(concurring and dissenting) :
I agree with the majority opiniop and with the lower court in holding that Act No. 1161 of the 1972 Acts of the *239General Assembly of South Carolina is unconstitutional. I also agree that the Palmetto, Cablevision Company is not a public utility.
I am, however, of the opinion that the lower court erred in failing to grant an injunction as prayed for in the complaint. Paragraph 4, subparagraph a, of the complaint alleges :
“4. The aforesaid acts by the defendant are in violation of the laws, statute, and Constitution of the State of South Carolina in the following particulars:
“a. Defendant has not obtained from the plaintiff any grant, franchise or permission of any kind to go upon any public lands, rights-of-way, streets or roads of the county to erect or install such cable television system; and is guilty of encroachment upon the County right-of-way in violation of law.”
The answer of the defendant responds to this allegation as follows:
“(a) That as to specification a, defendant has license agreements with the telephone company and the power company to use their poles and rights-of-way and with the South Carolina State Highway Department where necessary to cross State highways underground, and no additional grant of permission from Richland County is necessary, the same has been obtained.”
The lower court disposed of the issue raised by this allegation as follows:
“The plaintiff contends that the defendant must obtain the plaintiff’s permission to use the public streets and rights-of-way and that the defendant has not done so.
“It appears to the Court that permission from the plaintiff is not required, but even if it is, the plaintiff has given it.”
I think the lower court erred in holding “. . . that permission from the plaintiff is not required, . . . .” Mr. Green, *240a member of Richland County Council, testified that Rich-land County requires a person wishing to use its streets, or rights-of-way, to obtain a permit and that the defendant had never applied to Richland County for such a permit. Even though the county has no right to. grant a franchise or license to operate cable television, it has the right, if not the duty, to control its properties and its rights-of-way.
The permission relied upon by the defendant and held proper by the lower court is first a letter signed by “C. Laney Talbert, Richland County Supervisor and Chariman, Board of Road Commissioners for Richland County”. It was dated March 31, 1972, and addressed to, the Manager of Palmetto Cablevision, Inc., the defendant, and reads as follows:
“Dear Mr. Long:
“Palmetto Cablevision, Inc. is granted the right to use all roads and right of ways belonging to Richland Co.unty for the purpose of installing and constructing a cable television system in Richland County.
“It is our understanding that, wherever possible your company will utilize existing poles owned by South Carolina Electric & Gas Company and/or Southhern Bell Telephone & Telegraph Company, and that your company has already procured pole attachment agreements with the above referenced utility companies.
“Your Copipanies (sic) authority to utilize these public right of ways is conditioned upon the installation of cable in accordance with all ordinary safety standards as to height, noninterference with vehicular traffic, and all other reasonable safety standards observed by S.o.uth Carolina Electric and Gas and Southern Bell Telephone and Telegraph.”
There is no contention that the letter resulted from the combined action of the “Board of Road Commissioners for Richland County” and accordingly the letter represents the action of the supervisor alone.
*241In my view, neither Code § 14-254, noy § 30-801, nor § 33-456, relied upon by the lower court, grants to the supervisor authority to convey the rights Mr. Talbert attempted to give the defendant. It is not clear from the record whether the lower co.urt interpreted the right as a permanent easement or merely a temporary privilege. The statutes do not give to the supervisor the right to grant either. Certainly, the instrument does not have the solemnity of an instrument designed to convey an interest in real estate. If the supervisor may grant such privilege to one cablevision company, he may grant it to another and deny it to a third, and I suppose he could revoke the grant at any time. Certainly, he is not authorized to convey an interest in, or privilege to use, county property without compensation.
The defendant, not being a public utility, has no right to require the use of private or public property and the supervisor had no right to give away either an easement or privilege to use.
The lower co.urt further held that . . the County Council gave perforce the letter of November 24, 1969 (Defendant’s Exhibit) written to the telephone company ■ stating that Richland County does not have any authority or power with respect to the granting o,f licenses or franchises for cable television in the unincorporated areas of the County”. The letter referred to by the lower court was written by Mr. Fulton, Finance Director for County Council, to, the General Transmission and Outside Plant Engineer of Southern Bell Telephone and Telegraph Company. I quote the relevant portions of the letter as follows:
“Dear Mr. Brown:
“Richland County does not have any authority or power with respect to the granting of licenses or franchises fo,r cable television in the unincorporated areas of this county.
“Therefore, no franchise or other permit is required by this County for the installation of CATV Cable.” *242I would rule that it was error for the lower court to hold that this letter granted to the defendant permission to use any and all of the county’s roads, streets and rights-of-way in the promotion of its business.
The complaint also alleges:
“e. Plaintiff is informed and believes that defendant is using rights-of-way o,f public utility corporations without compensation to the landowners in violation of Article 9, Sections 19 and 20 of the South Carolina Constitution, having made contracts with other public utilities to use their rights-of-way in violation of said constitutional provisions.”
The lower court held, relying upon the case of Leppard v. Central Carolina Telephone Co., 205 S. C. 1, 30 S. E. (2d) 755, that utility companies involved in this case had the right to, permit the defendant to attach its wires to their poles. In Leppard, there was involved a public utility. I do not think that this case stands for the proposition that a utility company which acquired a right-of-way for the purpose of serving the public, can grant to a private company (not a utility) the right to use its poles. However, the issue is not one which Richland County is entitled to raise and is a dispute which at most may involve the owner of the land and the public utility involved and the defendant. Therefore, I agree that no injunction should have been granted based on allegation “e” set forth above.
I would reverse the lower court and hold that the defendant should be enjoined from traversing and using Richland County public lands, rights-of-way, streets and roads to install a cablevision system.