Ex Parte Bacot.

• Decision Date: 19 April 1892
• Citation: 15 S.E. 204,36 S.C. 125
• Parties: Ex parte Bacot.
• Court: South Carolina Supreme Court

15 S.E. 204

36 S.C. 125

Ex parte Bacot.

Supreme Court of South Carolina.

April 19, 1892.

Constitutional Law — Condemning Property for Private Use—Title of Act—Sufficiency —Railroad Crossing.

1. Act Dec. 23, 1886, § 15, which provides that corporations organized under that act, for mining or manufacturing purposes, shall nave power to construct a railroad for their own use, to and from their works, or to connect with some navigable stream, or with some existing railroad, not to exceed 10 miles in length, and shall have the right to condemn the right of way in lands over which the road may pass on payment of compensation therefor, such compensation to be determined in the manner now provided by law for railroad corporations, is not in violation of Const, art. 1, § 23, which declares that private property shall not be taken for public or private use without just compensation therefor, provided that laws may be made securing to persons or corporations the right of way over the lands of either persons or corporations; a just compensation being first made to the owner.

2. The act was entitled "An act to provide for the promotion of certain corporations under general laws, " and authorized corporations created thereunder, inter alia, to construct a railroad for its use. Held, that since, in its nature, various matters were to be considered under it, the act is not objectionable as embracing subjects not expressed in the title.

3. Since a mining or manufacturing corporation has power to construct a railroad for its use, the general laws governing crossings apply to such road.

Original application of Daniel H. Bacot for a writ of certiorari to the clerk of the court of common pleas of Colleton county. Denied.

McCrady, Sons & Bacot, for petitioner. Howell, Murphy & Farrow and John D. Edwards, for respondent.

McGowan, J. This is an application to this court, in its original jurisdiction, for a writ of certiorari. The facts are somewhat complicated, and it will be necessary to make a statement, as condensed as possible, to be intelligible.

The petition of Daniel H. Bacot, among other things, states that on or about August 20, 1890, a paper was served upon him, signed by Howell, Murphy & Farrow, and Edwards, attorneys of the Horseshoe Mining Company, purporting to be a notice that said company required a right of way over a tract of land known as the "William Lowndes Tract, " alleged to belong to the petitioner, (the same paper being served also upon others, as to other tracts of land.) That the petitioner served upon said attorneys a return in writing, showing that he was not the sole owner of the said tract; that although the legal title was in himself alone, yet the real owners thereof, besides himself, were his mother, Julia A. Bacot, and his brothers and sisters, (naming them,) reserving to himself any objection to said notice, and signifying his refusal of consent to enter upon said lands without previous compensation. Other landowners also signified their refusal to consent to the entry upon their lands without previous compensation. That thereupon the Horseshoe Mining Company applied by ex parte petition to his honor. Judge Ai„-drich, for an order to impanel a jury to assess the damages or compensation for the right of way required, which order was granted, directed to the clerk of Colleton county, commanding him to impanel a jury for the purpose aforesaid; and the said clerk, in obedience to said order, gave notice to the parties in interest of the time and place appointed for impaneling the jury, etc. Before the day fixed for drawing a jury, upon the suggestion of the petitioner, a rule was issued, requiring the said company to show cause why a writ of prohibition should not issue to prohibit further proceedings in the matter of the right of way, which, after return and argument, Judge Aldrich refused. From this order of refusal, notice of appeal was given; but, as we understand it, upon some agreement and by consent of parties, the appeal was "withdrawn without prejudice, " and this proceeding for a writ of certiorari was instituted.

The petitioner insists that in a proceeding to acquire such right of way as the said company is said to require an appeal is allowed on the question of compensation only, and that the tribunal constituted by the general assembly for the subject-matter of conducting proceedings to acquire rights of way by railroad corporations, though having general jurisdiction of the subject, has yet not acquired jurisdiction in the proceedings sought to be instituted on behalf of the said Horseshoe Mining Company, "and said proceeding is an unwarranted invasion of the rights of your petitioner, and the other owners of said lands, and is illegal and void, andalso irregular, on the following grounds, and for the following reasons: First. Because the act of December 23, 1886, or rather the fifteenth section hereof, is unconstitutional, in that it is repugnant to or in violation of article 1, § 23, of the constitution of the state, and the underlying and immutable principles of so-called 'eminent domain;' the road proposed to be constructed and operated by the said Horseshoe Mining Company over the aforementioned tract of land being for its own private use and purposes, and other than a right of way by necessity, and not for a public or even quasi public purpose or use. Second. Because the said proposed road will cross a public road or highway without authority so to do, and to the serious obstruction thereof to your petitioner and others aforesaid. Third. Because the said company is not authorized by its charter or other wise to construct a railway, canal, turnpike, or other public highway in the state. Fourth. Because (a) the said company has given no notice as required by section 1550 of the General Statutes; (b) that said company did not apply by petition to the judge, etc., as required by section 1551, Gen. St.; (c) the petition by which application was made to Judge Aldrich did not set forth a description of the lands, in that it did not state where they were situated, nor did it set forth the names of the owners of the said William Lowndes tract, as required by section 1551, Gen. St.; (d) the application by petition to Judge Aldhich, and his order thereon, of September-26, 1890, were ex parte, and without any notice whatever thereof to the owners of said tracts of land, or any of them, and therefore in violation of the said section 1551, and of article 1, § 14, of the constitution of the state; (e) and the clerk of the court of common pleas of the county of Colleton did not give notice of the order of Judge Aldrich of September 24, 1890, to your petitioner, or to any of the other owners of said tracts, as required by said section 1551; (f) it is not shown that the proposed road is to connect with some navigable stream, or with some existing railroad, turnpike, or other public highway, and does not exceed ten (10) miles in length. Fifth. Because the said proceeding is otherwise irregular, in that (a) the same proceeding for such purpose cannot be had against separate and distinct owners of separate and distinct tracts of laud jointly; and (b) such a proceeding should be against all the owners of a tract of land through which right of way is acquired, and cannot be against one of them only for all." Wherefore the petitioner prayed to be relieved, and that said proceedings might be removed to this court, and that a writ of certiorari be directed to the clerk of the said court of common pleas of the county of Colleton, commanding him, without delay, to certify the said proceedings and record, together with all papers thereto appertaining, that such further proceedings may be had as to this honorable court shall seem meet, etc.

The Horseshoe Mining Company, having been served with a rule to show cause why the writ should not issue, answered among other things, as follows: It is a mining company incorporated under and in pursuance of the law of the state, contained in an act "to provide for the formation of certain corporations under general laws, " which said act authorizes the company to construct and operate a railroad for its own use and purposes, to and from its works, with some existing railroad; and for that purpose the company is authorized and empowered to condemn for the use of such road the right of way in lands over which the road may pass, on payment to the owner thereof of "just compensation;" such compensation to be determined in the manner provided bylaw for railroad corporations. That finding that a railroad was necessary for the purpose of conducting its business, through its attorneys thereunto duly authorized, it caused the notice required by law to be served on the petitioner and others, requiring a right of way over his and their lands, for the purpose of constructing a railroad "from its works to Ashepoo station, and there connecting with an existing railroad, to wit, the Charleston & Savannah Railway; said railroad to be 5 1/2 miles in length. That about 2 1/2 miles bad been previously constructed, and a temporary landing secured, on leased premises on the Ashepoo river, but the short line was and is wholly inadequate to the business necessities of the company. That the company has erected expensive works, putting in costly machinery, and has expended large sums of money in the development and prosecution of its business, employing many men in its mining operations. The return then goes on to set out in a formal way matters referred to in the petition, as to the notice to the petitioner and others that certain lands were "required" for the purpose aforesaid, their refusal to give consent without previous compensation, and making full exhibits of said answers.; and after stating the proceedings by petition to have a jury impaneled to assess the damages, and the application of the petitioner for a writ of prohibition, which was refused, the respondent company prays that the...