This cause was argued with Nos. 91 and 92, preceding it. state to the free use of the said 500 horse power shall be absolute." [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. [No. 67.] 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. uary 9, 1899. 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. 3. Questions as to the legal title to land, and the right to erect a steam plant for use when water power is unavailable, as an incident of a right to put an electric plant on the banks of a canal for the use of water power, are not reviewable on writ of error from the Supreme Court of the United States to a state court. *Statement by Mr. Justice Brown: bill in equity, filed in the court of common 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, v. COLUMBIA WATER POWER COMPANY, and when constructed and in use made a con- 2. The right of the state to lease such por- that the state shall be furnished free of charge 500 horse power of water power "for possession thereof until December 24, 1887, (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. IN N ERROR to the Supreme Court of the cree of that court affirming a decree of the See same case below, 43 S. C. 154. [476] trustees of the Columbia canal, to transfer [478]to said board the Columbia canal with the lands held therewith, with its appurtenances, and to develop the same" (19 S. C. Stat. 1090); that by section 1 of the act the board of directors of the penitentiary was authorized to transfer and release to the board of [479]trustees of the canal the canal property and its lands, with their appurtenances, and that the same should vest in the trustees for the use and benefit of the city of Columbia; that such transfer was made and possession taken by the board of trustees, and the property so remained in their possession until the date and year hereinafter mentioned. in the margint) "to incorporate the board of | to purchase, sell, or lease lands adjoining the canal, useful for the purposes of the canal, to sell or lease the water power of the canal subject to such rules and regulations as it should prescribe; and that by virtue of such act the trustees became entitled to the exclusive franchise and right to sell or lease the water power developed by the canal for manufacturing and other industrial purposes, without let or hindrance, and without the right of any person or corporation to interfere or interrupt in any manner the use of such water power, save and except it should provide a certain amount of water power to certain persons and parties in said 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 sembly, and by the authority of the same, That the board of directors of the South Carolina lina in and to the said Columbia Canal and the Sec. 2. That the said board of trustees are 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 Gervais 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 absolute, 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 fix 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, ▲ D. 1890. the plaintiff as should be necessary for that 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 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] wheel; and that, unless such use be enjoined, it will suffer irreparable injury and damage, and its franchise to sell and lease water power for purposes of manufacturing and other industrial purposes will be af That the defendant, a South Carolina corporation, was organized by the consolidation of three prior companies, and was authorized to construct through the city a street railway, and also to maintain a system of electric lighting; that in May, 1892, the plain-fected and materially injured. tiff was informed by the board of directors That the said defendant also in February, of the penitentiary that the defendant com- 1893, against the protest of the plaintiff, enpany had been authorized by the said board tered upon its premises on the western emto build a power house, with forebay, flumes, bankment of the canal and at the southern and water wheels, for the purpose of utiliz- end of the power house above mentioned, ing the 500 horse power to be furnished to and excavated and removed the earth, rock, the state, and that it was the purpose of such and works composing the foundation of such company to erect works under such authori- embankment, to the great danger of the canal ty to develop such power, and to furnish to and embankment, and began erecting the the state, within the walls of the peniten-foundations for the steam engine to be used tiary, so much of said power as had been in running generators, dynamos, etc., as agreed upon by and between the board of di- above stated, and has placed portions of its rectors of the penitentiary and the said com- machinery in such structure to be used in pany; that the plaintiff gave immediate no-producing electric power, and in May, 1893, [481]tice to the said board and to the *defendant commenced to erect a boiler house and coal house for use in the same business. 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 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 enlarge ment 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 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 The answer put in issue the title of the An examination of the complaint shows plaintiff to the lands occupied by the defend- that the plaintiff relies upon the act of the ant; denied that the board of trustees of the general assembly of December 24, 1887. This canal ever became entitled to the exclusive statute (sec. 1) authorizes the board of difranchise and right to sell or lease water rectors of the South Carolina penitentiary, power developed by it for purposes of indus- which had acquired the ownership of the trial enterprises; denied that the 500 horse canal under a previous act of February 8, power reserved to the state was provided 1882, to transfer the property to the board solely for the individual use of the state in of trustees of the Columbia canal, and (sec. its public institutions; denied any intent on 7) required the completion of the canal and its part to injure the plaintiff in its fran- a reservation to the state, free of charge, on chise and property by the erection of its the line of the canal, of 500 horse power of works, and alleged that the state, being water power, with a further proviso that the seised in fee simple of the land and entitled right of the state to the free use of the said to the unrestricted use of the 500 horse power 500 horse power should be absolute, and any referred to in the complaint, but being with- mortgage, assignment, or other transfer of [483]out means to develop the same, entered into the said canal by the said board of trustees a contract dated May 26, 1892, with the de- or their assignees should always be subject fendant, whereby it was stipulated that the to this right. In section 21 this reservation defendant should erect suitable works and is described as a provision for the state, with machinery for the development of such horse 500 horse power of water power at the penpower, furnish to the penitentiary so much itentiary. By section 23 as amended in 1890, as was necessary for its purposes, and as a the board of trustees was given authority to consideration for this should be allowed to sell, alienate, and transfer the canal, with its make use of the surplus power for its own appurtenances, lands, and franchises, to any purposes; that such contract was thereafter person or corporation, subject, however, to ratified and confirmed by an act of the gen- all contracts, liabilities, and obligations eral assembly, approved December 24, 1892 made and entered into by said board prior (21 S. C. Stat. 94); and that the defendant to such sale and transfer. Pursuant to this was entitled under such contract to the unre- authority, the board of trustees, on January stricted use of such horse power for the pur-11, 1892, conveyed the canal and its appurposes contemplated by the contract. tenances to the plaintiff. 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. "specially set up and claimed" in the state court, as required by Revised Statutes, seotion 709. 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 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. of the board of directors of the penitentiary The complaint did not set up the contract 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 pow er for the use and benefit of the penitentiary. In consideration of this the board of direc tors agreed to allow the defendant the use | of all their right, title, and interest to the curred in the result, the Chief Justice saying • 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] eading 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 supreme 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. In holding that the contract with the defendant and the legislative act confirming the same were valid, the court proceeded upon the idea that the act of 1887 authorizing the transfer of the property to the board of trustees of the Columbia canal made the reservation 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 holding, 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 confirming 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 subnot impair it. sequent legislation did These are rather differences in the form of expression than in the character of the question involved, and this court has so frequently 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 determine for itself the proper construction of that it must be considered no longer as an the contract upon which the plaintiff relies, 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 Uncases 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: (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;" 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 (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 Constitution, or any treaty or statute of, our commission held or authority exercised under, the 525 |
