The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-11-21

provisions OF law not then being in existence.
AS the present decision turns upon the consti-
tuition OF 1868, aud the Law passed undor it, it
is not necessary to trace the alleged GOMEZ
| denco OF the suits turther tnap mas areauy
been done.
Another objection, Of preliminary charac-
ter, is, that the former suit is still pending
and the relief sought here should be taken in
that suit. The decision of the Court OF Errors,
it is true, retained the bill dismissed by the
chancellor, but only for single purpose,
namely-the ascertalning the rights and equ'-
ties involved in the conjunction of the roads OF
the point of crossing. For all original purpos-
es that suit is at an end, and the present relief
could not be attained through that means.
We proceed to consider whether the acts
complai lcd of can be riehtfully exercised pn-
der the Constitution and the act OF September
22d. 1t is manifest that if the defendants had
been chartered since the constitution went
! into operation their attempt to enter upon the
rights Of the complalnants without just COM
pensation, first made, would have been unjusti-
| fable The defendants contend for construc-
| ticn OF the constitution that would support
such Claim, but this construction depends too
much on verbal criticism, and pays too little re-
gard to the spirit Of the law. Their argument
! is that while under section 8, article IL, OF the
constitution the right of way cannot be 'appro-
priated" except upon just compensation, first
made yet it may, SO tar as that clause IS con.
cerned, be rightfulIy taken for construction, and
afterwards appropriated" by an act OF formal
condemnation. Such mode of construction does
violence to the principles uniformly applied IN
arriving ut the extent Of the fundamental law.
Nceties in the use otlanguage are always subor-
dinated to the OBVIOUS intent, as gathered from
the whole instrument. 1t Is manifestly the OBJ
jec of section 23 article l. aud section g. article
IL, to engraft upon the laws OF TINS state a
feature elsewhere, now geEcraly regarded as
imp rtant for tho protection of rights OF pro-
pcrty, namely, that persons and corporations
| authorized to put in exercise the extraordinary
powers OF the eminent domain should enter
upon tho lands of others, either with their
consent or under tho sanction OF q Judicial act
determining the rightful character and proper
limitations OF such authority. This object
would be wholly defeated by the construction
contended for by The defendants.
| Previous to the constitution OF 1868 the de-
fepdants possessed, under their Quarter, the
right OF entry into AMI upon any lands that
might be required tor the construction OF their
| roatl, and 1t Is contcnded that. in conformity
with the prevailing usage in this State, they
could have entered for tho purpose OF con-
struction without waiting for the formal con-
demnation of the land. Assuming this to have
been the nature Of thair authority, has 1t be-
come affected by tho provisions OF the constl-
tuition and the acS OF September 22
The objections to such conclusion are thai,
first. such is not the expressed intent of such
Instruments; and second, that, II such was
their positive declaration, they would tend to
invalidate rights existing IN prior contract,
and thus be imperative under the Consltu-
ton of the United States.
The view thus taken Of tho construction OF
the instruments in question derives shadow
of support from the language employed IN the
irst section oHthe act, which brings within the
terms OF the statute persons and corporations
who 'shall be authorized by charter" assum-
ing their words TO look to future acts OF incor-
poration, but derives no countenance from
the constitution.
The language OF section 8, article H. is as
follows: .'No right OF way shall be appropriated
to the use of any corporation until full COM
pensation therefor shall first be made or So
cured by deposit Of money to the owner" The
term s'appro priated," as here used, imparts
anv act that would tend to exclude the owner
of lands from the rightful uso of the same; To
enter upon and control lands, with or without
title, is an act Of appropriation, and as such IS
forbidden whether in virtue OF rlGht prc-.Xls-
tent to tho constitution or otherwise.
1t only remains, therefore, to consider
whether the rights claimed by the defendants in
this respect are in tho nature OF q legislative
contract that cannot be impaired by any exsr-
else CT the authority OF o State.
The power that flows from thu right of
eminent domain is political; nor does it lose
| that character where it subsists Ill the hands
| of o corporation or other agent or the public.
1t is to be regard as the subject OF
delegation of authority, rather than OF
q concession OF rights. The fruits OF its
exercise may become property IL the strict
est sense but the power itsef is func-
| ton of government that ought always to bc
controlled by tho public authority. Whether
| the Legislature could have divestcd itself oJ
| the right to control the mode of exercising this
power after having delegated it need not be
| considered ior fair and liberal construction
OF defendants chortcr, in conformity with
| settled rules of construction in such cases,
leaves no room Tor the inference that tho
Legislature intended to part with this most
salutary check upon the improper use OF oae OF
its highest prerogatives. The nature OF the
thing claimed to have been granted is de-
| cislye in the question OF construction. II Is no
less than the right to provide for the security
of rights OF property by THROWN; checks and
guards around tho right TO appropriate tho
property of individuals to pubic purposes,
communicated to citizen to be employed III
the active pursuit OF his private interests, such
delegation being mado upon the consideration
of the general benefit that will result to the
public from the uses to which it Is devoted.
Tho iIea is precludcd that the Legislature in
| tended to tie up its remedial powers, unless ez-
press words are employed to evidence such
intent, which is not the case il the present
instance.
The matters winch nave usually Deen INC
subjects OF legislative CO. trLcts, are cipaci-
ties, powers and rights appropriate TO be IL c'l
IN tho course OF private trans2c ':'a ca 81
into cxistcnce by an act of tie legislative viii,
| aud G. Ga9emcnts not to pa: IL .Setc:Sc such
legislative powers, III :,ivcl case, TO the pre-
jud:co Of par. .c.iar grantee. The rights
hero claimed do not belong to that class.
| Ii follows therefore that the defendants, in
entering on the rights and ira chises Of the
comp. alnants without first making just CON-
pensation therefor, are lrcspasscrs under the
operation of the consultation and the act Of
Sep; ember 22l; and the only question that re-
mains for consideration is, whether Al inJunc-
tion is the proper remedy.
The practice on this subject is well sottled.
Objections have often been pressed upon the
courts, to the exercise OF SUCH a jurisdiction,
drawn from the rules that govern courts Of
equity IN matters OF nuisance, where pri-
vato rights are alone or mainly concerned;
that have their origin IL tho common Law
doctrines relative to the ownership and
uses of property; but they have failed to
arrest tho exercise of this most necessary
branch OF equity jurisdiction. The Court Of
Chancery has from the earliest times been
peculiarly related to the conservation OF that
class of rights that flow from the grant OF
franchises, and rights that had their early orr
gin in the prerogatives of the Grown, and has
always asserted a large jurisdiction in matters
of that character.
The rulo recognized ut the present day can
not be stated more accurately and III better
terms than in the language OF Chief Justice
Shaw ZIG Rich, 525). This able jurist says ::
''Where party. claims franchise under
statute, and is III possession OF such franchise,