[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 146 December 31, 1924. The opinion of the Court was delivered by This is a petition for a writ of mandamus brought in the original jurisdiction of this Court under Section 4888, Vol. 3, Code of 1922, based upon an order issued by the Railroad Commission under Section 4878 of said Code, wherein said Commission required the defendant railroads to build a connecting track at the point where their respective roads cross each other at Mullins, S.C.; let the petition, return of the defendant Seaboard Air Line Railroad, and the order as passed by the Railroad Commission be reported. It appears from the case that the defendant Atlantic Coast Line Railroad made return that they were willing to comply with said order.
This case is submitted by consent order, upon the "pleadings and the record before the Railroad Commission, including the evidence taken by such Commission, the Court to give such effect to the evidence taken by the Commission as may be proper under law."
There are three questions involved in this appeal for determination: (1) Can the State, under its police power or proper legislation, compel railroad companies to build and maintain connecting tracks? (2) Is the statute under which the Railroad Commission brought this petition constitutional, or does it invade the jurisdiction of the Interstate Commerce Commission? (3) Has such showing, apart from the other two questions, been such as to warrant the issue of the order sought?
Where the public interest requires the lines to be connected, in order that the service rendered shall be more efficient and advantageous to the public and the patrons of the railroad, the State may compel the roads to connect their lines, where the public interests require. That is the basis for the exercise of such powers, and it follows that by some authoritative method, such conditions should be established as a fact, before the power is invoked. SeaboardR.R. v. Commission, 240 U.S. 324; 36 S.Ct., 260; *Page 155 60 L.Ed., 669. Mich. R.R. Co. v. Commission, 236 U.S. 615;35 S.Ct., 422; 59 L.Ed., 750. Wisconsin R.R.Co. v. Jacobson, 179 U.S. 287; 21 S.Ct., 115;45 L.Ed., 194. Oregon R.R. Co. v. Fairchild, 224 U.S. 510;32 S.Ct., 535; 56 L.Ed., 863. Grand Trunk R.R. Co. v.Commission, 231 U.S. 457; 34 S.Ct., 152; 58 L.Ed., 310.
As it has been seen that the State may enforce its powers in such matters as are under consideration when the necessity exists, it follows that such necessity must first be shown. It is not enough to rely upon the implication in the statute, for, were that true, then the presumption would attach to every such crossroad without regard to the character of service rendered the public or patrons of the railroads. The exercise of the police power proceeds upon the demand arising out of necessity for the public good. Railroad Comm. Cases, 116 U.S. 307; 6 S.Ct., 334, 388, 1191;29 L.Ed., 636. Chicago R.R. Co. v. Minn., 134 U.S. 418;10 S.Ct., 462, 702; 33 L.Ed., 970. Chicago R.R. Co. v.Wellman, 143 U.S. 339; 12 S.Ct., 400; 36 L.Ed., 176.Lake Shore R.R. Co. v. Smith, 173 U.S. 684;19 S.Ct., 565; 43 L.Ed., 858.
In connection with the "public good" there must be considered the question of expense to the railroad. This is necessary in determining the question of the reasonableness of the requirement. Oregon R. Co. v. Fairchild, supra.
If the amount of expenditure should partake of the character of confiscation and so claimed by the railroad, provisions should be made for a hearing by some tribunal with authority to determine questions of law and fact, otherwise the taking would be without due process, and in conflict with the Fourteenth Amendment. Ohio Valley Water Co.v. Borough, 253 U.S. 287; 40 S.Ct., 527; 64 L.Ed., 908.Oregon Co. v. Fairchild, supra.
A party must not be deprived of his property without a judicial hearing, but the stage of proceedings at which that hearing shall take place, and the manner *Page 156 in which the cause of a party shall be brought before the judicial tribunal, provided it is not an unreasonable, inconvenient and embarrassing one, are within the legislative power. 6 R.C.L., 447, p. 452, citing Flournoy v. Jeffersonville,17 Ind., 169; 79 Am. Dec. 468.
"Due process of law is afforded litigants if they have an opportunity to be heard at any time before final judgment is entered." 6 R.C.L., supra, citing Wilsonv. Standefer, 184 U.S. 399; 22 S.Ct., 384;46 L.Ed., 612.
"A hearing or an opportunity to be heard, prior to judgment, is absolutely essential." 6 R.C.L., supra. State v.Billings, 55 Minn., 467; 57 N.W., 206-794; 43 Am. St. Rep., 525.
One of the essential elements of due process of law is the opportunity to be heard. Lent v. Tillson, 140 U.S. 316;11 S.Ct., 825; 35 L.Ed., 419. Standard Oil Co. v. Missouri,224 U.S. 270; 32 S.Ct., 406; 56 L.Ed., 760, Ann. Cas., 1913d 93.
A construction of the statute is necessary in order to ascertain whether or not it conforms to the foregoing requirements — and this must be done according to the legislative intent. Lesesne v. Young, 33 S.C. 543;12 S.E., 414.
Every possible effect that can be given to every section, clause, word or part of the act, must be accorded it. This rule of law is so universal that authorities need not be cited to sustain it. Had the act in question conclusively and finally fixed the responsibility on the railroad companies, leaving no avenue of approach to a hearing, it would undoubtedly be null and void. C.M. St. Paulv. Minn., 134 U.S. 418; 10 S.Ct., 462, 702;33 L.Ed., 970. Missouri Pac. R. Co. v. Tucker, 230 U.S. 340;33 S.Ct., 961; 57 L.Ed., 1507. If the act in question had not included the proviso, again there is no doubt that a proper *Page 157 construction would reveal the fact that there is a taking without a hearing.
"The office of a proviso is either to except something from the enacting clause or to qualify or restrain its generality, or to exclude some ground of misinterpretation of it." 25 R.C.L., § 231, p. 984.
The main provision of a statute and the proviso are to be read together with a view to carry into effect the whole purpose of the law. White v. U.S.,191 U.S. 545; 24 S.Ct., 171; 48 L.Ed., 295. Anderson v.Pacfic Coast S.S. Co., 225 U.S. 187; 32 S.Ct., 626;56 L.Ed., 1047.
If it be true that due process of law is afforded litigants if they have an opportunity to be heard at any time before final judgment is entered (6 R.C. L., p. 452, and 79 Am. Dec., 468, supra,) then may not the proviso to the statute in question be said to provide that opportunity? That act was passed in 1900 (23 St. at Large, p. 388). In it the Legislature set up a tribunal to which the requirement could be carried for investigation and determination, and six months' time must elapse before the statute or requirement becomes conclusive, or any penalty could attach or any writ applied for.
In the case at bar, the defendant was notified and appeared at the hearing. No judgment or demand for penalties have been sought or rendered. The hearing resulted in an order in the case to which, at the time, no exceptions were taken nor any steps to have a review by a superior tribunal. "A railroad company, which has been notified, appeared and contested a matter before the Railroad Commission is not deprived of its property without due process" of law. R.R. Commission v. A.C.L.R. R., 71 S.C. 130;50 S.E., 641.
It may be suggested that the statute is fatally defective in that there is no express direction that notice of hearing must be given. The Commission is a *Page 158 creature of our Constitution having thereby such powers and duties as are conferred and prescribed by law. Article 9, § 14, Constitution 1895. "It cannot be doubted that the respondent was entitled, as a constitutional right, to notice and hearing, before the Railroad Commissioners could impose upon it the burden of making the changes in its station and track at Slighs; and it follows, if the statute purported to authorize the imposition of the burden without notice to the respondent and opportunity to be heard, it would be unconstitutional. But express statutory requirement for such notice and hearing is not essential, for the reason that the constitutional requirement that there shall be notice and opportunity to be heard is a part of the law governing the Railroad Commissioners. As the statute is silent on the subject, the presumption is that the Legislature intended for the Commissioners to comply with the Constitution not to violate it. * * * The great weight of authority is to the effect that, while notice of a special burden or duty, which a board, such as this proposes to impose, must be extended, and an opportunity to be heard on the rightfulness of the exactions must be given, it is not necessary that the statute under which the board acts should expressly provide notice." Railroad Com'rs v. Columbia N. L.R. Co., 82 S.C. 422;64 S.E., 242. Section 4820, Vol. 3, Code of Laws 1922.
We are therefore of the opinion that the statute provide a remedy, and that it is not a taking of the property of the railroad company without due process of law; that the requirement made in this case is in the exercise of the police power of the State; that neither the statute nor the order of the Commission is in conflict with the Federal Transportation Act (U.S. Comp. St. Ann. Supp., 1923, § 10071 1/4 et seq.) or any amendment thereto. We are of the further opinion that the order of the Commission was based upon a finding of fact made by it, and that said order should be sustained. *Page 159
It is therefore ordered that a writ of mandamus in conformity with the order of the Railroad Commission be issued.
MESSRS. JUSTICES WATTS, FRASER, COTHRAN and MARION concur.
MR. CHIEF JUSTICE GARY did not participate.