Creech v. South Carolina Public Service Authority

I cannot concur in the disposition which MR. JUSTICE FISHBURNE has made of the crucial question involved in this case, to wit: Whether the South Carolina Public Service Authority, under the terms of the statute chartering it, has the power to purchase completed and operating electric utility systems situated at and north of Columbia, and the gas and the bus transportation businesses connected therewith.

The necessary facts, the history of the litigation and the issues to be determined have all been carefully and correctly set forth and discussed in the able opinion which MR. JUSTICE FISHBURNE has prepared, and need not be repeated here. It is only the conclusions of law as expounded in the majority opinion to which I must dissent.

The question, as stated above, obviously involves two issues, the first of which challenges the power of the Authority to purchase completed and operating electric utility systems situated at and north of Columbia.

Section 3, of the Act of 1934, No. 887, page 1507, contains the following provision:

"The Public Service Authority shall have power * * *; to produce, distribute and sell electric power; * * * and shall also have all powers which may be necessary or convenient for the exercise of such powers, * * *."

Thus it will be seen that one of the important functions of the Authority, and one of its reasons for being brought into existence, was to produce, distribute and sell electric power. In the case of Clarke v. South Carolina Public ServiceAuthority et al., 177 S.C. 427, 181 S.E., 481, this Court held that the General Assembly of this State had the right to bring the Authority into being to engage in the business of hydro-electric power, and that the manufacture and sale of power is a public and governmental function. In furtherance of this proper function, the General Assembly therefore gave to the Authority "all powers which may be necessary or convenient for the exercise" of the powers which, in part, have been stated above.

Following the above broad statement of powers of the Authority, the language of Section 3 contains the following specific ones:

"(4) To acquire, purchase, hold, use, lease, mortgage, sell, transfer, and dispose of any property, real, personal or mixed, or any interest therein;

"(7) To build, acquire, construct and maintain power houses and any and all structures, ways and means, necessary, useful or customarily used and employed in the manufacture, generation and distribution of water power, steam electric power, hydro-electric power and any and all other kinds ofpower, * * * and generally all things used or useful in the manufacture, distribution, purchase and sale of powergenerated by water, steam or otherwise; [Emphasis added]

"(8) To manufacture, produce, generate, transmit, distribute and sell water power, steam electric power, hydroelectric power or mechanical power within and without theState of South Carolina; [Emphasis added]

"(20) To do all acts and things necessary or convenient to carry out the powers granted to it by this Act or any other Acts."

The powers which have been named are broad. Indeed, the undertakings with which the Authority is charged could scarcely be entered upon at all without broad powers. The production, distribution and sale of electric power, the development of the Cooper, Santee, and Congaree Rivers, as instrumentalities of intrastate, interstate and foreign commerce and navigation, the reclaiming and drainage of swampy and flooded lands, the reforestation of water sheds "of rivers in this State", all of which are authorized by Section 3 of the Act, are undertakings of such considerable scope that they could scarcely be begun, and certainly could not be consummated, without the extensive powers with which the Authority was vested by the enabling Act.

In considering completed and operating electric utility systems, it will be observed that the foregoing powers are not limited by territorial boundaries. For example, subsection 4 of Section 3, which is quoted above, sets no limits upon the area in which the Authority may acquire, purchase, hold, use, sell, transfer or dispose of "any property, real, personal or mixed, or any interest therein"; nor does subsection 7, supra, set any territorial bounds upon the right of the Authority to acquire and maintain power houses and any and all structures, ways and means necessary, useful or customarily used and employed in the manufacture, generation and distribution of water power and any and all other kinds of power. Had any territorial limitation been intended, it seems clear to me that such restrictions would have been set forth in connection with the listing of the powers which were conferred.

In addition to the foregoing powers, the Act proceeds, in subsection 21 of Section 3, to confer upon the Authority the further power:

"To investigate, study and consider all undeveloped power sites and navigation projects in the State and to acquire and/or develop the same as need may arise in the same manner as herein provided;

"Provided always nevertheless; that said investigations, studies and considerations of said South Carolina Public Service Authority herein created shall be limited to the Congaree River and its tributaries below the confluence of the Board [doubtless meaning Broad] and Saluda Rivers and the Wateree tributary of the Santee River at and near a point at or near Camden, South Carolina."

With reference to the completed and operating electric utility systems with which we are now concerned, the conclusion seems inescapable to me, in the light of the whole Act, as well as in the light of the provisions of Section 3, that the enabling Act places no limitations upon the area in which the Authority is empowered to produce, distribute and sell electric power; and it seems abundantly evident that no territorial limitation is intended with respect to the location of "any property, real, personal or mixed, or any interest therein" which may be acquired, purchased, held, used and disposed of for the purposes named in the Act.

The present case involves the proposed purchase, by the Authority, of three hydro-generating plants and one steam generating plant, together with certain other completed and operating properties, all of which are clearly described, and their locations given, in the main opinion, and need not be further identified here.

It seems evident to me that none of the properties involved in this action could conceivably be classified as "undeveloped power sites and navigation projects" upon which a territorial limitation is placed by subsection 21 of Section 3; and it seems an equally inescapable conclusion that subsection 21 applies solely and exclusively to undeveloped power sites and navigation projects. Indeed, subsection 8 specifically empowers the Authority to manufacture, produce, generate, transmit, distribute and sell water power, steam-electric power and hydro-electric power "within and without the State of South Carolina." Therefore subsection 21 of section 3 impresses me as being a restricted power, given in addition to the fuller powers which had previously been named. In 59 C.J., 974, Section 575 (e), it is stated:

" * * * Where the statute establishes a general rule and certain exceptions thereto, the Court will not, by implication, add any more exceptions, and will not add exceptions merely because good reasons exist for adding them."

In construing this statute as a whole, upon which strong emphasis is placed in the majority opinion, we must not lose sight of the dictum of this Court with reference to the construction of statutes, as stated in the case of Home Building Loan Association v. City of Spartanburg et al., 185 S.C. 313, at page 321, 194 S.E., 139, at page 142, in which it was said:

"* * * Full effect must be given to each section, and the words must be given their plain meaning. * * *" (Emphasis added.)

In giving full meaning to Section 3, of the act, how can this statute, which empowers the authority to acquire real or personal property, to produce and distribute electric power, within and without this State, and to exercise all powers necessary or convenient for the exercise of such powers, be said to define any particular area in which such powers are to be used, except insofar as such powers are expressly limited therein?

It should also be borne in mind that the South Carolina Public Service Authority is a public body, created and functioning for the express purpose of benefiting all of the people of South Carolina. Therefore, the powers conferred by Section 3 should be construed liberally in order to give effect to the purpose of the Act. As was stated by this Court in case of Leitzey v. Columbia Water-Power Company, 47 S.C. 464,479, 25 S.E., 744, 749; 34 L.R.A., 215: "* * * "The principle of strict construction is less applicable where the powers are conferred on public bodies for essentially public purposes.' * * * ``The right to condemn will be more readily inferred in favor of public corporations exercising powers solely for the public benefit than in favor of private individuals, or corporations organized for pecuniary profit.' * * * "

And in 43 C.J., 197, Section 193 (b), it is stated:

"Within the limits of their powers municipal corporations are favored by the courts; in such cases, rules of strict construction do not apply; * * *. The possession of the power being established, a generous measure of its exercise will be permitted to the end that it may effectuate its purpose.

"The rule of strict construction does not apply to the mode adopted by the corporation to carry into effect powers expressly or plainly granted. In determining whether or not it is properly exercising a granted power, the presumption is in favor of the corporation, * * *."

Since the territorial inhibitions in the act specify only undeveloped power sites and navigation projects, neither of which is involved in the present case, I cannot see how the General Assembly contemplated any restriction upon the acquisition by the Authority of the developed and operating properties now under consideration.

On the second issue involved in the controlling question as stated by Mr. Justice Fishburne, I must also dissent. The record reveals that one of the companies whose properties are sought to be purchased in toto by the Authority is the South Carolina Electric and Gas Company, which owns and operates, besides the distribution system of its power plant, a gas manufacturing and distribution system in the cities of Florence and Darlington, a gas manufacturing and distribution system in the city of Columbia, and a bus transportation system serving the public of that city as well as points some distance away. This issue pertains to the power of the Authority to purchase the foregoing properties as an integral and inseparable part of its negotiations with the South Carolina Electric and Gas Company.

The last paragraph of Section 3, of the Act provides that: "* * * the Board of Directors may sell any surplus property which it may acquire and which said Board of Directors shall deem not to be necessary for the purpose of the development."

In my opinion, the General Assembly thus specifically clothed the Authority, through its Board of Directors, with the right, as an incident to the purchase of properties within the primary scope of its public functions, to purchase other properties from the same parties. Such other properties might be secondary to the objects for which the Authority was created, or they might even be unrelated to its purposes. In any event, the Act clearly recognizes that the Board of Directors may acquire and sell surplus property.

The defendants, in their printed brief, have aptly drawn an analogy in this respect between the Authority and an educational institution empowered to acquire property for purposes which lie entirely within the sphere of education. Certainly the acquisition of a tract of land for educational purposes should not rightfully be restrained merely because there was a building on the land devoted to a comparatively small noneducational business enterprise.

Very frequently it occurs that one cannot purchase something which he requires without the necessity of purchasing, at the same time, something for which he has no need. A cotton grower, for instance, might find difficulty in purchasing only the fertile acres of a farm, omitting the pasture lands, and a prospective purchaser of a home would often be unable to persuade the seller to exclude the land at the rear of the lot merely because there was more space in the back yard than he required.

Accordingly, the General Assembly doubtless recognized the possibility that the Authority would acquire property which would not be within the scope of the purposes for which it was created. In the acquisition of properties which are necessary to the fulfillment of its proper function, it is hardly possible that it could always negotiate a purchase without occasionally having to purchase other property which it lacks the power to develop and utilize. Such surplus property, when so acquired, is a normal incident to the lawful purposes of the Authority. The power of a public body, designed for the good of all the people of the State, to engage in a specified activity, could be defeated by imposing a prohibition against its acquiring surplus property which could conceivably be one of the conditions involved in acquiring other property necessary for its legitimate use. Such a prohibition was not contained in the Act.

It is evident from the Act, considered both as a whole and as the sum of its parts, that the General Assembly conferred no right upon the Authority to operate a bus transportation system, a gas plant or a gas distribution system. Such undertakings are extraneous and foreign to the purposes of the Act, and such properties when purchased become surplus property, within the meaning of the Act, and although they cannot be operated, they can be acquired and sold.

In my opinion, a permanent injunction should be denied.