51 S.E. 485 (S.C. 1905), Riley v. Charleston Union Station Co.

Citation:51 S.E. 485, 71 S.C. 457
Opinion Judge:JONES, J.
Attorney:Bryan & Bryan, for appellants. Jos. W. Barnwell, W. Huger Fitzsimons, and P. H. Gadsden, for respondent.
Case Date:April 18, 1905
Court:Supreme Court of South Carolina

Page 485

51 S.E. 485 (S.C. 1905)

71 S.C. 457

RILEY et al.



Supreme Court of South Carolina

April 18, 1905

Appeal from Common Pleas Circuit Court of Charleston County; Dantzler, Judge.

Action by Ann and John F. Riley against the Charleston Union Station Company. Judgment for defendant, and plaintiffs appeals. Affirmed.

Page 486

The following is the circuit decree:

"The defendant, Charleston Union Station Company, was incorporated by a special act of the General Assembly of this state, approved February 20, 1902 (23 St. at Large, pp. 1168-1171). By section 3 of that act, it is vested, among other powers, with the power 'to acquire by purchase, lease or assignment of lease, such real estate as may be necessary for the purposes of its incorporation, and it shall also have power to acquire for said purposes land or easements therein by condemnation, and shall be entitled to all the rights and privileges embraced in sections 1743 to 1755 of the Revised Statutes of South Carolina of 1893, and all acts amendatory thereof.' Thereafter the defendant proceeded by virtue of the powers thereby conferred to condemn certain property owned in fee by Mrs. Ann Riley, one of the plaintiffs herein, in which her coplaintiff, John F. Riley, was interested as lessee. Thereupon this action was commenced by the plaintiffs to enjoin such proceedings. A temporary order of injunction was, upon application of the plaintiffs, granted against the defendant, and a rule against it issued at the [71 S.C. 459] same time. Upon return to such rule the order of injunction was dissolved, and on appeal to the Supreme Court the order dissolving such injunction was reversed. 67 S.C. 84, 45 S.E. 149. Such other proceedings were had as resulted in an order of reference to G. H. Sass, Esq., one of the masters of Charleston county, to take testimony and report the same to this court; and, upon his report of the testimony taken, the case came on to be heard before me during the session of the court of common pleas for Charleston county. The testimony is voluminous, and the arguments of counsel, made from time to time, were correspondingly elaborate.

The plaintiffs assail the constitutionality of the act of incorporation on numerous and various grounds, to wit, 'in that the same is repugnant to and in violation of the fifth and fourteenth amendments to the Constitution of the United States, prohibiting the depriving of any person of his property without due process of law, taking of private property for public use without just compensation, and denying to any person the equal protection of the law,' and, continuing, further allege 'that the said act of incorporation *** is on its face, and under the facts *** alleged in this complaint, also unconstitutional, null, and void on each of the following grounds, to wit, in that the same is repugnant to and in violation of (a) article 1, § 5, of the Constitution of the state of South Carolina, in that it deprives plaintiffs of their property without due process of law, and denies to plaintiffs the equal protection of the laws; (b) article 1, § 17, of the Constitution of South Carolina, in that it takes private property for private use without just compensation being first made therefor; (c) article 3, § 17, of the Constitution of the state of South Carolina, in that it relates to more than one subject expressed in its title; (d) article 3, § 34, of the Constitution of the state of South Carolina, in that it being a case where, for the establishment and incorporation of union stations in the state of South Carolina, a general law can be made applicable, a special

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law, to wit, said act, has been enacted; (e) article 9, § 2, of the Constitution of the state of South Carolina, in that the same, not being a general law, but a special law, amends the existing charter of the railroad companies now entering Charleston, to wit, the Southern Railway Company and the Atlantic Coast Line Railroad Company, by conferring the right upon such railroad companies to guaranty the principal and interest of the bonds of said Charleston Union Station Company, and to guaranty the performance of any other contract whatsoever that such Union Station Company may make in regard to its corporate interest, and also in that it confers upon such railroad companies the right to subscribe to and hold stock in or bonds of the said Charleston Union Station Company; (f) article 9, § 20, of the Constitution of the state of South Carolina, providing that no right of way shall be appropriated to the use of any corporation until full compensation therefor shall first be made to the owner or secured by deposit of money, irrespective of any benefit from any improvement proposed by such corporation; (g) article 8, § 4, of the Constitution of South Carolina, in that the said act of incorporation, granting the right to lay and to operate railroad track or tracks along the streets of Charleston and on the said streets abutting the said premises of plaintiff, as claimed, set forth, and delineated in such plan attached to Exhibit A, filed in this court, was passed by the General Assembly without first obtaining the consent of the city council of Charleston, in control of the streets proposed to be occupied by defendant for such purpose.' These constitutional objections to and criticism of the act referred to will be considered in the order in which they have been made.

It is sufficient to say in relation to the fifth amendment of the Constitution of the United States that it has no application to the case at bar; the provisions of that amendment having been and being intended as limitations upon the powers of Congress, and as restraints upon the government of the United States, and not upon a state government. Withers v. Buckley et al., 20 How. 84, 15 L.Ed. 816.

Nor are the provisions of the fourteenth amendment of [71 S.C. 461] the Constitution of the United States violated. One of the attributes of state sovereignty is the right of eminent domain--the right of providing for the taking of private property for public uses. 'Each state, by virtue of its statehood, has the right to exercise the power of eminent domain. This is doubted nowhere. And the provisions of the federal Constitution do not relate to the eminent domain of the state.' Am. & Eng. Ency. Law (2d Ed.) 1052, citing in note Barron v. Baltimore, 7 Pet. 243, 8 L.Ed. 672. What constitutes a public use? 'The term ""public use" is flexible, and cannot be confined to public uses known at the time of framing the Constitution. All improvements that may be made, if useful to the public, may be encouraged by the exercise of eminent domain. Any use of anything which will satisfy a reasonable public demand for facilities of travel, for transmission of intelligence or commodities, would be public use.' Trenton, etc., Turnpike Co. v. American, etc., Commercial News Co., 43 N. J. Law, 384. 'And it is well established, upon the authorities, that private property may, under the power of eminent domain, be taken for a right of way, a passenger or freight depot, stockyards, and for engine houses and shops, in which to repair cars and locomotives, and the like.' Am. & Eng. Ency. Law, supra, 1074, 1075, and authorities cited in note. Union Depot Company v. Morton, 83 Mich. 265, 47 N.W. 228; New York, etc., v. Kip, 46 N.Y. 546, 7 Am. Rep. 385. It is well settled by the authorities cited, and under other authorities which could have been named, that the property sought to be condemned is for public use. And the act incorporating the defendant and empowering it to condemn property, and making such condemnation proceedings subject to the provisions of sections 1743-1755 of the Revised Statutes of 1893 (now sections 2187-2199 of volume 1, Code of Laws of 1902), amply provides for the protection of property owners and for compensation for property so condemned.

The contention that the act in question violates article 1, § 5, and article 1, § 17, of the Constitution of South Carolina, [71 S.C. 462] is disposed of by what has been hereinbefore stated. But it is averred that the act 'relates to more than one subject expressed in its title,' and is therefore repugnant to article 3, § 17, of the Constitution of this state. A comparison of this article and section with article 2, § 20, of the Constitution of 1868, will show that the language is identical. And our Supreme Court, in Connor v. Railway Company, 23 S. C., at pages 434, 435, construing section 20 of article 2 of the Constitution of 1868, said: 'Section 20, art. 2, of the Constitution, with which the act here in question is supposed to be inconsistent, reads as follows: "Every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title." As we have said in Charleston v. Oliver, 16 S.C. 56, upon the authority of Mr. Justice Cooley, "there has been, and ought to be, a general disposition to give a liberal construction to constitutional provisions like this now under consideration, rather than to embarrass legislation by an unnecessary strictness of construction." Hence, when a question under a clause of the Constitution is presented for adjudication, we are bound to make a liberal and enlarged view, and, if practicable, bring the legislation which is assailed as unconstitutional within the limits prescribed by the supreme law of the land. Now, looking at the act in question

in this spirit, we

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do not see how it conflicts with the provision of the Constitution which has been quoted. The subject to which the act relates is the Green Pond, Walterboro & Branchville Railway Co., and that subject is undoubtedly expressed in the title. Nor do we find that the act relates to any other subject. As is usual with acts bearing such titles, after constituting certain persons a...

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