Atlantic Coast Line R. Co. v. Caughman

• Decision Date: 11 September 1911
• Citation: 72 S.E. 18,89 S.C. 472
• Parties: ATLANTIC COAST LINE R. CO. v. CAUGHMAN et al., Railroad Commission of South Carolina.
• Court: South Carolina Supreme Court

72 S.E. 18

89 S.C. 472

ATLANTIC COAST LINE R. CO. v. CAUGHMAN et al., Railroad Commission of South Carolina.

Supreme Court of South Carolina

September 11, 1911

"To be officially reported."

Petition by the Atlantic Coast Line Railroad Company for a writ of mandamus against B. L. Caughman and others, constituting the Railroad Commission of the State of South Carolina. Petition dismissed.

P. A Willcox and W. P. Pollock, for petitioner. Lyles & Lyles and Attorney General Lyon, for respondents.

HYDRICK J.

The petitioner prays for a writ of mandamus, directed to the Railroad Commission, requiring it to consider and approve its plans for a grade crossing of the tracks of the Seaboard Air Line Railway at Front street in the town of Cheraw. The efforts of the petitioner to make this crossing have resulted in considerable litigation. 88 S.C. 464, 477, 480, 71 S.E 34, 39, 40. For the sake of brevity, the two companies will be referred to as the "A. C. L." and the "S A. L."

Section 2179, Civ. Code 1902, reads: "No railroad shall be constructed to cross another railroad at the same level therewith, or across navigable or tide waters, without the consent, in writing, of the railroad commissioners, and in such manner as they shall prescribe. It shall be unlawful for any corporation proceeding to construct a branch or extension, or otherwise to take any proceedings contemplating a new crossing of one railroad with another, at the same level therewith, unless such crossing shall first have been approved, in writing, by the railroad commissioners, and the preliminary approval of any plan for such crossing shall always be made subject to revision by the commissioners. And the court of common pleas shall have full equity jurisdiction, on information filed by the Attorney General, in case of any violation of the provisions of this section."

Upon the petition of the A. C. L., after notice to the S. A. L., and a hearing had, on September 14, 1910, the commission gave its consent to the crossing in the following order, dated September 22, 1910: "After due consideration, the consent of this commission is hereby given to the Atlantic Coast Line Railroad Company to cross the main line track of the Seaboard Air Line Railway on Front street in the town of Cheraw, S. C., with its track at grade: Provided, that said crossing be protected with an interlocking switch, and crossing to be subject to the approval of the commission: And provided, further, that all expenses incurred by said crossing be paid by the Atlantic Coast Line Railroad Company." It appears from the record that, when this consent was given, none of the commissioners had personally examined the place of the proposed crossing. But thereafter, on December 28th, they held a meeting in Cheraw, in connection with this controversy, and while there the S. A. L. petitioned for a rehearing on the matter of the commission giving its consent to the crossing, which was refused in the following order: "(1) The petition of the Seaboard Air Line Company for a rehearing in this matter is dismissed. (2) The permission of the Atlantic Coast Line railroad company to cross track of the Seaboard Air Line Company on September 22, 1910, contemplated the furnishing to this commission of preliminary plans for an interlocking switch and crossing and the proper erection of the same, subject to the approval of this commission. (3) That all material necessary to the completion of the interlocking switch and crossing, as ordered, be assembled before any work on the same is begun, and that the work of erection be carried on to completion simultaneously. (4) That no engine or train be operated over said crossing until the same has been inspected by the official engineer of this commission and accepted by the commission." From this order, one of the commissioners dissented, on the ground that his examination of the place that day had satisfied him that the crossing at Front street was and always would be too dangerous to the traveling public, and would interfere too much with the use by the S. A. L. of its main line, which objections could be materially lessened by a grade crossing at Second street, one block from Front street, or by an overhead crossing at Front street. On December 30th the A. C. L. notified the commission that it had assembled at Cheraw all the materials necessary to the completion of the interlocking plant and crossing, as authorized by the order of September 22d, and requested that the commission send its engineer to supervise its immediate placing. Accordingly the commission sent an engineer, who made an examination of the materials assembled for the purpose of putting in the crossing, and a meeting of the commission was held on January 2d for the purpose of hearing his report, and also for the purpose of considering the plans and ascertaining whether they came up to the standard which should be required for safety. Both roads were notified of the meeting, and both were represented by their engineers and attorneys. In the meantime the personnel of the commission had been changed. The term of office of one of the commissioners who had favored giving consent to the crossing, had expired, and his successor had qualified and taken his place on the commission. This fact is mentioned merely to explain a change in the attitude of the commission with respect to the matter. At this hearing, on January 2d, a great deal of testimony was heard and discussion had as to whether the plans proposed made the crossing safe. The petitioner contended that the commission had given its consent to the crossing in its order of September 22d, and that that consent was final and irrevocable, and that all the commission could do at that time was to consider and approve or disapprove of the plans proposed by it. A majority of the commission, consisting of the new member and the member who dissented from the order of December 28th, overruled this contention, and held that the matter of consent was still open, and that the commission still had the right to inquire into the safety of the proposed crossing, and to withhold their consent, if they concluded that it would be unsafe. The new commissioner announced that he had not seen the place of the proposed crossing, and that, until he had, he could not intelligently decide whether the commission should consent to a grade crossing at that place, or whether the plans of the crossing proposed should be approved or disapproved. After having heard the evidence and arguments as to the sufficiency of the plans proposed, and after having inspected the place, he agreed with the commissioner who dissented from the order of December 28th, and they, being a majority of the commission, passed the following order, dated January 6, 1911: "(1) That this commission should not consent to the present plan of the crossing by the Atlantic Coast Line of the Seaboard Air Line on Front street, as the same is dangerous to the traveling public and detrimental to the public at large. (2) That this commission should consent to a crossing of the Seaboard Air Line railway by the Atlantic Coast Line railway at Second street, under such plans as this commission will approve, and in the event that the Seaboard Air Line carries out the offer hereinbefore stated. (3) That in the event the said Atlantic Coast Line Railroad Company shall not accept of said offer, but still insists on crossing the Seaboard Air Line at Front street, then that this commission shall not consent to any grade crossing, but require the said Atlantic Coast Line to cross the same on an overhead bridge, which the ground will admit of in a practical way, the plans of such overhead bridge to be approved by this commission." From this order the other commissioner dissented, sustaining the position taken by petitioner, as above stated. Thereafter, on May 24, 1911, the petitioner herein filed a petition with the commission, requesting the commission to consider and approve the plans proposed by it, taking the position that the commission had not at the hearing on January 2d, or at any time, considered and approved or disapproved its proposed plans for the crossing. The commission dismissed the petition, and this proceeding was commenced to compel the commission to consider and approve the plans proposed by petitioner.

The first contention of the petitioner is that under the Constitution and statute the commission has no power to deny one railroad the right...