Opinion
6 Div. 482.
April 27, 1939. Rehearing Denied June 22, 1939.
Appeal from Circuit Court, Jefferson County, Bessemer Division; Gardner Goodwin, Judge.
Horace C. Wilkinson, of Birmingham, for appellant.
On the facts averred, prohibition is the appropriate remedy. Ex parte Montgomery Light Traction Co., 187 Ala. 376, 65 So. 403. The purpose for which private property is condemned is the very basis of the right to condemn. The petition should disclose the specific purpose to which it is intended to apply the land. Kessler v. Indianapolis, 199 Ind. 420, 157 N.E. 547, 53 A.L.R. 1; Brown v. Rome D. R. Co., 86 Ala. 206, 5 So. 195; State v. City of Newark, 54 N.J.L. 62, 23 A. 129; McCulley v. Cunningham, 96 Ala. 583, 11 So. 694; London v. Sample Lbr. Co., 91 Ala. 606, 8 So. 281. An express grant of power to municipality to condemn land for a certain purpose will not authorize the taking lands for a different purpose. Mack v. Craig, 68 Colo. 337, 191 P. 101; Mayor, etc., of Paterson v. Jersey City, 84 N.J.L. 454, 87 A. 102; City of Bremerton v. North Pac. P. S.C., D.C., 243 F. 980; Hobart v. Minneapolis, 139 Minn. 368, 166 N.W. 411; Dooley v. Kansas, 82 Mo. 444, 52 Am.Rep. 380; Houghton Common Council v. Huron Copper Min. Co., 57 Mich. 547, 24 N.W. 820; Dillon Mun. Corp. p. 2121; City of Paris v. Sturgeon, 50 Tex.Civ.App. 519, 110 S.W. 459; Steitenroth v. Jackson, 99 Miss. 354, 54 So. 955; Town of Kearny v. Mayor, etc., of Bayonne, 90 N.J. Eq. 499, 107 A. 169; Stauffer v. East Stroudsburg Borough, 215 Pa. 143, 64 A. 411; Bly v. White Deer Mt. W. Co., 197 Pa. 80, 46 Ala. 929. The power of eminent domain being in derogation of common rights, the acts conferring it are to be strictly construed in favor of the landowner. Sloss-S. S. I. Co. v. O'Rear, 200 Ala. 291, 76 So. 57; Ensign Y. P. Co. v. Hohenberg, 200 Ala. 149, 75 So. 897; Denson v. Alabama Poly. Inst., 220 Ala. 433, 126 So. 133; Chappell v. U.S., 4 Cir., 81 F. 764; Mitchell v. Illinois St. L. R. C. Co., 68 Ill. 286. A municipal corporation can exercise the power of eminent domain only when expressly authorized by the Legislature; such power cannot be implied. Cavanagh v. Boston, 139 Mass. 426, 1 N.E. 834, 52 Am.Rep. 716; Allen v. Jones, 47 Ind. 438; Mack v. Craig, supra; Lloyd v. Venable, 168 N.C. 531, 84 S.E. 855; Commissioners of Beaufort County v. Bonner, 153 N.C. 66, 68 S.E. 970; City of Allegan v. Iosco Land Co., 254 Mich. 560, 236 N.W. 863; Appeal of Solar Elec. Co., 290 Pa. 156, 138 A. 845; Paris Mt. Water Co. v. Greenville, 105 S.C. 180, 89 S.E. 669; Brunswick W. R. Co. v. Waycross, 94 Ga. 102, 21 S.E. 145; City of Tacoma v. State, 4 Wn. 64, 29 P. 847; Fort v. Goodwin, 36 S.C. 445, 15 S.E. 723; Leeds v. Richmond, 102 Ind. 372, 1 N.E. 711; Delaware, L. W. R. Co. v. Morristown, 276 U.S. 182, 48 S.Ct. 276, 72 L.Ed. 523; City of Richmond v. So. Bell T. T. Co., 174 U.S. 761, 19 S.Ct. 778, 43 L.Ed. 1162; Thatcher v. Dartmouth Bridge Co., 18 Pick., Mass., 501. The authority to supply the needs of inhabitants of the municipality is no authority for the municipality to enter into the business of furnishing persons beyond the municipal limits. Taylor v. Dimmitt, 336 Mo. 330, 78 S.W.2d 841, 98 A.L.R. 995; Richards v. Portland, 121 Or. 340, 255 P. 326; Town of Kearny v. Bayonne, 90 N.J. Eq. 499, 107 A. 169; City of Paris v. Sturgeon, supra; Dyer v. Newport, 123 Ky. 203, 94 S.W. 25; Rehill v. Jersey City, 71 N.J.L. 109, 58 A. 175; Imlay v. Union Branch R. Co., 26 Conn. 249, 68 Am.Dec. 392; Ligare v. Chicago, 139 Ill. 46, 28 N.E. 934, 32 Am.St.Rep. 179; Chicago N.W. Ry. Co. v. Gault, 133 Ill. 657, 23 N.E. 425, 24 N.E. 674. An eminent domain proceeding that embraces an object which is constitutional with an object which is unconstitutional is void. Sadler v. Langham, 34 Ala. 311; Miller v. Pulaski, 109 Va. 137, 63 S.E. 880, 22 L.R.A., N.S., 552; Columbus W. W. Co. v. Long, 121 Ala. 245, 25 So. 702. The authority of a municipality to acquire land without its corporate limits for the purpose of furnishing nonresidents with electricity is a subject not clearly expressed in the title of the Carmichael Act, as required by Section 45 of the Constitution. Lindsay v. U.S. Saving Co., 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; Randolph v. Builders' P. S. Co., 106 Ala. 501, 17 So. 721; Houghton Com. Council v. Huron Copper Min. Co., supra.
H. H. Sullinger and G. H. Bumgardner, all of Bessemer, for appellee.
Municipalities in this state have authority to erect, operate and maintain electric light works for the purpose of furnishing electricity to citizens within the cities and surrounding territories. Code 1923, § 2001; Gen.Acts 1933, p. 100; Birmingham Elec. Co. v. Bessemer, 237 Ala. 240, 186 So. 569; City of Montgomery v. Greene, 187 Ala. 196, 65 So. 783. Municipalities may condemn land for any public use. Code 1923, §§ 223, 2295; Gen.Acts 1933, pp. 99, 100; Alabama Power Co. v. Guntersville, 236 Ala. 503, 183 So. 396, 119 A.L.R. 429. That the city of Bessemer may incidentally or in connection with the operation of its municipal plant serve neighbors outside the city would not render it any the less a public use or the service any the less a public service. Shedd v. Northern Ind. P. S. Co., 206 Ind. 35, 188 N.E. 322, 90 A.L.R. 1020; Columbus W. W. Co. v. Long, 121 Ala. 245, 25 So. 702; Mier v. Citizens' Water Co., 250 Pa. 536, 95 A. 704; Augusta Power Co. v. Savanah R. E. Co., 163 S.C. 541, 161 S.E. 767, 163 S.E. 822; City of Montgomery v. Greene, supra; City of Henderson v. Young, 119 Ky. 224, 83 S.W. 583; 20 C.J. 552; Demeter Land Co. v. Florida P. S. Co., 99 Fla. 954, 128 So. 402; City of Omaha v. Omaha Water Co., 218 U.S. 180, 30 S.Ct. 615, 54 L.Ed. 991, 48 L.R.A. 1084; Kansas G. E. Co. v. City of McPherson, 146 Kan. 614, 72 P.2d 985. If the undertaking by the city of Bessemer is for a public use within the city and serves the interest of the people within the city it is "for the public use". Shedd v. Northern Ind. P. S. Co., supra; 20 C.J. 552, 558; 10 R.C.L. 32; Highland Boy G. M. Co. v. Strickley, 28 Utah 215, 78 P. 296, 1 L.R.A., N.S., 976, 107 Am.St.Rep. 711, 3 Ann.Cas. 1110; Tanner v. Treasury Tunnel M. R. Co., 35 Colo. 593, 83 P. 464, 4 L.R.A., N.S., 106. The allegations contained in the petition for condemnation filed in the probate court are sufficient. Mier v. Citizens' W. Co., supra; Central P. R. Co. v. Feldman, 152 Cal. 303, 92 P. 849; Columbus W. W. Co. v. Long, supra; 20 C.J. 558; Mobile O. R. Co. v. Postal Tel. Co., 120 Ala. 21, 24 So. 408. Where a public use and a private use are combined, it must be of such a character as to be inseparable in order to be void. 20 C.J. 554; Aldridge v. Tuscumbia, C. D. R. Co., 2 Stew. Port. 199, 23 Am.Dec. 307; Burley v. U.S., 9 Cir., 179 F. 1, 33 L.R.A., N.S., 811; Walker v. Shasta Power Co., 9 Cir., 160 F. 856, 19 L.R.A., N.S., 725. Where probate court has jurisdiction to condemn, prohibition does not lie on ground of irregularities or errors in the proceeding. 20 C.J. 1176, 537. While the statute conferring the power of eminent domain should be strictly construed and not extended by implication, it must be applied to effectuate the legislative intent. Central Pac. R. Co. v. Feldman, 152 Cal. 303, 92 P. 849. It is no defense to a petition for condemnation that the condemnor intends to devote the land to some other use than that to which it is sought to be appropriated. Lea v. L. N. R. Co., 135 Tenn. 560, 188 S.W. 215; Holly Shelter Railroad Co. v. Newton, 133 N.C. 132, 136, 45 S.E. 549, 98 Am.St.Rep. 701; Mier v. Citizens' W. Co., supra. While section 45 of the Constitution requires that each law shall contain but one subject which shall be clearly expressed in its title, yet when there is a fair expression of the general subject of the act in its title, this is sufficient. Opinions of the Justices, 228 Ala. 140, 152 So. 901; Lindsay v. U.S. Savings Co., 120 Ala. 156, 24 So. 171, 42 L.R.A. 783; State v. Board of Revenue, 202 Ala. 303, 80 So. 368; Wages v. State, 25 Ala. App. 84, 141 So. 709.
This is an appeal from the judgment of the Circuit Court denying the appellant's writ of prohibition to the Probate Judge of Jefferson County to prevent the rendition of a judgment in a condemnation proceeding by the City of Bessemer to condemn a right of way over the appellant's lands for the purpose of constructing wires to obtain and conduct electricity to its municipal plant.
The contention is that the Probate Court was without or exceeding its jurisdiction to condemn the land in question because the City of Bessemer did not, by its petition, charge or show the right of authority to condemn the land for the purpose set forth.
Reliance is first had that the City had the authority under the Carmichael Act, Extra Session 1933, No. 107, page 100.
It is sufficient to say that the body of this act does not authorize the condemnation of a right of way outside of the municipality. It merely gives the right to acquire which may be by purchase or gift and is not equivalent to the right to condemn. Claremont Ry. Lighting Co. v. Putney, 73 N.H. 431, 62 A. 727; Cavanagh v. Boston, 139 Mass. 426, 1 N.E. 834, 52 Am.Rep. 716; Paris Mountain Water Co. v. City of Greenville, 105 S.C. 180, 89 S.E. 669.
Moreover, the title to the act indicates the right to condemn only "electric light plants, power plants, power lines, transmission lines and power distributing systems" and not the right of way like the one in question, and to hold that the body of the act authorized the condemnation of said right of way would probably render the act repugnant to Section 45 of the Constitution under the influence of Lindsay v. United States Savings Loan Association et al., 120 Ala. 156, 24 So. 171, 42 L.R.A. 783. When an act is susceptible of two constructions, one of which would render it offensive to the Constitution and the other would not, the construction most favorable to the Constitution should be given though the less natural one. State ex rel. Collman v. Pitts, Probate Judge, 160 Ala. 133, 49 So. 441, 686, 135 Am.St.Rep. 79.
Therefore, the authority must be given by some other statute and the ones relied upon by the appellee's counsel give no such authority, the nearest one being the Carmichael Act, No. 105, Extra Session 1933, page 99. Said Act reads as follows:
"An Act to authorize cities, towns and municipalities to construct, lease, purchase or otherwise acquire power lines for the transmission of electricity from any point in this State or any other State for the purpose of serving its citizens, and granting the right of eminent domain to such municipalities.
"Be it enacted by the Legislature of Alabama:
"Section 1. Cities, towns and other municipalities in this state are authorized to construct, lease purchase or otherwise acquire power lines for the transmission of electricity from any point in this State or any other State to said city or other municipality for the purpose of serving the needs of its citizens. [Italics supplied.]
"Section 2. For the purposes of this Act Cities and municipalities may exercise the right of eminent domain in acquiring title to land for right of ways, power stations and other purposes necessary to the operation of said transmission lines. Such eminent domain proceedings shall be conducted in the manner now provided by law.
"Approved April 6, 1933."
It must be observed that the act gives this right to condemn land for a right of way from any points for the purpose of transmitting electricity to said city or other municipality for the "purpose of serving the needs of its citizens." (Italics supplied).
The petition in the probate court for condemnation seems to studiously avoid averring that the power was to be transmitted for the purpose of serving "the needs of its citizens," a defect pointed out by the 14th ground of demurrer which was erroneously overruled and which said averment was essential to show the municipality's right to condemn the land in question and to give the probate court jurisdiction. The petition does aver that the power to be transmitted was for the purpose of serving "its municipal light and power system," but that is not synonymous with serving its citizens.
The petition should disclose the specific purpose to which it is intended to devote the land. Brown v. Rome Decatur Railroad Company, 86 Ala. 206, 5 So. 195; McCulley v. Cunningham, 96 Ala. 583, 11 So. 694; London v. Sample Lumber Co., 91 Ala. 606, 8 So. 281.
It is well settled by the decisions of this and practically all of the courts that statutes conferring the right of eminent domain must be strictly construed in favor of the land owner. Ensign Yellow Pine Co. v. Hohenberg, 200 Ala. 149, 75 So. 897; Sloss-Sheffield Steel Iron Co. v. O'Rear et al., 200 Ala. 291, 76 So. 57; Denson v. Alabama Polytechnic Institute, 220 Ala. 433, 126 So. 133.
The Carmichael Act, Extra Session 1933, page 100, was considered in the recent case of Birmingham Electric Co. v. City of Bessemer, Ala.Sup., 186 So. 569, but the constitutionality of same was not raised or considered. Nor was the right of eminent domain or the condemnation proceedings involved in it or the Greene case, City of Montgomery v. Greene, 180 Ala. 322, 60 So. 900, there cited.
It is questionable, however, if the appellant was entitled to the writ of prohibition for the reason that some other legal remedy could have been invoked to test the right of condemnation before the rendition of a final decree by the probate court as pointed out in Goodwin, Judge v. McConnell, 187 Ala. 431, 65 So. 788, and Glazner v. Jenkins, Judge, Ala.Sup., 186 So. 475. The petition for the writ of prohibition contains a general prayer and as the appellant had no right of appeal from the interlocutory order of the probate court on the demurrer to the petition, he had the right to test the ruling by mandamus as pointed out in the cases supra, and Ex parte Watters, et al., 180 Ala. 523, 61 So. 904.
There is an apparent conflict between the Goodwin case, supra, and the case in the same report of Ex parte Montgomery Light Traction Company, 187 Ala. 376, 65 So. 403, which seems not to have been observed in the Goodwin case, supra. In the Montgomery case, supra, prohibition was awarded because the property was not subject to condemnation and the owner had no adequate remedy by appeal, evidently overlooking the fact that he had the right to invoke other legal remedy instead of prohibition as laid down in the Goodwin case, supra. The Montgomery case, supra, is therefore explained and qualified and the Goodwin case, supra, which has been frequently cited and followed, must be invoked in the case at bar. Glazner v. Jenkins, Judge, Ala.Sup., 186 So. 475;fn2 Ex parte Cox, 230 Ala. 656, 162 So. 670; State v. Grayson, 220 Ala. 12, 24, 123 So. 573; Ex parte Wilkinson, 220 Ala. 529, 533, 126 So. 102.
The appellant's petition to the Circuit Court made out a case for the award of the writ of mandamus to correct the action of the probate court in overruling the demurrer to the petition for condemnation especially ground 14. The Circuit Court erred in dismissing appellant's petition and the judgment of said Circuit Court is reversed and the cause is remanded.
Reversed and remanded.
All the Justices concur.