Sidebilder
PDF
ePub

This cause was argued with Nos. 91 and 92, preceding it.

[474] *Mr. Justice McKenna delivered the opinion of the court:

This is an action at law brought by plaintiff in error against defendant in error and another, for causes growing out of the matters sued on in No. 92. Here, as in No. 92, there was a series of motions which we do not think it is necessary to notice.

[blocks in formation]

uary 9, 1899.

The case, on the appeal of plaintiff in er: Argued December 6, 7, 1898. Decided Janror, reached and was passed on by the court of appeals of the state, and to its judgment affirming that of the lower court this writ of error is directed.

The judgment must be affirmed.
Claims under the Constitution of the
[475]United States were set up in several of the
motions and denied by the court. One claim
was that the Constitution of Maryland
abridged the right of trial by jury in the
courts of Baltimore city without making a
similar provision for the counties of the
state, and that this denies to litigants of the
city the equal protection of the laws. This
is not tenable. Missouri v. Lewis, 101 U. S.

22 [25: 989]; Hayes v. Missouri, 120 U. S.
68 [30: 578].

The other claim was that the state courts lost jurisdiction by reason of the pendency of a petition filed under section 641 Revised Statutes, to remove the case to the United States circuit court. The petition for removal is not in the record, and we only know that it was filed by reason of the recital in other motions and its notice in the opinion of the court of appeals, and the grounds of it do not appear in any part of the record.

In all other matters the judgment of the
court of appeals depends on questions of
state practice and state laws.
Judgment affirmed.

IN ERROR to the to review a de 'N ERROR to the Supreme Court of the

cree of that court affirming a decree of the
ty dismissing the complaint of the plaintiff,
the Columbia Water Power Company, for an
injunction against using its water power and
Supreme Court affirmed.
trespassing upon its banks. Decree of the

Court of Common Pleas for Richmond Coun

See same case below, 43 S. C. 154.

*Statement by Mr. Justice Brown: bill in equity, filed in the court of common This was a complaint in the nature of a pleas for Richmond county by the Columbia Water Power Company as plaintiff, to enjoin the Columbia Electric Street-Railway Light & Power Company from using certain water power for the propulsion of its cars, lighting its lamps, and furnishing power motors; also from entering upon plaintiff's lands and erecting thereon its buildings, works, and machinery; and also requiring the defendant to remove such as had already been erected; and for the payment of damages.

The bill set forth that a structure known as the Columbia canal begins above the city, passes through the city near the western boundary, and empties into the Congaree river just beyond the limits of the city, passing around the shoals and falls in said river,

COLUMBIA WATER POWER COMPANY, and when constructed and in use made a con

Plff. in Err.,

V.

COLUMBIA ELECTRIC STREET
WAY, LIGHT, & POWER COMPANY.

[476]

tinuous communication between the Broad and Congaree rivers; that the canal was beRAI-gun by the state as a public work in the year 1824, and for the purpose of its construction *certain lands were purchased within the lim-[477} its of the city, through which the canal was to be carried and constructed; that the canal was used for purposes of navigation for some time, and remained, with the lands described, the property of the state until February 8, 1882, when the general assembly of the state by an act of that date authorized and directed the canal commission to transfer the canal, with the aforesaid lands, to the board of directors of the state penitentiary, with all the rights and appurtenances thereto acquired by the state; that the board was au

(See S. C. Reporter's ed. 475-493.) Federal question-reservation of a right water power by a state-Federal question. 1. A Federal question sufficiently appears, although the complaint does not mention the Constitution of the United States, where the whole theory of the case is the impairment by statute of a contract created by a prior statute, and the presentation and decision of this question appear from the record and opinion of the state court.

2. The right of the state to lease such por-thorized and directed and subsequently did
tion of the water power reserved as it does
not require for the use of a penitentiary is
Included in the rights reserved to the state
under S. C. act December 24, 1887, authoriz-
ing the transfer of a canal, but providing
charge 500 horse power of water power "for
the use of the penitentiary and for other pur-
poses." and declaring that "the right of the

that the state shall be furnished free of

take possession of the canal and lands, and proceeded with the work of enlarging and developing the canal, expending large sums of money for that purpose, and widened and enlarged its banks, and remained in the full possession thereof until December 24, 1887, when the general assembly passed an act (the material portions of which are printed

in the margint) "to incorporate the board of | to purchase, sell, or lease lands adjoining the trustees of the Columbia canal, to transfer canal, useful for the purposes of the canal, [478]to said board the Columbia canal with the to sell or lease the water power of the canal lands held therewith, with its appurtenances, subject to such rules and regulations as it and to develop the same" (19 S. C. Stat. should prescribe; and that by virtue of such 1090); that by section 1 of the act the board act the trustees became entitled to the exof directors of the penitentiary was author- clusive franchise and right to sell or lease ized to transfer and release to the board of the water power developed by the canal for [479]trustees of the canal the canal property and manufacturing and other industrial pur its lands, with their appurtenances, and that poses, without let or hindrance, and withthe same should vest in the trustees for the out the right of any person or corporation to use and benefit of the city of Columbia; that interfere or interrupt in any manner the use such transfer was made and possession taken of such water power, save and except it by the board of trustees, and the property should provide a certain amount of water so remained in their possession until the date power to certain persons and parties in said and year hereinafter mentioned. act nominated and mentioned, and that no person or corporation had a right to divert, disturb, impede, or interfere with the flow of water down the said canal.

That by section 21 of the above act the board of trustees was declared a corporate body, and was authorized, among other things,

†Act of December 24, 1887.

Section 1. Be it enacted by the Senate and House of Representatives of the State of South Carolina, now met and sitting in General Assembly, and by the authority of the same, That the board of directors of the South Carolina penitentiary are hereby authorized, empowered, and required to transfer, assign, and release to the board of trustees of the Columbia Canal, hereinafter created and provided for, the property known as the Columbia Canal, together with the lands now held therewith, acquired under the acts of the general assembly of this state with reference thereto or otherwise, all and singular the rights, members, and appurtenances thereto belonging; and upon such transfer, assignment, and release all the right, title, and interest of the state of South Caro

lina in and to the said Columbia Canal and the lands now held therewith, from its source at Bull's Sluice through its whole length to the point where it empties into the Congaree river, together with all the appurtenances thereunto belonging, shall vest in the said board of trustees for the use and benefit of the city of Coumbia, for the purposes hereinafter in this act mentioned, subject, nevertheless, to the performance of the conditions and limitations herein prescribed on the part of said board of trustees and their assigns: Provided, That should the said canal not be completed to Gervals street within seven years from the passage of this act, all the rights, powers, and privileges guaranteed by this act shall cease, and the said property shall revert to the state.

Sec. 2. That the said board of trustees are

hereby authorized and directed, for the development of the said canal, to take into their possession the said property with all its appurtenances and for the purpose of navigation, for providing an adequate water power for the use of the penitentiary, and for other purposes herein named, they are hereby authorized, empowered, and directed to improve and develop

the same.

Sec. 7. That the board of trustees shall, within two years from the ratification of this act, complete the said canal so as to carry a body of water 150 feet wide at the top, 110 feet wide at the bottom, and 10 feet deep from the source of the canal down to Gervals street, and furnish the state, free of charge, on the line of the canal, 500 horse power, of water power, to Sullivan Fenner or assigns 500 horse power of water power, under

his contract with the canal commission, and to furnish the city of Columbia 500 horse power of water power at any point between the

source of the canal and Gervais street the city may select; and shall, as soon as is practicable, complete the canal down to the Congaree river a few yards above the mouth of Rocky Branch: Provided, That the right of the state to the free use of the said 500 horse power shall be abso

lute, and any mortgage, assignment, or other transfer of the said canal by the said board of trustees or their assigns shall always be subject to this right.

Sec. 21. The said board of trustees shall be, and is hereby, declared a body politic and corporate. Its corporate name shall be "Board of Trustees of the Columbia Canal." Its officers shall be a chairman and a secretary and treasurer. It shall have a corporate seal; may make and enforce its by-laws for its government; may purchase, sell, or lease lands adjoining the canal useful for the purposes of the canal; may sell or lease the water power of the canal, subject to such rules and regulations as it shall prescribe, having first provided for the state with 500 horse power of water power at the penitentiary, and 500 horse power of water power for Sullivan Fenner or his assigns, and 500 horse power of water power for the city of Columbia; may sue and be sued, plead or be impleaded under their corporate name, and exercise such other powers as are hereinbefore granted, and shall Ax such compensation for the services of the secretary and treasurer as they may deem proper. Section 23 as amended by act of December 24, 1890. (20 S. C. Stat. 967.)

Sec. 23. That the said board of trustees, as soon as they have fully developed the said canal and secured the payment of the debts contracted by them in its development, they shall turn over the canal, with all its appurtenances, to the city of Columbia. But the said board of trustees shall have full power and authority, before the said canal has been fully developed and completed and turned over to the city of Columbia, to sell, allenate, and transfer the same and all its appurtenances, the lands held therewith, and all the rights and franchises conferred by this act on said board of trustees, to any person or corporation, subject, however, to all the duties and liabilities imposed thereby, and subject to all contracts, liabilities, and obligations made and entered into by said board prior to such sale and transfer, upon the approval and consent of nine members of the city council of the city of Columbia; and before such sale, alienation, and transfer is made thirty days' notice of the offer to purchase and the terms thereof shall be given to the council of the city of Columbia.

Approved December 24, 4. D. 1890.

That by the 23d section of this act, as amended by the subsequent act of December 24, 1890 (20 S. C. Stat. 967), the board of trustees was given full power and authority to sell, alienate, and dispose of the canal, its lands and appurtenances, to any person or corporation, subject to all duties and liabilities imposed by the act, and to all contracts made by the board, prior to such transfer, up[480] on the approval and consent of nine members of the council of the city of Columbia; that in pursuance of such section, the trustees, before the completion of the canal, and on January 11, 1891, conveyed all of said prop erty to the Columbia Water Power Company, the plaintiff, including the canal and all of the lands held therewith, easements, rights of way, rights of overflow, and appurtenances acquired by the board of trustees, with their rights and franchises; that the plaintiff went into possession of all the property, and so remained in possession without any claim or assertion of an adverse right, and thereby became entitled to all the franchises, privileges, and immunities conferred upon the board of trustees.

That the act of December 24, 1887, provided that upon the development and completion of the canal the board of trustees should furnish the state free of charge 500 horse power of water power; and the 23d section of the act as amended provided that this duty should be imposed upon any person or corporation to whom the board of trustees should sell or transfer the property; that in March, 1892, the development and enlargement of the canal was completed, and on said date, and ever since, the plaintiff was and is ready to furnish the state with the 500 horse power of water power as required by the act aforesaid.

the plaintiff as should be necessary for that
purpose; and that the plaintiff would not
recognize the right of the state to assign such
horse power, or any part thereof, to any cor-
poration to be used for private purposes,
outside of the walls of the penitentiary or
any public institution of the state; and that
it was under no obligation to furnish water
power from the canal to be used by private
corporations for private enterprises.

[ocr errors]

That subsequently the defendant, acting through the board of directors of the penitentiary, submitted plans and specifications for the erection of works for making the state water power available, and plaintiff approved of the same as not taking more of the land than was necessary for the development of the 500 horse power for the use of the state, and allowed the defendant to proceed with its work, which was completed in accordance with the plans and specifications so submitted; but that thereafter the defendant, against the protests and objections of the plaintiff, proceeded to place in such works machinery intended solely for the purpose of running its electric lights and street railway, and furnishing power to divers persons in the city for their industries, against which plaintiff protested, and gave notice that proceedings would be taken to prevent such misapplication by the electric company, which, notwithstanding such protests, continues to place such machinery in its power house for its own private purposes; and that plaintiff is wholly without power to prevent the action of the defendant in such misapplication of such power for its private purposes, owing to the duty of the plaintiff to furnish power for the use of the state and its penitentiary, as such power is furnished and made available at and by the same *water [482] That the defendant, a South Carolina cor-wheel; and that, unless such use be enporation, was organized by the consolidation joined, it will suffer irreparable injury and of three prior companies, and was authorized damage, and its franchise to sell and lease to construct through the city a street rail-water power for purposes of manufacturing way, and also to maintain a system of elec- and other industrial purposes will be aftric lighting; that in May, 1892, the plain-fected and materially injured. tiff was informed by the board of directors of the penitentiary that the defendant company had been authorized by the said board to build a power house, with forebay, flumes, and water wheels, for the purpose of utilizing the 500 horse power to be furnished to the state, and that it was the purpose of such company to erect works under such authority to develop such power, and to furnish to the state, within the walls of the penitentiary, so much of said power as had been agreed upon by and between the board of directors of the penitentiary and the said company; that the plaintiff gave immediate no[481]tice to the said board and to the defendant that it would object to the use of any of its lands or embankments on the west side of the canal by any person or corporation, except so much as would be necessary for the erection of the power house to furnish 500 horse power for the use of the state; that the state should have full liberty to build such works upon the embankment of the canal as were necessary in furnishing such water pow er; but that such works should be strictly confined to such portion of the property of

That the said defendant also in February, 1893, against the protest of the plaintiff, entered upon its premises on the western embankment of the canal and at the southern end of the power house above mentioned, and excavated and removed the earth, rock, and works composing the foundation of such embankment, to the great danger of the canal and embankment, and began erecting the foundations for the steam engine to be used in running generators, dynamos, etc., as above stated, and has placed portions of its machinery in such structure to be used in producing electric power, and in May, 1893, commenced to erect a boiler house and coal house for use in the same business.

The complaint further alleged that the plaintiff had performed all its obligations to the state, and stood ready to continue the performance of the same, but the defendant in disregard of its rights has trespassed upon its property, excavated its embankment, and has interfered with the enjoyment of the franchises granted to it by the state; that a judgment at law against the company would be worthless, and hence the plaintiff prayed

for an injunction against such use of the
water power and against further trespasses
upon its lands.

"specially set up and claimed" in the state court, as required by Revised Statutes, section 709.

An examination of the complaint shows that the plaintiff relies upon the act of the general assembly of December 24, 1887. This statute (sec. 1) authorizes the board of directors of the South Carolina penitentiary, which had acquired the ownership of the canal under a previous act of February 8, 1882, to transfer the property to the board of trustees of the Columbia canal, and (sec. 7) required the completion of the canal and a reservation to the state, free of charge, on the line of the canal, of 500 horse power of water power, with a further proviso that the right of the state to the free use of the said 500 horse power should be absolute, and any mortgage, assignment, or other transfer of the said canal by the said board of trustees or their assignees should always be subject to this right. In section 21 this reservation is described as a provision for the state, with 500 horse power of water power at the penitentiary. By section 23 as amended in 1890, the board of trustees was given authority to sell, alienate, and transfer the canal, with its appurtenances, lands, and franchises, to any person or corporation, subject, however, to all contracts, liabilities, and obligations made and entered into by said board prior to such sale and transfer. Pursuant to this authority, the board of trustees, on January

The answer put in issue the title of the plaintiff to the lands occupied by the defendant; denied that the board of trustees of the canal ever became entitled to the exclusive franchise and right to sell or lease water power developed by it for purposes of industrial enterprises; denied that the 500 horse power reserved to the state was provided solely for the individual use of the state in its public institutions; denied any intent on its part to injure the plaintiff in its franchise and property by the erection of its works, and alleged that the state, being seised in fee simple of the land and entitled to the unrestricted use of the 500 horse power referred to in the complaint, but being with[483]out means to develop the same, entered into a contract dated May 26, 1892, with the defendant, whereby it was stipulated that the defendant should erect suitable works and machinery for the development of such horse power, furnish to the penitentiary so much as was necessary for its purposes, and as a consideration for this should be allowed to make use of the surplus power for its own purposes; that such contract was thereafter ratified and confirmed by an act of the general assembly, approved December 24, 1892 (21 S. C. Stat. 94); and that the defendant was entitled under such contract to the unrestricted use of such horse power for the pur-11, 1892, conveyed the canal and its appurposes contemplated by the contract.

The attorney general, appearing on behalf of the state, filed a suggestion to the effect that, if the injunction were granted, defendant would be prevented from carrying out its agreement with the state, and the state would be deprived of the water power it was entitled to in the manner contracted for, and of the revenue it had secured under the contract. He did not, however, submit the rights of the state to the jurisdiction of the court, but insisted that the court had no jurisdiction of the subject, and asked that the complaint be dismissed.

The case came on for hearing upon the complaint, answer, the suggestion of the attorney general, and the articles of agreement, and resulted in a decree dismissing the complaint. An appeal was taken to the supreme court of the state, which affirmed the decree of the court below (43 S. C. 169), whereupon plaintiff sued out a writ of error from this court, assigning as error the decision of the supreme court affirming the validity of defendant's contract with the board of directors of the penitentiary, and the act of the general assembly ratifying the same. Mr. LeRoy F. Youmans for plaintiff in

error.

Messrs. William H. Lyles and John T. Sloan for defendant in error. [484] *Mr. Justice Brown delivered the opinion of the court:

1. A preliminary motion was made to dismiss this writ of error upon the ground that no Federal question was involved, and, even if there were such question, it was not

tenances to the plaintiff.

The gist of the complaint is that in 1892 the defendant, acting as the agent of the state through the board of directors of the penitentiary, submitted plans and specifications for the erection of works for making the said 500 horse power of water power available, to which the plaintiff made no objection; but that thereafter, against its protests, proceeded to construct in such works[485] machinery intended for the purpose of running its electric lights and street railway and furnishing power to the citizens of Columbia for divers industries; and entered upon the premises of the plaintiff and laid foundations for a steam engine to be used in running its generators, etc., and began the erection of an engine house, boiler house, and coal house for the purpose of establishing a steam plant.

The complaint did not set up the contract of the board of directors of the penitentiary with the defendant and the act of the genthe same, but these were both set forth in eral assembly of December, 1892, confirming the answer and relied upon by the defendant as its authority for the erection of its works. In this contract the defendant agreed to erect, on the western bank of the canal opposite the penitentiary, suitable water wheels of sufficient capacity to utilize and develop the 500 horse power of water power, and to transmit across the canal to some convenient point within the walls of the penitentiary not to exceed 100 horse power for the use and benefit of the penitentiary. In consideration of this the board of directors agreed to allow the defendant the use

of all their right, title, and interest to the
land on the west side of the canal and also
to allow it the free and uninterrupted use of
the said 500 horse power of water power
reserved to the penitentiary, with the excep-
tion of the 100 horse power so reserved for
its private use. This contract was subse-
quently ratified and confirmed by an act of
the general assembly approved December 24,
1892.

supreme

While no special mention is made in the complaint of the Constitution of the United States, the whole theory of the plaintiff's case taken in connection with the answer is that the rights which it acquired to the 500 horse power in question under the act of 1887 were impaired by the subsequent act of December 24, 1892, ratifying and approving the contract of the board of directors of the state penitentiary with the defendant. The contract of the defendant is set up in the complaint, and although the act of December, 1892, ratifying the same, is not set up there, it appears in the answer and is relied upon as validating the contract; so that, [486]ading the complaint and answer together, the question whether the contract of the plaintiff was impaired by subsequent state action appears on the face of the pleadings. In passing upon the case the court, speaking through Mr. Justice Gary, held that one of the objects of the plaintiff's action was to have the contract between the state and the defendant as to the 500 horse power declared null and void on the ground that the state could not lease the same. In view of an intervening suggestion filed by the attorney general, to the purport that the state had interests which would be affected by granting the relief prayed for, he held that the state, being an indispensable party and refusing to become a party, the cause of action on the equity side of the court could not be sustained; and in considering the cause of action on the law side of the court he reached the conclusion that the state was not an indispensable party. He then proceeded to consider whether the contract between the state and the defendant relative to the 500 horse power was null and void, and held that the proviso to section 7 of the act of 1887 being that the right of the state to the free use of this horse power should be absolute, the construction given to it by the legislature in the act of 1892 was correct, and that the word "absolute" was used for the purpose of creating a right in the state to this horse power separable and distinct from the ownership in other lands, and not dependent upon any particular lands to which it might be appurtenant. It followed that the contract between the state and the defendant was not null and void.

He further held that the right of the defendant to erect the steam plant depended upon the fact whether it was merely incidental and essential to the enjoyment of the water power plant; that the parties had a right to trial by jury as to these issues, but as no demand was made therefor the court assumed that the circuit court properly decided all questions of fact upon which its judgment rested. The other justices con

curred in the result, the Chief Justice saying
that he was not satisfied that the plaintiff
ever acquired title to the land upon which
the works in question had been erected.
There is nothing to indicate that either of[487]
them dissented from the views expressed by
Mr. Justice Gary, who presumably spoke for
the court, with respect to the Federal ques-
tion.

In holding that the contract with the de-
fendant and the legislative act confirming
the same were valid, the court proceeded up-
on the idea that the act of 1887 authorizing
the transfer of the property to the board of
trustees of the Columbia canal made the res-
ervation to the state of the 500 horse power
an absolute one; that the directors of the
penitentiary could do with it as they pleased,
and hence they had the right to turn it over
to the defendant if, in their judgment, such
course was warranted by a due regard for
the interests of the state. While, in so hold-
ing, the court disposed of the case upon the
construction of the contract under which the
plaintiff asserted its right, such construction
is no less a Federal question than would be
the case if the construction of the contract
were undisputed, and the point decided upon
the ground that the subsequent act confirm-
ing the contract with the defendant did not
impair it. The question in either case is
whether the contract has been impaird, and
that question may be answered either by
holding that there is no contract at all, or
under its contract, or, granting that it
that the plaintiff had no exclusive rights
had such exclusive rights, that the sub-
sequent legislation did not impair it.
These are rather differences in the form of
expression than in the character of the ques-
tion involved, and this court has so frequent-
ly decided, notably in the very recent case of
McCullough v. Virginia, 172 U. S. 102 [ante,
382,] that it is the duty of this court to de-
termine for itself the proper construction of
the contract upon which the plaintiff relies,
that it must be considered no longer as an
open question. New Orleans Water Works
Co. v. Louisiana Sugar Ref. Co. 125 U. S. 18
[31: 607]; Bridge Proprietors v. Hoboken
Land & Improv. Co. 1 Wall. 116 [17: 571].

To the argument that the Federal right was not "specially set up and claimed" in the language of Revised Statutes, section 709, it is replied that this is not one of the cases in which it is necessary to do so. der this section there are three classes of cases in which the final decree of a state court may be re-examined here:

Un

*(1) "Where is drawn in question the va-[488] lidity of a treaty, or statute of, or authority exercised under, the United States, and the decision is against their validity;"

(2) "Where is drawn in question the validity of a statute of, or an authority exercised under, any state on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity;"

(3) "Or where any title, right, privilege, or immunity is claimed under the Constitu tion, or any treaty or statute of, our commission held or authority exercised under, the

« ForrigeFortsett »