Opinion
12034
October 3, 1929.
Before DENNIS, J., McCormick, September, 1929. Affirmed.
Action by Augusta Power Company et al. against Savannah River Electric Company. From an adverse order, plaintiffs appeal.
JUDGE `DENNIS' ORDERThis matter comes before me upon the return to a rule to show cause issued against the defendant on behalf of the plaintiffs by Judge C.J. Ramage and returnable before me at Lexington in the 11th Circuit for the purpose of procuring an interlocutory injunction to prevent the condemnation of certain lands in McCormick County owned by plaintiffs. The matter came before me at Lexington, S.C. on September 14, 1929, at which time the issues involved were very fully argued by attorneys representing both parties. It appears from the pleadings that Savannah River Electric Company, a public utility company chartered by a special Act of the General Assembly of South Carolina in February, 1927 (Acts 1927, Vol. 35, page 887), served notice of condemnation in January, 1929, under the terms of the Act on the plaintiffs seeking to condemn certain lands along the Savannah River in McCormick County. A rule to show cause and temporary restraining order was procured in an action brought by plaintiffs in Greenwood County, the 8th Judicial Circuit, and Judge Rice, then presiding in that Circuit, transferred the case to McCormick County, holding that the Court of Common Pleas for Greenwood County had no jurisdiction of the subject of the action. Upon an appeal from this order it was affirmed by the Supreme Court in a decision recently rendered.
It appears from the complaint that Augusta Power Company is not a public utility company but is merely a business trust composed of certain of the plaintiff trustees, owning about 760 acres of land along the Savannah River in South Carolina and Georgia alleged to be suitable for dam sites. Defendant proposes to construct a dam several miles below these lands and at such an elevation as will flood the lands of plaintiffs.
In deciding the questions arising in this controversy I have been guided by the principles frequently laid down by our Court to the effect that there are two essential conditions to the granting of even temporary injunctions; first, the complaint must allege facts which appear to be sufficient to constitute a cause of action for injunction; and, second, on the entire showing from both sides it must appear, in view of all the circumstances, the injunction is reasonably necessary to protect the legal rights of the plaintiff pending the litigation.
Alderman v. Wilson, 69 S.C. 156; Northrop v. Simpson, 69 S.C. 551; Marion C.L. Co. v. Tilgham L. Co., 75 S.C. 221; Boyd v. Trexler, 84 S.C. 51; Keller v. Tiner, 86 S.C. 160.
The broad question presented is as to the right of defendant to condemn the lands above described. Plaintiffs contend that no such right exists — (1) because plaintiffs possess a dam site superior to that of defendant. Without going into detail as to the provisions of defendant's charter it is sufficient to say that it has been granted permission by the State of South Carolina to build a dam across Savannah River at any point along said river in McCormick County and to condemn such lands as might be necessary in pursuance of its public enterprise of developing and selling hydro-electric power. No limitation is found in the Act as to the location of the dam but on the contrary the legislature obviously intended to leave the selection of its location to defendant. In the absence of any such limitation or restriction it is well settled that the location of the dam is solely a matter for the judgment of the party exercising the right of eminent domain.
Riley v. Union Station, 71 S.C. 457; 20 Corpus Juris, 632; 10 Ruling Case Law, 183; United States v. Burley, 172 Fed., 615; Henderson v. Lexington (Ky.), 22 L.R.A. (N.S.), 82 and Note; Samish River Boom Co. v. Union Boom Co., 32 Wn., 586; State v. Thurston, etc., 83 Wn., 445; Pasadena v. Stimson, 91 Calif., 238; Hyattsville v. Washington, etc., Railway Co., 122 Md., 660; N.Y., etc., R.R. v. Gas Co., 5 Hun., 201.
The second contention of plaintiffs is that the use will not be public, in that the power house will be located in Georgia and, therefore, no power will be generated in South Carolina. I am unable to see how the location of defendant's power house can have any possible bearing on defendant's right to condemn. No such limitation or restriction is found in the Act under which it is chartered. Obviously, the legislature knew that the Savannah River was the boundary line between the states of South Carolina and Georgia and that the power house would necessarily be located on one side of the river or the other. Had it intended to impose upon the defendant's right to condemn a limitation that the power plant should be located in this State, the Act would have so restricted the defendant. The broad purpose in the mind of the legislature evidently was to foster and procure the development of hydro-electric power, and the facility with which such power is now transmitted renders the location of the power plant a purely incidental detail of the undertaking. Pittsburgh, etc., Co. v. Liston (W.Va.), 40 L.R.A. (N.S.), 602. Defendant alleges its intention to distribute electricity to the public in South Carolina and the mere fact that the citizens of the State of Georgia may also be benefitted does not change the nature of the use from that of public to private.
20 Corpus Juris, 553; Grover, etc., Co. v. Lovella, etc., Co. (Wyo.), L.R.A., 1916-C, 1286; Gilmer v. Lime Point, 18 Calif., 229; Washington Water Power Co. v. Waters, 19 Idaho, 595; Columbus Water Works Co. v. Long, 121 Ala., 245; In re. Townsend, 39 N.Y., 171; Carnegie Natural Gas Co. v. Swiger (W.Va.), 46 L.R.A. (N.S.), 1073 and Note; Rogers v. Toccoa Electric Power Co. (Ga.), 137 S.E., 272.
It is next contended that the use will not be public in that plaintiffs own certain lands in Georgia that will be necessary for defendant's purpose and that no right of condemnation exists in that state. Defendant avers in its return that it has the right to condemn in Georgia, but plaintiff's position in this respect obviously presents no ground for injunctive relief in this action because the right of condemnation in South Carolina of lands situate wholly within South Carolina and the limitations thereupon are controlled by the Constitution, statutes and decisions of this state and the charter of the defendant. In defendant's charter the power of eminent domain over lands situate in this State is expressly conferred and no limitation as to the acquisition of lands in Georgia is placed thereupon. It is contended, however, that plaintiff's South Carolina lands in conjunction with its Georgia lands form a dam site, thus comprising a unit, the value of which would be destroyed by the condemnation of the South Carolina lands. If such a contention as this were upheld it would destroy the sovereign right of the State of South Carolina to acquire for a public use lands situate wholly within the State merely because the owner owns lands in an adjoining state. A mere statement of the proposition demonstrates its lack of logic. Colgate v. Electric Co., 20 F.2d 263. It is suggested that by the taking of the lands sought to be condemned the value to the remainder will be greatly minimized or practically destroyed. This, however, is no defense to the right of defendant to condemn, as the condemnation statutes under which defendant is proceeding and the constitution of this State amply provides for just compensation.
Again it is suggested that defendant cannot condemn because defendant will sell its power to other allied companies and, therefore, will not be engaged in a public enterprise — that in effect it is not a public utility.
That the development and sale of hydro-electric power is a public use has been so repeatedly settled by our Court that it is no longer open to question. Ingleside Mfg. Co. v. Light Power Co., 76 S.C. 95; Southern Power Co. v. Walker, 89 S.C. 84; McMeekin v. Central Power Co., 80 S.C. 512.
It is well settled that the use or enterprise is not divested of its public character merely because such power is not sold to the entire public. Section 1 of the Acts of 1922, page 938, regulating public utilities, defines a public utility as a person, or corporation "supplying * * * electric power * * * to the public or any portion thereof," and the term "public or any portion thereof," is defined to mean the "public generally or any limited portion of the public, including a person, private corporation, etc." There can hardly be any doubt since the passage of this Act as to the nature of such companies. In addition, our Court has consistently held that it is not necessary in order to be a public purpose or use that the entire community or any considerable portion of it enjoy the benefits of the improvement.
Boyd v. Granite Co., 66 S.C. 433; Riley v. Union Station Co., 71 S.C. 457; McMeekin v. Power Co., 80 S.C. 512.
In addition to that the Court will judicially notice that the companies to whom it is alleged in the complaint defendant's power will be disposed are themselves public utility companies engaged in serving the public. Aside from this, however, such a contention is no defense to defendant's right to condemn. Its charter and the laws of this State plainly impose upon it a public duty, and it would be prejudging the case to assume its intention to violate that duty. McMeekin v. Power Co., 80 S.C. 512. Where a public utility corporation has been duly chartered the Courts will not inquire into its motives. 10 Ruling Case Law, 212; Riley v. Union Station, 71 S.C. 457.
Again it is contended that the Act chartering the defendant company is contrary to the commerce clause of the United States Constitution in that it purports to give the defendant the right to erect and maintain a dam across Savannah River. In the first place it appears from the complaint itself that defendant has procured from the Federal Power Commission, a body established by Congress for the purpose of passing on questions of this kind, a license to erect and maintain a dam across Savannah River at the point in question, and has specifically found and declared such development to be in aid of navigation of the said river and has amply safeguarded the rights of the public. In the second place, a riparian owner may not raise this question nor is it any defense to defendant's right to condemn. U.S. v. River Range Improvement Co., 269 U.S. 411; U.S. v. Chandler, etc., Power Co., 229 U.S. 62.
The next contention of plaintiffs is that defendant seeks to condemn certain lands that will be above the flood line and, therefore, will be islands after the dam is completed, and that such property is not necessary for its public purpose. It appears from the notices of condemnation and plats attached thereto that the acreage in such prospective islands is negligible, and the showing on the part of defendant before me is to the effect that such islands will likely be flooded in time of high water, and that they are necessary to defendant's public purpose. If it should later appear that defendant does not require the islands which it now alleges are necessary for its public purpose, or if for any reason such public use should be terminated, or if any attempt is made to divert such property to a private use, the owner may recover the same by an appropriate action in ejectment. I could not now, on the showing before me, hold that defendant's intended use will not be public in the face of its sworn return that such lands are required. Colgate v. Philadelphia Electric Power Co., 20 F.2d 263; McMeekin v. Central Power Co., 80 S.C. 512.
The next contention is that provisions of defendant's charter as to lease, merger, sale, etc., are in conflict with the provisions in its federal license and with the Commerce Clause of the United States Constitution. Plaintiffs introduced in evidence the license issued by the Federal Water Power Commission to defendant. At the time of the issuance of this license such Commission had before it a copy of the defendant's South Carolina charter. In addition to this, eight weeks published notice as required by the Act was given before the license was granted, and ample opportunity was given to all interested parties to raise any objections which they might have to the granting of such license. It may be safely assumed, therefore, that the Federal Power Commission did not consider this clause of defendant's charter in conflict with provisions of the Act, and, certainly, in any event the license itself provides ample safeguard for protection to the public against any violation of its provisions. It is charged, however, that such provision in defendant's charter gives it a right and that it is defendant's intention to violate the anti-trust laws both of Congress and of the State. A sufficient answer to this contention is that defendant's license and the Act under which it was issued amply safeguard the right of the public in this respect, and it will be time enough for the State or the commission to intervene when it appears that defendant is perverting its use to the neglect of the public which it proposes to serve. Pittsburgh Electric Co. v. Liston (W.Va.), 40 L.R.A. (N.S.), 602; Webb v. Knox County Transmission Co., 143 Tenn., 423.
In the case last cited it is clearly shown both from reason and authority that neither the fact that petitioner may be allied with other public service corporations, nor that it may have the power to lease its property constitute valid defenses to its right to condemn, nor do the anti-trust laws have any application to defendant's right to condemn. Such questions cannot be raised collaterally. Railroad v. Railway, 116 Tenn., 504; Webb v. Knox County Transmission Co., 143 Tenn., 423; 2 Nichols on Eminent Domain, 1088.
The reasons just given also apply to plaintiff's next contention that Section 5 of its charter as to the lease or sale of its property is in conflict with Article IX, Section 7 of the South Carolina Constitution with reference to transmitting corporations. To assume an intention on the part of defendant to violate the Constitution or laws of this State is to prejudge the case. McMeekin v. Central Power Co., 80 S.C. 512; Colgate v. Philadelphia Electric Power Co., 20 Fed. 2d 263.
Another answer to this contention is that it appears from the context of the constitution that the "transmitting companies" therein referred to are those "engaged in the business of transmitting intelligence for hire," and this section does not refer to a public utility corporation of this character. In any event this contention on the part of plaintiffs is no defense to defendant's right to condemn. Throughout the complaint ulterior motives of many kinds are ascribed to defendant. These motives are all denied by defendant, but even if they have a factual basis they cannot affect its right to condemn. 20 Corpus Juris, 913; Memphis, etc., Railroad v. Union Railroad Co., 116 Tenn., 500; Bonaghan v. Worcester County, 213 Mass. 17; Tibbey Bros. Glass Co. v. Pennsylvania Railroad Co., 219 Penn., 430; Note to National Fireproofing Co. v. Mason Building Association (U.S.C. C.A.), 25 L.R.A. (N.S.), 153.
In plaintiff's original complaint and also in its proposed amended complaint it is alleged that defendant as a member of the so-called "Power Trust" has prevented the development of ths and other property in the Savannah River by conspiring to this end with other public utility companies. This contention is quite beside the point. Defendant itself could hardly be a party to any such conspiracy as it was not organized until 1927, but aside from that fact, this is no defense to defendant's right to condemn. If plaintiffs have been injured by any such conspiracy as alleged, they have a complete and adequate remedy at law. The function of an injunction is not to afford a remedy for what is past but to prevent future mischief. 32 Corpus Juris, 45. It is to afford preventive relief and not to redress past wrongs. McFarland Co. v. O'Brian, 6 F.2d 1016. In the case at bar it appears that the State of South Carolina, through the agency of a public service corporation which it has chartered, is seeking to appropriate these lands to a public purpose, and it is no defense to the right of eminent domain to suggest that the agency of the State, selected to accomplish that purpose, may have in the past been guilty of conspiring with similar corporations. This is a question for the legislature and not the subject of judicial inquiry in a suit to enjoin condemnation. Questions of motives or bad faith can not be raised in such a proceeding. Sisters of Charity v. Railroad (N.J.), 5 L.R.A. (N.S.), 236; Fletcher's Cyc. Corporations, Volume 1, page 585, and cases therein cited. Nichols on Eminent Domain, Section 292.
There is another compelling reason why an injunction ought not to issue in this case. It is alleged in the complaint that Savannah River is a border river between this State and the State of Georgia. Of this fact the Court takes judicial notice. It is declared by Article XIV, Section 1, of the Constitution to be a common highway and forever free for the use of the people of this State and of the United States, and has all of the legal incidents of a navigable stream, whether navigable in fact or not, so far as this State is concerned.
It is also alleged and was proven by the plaintiffs on this hearing that a license had been granted to the defendant to build the dam in question, under the provisions of the Act of Congress known as the Water Power Act.
Without discussing in detail the provisions of this Act of Congress, it is evident from its terms that practically all of the matters and things set forth in the complaint and assigned as objections to defendant's exercise of the power of eminent domain, conferred by its charter, are conclusively answered by the license granted and this Act of Congress under which it was granted. This Act of Congress provides for a comprehensive plan of developing streams over which the Federal Government has jurisdiction, whether general or concurrent, and certainly no development can be had on Savannah River without the consent of Congress, and compliance with the provisions of this Act of Congress is the method now provided by which that consent may be had. Plaintiffs have no such consent. Defendant has a license. Under the Act this license precludes plaintiffs from obtaining one, for defendant's license fixes the dam site, the height of dam, and the manner in which it is to be built. It is undisputed that this will overflow plaintiff's lands, and the existence of this license, necessarily destroys the probability of plaintiffs ever obtaining one, even if they could otherwise qualify under the Act.
Plaintiffs have no authority, State or Federal, to develop a water power on the river. They are simply landowners along the river, alleged to be such, both in this State and Georgia, and they hold their lands subject to the higher rights of the State to take the same for the public good, under the provisions of the Constitution and laws of the State in that behalf, just as other landowners hold their lands, and also subject to the superior right of Congress to improve the river in aid of navigation and water power development in the interest of the public.
This Act of Congress in itself confers the right of eminent domain upon the licensee, either in the State Courts or the Federal Courts, the State procedure to be followed, and it therefore conclusively answers the objections that defendant has no power to condemn under the laws of Georgia; that defendant has no water power in the State of Georgia; that defendant proposes to build its dam in Georgia and sell its output to Georgia corporations for distribution in that State; and other like objections not here necessary to recount. Even if these were pertinent questions of inquiry by the Courts of this State, as to the exercise of the right of eminent domain conferred upon the defendant by the General Assembly of this State, this Act of Congress supplements and enlarges the power so as to embrace development along this river. Licenses granted under the Act are for a period of fifty years and the licensee is required to accept all of the terms, conditions and limitations imposed by the Act. Preference is given to the applicant "the plans of which it finds and determines are best adapted to develop, conserve and utilize in the public interest the navigation and water resources of the region, if satisfied as to the ability of the applicant to carry out the plans." Detailed plans and specifications of the proposed improvement are required to be submitted with proof of ability to carry them into effect. Notice is published for eight weeks prior to the granting of even a preliminary permit, so that any objections may be made and heard. Exhaustive provision is made for examination of witnesses and for minute investigation of any question raised in reference to the proposed project.
It is evident, therefore, that questions as to the adaptability of defendant's plans, the alleged superiority of plaintiffs' location, the costs of construction at defendant's site, are all questions peculiarly within the province of the agency provided by Congress, and are not matters upon which a Court of equity should restrain the exercise of the right of eminent domain conferred both by the Act and by the General Assembly of the State.
The question as to defendant's ability to carry out its plans, and the manner in which it will carry them out, whether with the aid of allied corporate interests or otherwise, is peculiarly within the province of the Water Power Commission and is concluded by the license. Likewise the Act of Congress, and defendant's license granted under its provisions is conclusive of those alleged objections to the effect that defendant has violated, will violate, or may violate some of the inhibitions of the Act, or has, will or may enter into combinations, conspiracies, or agreements prohibited by the Act, or do other things alleged in violations of its provisions, for the Act provides not only for penalties for such alleged past, present or future infractions, but the enforcement of its provisions is delegated to an agency named in the Act, and not to landowners who seek to enjoin the projects contemplated by the Act, after a license has been granted under its terms and provisions.
This Act of Congress is full, broad and comprehensive, and is especially designed to the development of streams over which Congress has exclusive or concurrent jurisdiction for the public good, and it provides for full, fair and extensive investigation of proposed projects, objections to the same, and the ultimate determination of what is best adapted to the interest of the public.
It is not to be understood that I am basing my decision upon the Federal Water Power Act. I am convinced, however, that whether the right to condemn be referred to the Act of the South Carolina Legislature or to the Federal license of defendant under the terms of such Act, its right to condemn the lands described in the notices is clear and unquestioned. Having determined that the use is a public one and that the property is necessary to such use the matters and things alleged in the complaint fail to present a case for injunctive relief within the principles heretofore adverted to.
It is, therefore, ordered, That the return of the defendant be and the same hereby is adjudged sufficient; the rule is dismissed and plaintiffs' prayer for an interlocutory injunction be and the same hereby is refused.
On the hearing of this matter plaintiffs made a motion to amend their complaint by amplifying in many particulars the allegations relating to the general charges in the complaint and adding certain allegations charging conspiracy to prevent the development of the Savannah River, which proposed amendments are fully set forth in the moving papers. Defendant objected to the allowance of the proposed amendments on the ground that the same failed to state any valid cause of action for injunctive relief. I have carefully considered the proposed amendments and have already set forth my views with regard to same. I do not think the proposed amendments state any valid cause of action for injunctive relief or any valid objection to defendant's right of eminent domain as conferred upon it by the General Assembly or by the Water Power Act, for reasons already fully stated, and therefore the motion is refused.
Plaintiffs also made a motion to examine certain officers of the defendant corporation with reference to the proceedings under which it was domesticated in the State of Georgia, the deeds which it has to a dam site on Savannah River, its application to the Federal Power Commission for a license, an itemized statement of the cost of its proposed plant together with the details of its plan for its construction, the deeds or maps covering the reservoir land which it owns in South Carolina and Georgia, the names of the stockholders and the amount owned by each, its correspondence and contracts with other hydro-electric companies and any contracts which it may have with any person whomsoever relative to the financing of the enterprise. This motion was made under Section 692 et seq., of the Code of Civil Procedure, which section was amended by the Act of 1923 by adding these words: "Nor unless it be upon the order of a Judge of the Court granted after four days' notice, and upon good and sufficient cause be shown therefor." Under the cases of White v. Insurance Company, 134 S.C. 183; Peoples Bank v. Helms, 140 S.C. 107; Thomas v. Railway Company, 107 S.C. 109, our Court has held that before a party is entitled to an order for the examination of such witnesses good and sufficient cause therefor must be shown. In my opinion the documents and data which plaintiffs seek to examine and investigate are utterly irrelevant to this inquiry and can shed no light upon defendant's power to eminent domain. I have already held that in my opinion the allegations of the complaint are not sufficient to warrant the relief asked for and in my opinion the reasons assigned by plaintiffs for the examination of these witnesses and the production of the documents and data referred to are not good and sufficient within the meaning of the statute and their motion is therefore refused.
E.C. DENNIS.
Judge Presiding in 11th Judicial Circuit.
October 3rd, 1929.
Messrs. Watkins, Asbill Watkins, Fleming Fleming and Mays Featherstone, for appellant, cite: Condemnation statutes construed against the condemnor and liberally in favor of property owners: 105 S.C. 187; 89 S.E., 669; 1 Lewis, Em. Dom., 3rd Ed., Secs. 388, 360, 389; 2 Nich., Em. Dom., 2nd Ed., Sec. 358; 47 S.C. 464; 25 S.E., 748; 4 Rich. L., 112; 116 U.S. 635; 56 S.E., 146; 56 S.E., 148; 2 Cooley, Const. Lim., 8th Ed., 1122, 1208. Right of condemnation can be tested only by injunction; 73 S.C. 550; 67 S.C. 92; 68 S.C. 488. Condemnation is for private use: Lewis, Em. Dom., Sec. 310; Ann. Cas., 1915-D, 1907; 71 S.C. 485; 51 S.E., 485. Public use must be not mere presumption: 1 Lewis, Em. Dom., 3rd Ed., Sec. 313; 1 Nich., Em. Dom., Sec. 59; 43 S.E., 194; 130 S.E., 767; 18 Cal., 229. Nature of use is for the Courts: 262 U.S. 706; 210 N.W., 606; 118 N.W., 857. Declaration of Legislature does not make it public use: 296 S.W. 505; 27 A.L.R., 515; 106 S.E., 403; 53 A., 191; 1 Lewis, Em. Dom., 3rd Ed., Sec. 313; 2 Cooley, Const. Lim., 1147-0; 25 Am. Dec., 618. Foreign corporation cannot condemn lands in Georgia: 119 Ga. 354; 161 Ga. 524; 163 Ga. 919. Defendant foreign corporation: 190 U.S. 326; 216 U.S. 146; 257 U.S. 528; 298 Fed., 643. When unconstitutional part destroyed act: 91 Ga. 696; Cooley, Const. Lim., 6th Fd., 209; Suth., Stat. Const., Secs. 169-180; 120 U.S. 678; 71 L.Ed., 1323; 257 U.S. 478. Defendant owns no water power in Georgia and cannot condemn: 111 Ga. 106; 134 Ga. 201; 131 Pac., 43; 33 F.2d 242. South Carolina charter would give no right of condemnation in Georgia: 112 Fed., 98; 185 U.S. 93; 15 Pa. Dist. Rep., 767. Damage may constitute taking: 96 S.E., 381; 140 S.E., 560; 112 S.E., 55. Rights of riparian owners determined by state laws: 152 U.S. 1; 168 U.S. 349; 255 U.S. 56. Federal Power License gave no right to condemn: 245 N.Y., 495; 278 U.S. 367; 51 L.Ed., 956. Monopoly and conspiracy: Art. 9, Sec. 13, Const. S.C. 1895; Art. 9, Sec. 7, Id.; 3 Civil Code 1922, Sec. 3530; 16 U.S.C.A., 229; 2 Lewis, Em. Dom., 1063-4; 54 L.Ed., 619; 55 L.Ed., 663; 71 S.C. 544. Examination of parties: 1 Civil Code 1922, Secs. 693, 694, 695, 696; 33 Stat., 170; 18 C.J., 1083.
Messrs. Hull, Barrett Willingham, J. William Thurmond, Grier, Park McDonald, for respondent, cite: Injunction is matter of grace not of right: 27 S.C. 408; 69 S.C. 159; 69 S.C. 554; 75 S.C. 221; 84 S.C. 51; 86 S.C. 160. South Carolina rule construes condemnation statutes liberally: 76 S.C. 95; 110 S.C. 60. Public use: 20 F.2d 263; 40 L.R.A. (N.S.), 602; 20 C.J., 553; 19 Idaho, 595; 18 Cal., 229; 121 Ala., 245; 39 N.Y., 171; 210 N.Y.S., 748; 37 S.E., 272; 96 W. Va., 637; 46 L.R.A. (N.S.), 1073. Development and sale of electric power is public use: 76 S.C. 95; 89 S.C. 84; 80 S.C. 512; 20 C.J., 584; 32 Stat., 938. Not necessary that entire community enjoy benefits: 66 S.C. 443; 71 S.C. 457; 80 S.C. 512; 262 U.S. 700. Violation of charter effects forfeiture: 58 L.R.A., 284; 1 Wyman Public Service Corporations, 96; 40 L.R.A. (N.S.), 602. Question premature: 80 S.C. 512; 10 R.C.L., 212; 71 S.C. 485. Issue of whether lands are necessary will not be tried on motion for injunction: 20 F.2d 263. Rights of company in Georgia must be decided by Courts of that state: 137 S.E., 272; 7 R.C.L., 1058; 15 C.J., 817. Rights of Congress in navigable stream superior to rights of riparian owners: 269 U.S. 411; 229 U.S. 62. State only can raise question as to violation of charter: 116 Tenn., 500; 143 Tenn., 423; 219 Pa., 430; 26 L.R.A. (N.S.), 153. Question of monopoly and conspiracy cannot be raised in proceeding to condemn: 26 L.R.A. (N.S.), 148; 116 Tenn., 500; 213 Mass. 17; 219 Pa., 430; 265 Pa., 67; 270 Pa., 232; 143 Tenn., 423. Motive cannot be questioned in such proceeding: 71 S.C. 457; 50 L.R.A. (N.S.), 236; 1 Flet. Corp., 585; 97 A.S.R., 106; 51 L.R.A., 936; 90 A.S.R., 705; Ann. Cas., 1914-C, 841; Nich., Em. Dom., Sec. 293. Question of expediency is not a judicial question: 10 R.C.L., 183; 172 Fed., 615; 71 S.C. 457; 22 L.R.A. (N.S.), 82; 32 Wn., 586; 83 Wn., 445; 91 Cal., 238; 122 Md., 660; 5 Hunter, 201; 20 C.J., 333-34. Rights of riparian owner in navigable stream: Fed. Cas., 17978; 80 S.C. 512; 30 S.C. 539; 46 S.C. 327; 54 S.C. 242; 283 Fed., 606. Legislature best judge of public welfare: 104 S.C. 268.
November 26, 1930. The opinion of the Court was delivered by
Taken in connection with the opinion of the Court in the case of Twin City Power Company v. Savannah River Electric Company, 163 S.C. 438, 161 S.E., 750, now in process of decision, the order of his Honor, Judge Dennis, is entirely satisfactory, and is affirmed.
MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.