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tion of questions for tho uierc purpose of dolay, while it did not dc
Erivo them of any substantial right. I submit that Judge Boozer in
is action thus took a correct view of tho order. I was so much im?
pressed with it myself, that if wo could have got before your Honor wo
should have moved to dissolve tho injunction, and 1 have great faith
that wore tho circumstances the same, I could successfully make that
1 have said all I ought to say, hut it would not be doing justice to
thc case, ?nd particularly to tho venerable Judge who has been assailed
here, wore 1 to omit further allusion to tho several grounds on which
our opponent.-, claim that the proceedings in tho case before him were
irregular, illegal and void. L have already retened to two. Their,
third ground is: - That the Legislature of the State of South Carolina
" in the Act No. 42 did not intend, either in express terms or hy nce
14 ossory implication, to give to any railroad corporation tho power to
.'disturb, invado, affect or destroy the franchises of another corpora
" tion, unless thereto specially authorized hy the proper department of
.' the State government. That in the eighth section of the 8ame Act,
u tho Legislature did not intend to do more than by express enactment
" assert its rights and powers to subject all land and right? of way to a
" liability to condemnation. But that Ute right and power was and is
" the right and power of eminent domain, itself one of thc highest at
ts tributes of sovereignty in i'uo Suite; the exercise and control of
.. which resides in the legislative department of the government of thc
.. State, and the delegation of which, when claimed by a person or cor
" poration, must bo shown by express enactment or implication so
.' necessary that it Ls equivalent to express enactment, and that no
" State government would so disregard this high power, that any por
.. son or corporatiou, by obtaining a charter to build a railroad, would
" therein, obtain a delegat ion of the sovereign power ?d' the State to
" impair, and, perhaps, destroy not only existing rights of property, hut
" also the pre-existing grant of a franchise by thc State to other cor
T pass to the " fourth."
"That there could be no legal condomuati >n of lands or rights of
.'way under said ?Vet No. 42, until the legal right of the Columbia and
..Augusta Railroad Company to take the lands and rights of way prayed
"for had been adjudged by the competent tribunals ol'thc State. That
"tho ascertainment of the legal right was a prerequisite Ut the op?ra?
tion of the Act of 1808, and that according to the settled law of the
"State of South Carolina, whenever the right of tho petitioner is coh
;( tested, there must be a preliminary trial and adjudication of that
"question before the order for impanelling a jury can be made."
I submit that that is a mistake, and that the order by thc Judge is a
matter for his own discretion. When or how trial is to be had. is also
a matter for his determination. If he had seen lit to have ordered a
trial before a jury, he could have done so. It rested entirely with him,
and it was for him to determine how the preliminary trial should he
had, if had at .all. That such an investigation of thc right must bc
preliminary, is an assumption of tho counsel on the other side ; and
where do the gentlemen find in any one of thc statutes grounds for such
a proposition ? If the Judge, seeing thc railroad ina certain condition,
a ease pending that had to be continued, witnesses wanted that could
not be present, anti delay a necessary consequence, he certainly could
go on, impanel the jury, obtain tho compensation money and reserve
his decision. Thia is what Judge Platt lias done, and we claim that
because he has exercised that right the result of his action ?snot, there?
fore, tho subject of prohibition. But to continue.
"Fifth. That in and by the return of the South Carolina Railroad
" Company, and tho answer and return of the same company, filed before
" Judge Platt, tho legal right of the Columbia and Augusta Railroad
" Company was traversed and put in issue, and it was the duty of his
" Honor Judge Platt to have heard and decided the question of right,
" or cause the same to have been heard and decided, before granting thc
" order to impanel a jury.
"Sixth. That proceedings having been instituted on the equity side of
" the Circuit Court for Richland County to test tho legal right of the
"Columbia and Augusta Railroad Company to condemn the lands and
" rights of way of the South Carolina Railroad Company, and notice (d'
"said proceedings in equity having been brought to the attention of his
" Honor Judge Platt, in tho return of the South Carolina Railroad
" Company, it was the duty of said Judge to withhold the order for a
"jury until the question of legal right had been adjudged in said
" equity cause."
That may he the opinion of counsel, but Judge Platt thought
differently. Prohibition is to stop something, and 1 ?lo not know how
you are to get at this matter hy such a writ. He has already decided
a question, and consequently you are to prohibit, if at all, something
" Seventh. That although his Honor Judge Platt, in his order of De?
cember 4, did declare that under the Act 42 his functions were 'ju?
dicial,' and not merely ministerial, and that he was "the only consti
" tuted judicial agent of tho State under the Act 42 to enforce its
" mandates,' he refused to entertain and decide upon any asserted rights
" or objection, except the simple one of hindrance ; and thereby refused
" to hear and decide the question of law, but did hear and deoide the
" quest ion of fact, which should properly have been heard and decided
"by a jury."
Your Honors will permit nie to observe, that the whole discussion in
reference to tho opinion of Judge Platt is entirely outside of. the matter.
The question before us is his mandate-the order. Judge Platt might
have based his order upon very erroneous reasoning. Your Honors are
well aware that it is not a matter of course to allow the opinion of a
Court to he read. The mere opinion is not the judgment, it is the
decree, the order with which we have to deal ; and what did Judge
Platt order ? That a jury should he impanelled and decide the ques?
tion of compensation. When he determined not to entertain anything
but the question of hindrance, it was, of course, a decision against our
friends on the other side, and the only way in which that can be cor?
rected is by taking the matter before the Court which sits next week at
Edgefield. I apprehend that the appeal covers everything. When
you appeal on compensation the whole case again comes before Judge
Platt, and if an error has been committed, he will then and there correct
it. The law upon this subject is: "That from the verdicts so rendered
" it shill be the right of either party to appeal to the first, tenn nf the
"Circuit Court next ensuing in thc county, and upon the hearing of
"such appeal, if thc" Court shall be satisfied of the reasonable sufficiency
" of the grounds, an issue shall be ordered in which the appellant shall
"be the actor, and tho question of compensation shall be thereupon sub
" m it ted to a jury in open Court, whose verdict shall be final and con
" elusive, unless, on writ of error, a now trial shall be ordered by the
" Supremo Court."
This whole matter, therefore, must be reviewed by Judge Platt, and
if he still rules wrongly the remedy is not by prohibition, but by a
wi it of error. Why should you undertake to chango this law? Is it
not sullicient that the case may be brought before you by a writ of
" Eighth. That his Honor Judge Platt, in granting the order of
" December 17, impanelling a jury, did declare in thc opinion uccom
" paus ing said order, that no injustice could result to the South Carolina
" Railroad Company, and no prejudice to their right, because after the
.'assessment of compensation had been made, the Columbia and
" Augusta Railroad Company must apply for a dissolution of the in?
junction, and show that they had 'acquired the right,' and that the
"question of legal right would then be decided; when in fact, the
" order for the jury, followed by its assessment for compensation and
..the tender hy the Columbia and Augusta Railroad Company, of thc
" sum assessed, (all ol' which rests upon the legal right id' the applicant
. to (he interference of (he Court), affords the claimant the evidence of
.having acquired the right, and thus remits the South Carolina Kail
" road Company to another tribunal for the protection of its rights,
after those rights have been judicially prejudged."
I submit again, that the opinion ol' Judge Platt is not before us. It
is his judgment, his order which wc ?ire to consider and alone bear in
mind. I presumo that, in the benevolence of his heart, Judge Platt
was led to suppose that he could satisfy the losing party, and in a kind
spirit he undertook to give some reasons which would make them bear
their disappointment without mortification, and he. therefore, stated a
meat deal without intending that what he said should operate on the
judgment he might pronounce. I see nothing in the opinion calculated
to modify that judgment.
'. Ninth. That the declaration of his Honor in said opinion, that the
"appeal would bring the ease again before bini, and that he could coil
.. thine it 'Vom (cnn to terni to prevent injustice, alfords no protection,
.. because the plain, manifest and express language of the Act 12
.. limits the appeal to an appeal only from the amount of compensation,
..and expressly gives to the claimant the right to enter and yo on nilli
.? lin- construction <>/' flo road.
Here mir friends agree with us for once. This tiny do concede, that
WO have a right to go on with the construction ol' the road. What,
then, are you going to prohibit ? They concede the right ti? enter for
construction. That is all wc claim. As to the question of appeal, thal,
as I have said before, will come before his Honor next week, and the
case, perhaps, will then he considered ?ll full.
..Tenth. That his Honor had no right or authority, under tho con?
stitution and laws of the Slate, lo prejudge hy an order the full
. hearing and decision by a Court of competent jurisdiction of the
..question of legal right fairly made and presented to him ; and that
.. his order being a preadjudication of questions of legal right without
" heiring, and vet divesting rights ol' property, is in violation ol' the
" Constitution of the United States, and of the const it ul ion and laws of
" this State, and should be set aside."
Wi ll, when tl;.' question comes here he it so, but it cannot be deter?
mined by prohibition.
" Eleventh. Because tho urgency with which thc proceedings were
" conducted by tho Clerk of i,he Court of Edgefield County ; the
" refusal to grant time to- procure thc attendance of important and
'-'material witnesses; tho summoning of jurors who were not legally
"competent to act; the administration of un improper oath, and the
"refusal to administer the oath according to the Aet; the absence >f
" all sworn testimony on thc part of tho Columbia and Augusta Rail
"road Company; tho exclusion of all testimony on the part of the
" South Carolina Railroad Company, and the condemnation by thc
"jury of a greater quantity of land than they were authorized to cen.
'. denni ; and the omission by the jury to take testimony and report
" upon 'the special damage which the owner may sustain by reason of
" the construction of the highway through his lands,' are all nets
" illegal and oppressive, and tend to the injury of your relators."
Now, may it please your Honors, these are all facts. We have never
known what affidavits they were going to ofter here. Wo did not know
they were to bc offered, and we deny the whole of them. Thc record
read to your Honors denies the greater part of them, and wc ailinn
that we are able to prove the opposite of each of these allegations.
We desire to be heard upon them ; wo traverse them ; we take issue
upon them and wish to produce testimony ; and if your Honors should
pass over the other points, the rule to show cause must be made. You
must give us a hearing. 1 have argued the questions of law fully upon
tho record, but when it conies to matters outside of the case based upon
alleged facts, we desire to bo heard. As regards prohibition, Chief
Justice Eyre says that tho Court must first bc satisfied that there is
ground for prohibition, and thcro being ground, they then put the
party cither to declare or show cause and send tho facts to the jury, and
have them found before they venture to decide upon matters outside of
the record. Will your Honors then sit there and try a ease and give
final judgment upon questions of fact, upon which we have not been
heard '( Never !
Finally, may it please your Honors, I urge upon this Court the great
necessity of avoiding this class of eases. Every foot you tread in the
path where you assume original jurisdiction will be regretted. Von
may be obliged to do so in some cases; but you all know the difference
between a Court, of Appeal and an original Court, and it is of great ad?
vantage to the justice of the country, and it is due to yourselves, that,
cases should come here, if possible, on appeal, and that if prohibition is
to be filed it should be filed in the Circuit Court. I submit, to your
Honors that if you allow these eases to be brought before you the more
you will be incapable of discharging the high duties devolving upon
you in their final adjudication. Your policy, in my judgment, is to
avoid original jurisdiction and allow each of the Circuit Courts to dis?
charge the share of duty imposed upon it.
With these remarks I submit this case to your consideration, having
no doubt that justice will bc fully administered. If the South Carolina
Railroad Company has a right to that land it will he decided by your
Honors, because there will be an appeal from the Court of Equity. The
whole gravamen between these two great corporations, be it said to their
shame, has been declared by a jury of twelve men to involve thc simple
matter of SI 10. Thc chief difficulty with which we have to contend is
that the South Carolina Railroad Corporation confound the loss of busi?
ness with the loss of land. The loss of business is not involved here,
but it is the loss of two or three acres of old pine land not fit for culti?
vation and not worth 85 per acre. I submit that if you will let such a
ease take its course, justice will be administered upon its final hearing.
A HO UM EXT OF Kx-ClIANCK'.T.OR CARROLL.
May il ph ase dir Court : Tt was not my intention to participate in
this discussion ; and I am not, therefore, prepared Ut present the cause
in a manner due to the Court and to myself. Still, in thc course ol' the
argument, I have received some very strong and decided impressions,
especially with reference to one branch of the case-and to this, with
your Honors permission, T will address a few observations.
Throughout thc entire argument, the cause has been treated as though
the question of legal right on the part of these defendants had never
been considered and adjudged by his Honer Judge Platt. It has been
assumed, on both sides, that the question which, it is averred, ought
primarily to have been considered and determined, as to thc legal right
of these defendants to proceed under the Act of 1808, was, in truth,
never investigated by Judge Platt, 1 apprehend, however, that if his
opinion be fairly construed, it will be seen that this assumption is utterly
'fhe relators were served with due notice of the application made to
Judge Platt, by petition, to have the necessary proceedings instituted in
order to ascertain the amount of compensation to which the South Caro?
lina Railroad Company were ent itled for the appropri?t ion of their land.
They were opposed to the prayer of the petitioner.
According to thc ordinary and regular eoursc of procedure as indicated
in Blake's case, (9 Richardson,) til?.; party resisting the application was
bound in his return to state tho groundsel' his objection, and to set forth
the reasons relied upon, why the prayer of the petitioner should not be
granted. The relators conformed to that rule, and did make a formal
answer to thc notice served upon them, wherein they set forth their
grounds of objection to the proposed application. Your Honers will
observe, however, that these reasons are given in various forms with
much amplification and a multitude of words, but after all, when summed
up, are few in number.
First, is a general denial of the right of the defendant? to enter for
the purpose described j next, is a specific denial that by any act or
authority of the State has power been given to the defendants to pro?
ceed under the Act of 1808, No. 42. Then follows a recital of the re?
lators' title to their land, and the allegation that their lands and right
of way, and the exclusivo use of the same, are now and must always be
necessary for their road. Next, it is alleged that the right to hold these
lands and the right of way is derived from the L?gislature of the State,
and that the charter is a contract inviolable under the Constitution of
the United States. Then follows the declaration that the powers, rights
and privileges granted by the Legislature have been confirmed by the
judicial tribunals of the State in the most ample form, and that said
powers, rights and privileges in their nature, and by express enactment
exclusive for the purposes of the South Carolina Railroad, are not only
threatened with but have actually been encroached upon and interfered
with by the Columbia and Augusta Railroad Company; anil so the re?
Now, may it please the Court, if the different grounds of objection
set forth in this return he considered, it will be found after all that
they do not sustain their case.
First, they object that these defendants have no right, either under
the Act of 1808, No. 42, or under any other law of the State, to enter
upon the land of the relators with a view to appropriation for the pur?
poses of a railroad.
That point was undoubtedly submitted to Judge Platt, and the sp?cifie
ground upon which they relied was that the Act of 1S0S had reference
merely to corporations to be created in tin; future, and did not apply to
corporate bodies already existing. It was considered explicitly and for?
mally, and by his Honor adjudged against the relators.
Then they suggest that according to the terms of their charter the
use ol' their road to a distance of one hundred feet belongs solely and
exclusively to the South ('andina Railroad Company, and th - conse?
quently that corporation cannot be considered as within the scope of the
Act of 1S0H. when it refers to those parties whose hindu uro liable t<>
condemnation. His Honor Judge Platt, also decided that point against
the relators, and declared the South Carolina Railroad Company not to
he exempt from the operation of the Act.
They further contend that the power in question of appropriating
land against the consent of the owner, is a power which can only be
delegated under the right of eminent domain, and that to be granted
effectively, ii must be in express terms, or in terms implying a manifest
application of such grant. I call your attention to the language of
Judge Platt : "A formal answer has been put in by the South Carolina
" Railroad Company, sotting forth their objections thereto, and among
"others this one, to wit, that, the entering by the Columbia and
" Augusta Railroad Company upon the lands at Oranitcville, where tho
" respondents'depot is situated, for the purpose ?d' constructing their
.road thereon, and also its entry upon their lands and right of way
. between Granitcvillc and Hamburg for like purpose would be a serious
"hindrance to (he use and enjoyment of the highway, for which said
" lands or right of way wero previously procured." * * *. .
. After hearing argument by counsel thus far. and examination ol
- law authorities quoted by them, my mind has been led to the following
.. conclusions :"
"That it was the manifest intention ol' the General Assembly in tin
.. passage of said Act No. 12, to enact a law which should he appli
? cable to and be obligatory upon all railroad companies in the State ol
. South Carolina, whenever the one in the construction ol' its road
.. claimed the right ol' entering upon ami using a portion ?d' the lamb
.. ami right of way ol' the other. The South Carolina Railroad Com
.. puny is not made an except'nm to the operation ol' this enactment.
?. but,on the contrary, section eight of said Act declares affirmatively
.. that'no lands or right ol' way which liave been heretofore procured
" for the construction or use of any highway shall be considered ex
. empt from any liability lo condemnation, but the right of way ovoi
" the sann- may bi- condemned for the construction of any othci
" highway.' "
Surely that seems to be sufficiently distinct.
The only other ground assumed'in the answer of the relators is thai
the proposed appropriation by these defendants of their land Wltntl
one bundled feet of the centre of their road has operated as a hin
drancc to tho uso ?md enjoyment of their right of way over that portion
of their property. If there bo any other objection to be (bund iii tho
mass of statement than those I have indicated, made in tho return (d'
the relators, I have been unable to discover it. There is much of am?
plification. The same proposition is presented first in one form and then
I in another, first associated with one circumstance and right and then
with another circumstance and right; but they resolve themselves after
all into the general objection that under the law ol' the State, ami more
especially the Act of 1808, no authority whatever is conferred on these
defendants to cuter upon and take the lands of the relators.
Now, 1 beg your Honors to observe that in this return the allega?
tion is no where to be found, that these d?tendants are perverting the
power conferred upon them hy the Act o?' 1808. There is nothing
which savors of such an allegation. They deny the right ?mt and out,
but they do not intimate that the defendants toe misusing the power
thus bestowed, or that the land they proposed to take is not necessary
for the purposes of the Columbia and Augusta Railroad. If there be
such an objection, 1 beg that the counsel for the other side will lay
their finger upon it.
What objection was there, then, that Judge Platt ought to have con?
sidered, which he did not consider and adjudge'( So far as relates to the
possession of power on the part of the ( Jouerai Assembly to frame such
an Act as this, no question is made. The Act is not sought to be im?
peached, because in conflict with the provision of the constitution
which prohibits any State from passing a law impairing the obligation
of contracts. It is conceded that the State had the power to do this
thing if it saw fit; that the (Jencral Assembly had the right to author?
ize tho Columbia and Augusta Railroad Company to take the land of
the South Carolina Railroad, although covered by their right of way ;
that is to say, to take thc lands of that company within one hundred
feet of the centre of their track on either side, if tin* entry of that
land were necessary for the construction of the Columbia and Augusta
Railroad, lt is conceded that the Legislature had a right to do this,
but the ground of objection is that they have not done it. The relators
say the defendants have no authority under the Act because the grant
of such power must appear hy express enactment, dodge Platt says,
in effect, it does so appear. The South Carolina Railroad Company
j is not made an exception to the operation ol' this enactment; but, on
I the contrary, section eight of the Act declares affirmatively that " no
lands or right of way which have been heretofore procured for the con?
struction or use of any highway shall hi; considered exempt from lia?
bility to condemnation, but the right of way over the same may be
condemned for the construction ol' any other highway."
I ask again, then, w hat was there remaining to be considered by
Judge Platt in order to determine whether these defendants had a right
to proceed under the Act of 18(>8?
It was the duty of these defendants to set forth specifically the por?
tion of land desired for their road, and they have done so. It was then
incumbent upon the relators to set forth the grounds of their objection
specifically and distinctly; but they have not done so in their return. I
repeat, then, there is no allegation that these defendants are claiming
land not needed for the purposes of their road. That point was not
presented to his Honor Judge Platt. What, then, is there which .Judge
Platt ought to have decided which he has not decided, in order to enable
these defendants to proceed under the Act. of 1 S(iS ?
Ile has adjudged that that Act is applicable to all corporate com?
panies, those now in existence and those heretofore existing; that the
South Carolina Railroad Company is not an exception to the enactment,
and hence the objection falls that such a grant of power can only he
effective where it is conferred in express terms or hy necessary impli?
Allow me to call your Honors' attention to what is further announced
in Judge Plait's opinion.
"It is apparent from thc reading of the entire Act that the Legis
" lature intended to encourage and invite capitalists from other States
" tb invest their money in railroad enterprises and other works of in
" terna! improvement in South Carolina, by affording them all proper
" facilities in the construction of their railroads, and in the removal, so
" far as they could, of all pre-existing obstacles; and also to assure them
" that no other objection but the one of'hindrance to their use and
" enjoyment,' etc., of their own road should bc successfully urged
" against them by any company whose lands or right of way were thus
" entered upon and thus used."
Now, when Judge Platt made this decision and determined these
points, did it not follow, as a necessary and legal consequence, that these
defendants thereupon were entitled, under the Act of IStJS, to enter
upon the lands (d'the relators, and have it condemned '! They pursued
the course of procedure indicated hy the. Act. What more was required '!
There was no question as to the constitutionality ol'the Act; none as to
any perversion ol' power conferred by it. What, then, remained to bc
decided ? Nothing. Those points being determined, there was nothing
i more to adjudge.
But let us proceed further with the consideration of thu opinion pro?
nounced hy.Judge Platt: "It is equally manifest that the General
''Assembly intended to confer and impose upon the Circuit Judge, and
"on him only, the power and responsibility of adjudicating upon the
" petition, and td'granting or refusing to grant the order prayed for. A
"bill of complaint has been heretofore filed on the equity side of the
"Court of Common Pleas for Richland County, by these respondents,
"against these petitioners, in which all their rights and claims now
" asserted before me are set forth and insisted on. Such suit is still
"pending in said Equity Court."
..lt wa- suggested at thc lalo hearing of thia matter before mo, that thu auront
" mode i-f securing tho jual rights ot' both partie-, would bo t? postpone any decision
" liv me upou tho petition aforesaid, until tho rights of boin had boon investigated
'. aiid adjudicated upon by that Court. This suggestion .?"ruck ino favorably at thc
" time, and 1 waa Inclined to adopt it and to rule acoordv'?l>' ; but on subsequent re
.' flection and rereading of the Act No. 42, 1 become e-nTlnced that such rui?n>- by
"mo would boa departure from my plain path Jf duty. Tho ' Circuit Judge '
.. named iu section two, bas no right to transfer or dJegate any portion of his power
'. and responsibility to any other tribunal; ncithei -Would bo bo justified in delaying
" tbeoperation of tho Ant of Qonoral Assembly aOrosaid. bccatlSO ho felt desirous ot
" first knowing what some other Circuit Judge lOuld (loom and decide to bo legally
" right and proper."
Surely, may it jilease tho Court, we eau not donbt as to tho legal efl'ect of what was
done by Judge l'latt. Ile was constrained to Make tho judgment ho did that the Co?
lumbia and Augusta Railroad Company wire entitled to come in under the Act ol
1868. How could ho make the order ho (lid lnless ho adjudged that tho lands of thc
South Carolina Hailroad Company were subject to tho liability imposed by tho Act ol
1808? He waa obliged to decide all these questions before he could grant thc order,
and bis Honor clearly recognized the obligation Imposed upon him to do so.
Hut 1 proceed with the reading of Judge Plait's opinion : " Regarding myself
thordon*, os thc only constituted judicial agent of the Stale, under tho Act No. 42
to enforce ita mandates, I do not fool at liberty to entertain ami adjudicate upon most
of tho various questions raised by the South Carolina Railroad Company in oppo?
sition to tin- petition."
Why ? " UOCUUse I cannot consider them legitimately involved in the ease."
In other words, they were not necessary to be adjudged so far as tho purposes o
the application were concerned. If there was any question suggested which did no
involve thc right of tho d?fendants before him, sitting as he was in a Court of law
that question was not relevant, and bis Honor treated it accordingly. Hut in regan
to all questions pertinent to thc ease, the Judge was '?ound to decide, and he did do
His Honor proceeds now to indicate tho character of the various queutions whicl
he passed by ami declined lo consider.
I " 1 am not sitting as a Court of Kqility to hear and decide upon general matter:
" of difference existing between these two companies, but as the judicial officer indi
"cated by the (Jenoral Assembly, and specially instructed by said Act to aid in en
.' forcing ils pro\ ?shins : and. therefore, do not consider myself at liberty to cntortaii
" and decide upon any USScrtc 1 rights or objections, except the simple one of . hin
" drance,' particularly specified in the .Act.''
.Now. il is as clear as sunlight that fliese words are not to bo understood literally
His Honor obviously means to say, ..and, therefore. I do not consider myself a
liberty to entertain and decide upon any asserted rights or objections, no! Acren
ultucr. itt/juiiijriL'1 Will your Honors understand him to reverse and retract what In
has just decided:' Only tho moment before his decision was that the Act of 1801
was applicable, to all companies - that tho South Carolina Hailroad was no exeep
lion; Cal tin power to appropriate and liability to bc appropriated iu respect ti
lands, was formally declared by the Act; and that the Legislature intended by tba
statute to assure all persons that no other objection but tho ono of " hindrance'
should be successful!) urged against them bs any company whoso land.- or rigid ol
way were thus entered upon ami thus used. Did Judge l'latt mean so soon to reeedi
from and reverse his previous judgment? Why. tho idea is an absurdity. Cnn li im?
possible to imputo to his Honor that bo meant to decide nothing af all except tin
I.tel that the proposed appropriation of |.md would operate as a hindrance to tia
enjoyment and uso of tho South Carolina Railroad? Such a const ruction is mad
Now, what else is there in tho opinion of Judge l'latt which conflicts with lin
view ? '
On p. 12, at the e.inclusion "f thc first decision, we lind thc following hingUOgo:
.. No injustice can possibly result to respondents, and no prejudice lo their tight
"is manifest from those two considerations: (1.) That after petitioners shall fia?
.. ascertained tho inmutum of compensation, and have paid >-r tendered ii. they mus
.. necessarily go back to the Court of Equity in order to get tho injunction removed
'.and before they can ask its removal they must show not only that they have ten
"tiered thc compensation, but that they havo * acquired tho right ' (as provided_t
"Judge Willard's injunction order.' Their suit in equity now pcudlllg ?" j1
"equity side of the Court of Common i'lcaa (d' Richland County, embraces III
.?wi.ob- issue as to ' right,'and every point must necessarily bo adjudicate?! upo
" when they apply for leave to proceed willi their road." . ..
Now. may ii jilease your Honors, suppose the interpretation claimed by ow oin?
side was adopted, it would simply cometo this, that Judge Platt fell into an error?
. to the effect of his own decision. If tl,, view suggested by the counsel ?f-T-??"
with me bc correct, then what is said i, the passage I have re. ?tod IS not ohnox,?
to tho cbnrgoof inconsistency at all; it \< all right- If Ibo effect ol ms oruu w
Simply lo admit those defendants to the right of entry upon tl'" road, and to prot?t
with tho construction without a Anal determination of tho question >
. then what is Mid by Judge l'latt hero is eut ireh.isistenf with each and .vc. MM
s.od by him before. If Judge IMr.tf intended morely t" 'lee-ido upon tue .pu .- ion
I the legal righi of th, so defendants t.. enter for t he purposo ol construction. I.-., Ving, I
; final determination hereafter, th,- question of Baal ?ml Mm*ta right.
taken by my friend harmoniies entirely with th.servutions .is llonoi in tl
linssaso I hi.-t referred to. ... ,, ? ,. ll,,,,/,
, 1 1 do aol know that I can oller anv further sugg?.ni wi... h W. aid your Olio
? in the consideration ol' this eau,.-, bul bef. I >?''" "?>' ? 1 , ''''", ' . I , .
I temi.... of tho c.urt to what was sal 1 in Ihc deer, o pronounced ... th.> Br? > '
1 between these companies, in rospeel to. construction ol tho defendants rain
" tlrnnitovillo to Hamburg. I read from pago --' : m??i???n
. "The lino fixed by th- defendants tor their projected road, ?SS0S
. " Oranitev.lle and thence "Iso along tl..- .-ame valley to Hamburg, parallc o ?he ra
"of tho plaintiffs, and in dos,-,,roxi.,,.ty to it. lt is contended on MIMI ot
?plaintif? that their exclusive privilege to establish and maintain ruilwajr corni.
" location between Charleston and Hamburg, attaches to every toot ?I III. i r
t "connecting those places, and thal the cn,.ruction of another road su e bj side n
1 " parallel w.th their road from U rani tc vii lo to Hamburg, a distance ot ten or tm
> ..miles, cannot op?ralo otherwise than as a palpable invasion ... sue... OXCUIS
Your Honors will perceive thal thu precise point waa ronde there which ?a mad?
here in ono of the grounds of objection, narady, Mint it i.-> impossible to have this
road eonstru.I on the proposed line without depriving thu relatora of ih?-ir rights
under thoir charter.
*' In proposing to adopt thal ronlo, it has not been shown thal tho defendants aro
acting otherwise than in good faith, mid because they, in truth, regard that ronlo os
tho roost desirable and the best."
Your Honors will further observe that in tho original case,as here, it was not sug?
gested that tho defendants wero acting otherwise than in good faith: il was not sujr
gested that umlcr the pretence of Ibis appropriation th.-v won- seeking out lands not
to I,o med for tho purposes nf said road: and there i< grave doubt whether before
Judge Platt thora was any such intimation. What was tho objection in substance,
made to tho righi ehumcd by these petitioners to enter upon Ihe land of Hie relators
and condemn it? Was it not competent for his Honor tu decid thal question with?
out submitting it to II jury? Where was tho necessity of impanelling n jury nnd
making a formal argument as to ihe menning and intent ortho Aol of I HOS? Sundy,
it was competent for Judge Platt to decida that question for bin elf. A jury had
nothing to do with it. lt was a question of law, of statutory construction, peculiarly
lit for tho examination of a Judge, and of a Judgo only. I repeat again, therefore,
ami finally, that each mid every matter necessary to determine and ascertain tho
rights of these petitioners under ibo Act of 1808 tocnter upon tho land of tho South
Carolina Railroad Company for tho purpose of construction, was considered mid
adjudged hy his Honor Judge Plait.
NOTE.-Tho foregoing arguments :ire published nt thc instance of
the South Carolina Railroad Company for a double purpose-Qrst, to
present to tho public the issues involved in a legal question which has
been misunderstood and used to thc prejudice of that corporation ; and
secondly, to refute the allegations so persistently published throughout,
the country, that thc South Carolina Railroad Company have in this
controversy any other design than to protect themselves in tho enjoy?
ment of a right, granted by the Legisla turo, which has been infringed
upon by the Columbia and Augusta Railroad Company.
Tt is believed that these arguments ol* counsel on both sir/es, when
thus fairly presented, will not bc without a wholesome influence with
those who desire to understand tho real merits of tho controversy ; and
that the official correspondence between Presidents Magrath and John?
ston, now first given to the public, will rffrvt nully pu' an rmi to tho
statements so often made, thal the South Carolina Railroad Company
have persistently refused fair oilers for the use of its valuable privileges
between Granitovillo and Augusta.
Baltimore and Charleston
^^^^^^? ERE 1 a H T
TO AND FROM
Baltimore, Philadelphia, Washington
City,Wilmington, Del., Cincinnati,
Ohio., St. Louis, Missouri,
AND OTHER NORTH-WESTERN CITIES,
Leavini; each I*oi*t every Stix Day.
FALCON.JESSE I). HORSEY, Commander.
SEA GULL.X. P. DUTTON, Commander.
MARYLAND.J. V. JOHNSON, Commander.
These favorite and swift screw Steamships are regularly on the line, averag?
ing 57 hour passages between thc two ports, over a period of
two years and n half, insure al thc lowest, rates, nnd have
completo freight arrangements for all points in
SOUTH CAROLINA, WESTERN NORTH CAROLINA, GEORGIA,
ALABAMA, MISSISSIPPI AND TENNESSEE.
THROTJG? BILLS OF LADING
Also given to und from Philadelphia, tho frequent dispatch of Steamers on
this line affording facilities which have given great satisfaction
to shippers during thc past year.
For further information, apply to
COURTENAY & TREN HOLM,
Shipping and Commission Merchants,
UNION WHARVES, CHARLESTON, S. 0.
Messrs. MORDECAI & CO.,
Corner Gay and Lombard Streets, Agents in Ral ti moro.
SOUTHERN CREIGHT LINE
New York via Charleston, S. C.
THROUGH BULLS OF LADING AND THROUGH CARS.
Connecting at Charleston with ti rsl-cl ass ocean Steamships, unrivalled
in spr ed and comfort hy any one on the coast, consisting of thc
t&- MANHATTAN, CHAMPION, CHARLESTON, JAMES
A Dil RR, MAGNOLIA, SARAGOSSA.
Leaving CHARLESTON and NEW YORK on TUESDAYS, THURS?
DAYS and SATURDAYS.
Shippers of Cotton mid Receivers of Goods are guaranteed ns Low Rales
as by any competing Route, and SAVING OP TIME.
INSURANCE ONE-HALF PEI*. CENT.
BS?" RAILROAD AGENTS nt all principal points in South Carolina,
Georgia, Alabama and Tennessee, wiil give THROUGH
RILLS OP LADING nnd Passage Ticket*.
H. R. MORGAN & CO., JAS. A DG ER & CO.,
ARTHUR LEARY, RAVEN EL & CO.,
Agts. of Steamers at N. Y. Agts. of Steamers at Charleston, S. C.
W. T. J. O. WOODWARD, "J ? ,, m ,,. . , .
H. M. COTTINGHAM, [Southern Travelling, Freight
W. J. ENGLAND, ) 1WSC A8cnt8
Walker, Evans & Cogswell,
Nos. 3 BROAD AND 109 EAST BAY STS.,
CHARLESTON, S. O.
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B i m m m mm -
CL. 3 I ? mW xz?'? Pip ! W P
21 I'S ia 'PP iar \??? \ bd ?
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?T3 M PA PF R ft STATiOr?cRY. i y-jt
?SJ r? IPtiQlll j I 'J j Ll _h || h I Y ? ' ^ K*
C Q 'I fy % I ? KKRTK VAN!S * ? " " i SWKI. ?. ? J 3
A<- EIVTH ion
THF L JOHNSON ft CO'S TYPE FOUNDRY,
B HOE'S ft CO'S MACHINERY,
HERRING'S F J HE PROOF SAFES.
Thc Largest Establishment of thc Kind in thc South.
Walker, Evans & Cogswell,
Charleston, S. C.