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SUPPLEMENT TO CAMDEN JOURNAL. ; , - To the Stockholders of the S. 0. R. R. Company. J i tit the meotiug if the Stockholders, of t'ue South Carolina Railroad Company, on ! thaWth ixxct&nt, thf Pr?sldW?t'4ed that he had " requested Mr. Conner, the Solicitor ' ofthaComnany, \o stats, f.. tL: information of the meeting, the history and condi- ( ticA of thcliugation pending hur^ooa the South Carolina Railroad Company and the { VWUDUBS aaa August* xuuruau vu?i^?ujr. -professional er.gagemsnti as counsel ill a capital case, then on trial, prevented mo from attending the meetingand furnishing the information required. j It is still desired that th i information should bo furnished; and aa the decision of ( ' the case affects very mataially' he interests of the corporation, and is of muchim- i * ' portanoe to the stockholder*, I b ire regarded thopublication of the argument, which was had before the Supreme Court of the State, as best calculated to convey a ol?ar i and distinct idea of the issues between the companies. In order to understand the discussion it Is necessary, however, to narrate the hts- , tory of the case, and state the circumstances which occasioned the appeal to the Supreme Court. This I shall end savor to do as briefly t.3 is'consistent with aocrracy. f The Columbia and Aj^u*tt- Railroad Company was first c" altered 1858. 1 Nothing was dono under this charter. In 1S63, under the proaaure of military ne- . oessity, which demanded a railroad communication between Columbia and the West, horter ana less liabie to hostilo Interruption than that existing, the charter of the ] Columbia and Augusta Railroad Company was amended, subscriptions made, and j the work commenced. , Every one familiar with the history of the time, knows how futile it would have been to oppose to the great w:int of the oountrv the privileges of a corporation. ? The safety of the State was the supreme law, and private interests yielded to public j necessity. . i . But when the war ended. and the road was not completed, the reasons for withholding opposition ceased, and in April, 1867, the South Carolina Railroad Com- 1 pany tiled its bill, to cqjoin the Columbia and Augusta Railroad Company from completing the road, so as to connect Augusta and Colombia, on the ground that - the charter oi tue tatter was maerogauon 01 me ngnts previously oonierrea upon l> > the South Carolina Railroad Company, and to'onjoln them from connecting Granite- 1 m rille and Augusta, 03 the ground that the power to do so was not given in their ( charter, and that the right to build and keep up a railway communication between j V , those towns w&s esprsasiy and exclusively vested in the South Carolina Railroad 1 .. \ Company. "When the biH was filed the ror-j of the Columbia and Augusta Company was 1 " ended to within a fov miles of Gnmltevllle village?distant about a mile from j v' dxsniteruie station, on the Sou'h Carolina Railroad Company?and the line of the SaasileriliCt^irnsban: was not definitely located. ! The ease was argued l efore Chancellor CarrolL who refused the injunction. 1 I Pending the decision by the Chanocllor, the Colombia and Augusta Railroad. Com* j I. j pany,Without notice to tie Sooth Carolina Railroad Company, and without con* I saltation between the companies or their engineers, as to tnc best location, and the ? j best mods of crossing with due regard to the oonvsuienoe of both companies and the J , safety of the public, cut the rails of the Sooth Carolina Railroad about a mile below J j j the depot in Colombia and crossed the track on the same level. Their right to do so , I I was resisted, and was one of the Questions submitted on appeal. The oase was 1 heard by toe Court of lirrors in December, ISO7, and it was adjudged that the ? Columbia and Augusta Railroad Company had the right to oonneot Colombia and { Augusta, and the right to build their road vt'a Graniteville, and thereby to oonneot Graniteviio and Hamburg; that the company had the right to cross the traak of<, the 8outh Carolina Railroad Company near Columbia, bat should "use it with 1 extraordinary care in subordination to the rights of the plaintiff/' and "with (j _L, responsibility for all dan-ages that may come directly or indirectly" from negligence . ^ i of defendants. The questions at lira) between the two oomp&nics no-' been heard and decided by C the appropriate legal tribunal, and in that decision the South- Carolina Railroad f ', ~ Company ccquiesoed without forth?- appeal. The Directors had discharged their f < trust in'submitting the rights which they represented to legal adjudication, and the , I responsibility was not with thsm but with the Courts. 1 i I . The rights given to the Columbia and Augxuta Railroad Company by the judg- ( | jr-nt of the Court, were the right to connect Columbia and Augusta, and Granite- 1 f /' vjle and Augusta. Thus much and no more. . in October, 1SG7, the Columbia and Augusta Railroad Company applied to Judge v J Aldrlch to condemn the depot lot of the South Carolina Railroad Company at rit Graniteviiio for tho purposs of building their track through it. This application <( . Was resisted, and Juage Aidriob decided that under their charter tho Columbia and . Augusta Railroad Company had no right to condemn to its use the lands or rights of ( '1 way of the South Carolina Railroad Company. From this deoision no appeal was r j taken, and tho question was regarded as settled. t In September, ibb^ on Act.was passed by the Legislature to declare the manner 1 by whien lands and the right of way over lands might be oondemned. I Shortly after its postage, and without legal proceedings of any kind, the Columbia 1: r ] end Augusta Railroad Company entered upon the lands of the South Carolina Rail- ? jiad Company and cotimeneed constructing their road. A bill in equity was filed, 1 i -Jet to essoin thorn from obstructing their road, but simply to enjoin them from j ?to*tTwWtizg it on (Ae bjtcLt and right* of vay of ill South Carolina Railroad Company. I L-J The Columbia and Augusta Railroad Company pleaded that the question was re? I r judicata. Mr, Justice Will&rd, in delivering his opinion, held that the question f ) emitted was sot it* adjadioata, that the location of the Colombia and Augusta * iailrotd Company," is interfering with their (the South Carolina Railroad Com- C w- m\ny'9) proprietory rights, does not appear to have been before tho Court, except in j Shxtioa to the crowing at Colombia." He farther held that I ho Columbia and Augusta Railroad (ompany were trespassers, and granted on order enjoining them ? ^rom entaring upon the iandl, rights oi way or franctiiscs of the South Carolina Rail- t X?ad Company, will leave to the Columbia and Augusta Railroad Company to movo { to dissolve the injuactioc before the hearing, upon proof that they had " duly acquired the right." _ " c Ihii<order was da'nd Novembar 20, 1868, and on 1st of Dcoembcr,' in pursuance of ? notice ditod November 24, 1863, application was made to Judco Piatt, at Aiken, for ^ondtsapaticn of ajort ol' the depot tot at Granlteville, and of large portions of the Vrr~. right of, vtvy of the South Carolina Railroad Company, including ground ^ purchased Uftt'ore^tio war by the South Carolina Railroad Company for the purpose, c of * new troak is order to avoid dangerous ourves, and upon which ( I of tho new traoin Tho construction of the Columbia and i Atj&fi projectMj would ooocpv tfee very ground porchoii-d 07 tho Sooth 'J " "Carolina Routdal Company for the purpose of straightening their track, would t reader that improvement impossible, and would interpose the truck of the Columbia ( mod Augusta r.oad between the South Carolina Railroad and the hills, which they had pure ha j ol for the ourpose of proeuring the supplies of earth necesssiry in the ? repairing of toe road. / 1 The application was resisted, and the legal right of the Columbia and Augusta ( Company to impropriate to its use lands purchased and rights of way granted o the Soutn Caroliili Railroad Company was denied. A formal return setting forth the t legal grounds upon which the application was resisted was hied before Judge Piatt ' The Court of Appeals had decided iu 1836, (Bloke's oaae, 9 Rich., 228,) that when- ;j over the right w condemn wae resisted, there must be a "preliminary trial and decision" of (he right, and the oounsel for the South Carolina Railroad Company ? endeavored to argue the question of right, and obtain from Judge Piatt a decision t upon it Tho Judge deeiinod to boar argument upon that question, and in his c opinion, mode December 4,1863, said: "I do not consider myself at liberty to enter- 1 tain and deeida upon any asserted rights or objections, except the simple one of hindrance." The cause was continued by his Honor until the 10th December, for the purpose of i takinz testa on v upon the fact of whether the Columbia and Auwusta, Railroad . would" bo a hdadranM, and ca the 17th December, Judge Piatt delivered his opinion and order, In tho original opinion, oopv of whieh was furnished to the counsel for the South Carolina Railroad Company, the claim of the Columbia and Augusta Railroad was regarded as reduced from fifty feet to ton feet, the opinion was made part of the order, and tha order issued to impanel the jury to assess compensation. Subsequently, and without notieo to the South Carolina Railroad Compony or its wounsei, ths opinion was altered, the words " tan feat" wore stricken out, and in lieu thereof was substituted " sufficient width of ground for the construction of their roadbed." The jury were drawn at midday of Deeember 81, at Edgefield C. H., and summoned to attend at timnitoriile on January 2. No nctloe was given to the officers of the South Carolina ?&-iroad Company or to the eounsel specially charged with'the cause?no iimo was allowed for tho summoning of witnesses?no testimony was takes?no estimate made of the special damage. The jury simply looked at the land and assessed compensation at *110. Bis Honor had said in his opinion that to take fifty feet " must work suoh hindrance as the law had forbidden." " The Legislature never intended to justify so extensive an encroachment." The jui7 oohdeianea sixty fbet for a space of three and three-quarter ! The compensation assessed was paid, and the Columbia and Augusta Company moved, before Judge Looter, to dissolve the Injunction. The oounsel for the South Carolina Railroad Company misted the motion on the ground that so far from " the right" having been "duly acquired," the right had not even'been disousscd; that Judge Piatt had refused to hear and decide it; that only the value of what was taken Lad been adjudged, not the right to take; that the right was distinctly put in issue, and that the South Carolina Railroad Company oould not be divested of its property and frasohisss, until the right of the Columbia and Augusta Company to tuce them had been adjudged. It was replied that Judge Piatt, in granting the order to Impanel the jury, had determined the question ; that his action was decisive and eould uot be overruled by another Circuit uudge sitting In judgment on a-separate branch of the case. These views apparently oommesUed themselves to Judge Boozer, for iu a formal order of a few lines no dissolved the injunction. The anomaly was thus presented of a corporation being deprived of its property -without the right to take uaving over been adjudged by any legal tribunal Before every tribunal in wMcb tho case had been heard, in every form in which the issue ooula he raised, the legal right had been presented and a decision of it earnestly is vain. Si Before Judge Piatt it was said, Judge Booser will decide it, and Judge Piatt ?> passed ths question by undeoided. When the cause came before Judge Boozer, it q * -was sail Judge Piatt Acts decided it, and Judge Boozer simply dissolved the injunoy 1 tlon without a word adjudicating tho right Behoving that the be nth Carolina Railroad Company could be deprived of its _ property only by the judgment of a Court determining the question of legal right, s\ the whole oaso was carried by motion for prohibition to the Supreme Court, in order I that .hat tribunal, specially empowered by tho constitution to exercise " a general \ supervisory control over all the Courts in the State," and whoso decisions would be / binding upon all subordinate Courts, might decide all the questions at issue between / ! the two companies, and determine by legal judgment the rights of eaoh. The views urged on behalf of the South Carolina Railroad Company will appear i | from the following arguments. Pending the legal proceedings an effort was made to terminate the litigation by L | referring all the questions 'at issue to the arbitration of a oommittee ooinposed of throe directors of each company. The correspondence upon the subject is appended ' ! to the arguir.au fa. JAMES CONNER, Solicitor South Carolina Railroad Company. m THE SUPREME COURT. the state ex relatione the south carolina railroad company, >. ' VS. the columbia and augusta r. r company. ( , SUGGESTION IN PROHIBITION. i ^ JaweS Conker and ,A. G. Magrath, for Relators, t Melton, Memninger and Carroll, for Respondents. Argument Cons^r, of Counsel for Belaiorb. it please the Ccurt: Before entering upon the argument i Jk thw case, let us first endeavor to ascertain clearly^ what are l^^tbe issues involved. . .is eomewhai singular that in a litigation so protracted, 1 /'T:-^KT 1 icl-ir.h ir> 'Lnni? fnimw tine Vi.n.n tuifnua crt mnn-rr tnihll. i r -1 M UAWfj AAA vV VWVU k'^AV * W W?/ AAAMUJ VAAVM * there should he nuy douoi or misapprehension as to the question to bo deci led by the Court Yet, there,Is probably no < i m. muse in winch the real question at issue has been so generally la, nisunderstood. It has been the misfortune of our clients, per- H japs, that they have not sought by popular arts to educate " i rnd influence public opinion, but haVo trusted too implicitly to "j he corrective powers of the law, and rested too securely in the jonviction that their rights wore to bo determined by judicial tli -ribunols, and not by that public opinion, before the bar of which ;hey have boen upon so many charges arraigned. th However willing on all proper occasions to defor to public se opinion, wo cannot consent that it should settle questions of v? egal right; those belong to the Courts, and we are here now to stand or fall by the law of the land. th It is alleged that we . are attempting to prevent the construe- th inn nf fv?liimhin. nnd Anonsta Railroad. and that our oppo- th rition springs entirely from tliis oanse. Wo have no such object cc We seek neither to destroy tho road, prevent its completion, If 3Or take from the company one single right of way or other th orivilege that belongs to them. Wo do not propose to inter- p( ere with any legitimate action of .their charter, but to simply at jay to them you must not and cannot,act in excess of the power or fou have derivod from tho Stato. pur effort is to restrain, T tnd keep tho Columbia and Augusta Railroad within the ro- cc x)gnizea limits of its chartered authorityj this and nothing A nore. ' ' 'pi In the discussion upon which we aro about to enter, I sliali tl ivoid, as much as possible, all dcbateablo points, and endeavor to tl 'est our case upon plain pi-inciples of law and upon facts that mnnot be called, in question. To narrow the subject down, tl therefore, I propose in the outset to declare what we concede. P We concede the right of the Columbia and Augusta Railroad m .0 build a lino from Columbia to Augusta, to build it via Gi-anteville, and to. connect Granitcvjlle and ,Ham burg; and there bi ve take our stand. Wo say that is tho utmost extont of the 31 ight which bv any declaration of a Court, or by any possible uj nference of law, has been or can be granted, 04>d boyond that tc wu cannot go. You may build your road from Graniteville to Ji Etamburg, but you cannot build it on our land. Avoid our one n< lundred feet right of way?that little strip of land guaranteed lo 0 us under our charter, and vested in us by the Legislature, n< md you may build when, where and how you please. But pi hey refUse to do even that, r< Here, may it please your Honors, I have conceded everything vhieh is decided by the case in 13th Eichardeon's Equity. In- ti leed, I have gone even beyond what can be legitimately referred le o as the decision in that case; because it is there left open to L loubt whether the oompany had a right to oonstruct the road m rom Graniteville to Hamburg, This disposes entirely of the plea m >f res adjudicata. It is utterly impossible that the question which a] ! now make oould have been decided in the cose before the tc 2ourt of Errors in 1807, or before' the Chancellor in May or ei 'une of the same yoar. The definite location of the route from tc 3-raniteville to Hamburg, as the Engineer states, was not made m intil June or July, 1868, while the decision of the Chanocllor on m he circuit was made in June, 1867, and the decision of the is )ourt of Errors in December following It was, therefore, n< >hysically impossible for the Court to decide upon the right to ei >uild on our land, because no human tribunal knew where the v< oad was to be definitely located, and because it was not located tc intil fully one year after the decision of the Court had been mnounced. pi Is there, then, anything unreasonable in the application we a noko, or in the opposition we set up? Is it not, on the con- d< rary, fair and proper for the South Carolina Railroad Company tl 0 concede to the Columbia and Augusta Railroad the full limit >f its chartered rights,* but, at the same time, declare they shall pi lot trespass upon us or exceed that which has been legally es jiven; and when they attempt to do so interpose for our pro- ri ection the law of tbo State, and submit the whole question to bo judgment of the legal tribunals of tbo oountry? >fYet, for di loing this, we have been in every form arraigned and do'nouueed or is setting up factious opposition to a public enterprise. ' pi Now, we contend that it was our right?more than that, it ca v&s our duty to bring these questions before the Courts, and fe >btain their judgment upon theii. TW*I)ireotors are trustees >f large and valuable public interests, and they would have VV >een reioreant to their duty had tiiey permitted the company toje deprived of its rights by anything less than the judgment of ui he Supreme Court of the State. "1 Let us asoertain what are the rights of the parties in this case. "1 Che South Carolina .Railroad Company is in possession of cer- A ain lands, and a right of way granted by the State, with certain B >o^ers and privileges which, together, constitute the property rc >f the corporation. This is secured to them in tho most express md exclusive terms. Tho first section of the charter of 1828 or jives them the-" exclusive right to make, keep up, and use these w ailroads." The ninth section gives them tne power "to purihase and have and hold any lands along which to run and an ocate the aforesaid road." of These were the privileges of the Canal and Railroad Company, or noorporated in 1827. Similar powers were subsequently be- or itowed on the Cincinnati, Louisville, und Charleston Railroad ev Jompany, by the Act of 1835. (See Sections 2, 37 aud 38.) sp ind these two roads wore mado one by the Act of 1843, under vc he title of the South Carolina Raih'oad Company, in which th vere merged all the rights, privileges and property belonging b] o either. That is not only tho import of tho Act of 1843, sh Dut in Blako's case, 9th Richardson L. R., 232, the Court pt ixpressly decided such to bo tho construction of the Btatute. th Judge Willard?But .subject to tho qualification, that the di jombined powers of the two roads are not extended over tho vhole line. Between Columbia and Charleston they have all gi he powers of one, and between Augusl a and Charleston all the jy rowers of the other road. That is all. Ti Mr. Conner?I submit, with great delfcronoe, that your Honor cc ti mistaken in the Oppenheim case, to which you allude. Tho >riginal line of the Canal and Railroad Company was from et Jharleston to Augusta; the original line of the Louisville, Cin? ar jinnati, and Charleston Railroaa was from Branohvilie to Colum- w fia?consequently, if your Honor is correot, the charter of the (a r,rmi<nyill? ?nr1 (Snninnnt.i ' PVirwrknnw wmil/t not onnlr? +/ ? nmr in and in the City of Charleston: Tho Court in that case, how- au r/er, deemed it Immaterial under which ciia#er tho South g< Carolina Railroad Company proceeded. 1 Had the point been determined, as your Honor supposes, it pi would have relieved our friends, on tho other side, of much cm- m jarrassment, because a largo portion of their argument, in the ot 3ourt of Errors, turned upon the question.- whether the united ui charter covered the whole road, or whetnor the first charter It ipplied only to the Hamburg line, and tho charter of 1835 to ef the Columbia line. Such a decision was sought, but I am not in iware that it has been rendered in any case. For my own so part, I entertain a strong conviction that the united charter ap- pi plies to every foot of the track. This, however, is a question in aside from the present issue. "We are now discussing the ex- l'u ilusive privileges attached to that portion of the rood ootween m Graniteville and Aiken, and to whioh certainly applies the Act ao of 1828. Now, as to the land and right of way which is sought to be H taken from us by tho.Colpmbia and Augusta Railroad-Company, i" we show a statutory title. The Aot of 1833, in the absence pf dc specific contract, vest3 in tho company a title to one hundred at feet on each side of t he -track. ri. I have already called, your Honors' attention to that clause ot which gives the South Carolina Railroad Company the right to si purchase land necessary for repairing, sustaining and keeping w ap their road; so that we have reached this point, that for .b? everything which the Columbia and Augusta Railroad Company seek to take from us, we have an absolute statutory title of or a conveyance in foe, obtained under the authority of the to charter. I desired to show in the dearest manner how, from wlom, and by what tenor the rights we claim were held; to >V I:/L. Aa ~I?:? x i xi I? A. mu QAuuBivu uuiuru oi me gram., anu mus my i-ne Ebtmdation of the argument I shall hereafter introduoe. It. is m inaecessary, however, lor your Honors to entertain any quos- th aon of title, beeauso tho. proceedings fVom beginning to end E idftit the title to be in us. When the opposite party claim to si jondemn the land, under tho very terms of tho Aot they file di iheir proceedings against tho owner. So that, not only by act cc jf law, but by the admission of the parties themselves, our title s indisputable. In fact their own title would be valueless, unless be die precedent title was in us. Now, we can only be divested of d( :hat title by a paramount title, and we ask by what right are sv& to be deprived of that which they concede to be legitimately t): >ur own ? tii It is scarcely necessary to cite authpnty, bat for a mom*nitI to jail your attention to the langnag^w hia Honor Judge Ward- tli * i_ ' \v, iii delivering the opinion of the Court in the case of Blako. osays: "If the mere assertion is to bo conclusive, then upon 3uch assertion the company might enter upon any lands that i hope of profitable speculation would induce it totako." If tne company'a assertioD of right should not be conclusive oi*o ranaiTDe some trial. . This whole case, may it please the Court, rests entirely upon at proposition, namely, that a party cannot, by the mere asi-tion,,or the manifestation of the disposition to take, divest a wtedyfeht Now,' a corporation has no powers save those given to it by 10 original charter, or by subsequent legislation. Whatever 10 Cdrnmbia and Aughsta Railroad Company claim from us, lerofore, it must be presumed, in a courthouse, they claim ao rdingto law. We call upon them to show their authority. ' the right exists in faot, they mu3t have the title. Let them ton produce the Act of Legislature which empowers that coriration to condemn and take our land. Clearly, the grant of ithority is not in the charter; nor is theproceedingbere based i their charter, but brought under a different Act altogether, here is pot onlv a concession in this fact, but wo havo further nclusiye proof that when thev mado application to Judge ldrichriit Edgefield, and asked for a condemnation of this roportyunder their charter, and he refused on tho ground that icy had not the rights they claimed, no appeal was taken to io Supreme Court. Judge Wiliard?If Judge Aldrich had the right to decide icy were'ftot authorized to take this laud, why bad not Judge latt a rig^ to decide to the contrary? The question in my iod is, 7*here isjurisdiction lodged? -ilr.'Conuei'?Y our Honor not only anticipates my argument r.s applFtt&t to a state of facts which I am not now discussing.' ? iAl- -1 .'-.i ! _ . _ _i?: .t.i il. - _ T . 1 < .j prcsons ocjeoi is xo buow xnax xnese paruw uavw uu uuv 3(let ti#*;r charter. Judge Aidrich to ruled. The application > Judge Aldrioh was under the charter. The application to idge PhapSros under the Act of 1863- Now, as 1 said before, 3 appeal taken from Judge Aldrioh's opinion. What folwea? Act No. 42 was passed, and under this they instituted 3W proceedings, abandoning all attempts to oondomu the roperty, gnder their charter. On this basis the pondiDg issue >sts. fwk-' Let us ei&niine their present claim. It is alleged that under ic statut<kpf 1868, No. 42, thev can condemn the rights, privigea and franchises, exclusively vested in us by Act's of the egislatorraiad appropriate them to their own use. It is not erely thetoucstion of condemning and dedicating to a public ic that wflpi is private property, but it is a condemnation and opropriatipn to their own use of that which is already dedicated ? public m. In other words, the Legislature has taken prop ty dedicAd to public use, in the hands of A, and dedicated it the samftpublic use in the hands of B. It is an exercise of a ucli hlgHK i>cwer than when under the law of eminent doain pritp# property is condemned to public use. This point elaborated- -vnth great care and pressed with great earne^tjsa. in A-we which settled the right of a State, by virtue of niiiout domain, to oondemn the franchise of a corporation and jst it?notfcin another corporation, but In the public- I refer /? rr ^9K ?aa twt . /?? r-\ i t\ r_ i o xiowaro, p. oa?, vv esi .tuver image vs. viz. Judge Wilkrd?My mind is, perhaps, slow in grasping your :op>osition. Do I understand your argument lo oe that where corporation seeks to condemn property under the eminent >main, ami endeavors to acquire that which is not vested by 10 charter, the proper remedy is by prohibition ? Mr. Conner?Not altogether. Your Honor's suggestion apies to the appropriateness of the remedy. What-' I desire to itablish first, is the rights of the party; and secondly, if those ghts have'been violated, to discover the proper remec'y. The proppsjtion I am now urging is tnat there is a great ffaronce Dfetwecn condemning private property to public use, authoriaipg a corporation to condemn private property to a lblic u^e, and appropriating to B that which is already dediitcd to public n 5e in the hands of A j or, in other words, trensrring th j rights of one to the hands of another. This qii'ertwn received careftil attention in the case of the 'est Bivv'/jByidgo vs. Dir ; 6 Howard, 538. JaetiecvMcXean, " t-iuUfihe.Stais say cake this bridge, it may transfer it to other individuals under the same or a different charter. This the State oannot do. It would bo in effect taking the property from A to convey it to B,w nd to the same effect is the decision of Chief Justice Shaw in oston Water Power Company vs. Boston and Worcester -Bailad Company, 1 American Railway Cases, p. 325. The authorities, therefore, Are to the point that it is an extrar dinary exercise of the power of eminent domain to take that bich is already appropriated to a public use. It is unnecessary, howevor, in the line of argument I am purging, to make any question as to the righfot a State, by virtue 'the power of eminent domain, to appropriate the property of le corporation for the boneflt of another. We take our stand i lower ground. Conoeding, for the sake of the argument, ren the right on the part or the State to take that which, by i ecitti grant, is tne property 01 one person or .eorpomuou uuu sst it in some other person or corporation, our position is that 16 State, in the present instance, has not done so ; that t no clear express manifestation of her sovereign will, has o given to the Colombia and Augusta Railroad Cominy the right to say to the South Carolina Railroad Company at' -which was vested .^in you by prior legislation is now vested, and all former grants are repealed. It must be evident to your Honors that whoa a power so eat is claimed by a corporation, the delegation of that power t the State ouzht not to rest on inference or implioation. he parties must lay their hand upon the line and ohuptar which infers the authority. Has that been done thus far ? Previous to the passage of the Act of 1868, the charter of 'ery corporation provided the mode and means by which lauds id the right of way were to be coudemned. Put each charter as a law for itself and.contained its own conditions and regutions; the consequence, therefore, was in many instances an consistency. The object of the Act of 1868 wus evidently to ibstitute for all these conflicting provisions a uniform and meral rule of practice which should obtain throughout the ate, and be applicable to all of its corporations. The very oamble indicates its purpose, namely: "An Act to declare the anncr by wiucii Uio lunus or the right oi way uvor inu^unus ' persons or corporations may be taken for the construction id uses of railways and other works of internal improvement." is unnecessary to cite authorities to show your iiouora the feet of a preumble upon the body of an Act in case of doubtful terpretation, and here is plainly sot forth tbo single object ught to be accomplisbetL Tbe Aot itself simply regulutes the 'actioe in carrying out this intent; and there rs not a section it which contains a grant to any corporation past, present or ture. It is only when we come to the eighth section that tho ain object is for a moment abandoned, and a new element ught to be incorporated. It is here alone that tbe argument of tbe other side can rest. ' they cannot show a clear right to divest us of our property rd vost it in themselves by virtue of this section, they cannot ) so at all, and tho last vestige of legal authority will bo swept vay. Now, what is the language usod ? M Tnat no lauds or ght of way which have herutoloro, or may hereafter be proired for the construction or use of any highway, shall bo oouderbd exempt from liability to condemnation, but the right oi ay over said land, and aoross or along such right of way, may ) condemned for the construction of any other highway." That is the sum and substance of the Aot. No lauds of right ' way shall be "exempt from liability," but the same "may be ndannid." Practically it is nothing bat the affirmation of a merai legal principle. But when and how does it apply? ri it.. In nnV\!tu? oliall rpitra t/Y fltltT Ylft1-f.li.lt I At IJUU UiC WUU A3 IUO Ul WitVA ; DUlUi T W ?rw mpany that right, subject to such limitations, as in her judgent, may be necessary to protect other corporations, up to ie date of*the Act of 1868, I apprehend that the Court of rrors of this State would have held that rights granted axciuirely and in express terms to any corporation, could not be vosted by any tribunal without impairing tbe obligation of tho mtract. ,f ^ The Act of 1868 declares that these rights of way Bhall not ) "exempt" from condemnation; that they "may be conjmnecL" These parties, however, seem to think that tbe mere assertion iat rights of way shall not be exempt from condemnation, unties tnem to the most extraordinary privileges, and they have rtured the language into a grant of power which permits tern to divest oar,tights and vest them in themselves. They atlom.pt to make otit that which, keeping strictly within the 1 established rules of construction is utterly beyoiid the limits of human ingenuity. Why, may it please your Honors, there is something monstrous in tho proposition that a more general denial is to be construed into a general grant of power in the largest and most comprehensive sense. That the State, who is the guardian of tho public weal, who has, under sole ma sanctions and guarantees,- vested certain rights, is on a mere affirmation that these rights shall not bo exempt from condemnation, to pass into the hands of a- single corporation or individual that which is already inherent in another. No tribunal has set in Judgment and declared thpt tho .necessity exists, but in tho j>Laoo of this it is insisted that there sball bo substituted the individual judgment of a corporation*, moved by self-interest, and.. looking solely to self-aggrandizement. I repeat, Is not auch a proposition monstrous? Yot jour Honors have to establish that proposition before the rights of tbe9Q defendants to take our property can bo maintained. If tbeir view be correct, there is no check, no requirement*, no limltadon to bo observed. It is not provided that even the necessity should bo established; and yet,' according to the doctrine laid down in Blake's case, the necessity must b*proved. In the injunction oiwo before another branch of this tribunal, one of your Honors held "that persona and corporations authorized to put in cxeroiso the extraordinary powers of tho eminent domain, should enter upon tho lands of others, either with their consent or under , the sanction of a judicial act determining the rightful character and proper limitations of such authority. If the proposition of tho other aide be true, neither o? these aro necessary. Blake's ease and your Honors' opinion are swept away, aod the .pariayaeqttireg; the right simply by paying the Value. iN'ow, may it plcacc the 'Court, can it bo miuntalnedUtbat, under this section of the Act of 18U8, tho charter of the Columbia and Augusta llailroad Company, which merely prospribea tho terminus a quo, and terminus (uL quemx contains authority to divest the vostcd rights of another at the mere will of tbo corporation; that a corporation chartered from here to another point can dcfloct from its course, ior the purposo of infringing upvu uuw jj^iii,.-s v/i uiudisj uiiu cuai> ?uuu il duvjxs cx> ujiiuw prialo, the only question will be the quantum of crtniponsauon f Yet that actually and noces9?rily follows, from the ooustruction of the eighth section, urged by these defendants. More than that, so for as mv observation of charters has extended, and I havo consulted many on this point, in nearly every one. there are ^prescribed limitations upon the taking oI lands, especially along high ways. The very charier of theCoium bia and Augusta iiaitfoad Company provides that said company sball not obstruct the public road without constructing anothea* equally good. Provisions of a similar character are in thq charter of every corporation with which I am acquainted* No such limitations or checks, however, are contained in the Aot of 1808, which is the. eolo fountain of authority tor our opponents, and they accordingly ask us to suppose that the State has em bodied the idea in "every charter, that each corporation?the interested party?may itself iudge where it .will run it?; line, and from whom it will take wliat it needs; that the rights of ail aro ignored and the bene tit of the corporation alone considered. We contend that no such construction can be logHlmate*y*pbieedupoa that section eight; that such power does not exist in tbo Act,aud cannot be deduced from its language. , But we go a step further. There is nothing more clear than that grants to a corporation aro to be construed strictly) that wherever it.is a question of doubt, strict construction is against the corporation, and liberal construction in favor of thp public. In a leading case in this country, argued with great ability* and tho decision of which has boen received with great respect, I refer to tho Pennsylvania Railroad Company vs. Canal Ceromis-. sioners, 21 Penu., 22, the Chief Justice said: " When a State meaus to clothe a corporate body wttlt a portion of her sovereignly, and to disarm herself to that extent of the power.that belongs to her, it is so easy to say so, that we will never believe it to bo meant when it is not said. In the construction.of a charter, to bo in d.oubt is to bo resolved, and every resolution, wKtfrh nnrinm frnm donbt. is luroinat the COrworatkir. Xf the 3^ useihin^A. would bo increased by externling privileges, let .the Legislature see to it; but remember that * uothing but plain English words will do it" Just there, may it please yourJLLonors, we^take our styand. We say that when this oompaoy. claims so high and sovereign Sower as to take lands vested iu us, they must show that eleeation of authority iu clear and unambiguous language. It must not be left, to doubt, because where doubt exists tho power does not. _ mjjj In the Binghampton Bridge case, p. 76, 3d Wallace," the opinion declares that "in grants by the publio nothing passes "by iinplicaUon.'' "if tho charter is silent about a power it " 'iocs not exist/' , There is hi this Act of 1863 no grant of power, no limits marked, no plain express terms; nothing but negative words r * saying that property shall not be exempt and may be condemned. The lair and reasonable interpretation is that the time and manner in which it is to be-conuomned Is reserved to the Slate to be incorporated in such coses as may hereafter arise. If this were hot so, tho Act would operate by implication as a repeal of every charier heretofore granted, and a divestiture *u~ uui'iy oetnhHdh/wl mwlev those charters. And VI tut CAlOViUj^ VOWMVWK ? . - -? T tho law is dear that such repeal by implicatiou cannot obflta. There is a very full and precise statement of the law and the authorities upoo this point in Dwaris on Statutes, p. 533, and I need do no more than simply rcl'er to il, in the easy of Rutherford vs. the Greene JLieirs, (2 Whoaton, 203,) the Ghiei Justify soys; " Whatever the legiolativo power may be, its acts ought never to be so construed as to. subvert the rights oi property, "unless m in ten tiou ;>o to do shall be expressed in such terms "as " to admit of no doubt and to show a dear dodg'u to u effect the object. o general terms intended lor property to which they may bo fairly applicable, and uot par" ticuiarly .applied by the Legislature, no siieut implied jind 'J constructive ropeuis ought over to bo so understood as to divest " a vested right.. And in hoston unci Lowell Railroad Company us. Salem and Lowcil Railroad Company, 2 Gray, i, Shaw, C. J., saysi ** W* " cannot perceivo " " any aot of tine government appropriating - ifny of the rights, franchises or privileges of tno piaintid " under the right of eminent domain. Too characteristics of "such an appropriation aro wcii known and understood. It "must appear that the government.intend to exorcise this high " sovoreign right Oy clour and express terms or by necessary 'implication, leaving no doubt or uncertainty respecting eucu " intent. " Xhero was an elaborate oxamiaation by the Chief Justice of tho powers of a Legislature and the rights of a corporation, and bis decision was, not thai the Legislature could not grant* bat that it had not grunted; and it coulu only be by dear oppressions, of the legislative intent thui the power churned could b? considered us grunted to, and rightfully exercised by, the corpo- ' ration. . The same Judge, In the case of the Boston Water Power Company vs. Booiou and Worcester 1 tail road Corporation, 23 Pickering, i>6 0, (American Bail way cases, after discussing the right oi' tho Legislature, under the emineu^ domain, oom? to the question whether the Legisluturo have granted certainpo\W. "It is, therefore," he says, "a question bearing upon 'the presumed intent of the Legislature. It may be horiy " argued that although tin.ro is no iimitaiion oi the power of the " corporation in terms, still, ix* the Legislature had already ap" propiiated a portion of tho land lying between the Unnini to " another important public use, and especially if the oonstroou tion contended for would wholly, or in a groat degree, defeat ' *' ' fkftf " such other important public use, is not to uu pt COUU19U yuan " the Legislature*meant thus to extend the power, and 90 a "limitation might be cngruftod by necessary and, reasonable " impiicatiou upon tho generality of tho Aot. * */**' "Supposing both to exist, both cannot stand togQU/^ind 000^# 8| " must supersede the other. And this shall not hfc /resumed " to bo the intent of the Legislature, unless it ap?e/a by ex"press words or neoessary implication. In this lUjpect also " this ease differs Irorn the case in (dill and Johnson. 1 "There the canal'and the railroad must necessarily occupy "tho same identical line, each for a public use; both could not " stand together; and, therefore, it was uocided that a franei iso "already granted should not be considered as superseded 1 id " token away by a subsequent legislative act, granting po\> .-r " in general tenns. " 80, if a power were given In terms to lay out a turnpike oj Ik JNu ' u?liHHfl