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"railroad between termini definitely expressed, such general j
rt power ought not to be ?o construed as to take un arsenal, fort,
?-stuto-hou>o or land, already appropriated to a highly im
" portant, public use. which would bo dcleated by audi construe-1
Atlon. IL would bo a question of legi dative intent; and it
?could not ht* presumed that tho Legislature intondid that the
a power conloi-rod by them should have such an effect, unios? rt
* wore'unequivocally exprossed."
Judge Willard-What do you hold to bo tho rulo where a
Charter is granted in general terms to oonstruel a road hoi ween
two t*rminit~hwl thara is no delhi ii ion of location made? How
could tho Court determino the propriety ot' tho location?
Mr. Conner-lt is difficult to answer tho general question in
that way. Tho first answer would naturally bo tho shortest
Une; but boro questions arise with referen co to deviations,
which would uoeessnrily result from obstructions, as for instance
a ?udgo* Willard-But on what foundation would you roBt tho
principle ? . _ . .
Mr. Connor-On a wiso application by tho Court of the
measure of right?, "Sic triers tuo nt alienum tito lattas:' The
question of location is ono of detail, not dependant on princi?
ple, but on circumstances. .
Judge Willard-Does it not depend on a reasonable necessity/
Take for install?e the case ol tho crossing of these two roads
al Columbia. That was allowed not because it was au absolute
but a reasonable necessity.
Mr. Connel--I will lalee up that argument now, for it suits
me as well as any other timo. 1 contend that we have shown
there is no right of way by grant; that whatever power the
Columbia and Augusta Railroad Company possess is expressed
iu their charter.
Judge Willard-I apprehond that it will hardly bo questioned,
that independently of the grant of tho charter, tho eighth sec?
tion confers any right whatever. So that titler all, your whole
case is narrowed down to this point: Hud you pre-existent to
the Aot of 1868, a right to this location? If so, bad the Co?
lumbia and Augusta Railroad Company not a right to seek il
under tho authority of tho A<U. of 1868, und by the means there
nurned ? And if there was a legal exception to granting the
franchise, and that had boon cleared away by tho cigln li sec?
tion, can they not go on with tho construction? As in the case
?f tho crossing at Columbia, while lhere was no absolute right
conferred by tho charter, the Court recognized a question ol
right dependant upon tho necessities ol' the caso.
Air. Conner-Wo concodo the right to build tho road under
the oharter, but that charter gives no right to take our land or
the property' of any corporation. That is clear, and tho oon
trary is not claimod by tho opposite side. But they do assert
that the power to divest our rights is derived from tho Act ol
1868. This, therefore, is tho issue: llave the Legislature givon
that power, not have they tho right to give it V Wo conoodc
that; but have they done so? If it exists, it must be declared
in express torms, and thorb is an end lo the question.
Judge Willard-It may bo assumed that there is a choice of
location ; and, by simply ohanging tho location, you tako the
case entirely out of tho eighth section; BO that utter all, the
right of the Columbia and Augusta Railroad Company, under
the charter, to seek a suitable roulo somewhere, lies at the
bottom of this case.
Air. Conner-Tue right to exroiso thoir charterod power, to
fulfil the objects of their creation, wo concedo; but when they
seek to destroy previously existing rights, l hoy must show
either that tho Legislature has expressly authorized them to
do so, or that it was absolutely necessary. Tho Act contains
no snob authorization. Tnoy must, therefore, provo tho neces?
sity ; provo that they must either condemn this property vested
in ttie South Carolina Railroad Company, or be precluded from
.arrying out tho objects for which they wore chartered, lt is
j.ist there that we have beon anxious lo make our fight. The
?eiy point suggested by your Honor, is the issue wo have en?
deavored to make throughout ?he controversy, because it is an
us ne of fuel-an issue to be determined by a survey. Thoir
doctrine of necessity is that unless they can go over our one
hundred ieet, or, lu other words, appropriate it to their own
us?, their enterprise will tail. Kow, we are all of us more
or less familiar with that country. We know that thoro is no
mountain range, no swamp, no obstacle dillereut from that
which every railroad is compelled to surmount in the course ol
its construction, and if it be alleged that to throw this corpora
-, mt**.j- nfcit- ck.u-t.-~r t*>??>.>?nt line i.i to prevent tho conipl?
tion of thu enterprise, let thu question go where it oun Ou deter?
mined, not by what they say, or wo say, out by skilful engineers,
tiifiih/it rurti* ""' iden ti lied with either company. But they have
never affirmed that this was a right by necessity. They have
nevor declared that to throw them oil'oue hundred feet is to bar
their undertaking. Their complaint has b .'ou simply that it
would cost more money. Of course it would, lt would bo econ?
omy for them to condemn our roadbed and use our rails.
Judge Willard-When this case was bet?re moon the motion
for un injunction, many of these questions were considered, und
it seemed to me that a bill in equity would reach the point oi
the difficulty. The thought then occurred to mo, supposo it
should become necessary to apply some reasonable rule in
detenu i ii i ug the question of location, and I should arrive ut thc
conclusion that tho Columbia and Augusta Railroad Company
h;ul departed from a natural and convenient route, attracted by
facilities existing ut ? certain point, as lor instance a depot or
other local advantages, created by another road, wdiat would be
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 ?dill be the proper remedy.
Mr. Conner-That conies up hereafter in the dismission as to
the appropriateness of tho remedy. But the point which your
.Honor regards as so very essential, bas never been tried, and
unless we carry the prohibition here, it never can be tried.
That is the very object of these proceedings. What is an
appeal worth? There are only eight milos to be completed.
An agreement has been made that equity cases shall not bc
tried until Juno. Do we know that lids case will bo tried then?
There may be various pleas to bo heard, and issues to bc
decided, before the merits of tho main question are reached.
Admitting that it is reached at that June term, will not Un?
ease bc carried to the December term of tho Supreme Court?
What, then? The road will be built ; and lhere never has been
in the history of judicature an instance of a Court rendering a
decision which would divest property of the immense value ii
had under such circumstances acquired. Your Honors would
como to the conclusion, the enterprise being completed, that tn
repair ihe evil would woik an evil of greater magnitude than
originally existed. Tho question would be decided outside ol
law tribunals, and Courts would shrink from any judgment that
might involve so much of retrogression.
Judge Willard-Why could wo not as well grant an injunction
then as now ?
Mr. Conner-Because, may it please your Honor, pure abstract
right is very rarely administered,
Judge Willard-But we niu&t assume that the events of the
next niuo months will not prevent this Court from reiiderin" a
just decision.
Mr. Cornier-It is muoh easier, however, to prevent an evil
than to repair one after il has been committed. Will you tear
up a road lor a dozen miles on a question of abstract right ?
The principle may bo correct, but will yon enforce it at such
expense? May it jilease the Court, il is impossible for the
bunnin mind to shut out considerations of this character.
Should you refuse to render a decision in accordance with whai
wo believe to be justice, you would wrong us ; if,on the contrary,
your decision should be in our favor, you would ruin tho other
Bide. Is it not wisdom, therefore, to decide the case at the
earliest practicable moment? Then each party will enjoy the
lights belonging to them, and rest content that they have been
fixed and determined by a tribunal from which there is no
appeal.
?o fur from being co|>iio*fcble, we consider that wu aro in the
discharge of a high duty, when we bring this issue belora the
Court in such a shape as calls tor all the facts, and requires thc
most rigid investigation. We say, if we have rights, give thuin
YO us. If wo have no rights, so declare, and close the contro?
versy. All we want is u decision according to law. Yet, as 1
said before, unless through the present proceeding we can
bring that question promptly before the Court, which your
Honor says b so essential, it never will be heard. Tho 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, HIM! absence of thc
pro >t is equal to the admission thal lhere u no right.
Thu* far 1 have oom batted tho argument of the other side.
How, what is our position? Certain powers were grunted to
these two companies; first to one ihwn to th? other. j\'o where
is lhere to he found the repeal ol' a prior grant. What is tho fair
Interpretation? Why that tl lese two roads should each operate
wubin the sphere ol Its chartered limits, thu two charters co?
existing and working harmoniously with each other. Tha?e is
no neoessity l'or interference. Tho Legislature did not intend
that thc power of ono should interfere with tho privilege** of
the other, and houco its silence upon that point in tho Act of
1868. The rights granted wore cit I gout to rights previously
existing, which had boon clearly deland and were in iho statute
book, und tho General Assembly supposed the two roads would,
in harmony with ouch other, fulfil the objects of their oreation.
Tako the very case to which your Honor has referred. When
tho Court of Errors decided ?hat tho Columbia and Augusta
Railroad Company could cross tho truck of tho South Carolina
Railroad, near Columbia, it was emphatically a right ol' wuy by
necessity. They were compelled to pass ovor tho track of either
tho Greenville and Columbia or South Carolina Railroads, by
the very terms of tho charter. Tho termini wore fixed, and they
could not como in or go out without crossing ono or tho other
of tho roads namod. lt was absolutely a right of way by
necessity. Yot, what did tho Court ot Errors declare? They
decided that tho right was lo bo exorcised iu subordination to
the rights of tho older grant.
Judge Willard-That was said in reference to tho joint usor
of tho roads.
Mr. Connor-That is all we say hero, oxoept that tho user
applies to our lauds.
But 1 have gone a little moro into this argument than 1 in?
tended, and turn now to another branch of the question. What
we ask ol' this tribunal iu, that wo .??hall not ho despoiled of our
property without an adjudication of the right. Wo dp not ask
your Honors to judge tho right, but to ooa that tho right is
adjudged.
Tako a rapid glanco at tho papers and history of tho litiga?
tion. Tho first paper was a petition; io that wo filed a return,
in which we rained questions of law and right, and asked thai
.hey should be adjudged beforo tho property should betaken
from us. Toe gravamen of our complaint is, that wo stand bolaro
this Court despoiled of our property, without any adjudication ol
our rights. Wo argued tho question beforo .1 inigo Platt, arid
that Ins Honor was of a similar opinion, wo thought inferrible
from those words of tho order: "Tue petitioners aro entitled
"to th? order prayed for, u ul ess good and sufficient ground is
"shown why tho prayer of thu poul ion should uni bo granted."
Subsequently, on tho 12th of December, wo pressed, with as
much earnestness as was consistent with respect, that those
words brought up tho whole qtnstiou of b'gal right, but wo
wore not so fortunate as to bo ablo to carry his Honor with us
in that view of tho case. To uno his own lauguago, "rogarding
myself as the only constituted judicial agent of tho Statt*,
under tho Act ISo. 42, 1 do not deem myself at liberty to enter?
tain and decido upon fljiy asserted rights or objections, oxoept
tho simple ono of 4hindrance.'" We pressed upon Judge Platt
ono of two things-either to dot ide thu question of ri^ht him?
self or to allow that question to be decided before the order foi
tho jury was made; and had his Honor said, in so many words,
I leavo the question of right to bo determinad by tue judgt
beforo whom the equity cause is tried, wo would not have beor
hero on this prohibition, lt was urged that Judge Flatt had
nothing to do with the question, but to act ministerially
that, however, was overruled. It was thon urged that it could
bo properly loft to the decision of tho Court of Equity ; bul
when tho case came beforo the Court of Equity, it was press?e
upon Judgo Boozer with great oncrgy that Judge Platt had
mied this point, and that ho had no right to consider it. Hut
Judgo Platt loll this question to Judge Boozer, tho counsel foi
the other side never could have made tho argument which the}
did, thai it was not what Judgo Platt said, but what ho did that
was binding ou Judge Boozer.
Tho Chief Justice-But as I understood the order of Judge
Willard, granting tho injunction, it only gave liberty to tin
defendants to move for a dissolution of tho injunction, oi
proof that they have duly acquired tho right to outer for tin
purpose of construction, upon thu promises claimed by tue com
plauiaats.
Mr. Conner-That was tho gist of our argument. Wo con
tended that 4lduly acquired" meant legally acquired, and tba
where the right was denied, it could not be legally acquire*
without a judgment determining the right., It was our anxioui
desire that between the two tribunals tho question of righ
should not be allowed to fall lo the ground.
Jua??o Willard-Judge Platt states in his decision, p. ?2, 44 tim
after petitioners shall have ascertained thu quantum of oom pen
sutton, and have ?laid or tendered it, they must necessarily g<
, back to tho Court of Equity, in order to got tho iujonetioi
removed; und belora they eau ask ?it? removal, they must.-Chou
not only that they have tendered the compensation, but tim
they have 'acquired the right.'(as provided in Judgo Willar.IV
injunction order.) Their sun in equity, now pouding on tin
equity wide of the Court of Common Picas of Richland County
embraces the whole issue as lo ' right,1 and every poiat mus
necessarily be adjudicated upon, when they apply for leave h
proceed with their road."
Air. Conner-Exactly. When we were beforo Judgo Platt
it wa^ said Judge Booaor will decido tho right, in thu equity
cause; but when wo got lo the equity cause, it was said V
Judgo Boozer, you cannot go behind the order for compensatio!
granted by Judge Plait, Hore is the cor ti ti ca lo that the com
pen sutton has boen paid, and by tho payment tho right is ac
quired.
Tho Chief Justice-Do L understand you to say that tin
argument was prossod that tho opinion of Judgo Platt ha<
decided thc question ol* right ?
Mr. Mommingor-That was ono of the propositions, bul th
counsel will bo fair enough to say thal there wore many otho
arguments used.
Mr. Conner-Yes, but that was the stress of tho wholo cast
and there is where th? cause eluded judicial decision. The cara
of Tantalus was on us. We had tho law all around us, but coal
not bring a principle to bear. Before Judge Platt ii was sai
Judgo Boozer will decido; before Judge Boozer ii was sai
Judgo Platt had already decided, aud between tim two stool
i he rigid wont down. May it pleaso the Conn, it was remark:
nly well done.
I reiterate that tho question of right never hus boen decide?
Anxious as we have been to test the question on its merits, no
yet have we had a fair hearing of I ho cause. Belbre one ir
hunul a Certain part of tho issue has bien presented; helor
another tribunal certain other issues have been urged, hut thor
has never yet hoon a tribunal before which all thu issues coull
receive a just hearing, until wo rem bed this Court.
The Chief Justice-lt' Ju.Ige Boozer took thu view that th
right had been established, it strikes mo lhat it was of a lum
character, and you could have appealed.
Mr. Connor-How could we? Ho simply dissolved tho in
junction without comment. There was no opinion given, mn
ill we know was that his Honor had filed an order to thu
effect.
Newall the proceeding?) in th.- case have been printed, am
are before this Conn, except that order of Judge Boozer, whic
is in manuscript, and where can you lay your finger upon a lin
in which this question of right hus been adjudged ?
Are we not entitled to liait? We ask no more. "Duly ac
quired," was the point upon which we laid ail tho stress p.> si
nie; but where is the judgment declaring that such righi ha
neon duly and legally acquired ? May it please your Honor?
it does not exist. The whole question of right has been iy
nored and left un adjudged.
But there are lads running with this pari p?SSU, which sho\
that the rigid was never duly acquired. Not only has iher
boen no adjudication of this matter, bul evory detail of pr<
cecding from the limo that order loft the office ol* Judge Plat
was utterly illegal and void; and illegality will set aside an
judgment in thu world.
Were thc jury rightly summoned ? Who summoned them
flie Chief Engineer of Hie Columbia and Augusta Kai I road Con
puny, Mr. James O. Moore, acting as tho Deputy .Sherill', sum
moued a part of them. The jury was drawn on tho 31s! i
December, to meet at Gl'tinileville on tho 2d of J annaly
No notice was given, and no letter written fivo minute
after the organization of the jury could have reached COU list
in Charleston in time for thom to attend. Wo asked for
delay from Saturday until .Monday, .in order to produc
witnesses. Time was refused. Again, the jury did not coi
??ist of freeholders as tho law requires. We allege that fou
of them, at least, were liable lo this objection, and produce th
affidavit of one that ho was not a freehohler. The inconnu
louey of a jury to assess damages renders tho verdie? null. Ne
a witness was sworn, and not a particle of testimony taken i
I thu, cause And yet tue language of the Act is ex pl toi t: "Th
..jury so impanelled, after being first sworn faithfully and in
"partially to determine the question of compensation submitte
44to them, shall proceed to inspect the premixes, and to tak
"testimony in reference to Ino construction of tho propose)
"highway, and the quantity of land which shall bo require
"'therefor; and irrespective ol'any benefit which tho owner ma
"derive from the proposed highway, and with respect alone t
" tho quantity and the Valuo ol ino lands which may no required.
Did thoy do this? Your Honors have boforo you an exemplifi?
cation of Lluir proceedings. Why, thoy wore sworn with a
grand jury oath, and thon absolutely rofusod to hoar testimony.
Judge Willard-Wero those facts brought to tho attention of j
Judge Boozer on tho motion to dissolve? *
Sr. Conner-Yes, sir; and wo were answered that the, w'oae
facts with which he had nothing to do. Ho was simply to dis?
solve tho injunction, and leave all other questions t" be deter?
mined by tho Court at Edgetield. The caso was like a will-o'
the-wisp; we never could get it in that shape in which the
question of right would bo entertuinod.
. 1 nood not say that nt Aiken wo argued tho question with a
good deal of feeling, which his HonorJudgo Platt understood
and appreciated whon ho said 'ho realized tor the first tinto the
motive ofthat earnestness. To uso his own language, and this
tho Court will bear in mind was on tho second hearing: "1 had
"not brought my own mind to thc conviction of thc possibility
"of their losing fit ty feet of I hoir right of way, and especially
" through their depot lot at Granitovillo, without being necessa?
rily hindered in their use and enjoyment, as provided against in
k< soclion eight ; I, therefore, felt it my duty to interrupt tho dis
" mission by declaring to petitioners thc determination my mind
" had come to, not to grant the order prayed for, so long as they
"insisted on fifty feet for their roadbed." His Honor was
shocked ut the injustice proposed, and hence ho promptly an?
nounced, on tho threshold of tho discussion, that unless that
claim wore abandoned, ho would refuse tho order prayed tor. ll
was such a hindrance as the law had forbidden. Tho Act of thc
Legislature never intended to grant such a right of way, or to
"justify such an extensivo encroachment on the vested rights ol
another company' as that claimed and prayed lorin this petition."
Upon that point there was clearly au expression of opinion.
"Soon thereafter," continuos his Honor, " thoy (the Columbia
and Augusta Railroad Company) presented their amended pe?
tition as it now appears, reducing their claim from titty feet to
ton feet, not only at Granitovillo, but through tho entire route."
Had tho attempt been made under that order ami opinion to
take moro than len feet, tho jury would have been so clearly
in oxceas of tho power delegated to them, that their judgment
must necessarily have fallen, becauso tho excoss could have
boon determined by a foot rule; and had Judge Platt's order
boon allowed to stand in tho shape in which it was, there would
have been no difficulty about it, because it would have been too
plain for doubt. There would have been no room for construc?
tion. But whon ton feet was stricken out, and there was sub?
stituted "a sufficient width of ground for tho construction of a
roadbed," tho chango was a material one, and our rights were
materially affoctOd, although it, doubtless, appeared to the
Judge that it was "a distinction without a difference." He
could not be supposed to bo so sensitively' acute on tho subject
as thosonrpcm whom tho change was to operate.
Judge Willard-If Judge Platt had retainod "ton feet" in
his order, would not that, order have been nugatory? Would
it not have been a judicial blunder which he had a right to
eliminate previous to the finding of a decree? I have always
exercised my right to eliminate rather than render a futile and
nugatory judgment, which would convert a legal proceeding
into a farce. I think that point is scarcely worth discussion.
Mr. Conner-Your Honor will soo tho object ol' my reference
to this matter directly. Judge Platt says, m his order : " First,
" I had become convinced "that at some jaunts iL (the claim
" for fifty feet) must work such hindrance as the law had tbr
" biddon ; and secondly, that according to my consideration of
"tho Act, although it would tolerate and permit the usual width
"for their right of way over lands generally, through which
" they required to pass, tho General Assembly never intended
"to give them such right of way when they begged ibo privi
" lego of lavingifcthoir roadbed along and over tho regular and
"usual right of way of anothor company, and that too for
" miles."
In other words, ton feet was tho precise limit fixed by the order,
and if it was intended to abandon that, we claim that other por?
tions of tho order should have been strichen out. It being very
ch ar that fifty feet could not be taken, the question would arise,
how much can be taken? And we should have pressed his Honor
to make the order in such terms as would indicate to the jury
what testimony was to be taken, and how to determine n'ie
j pi'oeiso amount of lund to bc condemned.
j Judge Willard-To my-mi nd the order is perfectly frttollitfibl*
I as being on a ten loot, b:*sis. It simply meant to extend tho]
I work from ten icot to a h?ts insufficient for n roadbed. '
j Mr. Connor-That would substituto an indefinite for a def}-)
nile limit. Your Honor will concede thal the higher thc
I embankment, the wider must be tho base. There would then
? be a shifting line, according as the grade was highor or lower,
j and neither party could know exactly where the Hue which
I divided them ran, but tho right in law must be so precisely
I adjudged that you can measure it with a foot rule, and say
; there terminates your line; but to determine tho question by the
term "sufficient for a roadbed," would give you a shifting base,
i with shitting rights, and no fixed limit of lino at all.
Judge Willard-Tho jury are supposed to have had the nec?
essary profiles?
Mr. Conner-They did not have a thing.
J migo Willard-At any rate the questionn as purely one in
at ttl) mei io.
Mr. Conner-Of course, but. it was necessary for tho jury to
determine by actual foot. It has occurred at that very place
that tho track has been changed throe or four times, and in
one instance moved half a mile. Unless the limit bo deter?
mined, therefore, In accordance with this doctrine, there may
he a shifting lino all the timo. ,
But hero comes nv tho direct question. If th ero is anything
clear, plain and - jgpq>hati<} it is the opinion of Judge Platt
that tho Legislating"never intended to give tho Columbia and
Augusta Railroad Company a right of way of fifty foot over
the land of anotflpr oompany, for it would work such a hin?
drance aa tho law had forbidden. Yet, tho jury under tho
j license granted lo them, or which they derived by the alteration
?of tho order from "ton feet" to "a sufficient width for tho
1 construction of the roadbed," have condemned sixty feel, along
three and three-fourths of a milo of tho road. Even then when
limiting them to ton feet, his Honor doubted whether the lim?
ited baso he allowed them would not operate as a hindrance,
i Ho says, in his orjfer: "Still I hail a lingering doubt in regard
j " to the hindrance question at two points; tho ono at 'Dead
"Fall/ and tho omer at Granitovillo depot lot. * * * *
? Inconvenience will bo occasioned, sotno injuries dono, ami
? "some money expenditures for tho repairs of such injuries, but
j "all those will he made good to them by tho compensation vor
j "diet of tho jury as required, and ordered in and by the Act."
Tho ChiefJttstioc-I see that Judge Platt, in his opini >n, says
I that before the injunction can bc removed, "they must show not
j only that they have tendered tho compensation, hut that they
. have acquire d the right."
j Mr. Connor--Tba! is just the point wo make. When the
I Other side weait bet?re Judge Boozer, they claimed that the right
fluid been acquired by the payment of the compensation. That
! was tho groat argument. But as I have heretofore stated, lhere
i> not a siug'4 paper ou which you can lay your finger in which
! there is a decision of this question of right. Judge Platt says
j that Judge Boozer may determino it, and Judge Boozer says
! that Judge Platt has determined it. I act upon it as determined,
j and accordingly dissolve tho injunction. We infer, howevei,
I that Judge Platt did not altogether leave the question to the
. Court of Equity, for ho observes on j>. 12 : " If tho right of both
I "parties shall not have boen adjudged in said equity suit, it will
J "bo within my discretion as a Judge to continue thu case from
! "term to term in order to prevent injustice, and to continuo it
"until tho question of right sha'l be decided."
j We ourselves were desirous lhat the matter should be decidod.
All wo asked Vus that it should be adjudged in such form as that
j the caso might bo brought before the supremo tribunal of thu
State, and bert be heard; but pressing the doctrine of right in
every possible kv ay wo could, we have never been able to reach
this point.
I There has no whero been a final order or decree, and it is only
j from a final Ora er, decree, or judgment that a writ of error will
lie. The only nj>j>eal wo could make under tho statute is an
appeal to his Honor sit Edgofield Courthouse, from tho quan?
tum of compensatio1, awarded. We cannot appeal from tho
order of J udgo Platt, at Chambers, because that is not final;
there may be another verdict hy another jury ; so that, until the
Ouse is closed there, no ground for appeal exists. In equity, tho
case is still ucder investigation ; tho answer of tho parties is not
yet put in, j
Now, the Hght of this Court to superviso the subordinate tri?
bunals of thu State will, I presume, not bo donied. That the
property of an individual cannot bo taken from him oxccjK, by
j sanction of tifo law, and that wherever a violation of the law is
I brought IO tl o attention of the Court the proper remedy shall
j bo ajqdied, i- equally clear.
How, thor aro your Honors to supervise tho subordinate tri?
bunals of thc Statu? By appeal? I have showu that the oaso
rfc
could not como up by appeal, and thal oven ii' it did BO il would
b?> ruin to ono side or the othor. Can it bo do: ? by maud inns?
ou;- i ?;t plaint is, not ihat Judge Phut did not ? < ireiso jurisdic?
tion, hut that he has uiisconceivod tho nature ami extent of his
jurisdiction ;* that the Supremo Court imperatively proscribes
?that thcro shall bc a preliminar) trial, yoi condemnation
ha? boon had without a preliminary trial. .
Judgo Wi Marti-lias any application been made to Judge
Platt Uffru tho views now alleged, to arrest, umbu* any equity
powers ne may possess, tho process of construction?
Mr. Connel-rho Judgo says that, he does not possess any
equity powers. e?^^^^??,
Judge Willard-Assuming that the caso was made beJore^^"^1
him, which you stato hero, and that this verdict, is void upon
grounds connected with tho action ol' tho petitioners, would
?.hat lodge any power in tho Circuit Judgo to enjoin tho actual
outrance tor construction ? If not, where would bethe remedy?
Provious to l ho statute of 18(18, the case of lilah o recognize?! a
j general equity power as residing in tho Circuit Judge. Ho
could determine tho questions of necessity invol ved in a case.
Now, wh?rj such jurisdiction existed, together with tho moans
and appliances necessary to enforce thc remedy, is there ground
to contend that under the Act of 18G8 such power has been
j entirely divested from {.ho Circuit Judire ?
Mr. Conner-Hero is tho trouble, may il plo;.-o your Honor.
After tho closo of tho inquisition of tho jury, wo would have
40110 before Judge Platt again rai equity ground, but we were
mot by this clause of bis opinion already delivered : "1 do not
-loci at liberty to entertain and adjudicate upon most of tho
"various questions raised by the South Carolina Railroad Com
-pany in opposition to thc petition, because 1 cannot consider
..them legitimately involved in tho case. I am not sitting as a
1 .' Court of Equity io hear and decide upon general matters of differ
I .'euee existing between these two companies, but as ibo judicial
..otiicor indicated hy tho General Assembly, and specially in
? st meted by said Act to aid iu enforcing its provisions; and,
.' therefore, do not consider myself as (it liberty to entertain and de?
icide upon any asserted right* or objections, except the -imple one of
". hindrance' particularly specified in tho Act.'
Judgo Willard-But this seems to have boca impressed on
Judgo Flatt's mimi, that he was not acting in ti ministerial hut
in a judicial capacity. Has ho, however, boca appealed to bv
tho parties beforo him, to determine that ho was divested of any
equity power growing out, of tho equity of tho transaction?
Mr. Conner-lt was pressed upon him just exactly in tho
words of Blake's case, that ho should cit'nor here and determino
this quostion of right, or consent that it should bo heard and
determined by tho Court of Equity. How could we go hack lo
the Judgo when ho said ho could not entertain these ques?
tions?
Judgo Willard-Could not tho Judgo set tho'verdict aside on
general grounds? Suppose the juries were openly bribed I
Mr. Conner-But that would only reach hali' >vny. lt would
only decide the correctness of the proceedings under his order.
What wo want this Court lo decide is the question who has th.
legal right, audit can only bi- done by this course. Appeal ami
mandamus will not reach it. Prohibition is tic- remedy pecu?
liarly appropriate to the case, because it brings tho whole quos?
tion before your Honors. And it is not prohibition, as applied
to Judge Platt; so taras bois concerned, hi narnu may bo
stricken out ; but as applied lo the proceedings um 1er tho order
of tho Court, until tho question of right is heard and de?
termined.
I We stand before this tribunal stripped of our property. This
j question of right bas been bandied fVoin one Conn to another,
I and decided hy neither; meanwhile our land iia been con?
demned, and tho Columbia and Augusta Railroad may be ;-on
j siructed beloro the vause can be heard upon its merits. Wc,
I therefore, ask xyav Honors to interpose tho powei of this 1 curt
for the corrodion of tho error. If a mistake ha been com?
mitted bx/i subordinate tribunal as to tho natur.; and extent
of its juwdiotion, it is tho prerogative of this tim highes) tribu?
nal o>'tho Stale to construe the statute, and your opinion will
he/iccforward bo binding upon thc action oi' thc subordinate
i Pour ts. Jt is the first time such a question has been presented,
'and your Honors aro lo establish tho precedent which is to
govern the Stale hereafter iu tho adjudication of tho many
j cases likely to arise under ibis Act.
i Can your Honors lay down the principio that without ex?
press forms in tho Act of iho-JiOgislnture. and wi bout judicial
authority a citizen-? au br deprived ?.i his property? A^ it
stands now. this ca?c i~?th.> y\.o.t. pm? ?m h au alllrma'.ivo
; proposition. Can tins Court, in administering the law, le; rc ti
j there? ls it not your cinty lo interpose your power for I ho cor
; ruction of such an error?
lt is ?mr conviction that you will do so, and Ihtis cstricat . tho
I subord?nalo tribunals from tho embarrassment in which they
j are placed hy tho absence of any well defined construction of
j the Act, which can secure concert of action.
In bringing ibo easo here, wo feel that wo have d-mo our
duty. Possibly some of I he papers might have been omitted,
but we preferred to lay every issue before your Honors to tho
end thai tho rights of ail parties now and hereafter may he ad?
judicated in this test question. If, after ?aim consideration, it.
shall bc held that wo have no right; thal thc Columbia and
Augusta Railroad Company have the power io take not only
our land hut whatever else it needs, mark ibo inuits of their
authority, and wo will strive to work within tho rule. But wo
ask that we may bo ix; longer made tho victims of violence ;
that, we may no longer have our property forced from us, and
that, whenever we come into a Court of law, wo may not en?
counter tho shadowy and illusory proceedings which have
characterized tho present cns??, but'enjoy the real, substantial
protection of rights, which it is tho duty, as it is tho privilege,
of Courts to grunt.
J
A am : M J: NT Off HON. A. fi. MAGUATU, OV COUNSEL ron THU SOUTH
CAROLINA RAILROAD COMPANY.
Jfay it please your JTonors : I supposed wo had passed that
stage of this cause, when anything that could bo saul would
excite surprise ; but great as hitherto has been my astonish?
ment, 1 confess my learned friend who has just resumed his
seat has .surpassed all that has gone before, in the boldness
of his proposition, that tho question of legal right in this mat
.ter waa already decided by Judge Plat" ; and thc* attempt to
I provo it by the order ofthat Judge, lt is dillicult to under?
stand upon what foundation such a proposition rests, ihr it
I involves tho utter negation, tho most positivo disregard of tho
; language which that magistrate has himself used ; and
which is, or af least ought by tho counsel on tho othor sido
to be held his justification in this matter. Will your Honors
for a moment entertain the idea that it was the intention
?d' Judge Platt to decide this question in fact, and yet not
seem to decide it in worths? Aro you prepared to believe for
one moment that when that representative of the law of South
Carolina was sitting in judgment on this case, be intended
to take away tho rights of the South Carolina Railroad,
and yet ?oem not to do so? that a judgment which, how?
ever 1 differed from it, 1 have been quite willing t?> concedo
seemed to be marked by honesty and frankness, should, when
interpreted by the other side, be transparent with hypocrisy ?
May it pleaso the Court, in his behalf I reject ibo proposition.
J migo Platt, so far from intending to decide tho question of
right, denied his power to doso. And if tho learned counsel
had been present at tho hearing of the case, he would have
known that, so tar from deciding anything but tho naked
quostion of hindrance, Judge Platt ordered portions <u' tho
atlidavits to bo stricken <?ut. which showell. <u- were intended
to show, that tho location of the Columbia und Augusta Rail?
road was on the most practicable line.
This eifert will servo to show your Honors how this ea USO
has been managed in the various stages through which it has
passed. Before his Honor Judge Pian, it was urged that ho
could give the order to tho jury on tho subject of compensation
without affecting the question ol right. Before Judge Boozer,
it was urged that Judge Flatt's order for tia? jury to assess
compensation had sei tied tho question ol right. And now it is
maintained that tho dissolution of the injune;ion on this ground
was proper, because Judge Platt had practically decided tho
question of legal right.
Let Judge Flatt speak for himself. On pago 6, of his opinion,
he says : 1 do not foci at liborly to entertain and adjudicate
upon most of tho various quostions raised by tim South Caro?
lina Railroad Company iu opposition to the petition, hocanso I
cannot consider them legitimately involved in ibo case.'1 In
what cuso? In that pennon before him. Not thal thc ques?
tions were not relevant to Iho issue, but because .Indee Platt,
sitting in the capacity of a magistrate under Act No. 42, did
not feel himself at liberty to adjud?calo upon them. But.what
did ho fool authorized to adjudicate upon ? " Therefore, ordered,
"that tho petition of tho Columbia and Augusta Railroad Com?
"puny has been presented in due lorin of law anti that respoh.?
