*419 This action by appellant as plaintiff was to enjoin the prosecution of a statutory proceeding by respondent to condemn for its use a right-of-way over appellant’s farm and timber land for' the erection and maintenance of a transmission line. It is planned to connect two of respondent’s substations and -over it will be conducted electric power which will be purchased from South Carolina ■ Public Service Au-* thority and delivered to respondent’s members and customers. The local cooperative now obtains energy at -wholesale from a рrivate corporation, South Carolina Electric & Gas Company, which also supplies the inhabitants of the nearby incorporated town of Elloree. No franchise-right of that company is involved.
Eight upon the controversy is afforded by reference to South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, 215 S. C. 193, 54 S. E. (2d) 777. That case was an unsuccessful effort by the name<j 'plaintiff power company and others to prevent the construction of the transmission lines for one of which Central Electric Power Cooperative, Inc., now seeks a right-of-way over appellant’s property. Central Electric was, in effect, an unnamed party to the cited action, just as S. C. Public Service Authority is for all practical purposes аn unnamed party to the present action. The former decision largely fore-ordained this.
The instant appeal is from the judgment of the Circuit Court whereby temporary injunction was dissolved and injunction pendente lite refused. The pleadings and counter affidavits were considered by the lower Court and have been here, for the purpose of ascertaining the facts and legal positions of the parties.
Appellant’s main contentions are that the attempted exercise of the power of eminent domain is in violation of the State and Federal constitutions becausе (1) the use to which the property is proposed to be put is private rather than public, and (2) there is no prima facie showing of reasonable necessity for the taking.
*420
Is the transmission of electric power by respondent a public purpose? It was said of respondent in
South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, supra,
215 S. C. at page 199,
“No eases deny that the right of eminent domain may be lawfully exercised for use in producing and furnishing electricity * * * and for distribution to the inhabitants for lighting their homes and places of business.” 18 Am. Jur.. 694, Eminent Domain, sec. 66. “The power of eminent domain usually is conferred by the legislature on electric light and power companies, see supra § 24, and ■ the erection, maintenance and operation of plants for generating electricity and distributing the same to the public for light, heat, or power ordinarily is regarded as a public use for which private property may be appropriated.” 29 C. J. S., Eminent Domain,' § 58, page 845."
Reference to the enabling act under which respondent was created is necessary. Code sec. 8555-93 contains a lengthy enumeration of the powers of a “Cooperative,” which re *421 spondent is. These express powers include: “(d) To generate, manufacture, purchase, acquire, accumulate and transmit electric energy, and to distribute, sell, supply and dispose of electric energy in rural areas to its members, to governmental agencies and political subdivisions and to other persons not in excess of ten per centum (10%) of the number of its members; * * * (l)To exercise the power of eminent domain in the manner provided by the laws of this State for the exercise of that power by corporations constructing or operating electric transmission and distribution lines or systems; * * * (o)Todo and perform any and all other acts and things, and to have and exercise any and all other powers which may be necessary, convenient or appropriate to accomplish the purрose for which the cooperative is organized.”
The intended -nature and purpose of respondent is further evidenced by section 8555-119 by which cooperatives are exempt from all jurisdiction and control of the Public Service Commission of the State. If not public, the exemption was unnecessary, and the grant of the power of eminent domain of course improper. The purpose of a “cooperative” was defined in an opening section of the act, now No. 8552-92 of the Code, as follows: “Cooperative, non-profit, membership corporations may be organized under this chapter for the purpose of supplying electric energy and promoting and extending the use thereof in rural areas.”
The foregoing legislative expressions leave no doubt of the intention to make of the cooperatives public service corporations. As pointed out in the judgment under review, the need of available electric energy in rural, farm areas, of which this State is chiefly composed, was compelling and the great progress by which it has been met since the passage of the law7 is common knowledge. Here the record indicates that the town of Elloree and some of its environs are supplied with electricity by a private company but the rural areas thereabout are largely dependent upon a cooperative. Appellant contends that the unit cost will be *422 greater for the power-which will be furnished by the Authority than that now purchased from the .private company, but the Court has nothing to do with that in this litigation.
Appellant lays stress in argument' upon sub-section (d), which is quoted above and provides that the Service 'by cooperatives is limited to their members, governmental agencies and subdivisions and other persons not in excess of ten per cent of the number of members; and a clause in Code section 8555-98, as follows: “The by-laws (of the cooperative) may prescribe additional qualifications and limitations in respect of membership.” This contention was well answered in the circuit judgment in the following language: “Implicit in the purpose fór which cooperatives are authorized' by tlie Act, that ‘of supplying electric energy and promoting and extending the use thereof in rural areas,’ is the obligation of such corporations to máke membership available, without arbitrary or unreasonable limitations thereon, to all coming within the purview of that-purpose. It cannot properly be assumed that a cooperative will unreasonably depart from the purpose of its creation and it would be pre-judging that question to decide it before it arises.
Cf. McMeekin v. Central Carolina Power Co.,
80 S. C. 512, 518,
Universality of patronage of a public utility is not essential to “public use” of its property. The public use and the right to condemn land for an electric transmission line are not affected by the fact that many persons in the community proposed to be served are not interested in or desirous of using electric current.
Webb v. Knox County Transmission Co.,
1920,
By a simpler concept which seems sound and applicable the same result is reached with respect to the curious wording of the provision of the law which relates to “membership.” It is that the customers, which aré called “members,” of the cooperatives are in the territories of their operation the “public” which must be reasonably served, and to whom the service must be available on equal terms, in order to satisfy the undoubted rule that the power to condemn can only be delegated for, at least principally, a public use. There is no “public” which is separable from the members in the rural areas where the cooperatives do business; and they at onсe take the place of the stockholders and customers of privately owned utilities; they are both owners and customers, and that makes difficult at first the relation to this new situation of decisions affecting privately owned utilities. It is an example of the application of time-tested legal principles to a new factual situation.
We follow the intention of the General Assembly, which is manifest from the terms of the enabling act, that respondent is public in its nature and purpose, with the expressly delegated power of eminent domain, which inevitably results in the obligation to rеasonably render nondiscriminatory service. That affords protection to the public, including applicants for membership, from arbi *424 trary action by way of exclusion from membership or otherwise. This view is consistent with the legislative definition of public utility which was included in Act No. 525 of 1922, 32 Stat. 938, as follows: “every corporaton and person furnishing or supplying in any manner gas, electricity, heat, electric power, water and street railway service, or any of them, to the public or any portion thereof, for compensation. The term ‘Public or any portion thereof as used hеrein, means the public generally, or any limited portion of the public, including a person, private corporation, municipality, or any political subdivision of the State”. The definition is retained in the current Code of 1942, sec. 8209.
The following is from the opinion in
Riley v. Charleston Union Station
Co., 71 S. C. 457,
Exemption from jurisdiction of the Public Service Commission does not free the cooperatives from rate and other regulations. They may be subjected to legislation. “The rates and charges for electrical service supplied as a public utility are subject to public regulation. Such regulation is a proper exercise of the police power, provided it does not violate constitutional limitations or restrictions. This power may be exercised directly by the legislature, or *425 indirectly through municipal corporations, boards, commissions, or other governmental bodies and agencies, to which the power has been lawfully delegated.” 29 C. J. S., Electricity, § 30, page 553. In that aspect respondent is like the Public Service Authority which we have held to be exempt from the jurisdiction of the Public Service Commission. South Carolina Electric & Gas Co. v. South Carolina Public Service Authority, supra, 215 S. C. 193, 54 S. E. (2d) 777.
The foundation of appellant’s interesting legal argument is the authority of
Fallsburg Power & Mfg. Co. v. Alexander,
About a quarter century later the same highly respected Virginia Court decided
Nichols v. Central Virginia Power Co.,
Rural electrification as it is now known appears to have made its advent about 1935 and was accelerated upon passage of legislation by Congress in 1936 whereby Federal cоnstruction loans were authorized to cooperatives in the States. 7 U. S. C. A. §§ 901-914. Consequently, reported cases affecting them are few compared to the myriad of decisions relating to privately owned electrical utilities. A few were cited in argument and more have been found. They show that the courts and public service commissions of other States have sharply differed in their conclusions with respect to whether rural electric cooperative organizations, similar to respondent here and likewise formed to fit the Federal aid act, are subject to rate and other regulation by the respective State regulatory bodies. Court decisions and commission holdings are collected in an .annotation in 132 A. L. R. 1495, 1504. Among the later decisions which are not included in the annotation is
Carolina Power & Light
*427
Co. v. Johnston County Electric Membership Corp.,
A leading case of similar import and result to this is
Alabama Power Co. v. Cullman County Electric Membership Corp.,
“It is contemplated in both (a municipal corporation and that in hand — interpolated) that all the inhabitants in the described territory shall be eligible to obtain the service by complying with the reasonable conditions. Sо that they are both serving and constituted to serve the public in that area —an essential element of a utility.
State ex rel. Wood v. Consumers’ Gas Trust Co.,
“From the fact that appellee is a utility, appellant passes easily to the conclusion that it is operating illegally, since it has no certificate оf convenience and necessity under section 9795, Code. But we think that the act contains every internal evidence of an intention to exempt a corporation so organized from all regulatory requirements not prescribed for it in the act itself. It shows an intention to make the act cover the whole field of regulation which should apply at the present time. * * * All the cases we have seen justify the Legislature in classifying separately mutual cooperative organizations and corporations created not for profit making but for co-operаtive benefits to its members, and doing business in the main with its members, so as to exempt them from the operation of laws applicable to enterprises conducted for making a return on their invested capital.
“The cases cited by appellant in which it is held that cooperative utility companies are subject to the general utility laws are where there was no statute making a different classification for them. When that is done, we cannot say that there is no reasonable basis for it.” This court has recognized the validity of classification of cooperatives for other purposes.
South Carolina Cotton Growers’ Cooperative Ass’n v. English,
135 S. C. 19,
Parenthetically we note that it was in the above cited case of
Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co.
that Mr. Justice Holmes employed the following eloquent and oft-quoted language,
The Supreme Court of Indiana cited and followed
Alabama Power Co. v. Cullman County Electric Membership Corp., supra,
in
Kosciusko County Rural Electric Membership Corporation v. Public Service Commission,
1948,
It is not novel to exempt a publicly owned utility from regulation by the Public Service Commission. Sec; 8555, Code of 1942, does that with respect to municipally owned electrical utilities as to business done within the municipality. The justification and validity of such legislation was discussed and decided in the leading case of
Springfield Gas & Electric Co. v. City of Springfield,
The principal question presented by the aрpeal has been fully considered and hereinabove discussed as if an open one in this Court, because of the earnestness with which the case has been contested and argued by the able counsel for appellant. However, it is hardly so under our former decisions. Before passage of the Rural Electric Cooperative Act of 1939, now sections 8555-91
et seq.
of the Code of 1942, relevant here and reviewed in the foregoing, the State had embarked upon rural electrification and enacted the State Rural Electrification Authority Act of 1935, Code sectiоns 8555-61
et seq.
The change of policy from State authority to cooperatives was effected by Act No. 1030 of 1940, 41 Stat. 2059, entitled: “An Act Providing for the Transfer to Cooperatives of Electric Lines of the State Rural Electrifi
*431
cation-Authority‘and Prescribing the Procedure Therefor and the'Effect Thereof.” Section 2 of the act was as follows: “It is' hereby determined and declared to be the policy of the General Assembly of South Carolina thát the furnishing of electric service to persons in rural areas of this State can be more effectively promoted and accomplished by Cooperates than by the Authority.” Construction of the Act was involved in
Woodward v. State Rural Electrification Authority,
190 S. C. 465,
Appellant attacked in argument the authority of
Boyd v. Winnsboro Granite Co., 66
S. C. 433,
*432 Turning .to the other- points, .which were rather perfunctorily presented, prima facie necessity for right-of-way over the .land is established and -the notice of condemnation was as definite as appellant’s hostile conduct permitted. We affirm the -. following conclusions thereabout from the order of the Circuit Court : “The location of the line on the ground has not yet been definitely laid out by a survey because the plaintiff has refused the defendant’s representatives access to the lands for such purpose. Economic and engineering considerations require such lines to be constructed as nearly straight as practicable,, and there is no other feasible route for the line except the route across the lands in question, because any other route would increase the length of the line by several miles, and the cost would be substantially increased by reason of the additional guy wires, anchors and appropriate structures which would be neсessitated at each of four additional angles.” The factual issues of the necessity is for trial by the Court, an impartial tribunal, which satisfies the State and Eederal constitutional requirements of due process of law and .affords equal protection of the law.
Finally, appellant’s contention that the Rural Electric Cooperative Act of 1939, now secs. 8555-91
et seq.
of the Code, is unconstitutional because it is a special instead of a general law, Sec. 34 of Art. Ill of the State Constitution, is entirely untenable. The law is of application throughout the State and we think like the lower Court that only the converse authority of
State v. Hammond,
66 S. C. 219,
As stated at the outset the appeal in hand is from an order of denial of injunction
pendente lite.
The rule is well recognized in this State that an interlocutory injunction will not be granted except under the circumstances stated in the case of
Childs v. City of Columbia,
87 S. C. 566,
Sedbrook v. Carolina Power & Light Co.,
159 S. C. 1,
No error is found and the order under appeal is affirmed.