Southern Ry. Co. v. South Carolina State Highway Dept.

• Decision Date: 03 August 1960
• Docket Number: No. 17692,17692
• Court: South Carolina Supreme Court
• Parties: SOUTHERN RAILWAY COMPANY, Petitioner-Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, C. R. McMillian, as Chief Highway Commissioner, and S. R. Pearman, as State Highway Engineer, Respondents-Appellants.

Page 685

115 S.E.2d 685

237 S.C. 75

SOUTHERN RAILWAY COMPANY, Petitioner-Respondent, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, C. R. McMillian, as Chief Highway Commissioner, and S. R. Pearman, as State Highway Engineer, Respondents-Appellants.

No. 17692.

Supreme Court of South Carolina.

Aug. 3, 1960.

Daniel R. McLeod, Atty. Gen., Fulmer & Barnes, Columbia, for appellants.

Frank G. Tompkins, Jr., Robert J. Thomas, Columbia, for respondent.

PER CURIAM.

This action was commenced by Southern Railway Company, the petitioner herein, in the original jurisdiction of this Court, pursuant to Section 58-835 of the 1952 Code of Laws of South Carolina. The action is in the nature of an appeal from a decision of the South Carolina State Highway Department, appellant herein, determining that the petitioner should contribute to the cost of the reconstruction of a highway bridge near the corporate limits of the Town of York, South Carolina. The State Highway Department purported to act pursuant to Sections 58-831 et seq., of the 1952 Code of Laws, in assessing forty per cent of the cost of reconstructing such bridge, which spanned a cut in which lay the tracks of the Railway Company.

This cause was referred to Honorable Edward W. Mullins, as Special Referee, for the purpose of taking the testimony and reporting to this Court his findings of fact and conclusions of law.

It appears from the record that the Special Referee convened a hearing for the purpose of taking the testimony. At such hearing, the parties submitted a stipulation of the facts. The Special Referee, in a report dated February 27, 1960, recommended that the relief sought by the Southern Railway Company be granted. The State Highway Department filed timely exceptions to such report, and sustaining grounds were also submitted by the Southern Railway Company.

The case came on to be heard before this Court upon the issues made by the exceptions filed by the South Carolina State Highway Department.

The report of the Special Referee has been carefully considered in the light of the record and the exceptions. We have concluded that the issues presented by the exceptions were correctly decided by the said Special Referee. The exceptions are overruled and the report of the Special Referee is adopted as the judgment of this Court. Let it be reported.

The report of Special Referee Mullins follows:

This action was commenced by Southern Railway Company in the Supreme Court in its original jurisdiction pursuant to Section 58-835, Code of Laws of South Carolina, 1952, and is in nature an appeal from a decision of the State Highway Department determining that Southern Railway Company should contribute to the cost of reconstructing a highway bridge in York County. The matter was referred to me by an Order of the Chief Justice dated June 12, 1957, for the purpose of taking the testimony and reporting to the Court my findings of fact and conclusions of law. It subsequent developed that the parties were able to stipulate the facts, and they are not now in dispute.

To understand the issues in the case, it is necessary to review briefly the history and nature of the bridge in question. In 1927 and 1928, the Highway Department relocated U. S. Highway No. 321 to straighten an undesirable curve and eliminate the necessity of crossing at grade a track of the Carolina and Northwestern Railway Company at two points. The relocated highway crossed a cut in which lay a track of the Southern Railway Company, and the original bridge (the predecessor of the bridge in question) was built to span that cut.

On August 5, 1955, the Highway Department served notice on Southern Railway Company that it had determined that it had become necessary to reconstruct the said bridge. The notice was stated to be given pursuant to Sections 58-831 et seq., Code of Laws of South Carolina, 1952. It further recited:

'The necessity for the reconstruction of the existing structure arises by reason of the fact that the said existing structure is inadequate for traffic on Highway No. 321. The existing structure, built in 1928, is constructed of creosoted timbers and structural steel and has a twenty-two foot roadway. Timbers of the said bridge have deteriorated, and present traffic needs require a minimum roadway of thirty feet. Existing structure was designed to carry a load of H10, and deterioration has lowered this capacity to H8, and present needs require a structure with a capacity of H20-S16. Vehicular traffic over said bridge has increased since its construction. A twenty-four hour count by this Department in 1954 showed passage of 1,664 vehicles and in 1941, a passage of 850 vehicles.'

On August 19, 1955, Southern Railway Company by letter acknowledged receipt of said notice, but said:

'Southern Railway Company does not feel obligated to participate in this project as it did not contribute to the original construction or maintenance of the bridge and has derived no benefits therefrom, nor would Southern Railway Company derive any benefits from the rebuilding of this bridge.'

On August 23, 1955, the Highway Department served its second notice on Southern Railway Company, reciting:

'Please Take Notice that the South Carolina State Highway Department has determined the cost of effecting the reconstruction of a grade separation structure hereinafter more particularly described, in the amount of Forty-six Thousand ($46,000.00) Dollars, and that, pursuant to the provisions of Section 58-833, 1952 Code of Laws of South Carolina, the portion of such cost to be borne by The South Railway Company is the sum of 40% thereof, to wit Eighteen Thousand, Four Hundred ($18,400.00) Dollars.'

It is from the latter notice that Southern Railway Company perfected this appeal.

It is stipulated by the parties:

'1. That the track of the Southern Railway Company at the point of the York bridge and for a distance of at least 1,000 feet on each side of the bridge, has been, since 1916, when the railroad was originally constructed, in a cut of a depth of approximately 20 feet and of a width necessary to accommodate the railroad track.

'2. That, at the point in question, the track of the Southern Railway Company never crossed any higher at grade and that, because of the physical characteristics of the situs in question, a grade crossing would not be feasible or practical.

'* * * The relocation of the highway in 1927-1928 did not eliminate any Southern Railway Company grade crossings in the immediate vicinity.'

I have not recited all of the facts that were stipulated but only those that are material to the issues involved.

To place the issues in proper perspective, reference should be made to the fundamental principle that the Highway Department is a statutory creature of the State (Section 33-21, Code of Laws of South Carolina, 1952) deriving its powers from the Legislature. It has no inherent power. Whatever power it attempts to exercise must be found in some Act. Martin v. Saye, 147 S.C. 433, 145 S.E. 186. This principle seems to have been properly recognized by the Highway Department throughout these proceedings as it has repeatedly made reference to Sections 58-831 et seq., Code of Laws of South Carolina, 1952, as the source of its asserted authority.

The statutory source of power on which the Highway Department relies is Article 11 of Chapter 10, Title 58, Code of Laws of South Carolina, 1952, entitled 'Alteration of Grade Separation Structures.' Section 58-833 provides a scheme for the apportionment of costs between the Highway Department and the affected railroad of reconstructing, changing or altering a 'grade separation structure and its approaches.' Section 58-834 reads:

'This article shall apply to all cases where grade separation structures on State highway across railroads are, in the judgment of the State Highway Department, for any reason inadequate for the traffic on the highway, but shall not apply to grade crossings. That article shall not be construed as relieving any railway company from any obligation or duty now borne by or resting upon such company in connection with any grade separation structure.'

Is the bridge in question a 'grade separation structure'? The question has been argued fully by both sides, orally and by brief. After careful study and reflection, I am persuaded that this bridge is not such a structure. The term 'grade separation' was presumably used advisedly by the Legislature to describe a structure having a particular function; that is, to separate the level of a road from the level of a railroad track at a point where such road and track cross. This was not the function of the bridge in question. There are many reasons why a bridge may be built, and one such purpose might be in some instances the elimination or prevention of a highway-railroad grade crossing. This was not the purpose here. The York bridge was built to span a cut and was no different from a bridge built to span any type of depressed area. True, there was a railroad track in the cut, but it was the latter and not the former that created a need for the bridge.

The foregoing conclusion is strengthened when consideration is had of the principle that these statutes, being in derogation of the common law must be strictly construed. Powell v. Greenwood County, 189 S.C. 463, 1 S.E.2d 624; Purdy v. Moise, 223 S.C. 298, 75 S.E.2d 605.

It is, of course, proper in considering the meaning of Article 11 to consider also other statutory provisions relating to the same subject-matter. Dantzler v. Calison, 230 S.C. 75, 94 S.E.2d 177, appeal dismissed 352 U.S. 939, 77 S.Ct. 263, 1 L.Ed.2d 235; Abell v. Bell, 229 S.C. 1, 91 S.E.2d 548; Edwards v. State Educational Finance Commission, 222 S.C. 433, 73 S.E.2d 456; Arkwright Mills v. Murph, 219 S.C 438, 65 S.E.2d 665; Spartanburg County v. Arthur, 180 S.C. 81, 185 S.E. 486; Temple v. McKay, 172 S.C. 305, 174 S.E. 23; Fishburne v. Fishburne, 171 S.C. 408, 172 S.E....