Southern Power Co. v. Walker , 89 S.C. 84 ( 1911 )

May 23, 1911. The opinion of the Court was delivered by The petitioner herein, seeks a right of way, through the land of the defendant, under condemnation proceedings. In accordance with the practice in such cases, a jury was impanelled, and assessed the damages, to be paid by the petitioner, to the defendant. Both the petitioner and the defendant, appealed to the Circuit Court. The petitioner's grounds were sustained, but those of the defendant were overruled. The defendant then appealed to this Court upon exceptions which will be reported.

"When the right to institute condemnation proceedings, is contested, the proper remedy is, to bring an action in the Court of Common Pleas, in order that the Court may, in the exercise of its chancery powers, determine such right." Water Co. v. Nunamaker, 73 S.C. 550. In the case under consideration, the defendant did not bring an action to contest the petitioner's right to condemnation proceedings but raised the questions involved, on an appeal from the verdict of the jury. As no objection has been interposed, to the manner in which, the questions are presented we will not decline to consider them especially as they are of public interest.

The first question that will be considered, is, whether the petitioner, being a foreign corporation, without the power to condemn in the State of its origin, was empowered under the laws of this State, to exercise the right of condemnation. The petitioner's certificate of incorporation under the laws of the State of New Jersey, contains this provision:

"Nothing herein shall empower the said corporation to construct, maintain or operate railroads, telephone or telegraph lines, canals, turnpikes, or any other business which shall need to possess the right of taking and condemning lands, within the State of New Jersey; but nothing herein contained, shall prevent the taking and condemnation of lands, without the State of New Jersey."

Section 1790, chapter XLIV, of the Code of Laws, is as follows: "All and every such corporation, carrying on business or owning property in this State, shall be subject to the laws of the same, in like manner as corporations chartered, under the laws of this State." * * *

Section 1895, chapter XLVIII, of the Code of Laws, is as follows: "Corporations organized for any purpose, under the provisions of this article, shall have power to construct and operate a railroad, electric railway, tramway, turnpike or canal, for their own use and purposes, and shall have the right to effect a crossing, with any existing railroad or public roads, as is now provided by law for railroad corporations; but they shall have no power to condemn lands, except for crossing any existing railroad or public road, as herein provided."

The act of 1904, page 489, is as follows: "An act to grant unto electric lighting and power companies all the rights, powers, and privileges, subject to the same duties and liabilities, as are conferred upon telegraph and telephone companies, under sections 2211, 2212, 2213, 2214, 2215, 2216, 2217, 2218 and 2219, of the Civil Code of South Carolina, and to amend said section 2211, by adding another proviso, at the end thereof.

Section 1. "Be it enacted by the General Assembly of the State of South Carolina, that, subject to the same duties and liabilities, all the rights, powers and privileges conferred upon telegraph and telephone companies, under sections 2211, 2212, 2213, 2214, 2215, 2216, 2217, 2218 and 2219, of the Civil Code of South Carolina, be, and the same are hereby, granted unto electric lighting and power companies, incorporated under the laws of this State, or any other State, upon complying with the laws of this State, regulating foreign corporations, and by becoming a domestic corporation.

Sec. 2. "That section 2211 of the Code of laws of South Carolina, 1902, be, and the same is hereby, amended by adding the following additional proviso at the end thereof, to wit: Provided, further, That no telegraph, telephone, electric light or power wire, shall be erected or maintained, within fifty yards of any public road or highway in this State, unless the same, shall be so constructed, erected and maintained and provided, with sufficient lighting guards or arresters (and in case of electric light or power wires, with such automatic cut offs, and other devices), as may be necessary for the protection of persons and property." Then follows the penal clause.

It will thus be seen, that section 1790 of the Code of Laws, shows, that the petitioner was subject to the laws of South Carolina, in like manner as corporations chartered, under the laws of this State. And, the act of 1904 not only confers upon electric lighting and power companies, incorporated under the laws of this State, the privileges therein mentioned, but, also, upon those companies, incorporated under the laws of any State, which have complied with the laws of this State, regulating foreign corporations, by which they become domestic corporations. The petition alleges and it is not denied, that the petitioner became a domestic corporation, under the laws of this State, regulating foreign corporations. As it is clearly the intention of the act of 1904, to confer upon electric lighting and power companies, whether incorporated under the laws of this State, or domesticated under its laws, the right to resort to condemnation proceedings, and, as the provisions of this act, are inconsistent with section 1895 of the Code of Laws, it must be regarded as repealed, by necessary implication.

The exceptions raising this question are overruled.

The next question for consideration, is, whether the presiding Judge erred in ruling, that the title of said act, was not obnoxious to art. III, section 17, of the Constitution, which is as follows: "Every act or resolution, having the force of law, shall relate to but one subject, and that shall be expressed in the title."

The purpose of this provision is stated in Cooley's Con. Lim., pages 171-2, to be: "First, to prevent hodge-podge, or log-rolling legislation; second, to prevent surprise or fraud upon the legislature, by means of provisions in bills, of which the title gave no intimation, and which might therefore be overlooked, and carelessly and unintentionally adopted; and third, to fairly apprise the people, through such publication of legislative proceedings, as is usually made, of the subjects of legislation, that are being considered, in order that they may have opportunity, of being heard thereon, by petition or otherwise, if they shall so desire.

"The generality of a title is, therefore, no objection to it, so long as it is not made a cover to legislation, incongruous, in itself, and which by no fair intendment, can be considered as having a necessary or proper connection."

On page 175 the author also says: "There has been a general disposition, to construe the constitutional provision liberally, rather than to embarrass legislation by a construction, whose strictness is unnecessary, to the accomplishment of the beneficial purpose for which it has been adopted."

"When an act of the legislature expresses in its title the object of the act, the title embraces and expresses any lawful means to achieve the object, thus fulfilling the constitutional injunction, that every law shall embrace but one subject, and that shall be expressed in its title." This language was used by the Court, in San Antonio v. Lane, 32 Tex. 402, and adopted in Charleston v. Oliver, 16 S.C. 47, and San Antonio v. Mehaffey, 96 U.S. 315.

In Connor v. Ry., 23 S.C. 427, the Court had under consideration, the constitutionality of an act, entitled, "An act to incorporate the Green Pond, Walterboro and Branchville Railroad Company," by which, power was conferred upon the county commissioners, to issue bonds in subscription, to the capital stock of this railway. The act was declared to be constitutional.

In commenting on that case the Court, in Floyd v. Perrin,30 S.C. 1, used this language: "The principle upon which it was held that the act was constitutional, was, that the authority granted to the county, to subscribe to the railway, was a means to achieve the object, expressed in the title of the act, and, therefore, was germane to that object. So it appears to us, that declaring the township a corporate body, with power to tax in aid of the Greenville and Port Royal Railroad, was contributory to, and furnished means to achieve, the object of the act, as expressed in the title." See also Riley v. Union Station Co., 71 S.C. 457; State v. O'Day, 74 S.C. 448; Park v. Cotton Mills, 75 S.C. 560;Aycock Little Co. v. Ry., 76 S.C. 331; Buist v.Charleston, 77 S.C. 260; State v. Hunter, 79 S.C. 91, andJelico v. Commissioners, 83 S.C. 481.

The subject of the act, is the granting of certain rights, powers and privileges, to electric lighting and power companies. That part of the title describing those rights, privileges and powers, to be such as are conferred upon telegraph and telephone companies, under the sections of the Code of Laws therein mentioned, was not another "subject," but was intended merely to explain, the nature of the powers conferred upon those companies; and, really, was unnecessary. Nor was that portion of the title, amending section 2211, by adding a proviso at the end thereof, another "subject;" but was merely intended to provide a method, to achieve the object expressed in the title of the act, and, therefore, was germane to that object.

To the extent that the legislature may refer, even to the provisions of a repealed statute and adopt them, the repealed statute is thereby re-enacted, and, to that extent, is as much the law, as if its provisions were set out, in the new statute. Lyles v. McCown, 82 S.C. 127.

Therefore, it cannot be successfully contended, that the act was rendered invalid, by reason of the fact, that the title referred to the provisions in another statute, which could be adopted, without setting them out, in the body of the act.

The exceptions raising this question are overruled.

The next question that will be considered, is, whether there was error, on the part of the Circuit Judge in ruling, that the land was subject to condemnation for a right of way, other than for a public purpose.

This question has lately, undergone judicial discussion so frequently, that we deem it only necessary, to cite the following cases, to show that the exceptions raising this question cannot be sustained. Boyd v. Granite Co., 66 S.C. 433;Wilson v. Alderman, 69 S.C. 176; Riley v. UnionStation Co., 71 S.C. 457; Alderman v. Wilson, 77 S.C. 165;McMeekin v. Power Co., 80 S.C. 512; Williams v.Gold Mine Co., 85 S.C. 1.

The appellant's attorneys were granted permission to review these cases, in so far as this question was involved, but after careful consideration, the Court adheres to the doctrine, therein announced.

These views practically dispose of all the questions, now presented to the Court for determination.

Appeal dismissed.