Edwards v. Southern Ry.

• Decision Date: 14 May 1903
• Citation: 44 S.E. 748,66 S.C. 277
• Parties: EDWARDS v. SOUTHERN RY.
• Court: South Carolina Supreme Court

44 S.E. 748

66 S.C. 277

EDWARDS v. SOUTHERN RY.

Supreme Court of South Carolina

May 14, 1903

Appeal from Common Pleas Circuit Court of Lexington County Townsend, Judge.

Action by Isaac Edwards against the Southern Railway. From order dismissing complaint on demurrer, plaintiff appeals. Reversed.

E. F Strother and R. W. Shand, for appellant. B. L. Abney, for respondent.

GARY A. J.

The first question to be considered is whether the act of 1894 hereinafter mentioned, was repealed by the Constitution of 1895. The act of 1894 provides that "no corporation, individual or association, or either or both, shall purchase or lease any railroad lying in whole or in part within this state, or any interest therein, or shall operate the same, where such purchaser or lessee already owns, operates or is interested in a line or lines of railroad which, either alone or in conjunction with other connecting railroads lying within or without this state, can compete between any two or more points within this state, and any such purchase, lease or acquisition is hereby declared to be null and void." 21 St. at Large, p. 812, § 2.

Section 8, art. 9, of the Constitution, is as follows:

"Sec. 8. The General Assembly shall not grant to any foreign corporation or association a license to build, operate or lease any railroad in this state; but in all cases where a railroad is to be built or operated, or is now being operated, in this state, and the same shall be partly in this state and partly in another state, or in other states, the owners or projectors thereof shall first become incorporated under the laws of this state; nor shall any foreign corporation or association lease or operate any railroad in this state, or purchase the same or any interest therein. Consolidation of any railroad lines and corporations in this state with others shall be allowed only where the consolidated company shall become a domestic corporation of this state. No general or special law shall ever be passed for the benefit of any foreign corporation operating a railroad under an existing license of this state or under any existing lease, and no grant of any right or privilege and no exemption from any burden shall be made to any such foreign corporation, except upon the condition that the owners or stockholders thereof shall first organize a corporation in this state under the laws thereof, and shall thereafter operate and manage the same and the business thereof under said domestic charter."

The act of 1897 is as follows:

"Section 1. That any railroad company owning, leasing or operating competing railroad lines within this state, in violation of law, shall be subject to a penalty of one hundred dollars for every day that such competing lines are owned, leased or operated, such penalty to be recovered in any court of competent jurisdiction in any county through which either of such competing lines may pass, by any citizen thereof who may sue for the same, one-half of such penalty to go to the party suing therefor and the other half to the state: provided, that the provisions of this act shall be without prejudice to any remedy which the state may be entitled to in its own behalf.

Sec. 2. That all acts and parts of acts inconsistent with this act are hereby repealed." 22 St. at Large, p. 492.

Sections 10 and 11, article 17, of the Constitution, contain the following provisions:

"Sec. 10. All laws now in force in this state and not repugnant to this Constitution shall remain and be enforced until altered or repealed by the General Assembly, or shall expire by their own limitations.

Sec. 11. That no inconvenience may arise from the change in the Constitution of this state, and

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