The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-05-20

you shall have tie exclusive benefit OF al the trade
and intercourse between them for thirty-si1 years
ls your reward.
road Company VIC come to that Of the Louisville
and Cincinnati Railroad Company. The charter IL
not repugnant to that of the Canal and Railroad
Company. 1t does not contemplate road between
Charleston and Columbia. No authority to con-
struct such road is given. It does not provide 1or
the construction of railroad from Charleston to
Cincinnati The first oct upon tue subject (loSo)
authorizes s'survey of the country between the
Ohio River, near Cincinnai, and The rdttroaa pro,
jected by tho South Carolina Canal and Railroad
Company" The act of incorporation says-"that
for the purpose of establsting," not for the pur-
pose Of constructing, but for the purpose OF "es-
tablishing O communication by railroad" between
the cities of Cincinnati and Charleston, &c.
The exclusive right to construct branch from
the main stem to Columbia had already been given
to the Canal and Railroad Company for thirty-six
years. :.
inmaterial. In the language OF the Chief Justice
in the Charles River Bridge case, "The existence
of the power does not, and cannot, depend upon
the circumstance of its having been exercised or
not" III Peters 547.)
Any road by the Louisville and Cincinnati Com
pany which would have connected Columbia and
Hamburg, or Columbia and Charleston, would have
been in conflict with chartered rights already e1-
listing. An intention to violate chartered rights
cannot be predicated Of tho Legislature. There
ia no warrant for it. The Legislation is consist
ent. The privileges and powers OF each company
were consistent with the fullest exercise OF the
powers and privileges OF the other.
No terminus at either end is indicated. The
new company was to avail itself of existing roads
as far as practicable.
To commence where the projected" road Of the
Canal and Railroad Company terminated. 10 be
in continuation OF and not in conflict nj WIN IL.
The Louisville and Cincinnati Railroad Company
could bu Id road Through the States OF Ken.
tucky, Tennessee North and South Carolina.
lSee Its.
But they could not pass beyond Columbia: Sup,
pose that on reaching Columbia the louisvlile ano
their road, and tap the Hamburg road at Branch
yilie What would have been the response OF the
Canal and Raroad Company?
The exclusive right to build branch from our
road to Columbia is vested in US. The exclusive
right to connect Columbia and Hamburg and Col
un1bia and Charleston is vested i'll US.
Our charter expressly gives us the right.
Your charter gives you no such right.
Your chartered rights commence where ours
end. -,
rights of both are preserved intact.
The rule that acts in part naaterid arc to be so
construed that efficacy shall be given to both, set
ties the question.
In December, 1888, the State Incorporated an
other company, THE Columbia Railroad a. CSmpat @
Carolina Canal and Railroad Company for trans
tor of their right to construct railroad between
Columbia and some point on their railroad near
Branchville," and on such transfer being etecteo,
'all the rights, privileges and immunitles and
corporate powers vested in the South Carolina Ca
unl and Railroad Company, at the time OF such
transfer shall, 80 far as repects the railroad be,
tween Columbia and the point aforesaid, be vested
in the Columbia Railroad Company subject to the
terms of such transfer" [S Statutes, page 382.l
If confirmation were needed, here IL the leGlsa.
tive admission OF the exclusive right OF the Cana
and Railroad Company to construct the road from Q
Brnnchville to Columbia, and the inability of the
State to grant such right to another.
That the Louisville and Cincinnati Company nae
no right, under their charter, to construct road
from Branchville to Columbia is clear.
That they did build the road s also clear.
That tho company was too prudent and saga
cious to have expended money on an illegal struc'
Whence, then, did they get the right to buili
tho road?
They got it whence alone they could get it
from the charter Of the Canal and Railroad Com
pany.
By strictly inductive process we reach this con
clusion, and demonstrate it from the statutes, ant
the statutes aione. They exclude any other con
clusion.
We might will rest the case here, But tho facts
show the logical process to be accurate.
in 1884 survey OF the ronte from Branchviue tt
Columbia was made by committee OF tho citizens
of Columbia, and survey was also made oy thu
Canal and Railroad Company, with ths view
constructing tho branch authorized by their char
ter.
Here then was the projected railroad referred
10 in the act of 1895.
In 1885 the Louisville and Cincinnati road wa!
chartered.
In 1886 tho commissioners appointed by thu
Log islature made their report, and that document
shows conclusively that they regarded Colum6i!
as the terminus of the road. [See pages and s..
the Canal and Railroad Company was discussed,
In October, 1887, tho first annual report OF the
President and Directors Yas made, and resolutions
establishing Columbia as the terminus Of t9e roae
and directing negotiations to DO opened for tht
adopted by the stockholders. The committee 10
which Chancellor Harper was chairman) who re-
ported the resolutions in their report concede the
Exclusive Legal right to build o road from Charles
ton to Columbia 70 be in the Canal and Railroad
Company.
was made. In it the President announced that the
purchase Of the Canal and Railroad Company, will
all its privileges had been effected, and that 'snce
the purchase the road from Branchville to Coum
bia had been .located." Throughout the report
the rosa from Branohvilie to Columbia is regarded
as branch aud thef'main trunk Of the Louis
vile and Cincinnati Road Gs commencing at Co
lunbia. and to be extended Themes through the
centre Of the State on to the Butt Mountain Gap.
Here, then, independent Of all reasoning, is the
fact that until the Louisville and Cincinnati Com
pany obtained the charter. privileges Of the Cana
and Railroad Company they never even iocatft
their road from BrnnohyiIle. Every foot of thai
road IVES built under the charter privileges OF the
Canal and Railroad Company.
Until 1S43 the two companies existed as distlnc
corporations.
In 1913 the act of union was passed.
It was not new incorporation as in the act O.
1872, repealed by the act Of 1843.
The South Carolina Railroad Company, aB such
meyer was incorporated:
The name Of the Louisville and Cincinnati Rail
road was changed to that Of the South Carolint
Railroad Company, and the Canal and RAILROAD
Company merged in it.
By virtue of that, the Canal and Railroad Com
pany was extinguished- it's identity and cor
porate existence, and was absorbed in the Soutl
Carolina Railroad Company, became part and par
ter of the South Carolina Railroad Company.
In 1912 Colonel Elmore moved that On applica
ton be made to the Legislature for IAN amalga
nation" Of the two charters, Tho next day he
moved to expunse tho resolution, and subsequent
ly MIR. Mayzck moved that an application be made
for "merger" as it now appears in the act Of '43
The word merger was designedly used. It ftl!
expresses what was the intent Of the parties ant
the Legislature. It's legal signifcation is "tht
annhilGtion by act of law of the less in the greater
OF GWO VebGeQ ebtdle5 Iu6oIuS LII Iuo buue polsuu.
iCruise's Digest, title 49,.
II tho Legislature had merged the one Company
in the other, and stopped there, shero would have
been an absorption OF the estate of tho merged cor
poration, an extinction Of its rights and priyi
feges. Merger is only Of estates, not ofrights..
But the Legislature goes on and gives to the
South Carolina Railroad Company Us IN indepen
dent, subsequent grant, all the rights and priv.
leges of the Canal and Railroad Company.
1t was as il the Legislature had specifically in.
corporated into the charter of the Louisville and
Cincinnati Railroad Company, those sections Of
the charter OF the Canal and Railroad Company
which contained its powers and privileges, and
then said to the South Carolina Railroad Company
this is your charter,
In many Of the early Bnnk charters, powers and
privileges we're not specifically given in the act o
Incorporation. They were simply given, tho pow.
ers and privileges vested in the Planters and Me-
chances Bank and tile Union Bank.
That tho South Carolina Railroad Company.
owns road connecting Charleston, Hamburg and
Columbia, each with the other. no one will deny.
That it has charter will hardly be questioned
What is that charter, and when and where was