The single question here is whether the city of Osceola has the power to condemn land beyond its city limits as a right-of-way for an electric transmission line. The chancellor held that the power does not exist and accordingly enjoined the city from attempting to condemn the property of the plaintiffs, now the appellees.
All the facts were stipulated. For many years Osceola has owned and operated a producing and distributing electric system, furnishing electricity to its citizens and to others outside the city. In 1965 the city executed a contract by which it was to purchase electrical power from the Southwestern Power Administration, an agency of the federal government. The city has issued revenue bonds to pay for the construction of a new transmission line extending’ about fifty miles from Osceola to a point near Jonesboro, which is to he the place of delivery of the SPA power.
The proposed line will cross the plaintiffs’ property, which lies outside the city limits of Osceola. The city failed in its efforts to purchase the needed right-of-way across the property and was about to file a condemnation proceeding when the plaintiffs brought these suits, consolidated below, to enjoin the city from instituting such a proceeding. The parties agree that a justiciable issue is presented.
There is no controversy about the abstract principles of law that govern a case of this kind. With respect to the powers of a municipality we quoted Judge Dillon’s familiar recapitulation in Cumnock v. City of Little Rock, 154 Ark. 471, 243 S. W. 57, 25 A. L. R. 608 (1922): “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.”
The rule of strict construction is especially applicable to statutes conferring the power of eminent domain, as the exercise of that power can entail harsh consequences to the landowner. ‘ ‘ The authority for the taking of private property for public use should be clearly expressed and the statute strictly construed.” City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30 (1958).
Here the city of Osceola first insists that by statute municipalities in Arkansas have expressly been given the power to condemn land outside the city limits as a right-of-way for electric transmission lines. Before examining the statutes that are cited we point out that in some instances the legislature has specifically authorized a city to condemn property outside its geographical limits. Such unmistakable delegations of power exist with reference to patural gas transmission lines, Ark. Stat. Ann. § 19-4813 (Repl. 1956), water supplies, § 35-902 (Repl. 1962), and public parks, § 35-901. We attach some significance to the fact that the legislature has seen fit in those instances to leave no doubt about its intention to permit the city to condemn property beyond its corporate limits.
There is no similar clarity of purpose in the statutes relied upon by the appellants. Counsel assert that an express delegation of the authority now claimed is to be found in any one of three sections of the compiled statutes. We are unable to agree with this contention.
First is Section 35-902, which was originally part of a comprehensive 1875 statute pertaining to municipalities. This is the language relied upon: “The right and power of eminent domain is hereby conferred upon municipal corporations to enter upon, take and condemn private property for the construction of wharves, levees, parks, squares, market places, or other lawful purposes.” Construing the statute strictly, as we must, we cannot read into the phrase, “or other lawful purposes,” the delegation of authority now contended for by the city. This sentence was added to the statute by Act 155 of 1935, which dealt primarily with municipal waterworks. In the 1935 act the legislature specifically provided that property for a waterworks might be condemned in a different county from that of the municipal corporation. Thus if there is any inference to be drawn from the 1935 amendment, it would be that the legislature meant for this extraterritorial authority to be limited to waterworks property.
Second is Section 19-2313, which is derived from the same 1875 statute. This section confers the power of eminent domain for the purpose, among other things, of lighting streets, alleys, public grounds, wharves, landing places, and market places. All these places are ordinarily within the city. Again construing the act strictly, we are not convinced that the legislature chose its language for the purpose of conferring the power now claimed by the city.
Third is Section 35-401. This was the first section of an 1895 act which, as we interpret it, dealt exclusively with waterworks. The act was amended in 1907. As we attribute significance to the amendment we are enclosing the amendatory language in brackets: ‘ ‘ All municipal corporations in this State, and all corporations organized for the purpose of supplying any town, city or village in this State, or the inhabitants thereof with water, [or with electrical power, generated by water, for supplying such city, town or village, with such electricity as may be required for lighting same, operating machinery or running street cars, or other cars on tracks for public purposes only], are hereby authorized to exercise the power of eminent domain, to condemn, take and use private property for the use of such corporations when necessary or convenient to carry out the purposes and objects of said corporations.” Section 6 of the original 1895 statute recognized the possibility that the land to be condemned might lie in more than one county.
Counsel for the appellant rely primarily upon the words that we have bracketed, which were added in 1907, as a basis for their contention that the city may condemn land outside its corporate limits to acquire electrical power generated by water, as the SPA power is said to be. We do not think the statute, strictly construed, to be susceptible of that interpretation. By the original act both municipal corporations and private corporations organized for the purpose of supplying cities with water were given the power of condemnation. The bracketed language that was added in 1907 was inserted in such a way as to be applicable only to the private corporations, not to the municipalities. The opening phrase in the amendatory language, “or with electric power,” makes a complete and intelligible sentence only if it refers back to corporations organized to supply a municipality or its inhabitants with such power. It is impossible to connect this newly added clause with the opening phrase in the original act, “All municipal corporations ...”
Thus we find no express statutory delegation of the power to condemn the right-of-way in question. Counsel for the appellant argue alternatively that the power exists under Judge Dillon’s third category, as an essential and indispensable accessory to the city’s express power to operate a municipally owned light plant. The trouble is, there is not a line of proof to support this contention. Whether it is necessary for the city to run a transmission line for a distance of forty-five miles for the acquisition of electric power is a fact question upon which the record is silent.
During the oral argument it was suggested by counsel for the city that, since the appellees were the plaintiffs in the case, they had the burden of proving that the construction of the proposed power line was not essential and indispensable to the operation of the municipal plant. This contention is not tenable. The plaintiffs made a prima facie ease by showing that there was no express or implied statutory authority for the condemnation of their land. Seldom does the law require one to assume the burden of proving the negative. We regard the city’s present contention as an affirmative defense peculiarly within its own knowledge and appropriately one upon which it had the burden of proof.
Affirmed.
Mc.Faddin, J., dissents.