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"railroad botween termini definitely expressed, such ge
"power ought not to be so construed as to take an arsenal,
"6tate-house or land, already appropriated to a highly
" portant public use, which would be defeated by suoh cons
?? tion. It would be a question of l?gislative intent ; at
" could not be presumed that-the Legislature intended thal
. M power conferred by them should have buch an effeot,- url?
* were unequivocally expressed. "
Judge Willard-What do you hold to be the rule whe
charter is granted in general terms to construct a road beti
two termini, and there is no definition of location made? j
could the Court determine the propriety of the location ?
Mr. Conner-It is difficult to answer the general questio
that way. The first answer would naturally be the shoi
line ; but here questions arise with reference to d^viat
which would necessarily result from obstructions, as for inst;
Judge Willard-But on what foundation would you rest
Mr. Conner-On a wise application by the Court of
measure of rights, "Sic utere tito ut alienum nonlodas."
question of location is one of detail, not dependant on pri
pie, but on circumstances.
Judge Willard-Does it not depend on a reasonable necess
Take for instance the case of the crossing of these two r(
at Columbia. That was allowed not because it was an abso
but a reasonable necessity.
Mr. Conner-I will take up that argument now, for it s
me as well as any other time. I contend that we have sh<
there is no right of way by grant; that whatever power
Columbia and Augusta Railroad Company possess is exprei
in their charter.
Judge Willard-I apprehend that it will hardly be questioi
that independently of the grant of tho charter, the eighth
tion confers any right whatever. So that after all, your wi
oase is narrowed down to this point : Had you pre-existen
the Act of 1868, a right to this location ? If so, had the
lumbia and Augusta Kaiiroad Company not a right to soe
under the authority of the Act of 1868, and by thc means tl
named? And if there was a legal exception to grantiug
franchise, and that had been cleared away by tho eighth i
tion, can they not go on with the construction ? As in the c
fr of the crossing at Columbia, while there was no absolute ri,
cttTiierred by the charter; the Court recognized a questioi
right dependant upon the necessities of the case.
Mr. Conner-We eoncede the right to build the road un
the charter, but that charter gives no right to take our land
the property of any corporation. That is cloar, and the c
trary is not claimed by the opposite side. But they do ass
that the power to divest our rights is derived from the Act
1868. This, therefore, is the issue: Have the Legislature gi\
that power, not have they the right to give it ? We corie?
that; but.have they done so? If it exists, it must be declai
in express terms,-and there is an end to the question.
Xuage Willard-It may be assumed that there is a choice
location ; and, by simply changing the location, you take 1
case entirely out of the eighth section ; so that after all, t
right of the Columbia and Augusta Railroad Company, une
the charter, to seek a suitable route somewhere, lies at t
bottom of this case.
.Mr: Conner1-The right to exreise their chartered power,
fulfil the objects of their creation, we concede ; but when th
seek to destroy previously existing rights, they must she
either that the Legislature has expressly authorized them
do so, or that it was absolutely necessary. Tho Act contai
no suoh authorization. They must, therefore, prove the neci
sity ; prove that they must either condemn this property vest
in the South Carolina Railroad Company, or be precluded frc
carrying out the objects for which they were chartered. It
just there that we have been anxious to make our fight. T
very point suggested by your Honor, is thc issue we have o
deavored to make throughout the controversy, because it is ;
issue of fact-an issue to be determined by a survoy. The
doctrine of necessity is that unless they can go over our oi
hundred feet, or, in other words, appropriate it to their ovi
use, their enterprise will fail. Now, we are all of us moi
or less familiar with that country. We know that there is i
mountain range, no swamp, no obstacle different from th?
which every railroad ia compelled to surmount in thc course i
its construction, and if it be alleged that to throw this eorpor;
tion fifty*teet out of the present iine is to prevent the comp!
tion of the enterprise, let the question go where it can bo dete
mined, not by what they say, or we say, but by skilful engineer
who are not identified with either company. But they hav
never affirmed that this was a right by necessity. They hav
never declared that to throw them off one hundred feet is to ba
their undertaking. Their complaint has been simply that i
would cost more money. Of course it would. It would be ecori
omy for them to condemn our roadbed and use our rails.
Judge Willard-When this case was before me on the motioi
for an injonction, many of these questions were considered, an<
it. seemed to me that a bill in equity would reach the point o
the difficulty. The thought then occurred to me, suppose i
should become necessary to apply some'reasonable rule ii
determining the question of location and I should arrive at th
conclusion that the Columbia and Augusta Railroad Company
had departed from a natural and convenient route, attracted bj
facilities existing at a certain point, as for instance a depoA o
other local advantages, created by another road, what would h
the proper action for a Court of Equity to take? My conclu
sion was that that view could be covered by a decree in equity
and it now strikes me it would ntill be the proper remedy.
Mr. Conner-That comes up hereafter in the discussion as t(
the appropriateness of the remedy. Tint, the point which yon:
Honor regards as so very essential, has never been tried, ant
unless we carry the prohibition here, it never can be tried
That is the very object of these proceedings. What is ai:
appeal worth? There are only eight miles to be comploted
An agreement has been made that equity cases shall not bc
tried until June. Do we know that this case will be tried then ?
There may be various pleas to be heard, and issues to be
decided, before the merits of the main question are reached.
Admitting that it is reached at that June .term, will not the
case be carried to the December term of the Supreme Court?
What, then ? The road will be built ; and there never has been
in the history of judicature an instance of a Court rendering a
decision Which would divest property of the immense value it
had under such circumstances acquired. Your Honors would
come to the conclusion, the enterprise being completed, that to
repair the evil would work an evil of greater magnitude than
originally existed. The question would be decided outsido of
law tribunals, and Courts would shrink from any judgment that
might involve so much of retrogression.
Judge Willard-Why could we not as well grant an injunction
then as now?
* Mr.' Conner-Because, may it please your Honor, puro abstract
right is very rarely administered.
Judge Willard-But we must assume that the events of thc
next-Time months will not prevent this Court from rendering a
Mr. Conner--It is much easier, however, to prevent an evil
than to repair one after it has been committed. Will you tear
up a road for a dozen miles on a question of abstract right ?
The principle may be correct, but will yon enforce it at such
expense? May it please the Court, it ?9 impossible for the
human mind to shut out considerations of this character.
Should you refuse to render a decision in accordance with what
we believe to be justice, you would wrong us ; if, on the contrary,
your decision should be in our favor, you would ruin tho other
side. Is it not wisdom, therefore, to decide the caso at the
earliest practicable moment? Then each party will enjoy the
rights belonging to them, and rest content that they have been
fixed and determined by a tribunal from which there is no
So far from being censurable, we consider that we aro in the
discharge of a high duty, when we bring this Issue before the
Court in such a shape as calls for all the facts, and requires the
most rigid investigation. We say, if we have rights, give them
to us. If we have no rights, so declare, and close the contro?
versy. All we want is a decision according to law. Yet, as I
said before, unless through the present proceeding we can
bring that question promptly before tho Court, which your
Honor says is so essential, it never will be heard. The right by
necessity does not exist, and it is only by proving that necessity,
that the Columbia and Augusta Railroad Company can estab?
lish their claim. They have not done so. and absence of the
proof is equal to the admission that there is no. right.
Thus far I have combatted the argument of the otherside.
Now, what is our position ? Certain powers were granted to
these two companies; first tonne then to the other. No where
is there to be found tho repeal of a prior grant. What is the fair
interpretation? Why that these two roads should each operate
within the sphere of its chartered limits, the two charters co- J
existing and working harmoniously with each other. There is
no necessity for interf?rence. The Legislaimo .lid not in
that thc power of one. should interfere with tho privilege
tho other, and hence its silence upon that point in rafe A
1868. The rights ^ranted wero;:*bubj^ct.:.to rights previo
existing, which had been clea rh' denned and wero in tho sta
book, and the General Assembly supposed! he two mags wc
in harmony with each other, fulfil th o objects ot- theil' cr?ai
Take the very case to which your Honor has referred. W
tho Court of Errors uecided that the Columbia and Aug
Railroad Company could cross tho Ivaolr of the Soul h Oatsc
Railroad, near Columbia, it was emphatically a right of wa}
necessity. They wove compelled to pa?R1 over tho track of ei
thc G-roenvillo and Columbia or S ?ufch Carolina Railroad.
the very terms of the charter. The termini wore fixed, and t
could not come in or go out without crossing One or the ol
of the roads named. It was absolutely a right of way
necessity. Yet; what did the Court of Errors acolare ? T
decided that the right was to be exercised in subordination
the rights of tho elder grant.
Judge Willard-That was said in reference to the joint i
of tho roads.
Mr. Conner-That is all we say here, except that the;'T
applies to our lands.
But I have gone a little more iuto this argument than I
tended, and turn now to another branch of the question. W
we ask of this tribunal is, that we shall not be despoiled of
property without an adjudication of the right. We do not ?
your Honors to judge thc right, but to soe that tho righi
Take a rapid glance at the papers and histor}'' of tho liti
tion. The first paper was a petition; to that wo filed a retu
in which wo raised questions of law and right, and asked t
they should bc adjudged before tho 'property should be" tal
from us. The gravamen of our complaint is, that we stand bef
this Court despoiled of our property, without any adjudicati?r
our rights. We argued the question bofore Judge Platt, s
that his Honor was of a similar opinion, we thought iiii'erri
from these words of the order: ,;Thc"petitioners aro entit
"to the order prayed for, unless good and'sufficient ground
"shown why the prayer of tho petition should not he graute
Subsequently, on the 12th'of ''December, we pressed/with
much earnestness as was consistent with respect, that thc
words brought up the whole question of legal right, but ?
were not so fortunato as to be able to carry his Honor with
in that view of the case. To uso his own language, "regardi
myself as the only constituted judicial agent of the Sta
under the Act No. 42, I do not deem myself at liberty to ent
tain and decide upon any asserted rights or objections, exec
the simple one of 'hindrance.'" We pressed upon Judge Ph
one of two things-either to decido tho question ol' right hi
self or to allow that question to be decided before the order 1
the jury was made ; and had his Honor said, in so many won
I leave the question of right to bc determined by tho jud
bofore whom the equity causo is tried, wo would not have be
here on this prohibition. ' It was urged that Judge Platt lu
nothing to do with the question, but to act ministerial!
that, however, was overruled. It was then urged that iL cou
be properly left to the decision of tho" Court of Equity; b
when the case came before the Court of Equity, it was pressi
upon Judge Boozer with great energy that Judge Platt hi
ruled this point, and that he had no right to consider it. Hi
Judge Platt left tin's question to Judge Boozer, thc counsel./
the other side never could have made the argument which trit
did, that it was not what Judge Platt Mid, but what he dui th,
was binding on Judge Boozer.
Tho Chief Justice-But as I understood the order of Judi
Willard, granting tho injunction, it only gave liberty to tl
defendants to move for a dissolution of the injunction, c
proof that they have duly acquired the right to enter for tl
purpose of construction, upon tho premises claimed by toe con
Mr. Conner-That was the gist of our argument We coi
tended that "duly acquired" meant legally acquired, and thi
where the right was denied, it could not be legally acquire
without a judgment determining the right. It was our anxiot
desire that between thc two tribunals the question of rigl
should not bc allowed to fall to thc ground.
Judge Willard-Judge Platt states in his decision, p. 12, "the
after petitioners shall have ascertained t he quantum of compel
sation, and have paid or tendered it, they must necessarily g
back to the Court of Equity, in order to get the injunctio
removed; and before they can ask its removal, they mustshm
not only that they have tendered the compensation, hut tba
they have 'acquired the right,'(as provided in Judge Winard'
injunction order.) Their suit in equity, now pending on th
equity side of the Court of Common Pleas of Richland County
embraces the whole issue as to 'right,'and every point mus
necessarily be adjudicated upon, when they apply for leave l<
proceed with their road."
Mr. Connor-Exactly. When we were before Judge Platt
it was said Judge Boozer will decide the right, in the cqnitj
cause; but when wo got to the equity cause, it was said t<
Judge Boozer, you cannot go behind the order for compensatio!
granted by Judge Platt. Here is the certificate that the com
pensation has been paid, and by the payment the right is ac
Tho Chief Justice-Do I understand you to say that thi
argument was pressed that the opinion of Judge " Platt hat
decided the question of right?
Mr. Memminger-That was ono of che propositions, but thc
counsel will bn fair enough to say that there were many othoi
Mr. Conner-Yes, but that was the stress of t he whole ease
and there is where the cause eluded judicial decision. The curse
of Tantalus was on us. We had the law all around us, but could
not bring a principle to bear. Before Judge Platt it was said
Judge Boozer will decide; before Judge Boozer it was said
Juc^e Platt had already decided, ami between tho two stools
tho right went down. May it please tho Court, it was remarka?
bly well done.
I roiterate that the question ol' tight nuver has been decided.
Anxious as wo havo been to test the question on its merits, not
yet have we had a fair hearing of the cause. Before ono tri?
bunal a certain part of the issue has been presented; beforo
another tribunal certain other issues have been urged, but there
has nevor yet heen a tribunal beforo which all the issues could
roeeivo a just hearing, until wo reached this Court.
Tho Chief Justice-If Judge Boozer took thc view that thc
right had been established, it strikes me that it was of a final
character, and you could have appealed.
Mr. Conner-How could we? ile simply dissolved the in?
junction without comment. There was nu opinion given, and
all we know was that his Honor had filed an order to that
Now all the proceedings in the case have hoon printed, and
are before this Court, except that order of Judge Boozer, which
is in manuscript, and where can you la}' your Huger upon a line
in which this question of right has been adjudged ?
Are wo not entitled to that? We ask no more. "Duty ac?
quired,"was the"point upon which we laid all the stress possi?
ble; but whore is the judgment declaring that such right has
been duly and legally acquired ? May it please your Honors,
it does not exist. Tho whole question of right has been ig,
norcd and left unadjudged.
But there tiro facts running with this part passti, which show
that the right was never duly acquired. Not only has there
been no adjudication of this matter, but every detail of pro.
eeeding from the time that order left the office of Judge Platt
was utterly illegal and void ; and illegality will sot aside any
judgment in the world. '
Were the jury rightly summoned ? Who summoned them?
The Chief Engineer of the Columbia and Augusta Kailroad Com?
pany, Mr. James 0. Moore, acting as the Deputy Sheriff, sum?
moned a part of them. The jury was drawn on the' 31st of
December, lo meet at Granitevilie on the 2d of January.
No notice was given, and no letter written five minutes
after the organization of the jury could have reached counsel
in Charleston in time for them to attend. We asked for a
delay from Saturday until Monday, in order to produce
witnesses. Time was refused. Agaio, the jury did not con?
sist of freeholders as the law requires. We allege that four
of t! -ra, at least, were liable to this objection, and produce the
affidavit of one that ho was not a freeholder. The incompe?
tency of a jury to assess damages renders the verdict null. Not
a witness was sworn, and not a particle of testimony taken in
the cause. And yet the language of the Act. is explicit: " The
"jury so impanelled, after being first sworn faithfully and im?
partially to determine the question of compensation submitted
"to them, shall proceed to inspect thc premise*, and to take
"testimony in reference to the construction of tho proposed ?
" highway, and the quantity of land which shall be required 1
"therefor; and irrespective of any benefit which the owner may.
"derive from the proposed highway, and with respect alone to I
" thc quantity and the value of the landswhich may oe required." I
Did tlie-y do this ? Your Honors have, before you an exempi
cation of llioir proceedings. Why, they-,.wera sworn, wi tb
?grand jury oath, and then absolutely refused ft) hear tes timor
Judge Willard-Were these'-facts brought to the attention
Judgo Boozer on the motion to dissolve? - ' ? ?
p Mr. Colmer-Yes, sir; and we wore answered that'the}-* wc
Tacts with which he hud nothing to dor He was slmpiyHeYTl
solve the injunction, and leave all other questions to be det<
rained by the Court at Edgefie?d. The case was like a will?
the-wisp ; wo never could get it in* that shape in which tl
question of right would be entertained.
J. need not say that at Aiken we argued- the question with
good deal of feeling, which MB Honor Judge Platt understo?
and appreciated when he said he realized for the first time tl
motive of that earnestness. To use his own language, and tb
the Court will hear in mind was on the second hearing: "Phi
"not brought my own mind to the conviction of tho possibilii
"of their losing fifty feet of their right of way, and especial
"'through their depot lot at Granitevilie, without being necees
" rily hindered in their usc and enjoyment, as provided;against
" section eight ; I, therefore, felt it my duty to interrupt the di
" cussion by declaring to petitioners the determination-my mir
"had como to, not to'grant th? order prayeAd for, so long as the
"ihsisted on fifty feet for their roadbed." His Honor wi
shocked at the injustice proposed, and hence he promptly ai
flounced, on the threshold of tho discussion, that unless thi
gjaim were abandoned, he would refuse the?rderprayed for. '.
$ras such a hindrance as the law had forbiddon. Tho Act of tl
^legislature never intended to grant such ? right of way, br t
"justify such an extensivo encroachment on the vested rights <
another company as that claimed and prayed for in .this petition
Upon that point there was clearly an expression of opinioi
"Soon thereafter," continues bis Honor, '-they (the Columbi
and Augusta Railroad Company) presented"their"amended p<
tition as it uow appears, reducing theil' claim from fifty feet t
ten feet, not only at Granitevilie, but through the entire rpjitc.
Had the attempt been made under that order and opini?n t
take more than ten feet, the jury would have been so clear!
in excess of the power delegated to them, that their judgmen
must necessarily have fallen, because the excess could hav
been determined by a foot rule; and-had Judge Platt's orde
been alf?wcd to stand in the shape in which it was, there woul
have been no difficulty about it, because it would have been to
plain for doubt. There would have been no room for construe
tion. But when ten feet was stricken out, and there was sut
r::ituted " a sufficient width of ground for the construction of ;
roadbed," the change was a material one, and our rights wer
materially affected, although it, doubtless, appeared to th
Judge that it was "a distinction without a difference." H
could not bc supposed to bc so sensitively acute on the.subjec
as those, upon whom thc change was to operate.
Jndge Willnrd-$f Judgo Platt .had retained "ten feet" ii
Iiis order, would not that order have been nugatory? Wo'uh
it trot haye been a judicial blunder which ho had a right t<
eliminate previous .to the finding of a decree,? I have alway
exorcised my right ito elim?nalo rather than render a futile au<
nugatory judgment, which would couvert a legal proceeding
into a farce. I think that point is scarcely worth discussion.
Mr. Conner-Your Honor will soe the object of my refbrenci
to this matter directly. Judge Platt says, in his order :. "First
"T had become convinced "that at some points it (the clain
" for fifty feet) must work such hindrance as the law had for
" bidden ; and socondly, that according to my consideration o
"the Act, although it would tolerate and permit the usual.widtl
" for their right of way over lands generally, through whicl
" they required to pass, tho General Assembly never intendee
"to give them such right of way when they begged the privi
"lego of laying their roadbed along and over the regular ant
"usual right of way of another company, and that too foi
In other words, ten feet was the precise limit fixed hythe order
arid if it was intended to abandon that, we claim that other por
tions of the order should have been stricken out. It being ver}
clear that fifty feet could not be taken, the question would arise
how much cnn be taken ? And we should have pressed his Hourn
to make the order in such terms as would indicate to the jul*}
what testimony was to be taken, and how to detcrmiuo tht
precise amount of land IO be condemned.
Judge Willard-To my mind the order is perfectly intelligible
os being on a ton foot basis. Itf simply meant to extend thc
work from ten feet to a basis sufficient for a roadbed.
Mr. Conner-That would substitute an indefinite for a defi?
nite limit. Your Honor will concede that the higher the
embankment, t he wider must be the base. There would then
be a shifting line, according as tho grade was higher or lower,
and neither party could know exactly where tho line which
divided them ran, but tho right in law must bo so precisely
adjudged that you can measure it with a foot rule, and say
there terminates your lino; but to determine the question by tho
term "sufficient for a roadbed," would give you a shifting baso,
with shifting rights, and no fixed limit of line at all.
Judge Willard-The jury are supposed to have had the nec?
Mr. Conner-They did not have a thing.
Judge Willard-At any rate thc questionnas pu rel}* one in
Mr. Conner-Of course, but it was necessary for the jury to
determine by actual feet. It has occurred at that very place
that thc track has been changed threo or four times, and in
one instance moved half a mile. Unless the limit bc deter?
mined, therefore, in accordance with this doctrine, there may
be a shifting lino all thc time.
But here comes up the direct question. If tboro is anything
clear, plain and emphatic it is thc opinion of Judgo Platt
that the Legislature never intonded to give the Columbia and
Augusta Railroad Company a right of way of fifty feot over
tho land of another eompany. for it would work such a hin?
drance as tho law had forbiddon. Yoi, the jury under the
license granted to them, pr which they dorived by tho alteration
of the order from " teu foot" to " a sufficient width for thc
construction of the roadbed," have condemned sixty feet along
three and t hree-fourths of a mile of thc road. Even then whon
limiting thom to ten feet, his Honor doubted whether the lim?
ited baso ho allowed them would not operate as a hindrance.
He says, in his order: "Still I had a lingering doubt in regard
"to tho hindrance question at two points; tho one at 'Dead
11 Fall,' and thc other at Granitevilie depot lot. * * * *
"Inconvenience will be occasioned, some injuries done, and
" some money expenditures for tho repairs of such injuries, but
' all these will bo made good to thom by tho compensation ver
.dict of thc jury as roquired, and ordored in and by.the Act."
The Chief Justice-I see that Judge Platt, iu his opinion, says
that before the injunction can bo removed, "they must show not
only that they have tendered the compensation, but that they
have acquired tho right."
Mr. Conner-That is just the point we make. When the
ither side went before Judge Boozer, they claimed that tho right
had been acquired by the payment uf the compensation. That
was tho great argument. But as I have heretofore stated, there
ia not a single paper on whioh you can lay your finger in which
there is a decision of this question of right. Judgo Platt says
that Judge Boozer may determine it, and Judge Boozer says
that Judgo Platt has determined it. I act upon it as determined,
xud accordingly dissolve the injunction. We infer, however,
lhat Judge Platt did not altogether leave the question to the
Court of Equity, for ho observos on p. 12: "If thc right of both
.parties shall not have been adjudged in said equity suit, ?twill
'bc within my discretion as a Judge to continuo thc case from
.'term to term in order to prevent injustice, and to continue it
: until tho question of right shall be decided."
We ourselves were desirous that the matLer should bc decided.
Ail wo asked was that it should bo adjudged in such form as that
Lho case might bc brought before the supromo tribunal of the
State, and here be heard; but pressing the doctrine of right in
avery possible way we could, we have never been able to reach
There has no where been a final order or decree, and it is only
['rom a final order, decree, or judgment that a writ of error will
ie. The only appeal we could make under tho statute is an
ippeal to his Honor at Edgefield Courthouse, from the quan?
tum of compensation awarded. We cannot appeal from the
M'der of Judge Platt, at Chambers, because that is not final;
mere may be another verdict by another jury ; so that, until the
;ase is closed there, no ground for appeal exists. In equity, the
iase is still under investigation ; the answer of the parties is not
vet put in,
Now, the right of this Court to supervise tho subordinate tri?
bunals of the State will, I presume, not bo denied. That the
property of an individual cannot be takou from him except by
sanction of tho law, and that wherever a violation of the law is
Drought to the attention of the Court the proper remedy shall
oe applied, is equally clear.
How, then, are your Honors to supervise the subordinate tri
aunals of the State? By appeal ? I have shown that the case
could not come up by appeal, and that even if it did so, it would
ht> ruin to one sidet?r the othor. Can it bc done by mandamus?
u. I : .plaint is, no : that; Judge Platt did not exercise jurisdicT
t;o& b?t that he lias misconceived tho nature and extent of his
jurpdictionl that tho Suj&enfb Court imperatively prescribes^.
tha|? there shall, be a pfroliimin'hry trial, yet condemnation
'Tirr? been had witho? t a pi'elirainn ry tri al.
Judge. Willard-lias any application been made to Judge
Platt UP051 the views now alleged, to arrest, under any equity
powers he may possess, thc process of eons true (ion? '
Mr. Conner-Tho Judge says that he does not possess any
Judger Willard-Assuming that Ute case was made, before
him," which you state, here, and that this verdict is void upon
grounds connected with the action of the petitioners, would
that lodge any power in tho Circuit. Judge to enjoin the actual
entrance for construction? If not^where would be the remedy?
Previous to the statute of 1868, tho case of Blake recognized a
general equity "power as residing in the Circuit Judge. He
could determine the questions of necessity' involved in a case.
.Now, where such jurisdiction existed, together with tho means
f?l?d appliances necessary t6 enfdre'e thc remedy, is there ground
td contend that under ihe'Act of 1868 such power has been
entirely divested from the Circuit Judge ?
Mr. "Conner-Here is the troublb,.may;it please your Honor.
After the. close bf the inquisition of the-: jary? we would have
gone before Judge Platt again eb equity ground, but we :were
met by this clause of his opinion already delivered:' 'fido not
"feel at liberty to entertain and adjudicate upon most of :the
"various questions raised by'the South Carolina Eailr?adv?pm
"pany in opposition to the petition, because I cannot consider
" them legitimately involved in .thc case. I am not sitting as a.
'??Court of Equity to hear and decide, upon general mattel's of^ differ
11 ence existing between these two companies, but as the judicial
"officer;indicated by thc General Assembly, and specially in?
structed by said Act to aid in enforcing its provisions j. and,
"theraiW,-'?V not. vond?(^m^sd[ as at liberty h> enk-iiain am de?
icide upon any asserted rights Collections, except the simple one of
" ? hindrance,' particularly'specified rn the-Aet;." " ... ?
judge Willard-But this seems to havcBeeri j inpressed:! on
Judge Plait's mind, that he was not acting in a ministeria+but
in,a judicial capacity. Has he, however, been appealed to by
the parties before him, to determine that he was divested of: any
equity pqwer growing out of tho equity of thc transaction?
Mr. Conner-It was pressed upon him just ,exactly in'the
words^of Blake's case, that he should either here and. determine
this question of right,, or consent that it should be heard-and
determined by the Court of Bquiiy. How could-we go back to
the Judge when he said he could not entertain these ques
fions? S'fS y??t ' - '
' Judge Willard-Could not the Judge set the verdict aside on
general grounds ? Supposcthe juries were openly bribed?
Mr. Conner-But that would only reach half way. It would
only ..decide the correctness ol' the proceedings under his order.
What we want this Court to decide is the question who has the
legal right, audit can only be done by this course. Appeal and
mandamus will not reach it.. Prohibition is the remedy pecu?
liarly-appropriate to tho case, because it brings thc whole ques?
tion before your Honors. And it is not prohibition, as applied
to Judge Platt; so far as he is concerned, his name may be
stricken'out; but as applied to tho proceedings under the order
of the Court, until the question of right is heard and>'de
We stand before this tribunal stripped of our property. This
question of right has been bandied from one Court to another,
and decided by neither ; .meanwhile our land has beon con?
demned, and the Columbia and Augusta Railroad may bo con?
structed before the cause can be heard upon its merits. -We,
therefore, ask your Honors to interpose the power of this Court
for the correction of the error. If a mistake has been com?
mitted by a subordinate tribunal as to the nature and extent
of its jurisdiction, it is tho prerogative of this the highest tribu?
nal of the State to construe the Btatute, and y?trr. opinion will
henceforward be binding upon the action of the subordinate
Courts. It is the first time such a question has been presented,
and your Honors are to establish the precedent which % to
govern the State hereafter'in the adjudication of the many
cases likely to arise under this Act.
. Can your Honors lay down the principle that without ex?
press terms in the Act of the Legislature, and without judicial
authority a citizen can be deprived ?of his property?- As it
stands now, this case is the preoedent for such an affirmative
proposition. Can this Court, in administering thc. law, leave it
there ? Is it not your duty to interpose your power for thc cor?
rection of such an error?
It is our conviction that you will do so, and thus extricate the
subordinate tribunals from the embarrassment in which they
are placed by the absence of any well defined construction of
the Act, which can secure concert of action.
In bringiug the case here, we feel that we have done our
duty. Possibly somo of the papers might have been omitted,
but we preferred to lay every issue before your Honors to the
end that the rights of all parties now and hereafter may be ad?
judicated in this test question. If, after calm consideration, it
shall be held that we have no right ; that the Columbia and
Augusta Railroad Company have the power to take not only
our land but whatever oise it needs, mark the limits of their
authority, and wc will strive to work within tho ruie. But we
ask that we may be no hinger made the victims of violence ;
that wc may no longer have mir property forced from us, and
that, whenever we come into a Court of law, we may not en?
counter the shadowy and illusory proceedings which have
characterized tho present case; but enjoy tho real, substantial
protection of rights, which it is thc duty, as it is the privilege,
of Courts to grant.
ARGUMENT OF HON. A. LT. MAGRATH, OP COUNSEL FOR THE SOUTH
CAROLINA RAILROAD COMPANY.
May it please your .Honors : ? supposed wc had passed that
stago of this cause, when anything that could bo said would
excite surprise ; but great as hitherto has been my astonish?
ment, I confess my learned friend who has just resumed his
seat has surpassed all that has gone before, in thc boldness
of his proposition, that the question of legal right in this mat?
ter was already decided by Judge Platt ; ftnd thc attempt to
prove it by the order ol' that Judge, lt is difficult to under?
stand upon what foundation such a proposition rests, for it
involves the utter negation,-the most positive disregard of the
language which that magistrate has himself, used; and
which is, or at least ought by the counsel on the otherside
to be held his justification in this matter. Will your Honors
for a moment entertain the idea that it was the intention
of Judge Platt to decide this question in fact, and yet not
seem to decido it in words? Are you prepared to believe for
one moment that when that representative of the law of South
Carolina was sitting in judgment on this case, he intended
to take away the rights of the South Carolina Railroad,
and yet seem not to do so? that a judgment which, how?
ever ? differed from it, I have been quite willing to concede
seemed to bo marked by honesty and frankness, should, when
interpreted by the other side, be transparent with hypocrisy?
May it please the Court, in his behalf I reject the proposition.
Judgo Platt, so far from intending to decide the question of
right, denied his power to do so. And if the learned counsel
h? been present at the hearing of the case, he would have
known that, so far from deciding anything but the naked
question of hindrance, Judge Platt ordered portions of the
affidavits to be stricken out, which showed, or were intended
to show, that the location of thc Columbia and Augusta Rail?
road was on the most practicable line.
This effort will serve to show your Honors how this cause
has been managed in the various stages through which it has
passed. Before his Honor Judge Platt, it was urged that he
could give the order to the jury on the subject of compensation
without affecting thc question of right. Before Judge Boozer,
it was urged that Judge Plait's order for the jury to assess
compensation had settled the question of right. And now it is
maintained that tho dissolution of the injunction on this ground
was proper, because Judge Platt had practically decided the
question of legal right.
Let Judge Platt speak for himself. On page G, of his opinion,
he sa}*s : " 1 do not feel at liberty to entertain and adjudicate
upon most of the various questions raised by the South Caro?
lina Railroad Company in opposition to the petition, because I
cannot consider them legitimately involved in the case." In
what case? In that petition before him. Xot that the ques?
tions were not relevant to the issue, but because -Judge Platt,
sitting in the capacity of a magistrate under Act !No. 42, did
not feel himself at liberty to adjudicate upon them. But what
did he feel authorized to adjudicate upon ? '. Therefore, ordered,
"that the petition of the Columbia and Augusta Railroad Com
"pauy has been presented in due form of law, and that respon