State v. Port Royal & Augusta Ry. Co. , 45 S.C. 413 ( 1895 )

The opinion of the Court was delivered by

Mr. Justice Gary.

This is the third appeal in the above entitled cases, heard at the last term of this Court, and is from an order of his Honor, Judge Aldrich, made at chambers on the 3d day of February, 1894, allowing the receiver to issue $50,000 of receiver’s certificates, which' were made by said order a first lien on all the property and assets of the Port Royal and Augusta Railway Company. A copy of the order which was afterwards granted by his Honor, Judge Aldrich, and from which the defendants have, appealed to this Court, was served upon the attorneys of the respective parties to the above entitled actions, when the notice of motion for said order was served upon them.. His Honor, Judge Aldrich, precedes said order with the following statement: “On reading and filing the petition of John H. Averill, receiver of the Port Royal and Augusta Railway Company, and it appearing to the Court that a copy of this order has been served upon the counsel for the several parties to the above entitled actions, it is ordered, adjudged and decreed,” etc.

1 2 First exception: The first exception complains of error on the part of the Circuit Judge in not holding “that the cause had been removed to the United States Circuit Court, and that the Court of Common Pleas for Beaufort County, nor any Judge thereof, had any further jurisdiction to make any order therein.” All the grounds, except that of diverse citizenship, for removal of these causes into the Circuit Court of the United States, are presented by the petition for removal and not by the complaint. The questions presented by this exception have, therefore, under the recent rulings of the United States Supreme Court, been made more easy of solution. The reasons for the change in the rulings by that Court are stated by Mr. Justice Gray in the case of Tennessee v. Union & Planters' Bank, 14 Sup. Ct., 654, as follows: “Bven under the act of 1875, the jurisdiction of the Circuit Court of the United States could not be sustained over a suit originally brought in that Court, upon the ground that the suit was one arising under the Constitution, laws or treaties of the United States, unless that appeared in the plaintiff’s statement of his own claim. * * * The same rule applies more comprehensively to the acts of 1887 and 1888. In section 1, as thereby amended, the words giving original cognizance to the Circuit Courts of the United States in this class of cases are the same as in the act of 1875 (except that the jurisdictional amount is fixed at $2,000), aud it is, therefore, essential to their jurisdiction, that the plaintiff’s declaration, or bill,'should show that he asserts a right under the Constitution or laws of the United States. But the corresponding clause in section 2 allows removal from a State Court to be made only by defendants, and of suits ‘of which the Circuit Courts of the United States are given original jurisdiction by the preceding section;’ thus limiting the jurisdiction of a Circuit Court of the United States on removal by the defendant, under this section, to such suits as might have beeu brought in that Court by the plaintiff under the first section — 24 Stat., 553; 25 Stat., 434. The change is in accordance with the general policy of these acts, manifest upon their face, and often recognized by this Court to contract the jurisdiction of the Circuit Courts of the United States. Smith v. Lyon, 133 U. S., 315—320, 10 Sup. Ct., 303; In re Pennsylvania Co., 137 U. S., 451-454, 11 Sup. Ct., 141; Fisk v. Henarie, 142 U. S., 459—467, 12 Sup. Ct., 207; Shaw v. Mining Co., 145 U. S., 444-449, 12 Sup. Ct., 935; Gerling v. Railroad Co., 151 U. S., 673-687, 14 Sup. Ct., 533.” The rule.now prevailing is thus stated by Mr. Justice Gray, in Chappell v. Waterworth, 15 Sup. Ct., 34: “The question of removal is governed by the decision of this Court at last term in Tennessee v. Bank of Commerce, 152 U. S., 454, 14 Sup. Ct., 654, by which, upon full consideration, it was adjudged that under the acts of March 3, 1887, c. 373 (24 Stat., 552), and August 13, 1888, c. 866 (25 Stat., 433), a case (not depending on the citizenship of the parties nor otherwise specially provided for) cannot be removed from a State Court into a Circuit Court of the United States unless that appears' by the plaintiff’s statement of his own claim, and that if it does not so appear, the want cannot be supplied by any statement in the petition for removal or in the subsequent pleadings.” This principle was affirmed in the cases of Postal Tel. Cable Co. v. Alabama, 15 Sup. Ct., 192, and Land Co. v. Brown, Id., 357. In addition to the authorities cited by his Honor, Judge Aldrich, to support his conclusion in the case of the State of South Carolina against the Port Royal and Augusta Railway Company, that the case should not be removed, on the ground of diverse citizenship, to the Circuit Court of the United States, we quote the following from the case of Postal Tel. Cable Co. v. Alabama, 155 U. S., 487, 15 Sup. Ct., 192: “The grounds upon which the present suit was removed from a Court of the State of Alabama into the Circuit Court of the United States were that the controversy therein arose under the Constitution and laws of the United States, and that it was wholly between citizens of different States. But the suit was one brought by the State to recover taxes and penalties imposed by its own laws, the jurisdiction over which belongs to its own tribunals, except so far as Congress, in order to secure the supremacy of the national Constitution and laws, has provided for a removal into the Courts of the United States. Wisconsin v. Pelican Ins. Co., 127 U. S., 265-290; Huntington v. Attrill, 146 U. S., 657-672. And the complaint by which the suit was begun did not mention the Constitution or any law of the United States, or claim any right under either. A State is not a citizen, and, under the judiciary acts of the United States, it is well settled that a suit between a State and a citizen or corporation of another State is not between citizens of different States; and that the Circuit Court of the United States has no jurisdiction of it unless it arises under the Constitution, laws or treaties of the United States. Ames v. Kansas, 111 U. S., 440; Stone v. South Carolina, 117 U. S., 430; Germania Ins. Co. v. Wisconsin, 119 U. S., 473.” The reasoning and authority cited by the Circuit Judge in the other case herein mentioned, to wit: Henry B. King et al. v. the Port Royal and Augusta Railway Co. et al., sustained his conclusion also, that said case should not be removed to the Circuit Court of the United States on the ground of diverse citizenship. So much of the decrees of his Honor, Judge Aldrich, in the above stated cases as relates to the question of removal to the Circuit Courts of the United States, should be set out in the report of these cases. The first exception is overruled.

3 The attention of the Court has been called to the act of the legislature, approved the 3d of January, 1894, entitled “An act to repeal the charter of the Port Royal and Augusta Railway Company, and to provide for liquidating the said corporation and for a distribution of its assets, and to regulate'the formation of a new corporation and the management thereof by any purchasers of the same.” Acts 1893, p. 537. And it is contended by appellants that the said cases were abated by said act. Waiving all objection as to the right of this Court to pass upon said question at this time, and in the manner in which it is presented, it cannot be sustained. It is true, that section 1 provides for a repeal of the charter and a dissolution of the corporation. There are, however, other provisions in the act. Section 2 is as follows: “That the attorney general of this State be, and is hereby, directed and instructed to institute forthwith proper proceedings to liquidate the said corporation, to restrain it or its stockholders or creditors, or any or either of them, from in any way asserting or exercising, or attempting to assert or exercise, any rights, privileges or franchises as a corporation; to have a receiver appointed of all the property and assets of the said corporation; to have its accounts duly taken and audited; to have its said property and assets sold, and distribution of the proceeds thereof made among its several creditors and stockholders in accordance with law.” Section 5 of said act is as follows: “Nothing in this act contained shall prevent the running and operation of the said railroad, with all the privileges and franchises named in the said charter, until such time as such railroad shall be sold under any judicial proceedings, and delivery made to the purchaser thereof.” The objection interposed by the appellants is both against the letter and spirit of the act, and cannot be sustained. The legislature must be presumed to have known that the railroad was in the hands of a receiver, and was being run and operated by him; furthermore, that there would necessarily be a lapse of time before the proceedings mentioned in said act could be instituted, and a receiver appointed under such proceedings to take possession of the railroad, and that the question between the State Court and the United States Circuit Court would probably prolong this interval for a considerable length of time. It was, however, provided that nothing in the act should prevent the running and operation of the said railroad, with all the privileges and franchises named in its charter. An abatement of the actions herein before the receiver mentioned in said act could be appointed and get possession of the res, would have prevented the running and operation of the said railroad, contrary to the very words of the act; for if, when the charter was repealed and the corporation dissolved, the actions abated in which the receiver was appointed who was running and operating the railroad, then there was no'longer any authority competent, in law, to run and operate said railroad. This case is much stronger than the case of Pomeroy v. Bank, 1 Wall., 23, in which a similar objection was interposed. In that case the Court says: “In this case, H. W. Chase, Esq., signing himself as attorney for the State Bank, in the Circuit Court for the district of Indiana, asks this Court for the abatement of the writ, upon the following suggestions: That since the trial of the above entitled cause in the Circuit Court for the district of Indiana, and before the prosecution of the writ of error in this behalf, to wit: on the 1st day of'January, 1859, the said State Bank, the defendant in error in said cause, being a corporation created and organized in the State of Indiana, by the authority of an act of the legislature, has dissolved and ceased to exist as such corporation, by reason of the expiration of the charter granted to the said State Bank of Indiana. I am instructed by the Court to announce it to be its opinion, that there can be no abatement of the case upon the counsel’s suggestion, as it is declared in the charter of the bank that though its charter should continue as such until the 1st day of January, 1859, and that all its banking powers should cease after the 1st day of January, 1857, that it should have all the necessary and incidental powers to collect and close up its business, within which we deem the rights of the plaintiff in this Court to be comprehended.”

4 Second exception: The second exception complains of error on the part of the Circuit Judge in not holding “that it was not within the power of his Honor, Judge Aldrich, to grant such an order at chambers.” Section 2244 of the Revised Statutes provides that: “The Circuit Court shall be deemed always open for the purpose of issuing and returning mesne and final process and commissions, and for making and directing all interlocutory orders, rules, and other proceedings whatever, preparatory to the hearing of all causes therein upon their merits; and it shall be competent for any Judge of the said Courts, upon reasonable notice to the parties, in the clerk’s office or at chambers, and in vacation as well as in term, to make, direct, and award all such process, commissions, and interlocutory orders, rules, and other proceedings,, whenever the same are not grantable, of course, according to the rules and practice of the.Court.” This section conferred upon the Circuit Judge ample authority to grant such order. This exception is, therefore, overruled.

5 Third exception: The third exception complains of error on the part of the Circuit Judge in not holding “that the order made was erroneous, in that it undertook to authorize the issuing of receiver’s certificates, to be first lien on the property, when the mortgagees of the existing mortgages on the property were in no wise parties to the proceedings.” This exception can have no. application to the parties to the aforesaid actions, because they were made parties to the proceedings by service of notice of the motion of the order granted by his Honor, Judge Aldrich. Section 143 of the Code provides that “the Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others; but when a complete determination of the controversy cannot be had without the presence of other parties, the Court must cause them to be brought in.” If the appellants supposed that it was necessary that others should be made parties to the proceedings, then they should have taken the proper steps to have such persons made parties. Eakin v. Knox, 6 S. C., 14. Having failed to take the necessary steps to have such persons made parties, the appellants cannot now raise the objection that certain mortgagees should have been made parties to the proceedings. In the absence of those mortgagees who are not parties to these actions, this Court will certainly not undertake to decide what effect the order aforesaid may have on their rights. The order having been made upon notice of the motion therefor, it is binding upon the parties to these actions, and, therefore, this exception is overruled.

Fourth exception: The fourth exception complains of error on the part of the Circuit Judge in not holding “that an order of this kind cannot be made upon the ex parte statement of the receiver, but there must first be a reference and the taking of testimony, due notice being given of the same to all parties, before the order can be made.” This exception seems to have been taken under a misapprehension of the facts, as the order of his Honor, Judge Aldrich, shows that a copy of the order, which was attached to the notice of motion, was served upon the attorneys of. the respective parties to said actions. This exception is overruled.

It is the judgment of this Court, that the order of the Circuit Judge be affirmed.

Mr. Justice Pope.

In regard to the two appeals now under consideration, I may remark that none of us have had an}' trouble in reaching a conclusion on the questions relating to the removal of the two actions from the Court of Common Pleas for Beaufort County, in this State, to the Circuit Court of the United States for the district of South Carolina, especially since the recent decisions of the Supreme Court of the United States on that subject, which recent decisions are referred to in the leading opinion herein of Mr. Justice Gary. There is now no shadow of excuse for such removals. But this Court has been greatly perplexed in determining its duty, now that counsel for appellants have called our attention to an act of our General Assembly, approved in January, 1894, by which the charter of the Port Royal and Augusta Railway Company was repealed. It is in reference to this question that I have felt it to be my duty to express my views. The act in question is referred to, as to its title and scope, in the opinions of both Mr. Justice Gary and Mr. Chief Justice Mclver, and, therefore, need not be set out by me, and presents two phases: First, a bald repeal of the charter of the Port Royal and Augnsta Railway Company, the appellant in these cases now on appeal; second, provisions in the body of the act postponing the repeal of said charter until the accomplishment of an event in the future, which event has not yet occurred. The Chief Justice, in his opinion, maintains that the act of 1894 has repealed the charter of the appellant railway company, and that such repeal operated at once after the passage of the act, and that the provisions in the act did not authorize a continuance of these suits. Mr. Justice Gary, however, in his opinion, maintains that, while the act in question does provide for revoking the charter of appellant railway, yet that such charter is not to be revoked until the happening of an event in the future, and cites sections 2 and 5 of said act in support of his proposition, and that the provisions of the act will enable these suits to be retained. I desire to say that, if the act of 1894 did operate to revoke the charter of appellant at once after its passage, I could not agree to do more, under the facts brought to the attention of this Court by the counsel fo'r appellant and respondent, respectively, than to suspend the hearing of the appeal; for it is shown by the statement of such counsel that the appellant, while calling our attention to this act of 1894, maintains by its solemn answer in a proceeding now pending that such alleged act is unconstitutional, and, therefore, null and void. I know and acknowledge that when an appeal is pending in this Court, and it is here made to appear that any decision we may render will be of no practical value to the parties to such appeal, it is the duty of the Court to stay its hand and dismiss the appeal. For instance, if one is charged with a crime, and, after conviction, appeals to this Court, and then dies, the Court will go no further with the hearing of such appeal. Or, in further illustration, if a man is adjudged to pay a specific sum of money or to perform a specific act, and thereafter appeals to this Court from such judgment, seeking to set it aside, if it is brought to the attention of this Court that the person adjudged to pay the money or perform some specific act has acttially paid the money or performed the act, as reqtiired by the judgment of the court from which the appeal is entered, we would dismiss the appeal. Why would we do so? Because, in the first instance,, it is an absolute verity that the appellant had departed this life before his appeal could be heard. Because, in the second instance, the appellant had paid the money or performed the act required by the judgment appealed from, as an absolute verity. But suppose, in the first instance, it was a disputed matter whether the appellant was dead, or, in the second instance, it was a disputed matter whether or not the money was paid or the act performed as required by the judgment appealed from, and the appellant’s attorneys sought an order from this Court dismissing the appeal, because he alleged the appellant was dead, or had paid the money, or had performed the act as required by the judgment appealed from, this Court would not grant the order dismissing the appeal. Why? Because in neither case supposed could this Court say the statement was an absolute verity. Courts are not created to treat suits except as solemn realities. So, in the appeal before us, although the appellant cites the statute which purports to annul the charter of the appellant railroad, yet the same appellant, in its solemn answer in a suit between itself and the State of South Carolina, asserts that such an act is a nullity. Suppose the final judgment should decide that the act of 1894 is a nullity, after our attention had been called to such a contention, and we should dismiss this appeal, relying on that act as our authority for so doing; would we not involve this Court in a dilemma? Such, in brief, are my difficulties in acting at this time upon the suggestion that the act of 1894 should be used as the basis for an order dismissing this appeal. My conclusion would be, under these circumstances, to retain the appeal, but suspend its hearing for the present. But I am not left to hold to this view, because I agree with Mr. Justice Gary in his views, that the General Assembly of this State, in the provisions of this act of 1894, have, in effect, postponed and annulled the charter, certainly so far as these two actions are concerned. It is admitted on all hands that the General Assembly of this State could have, by annexing a clause to the act wherein the right to maintain these actions was concerned, preserved these appeals. If the provisions of the act itself, in the absence of the clause expressly authorizing the maintenance of these actions, clearly show that the General Assembly intended, by the language embodied in the act, that these suits should be still retained, such intention is clearly legal, and should be enforced. I therefore concur in the judgment announced by Mr. Justice Gary.

Mr. Chief Justice McIver.

These two cases, though not identical in form or in parties, practically are designed to effect the same general objects, and were, therefore, heard and will be considered together. Without undertaking to go into anything like a detailed statement of the pleadings, it will be sufficient to state, in general terms, that, in the first named case, it is alleged that the Georgia Central Railroad and Banking Company, holding a charter under the laws of the State of Georgia, has illegally acquired the control of the voting power of the Port Royal and Augusta Railway Company, and is using the power thus acquired to the great detriment of the last named corporation and its stockholders, 'entirely perverting its franchises from the purposes for which such corporation was created, and threatening the entire destruction of the interests of its stockholders; and the prayer, substantially, is, that this illegal control of the Port Royal and Augusta Railway Company by the Georgia Central Railroad Company may be put an end to, or that the charter of the Port Royal and Augusta Railway Company may be forfeited. In the second case above stated, which is brought by the plaintiffs as stockholders of the Port Royal and Augusta Railway Company, on behalf of themselves and all other stockholders of said last named company who may become parties and contribute to the expenses of the action, similar allegations are made as to the illegal domination and control of the Port Royal and Augusta Railway Company by the Georgia Central Railroad and Banking Company, with the further allegations that the last named company is indebted to the Port Royal and Augusta Railway Company in a very large sum of money, for earnings and profits taken from the said Port Royal and Augusta Railway Company, and for business diverted from it, and for the property of the said Port Royal and Augusta Railway Company taken and carried away and not accounted for; and that the further allegation that the manner in which the Georgia Central Railroad and Banking Company has exercised its illegally acquired control over the Port Royal and Augusta Railway Company, will certainly bring about the forfeiture of the charter of the last named company — a result which will be destructive of the interests of the stockholders of said company. In the second case, the prayer of the complaint is for the appointment of a receiver of the railroad, and all other property and assets of the Port Royal and Augusta Railway Company, with full power to operate the said railroad; that the Georgia Central Railroad may be enjoined from undertaking to operate the Port Royal and Augusta Railway, and from interfering with any of its property or assets, as well as from participating in any meeting of the stockholders of the Port Royal and Augusta Railway Company; that an accounting be had between the said Port Royal and Augusta Railway Company and the Central Railroad and Banking Company of Georgia for all money and property illegally taken by the latter from the former company, as well as of the earnings diverted from the Port Royal and Augusta Railway Company by the Georgia Central Railroad and Banking Company, and for such other and further relief as may be proper. In due time a petition and bond were filed by the defendants, claiming that these causes should be removed to the Circuit Court of the United States, upon the ground that a federal question was involved; and his Honor, Judge Aldrich, subsequently granted an order denying the right of removal. In the meantime, a rule was granted by the same Judge, requiring the defendants to show cause why the injunction previously granted should not be continued, and the temporary appointment of a receiver made permanent. Upon hearing the return of this rule, his Honor, Judge Aldrich, granted an order continuing the injunction until the final hearing of the causes, making the appointment of the receiver permanent, and directing said receiver to continue his respectful application to the United States Circuit Court for the district of South Carolina for the possession of the said property. Judge Aldrich also made an order overruling a demurrer to the complaints. From these several orders the defendants gave due notice of appeal, and both cases were docketed for hearing at November term, 1893, of this Court, which hearing, for causes unnecessary to state, was continued until the present term.

When the cases were called for hearing at the present term, counsel for appellants, without moving to dismiss these appeals, and, on the contrary, expressly averring that they made no such motion, brought to the attention of the Court the fact that since these appeals were taken and perfected the legislature of this State had passed an act entitled “An act to repeal the charter of the Port Royal and Augusta Railway Company, and to provide for liquidating the said corporation and for a distribution of its assets, and to regulate the formation of a new corporation, and the management thereof by any purchasers of the same,” approved by the governor January 3, 1894; and claimed that, by virtue of that act, these cases were ended, and that there was no practical question which this Court could or should decide. Thereupon the attorney general presented to the Court a paper styled “Information and Return of the State of South Carolina,” which is too long for insertion here, but which should be incorporated in the report of this case. It is sufficient to state here that, after several formal objections to the mode by which the passage of the act above referred to has been brought to the attention of the Court, which objections will hereafter be considered, and after bringing to the attention of the Court the effects which" will flow from the granting of the motion (as it is incorrectly termed) submitted by counsel for appellants', it proceeds to bring to the attention of the Court certain facts which may be substantially stated as follows: 1st. “That, in accordance with the provisions of the act of 1894, hereit before referred to, the State, through her attorney general did file a complaint, in the nature of a supplemental complaint, in this case, then pending, and now in this Court on appeal, in which reference is made to these proceedings; the act of 1894 is recited as matter occurring since the inception of this action; a sale of the property of the said Port Royal and Augusta Railway Company, and the distribution of the proceeds thereof, under and in accordance with the terms of said act, are sought. That this complaint is filed as a supplemental complaint to the original complaint herein, and tnat the relief sought is in accordance with the terms of the said act. That no order could be taken in this present case consolidating said actions or making such new action supplemental or additional, because this case, being under appeal to this honorable Court, was removed from the jurisdiction of the Circuit Court, and, therefore, no such order could be taken therein. That, the act of 1894 being but a continuation of the previous legislation upon the subject of the Port Royal and Augusta Railroad, this additional complaint was necessarily supplemental to the original complaint. It referred to the former proceedings instituted by the State, and now pending on appeal in this Court, sets out the fact of the subsequent legislation, and asks, as a continuation and part of the relief set out in the original complaint, that the property be sold, and the proceeds be distributed under and in accordance with the terms of the said act. That to this proceeding the Port Royal Railway. Company, the Central Railroad and Banking Company, and all other necessary parties were made parties defendant. That this cause is now at issue in the Court of Common Pleas for Beaufort County, having been remanded by the United States Court to the State Court, in view of the recent decisions of the Supreme Court above referred to. That the Port Royal and Augusta Railroad Company, the Central Railroad and Banking Company of Georgia, H. M. Comer, trustee, and the Union Trust Company of New York, defendants therein, have all filed answers in the said proceedings,” wherein they assail the validity of the act of 1894 upon various grounds, to wit: (1.) Because the charter of the Port Royal and Augusta Railway Company is an irrepealable charter. (2.) Because the said act was not approved by the governor within the time prescribed by law, and, therefore, is not an act. (3.) Because, even if the said act was approved in due time, the same is unconstitutional and void, because it purports to impair the obligation of a contract. The second fact stated in the paper styled “Information and Return of the State,” is that there is another action pending in the United States Circuit Court, brought by one R. M. Ogden, as a bondholder of the Port Royal and Augusta Railway Company, to enforce the provisions of the said act of 1894, in which case, also, the above named defendants assail the validity of the act of 1894 upon the ground above stated. It is further stated in that paper, “that the State, of course, maintains the validity of her acts;” and, finally, it is submitted “that, in order to maintain this motion, this honorable Court must be prepared to hold and decide that the said act of 1894 is either constitutional or unconstitutional, in whole or in part, and base its actions upon such decision.”

The attorney general contends, first, that this is a motion made by counsel for appellants to dismiss these appeals, or to declare these cases abandoned, and that such a motion cannot be entertained for want of proper notice. There is nothing in the record which justifies the assumption that appellants have made a motion for that purpose or any other purpose; and, on the contrary, their counsel, in their argument, expressly disavow any such purpose. ' Hence, without stopping to inquire whether the letter referred to in the argument would not be sufficient notice, if this could be regarded as a motion, it is enough to say that, in my judgment, there is no motion of any kind submitted to the Court by appellants, and, therefore, the preliminary objection presented by the attorney general cannot be sustained.

The true view is that this is nothing more than information spread before the Court of a fact, to wit: the passage of the act of 1894 repealing the charter of the Port Royal and Augusta Railway Company; and the position, as I understand it, of counsel for appellants, is that, with this fact before it, the Court, sua sponte, will decline to proceed further with these cases, because there is now no practical question left for the Court to decide. It is well settled that a court will not undertake to decide mere abstract or speculative questions; for, as is well said by Mr. Justice McGowan, in State v. Gaithers, 15 S. C., at page 372: “This Court cannot consider merely speculative questions and give opinions upon disputed points of law. Our duty is to pronounce practical judgments; to settle and determine the rights of parties. There must be an actual existing case to call into exercise the judgment of the Court.” So in Ex parte Pereira, 6 Rich., 149, where the petitioner had appealed from an order refusing the writ of habeas corpus, and, pending his appeal, the petitioner had placed himself beyond the jurisdiction of the Court; upon this fact being brought to the attention of the Court, it refused to hear the appeal, upon the grouud that the Court would be doing “a vain act to hear this appeal,” and accordingly the case was stricken from the docket. So, also, in the case of State v. Murrell, 33 S. C., 83, where a person had been convicted of murder, and given notice of appeal, and pending such appeal he had escaped from jail, and thereby placed himself beyond the jurisdiction of the Court, the Court, sua sponte, declined to hear such appeal, upon the authority of Ex parte Pereira, supra; Smith v. U. S., 94 U. S., 97; Bonahan v. Nebraska, 125 U. S., 692; People v. Redinger, 55 Cal., 290 (reported, also, in 36 Am. Rep., 32); and State v. Wright, 32 Ra. Ann., 1017 (reported, also, in 30 Am. Rep., 274). Again, in the case of Cantwell v. Williams, 14 S. E., 549, which was a contest as to the office of supervisor of registration, in which, pending an appeal, Cantwell was removed from office by the proper authority, this Court, sua sponte, declined to hear the appeal, upon the ground that there was no longer z practical question for the Court to decide. In support of that view, among other authorities cited, was the case of U. S. v. Boutwell, 17 Wall., 607, in which the application was for a mandamus requiring Boutwell, as secretary of the treasurer, to pay an order on the treasury; and, the' application having been refused by the Supreme Court of the District of Columbia, the case was carried by writ of error to the Supreme Court of the United States. While the case was pending in that Court, Boutwell resigned his office and Richardson was appointed in his place. Held that, on the resignation of Boutwell, the writ must abate, in the absence of any statutory provisions to the contrary. In view of-these authorities, as well as upon reasoning which it is unnecessary to go into here, it seems to me clear that if the act of 1894 is properly before the Court, and has the effect of repealing the charter of the Port Royal and Augusta Railway Company, then these cases are effectually ended, and this Court can render no practical judgment therein; for it is obvious that the continued existence of the Port Royal and Augusta Railway Company is an essential elemant in both of these cases, the scope and object of which have been substantially set forth above. In the first of the cases, the object being to prevent the continued domination and control of the Port Royal and Augusta Railway Company by the Georgia Central Railroad and Banking Company, obtained by the alleged illegal acquisition of the majority of the stock and voting power of the Port Royal and Augusta Railway Company, or, if that is not practicable, to forfeit the charter of the last named company, of' course, if the charter of such company has already been forfeited by the act of 1894, there is no longer any stock or voting power in the extinct Port Royal and Augusta Railway Company; and the question whether the Georgia Central Railroad and Banking Company had heretofore, legally or illegally, acquired the majority of such extinct voting power, has become a fruitless inquiry; and surely it would be a work of supererogation, to say the least of it, for the Court to declare a charter forfeited after it had been repealed by an act of the legislature. So, also, in the second case, one of the essential elements — one without which it could neither have been instituted nor can it be continued — is the fact that the Port Royal and Augusta Railway Company was, and still is, a corporation, for the action purports to be brought by the plaintiffs as stockholders of such corporation, for the purpose of having the ownership of the stock and voting power of certain other alleged stockholders dedared illegal and void, and for the purpose of having an accounting between the two corporations, the Port Royal and Augusta Railway Company, and the Central Railroad and Banking Company; and, if one of these alleged corporations has become extinct by the forfeiture of its charter, there are now no longer any stockholders therein capable of maintaining an action like this.

It is urged, however, that in both of these cases a receiver of the property and assets of the Port Royal and Augusta Railway Company has been asked for and appointed, and, therefore, it is necessary that these cases should be retained and continued, in order that the accounts of such receiver may be adjusted, and he be discharged. But it seems to me that the appointment of a receiver is merely ancillary to the main purposes and objects of the action, and when these fail, the receivership necessarily terminates also. Besides, as will hereinafter be shown, these matters can more properly be adjusted in another proceeding which has been instituted by the attorney general, and brought to our attention in the paper styled “Information and return of the State of South Carolina.”

6 It is contended, however, by the attorney general, that this Court cannot take notice of the act of 1894, repealing the charter of the Port Royal and Augusta Railway Company, because it is not a public but a private act, and has not been brought to the attention of the Court by any recognized mode of pleading or proof. It'seems to me that this question is conclusively determined by the provisions of the charter of the Port Royal and Augusta Railway Company adversely to the view contended for by the attorney general; for it appears by the allegations of the complaint in the case first above stated, that, when the Port Royal Railroad Company was first chartered, it was invested with all the powers, rights, and privileges conferred upon the Spartanburg and Union Railroad Company, and the act incorporating that company is expressly declared to be a public act. 11 Stat. at Large, at page 570. And as it also appears in the complaint that when the Port Royal Railroad was sold, and the purchasers at said sale were incorporated, and the new company, by the name and style of the Port Royal and Augusta Railway Company, was formed, it was invested with all of the powers, rights, and privileges formerly conferred upon the Port Royal Railroad Company, one of which was holding its charter under an act expressly declared to be a public act. But, aside from and in addition to this, it seems to me that, under the case of Bank of Newberry v. Greenville & C. R. R. Co., 9 Rich., 495, even without such express declaration, the charter of the Port Royal and Augusta Railway Company must be regarded as a public act; for in that case it was held that the charter of the Bank of Newberry, even though the act conferring the charter contained no express declaration to that effect, should be regarded as a public act, because the corporation thereby created was of a public character, and the exercise of its franchises affected the whole community. In that case, his Honor, Judge Glover, in delivering the opinion of the Court of Errors, said: “The distinction between a public and a private act does not depend upon the clause, which is often inserted, directing that it shall be deemed and taken as a public act. We must look to the objects and purposes contemplated, and the scope and general provisions of the act, to ascertain its character. * * * Numerous instances may be cited to mark the distinction, where the legislature has failed to do so expressly.” He cites the case of Bank v. Smedes, 3 Cow., 684, as showing the inclination of the Court is to regard all acts which incorporate banks as public acts, without regard to their connection with the revenue, and quotes the Chancellor as saying in that case: “I am not prepared to admit that a law incorporating a bank is a private act, which must be recited in every suit against a corporation. These institutions are public in their character, and their operations affect the whole community.” See, also, Potter’s Dwar. St., p. 63, where it is said: “Generally speaking, statutes are public, and a private statute may rather be considered an exception to the general rule.” And in note 2 to that page, it is said: “Raws creating banks of issue, though not declaring themselves public, are public laws,” citing Smith v. Strong, 2 Hill (N. Y.), 241; Bank v. Smedes, supra. Now, if an act incorporating a bank is to be regarded as a public act, because it is designed to forward public purposes, and the exercise of its franchises affects the whole community, how much more true is this of an act incorporating a railroad company, and conferring upon it the power to construct a railroad, characterized in many of the cases as an “improved highway,” and permitting it to exercise the sovereign right of eminent domain. Judge Dillon, in his great work on Municipal Corporations, in section 105a: of his second edition, after discussing the question as to the power of the State to authorize a municipal corporation to subscribe to the stock of a railroad company, and tax the property of individuals within its corporate limits to pay the indebtedness thereby incurred, and after arraying the authorities on the one side and the other, especially the cases in the Supreme Court of the United States which justify the exercise of such a power, uses this language: “The Supreme Court, in reaching this result, places its judgment upon the ground that highways, turnpikes, canals, and railways, although owned by individuals under public grants or by private corporations, are ftublici juris; that they have always been regarded as governmental affairs, and their establishment and maintenance recognized as among the most important duties of the State, in order to facilitate transportation and easy communication among its different parts; and hence the State may put forth, in favor of such improvements, both its power of eminent domain (as it constantly does) and its power to tax, unless there be some special restriction in the Constitution of the particular State. These powers may, in the judgment of the Court, be lawfully exerted, because the use is in its nature a public use, and these works are subject to public control and regulation (except so far as this right has been lawfully parted with by valid legislative contract), notwithstanding they may be exclusively owned by private persons or corporations.” See, also, to same effect, State v. Whitesides, 30 S. C., at page 584; State v. Neely, 30 S. C., at page 604. Upon similar grounds, legislation controlling the operations of railroad corporations by fixing the rate of charges requiring such companies to pay the expenses of a railroad commission, and in many other ways, has been justified both by the Supreme Court of the United States and of this State. This shows beyond all dispute that a railroad company is of such a public character, and devoted to such public uses, as to require that an act incorporating such a company must necessarily be regarded as a public act.

If, then, the original act conferring the charter of the Port Royal and Augusta Railway Company must be regarded as a public act, then any act supplementing, amending or repealing such act must likewise be regarded as a public act. See Unity v. Burrage, 103 U. S., 447, and State v. Hoeflinger, 31 Wis., 257, cited in 23 Am. & Eng. Enc. Law, 146. I am, therefore, of opinion that the act approved 3d of January, 1894, repealing the charter of the Port Royal and Augusta Railway Company, is a public act, of which this Court is bound to take judicial cognizance when brought to its notice.

But even if I am in error in that view, and the repealing act above referred to must be regarded as a private act, then it seems to me that, under the provisions of section 184 of the Code of Procedure, this Court can and should take judicial cognizance of said act. That section reads as follows: “In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute by its title and the day of its passage, and the Court shall thereupon take judicial notice thereof.” Certainly the reference to this repealing statute over and again in this proceeding is quite sufficient to bring such statute before the Court.

But, again, it is contended by the attorney general, that because of the fact, as he alleges, that the same counsel who now submits to the Court the proposition, that these cases have been terminated by the repeal of the charter of the Port Royal and Augusta Railway Company, has, in certain other cases (referred to in the “Information and return of the Státe of South Carolina,” to which these appellants, along with others, are parties, which cases are now pending in other jurisdictions), taken the position that the repealing act of 1894 is unconstitutional, null, and void, for that reason, it is urged that this Court cannot now determine the question whether these cases have been ended, without first determining the question as to the validity of said repealing act. It will be observed that no party to these proceedings has raised herein an)' question as to the validity of said repealing act. Counsel for appellants certainly do not, for the proposition which they contend for necessarily rests upon the assumption that the repealing act of 1894 is a valid and constitutional exercise of legislative authority; and the attorney general explicitly states in his “Information and Return” that “the State, of course, maintains the validity of her act in its entirety;” and, in his argument, the attorney general says: “We are, of course, ready to meet the objections, and maintain the validity of the act, but we submit to the Court that this is not the proper time nor the proper method.1’ So that here the Court is called upon to decide a proposition which rests entirely upon the assumption of the validity of an act of the legislature which neither of the parties assails in this proceeding. Under these circumstances, it seems to me that it is asking too much of this Court to volunteer to hunt up objections to the constitutionality of the repealing act of 1894. Such a course would, in my judgment, be in flagrant violation of the well settled rule, which has been recognized and acted upon in several very recent cases, that the Court will not undertake to consider or determine the constitutionality of an act of the legislature, even whei'e the question is made by the parties, unless it is necessary for the decision of the case, and surely the Court should not do so in a case where neither of the parties raises any such question. This act is found upon the statute book, and, where neither of the parties assails its validity in this proceeding, it seems to me that the Court is bound to regard it as a valid exercise of legislative authority, until it is clearly shown to be otherwise. The fact that we are unofflcially informed that, in other cases pending in other jurisdictions, the validity and constitutionality of this act has been assailed, should not influence the action of the Court in this case. We do not know, and cannot know, whether this assault upon the validity of the act will be persisted in, in those other cases, which are not now before us, or, if so, what will be the result of such attack. All that we do now know, or can properly know, is that, in this proceeding, the repealing act is assumed by all parties to be valid and constitutional, and I think the Court is bound to so regard it in this proceeding.

Again, it is urged .that it is necessary that this Court should retain jurisdiction of these cases in order to determine, first, in what Court — the State or United States Court — the receiver heretofore appointed should account, and by what Court he should be' discharged. This, however, is a matter which should have been thought of before the passage of the repealing act, and suitable provisions to effect that end should have been inserted in that act. But, be that as it may, it seems to me that when the State, in the exetcise of its sovereign authority, repealed the charter of the Port Royal and Augusta Railway Company, it effectually put an end to both of these cases, and left nothing of which this Court could take jurisdiction. I may add, however, that inasmuch as this Court has been informed, by the statements made in the “Information and return of the State of South Carolina,” that the attorney general has already instituted an action in the Court of Common Pleas for Beaufort County, as directed by the repealing act of 1894, to carry into effect the provisions of that act, I see no reason why the receiver heretofore appointed may not be called to account in that action, as the person now in possession of the property and assets of the corporation dissolved by that act; for the second section of the repealing act reads as follows: “That the attorney general of this State be, and he is hereby, directed and instructed to institute forthwith proper proceedings to liquidate the said corporation to restrain it, or its stockholders or creditors, or any or either of them, from in any way asserting or exercising, or attempting to assert or exercise, any rights, privileges or franchises as a corporation, to have a receiver appointed of all the property and assets of the said corporation, to have its accounts duly taken and audited, to have its said property and assets sold, and distribution of the proceeds thereof made among its several creditors and stockholders, in accordance with law.”

7 Again, it is contended by the attorney general that the action last above referred to, which he has instituted in the Court of Common Pleas for Beaufort County, is “practically a supplemental bill or bill of revivor, and must be taken as such.” As the complaint in that case is not before us, we have no means of determining what purports to be its nature. It is enough, however, to say that, no matter what such complaint may contain, it cannot be regarded either as a supplemental bill or a bill of revivor in these cases, for the reason that there can be no such bill brought against a defunct corporation. Such a bill may be proper enough in a case where a nattiral person dies pending an action, for in such case the personal representatives of the deceased may be brought in as parties; but in case of a defunct corporation, which has, and can have, no personal representatives, such a course becomes impossible. The two cases cited by counsel for appellants are conclusive as to this point. In Bank v. Colby, 21 Wall., 609, where the charter of the plaintiff was declared forfeited by proper authority, a pending action brought by Colby against the bank was held finally abated. In that case, Mr. Justice Field, in delivering the opinion of the Court, uses this language: “With the forfeiture of its rights, privileges, and franchises, the corporation was necessarily dissolved, as the decree adjudged. Its existence as a legal entity was thereupon ended. It was then a defunct institution, and judgment could no more be rendered against it in a suit previously commenced than judgment could be rendered against a dead man, dying jt>e7idente lité. This is the rule with respect to all corporations whose chartered existence has come to an end, either by lapse of-time or decree of forfeiture, unless, by statute, pending suits be allowed to proceed to judgment notwithstanding such dissolution. The prolongation of the corporate life for this-specific purpose as much requires special legislative enactment as does the original creation of the corporation.” And he proceeds to quote, with approval, the following language, used by Story, J., in Greeley v. Smith, 3 Story, 658: “I cannot distinguish between the case of a corporation and the case of a private person dyingpendente lite. In the latter case the suit is abated at law, unless it is capable of being revived by the enactment of some statute, as is the case as to suits pending in the Courts of the United States, when, if the right of action survives, the personal representatives of the deceased party may appear and prosecute or defend the suit. No such provision exists as to corporations, nor, indeed, could exist, without reviving the corporation pro hac vice; and, therefore, any suit pending against it at its death abates by mere operation of law.” The same doctrine was recognized in the recent case of Pendleton v. Russell, 144 U. S., 640. Of course, the same doctrine will apply to a corporation whose existence has been terminated by an act -repealing its charter; and as we have no statute here, so far as I am informed, authorizing the continuance of an action against a defunct corporation, the conclusion necessarily follows that these two cases have abated by the repeal of the charter of the Port Royal and Augusta Railway Company, and this Court can now render no judgment herein.

I do not think that the case of Pomeroy's Lessee v. Bank of Indiana, 1 Wall., 23, which has been cited, is in point. There, pending an action against the bank, its charter expired by its own limitations, and it was contended that the action thereby abated; but the Court held that the action did not abate, because the act limiting the period for the exercise of banking powers expressly provided that it should have all the “necessary and incidental powers to collect and close up its business,” which, of course, implied that the pending action should be continued for the purpose of enabling the bank to “close up its business.” Here, however, there is no such provision in the repealing act of 1894. On the contrary, that act directs the institution of another action for the same purpose practically as the action first above stated. It may possibly be said that the act of 1894, above referred to, does not effect a final and immediate repeal of the charter of the Port Royal and Augusta Railway Company, by reason of the provisions of the fifth section of that act, which reads as follows: “Nothing in this act contained shall prevent the running and operation of the said railroad, with all the privileges and franchises named in the said charter, until such time as such railroad shall be sold under any judicial proceedings, and delivery made to the purchasers thereof.” But in view of the explicit declaration in the first section of that act— “that the charter of the Port Royal and Augusta Railway Company, a corporation created by and existing under the laws of this State, be, and the same is hereby, repealed, and that the said corporation be, and the same is hereby, dissolved” — I do not see how any such contention can be sustained. It will be observed that the provision is not that the charter shall at some time in the future^be repealed, but that said charter is hereby repealed, and the said corporation is hereby dissolved. So that, the moment that the act took effect, the charter was at once repealed, and the corporation was dissolved. The only effect of the provision of the fifth section above quoted is to enable the receiver, whose appointment is provided for in the second section, to continue to operate the railroad until it is sold. It certainly does not provide for the continuance of any pending action, for there is nothing in the act to warrant any such idea. On the contrary, the provisions of the second section, 'which have been quoted in full above, plainly show that such was not the intention of the legislature, as a new action is there expressly directed to be brought, which is inconsistent with any pending suit.

I am, therefore, compelled to conclude that both of the cases mentioned in the title of the opinion have been abated and finally ended, and, therefore, this Court can no longer exercise jurisdiction of any of the questions raised in said cases.