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.

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

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

United States, and the decision is against |
the title, right, privilege, or immunity spe-
cially set up and claimed by either party un-
der such Constitution, statute, commission,
or authority."

There is no doubt that under the third class the Federal right, title, privilege, or immunity must be, with possibly some rare exceptions, specially set up or claimed to give this court jurisdiction. Spies v. Illinois, 123 U. S. 131, 181 [31: 80, 91]; French v. Hopkins, 124 U. S. 524 [31: 536]; Chappell v. Bradshaw, 128 U. S. 132 [32: 369]; Bald win v. Kansas, 129 U. S. 52 [32: 640]; Leeper v. Texas, 139 U. S. 462 [35: 225]; Oxley Stave Co. v. Butler County, 166 U. S. | 648 [41: 1149].

But where the validity of a treaty or statute of the United States is raised, and the decision is against it, or the validity of a state statute is drawn in question, and the decision is in favor of its validity, this court has repeatedly held that, if the Federal question appears in the record and was decided, or such decision was necessarily involved in the case, and the case could not have been determined without deciding such question, the fact that it was not specially set up and claimed is not conclusive against a review of such question here. Miller v. Nicholls, 4 Wheat. 311 [4: 578]; Willson v. Blackbird Creek Marsh Co. 2 Pet. 245 [7: 412]; Satterlee v. Matthewson, 2 Pet. 380, 410 [7: 458, 468]; Fisher's Lessee v. Cockerell, 5 Pet. 248 [8: 114]; Crowell v. Randell, 10 Pet. 308 [9: 458]; Harris v. Dennie, 3 Pet. 292 [7: 683]; Farney v. Towle, 1 Black, 350 [17: 216]; Hoyt v. Shelden, 1 Black, 518 [17: 65]; Mississippi & M. Railroad Co. v. Rock, 4 Wall. 177 [18: 381]; Furman v. Nichol, 8 Wall. 44 [19: 370]; Kaukauna Water Power Co. v. Green Bay & M. Canal Co. 142 U. S. 254 [35: 1004].

The case under consideration falls within [489]the second class, and as it appears from the record and from the opinion of the court which may be examined for that purpose (Kreiger v. Shelby R. R. Co. 125 U. S. 39 [31: 675],) that the question was presented and decided, that the act of 1892 affirming the validity of defendant's contract with the board of directors of the state penitentiary did not impair the obligation of plaintiff's contract, evidenced by the act of 1887, because that act properly construed conveyed no exclusive rights, we think the Federal question sufficiently appears.

2. Upon the merits the case presents but little difficulty. The argument of the plaintiff is that under the act of 1887 the board of trustees of the Columbia canal, of which plaintiff is the successor, took an absolute title to the canal and appurtenant lands, with the right to "purchase, sell, or lease lands adjoining the canal useful for purposes of the canal," and to "sell or lease the water power of the canal, subject to such rules and regulations as it shall prescribe, having first provided the state with 500 horse power of water power at the penitentiary," for the individual use of the penitentiary alone, and with no right to lease or sublet it to others for private gain. In sup

|

port of this contention, plaintiff relies not only upon the act of 1887, under which it takes title, but upon certain prior acts of the general assembly.

Thus, under section 2 of the act of September 21, 1866, "to Provide for the Establishment of a Penitentiary" (13 S. C. Stat. No. 4797), it was made the duty of the commission "to select and procure a proper site, at some point if practicable where water power may be made available for manufacturing purposes within the inclosure, on which to erect suitable penitentiary buildings." And by a subsequent act, approved December 19, 1866 (13 S. C. Stat. 398), the commissioners, who had been authorized by a previous act of December 18, 1865, to sell and convey the Columbia canal, were authorized to sell it at public or private sale, at their discretion, provided that at any sale that may be made by said commissioners there be made a reservation to the state of water power sufficient for the purposes of the state penitentiary for all time free of charge. In a subsequent act of September 21, 1868 (14S. C. Stat. 83),the[490] commissioners were vested by section 4 with like authority to sell at public or private sale, with a similar reservation to the state of water power sufficient for the purposes of the state penitentiary for all time, free of charge. In another act, approved March 12, 1878 (16 Stat. 445), to provide for the disposal of the Columbia canal, there was also a proviso in section 4 that, "in all grants that may be made, sufficient power shall be reserved to the state for the use of the penitentiary and the city of Columbia." So, too, in an act of February 8, 1882 (17 Stat. 855), to authorize the canal company to transfer the canal and lands to the board of directors of the penitentiary, it was provided that the board of directors should take possession on behalf of the state of the canal with its appurtenances, and, for the purpose of providing an adequate water power for the use of the penitentiary, were authorized to improve and develop the same. By section 6 of the same act they were authorized "to furnish to the city of Columbia, for the purpose of operating its waterworks and for other purposes, 500 horse power of water power;

and after reserving for the use of the penitentiary a power sufficient to meet the demands of its ordinary operations and other industries conducted and carried on within its walls, they are further authorized, with the comptroller general on behalf of the state, to lease to other persons or corporations water power upon such terms and upon such annual rental per horse power as in their judgment may be proper, and also to lease such mill sites along the line of the said canal as may be owned by the state, upon such terms as may be deemed most advantageous to the interest of the state."

It will be observed that these acts are progressively liberal to the state; that the earlier ones contemplated the use of the water power only for manufacturing purposes within the walls of the penitentiary, while the latter ones indicated that such power was also reserved for the use of the city of Columbia, for the purpose of operating its

of street railways was manifestly a pubhe purpose.

waterworks and other purposes, as well as for leasing to others. But however cogent these acts might be to indicate that the ob- If plaintiff's theory were sound the peni491]ject of the state *was to reserve to the indi- tentiary would be unable to make use of its vidual use of the penitentiary the 500 horse reserved water power unless it were also pospower, it is equally clear that the act of 1887 sessed of the requisite means to establish a is decisive of a change of purpose in that re-plant, while under its actual arrangement gard; and in providing that the right of the with the defendant it grants to the latter state to the free use of its amount of water its surplus water power, and in considerapower should be absolute, it meant that the tion thereof receives all such power as is necdirectors of the penitentiary should make essary for its own purposes, and in addition such use of it as they pleased, regardless of thereto a substantial annual revenue for its prior acts and the immediate requirements other needs. of the penitentiary. The clearer the reser- 3. The remaining question as to injuries vation for the individual use of the peniten- threatened and inflicted upon plaintiff's tiary may have formerly been, the clearer property by the entry of the defendant upon the change of purpose becomes manifest by the western embankment of the canal, the the use of the word "absolute." The theory digging, excavating, and removal of the of the plaintiff is that by the use of this word earth, and the erection of buildings and was meant simply the right of the state to machinery thereon, does not demand an exthe free use of the said 500 horse power, un-tended consideration. The court of common affected by any mutations of ownership. pleas found that plaintiff was owner of the This, however, was already secured to the property upon which these works were state by the previous clause of section 7, re- erected, but that the state, having the right quiring the board of trustees "to furnish to to the 500 horse power, had also the incithe state, free of charge, on the line of the dental right to lease the same to the defendcanal 500 horse power of water power." Nor ant, which took thereby the right to put its are the requirements of this word met by electric plant upon the banks of the canal, treating it as the equivalent of "perpetual" as well as the supplementary right to put or "for all time." In construing statutes, in a steam plant to be used at times when the words are taken in their ordinary sense. No water power was unavailable, by reason of authority can be found for such a definition freshets or by necessary repairs to the canal of the word "absolute;" nor does the context or other causes. The supreme court did not suggest it. Its most ordinary signification expressly pass upon the validity of plaintiff's ia "unrestricted" or "unconditional." Thus, title to the land, but held that whether the an absolute estate in land is an estate in fee contract conferred upon the defendant the simple. 2 Black. Com. 104; Johnson v. M'In- right to erect a steam plant depended upon tosh, 8 Wheat. 543, 588 [5: 681, 692]; Fuller the fact whether it was merely incidental to v. Missroon, 35 S. C. 314, 330; Johnson's or essential to the enjoyment of the water Admrs. v. Johnson, 32 Ala. 637; Converse v. *plant, and that, no jury having been de-[493] Kellogg, 7 Barb. 590, 597. In the law of in-manded, the court must assume that the cirsurance, that is an absolute interest in propcuit judge decided this question properly; erty which is so completely vested in the in- and, even if there were error on his part in dividual that there could be no danger of the finding of fact, it was not the subject of his being deprived of it without his own conreview by the supreme court in a law case. sent. Hough v. City Fire Ins. Co. 29 Conn. It needs no argument to show that neither of 10; Reynolds v. State Mutual Ins. Co. 2 these rulings involved a Federal question. Grant, Cas. 326; Washington Fire Ins. Co. Whether plaintiff had a legal title to the V. Kelly, 32 Md. 452 [3 Am. Rep. 149]. lands was purely a local issue, and whether We have no doubt that, in providing that the erection of a steam plant by the defendthe right of the state should be absolute, it ant was an incident of its contract with the was intended to permit the board of direct-state penitentiary is, for the reason stated ors to do exactly what was done in this case, i. e., to lease such portion of the 500 horse power as was not required for the individual 92]use of the penitentiary. Indeed, we perceive no other reason for the insertion of this clause. The right to use it in the penitentiary was already amply secured by clauses so frequently inserted in prior acts that no question of construction could be raised upon them, and when the act of 1887 went still further it was evidently upon the idea that the power not necessary for the penitentiary should not be wasted, but should be applied to such other uses as were conducive to the interests of the state. While the leasing of the same to the defendant may have been for private gain, the lighting of the city by electricity and the establishment | Carolina is therefore affirmed. 172 U. S.

by the supreme court, not reviewable here..

In addition to this, however, the deed through which the state and the plaintiff derived their title is not in evidence before us. The answer admitted that the state did acquire a strip of land lying within the boundaries described in the bill, but denied that the buildings erected by the defendant "at any point touched upon said strip of land." The state appeared to have derived title from one Rawls, whose deed was filed in the state court, but does not appear in the record before us, and the supreme court of the state found that it could not review the finding of the court below to the effect that the plaintiff was the owner in fee of the land.

The decree of the Supreme Court of South

527