The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-11-05
South Carolina Railroad vs. Columnh"
and Augusta Railrond.
ARGUMENT OF GENERAL JAMES CONNER.

ARGUMENT OF GENERAL JAMES CONNER.
The hearing of the application for On interio-
cutory injunction in this case was continued
before Justice Willard yesterday, and the entire
morning was consumed by the argument OF
General James Conner for the complainants.
General Conner read the various acts con-
ferrins chartered privileges on the South Car
olina Railroad, to show that they had not simply
a right of way over the land tor one hundred
feet on each side OF their track, but an absolute
proprietary title to such land. In regard to
the former decree Of the Court of Errors, which
had been pleaded in bar, he said that 1t was
evident that the questions now brought up ter
decision could not have been before the court
at that time, because the decree was made in
Decemb.r, 1867, and the road, the work on
which is now complained of. was not even To-
Gated until July, 1868. II reality there were
but two points decided by tine decree which
was pleaded in bar, rnd these were: FRS, the
right of the Columbia and Augusta Railroad
Company 10 connect those cities by railroad
/. e., 10 build their road at all; and, second,
their right to cross the track OF the
South Carolina Railroad about mile bcloT
the Columbia depot Of that road. The first OF
these points was decided absolutely in favor OF
the Columbia and Augusta Railroad Com
pany. The second was also decided IN their
favor but only in consideration OF the peculiar
circumstances OF the case. These circumstan-
ces we're: First, that they could not build
road ut all from point on the Charlotte and
South Carolina Railroad, the first terminus
mentioned in their charter, to Augusta, the
other terminus mentioned IN their charter,
without crossing somewhere either the South
Carolina Railroad track or the GrccnvIllc and
Columbia Railroad track. Secosd, that the
crossing was made in a street Il the City OF
Columbia, and the right to cross was, there
fore, claimed as right OF common use OF
public highway. In the next place the defen-
dants claimed, under the act of 1868, and that
act was not of force when the decree alluded
to was made, which was another proof that the
same points could not be involved. In this
connection it was proper to notice that the
claim of right to seize aud condemn the land set
up by the defendants against the compliments
must be established under the act Of 1868 or
not at all, for neither ihe charter of the Colum.
bia and Augusta Railroad Company, nor any
legislation prior to the act of 1868, established
or recognized any such right. In regard to
this act there were several points to notice.
First, that the act vas prospective III its pro-
visions, for it's words were, 'That whenever
any person or corporation shall be authorized
by charter" &c.; aud the word ''shaf being
already chartered. Second, that the act, from
its very title, "An act to declare the manner
by which the lands" &c., was not an act con-
ferring or establishing any rights, but simply
an act to establish the practice which should
be followed in cases where the right already
existed. No right having been given in the
chaI ter of the Columbia and Augusta Railroad
Company to enter and condemn lands, they
could not have the right by virtue Of this act
which was merely declaratory of the practice in
cases where the right already existed.
Another point made BY General Conner was
that the younger charter should be exercised,
subject to the provisions of the elder charter.
A charter was in the naturc of a grant, and if
the State made two grants, the first was good
and the second worthless. The later charter
ought to be construed as having reference to
the charter already granted, and ought not to
be presumed to contain anything inconsistent
with it. But there was another rule of con-
struction on which the complainants were will
ling to rest their case, and that was that where
the two charters could be carried out without
conflicting, they should be presumed to be so
intended. That was tho case here. The Co.
lumbia and Augusta Railroad would have every
privilege called for by their charter, without
interfering at all with the South Carolina Rail-
road; aud therefore the charter ought to be
construed to mean that they should so con-
struct their road as not to interfere with that
road.
But, to put the case in it's most favorable
light for the defendants, and the most unfayor-
able for the complainants, suppose that the do
fepdants could refer to an act of the Legis.1-
ture specially authorizing them to enter upon
and condemn tho lands of the South Carolina.
Railroad. Such, OF course, was not the case;
they were compelled to derive their alleged
right by implication and construction. But
even suppose there was plain act purporting
to authorize them to C; mmit this trespass.
Such an act would be unconstitutional, and
they could take nothing by it. 1t would be in
violation of the provision of the United States
Constitution prohibiting State from passing
any law impairing the obligation of contracts.
The charter was q contract between the State
and the corporators, and it had been decided
by the United States Supreme Court, that
''every valuable privilege conducting to the
acceptance of the charter forms part of
the contract, and cannot lie repealed un-
less the right to repeal is expressly rc-
served. Justice Willard here suggested to the
speaker that he would, at some point OF his ar
gument, indicate what considerations of equity
in his opinion should govern the decision be-
tween two companies, both chartered BY the
State, the later charter containing provisions
divestng some of the privileges granted by
the former charter. General Conner replied
that he would interrupt the train of his argu'
ment to meet the view suggested. In the first
place he claimed that in The case of those two
companies the Legislature had not granted to
the Columbia and Augusta Railroad Company
any power to divert any privileges granted by
~,