State v. Port Royal & A. Ry. Co.

• Decision Date: 25 November 1895
• Docket Number: 3,685.
• Citation: 23 S.E. 380,45 S.C. 464
• Parties: STATE v. PORT ROYAL & A. RY. CO. et al. KING et al. v. SAME.
• Court: South Carolina Supreme Court

23 S.E. 380

45 S.C. 464

STATE v. PORT ROYAL & A. RY. CO. et al.

KING et al. v. SAME.

No. 3,685.

Supreme Court of South Carolina

November 25, 1895

Appeal from common pleas circuit court of Beaufort county; Aldrich Judge.

Actions by the state against the Port Royal & Augusta Railway Company and by Henry B. King and others against the Port Royal & Augusta Railway Company and others. From orders authorizing the issuance of receiver's certificates, the proceeds of which were to be used for the maintenance of the road defendants appeal. Reversed.

Mitchell & Smith, for appellants.

W. J Verdier and Alex. C. King, for appellees.

Wm. A. Barber, Atty. Gen., for the State.

McIVER C.J.

This, which is designated as the "second appeal" in the cases above stated, involves only the question of the validity of five orders, made by his honor Judge Aldrich on the 2d June, 1893, and filed on the 6th June, 1893, authorizing certain acts to be done, and certain expenditures to be made, by John H. Averill, receiver of the Port Royal & Augusta Railway Company. It appears from the record that these orders were based upon the report of the receiver as to the condition and needs of the railway, without testimony other than said report, without reference to the master for inquiry, and without notice to appellants, who were parties to the actions. This validity is assailed substantially upon two grounds: (1) That the cases had been duly removed to the United States circuit court for the district of South Carolina, and the state court had thereby lost jurisdiction; (2) that the orders were made without notice to appellants, who had no opportunity to examine the testimony in support thereof, or to put in testimony in rebuttal, or to be heard, before the orders were granted.

Inasmuch as the first ground has been disposed of in an opinion filed in these cases on the 23d instant, it is unnecessary to consider it here. 23 S.E. 363. The respondents, however, make the preliminary question that these orders are not appealable, and we must first dispose of that question.

It will be seen from the cases hereinafter cited that this court has, in several cases, considered appeals from orders of a similar character, and, although the question here presented has not been distinctly made in any case, so far as we are informed, yet the fact that such appeals have been considered without exception affords some ground, at least, for regarding the orders as appealable; but, as that may not be sufficient, we will consider the question as if it were entirely an open one. There can be no doubt that these orders, unappealed from, would be final and conclusive of the necessity for, and propriety of, the expenditures authorized by them when the receiver comes to account for his receipts and disbursements, for it can scarcely be supposed that the court would then permit an expenditure authorized by its order to be questioned on such final accounting. We think, therefore, that these orders are now appealable.

Coming then, to the second question, as above stated, in this appeal, it would seem to be plain, upon well-settled and fundamental principles, that no order or judgment affecting the rights of a party to the cause should be made or rendered without notice to the party whose rights are to be thus affected; for otherwise a party would be practically deprived of his property without "the judgment of his peers or the law of the land," in violation of section 14, art. 1, of the constitution, which declares that "no person shall be *** despoiled or disposed of his property *** but by the judgment of his peers or the law of the land"; for one of the elements of the often-quoted definition of the phrase "the law of the land," given by Mr. Webster in his great argument in the Dartmouth College Case, is: "A law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial." In Windsor v. McVeigh, 93 U.S. 274, which was a case in which the validity of certain confiscation proceedings, by which it was claimed that certain property had been condemned and sold under the act of congress of July 17, 1862, was brought in question, and held to be invalid for want of notice to the owner of the property, with an opportunity to be heard, Mr. Justice Field, in delivering the opinion of the court, used the following language, which seems appropriate to the present inquiry: "Wherever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal." But we are not without express authority in our own state upon the point, to be found in Hubbard v. Camperdown Mills, 25 S.C. 496, 1 S.E. 5, which was very much like the present case, so far, at least, as one of the orders appealed from is concerned, --that is, the order fixing the compensation of the receiver. In that case the circuit judge had granted an order, which, among other things, directed the master to inquire and report what would be a suitable fee for the counsel of the receiver. This order was made ex parte, and the reference was held without notice to appellants, and without an...