Benton County Water Co. v. Cummings

G-eorge Rose Smith, Justice. The city of Sulphur Springs filed its complaint in the Benton Circuit Court, seeking to acquire by condemnation the waterworks system of the petitioner, Benton County Water Company, Inc., which was serving the city.- By demurrer the water company questioned the court’s jurisdiction. The court overruled the demurrer. The petitioner then filed the present application for a writ of prohibition, contending that the only way for a city to condemn an existing waterworks system is. to proceed before the Public Service Commission pursuant to Act 324 of 1935. Ark. Stat. Ann. § 73-247 (Repl. 1957). Several statutes are pertinent to the question presented. Section 1 of Act 131 of 1933 declared that “any city . .. may purchase or construct a waterworks system. . . . as in this act provided.” Ark. Stat. Ann. § 19-4201 (Repl. 1956). Section 9 of that act vested in municipalities the power of eminent domain ‘ ‘ [f] or the purpose of acquiring any waterworks system under the provisions of this act.” Before the wording of Section 9 was changed by amendment we held that the city, in acquiring an existing waterworks system, might proceed either in the circuit court or before the Department of Public Utilities (now the Public Service Commission). City of Helena v. Ark. Utilities Co., 208 Ark. 442, 186 S. W. 2d 783 (1945). Ten years after the decision in the Helena case the legislature changed the first sentence of Section 9 of the 1933 act to read as follows: “For the purpose of acquiring any lands or property for the operation of the municipal waterworks system authorized by law, a municipality shall have the right of eminent domain as provided in Act 53 of the Acts of the General Assembly of the State of Arkansas for the year 1955.” Act. 321 of 1955 ; Ark. Stat. Ann. § 19-4209. See also Act 269 of 1957 ; Ark. Stat. Ann. §§ 35-908 et seq. (Repl. 1962). The petitioner now contends that the' 1955 amendment was intended to take from municipalities the power to condemn an existing waterworks system by a -proceeding-in the circuit court, leaving only the authority to proceed before the Public Service Commission. Even if the petitioner is correct in its interpretation of Act 321 of 195, there is other statutory authority for the present circuit court proceeding. Act 1 of 1875, a comprehensive statute governing municipalities, conferred upon municipal corporations the power of eminent domain for the construction of certain improvements and for the present circuit court proceeding. Act lof 1875, a comprehensive statute governing municipalities, • conferred upon municipal corporations the power of eminent domain for the construction of certain improvements and condemn private property for the construction of wharves, levees, parks, squares, market places, or other lawful purposes. The term, or other lawful purposes, as used in this ■ section, shall include a waterworks system in its entirety, or any integral part thereof, or any extension, addition, betterment, or improvement to an existing waterworks system operated by such municipal corporation.” Act 155 of 1935 ; Ark. Stat. Ann. § 35-902. The petitioner argues that the language just quoted is limited to the taking of private property “for the construction” of the enumerated improvements and that therefore it does not embrace the condemnation of .an existing waterworks system. We think there are at least three reasons for disagreeing with this argument. To begin, with, when.the language in question was adopted in 1935 there was on the statute books. Act 131 of 1933, supra, which explicitly empowered municipalities to exercise the right of eminent domain either to purchase or to construct a waterworks system. We find nothing in the 1935 act to indicate that the legislature intended for that act to take away any authority already vested in municipalities. To the contrary, both the body of the statute and its emergency clause suggest a legislative intention to enlarge the cities’ powers. Secondly, the phrase “for the construction of” does not literally apply, of course, to “lawful purposes,” since one cannot construct a lawful purpose. The improvements specifically mentioned, with the possible exception of market places, are of a type ordinarily created by some branch of the government rather than by private capital. Hence before the act was. amended there was little need for it to refer to a purchase in addition to a construction, because such improvements could not ordinarily be bought. In a very similar situation, involving an analogous amendment to a constitutional provision, we held that the phrase, “construction, re-construction, or extension,” was broad enough to include the purchase of an existing structure. Garner v. Lowery, 221 Ark. 571, 254 S. W. 2d 680 (1953). The condemnation of an existing waterworks system is in reality a method of purchasing it — a fact recognized by Act 131 of 1933. Finally, the 1935 act refers to “a waterworks system in its entirety, or any integral part thereof. ” The italicized clause is useless and meaningless if the act contemplates the acquisition of property for construction only, because the act goes on to refer to “any extension, addition, betterment, or improvement to an existing waterworks system operated by such municipal corporation.” We think it evident that the delegated power to condemn an integral part of an existing waterworks system envisaged the acquisition of that part of a system serving the particular municipality, even though the water company might serve other municipalities as well. That precise situation was presented in 1936, when the city of Little Rock bought that part of the Arkansas Water Company’s system that was serving Little Rock but did not buy that part serving North Little Rock. See North Little Rock Water Co. v. Water Works Commission of Little Rock, 199 Ark. 773, 136 S. W. 2d 194 (1940). Even construing the statute strictly, as we do in cases of this kind, we are convinced that the legislature intended for cities to have the power to condemn either a waterworks, system in its entirety or an integral part of one. Writ denied. Foglemak, J., concurs.