The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1872-07-04
THE RAILWAY QUESTION.
OPINION OF CITY ATTORNEY coRBIN.
The Obligations and Responsibilities OF
the Two City Railways.
City Attorney Corbin has submitted the fol-
lowing opinion:
OFFICE OF TEE CITY ATTORNEY, I
CHARLESTON, 8, c., July l, 1872.

DEAR SIR-You refer to me for my opinion,
the question: "What obligations the city rail-
ways are under In regard To repairing the
streets OF their line, and securing compliance
with the same"
AS the word ''Railways'' is used, suppose
that the question has reference to the TWO
street railways, whose charters permit The lay
Ing of street railways In the limits of the city,
viz: "fhe Farmers and Merchants City Rail.
way Company of South Carolina" and "rhe
Enterprise Railroad Company, of Charleston,
South Carolina"
In considering the question, therefore, the
rights and duties of each company will be dis.
cussed separately.
1. AS to the Farmers and Merchants City
Railway Company:
This company was incorporated by act of the
General Assembly, approved December 2O,
1901
The second section of this act gives said
company power and authority, subject as ID
hereinafter provided to the ordinances, au.
thorlty and supervision of the City Council OF
Charleston. relative thereto, to lay railway
tracks through and along the streets within
the corporate limits Of the City OF Charleston,
DC.
The flth section of the same act provides,
that all the works of the said company, along
and through the streets of the said city, be
under the authority, supervision and arrange
: OF Charleston, subject to such provisions, con-
tracts, ordinances and restrictions as they may
deem advisable for the general welfare and
due protection Of public and private rights, as
also for the protection Of the property and
rights OF the company.
On the 18th day of March, 1867, the City
Council passed 40 ordinance emitted san Or
dinance to regulate the construction and run
ming OF passenger and freight railways In the
City of Charleston, aud their uses" (See Com
pilation Of Ordinances, page 80.
The second section Of this ordinance pro-
vides, among other things, that the company
shall build and keep In repair all bridges;
turnonts, drains, &C., which the track or
tracks cross, paving or sheling the track be-
tween the rails, and tor as many ieet. not eX-
ceeding three on each side Of the track or
tracks, as may be, and at such time as re-
quired by the city authorities: Provided, That
said street or streets have been or are about
to be paved by the corporate authorities; and
should any company Lr corporation violate
any oil the provisions Of this section, the COM
pany violating the same shall be liable to such
penalties as the Mayor may impose, not eX-
cepding nifty dollars for each and every day
they shall be proven tc have violated the
same, after due notice given by the city in
spector or engineer.
This ordinance. taken In connection with
the act constituting The charter OF the said
City Railway Company, conferring upon the
City Council the authority. supervision and
arrangement of all their works along and
through the streets OF the city, and making
the said company subject to such provisions,
contracts, ordinances and restrictions as they
(the corporate authorities Of the clty) may
deem advisable, clearly gives the City Council.
aa the corporate authorities of the City OF
Charleston, tull power TO require this COM
pany TO keep the track, l. 9. the road or street
betVeec the rails, and the space not exceed
ing three feet on each side of The track, paved
or repaired with shells, when the street Itself
has been or is about 10 be paved or shelled
by the city authorities, at such time as they
may think best.
vldes that the Mayor may Impose penalty
not exceeding fifty dollars for each Tcy tney
are proven TO have violated those regulations,
after due notice given by the city inspector or
city engineer.
ii. AS to the Enterprise Railroad Company OF
Charleston, South Carolina. rms company
was incorporated by act OF The General Assem-
bly, passed the lst day of March, D. 1870.
(See VOL IL, Statutes at Lsrge, page 391.
Ry the second section of 9 charter, 1t was
authorized to lay RAILWAY tracks from the Bat
terry or White Point Garden, on East Bay
street, and thence through certain streets
named In the charter, to fen.mie Hill. The
other sections of the charter simply declare
what are the general privileges and rights OF
the company, &C.; the 9Th section repealtog
all acts or parts of acts inconsistent with the
charter.
By an act approved March 9, 1871, (see Vol.
IA. Statutes at Large. page 659,) tue original
charter OF the company was amended oy CIV
Ing the corporation power to lay tracks IN
other streets than those mentioned IN the acL
of 1870, and giving IL power to Issue seven per
cent coupon bonds to the amount or ten
thousand dollars for every mile OF completed
railway.
Both of the acte are silent as to the liability
of the company to repair streets, or a. TO lts
being under the general supervision and con-
troll of the City Council of Charleston.
rThe charter OF this company. therefore, con-
fers no express authority on the City Council
to supervise tho laying OF the tracks OF the
railway, or to compel the company to keep 30
much of the streets as Is between the rails In
repair, as is the case with the Farmers aad
Merchants City Railway. If there ls such
power existing in the City Council, 1t must be
an implied one. Does such an implied power
exist! The charter OF the City Council OF
Charleston gives 1t power to make such BY
laws, rules and ordinances respecting the
hsrbor, streets, lanes, &C., that shall appear to
them requisite and necessary for the security,
welfare and convenience of the said city, &c.
The bylaws. rules and ordinances made by
the City Council on any OF these subjects are
of binding force. except so far as they are In
consistent With the State laws or constitution.
lie 1S clear CQ6C WUeu tu6 OGhIo udS copoCloily
piyen to corporation the power to make use
Of certain streets for any particular purpose.
as for laying railway track, the city cannot,
by any Of It's ordinances, prevent the exercise
OF that right At the same time the city has
the right to require any corporation or indiVi-
dual making use of o public street for any such
purpose, to take proper precautions for the
safety thereof, and for the crossings OF the
same, but whether the provisions Of the ordl-
nance of the 18th of March, 1867, regulating
the construction and running OF passenger and
freight railways conld properly be enforced
against the Enterprise Railway Company, need
not now be considered.
The provisions of that ordinance are EVIL
dently meant TO apply to roads, the charters
of which give no express authority to lay their
tracks In any particular streets OF the city,
and contemplate the permission of the corpo-
raH authorities of the city as prerequisite tor
laying their track. But the city, as being
charged with the care of the streets, and
being primarily responsible for their safety.
does possess the right of making reasonable
regulations as to their repair whenever the
surface has been disturbed and rendered tn-
secure by o corporation or individual. unless
such corporation or Individual has been grant
ed immunity from such municipal regulations.
These regulations must 6e OF such charac-
Ter as not to Interfere with the chartered
rights of private corporations. Therefore, in
The case of the Enterprise Railroad Company,
am of opinion that whenever th' surface OF
the streets has been disturbed tor the purpose
of laying the track of said road, the city has