appropriate private property to public use.” A reading of that section in its original form clearly shows that this section was intended to provide the means, and procedure for a city to acquire property for any of the municipal purposes provided for in the entire Act. Wharves, levees, parks, squares -ánd market places are enumerated. The phrase “other lawful purpose” was. used in the original Act. It could refer to nothing other than the lawful purposes of municipal government as therein provided, but not specifically enumerated in that section itself. I have not been able to find other authority existing upon adoption of the Act for the exercise of the power of eminent domain by municipal corporations for many of these purposes.
The intention of the General Assembly to enact a comprehensive statute covering all phases, of municipal government is clear. The title of the Act is, “AN ACT to be entitled an act for the incorporation, organization and government of municipal corporation.” § 95 was a general repealer. Ark. Stat. Ann. § 19-2317 and § 35-902 are simply §§ 14 and 74, respectively, of the 1875 Act and when read together clearly give a municipal corporation the power to acquire a waterworks by the exercise of the power of eminent domain, this, being one of the “other lawful purposes” contained in the Act as amended.
Ark. Stat. Ann. §35-902 is part of this section as amended. .