Opinion
14630
March 7, 1938.
Before OXNER, J., Newberry, April, 1937. Affirmed.
Proceeding by the State of South Carolina, on the relation of the State Highway Department, against the Southern Railway Company to recover the proportionate part of the cost of construction of a reinforced concrete bridge spanning a river and the defendant's tracks. From an adverse judgment, plaintiff appeals.
Order of Judge Oxner follows:
The only basis for the maintenance of this action consists of the provisions of Act No. 634 of the Acts of 1924, p. 1057, which are now incorporated in the Code of 1932, and, in fact, the plaintiff alleges in its complaint that this action is brought pursuant to the said Act of 1924. It is, therefore, evident, that in order for the plaintiff to recover, the burden rests upon the plaintiff to show that it has complied with the terms of this Act.
The construction of this Act apparently has not been before the Supreme Court, at least no case has been cited by counsel wherein the Supreme Court has passed upon the question, and so far as I know the question is a novel one. And, being required to pass upon the construction of this Act on a motion for a nonsuit, the Court doesn't have an opportunity to give it the thought which the subject deserves.
It appears that the Act contemplates that, in so far as the highway department is concerned, that it shall first determine upon the elimination of any grade crossing. A hurried reading of the Act would indicate that such determination may be had by the highway department without notice to the railroad company involved. If this is the proper construction of the Act, a very serious question is raised as to its constitutionality, because it might be well taken that due process would require an opportunity on the part of the railroad company to be heard at the initial hearing by the highway department. In this case no notice of any initial hearing before the highway department was given to the railroad company, and apparently it had determined upon the necessity of the elimination of this crossing for some time prior to the time that the railroad company was apprised of that fact.
It is contended by the railroad company that, if the Act didn't give it an opportunity to be heard at the initial hearing, that the Act is unconstitutional; and, if the Act is interpreted as providing for such hearing before the highway department, that under the evidence in this case it had no such opportunity to be heard.
I don't find it necessary to pass upon this contention. The Act provides, in substance, that after making such determination for the elimination of the grade crossing that prompt notice shall be given to the railroad company and within ten days thereafter the representatives of the department and the railroad shall meet and adopt a layout.
Now, the only notice of such determination in this case would appear to be contained in the letter of Mr. Sawyer dated August 5, 1930. I seriously doubt whether it was intended by the highway department in this letter to notify the railroad company of its determination of the elimination of the grade crossing. I think the letter, properly construed, was an invitation by the highway department to the railroad company to enter into an agreement under Section six (6) of the Act, Code 1932, § 8442.
But that is immaterial, because it seems to me that the fundamental difficulty is in the next provision of the statute, wherein it provides that if the parties fail to agree that the department may order the railroad involved to proceed with the construction of such a structure as it may require as indicated in plans and specifications accompanying its order. Now, it seems to me, clearly under a proper construction of this statute, that it contemplates a formal order by the highway department, or other subdivision of the State, as the case may be. It provides that there shall be an order directing the railroad to proceed with the construction, and there shall be attached to the order and accompanying the same the plans and specifications. It then provides for the railroad to commence work within sixty days.
Under Section nine (9) of the Act, Code 1932, § 8445, it says that the railroad company shall have the right to appeal to the Courts from any order or finding of any department hereunder. So that it would seem it contemplates an order, findings upon which the order is based, and giving the railroad company the right of appeal from such order. Section ten (10), Code 1932, § 8446, also speaks of the railroad company appealing from the decision of the Railroad Commission, or from an order or finding of any department. So it seems to me that the whole Act contemplates that there shall be an order or finding by the department involved, which in this instance is the State Highway Department.
Now, there is absolutely no evidence in this case of any order having been passed. Certainly the letter of August 5, 1930, could not be construed as such order, and I don't understand that counsel for plaintiff contend in this case that there was such an order. If there be no order, there is nothing for the railroad company to appeal from.
It is contended by counsel for the plaintiff that any rights that the railroad company wants to preserve on appeal might be determined now before a jury. But the statute provides that the appeal shall be made as therein provided. Therefore, it seems to me that the order to be made by the highway department is a prerequisite and a necessary step before the railroad company can be held under the terms of the statute. Here, the railroad company is called upon to contribute when it has never had its day in Court, never has had any right of appeal, there being no order ever filed to appeal from. And upon this ground of the lack of an order, it seems to me that the motion for a nonsuit should be granted.
There are various other grounds urged in this motion for a nonsuit. It might be said that it appears that the first notice that the railroad company had of the contemplated action on the part of the highway department in moving this crossing was in July, 1930. Now the Act says that after the order is passed that the railroad company shall begin work within sixty days after the receipt of the order, and then if they fail to proceed in sixty days then the highway department may proceed. So, according to the evidence here, if an order had been passed in July, the railroad company would have had until some time in September to do this work. The evidence shows that there was an advertisement for bids along about the middle of July, and the bids opened on July 29th, and the contract let on August 5th. Now, this would seem to indicate that the highway department was not proceeding under this statute. All of its actions in connection therewith at that time would indicate that it was not undertaking to proceed in accordance with this statute. Having so proceeded, it can't now contend that it was proceeding under the statute.
It also might be charged that there is absolutely no evidence that the plans and specifications were ever furnished to the railroad company. A letter here commencing, "Enclosed are prints showing our profile and layout sheets." I don't recall any evidence at this time of the furnishing of any plans and specifications which the Act requires.
It seems that the department proceeded without the statute and some year and a half later after the construction was commenced sent the railroad company a bill.
I am not undertaking to pass upon all of these grounds of the motion for a nonsuit, some twelve or fifteen of them as I recall. Upon the ground hereinabove set out I think the motion should be granted. I don't find that it is necessary to pass upon the other grounds contained in the motion.
Messrs. John M. Daniel, Attorney General, J. Ivey Humphrey and M.J. Hough, Assistant Attorneys General, and Wolfe Fort, for appellant, cite: Waiver: 105 N.E., 512; 290 P., 813; 1 C.J., 981; 95 S.C. 328; 140 S.C. 388; 141 S.C. 266; 104 S.C. 163; 116 S.C. 177. Constitutionality of statute: 290 U.S. 326; 78 L.Ed., 342; 106 U.S. 124; 27 L.Ed., 104; 160 U.S. 389; 40 L.Ed., 467; 169 U.S. 557; 42 L.Ed., 853; 258 U.S. 142; 66 L.Ed., 514; 284 U.S. 151; 76 L.Ed., 214. Delegation of power by Legislature: 294 U.S. 87; 79 L.Ed., 780; 282 U.S. 375; 95 U.S. 760; 24 L.Ed., 588; 213 U.S. 175; 53 L.Ed., 753; 289 U.S. 238; 77 L.Ed., 1148; 181 S.C. 379; 187 S.E., 824; 122 S.C. 158; 115 S.E., 202; 13 Am. Rep., 716; 152 S.C. 455; 150 S.E., 269; 12 C.J., 840; 134 N.E., 815; 22 A.L.R., 835. Police power subject only to constitutional limitations: 170 U.S. 57; 42 L.Ed., 948; 235 U.S. 121; 59 L.Ed., 157; 189 U.S. 383; 47 L.Ed., 860; 250 U.S. 332; 63 L.Ed., 1013; 208 U.S. 583; 52 L.Ed., 630; 218 U.S. 336; 54 L.Ed., 1060; 20 Ann. Cas., 1206; 232 U.S. 430; 58 L.Ed., 671; 254 U.S. 394; 65 L.Ed., 322; 218 U.S. 336; 254 U.S. 394; 65 L.Ed., 322; 278 U.S. 24; 73 L.Ed., 161; 290 U.S. 190; 78 L.Ed., 260; 151 U.S. 556; 38 L.Ed., 269; 242 U.S. 375; 61 L.Ed., 374; 271 U.S. 303; 70 L.Ed., 957; 273 U.S. 126; 71 L.Ed., 575; 278 U.S. 456; 73 L.Ed., 452; 281 U.S. 682; 74 L.Ed., 1115.
Messrs. Frank G. Tompkins, L.M. Abbot and Blease Griffith, for respondent, cite: Intention of Legislature to govern in interpretation of statute: 99 S.C. 218; 82 S.E., 1048; 169 S.C. 198; 168 S.E., 554; 56 S.C. 173; 34 S.E., 73; 46 L.R.A., 517; 119 S.E., 319; 112 S.E., 55. Constitutionality of Act: 290 U.S. 190; 78 L.Ed., 260; 282 U.S. 162; 75 L.Ed., 270; 294 U.S. 405; 79 L.Ed., 949.
March 7, 1938. The opinion of the Court was delivered by
The appellant brought this action to recover of the respondent the proportionate part of the cost of construction of a reinforced concrete bridge spanning the Saluda River and respondent's tracks at Chappels in Newberry County, which plaintiff claimed under the provisions of the Act of 1924, 33 St. at Large, p. 1057, now included in the Code of 1932 under Sections 8437 to 8447, both inclusive. The title of the Act is "An Act to Establish a Uniform Basis for the Elimination of Grade Crossings Throughout the State of South Carolina."
The respondent, for answer to the complaint, set up: First, a general denial. Second, that plaintiff had not proceeded under the statute. Third, that the statute, as plaintiff construes it, violates the State and Federal Constitutions. Fourth, that the grade crossing was not dangerous and of the nature of that which defendant could be required, under the statute, to eliminate. Fifth, that the project was not such a grade crossing elimination as is contemplated by the statute. Sixth, that the plaintiff is estopped by its actions and conduct in and about the premises from maintaining this action.
The matter came on to be heard before Judge Oxner at the spring term, 1937, of the Court of Common Pleas for Newberry County. At the conclusion of the offering of testimony by the plaintiff, the defendant moved for a nonsuit, based on the following grounds:
"First. That there is no evidence that the Highway Commission has ever determined upon the elimination of the grade crossing here in question, as required by Section 8438 of the Code of 1932.
"Second. That there is no evidence that notice of any such determination by the Highway Commission was ever given to the defendant.
"Third. There is no evidence of any meeting of the representatives of the Highway Department and the defendant.
"Fourth. That there is no evidence of an order to the defendant to proceed with the construction, as required by section 8438 of the Code.
"Fifth. That the evidence all shows that the Highway Department authorities advertised for and awarded the contract before inviting any participation in the case by defendant, and before performing any of the conditions required by the Statute to give the railroad sixty days within which to commence construction of the structure.
"Sixth. That there is no evidence that plans and specifications were ever submitted to the defendant as required by the statute above mentioned.
"Seventh. There is no evidence that the defendant was ever given the right or opportunity to select the material to be used in the structure, the construction of the structure, in question, as required by the statute.
"Eighth. That there is no evidence that the Highway Department, at any time prior to the erection of the structure, ever made any estimate of the pro rata share of the cost to be borne by the department, or ever arranged for the appropriation of any such pro rata share of the department, or ever gave the defendant any notice thereof. The statute requires they shall make an appropriation of its pro rata share.
"Ninth. That there is no evidence that the defendant was ever given any notice of any hearing, or order on which any hearing could be had, or on which any appeal could have been taken.
"Tenth. That there is no evidence that the necessary steps required by the said act of 1924 have ever been taken so as to render defendant liable for any sum.
"Eleventh. That there is no evidence that the crossing was dangerous or hazardous to traffic, or that the Highway Department ever made any investigation or finding to that effect.
"Twelve. (Twelfth ground abandoned.)
"Thirteenth. That the evidence discloses that this is not a grade crossing elimination project as provided for in the statute under which plaintiff has instituted this action."
The motion was granted by Judge Oxner in an order which will be reported. This Court concurs in that order, and might well rest this opinion at this point. However, we may with propriety add a few observations.
It seems plain to us that this is not such a grade-crossing elimination project as comes within the intent and purpose of the Act of 1924, now Sections 8437 to 8447, inclusive, of the Code, which provides a uniform plan for the elimination of grade crossing throughout the State. The testimony and the profiles and maps in evidence show that the primary object of this project was to construct a new bridge over Saluda River at Chappels. For many years there had been a bridge at this point which was subject to overflow and damage from high water. The terrain between the river and the bed of the railway tract was low and was flooded by high water; in fact, the railway track was sometimes so covered. The bridge over the river was supplemented, on the Newberry side of the river, by a trestle which was almost on a level with the bed of the railroad and the road crossing the tracks at this point. To the west of this point was a considerable bluff. By placing the contemplated new bridge some distance above, or to the west of the old one, the end of the bridge on the Newberry side could be placed on this bluff, which would carry it over the tracks of the railway. Clearly, this was the moving consideration which induced the placing of the bridge at this point. The elimination of the grade crossing was an incident thereto.
If, however, it was within the original intent of the highway department to eliminate this crossing and within its purpose to hold the railway for a proportionate part of the cost, it was its legal duty to proceed under the provisions of the applicable statute. Indeed, the department alleges in its complaint that it did so proceed, and it argues that respondent has suffered no damage, even if the notice and orders due to be given in accordance with the provisions of the statute, were not given. We do not agree with this position. The order of Judge Oxner points out some of the particulars in which the appellant did not follow the provisions of the Act. We are particularly impressed with the injurious result to the defendant railway of the failure of the appellant to give to the respondent the notices which the Act requires should be given it in the matter of depriving it of the opportunity to do this work, if it so elected; if the order to do so had been given it by the department, it might have done the work at a lower cost than the department charged against it.
Section 2, Code 1932, § 8438, provides that when the highway department determines to eliminate a grade crossing, it shall give prompt notice thereof to the railway company; if the parties fail to agree upon "a lay out with the grade and alignments," it may order the railway to proceed with the construction of the work. If the railway fails to begin with it within sixty days, the department may construct it and bill the railroad for its proportionate part of the costs. Section 8, Code 1932, § 8444, provides that if the railway company shall be required by order of the department to construct such grade crossing and shall be of opinion that such grade separation is not a public necessity, it shall have the right, within ten days after the receipt of such order, to appeal to the Railroad Commission; and Section 9, Code 1932, § 8445, provides that any railroad company shall have the right to appeal to the Courts from any order or finding of the department thereunder.
It is patent that the failure of the highway department to give to the railway company in this instance the notices and orders required by the Act, has deprived the railway company of valuable and substantial rights, and the department cannot be heard now in its efforts to hold the respondent liable to it for a part of the costs of construction of the bridge over the railroad tracks.
The order of Judge Oxner granting the motion for nonsuit does not decide the question whether the Act under review is unconstitutional. Under the view of the case taken by him, it was not necessary for him to pass on this question, nor is it necessary for this Court to do so.
The respondent moves the Court to sustain the rulings and judgment, from which this appeal is taken, upon the additional grounds stated in its motion, which are stated in the first, third, seventh, eighth, tenth, eleventh, and thirteenth grounds of the motion for nonsuit, hereinabove set out.
This motion must be and is granted. These grounds in support of the motion are sustained by the record.
The order and judgment appealed are affirmed.
MESSRS. JUSTICES BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE WM. H. GRIMBALL concur.
MR. CHIEF JUSTICE STABLER and MR. JUSTICE CARTER did not participate on account of illness.