An action was brought before a magistrate in Sumter county to recover $52.50, the value of fourteen barrels of flour alleged to have been lost while in defendant's possession, and joined therewith was an action for $50.00 penalty for not adjusting the claim as required by statute. The magistrate gave judgment for the amount claimed in both causes of action, and the Circuit Court affirmed the judgment.
On the hearing before this Court, appellant for the first time raised the question that the magistrate had no jurisdiction of the action for the penalty. The goods were shipped from Evansville, Ind., to St. Charles, S.C. and the claim was filed for adjustment at St. Charles. The contention is that the Court will take judicial notice that St. Charles is in Lee county, and that, therefore, the cause of action for penalty did not arise in Sumter county, but in Lee county. This Court allowed counsel on both sides to file arguments as to the point of jurisdiction. "Courts will ordinarily take judicial notice of whatever is or ought to be generally known within the limits of their jurisdiction." 1 Elliott on Evidence, sec. 42. *Page 352
Without attempting to define the limits within which an appellate court with no jurisdiction over facts may take judicial notice, it is certain that an appellate court may at least take notice of matters within the judicial notice of the trial Court. 1 Elliott on Evidence, sec. 39.
The testimony shows that St. Charles is a regular station on the line of the Atlantic Coast Line Railway, that plaintiff has been for years conducting a mercantile business at that place, and that St. Charles, S.C. is his address. Courts take judicial notice of the location of a railroad within its jurisdiction, and, therefore, this Court knows that defendant's line traverses Lee county as well as Sumter county. The Court also takes notice of the well known custom of railroads not to have two stations of the same name on its line within a State, and of the custom of the government not to have two postoffices of the same name in a State. By public statutes, St. Charles is within the territorial jurisdiction of a magistrate of Lee county, and is located as a voting precinct in St. Charles township, in Lee county. St. Charles is also an established postoffice in Lee county. The authorities generally hold that judicial notice may be taken of the location of incorporated towns and cities along the line of a railroad, but we think, within the principle of the rule, a Court may take notice of the geographical location of regular and long established stations on such line which are postoffices, and the location of which is designated by a public statute. Such public characteristics distinguish such localities from mere private places, and it is fair and safe for the Court to attribute to them such notoriety as to bring them within the common knowledge of persons of intelligence. Funderburg v. Augusta etc. Ry.Co., 81 S.C. 141, 61 S.E., 1075; Central etc. v. Gamble (Ga.), 3 S.E. Rep., 288; R.R. Co. v. Case, 15 Ind., 42;R.R. Co., v. Moore, 16 Ind., 43; 16 Cyc., sec. 861; 12 Am. En. An. Cases, note 927-938. *Page 353
This Court takes notice that St. Charles, the place of delivery of the goods, is not located in Sumter county, but is in Lee county.
In one of the cases of same plaintiff against same defendant, involving shipment of shoes, and involving the same question of jurisdiction, the complaint characterised St. Charles as a town in Lee county, and while there was a general denial in the answer, no evidence was offered to show that St. Charles is in Sumter county. As a magistrate court is one of limited jurisdiction, its jurisdiction of an action for the penalty should affirmatively appear in the record. Hall v. Sullivan, 70 S.C. 397. St. Charles not appearing to be in Sumter county, did the magistrate in Sumter county have jurisdiction?
It is, of course, conceded that if the question of jurisdiction relates to the person it may be, and was waived by appearance and contest on the merits. The authorities on this point are too numerous to cite. But on the other hand, if the question of jurisdiction relates to the subject, it cannot be waived, since consent can not confer such jurisdiction. The authorities on this point are also too numerous to cite.
It is furthermore manifest that if the jurisdiction is of the subject, the principle that, "He who is silent when good conscience demands that he should speak, shall not be allowed to speak when justice requires that he should be silent," has no application, for the simple reason that if consent cannot confer such jurisdiction, it cannot be conferred by waiver or estoppel in pais, which are based upon assent. It is further settled that if the jurisdictional question relates to the subject, it may be made for the first time in this Court. State v. Penny, 19 S.C. 218; Ware v. Henderson,25 S.C. 388; Bell v. Fludd, 28 S.C. 315,5 S.E., 810. Hence, it is apparent that the real point in controversy is whether the present question of jurisdiction relates to the person or to the subject. *Page 354
On this point the authorities in this State are practically unanimous to the effect that the question of jurisdiction at bar relates to the subject. Ware v. Henderson, 25 S.C. 285;Bell v. Fludd, 28 S.C. 313, 5 S.E., 810; McGrath v. Ins.Co., 74 S.C. 69, 54 S.E., 218; Nixon v. Ins. Co., 74 S.C. 440,54 S.E., 657; Silcox v. Jones, 80 S.C. 484,61 S.E., 948; Riley v. Southern Ry. Co., 81 S.C. 387,62 S.E., 509.
In Best v. Ry. Co., 72 S.C. 479, 52 S.E., 223, the cause of action for the penalty arose in the county in which suit was brought, and the Court held that the magistrate having jurisdiction of the subject could acquire jurisdiction of the person of a foreign corporation having property in this State by service of a summons or by appearance of defendant. Hence, the case has no bearing on the present issue.
The only case which gives semblance of support to the view that a magistrate may have jurisdiction over the subject an action for a penalty on a cause of action wholly arising in another county is Jenkins v. Railway, 73 S.C. 294,53 S.E., 481, but when that case is examined with care it will be found not to sustain the view. In that case the contract of shipment, and the delivery of the goods was to the carrier at Gaffney, S.C. in the County of Cherokee, where the suit was brought, and while the contract was for the delivery of the goods at Greers, in Greenville county, for all that appears the goods may have been lost in Cherokee county. The requirement of the statute is that the action for a penalty "must be tried in the county where the cause or some part thereof arose." In that case Judge Ernest Gary found, as a matter of fact, "That at least a portion of the cause of action did arise in this (Cherokee) county." Exception (9) was taken to this finding of fact, and this exception was overruled as involving a question of fact. Hence, the point decided in the case was that a magistrate in Cherokee county had jurisdiction *Page 355 of an action for a penalty, the Circuit Court having found, as a fact, that some part of the cause arose in that county. It is true, the Court, speaking through Mr. Justice Gary, further said: "The question of jurisdiction related to the person, and was waived when the defendant answered the complaint, and contested the merits of the case. It is only necessary to refer to Best v. Ry., 72 S.C. 479,53 S.E., 481, and the cases therein cited to show that this conclusion is amply supported by the authorities." Turning to the last mentioned case, we do not find any authorities in the majority opinion of the Court to sustain the view that a magistrate has jurisdiction of an action for a penalty when no part of the cause arose in his county, and there was no such issue, nor do we find any such authorities in the dissenting opinion, as the authorities therein related to jurisdiction of the person, and not jurisdiction of the subject. In Jenkins v. Ry., supra, there was not expressed any intention to overrule the doctrine of Ware v. Henderson, and Bell v. Fludd, supra, but in the latter case ofDixon v. Ins. Co., supra, the Court reaffirmed Ware v.Henderson and Bell v. Fludd, and expressly overruled Jenkins v. Ry, supra, in so far as it might be regarded as conflicting with the previously settled law, and in the latest case on the subject, Riley v. Ry., supra, which involved the right to sue for a penalty in Saluda county, when the cause arose in Newberry county, the Court, speaking by Mr. Justice Woods, said: "The question involved was jurisdiction of the subject matter, and is, therefore, not affected by the appearance of the defendant for the purpose of submitting a demurrer to the complaint for defect of parties, as well as want of jurisdiction, Nixon v. Piedmont Mut.Ins. Co., 74 S.C. 438, 54 S.E., 657; Silcox v. Jones, 80 S.C. 484,61 S.E., 948."
If, therefore, any question can be regarded as settled by a long line of cases, this is one. While there should be no slavish adherence to the doctrine of stare decisis when *Page 356 the reason for the stated rule has ceased, or the rule is clearly contrary to reason and justice, yet the rule of staredecisis is highly salutary in producing certainty as to the law; whereas, vacillation destroys respect for the Court. The rule so long established is well founded in reason. Jurisdiction which depends upon the place where the cause of action arose can not be a mere matter of procedure to be corrected upon timely application, nor is it a mere personal privilege of a party to be waived. It affects the power of the Court to hear and determine the matter, after it has acquired jurisdiction of a person by service of summons or by appearance. The question is not whether a magistrate in Sumter county has jurisdiction to try an action for a penalty, but whether he has jurisdiction to try such an action, when the cause in whole or in part did not arise within his district or county. The statute which commands that a particular action must be tried in a designated county is a territorial limitation of the Court's jurisdiction and power, which cannot be controlled by consent of parties. The object of the action is not to recover a penalty without regard to where the cause of action arose, but for a penalty as to which the cause arose in whole or in part in the county of the suit. "Cause of action" means all the facts necessary to establish plaintiff's right to relief. These are, in brief, the delivery of the goods to defendant as a carrier, the contract of transportation and delivery, its breach, and damages sustained; and as to the penalty, these additional facts: the filing of a claim for loss or damage, non-adjustment of the claim within the statutory period, and establishing of right to recover the amount of claim as filed. Some of these facts may have arisen in one county, and some in another, in which event the cause may be said to have arisen, in part in either county, as in the case of Jenkins v. Ry., supra.
Section 145, of the Code of Civil Procedure, is imperative in requiring an action for a penalty imposed by statute *Page 357 to be tried in the county wherein the cause or some part thereof arose, and there is no doubt that the cause of action in this case arose in Lee county.
In so far as act approved February 26, 1909, affects sec. 145, it has no application in this case, as the action was commenced before the adoption of the statute. It is contended, however, that the penalty act of 1903, which allows causes of action for recovery of the possession of the property shipped, for loss or damage thereto, and for the penalties therein provided for, may be united in the same complaint, and repeals inconsistent acts, amends section 145, above, so as to carry the right to join an action for penalty in any county wherein an action for damages, etc., may be brought.
Section 4 of the act of 1903 may be construed as amending the provisions of the Code providing for joinder of causes of action, but it will be seen, by reference to section 188 of the Code of Civil Procedure on that subject, that actions which require different places of trial are not to be joined, and the act of 1903 nowhere, expressly or by necessary implication, shows an intention to change the place of trial of actions for penalties. Hence, construing the act of 1903, with reference to sections 145-188 of the Code of Civil Procedure, the purpose was not to alter the law as to the place of trial of actions for penalties, but to permit a joinder in any court having jurisdiction of the causes sought to be joined. Accordingly in Riley v. Southern Ry., supra, the latest case on that subject, a majority of the Court, as already stated, held that the question related to jurisdiction of the subject matter, and that a magistrate in Saluda county having jurisdiction of an action for damages, nevertheless had no jurisdiction of the action for the penalty arising in Newberry county. The conclusion, therefore should be that the magistrate of Sumter county had no jurisdiction of the action for penalty which arose in Lee county. Considered merely with respect to common carriers of freight, the question *Page 358 may not be regarded as very important, since the act of February 26, 1909, has altered the rule as to actions for certain penalties against them, but the case as a precedent will affect all actions for penalties imposed by statute, and in that view is important. But what to me seems very important is that if the magistrate had no jurisdiction of the subject matter, the judgment rendered for the penalty is void, and ought not to be affirmed, especially when the action of the Court may be regarded as overruling numerous decisions of the Court and departing from the long-established law, without any good reason.
MR. JUSTICE WOODS and CIRCUIT JUDGES DANTZLER, PRINCE, MEMMINGER and ALDRICH concur in this opinion.