*1 City Mt. Paris v. Syllabi. GREENVILLE v. CITY OF WATER CO. PARIS MOUNTAIN ET AL. 545.) E. (96 S. — — — Elections Bond 1. Waters and Watercourses Waterworks Majority.—Elections 5, Const., VIII, cities providing sec. art. electors” majority vote of may acquire “upon a waterworks 7, city,” and sec. of “qualified to vote on the bonded indebtedness II, elections, by art. are controlled special requiring submission as elections 13, voting special at those majority that a of providing sec. city to authorize bonds. is sufficient 2. of Waterworks—Con- Waters and Watercourses—Condemnation Statute—“Majority Electors.”—Civ. of struction of Qualified 6, 1916; 1912, Large, p. 910), at (act sec. 3015 March St. Code of a water- city’s policy toward condemnation providing that electors,” will qualified “by majority fixed a works shall be voting, thus voting of those and not majority to mean a be construed rule stated in the Consti- change general making legislative a tution. Majority— n Voting—Consent 3. Elections—Electors Not Will Presumptions.—Qualified who electors have absented themselves from duly presumed express to assent to the will an election called providing law majority voting, of those unless the for the election declares.
otherwise Lights—Serving Municipal Corporations—Water 4<. Persons Out- 5, City.—Const., providing art. sec. cities furnish side firms, individuals, not limit private corporations, does water to city within the limits. the service to those situated Legisla- — Organization — Authority Municipal Corporations within legislature, a creature town ture.'—-A may, define the of the town. limitations, constitutional powers Waterworks—Injunction— 6. Eminent Domain—Condemnation Pleading.—In city proceeding enjoin from condemning a waterworks, complaint objection intends to provisions authorizing violate the Civ. Code fur- limits, corporate without the nishing persons contiguous water to thereto, noncontiguous territory point out be served. should Legislature—Policy 7. Constitutional Law—Encroachment Trading.—The suggestion that a sought to be Law—Municipal condemning a waterworks located outside of the from enjoined service, use, limits, go municipal and for outside will its own into validity policy, not of trading', question Civ. Code raises service. authorizing such Watrr Grrrnviilr. Term, Watercourses—Waterworks—Right 8. Waters of Condemnation *2 by right city acquire —Defense.—The fundamental of a condem- nation a plant by suggestion waterworks cannot be defeated persons city outside of the be here- supplied by now contract after cut off from use of water. 9. Constitutional Law—Self-Executing Provisions—Municipal Cor- porations—AcauiRiNG Waterworks.—Const., VIII, 5, 7, pro- art. secs. viding may acquire cities provide payment waterworks and for there- for, are self-executing. 10. Eminent Domain—Condemnation-—Delegation City. of Power primary right city —The of a to condemn a waterworks rests Constitution, by eminent domain vested the State not created Const., XIV, I, by by but affirmed art and limited in its exercise art. IX, 20, 17, right being sec. and art. sec. the exercise of the vested in legislature, may delegate city. it to the of Indebtedness—Statutes— Municipal Corporations—Limitation 1912, 3050, relating Constitution.-—Civ. Code sec. to the issue of bonds, municipal providing that the of Greenville shall not cent, per incur a bonded indebtedness in excess of 15 of its taxable cent, force, property, except per 15 remains limitation of by removed indebtedness which was constitutional amendment of 3, at (act Large, p. 14]), Feb. 1911 St. which is self- [27 executing. 12. Eminent of Statute—Railroads—(cid:127) Domain—Constitutionality Way—Compensation.—A provid- Condemnation—Right statute way, Sept. act by right land ing for condemnation of railroads 22, subrogated in' p. to which cities are (14 Large, 89), at St. 6, Large, at (29 St. act March condemnation waterworks with Declaration and not in conflict 940), is not unconstitutional p. IX, 17, 20). Corporations (art. sec. or article Rights, sec. — Amendment—Validity.-—Although — Constitutionality 13. Statutes waterworks, relating to failed to follow the Civ. Code Const., art. that “no such construction requirements upon a except majority made vote of the elec- purchase shall be cities,” authority so far without was not constitutional in said tors provide policy for a vote on the not be amended it could for condemnation procedure and form of waterworks acquisition Large, p. (29 940). March St. at done act as is plants, Greenville, term, Af- J., Summer Before Smith, firmed. Mountain Company Paris against
Action by others. Prom the sustaining of Greenville the City Water Greenvirre. C. Complaint.
Amended S. plain- defendant’s demurrer and dismissal of the complaint, tiff appeals.
The amended herein is as follows: complaint its amended plaintiff, by complaint, respectfully defendant, Greenville, shows to the Court: 1. The created municipal corporation existing Carolina, laws of the defend- other State South defendant, ants are the officers of the said city, Webb, and the other defendants members mayor, being being of the council is a city; plaintiff corporation said under the Caro- duly incorporated laws State South *3 lina, a and is in public service corporation providing engaged a and of to the supply city water of Greenville supplying its-inhabitants, and as well as to a number of large persons, firms and mill and corporations neighboring villages elsewhere, and such including large neighborhoods villages, Mill, Mills, Mills, as Mills Dunean and Monaghan Judson Mills and the and town inhabitants of villages, Green- West ville.
2. That the extent of the service rendered the out- public side the of city Greenville the said public service corpora- fact, tion is it is almost or to that ren- large; quite equal Furthermore, dered inside of said the demand for city. said service is rapidly and normal increasing according plaintiff its growth, experience shows that within alleges time, two, a short in a probably year the limit of its capac- for ity service will reached.
3. a Under franchise the said granted by city of Green- charter, ville to plaintiff, and under its has plaintiff acquired estate, real and sheds, has to obtain proceeded water to erect reservoirs, mains, and and lay pipes acquire valuable tools and and a machinery, amount of other large personal prop- all at an of erty, expense dollars, hundreds of thousands of furnish, and and has proceeded ever sincé been furnish- to the water of Greenville city and to the ing, private citizens thereof, and is now in said engaged purpose, is the City
Paris Mt. v. Greenvirre. Term, owner of said which' plant is located in county aforesaid, and, (and partly as city) plaintiff believes, is informed and $1,000,000; more than now worth December, 1916, That on the 14th the defend- day ant, Greenville, by reason of resolution passed by its mayor council caused to be during year served upon plaintiff notice: “To Paris Moun- following tain Water Company, Corporation Owning Operating Waterworks Partly Within and Partly Without Greenville: You will take notice that please Greenville,, a municipal corporation under the laws of Carolina, State desires to South own and operate municipality, system waterworks to be used supplying water to the thereof, city Greenville and to the citizens and that to this end the said city requires water plant mains, all belonging you, reservoirs, land including pipes, and watersheds and all other fixtures and property, appli- ances used in connection with and to the busi- appertaining water; ness supplying you will further take notice that the city Greenville will condemnation begin proceed- purpose all of ings said acquiring property used (cid:127)for said purpose, pursuant to the provisions of law in such *4 case made and provided. Oscar Hodges, City Attorney McSwain, City Greenville. H. Haynsworth, of J. J. J.
Counsel for the City Greenville. December 1916.” And on the 12th day January, plaintiff served upon defendants the notice: following “State South Carolina, Greenville In the Matter County. of the Pro- Condemnation posed Waterworks, of the System of Prop- and Plant of the erty Paris Mountain Water Company, Corporation Duly Under the Incorporated Daws State Carolina. To Oscar South Esq., Messrs. Hodges, Hayns- McSwain, worth & Haynsworth, and Esq., Attorneys J. J. for the City Greenville: Please take notice that the Paris Mountain Water which is a Company, corporation duly under the Carolina, chartered laws State South Complaint.
Amended of Greenville to enter its lands refuses to allow city aforesaid, and and its county hereby signifies State refusal to consent to or allow or use of of its any taking the said under the property by proposed condemnation herein, condemn, to' city’s proceedings denying right the said its refusal case such corporation hereby signifies (in or consent to allow its right sustained) entry upon prop- thereof, or the erty, just without compensation being Co., first made therefor. The Paris Mountain Water Aforesaid, Miller, Cothran, Dean Corporation by W. Cothran, & Martin & Blythe, Its McCullough, Attorneys, 12, 1917.” January belief,
And plaintiff upon information that it alleges is the and announced purpose intention of the defendants aforesaid to all of the acquire aforesaid condemnation, and plant by that the said alleges proceeding, out, for reasons hereinbelow set is without authority legal and a violation of plaintiff’s rights. sources of this clerk, information are the records of the said city and the said officials.
5. Plaintiff is informed its counsel of record case, believes, that the defendants in said condemnation and for the proceeding purpose out their carrying announced intention are what relying upon purport acts of General Carolina Assembly South appearing in the twenty-ninth volume of at Statutes said Large, State, 939-942, at inclusive; but pages plaintiff alleges acts, the second of said at 941 and appearing 942 of pages volume, said for the reason that there were no enacting words, and for further out, reasons hereinbelow set void, null and utterly that the first of alleges said acts cannot avail said defendants for the said for the purpose *5 out, reasons set below which reasons to all apply attempted or invoked, purported to be legislation sought as plaintiff - is informed its counsel and believes.
Paris Mt. Greenvieee. Term, belief, 6. Plaintiff information and the source upon alleges clerk, and the records city its information being con- that the enacted no said of Greenville has city, city ordinance, no under the law demnation and has taken steps thereto, in it in this rely proceeding, which can upon regard resolution, than a of which was attached other mere copy here to and to our and which is referred original complaint, of this amended and part complaint, plain- incorporated con- tiff further that under the statutory general alleges stitutional such ordinance is nec- powers municipalities, before such condemnation can had. essary 7. That for an election ordered said legislation provided council, at by the shall be determined city policy waterworks, in city municipal ownership regard said election be decided by majority qualified electors of the Plaintiff information city. upon alleges belief, its city’s the source of information being registra- officials, tion books there the year were throughout 1,300 of Green- more than electors qualified ville, but an election ordered under the said alleges act said policy purpose determining cast their municipal ownership, only persons regard their in favor of such cast persons ballots while policy, ballots such against policy. and belief information further alleges
8. Plaintiff the power give aforesaid does that the legislation Greenville, although city limits outside condemnation with to exercise intended nowis sought of the plaintiff company, to all the property reference limits lies outside of which portion major of said both property, A part great of Greenville. said city outside villages is used serving real and personal, sections, to, and the inhab- and other referred municipality for service to the thereof, unnecessary wholly and is itants But for such at all needed purpose. and not city, defendant watersheds, and other reservoirs plaintiff’s *6 City Paris Mt. v. or Water
Amended. Complaint. and necessary indispensable such outside service. Fur- thermore, many of plaintiff’s outside said are far patrons removed from the city Greenville and in no wise con- thereto. Plaintiff tiguous alleges upon information and belief, the source of its information and belief being State, records and laws of the and city officials, and its that it is the attorneys, of said purpose to take said and property plant by condemnation to serve such outside persons, firms and corporations and to them supply with water for higher compensation, plaintiff alleges construe statutes aforesaid as permitting taking for such would them in purpose conflict bring with the 1895, I, 17, Carolina Constitution of art. South sec. provid- taken ing private shall not be for a property use private owner, I, without the consent 5, and article said Constitution of that no person shall be providing deprived law,” of his property “without due process of XIV, article sec. of the amendments to the Constitution of States, the United that no shall providing deprive any State of his person property law; without due process of and plain- tiff further that this will said alleges bring statutes into con- flict with article Constitution of debts, of cities to limiting power levy taxes and contract law,” “for public purposes specified by since such purpose use would not be corporate municipal purpose; said that such plaintiff for said alleges taking purpose would of the said beyond powers statutes, said vires, ultra be a wholly will for a use other talcing than defendant, use said and to city, citizens, supply its that would be inconsistent with the outside public use and, forth, therefore, herein set not permissible under the domain, if law of eminent and that said city had and render take said said public service as a public use, such would nevertheless be a taking without use, which also is not permissible under changing the law oE Paris Mt. GrEEnvieeE. Term, 1917. and does Plaintiff domain. has consented
of eminent of its not consent such taking property. *7 prop- that of its outside
9. Plaintiff also the taking alleges also the of the defendant necessary city, to service erty and the of the territory, service outside necessary persons to, not is and permissible referred unlawful municipality domain, it be incon- the law of eminent since would use and because with and such outside destro)'' public sistent referred well the other property to take such (as property if the use even for a purpose, paragraph 8), public under the law of a public purpose, permissible were domain, there be eminent because would no change use, cannot maintained and also because condemnation use, can- a and for a and private for use public partly partly for a and purpose municipal partly not be maintained partly non-municipal. information and belief Plaintiff further alleges upon void, in and
that all of said unconstitutional. legislation aforesaid,' the the of without that allows taking property law, and Federal in contravention of due State process due such without provisions taking constitutional against law, in that it prop- allows the taking process therefor, made first just without compensation being erty Constitution, and in that article contravention State Constitution, towns to cities and gives by construction or acquire in this property right State excludes the impliedly thereby acquisition purchase, of] Plaintiff that the condemnation. such property by alleges \ referred to 1916 relied on the statutes therein statutes of cor- for the condemnation of railroad property providing relied city, to acquire rights way, porations and void a as allowing plain- are unconstitutional taking law, in due process without violation tiff’s property' of the Constitution and Federal above provisions the State for subject, would be partly referred use, for a private use and since it permits partly public Greenvieee. Complaint.
Amended to be taken of the amount of property upon deposit verdict of an or a extra-judicial jury, jury without Judge, made, makes no for first no provision deposit being provision interest on the amount of with deposit clerk to cover when the period party asserting right eminent domain can have use of the property without no that the owner of compensation, providing guarantee shall ever be for the property compensated elements covered award of the first so-called damages jury, and for same said reasons are unconstitu- provisions I, tional and void under article C. Consti- tution of private shall not be providing taken for a just use “without first public compensation being *8 therefor,” made and under article V of the amendments to Constitution, the United States relating compensa- tion. aforesaid, the Because statutes the act condemnation to,
of and the statutes therein referred for providing condemnation railroad property by corporations acquire are unconstitutional and rights way, void when construed to allow the outside taking plaintiff’s essential property for the service of outside and cor- noncontiguous persons, porations, since such would the taking impair obligation the contracts which has to furnish for hire plaintiff service to such outside and persons corporations, and such legisla- I, tion is thus in violation of article of the C. Con- S. I, X, stitution and article of the United States Constitution.
12. That the assessed value of the taxable property the of Greenville made city as last up by auditor county $5,500,000, is approximately and the bonded indebtedness $900,000, said is more than city as plaintiff is officials, informed and records county and and believes, is, therefore, and in already excess of the statutory cent, limitation of 15 per provided section 3050 of I volume of Code of and that plaintiff alleges C- GrEEnvireE. Term, 1917. issue, of which bond proceeds city contemplates and plant plain- be property used paying such that tiff, of the said plant and value alleges for said $900,000 $1,000,000 necessary or would be at least said bond that the can be raised by money only purpose, issue, issue indebtedness city’s such bond will carry cent, limitation, it be since will far the said 15 beyond per indebtedness can possibly some before years bonded to the said 15 cent. per reduced attached to Perry original
The affidavit Howell W. herein here referred to incorporated complaint part complaint. this it
Wherefore, Court award plaintiff prays order, and maintain a temporary restraining restraining Greenville, officers, from attorneys, said its agents condemnation any proceedings, further said steps taking cause said order should with a rule to why show together injunction be made and for a permanent, permanent against Greenville, officers, attorneys, or the said its agents further in said steps and them from any restraining thereunder with any way proceeding, interfering of this with plaintiff, plant together rights, *9 of action. costs this ninth, the as : follows exceptions, except
Plaintiff’s of the in that a majority 1. Because Court erred holding of “the the in favor policy city those determine voting whereas, waterworks; of the Court ownership of municipal “a held such did not constitute should have that majority the electors the of of qualified city,” majority the statute to determine such necessary policy. the the erred in to declare that 2. Because Court failing the No. at (29 act of General Assembly Barge, Statutes 941, the reason of total absence of 942), by is void pages words, further of the fact that and reason sec- by enacting 3027, 1912, I, of of the C. Code which said tion volume S. Paris
Exceptions. amend, act to is unconstitutional and void as purports spe-^ cial and there amend. legislation, was to nothing
3. of Because the Court section 3015 erred in sustaining 1912, I the volume of C. of act of Code as amended by S. 939, General at Assembly against (29 Large, 940), Statutes the an objection made in the it is as that void complaint domain, attempted exercise of the of eminent in power use, wit, another destroys the service of noncon- public and the of another persons corporations, service tiguous public the of West Green- corporation town municipality, ville, inhabitants, and its city only the of Greenville not service, such having power and refuse legal authority no authority such to render same. having 4. the Because Court erred in the said section sustaining 3015, I, vol. C. Code of as amended S. statutes objection of made in that it complaint against domain, is void as eminent excess being in so far it is construed to permit plaintiff’s taking similar property for service city per- Greenville to sons and far from corporations removed and similar city service to the inhab- municipality West Greenville its itants; this to take “without use.” being changing the Court Because in upholding alleged right erred take condemnation out- plaintiff’s property side of the city, concededly needed for the use of the city Greenville, for the purpose service engaging outside persons corporations municipalities, and that such would be for use in private holding I, violation of Constitution art.
the condemnation statutes relied upon are unconstitutional in so far as permit construed taking. Because Court erred upholding alleged right to take outside of the plaintiff’s property *10 city’s not needed for the
concededly and in not purposes, that such is unconstitutional and holding taking nonpermis- sible, that the and condemnation relied statutes Greenvieee. Term, 1917. to far are construed they and so unconstitutional void VIII, article in contravention of permit taking, being Constitution, that “the General 3, of the providing .sec. to and towns of cities shall restrict Assembly powers assessments, to con- borrow and money taxes and .levy debts, or debt tax or shall levied tract and no assessment law, for public purposes contracted except pursuance and com law;” in the complaint specified by being alleged etc., waterworks, for the said (cid:127)ceded that the must city pay bond issue. the condemnation the Court erred in upholding Because made in objection relied city .statute upon by against that it is unconstitutional and void under .the complaint 5; said statute Constitution of art. purport- waterworks acquire systems to allow cities towns ing condemnation, pro- whereas said constitutional provision same; methods to construction “by vides two only acquire or purchase.”
8. Because the Court erred in upholding right without part plaintiff’s property acquir- acquire other and constitut- plaintiff much property belonging ing the defend- system, of one indivisible waterworks part ing ant, the fifth of demurrer city, by ground conceding is to be condemned. It much of this property sought inbe effect to destroy submitted that this will -respectfully to, the use referred service public persons above far removed from the limits and the town corporations inhabitants, Greenville its in excess of West domain, of eminent and not permissible the law. objec-
10. Because the Court erred sustaining made in amended complaint tion paragraph the condemnation statutes relied on are unconsti- when construed to allow the tutional void to the outside essential service on non- plaintiff’s outside since such tak- persons corporations, contiguous *11 City Mt. Paris oe v. Water Greenviree.
Exceptions. would of contracts which impair plaintiff ing obligation has with such persons in corporations, violation arti- I, 8, cle sec. of the 1895, I, Constitution of and article 10, sec. of the United Constitution. States 11. Because Court erred the objec- sustaining tion to condemnation raised in 12 of proceedings paragraph the amended that it complaint, will require bond issue in cent, excess of limitation of 15 statutory per provided section 3050 of I volume of Carolina Code of 1912. South
12. Because the Court erred in not the railroad holding condemnation statutes relied upon by to be uncon- void, stitutional and because in contravention of the due process law clauses of the and Federal State Constitu- tions, I, 5, article 1895, sec. C.S. Constitution of and article XIV, 1, of amendments to the United Constitu- States tion.' Because Court erred in not that the rail holding
road condemnation statutes relied upon by void, unconstitutional and in that they permit private property, before only just compensation has been1 deter-, made, but before just compensation has even been law, is, mined that process due with a jury Judge—in I, violation of article Carolina South Constitu tion of and article V of the amendments of the United Constitution as States out in pointed 10 of the paragraph amended complaint.
14. Becáuse the Court erred in not the objec- sustaining tion made in the amendment to the amended “that complaint further plaintiff alleges injunction this ground the act of under which defendants claim the condemnation, is unconstitutional and void for the follow- Code, reasons: 3015 of the ing Section which the act amend, purports unconstitutional, pur- to confer ports upon municipalities the power to construct and operate waterworks without providing limitations Constitution, article prescribed section Greenvieee. Term, an election requiring question constructing waterworks; section purchasing unconstitutional being void, act of 1916 also void as an amending being *12 to amend an attempt unconstitutional and void statute.” Cothran, Cothran, Messrs. Dean & cite: As appellant, to the unconstitutionality act amendatory ipió: Constitution, VIII, 5; —; 669; art. sec. 105 C. 89 C. S. S. Daws, 166 685; 3015, U. Code sec. S. act of amendatory 1916; 31 730; R. A. 48 N. (Ind.) W. (North Dakota) D. 363; 778; 57 240; R. A. Atl. 68 81 (Ky.) D. (Del.) W. S. 973; 6 49; 419; R. C. 12 (Tex.) Wheaton 4 R. A. D. D. 93; 98 Am. 272; Dec. 4 Am. 465; 48 (Pa.) (Mich.) St. 248; Am. D. 717; 60 Am. Dec. (Ga.) 9 A.R. (Ga.) D. 326; 31 (Ind.) 726; 64; R. A. Const. (Ind.) Cooley D. D. I 490; R. A. 115; 6 A. (N. S.) Cooley (7th Ed.) L. R.D. 847; 599; 1 50 N. R. A. 490 (N. S.) Cooley E. (note); D. 210; Con. 444; 9; 94 C. (6th Ed.) 79 C. 67 Dim. S. S. 174; 474; 699; Ind. 51 N. 52 N. (Ind.) 63 E. E. (Ind.) 763; N. 266; 86 Pac. 105 N. (Ind.) (Mont.) (Neb.) E. W. 293; 110; 154; 516; 59 C. 61 S. So. 98 Ind. (D. A.) 103 1078; 962; 1 681; N. 25 N. P. (Ind.) (111.) E. E. Lewis 547; 820; 127; 57 Mich. 24 N. 57 Mich. 31 Pac. W. (Col.) 238; 77 Pac. 382. The elction (Wash.) prescribed by act was not carried ipió majority qualified Constitution, VII, 1; Const., art. city: sec. art. electors'of XV, 2; 5; XVI, II, 1; 3; sec. sec. art. sec. art. sec. art. Ill, IV, 13; 12; 23; art. art. 324; sec. sec. sec. 67 C. art. S. VII, 2, 7, 8, 10; IX, VIII,.sec. 7; 8; sections art. sec. art. X, XVI, 2; 2; 1; XVI, art art. 3; sec. sec. sec. art. sec. 833; 735; 360; N. 50 100 Miss. 95 U. 67 (Inch) Mo. E. S. 2 331; 677; 251; 101 U. 2 C.) (N. C.) S. S. E. (N.' S. E. 681; 40; 391; Mo. 101 U. 22 478; 54 R. A. (N. S. S.) D. 478; 722; 51 R. A. 397; II 111. 39 C. 55 (Ind.) C. D. S. S. Const., VII, 90; art. sec. 7.
4—110. City oe
50 of Counsel. Argument for appellant, also Blythe, Martin & McCullough, Messrs. “A majority words cite: As to meaning (29 in the act as used the city” electors qibalified 1916 II, 95; art. 187; Const. 105 C. Stats., S. 940): S. page 660, note; 22 Ed., 5 sec. p. Mun. 12; Corp., Dillon sec. 874; 22 R. A. 478; Pac. A. 99 (Wyoming) R. R. (N. S.) R. 478-483, sec. 486; Ed.), Dillon Mun. Corp. (5th S.) (N. IV, Const., 1063; art 660; 108 p. (S. Dak.) W. S. Dak.) 361; N. 14; 722; R. A. 119 (N. sec. W. (Ind.) R. VII, Constitution, II, 3; sec. 9. art. art. sections the act: Civil Code As to the bond issue contemplated 200; 673; 34 3050; 105 C. 138 U. Ed. S. S. R. 1069; 197; Eed. 5 C. C. A. 173; 390.; U. Ed. R. *13 89; 468; constitutional provi- Dill. Municipal Corporations 1905; amendment 1911. As to the sion of constitutional of railroad condemnation statutes: unconstitutionality of I, 17, 1895; 68; Constitution of 95 C. art. sec. Rewis S. 1326, 41. Domain and note Burnish- (3d Ed.), p. Eminent is not water to outside Greenville persons ing of of Const, 1895, VIII, 24; 33 of art. C. municipal purpose: S. 490, A., 5; 566; note; 87 8 R. sec. C. and Dillon on p. S. R. 1299, 1292; sections 1291 and Constitution Corporations, 1895, VIII, 3, 5; Code, 3025'; of art. sec. sec. Civil sec. 87 Dillon, Ed., Ill, —; 209; 5th C. vol. 15 612-614. p. Cyc. S. Greenville, McSwain, for the of Mr. J. J. City respond- ent, cites: constitutionality amendatory .As of 1895, XIV, art act Constitution of sec. 3. As to of 1916: words, “A majority electors meaning qualified of of of 342; as used in the act 67 C. Constitu- city,” S. of 1916: Code, 1895, VIII, 5, 13; 12 tion of art. sections Civil I, 3019; 163; Code, I, 3015; 68 C. Civil vol. vol. sec. sec. S. 1912, I, 939; 3015; Code of vol. sec. 29 Civil Consti- Stats. 1895, VIII, 188; VIII, 5; art. 105 tution of C. article S. 1895, II, 7; 12; art. 13 R. sec. Constitution sections 9 1115; 532; 388; 32 R. A. 22 R. (N. S.) C. 15'Cyc. R. R. R. 51 Paris Mt. Term, 1917. A. S.) The (N. note. franchises a public service corporation, held public although pur- for poses, are not exempt eminent domain pozver from 180; U. 3 municipality: 218 Dillon Mun. 133. Corp., sec. S. A city may authorized acquire land munic- beyond ipal limits use and to public exercise emi- pozver for nent domain 3d Dillon purpose: Mun. Corp., for
Messrs. Haynszvorth Haynszvorth & and Oscar Hodges, submit: respondents, The is vested zvith the legislature pozver to authorize municipalities to acquire zvaterzvorks 367; eminent domain: 91 774; U. 52 At. 63 R. S. L. A. 301; Constitution of article sec. 5. Sec.
amended the act March is not inconsistent' Jpi6, zvith sec. VIII 5, article Constitution 84 iSpg: S. 7,7 61 563; 205; C. 521; 356; C. 80 C. S. C. C. 77 S. S. S. 260; 73 C. 150. In S. order to make valid the elec- tion in municipal zvaterzvorks, ozvnership favor of it is only necessary the electors majority vot- at ing election should vote in such ozvner- favor of 360; 462; ship: 95 U. C. 285; C. S. S. S. 428; 242; C. S. Pac. that the fact zvater suburban company serving enterprises citizens *14 n preclude the exercise the rights do&$ eminent of of doma,in on the part 201; the 7 R. city: A. (N. S.) L. of 1913e, 153; 180; Ann. Cas. 218 U. p. Dill. Mun. S. Corp., 1312, 1028; sec. parghs. article VIII of the Constitution Code, I, 1895; 3025; vol. sec. 516-517; 89 C. 87 C. S. S. 570; 180; 218 U. 3 Dillon 1313; Mun. sec. Corp., S. sec. 1028. Result the election could be declared resolution ordinance, either 148 U. 591. S. sufficient:
April The opinion of Court was delivered Mr. Justice Gage. City or Mr. Co. v. Paris GrRRnviluR. Watrr
Opinion Court. herein- Company, Action Mountain Green- referred as the company, against after enjoin ville, hereinafter referred to as city, company’s use the city’s for the from to condemn proceeding the same sus- complaint; water Demurrer to the plant. be the complaint tained; the company. Let appeal by been like, identical, controversy has A but reported. 105 C. hither once before. S. E. Court, the order of the Circuit exceptions
There half heads. We many have been they argued therefore under seven exceptions subjects. shall consider ninth, which was exceptions reported, except Let The abandoned. The second was not exception argued. fourth, fifth, sixth, third, and tenth were exceptions eighth The twelfth and thirteenth together. exceptions argued other were were argued exceptions together. argued We consider them same fashion. seriatim. that was to hold the law clearly right The Circuit Court if the election was carried by majority satisfied thereat. The relies appellant electors voting strongly and from other with a case from States Wyoming, like that The Con constitutional provisions State. this different from markedly stitution of State under consideration. The subject Wyoming had to an election amend reference decision Wyoming That of that Constitution plainly the Constitution State. an if a amendment shall be allowed declares shall it. But the Constitution ratify of the electors majority be amended the electors by majority this State XVI, that, 1. More thereon. Article than voting Constitution, instances recited in our at eleven other least electors prescribes only majority that instrument the will express body in order to electors voting II, 13; are: Article article They at polls. voting *15 VIII, 2; VIII, VII, 2; 5; sec. article sec. article article sec. VII, 8; VII, VIII, 10; article article sec. sec. article sec. 7: Greenvieee. Term, VIII, XVI, X, 8; 3; sec. article article 11. The Constitution, then, scheme of the that in elections general State, on the most issues of by people will important shall be a people sufficiently expressed by majority those who to the and vote. go polls consideration,
With reference to the subject under specific which is an election for the of a water acquisition plant, VIII, Constitution is and to the Article plain same effect. sections 5 declares that in such cases there Section * ** shall be “majority vote of the electors who quali- fied to vote on the bonded indebtedness of said city.” closely section 7 a declares how bonded debt shall following on, wit, II, voted in Article provided section the Constitution. Reference had thereto shows “a of those majority said election shall be voting necessary to authorize the issue of said bonds.” And the men- above tioned section 7 of article VIII itself declares:
“Unless of such electors majority on the voting ques- tion shall be in debt, favor of such further bonded creating none shall be created.” no provision
We find the Constitution which prescribes electors, all majority those and those voting shall be an election voting, necessary carry by peo- instance, save in one ple and that refers to an election determine if a town shall be Article incorporated.
section 2. The other instance cited appellant proves VII, of his It contrary is true article argument. section instance (the requires that one-third cited), of the quali- fied electors within an area of shall county for a petition new But section of the county. same article declares that the election bemay carried two-thirds of the elec- qualified tors at such election. Another counsel voting for the appel- lant cites other provisions Constitution than those we have referred to electorate, what is a sufficient touching refer to they mostly elections and to procedures other than a vote of the people. *16 City 54 Co. v. Mt. Paris Grbrnviiar. Watrr Opinion of the Cour.t. that the act of 1916 (29 But the is Stats. argument under which pro at the end of act), proviso not be words which ignored, prescribes, by apt ceeding, towards condemnation shall that the policy electors of qualified be fixed “by majority a majority If mean by words quoted city.” the sum of those voting electors of of the qualified then the has changed legislature and those voting, it Constitution; and has required rule stated general by purchase, one electorate for of water plants acquisition condemnation. and another electorate acquisition ;we words But that far need hold only we need go have of like import the statute mean what words has used authority, been mean Courts of construed to undoubted in full view and that the words employed legislature those decisions. case, Court,
We rest the did the as Circuit largely on Cass Johnston, v. 95 U. It there was L. Ed. held that: “All voters who absent themselves from qualified
an election called are to assent to the duly presumed expressed will of those unless majority voting, declares, for the law election otherwise providing * *” * and “unless will to that effect is legislative clearly expressed.” not,
The second was not there- exception need argued; fore, considered; to be it is overruled.
The makes one bifold appellant question out of exceptions 3, 4, 5, 6, 8 and and that makes the third head. The arises out of the circumstance that question the company now serves with water closely communities to lying out of the city, yet corporate limits of the city. The are set out in facts 1 and 8 of the paragraphs complaint. appellant’s postulate this: “The city must the outside operate not needed for this pur for hire serve the town of pose, West Greenville GrEEnvirre. Term, 1917. communities, it must cease to operate or (2) noncontiguous to them.” this public utility The Constitution each horn of that dilemma. follow
We *17 * * * to waterworks systems, authorizes towns “operate * * * individuals, firms pri- to furnish water may These compensation.” for reasonable vate corporations the limit or necessary implication do not expressly by words individuals, firms, situate and private corporations service limits. within the corporate and the the
The is creature of legislature, town the limits of the Constitu 5 may (within legislature the of the town. define tion) powers the adopted legislature after the Constitution was Directly firms to furnish water to “persons, authorized towns the limits but contiguous without corporate corporations The appel Code of thereto.” Laws. Section the instant the service in 6 lant that part argues the city. case is to be to territory noncontiguous inference, but it It true that the that complaint alleges is inference, are the basis of the the facts which does state situs complaint identify and there is nothing company proposed now served by of the communities it from be ascertained by city, be served or not. The are to the city argu they contiguous whether - Greenville,” which, as everybody ment “West suggests knows, by from the of Greenville only separated also The suggests Monoghan River. Reedy argument Mills, at least not unknown. of which is locality that common
It a matter of knowledge generally and lead towns pipes and reservoirs many water- supply limits. the corporate miles without necessity many are of common that many a matter of knowledge It is also State, Greenville, them and chief amongst towns domiciled out of plants just by manufacturing surrounded limits, and operated suburban by villages the corporate GrEEnvirre.
Opinion of the Court. charters, off from the an arbi- by and divided separate line. trary into will appellant go suggestion Dillon, Mr. condemned does
“municipal trading,” law, raise a but of question policy, policy the Constitution has been determined Omaha, 218 U. Omaha v. See legislature. R. Ct. A. (N. S.) 30 Sup. Ed. L. D. is, horn dilemma that the city may The second communities, in which choose to cease to serve outlying And the service will destroyed. event a present public without due calls that appellant It when city, acquires is true process. *18 serve the con choose to plant, may company’s limits. corporate outside the Childs communities tiguous R. A. 70 34 Columbia, S.) (N. v. 87 S. E. L. the convenience of takers But the water present is, if is not property; Monoghan Greenville West the is not that act by by acquiring plant the city communities. The how appellant, from those away service be if service shall the ever, by that abandoned suggests to the constitutional will have city power the then city, ' think restore the service. We that appre a toway condemn to the the essential city’s acquire cannot affect right hension case, the Court said in the what Omaha Paralleling plant. supra: not be disturbing pipes lawfully
“If those outside could for which the water com- the for the purpose by used them, not follow that acquisition) it does (the had used pany as an (an less thereby any acquisition) unitary would system.” acquire company’s
The fundamental right that certain be defeated by cannot suggestion water plant now contract supplied with takers outside cut off from the use of hereafter water. bemay company oE Term, 1917. failure to an essential That be to defeat right would it an incidental practice. include in head exception) goes meaning The fourth (seventh The article of Constitution. 5 of of section eighth there that the Constitution limited town asserts appellant alone; two methods water plant by to acquire and corol by purchase, is to construction say, to that the asserts the Constitution appellant lary acquire by implication right denied by necessary is the issue to be condemnation. And process decided. statute; and 7 in the form of a they operate
Sections towns, the need of mediation. directly legislative without Constitution, modern these many provisions Tike L., 6 R. C. 57. There is p. sections are self-executing. in them to limitation power. nothing suggest legislative article are directions to the Other General sections 1, 3, 6, such are 10 and sections Assembly; : says counsel for appellant
“The of restriction the legislature spirit delegate corporation to a is breathed municipal throughout its powers as to the of taxa- Constitution tion.” *19 instant says
And the involves taxation. procedure counsel not of the Constitution is the legisla- The upon restriction ture, is to the restrict injunction the to the legislature but town taxes. at levy the to And sec- Section powers X, enjoined, the is 5 of article when legislature tion vesting tax, to the tax to to be require towns with uniform. power Constitution at the limits the place And the same legislature the debt of towns a fixed beyond per increase bond cent. to to no of the provision But have been cited Constitution we the the the matter under power limits legislature The has the confessedly power legislature consideration. condemn, unless the Constitution has denied it. to
58 Co. v. Opinion of the Court. There no apparent is reason the Constitution should why have to to towns the water power acquire plants by granted the construction or by purchase, have denied to towns to the condemnation. power same On acquire hand, 10 other a conclu reason against If a sion. is shut to up town for acquire property water then a by purchase, plant great public necessity may at the outstart. There no balked bemay person willing to sell. The to must be power acquire coextensive with the to If have. right public to have water ought right town, at the hands of then the must town have from some source and to somewhow secure it. domain,
The in eminent primary right rests acquire and that in the power resides necessity; right State it, the Constitution did not create but has it affirmed only I, (article 17; and limited XIV), its exercise section (article IX, article section The exercise 20). right resting legislature, body may prescribe shall be how L., 11-14, cited; exercised. 10 R. C. pp. and cases v. Kohl 371, S.,U. 91 U. 449. The S. L. Ed. suggestion is that the appellant may exercise the legislature power, town, too, for the benefit but cannot its exer delegate cise to a town. And for that reliance had postulate Perrin, 1, v. Floyd C. 2 R. S. E. L. A. Whitesides, State 30 S. S. E. R. A. L. 777. The citations The first case inapt. only held that could tax to township levy pay interest bonds- issued construction, aid railroad township because bonds were for a issued corporate purpose. held that the last case create the might State debt the tax to county, authorize might interest on pay the bonds. Those cases involved power of a township' construction, to create a valid debt for railroad and of the do the They same did not thing. State on the hinge right to a delegate taxing power municipality, State *20 the of the to the right municipality exercise power.. ureenvielE. Term, 1917. committed more The of eminent domain is frequently power exercised than the to its accredited agencies State L., And water R. C. 195. p. directly by State. eminent are common to which subjects plants L., R. p. acquire. domain be directed to The seventh is overruled. exception
The fifth to Court’s head (eleventh exception) goes failure to sustain much of the admitted so allegations bond issue will instant complaint charges cent, taxable prop exceed 15 assessed per city’s The considered the Chief issue of law was erty. on a of the allied cause. 105 C. former hearing Justice 199, 89 S. E. is,
The of the that a city may suggestion appellant all, at issue bonds the constitutional warrant notwithstanding so, to there do unless shall devised machinery legis- true, lature end. That is unless Con- generally if stitution as it nearly, shall itself provide machinery, the further does cases like the instant one. But quite, is, that the has enact- not by proper suggestion legislature ment to execute the constitutional amendment of proceeded but, 1911; on the sub- contrary, only legislation limits the bond issue for Greenville ject (section 3050) cent, an amount not per value exceeding therein. All the taxable constitutional amend- do 14) ment of 1911 to was to remove (27 purported Stats. theretofore
the limitations on Greenville imposed by prior constitutional amendment of 1905 (24 955), Stats. cases, limitation in certain any
leave Greenville without the instant case is one. The admittedly which statutes on out of the subject 3050) Constitu- (section grew of 1895 is Constitution as appropriate tion amended. amendment of constitutional 1911 is self- manifestly force, *83. The statute Cooley, remains of executing. cent, it, the limitation of 15 is read per save out of and none fixed or could be fixed. The exception other is is overruled. *21 City 60 Paris Mt. Co. Water v.
Opinion of the Court. The sixth head thirteenth chal (twelfth exceptions) the validity of those statutes “now provided lenges corporations
law for railroad acquire rights 12 The act of 1916 way.” (29 940) subrogates Stats.
the to these statutes in the of the acquisition instant water Counsel for oral plant. appellant by argu issue,” ment “stressed this and his brief avers: “That the railroad condemnation statutes are unconstitu- tional, law, not because due but because they deny process permit the of the they property, only just ‘without therefor,’ first made compensation just before being has even been determined.” compensation judicially And to sustain this counsel relies on v. postulate Railway Ellen, 1915b, Ann. Cas. 1042. S. E. The statute manner prescribing per lands sons taken for the construction of was railways in enacted 89. question And the now made Stats. half is raised after a administration of that century’s statute. That reflection is sufficient to more than throw a doubt upon of the soundness contention. There are appellant’s two provisions subject, Constitution on the one Declaration of and the other in Rights (section 17) article on The act under Corporations (section 20). con sideration refers to the latter. author (29 940) For Stats. Domain, on rely ity appellants and cases Lewis Eminent Dakota, California, from Pennsylvania, construing Constitution of those Those make a States. authorities literal construction Constitution a reason against construction which make. able we We rest the cases on Ellen, supra. Railroad v. The Court en banc there sustained features, cardinal statute its and that included of necessity condemnor to make right compensation time statute, and method prescribed so though much was not said. and last seventh head (exception 14) goes against of section constitutionality by consequence
Paris Mt. oe GreEnvieee. Term, in sec infirmity it. amendment of The alleged against tion full 3015 is that does not follow 5) section Constitution part (article which directs that “no such construction purchase *22 shall made a the electors be vote of except majority cities,” to The said etc. to statute sought amendment add it two A vote by to new features': materially (1) electors on the acquisition; acquisition policy (2) a true of water of condemnation. It is plant by procedure that a is can statute which without constitutional authority that not amended. But it too a statement to be is broad say a statute which fails in even features to come some essential the' to all of the Constitution not up requirements a amended. far as the instant act dealt with (1916) So field it entered a and purchase, by construction procedure and enacted it to enter authorized the Constitution Constitution; it fell only of the words very generally Constitution, by prescribed the total procedure short of A deduction wit, policy. a vote preliminary to-provide to act amendment might supply subsequent that a sense, and contrary to manifestly good would be omission L., 120; Note 6 R. C. p. to law. contrary we think See Cas., cited.' The second par and cases there p. Ann. the statute was amended was ticular in which foreign Constitution; pro it constitutional methods added the third method of and purchase, construction cedure And for the reason above condemnation. procedure allowable.- the amendment was stated overruled, fourteenth exception judgment is affirmed. below Gary Hydrick and Messrs.
Mr. Chibe Justices Justice concur. and Watts a I dissent. In these case between
Mr. Fraser. Justice 105 C. was reported same S. E. parties, Paris Mt. Dissenting Opinion. domain, decided that in of eminent power grants must be strictly construed. There are two distinct grant classes of majorities: A those who vote. majority (1) A entitled to It me (2) majority those vote. seems to a substitution class No. for class No. would require construction, liberal merely but an amend very ment, and this Court has no amend. It seems power me, further, that a to construct or grant power pur chase intended to restrict the of construction and purchase. To construct create a is to new use. To pur is to transfer the chase exercise of mutual con power by sent of all the an To condemn parties. already existing use, plant creates no new transfers the simply property, franchises and from profits to a quasi public corporation *23 If public this corporation. can be done without change use, I no then see reason one why quasi public corpora tion could not be to condemn given right property another. Could the be Railway Southern to empowered condemn property, franchise of the Atlantic rights Coast ? Railroad It is not Company suggested Tine has plaintiff failed its to duty serve or that public, city Greenville can a more supply efficient service. R. L., X, vol. sec. 157: the public devoted to use “Property taken use, for a authority different if public even legislature the earlier enterprise thereby wholly destroyed; but prop- of private devoted erty corporation to one use can- public use, not be taken for same public use or pub- because.no lic can be such a necessity served by taking.” Lewis, Domain,
Mr. his work on Eminent says: 276: “General deduced from the fore- principles Section decisions in to going respect property already use. public devoted All
“Eirst. held for use still public subject State, the eminent domain with exception, this Lynch et al. et al. Matthews Term, in the that it taken the same purpose cannot be to be used same manner.” (Italics his.) I
For these reasons dissent. ET AL. v. LYNCH ET AL. MATTHEWS (96 494.) S. E. Districts—Consolidation—Plats—Sufficiency. School 1. Schools county approved plat proposed board consolidated school —Where district, “by a line from changed drawing a line to be required actually did fact that line was not drawn plat,” to B on the A by the territory no resided in the affected plat, where one vitiate merely prevent running line from too was made change, which another school. close to Districts—Consolidation—Rights
2. Schools School Resi- certain district shall include of which school dents.—Determination county board of education and with the and their owners rests lands landowners, complaint because of legal have no cause who not the are followed. legal formalities change if term, Florence, Affirmed. Spring J., Before Spain, C. Lynch Z. Matthews and others against C. M. Suit 39. From District No. others, as trustees School plaintiffs appeal. complaint, dismissing decree is as follows: opinion referred The decree *24 trial me for equity came before case The above Plaintiffs moved strike jury. the Court without side of answer, I of defendants’ third defense the second and took under to the second defense the motion as granted defense, it related to the third the motion as advisement I then proceeded taken. testimony was after until case, take the and had stenographer the trial of testimony. defendants, the case shows who
The record held an election upon district No. have trustees school and are sell the same. of bonds seeking question