joining him and all other persons from the that A. H. Carmichael, as solicitor for the prosecution of said indictments.

eleventh judicial circuit of Alabama, be en By a supplemental bill it was averred that joined and restrained temporarily and until writs of arrest had been issued upon the the further orders of the court "from instiabove indictments against Clem and Brab- tuting or prosecuting as such solicitor any son, and placed in the hands of the sheriff, indictments or criminal proceedings against who in execution thereof had arrested or anyone for a violation of the alleged unconwould arrest the said employees of the restitutional act of the legislature of Alabama ceivers. It was further alleged that these described in the bill.” criminal proceedings were in contempt of the The next step in the proceedings was the order of the court below appointing the re- suing out of writs of habeas corpus by Clem ceivers, as well as in violation of the injunc- and Brabson, who were under arrest on proe tion which the court had issued, and which ess issued on the above indictments. Each of still remained in force, "enjoining the said the petitioners was released upon his own governor, attorney general, and all persons recognizance in the sum of $150, conditioned whomsoever from instituting any suits or that he would appear in court from day to proceedings" under the above act of the state. day until discharged.

After referring to the indictments and the Gilliam filed an answer, insisting upon the purpose on the part of the state officers to validity of the act of the legislature which had proceed under them, the plaintiffs prayed been assailed by the bill as unconstitutional. that the act of February 9th, 1895, be de- *A decree pro confesso was taken against(523 clared repugnant to the Constitution of the the governor and attorney general of the United States, and invalid, inoperative, null, state, as well as Carmichael, as solicitor and void, and that an injunction be granted, aforesaid, all in their respective official ca“prohibiting and restraining William C. pacities. But that decree was set aside, and Oates, as governor of the state of Alabama; the cause was heard upon demurrers by the William C. Fitts, as attorney general of the various defendants. The demurrers were state of Alabama, W. H. Gilliam, and A. H. overruled, and answers were filed by the gov. Carmichael, solicitor as aforesaid, and all ernor and attorney general of the state and other persons whomsoever, from instituting by the solicitor of the eleventh judicial eirany proceeding against these complainants cuit. There were also motions to diescire or either of them, their servants or agents, the injunction granted in the case, upon the under the forfeiture clause set out in said ground that there was no equity in the bill. 2d section of said act of the general assembly and that the injunctions were in violation of of Alabama ;" that said officers "and all per- the Constitution and statutes of the United sons whomsoever be restrained and enjoined States. from instituting or procuring the institution The final decree in the case was as follows: of any proceeding against these complainants "This cause coming on to be heard, the subor either of them, their agents, servants, or mission at the former term of the court is employees, by a mandamus or otherwise, to hereby set aside, and, it being made to ap compel the observance and obedience to said pear to the court that the defendant Will. act in reference to the rate of tolls fixed iam C. Oates has ceased to be the governor

thereby over said bridge, and also from insti. of the state of Alabama, it is thereupon (622]tuting or procuring to be instituted any pro- ordered that the said cause be discontinued

ceeding against these complainants or either as to him, and the cause is now resubmitted of them for the forfeiture of the franchise of at this term of the court for final decree up the Memphis & Charleston Railroad Com. on the pleadings and testimony offered by pany in and to said bridge on account of the the parties, and upon due consideration refusal to charge the rates of toll over it thereof it is considered by the court that the fixed by the said act;" and that “the said complainants are entitled to relief. It is defendants and said Carmichael, solicitor as restrained and enjoined from prosecuting Alabama referred to and set up in the origi a foresaid, and all persons whomsoever, be thereupon ordered, adjudged, and decreed

that the act of the legislature of the state of said indictments against the said servants, nal bill of complaint in the cause, which agents, and employees of the complaintnts, or from interfering in any way, under and by act. was approved February 9th, 1895, and virtue of the color of said unconstitutional entitled 'An Act to Fix the Maximum of act, with the rights, privileges, and fran. Tolls to be Charged by the Owners, Lesseer, chises and property of the complainants, or Operators of the Road Bridge across the their servants or agents, with regard to said Tennessee River, between the Counties of bridge."

Colbert and Lauderdale, and Known as the At this stage of the proceedings the plain. Florence Bridge, and to Fix the Penalty for tiffs dismissed the cause so far as the state Demanding or Receiving a Higher Rate of was made a party defendant, and amended Tolls,' is violative of the constitutional the bill by striking out its name as a defend- rights of the owners of said bridge and of the ant, as well as the words “in behalf of the complainants as their representatives, in state.” The cause was then heard upon a that it fixes a rate of tolls for said bridge motion by the governor and attorney general which are not fairly and reasonably comper to dismiss the bill upon the ground that the satory, and it is therefore hereby declared to suit was one against the state in violation of be invalid and inoperative, and the injune the Constitution of the United States. tions heretofore granted in the cause an

Upon the filing of the last amendment to hereby made perpetual. It is further the original bill, it was ordered by the court ordered, adjudged, and decreed that the de

[ocr errors]


This cause was argued with Nos. 91 and state to the free use of the said 500 horse 92, preceding it.

power shall be absolute."

3. Questions as to the legal title to land, and (474) "Mr. Justice McKenna delivered the the right to erect a steam plant for use when opinion of the court:

water power is unavailable, as an incident

of a right to put an electric plant on the This is an action at law brought by plain.

banks of a canal for the use of water power, tiff in error against defendant in error and

are not reviewable on writ of error from the another, for causes growing out of the mat

Supreme Court of tbe United States to a ters sued on in No. 92. Here, as in No. 92, state court. there was a series of motions which we do

(No. 67.) not think it is necessary to notice. 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

uary 9, 1899. affirming that of the lower court this writ

N ERROR to the Supreme Court of the of error is directed.

The judgment must be affirmed.
Claims under the Constitution of the Court of Common Pleas for Richmond Coun-

cree of that court affirming a decree of the (475]United States were set up in several of the ty dismissing the complaint of the plaintiff, motions and denied by the court. One claim the Columbia Water Power Company, for an

that the Constitution of Maryland injunction against using its water power and abridged the right of trial by jury in the courts of Baltimore city without making a

Decree of the trespassing upon its banks.

Supreme Court affirmed. similar provision for the counties of the

See same case below, 13 S. C. 154. 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.

*Statement by Mr. Justice Brown: (476) 22 (25: 989); Hayes v. Missouri, 120 U. S. bill in equity, filed in the court of common

This was a complaint in the nature of a 68 [30: 578).

The other claim was that the state courts pleas for Richmond county by the Columbia lost jurisdiction by reason of the pendency Water Power Company as plaintiff, to enof a petition filed under section 641 Revised join the Columbia Electric Street-Railway Statutes, to remove the case to the United Light & Power Company from using certain States circuit court. The petition for removal water power for the propulsion of its cars, is not in the record, and we only know that lighting its lamps, and furnishing power moit was filed by reason of the recital in other tors; also from entering upon plaintiff's lands motions and its notice in the opinion of the and erecting thereon its buildings, works, and court of appeals, and the grounds of it do machinery; and also requiring the defendant not appear in any part of the record. to remove such as had already been erected;

In all other matters the judgment of the and for the payment of damages. court of appeals depends on questions of

The bill set forth that a structure known state practice and state laws.

as the Columbia canal begins above the city, Judgment affirmed.

passes through the city near the western
boundary, and empties into the Congaree
river just beyond the limits of the city, pass.

ing around the shoals and falls in said river, COLUMBIA WATER POWER COMPANY, and when constructed and in use made a conPlff. in Err.,

tinuous communication between the Broad

and Congaree rivers; that the canal was beCOLUMBIA ELECTRIC STREET RAII-Igun by the state as a public work in the year WAY, LIGHT, & POWER COMPANY.

1824, and for the purpose of its construction

* certain lands were purchased within thelim.[477) (See 8. C. Reporter's ed. 475-493.)

its of the city, through which the canal was

to be carried and constructed; that the canal Federal question-reservation of a right ou was used for purposes of navigation for some water power by a state-Federal question. time, and remained, with the lands described,

the property of the state until February 8, 1. A Federal question sufficiently appears, al. 1882, when the general assembly of the state

though the complaint does not mention the by an act of that date authorized and direct-
Constitution of the United States, where the ed the canal commission to transfer the
whole theory of the case is the impairment canal, with the aforesaid lands, to the board
by statute of a contract created by a prior
statute, and the presentation and decision of of directors of the state penitentiary, with
this question appear from the record and all the rights and appurtenances thereto ac-
opinion of the state court.

quired by the state; that the board was au. 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 take possession of the canal and lands, and
pot require for the use of a penitentiary is proceeded with the work of enlarging and
Included in the rights reserved to the state developing the canal, expending large sums
under S. C. act December 24, 1887, authoriz- of money for that purpose, and widened and
Ing the transfer of a canal, but providing enlarged its banks, and remained in the full
that the state shall be furnished free of
charge 500 horse power of water power for possession thereof until December 24, 1887,
the use of the penitentiary and for other pur- when the general assembly passed an act
poses." aud declaring that “the right of the' (the material portions of which are printea


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 ex. of 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 à 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 That by section 21 of the above act the person or corporation had a right to divert, board of Trustees was declared a corporate disturb, impede, or interfere with the flow of body, and was authorized, among other things, water down the said canal. Act of December 24, 1887.

source of the canal and Gervals street the city Section 1. Be it enacted by the Senate and may select : and shall, as soon as is practicable, House of Representatives of the State of South complete the canal down to the Congaree river Carolina, nou met and sitting in General A8

a few yards above the mouth of Rocky Branch: sembly, and by the authority of the same, That Provided, That the right of the state to the free the board of directors of the South Carolina

486 of the said 500 horse power shall be ab80penitentiary are hereby authorized, empowered, transfer of the said canal by the said board of

lute, and any mortgage, assignment, or other and required to transfer, assign, and release to the board of trustees of the Columbia Canal,

trustees or their assigns shall always be subject

to this right. hereinafter created and provided for, the property known as the Columbia Canal, together Sec. 21. The said board of trustees shall be, with the lands now held therewith, acquired un

and is hereby, declared a body politic and corder the acts of the general assembly of this

porate. Its corporate name shall be "Board of state with reference thereto or otherwise, all

Trustees of the Columbia Canal." Its officers and singular the rights, members, and appur

shall be a chairman and a secretary and treas. tenances thereto belonging; and upon such

urer. It shall have a corporate seal ; may make transfer, assignment, and release all the right, and enforce Its by-laws for its government; may title, and interest of the state of South Caro purchase, sell, or lease lands adjoining the canal lina in and to the said Columbia Canal and the useful for the purposes of the canal ; may sell lands now held therewith, from its source at

or lease the water power of the canal, subject Bull's Sluice through Its whole length to the

to such rules and regulations as it shall prepoint where it empties into the Congaree river, soribe, having first provided for the state with together with all the appurtenances thereunto

500 horse power of water power at the penitenbelonging, shall vest in the said board of trus

tiary, and 500 horse power of water power for tees for the use and benefit of the city of Co- Sullivan Fenner or his assigns, and 500 horse !umbia, for the purposes hereinafter in this act

power of water power for the city of Columbia ; mentioned, subject, nevertheless, to the perform may sue and be sued, plead or be impleaded under ance of the conditions and limitations here. their corporate name, and exercise such other in prescribed on the part of said board of

powers as are hereinbefore granted, and shall trustees and their assigns: Provided, That fix such compensation for the services of the secshould the said canal not be completed to Ger-retary and treasurer as they may deem proper. vais street within seven years from the passage Section 23 as amended by act of December 24, of this act, all the rights, powers, and privileges 1890. (20 S. C. Stat. 967.) guaranteed by this act shall cease, and the said

Sec. 23. That the said board of trustees, as property shall revert to the state.

soon as they have fully developed the said canal Sec. 2. That the said board of trustees are

and secured the payment of the debts contracted hereby authorized and directed, for the develop by them in its development, they shall turn over ment of the said canal, to take into their pos

the canal, with all its appurtenances, to the city session the said property with all its appur- of Columbia. But the sald board of trustees tenances : and for the purpose of navigation, shall have full power and authority, before the for providing an adequate water power for the

said canal has been fully developed and com. use of the penitentiary, and for other purposes | pleted and turned over to the cit of Columbia, herein named, they are hereby authorized, em

to sell, allenate, and transfer the same and all powered, and directed to improve and develop its

appurtenances, the lands held therewith, the same.

and all the rights and franchises conferred by

this act on said board of trustees, to any per-
7. That the board of trustees shall,

son or corporation, subject, however, to all the within two years from the ratification of this

duties and liabilities Imposed thereby, and subact. complete the said canal so as to carry a body of water 150 feet wide at the top, 110 ject to all contracts, liabilities, and obligations

made and entered into by said board prior to feet wide at the bottom, and 10 feet deep from

such sale and transfer, upon the approval and the source of the canal down to Gervais street,

consent of nine members of the city council of and furnish the state, free of charge, on the line

the city of Columbia; and before such sale, of the canal, horse power, of water allenation, and transfer is made thirty days' power, Suliivan Fenner

assigns notice of the offer to purchase and the terms 500 horse power

power, under

thereof shall be given to the council of the city his

with the canal commission, of Columbla. and to furnish the city of Columbia 500 horse Approved December 24, D. 1890. power of water power at any point between the 522

172 U. S







That by the 23d section of this act, as the plaintiff as should be necessary for that amended by the subsequent act of December purpose; and that the plaintiff would not 24, 1890 (20 S. C. Stat. 967), the board of recognize the right of the state to assign such trustees was given full power and authority horse power, or any part thereof, to any cor. to sell, alienate, and dispose of the canal, its poration to be used for private purposes, lands and appurtenances, to any person or outside of the walls of the penitentiary or corporation, subject to all duties and liabil. any public institution of the state; and that ities imposed by the act, and to all contracts it was under no obligation to furnish water

made by the board, prior to such transfer, up- power from the canal to be used by private (480]on the approval and consent *of nine mem- corporations for private enterprises.

bers of the council of the city of Columbia ; That subsequently the defendant, acting that in pursuance of such section, the trustees, through the board of directors of the penibefore the completion of the canal, and on tentiary, submitted plans and specifications January 11, 1891, conveyed all of said prop- for the erection of works for making the state erty to the Columbia Water Power Company, water power available, and plaintiff apthe plaintiff, including the canal and all of proved of the same as not taking more of the the lands held therewith, easements, rights land than was necessary for the development of way, rights of overflow, and appurtenances of the 500 horse power for the use of the acquired by the board of trustees, with their state, and allowed the defendant to proceed rights and franchises; that the plaintiff with its work, which was completed in acwent into possession of all the property, and cordance with the plans and specifications so remained in possession without any claim so submitted; but that thereafter the defendor assertion of an adverse right, and thereby ant, against the protests and objections of became entitled to all the franchises, privi. the plaintiff, proceeded to place in such leges, and immunities conferred upon the works machinery intended solely for the purboard of trustees.

pose of running its electric lights and street That the act of December 24, 1887, pro- railway, and furnishing power to divers per: vided that upon the development and com- sons in the city for their industries, against pletion of the canal the board of trustees which plaintiff protested, and gave notice should furnish the state free of charge 500 that proceedings would be taken to prevent horse power of water power; and the 23d sec- such inisapplication by the electric company, tion of the act as amended provided that which, notwithstanding such protests, conthis duty should be imposed upon any person tinues to place such machinery in its power or corporation to whom the board of trustees house for its own private purposes; and that should sell or transfer the property; that in plaintiff is wholly without power to prevent March, 1892, the development and enlarge the action of the defendant in such misapment of the canal was completed, and on said plication of such power for its private purdate, and ever since, the plaintiff was and is poses, owing to the duty of the plaintiff to ready to furnish the state with the 500 furnish power for the use of the state and horse power of water power as required by its penitentiary, as such power is furnished the act aforesaid.

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 af. tric 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, Aumes, 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 şuch 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

that it would object to the use of any of its house for use in the same business.
lands or embankments on the west side of The complaint further alleged that the
the canal by any person or corporation, ex- plaintiff had performed all its obligations to
cept so much as would be necessary for the the state, and stood ready to continue the
erection of the power house to furnish 500 performance of the same, but the defendant
horse power for the use of the state; that the in disregard of its rights has trespassed up-
state should have full liberty to build such on its property, excavated its embankment,
works upon the embankment of the canal as and has interfered with the 'enjoyment of the
were necessary in furnishing such water pow. franchises granted to it by the state; that a
er; but that such works should be strictly judgment at law against the company would
confined to such portion of the property of be worthless, and hence the plaintiff prayed

[ocr errors]

for an injunction against such use of the "specially set up and claimed” in the stato water power and against further trespasses court, as required by Revised Statutes, seoupon its lands.

tion 709. 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 di. franchise 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 pen. power, 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 appur. poses contemplated by the contract.

tenances to the plaintiff. The attorney general, appearing on behalf The gist of the complaint is that in 1892 of the state, filed a suggestion to the effect the defendant, acting as the agent of the that, if the injunction were granted, defend state through the board of directors of the ant would be prevented from carrying out penitentiary, submitted plans and specificaits agreement with the state, and the state tions for the erection of works for making would be deprived of the water power it was the said 500 horse power of water power entitled to in the manner contracted for, available, to which the plaintiff made no oband of the revenue it had secured under the jection; but that thereafter, against its pro-,

to 485) rights of the state to the jurisdiction of the machinery intended for the purpose of run. court, but insisted that the court had no ju- ning its electric lights and street railway risdiction of the subject, and asked that the and furnishing power to the citizens of Col. complaint be dismissed.

umbia for divers industries; and entered upThe case came on for hearing upon the on the premises of the plaintiff and laid complaint, answer, the suggestion of the at- foundations for a steam engine to be used in torney general, and the articles of agree- running its generators, etc., and began the ment, and resulted in a decree dismissing the erection of an engine house, boiler house, and complaint. An appeal was taken to the su coal house for the purpose of establishing a preme court of the state, which affirmed the steam plant. decree of the court below (43 S. C. 169), whereupon plaintiff sued out a writ of error of the board of directors of the penitentiary

The complaint did not set up the contract from this court, assigning as error the de- with the defendant and the act of the gen. cision of the supreme court affirming the va; eral assembly of December, 1892, confirming lidity of defendant's contract with the board the same, but these were both set forth in of directors of the penitentiary, and the act the answer and relied upon by the defendof the general assembly ratifying the same.

ant as its authority for the erection of its

contract the defendant Mr. LeRoy F. Youmans for plaintiff in works. In this

agreed to erect, on the western bank of the Messrs. William H. Lyles and John T. canal opposite the penitentiary, suitable Sloan for defendant in error.

water wheels of sufficient capacity to utilize

and develop the 500 horse power of water [484) *Mr. Justice Brown delivered the opin. power, and to transmit across the canal to ion of the court:

some convenient point within the walls of 1. a preliminary motion was made to the penitentiary not to exceed 100 horse powo dismiss this writ of error upon the ground er for the use and benefit of the penitentiary. that no Federal question was involved, and, in consideration of this the board of direceven if there were such question, it was not 'tors agreed to allow the defendant the use


« ForrigeFortsett »