Reading the complaint and the answer in this case together, the
question whether the contract of the plaintiff was impaired by
subsequent state action appears on the face of the pleadings, and
this Court has jurisdiction to hear and determine the case.
Under Rev.Stat. § 709, there are three classes of cases in
which the final decree of a state court may be examined here: (1)
where is drawn in question the validity 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) where any title, right, privilege or
immunity
Page 172 U. S. 476
is claimed under the Constitution or any treaty or statute of or
commission held or authority exercised under the United States, and
the decision is against the title, right, privilege or immunity
specially set up and claimed by either party under such
constitution, statute, commission or authority, and in this class,
the federal right, title, privilege or immunity must, with possibly
some rare exceptions, be specially set up or claimed to give this
Court jurisdiction.
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, if the federal question appears in the
record and was decided, or if 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.
The provision in the act of the South Carolina Legislature of
December 24, 1887, that the right of the state to the five hundred
horsepower of water retained for the use of the penitentiary should
be "absolute" authorized the leases of such portion thereof as was
not required for the individual use of the penitentiary.
Whether the plaintiff had a legal title to the lands in question
in this case was purely a local issue, and whether the erection of
a steam plant by the defendant was an incident of its contract with
the state penitentiary is not reviewable here.
This was a complaint, in the nature of a bill in equity, filed
in the Court of Common 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, and, when constructed and in use, made a continuous
communication between the Broad and Congaree Rivers; that the canal
was begun by the state as a public work in the year 1824, and for
the purpose of its construction
Page 172 U. S. 477
certain lands were purchased within the limits 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
authorized and directed to, and subsequently did, 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 margin
*)
"to incorporate the board of trustees of the Columbia
Page 172 U. S. 478
Canal, to transfer to said board the Columbia Canal with the
lands held therewith, with its appurtenances, and to develop the
same,"
19 So.Car.Stata 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 trustees of the canal
Page 172 U. S. 479
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.
That by section 21 of the above act the board of trustees was
declared a corporate body, and was authorized, among other things,
to purchase, sell, or lease lands adjoining the canal, useful for
the purposes of the canal, and 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 the twenty-third section of this act, as amended by the
subsequent Act of December 24, 1890 (20 St. at Large S.C. p. 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, upon the approval and consent
Page 172 U. S. 480
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 property
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, five hundred horsepower
of water power, and the twenty-third 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 were completed, and on said date and ever
since, the plaintiff was and is ready to furnish the state with the
five hundred horsepower of water power as required by the act
aforesaid.
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
plaintiff 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 five hundred horsepower 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 notice to the said board and to
the
Page 172 U. S. 481
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 five hundred horsepower for the use
of the state, and that the state should have full liberty to build
such works upon the embankments of the canal as were necessary in
furnishing such water power, but that such works should be strictly
confined to such portion of the property of the plaintiff as should
be necessary for that purpose, and that the plaintiff would not
recognize the right of the state to assign such horsepower, or any
part thereof, to any corporation, 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 five hundred
horsepower 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 mad available at and by the same
Page 172 U. S. 482
water 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 affected and materially injured.
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.
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 five hundred horsepower
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
five hundred horsepower referred to in the complaint, but being
without means to
Page 172 U. S. 483
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 horsepower, 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
So.Car.Stats. 94, and that the defendant was entitled under such
contract to the unrestricted use of such horsepower for the
purposes 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. 154), 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.
Page 172 U. S. 484
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, 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 "specially set up and claimed"
in the state court, as required by Rev.Stat. § 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 five
hundred horsepower of water power, with a further proviso that
the right of the state to the free use of the said five hundred
horsepower 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 twenty-one, this reservation is described as a
provision for the state, with five hundred horsepower 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 11,
1892, conveyed the canal and its appurtenances 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 five hundred horsepower of
water power available, to which the plaintiff made no objection,
but that thereafter, against its protests, defendant proceeded
to
Page 172 U. S. 485
construct in such works 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 general assembly of December, 1892, confirming the same; but
these were both set forth in 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 five hundred
horsepower of water power, and to transmit across the canal, to
some convenient point within the walls of the penitentiary, not to
exceed one hundred horsepower, 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 five hundred
horsepower of water power reserved to the penitentiary, with the
exception of the one hundred horsepower so reserved for its private
use. This contract was subsequently ratified and confirmed by an
act of the general assembly approved December 24, 1892.
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 five hundred horsepower 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, reading
Page 172 U. S. 486
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 five hundred horsepower 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 five hundred horsepower
was null and void, and held that, the proviso the section seven of
the act of 1887 being that the right of the state to the free use
of this horsepower 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 horsepower 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 concurred 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
Page 172 U. S. 487
indicate that either of them dissented from the views expressed
by Mr. Justice Gary, who presumably spoke for the court with
respect to the federal question.
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 the state of the five hundred horsepower 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 impaired, and that question may be
answered either by holding that there is no contract at all or that
the plaintiff had no exclusive rights under its contract, or,
granting that it had such exclusive rights, that the subsequent
legislation did not impair it. 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, that it is the duty of this Court to determine
for itself the proper construction of the contract upon which the
plaintiff relies, that it must be considered no longer as an open
question.
N.O. Water Works Co. v. La. Sugar Co.,
125 U. S. 18;
Bridge Proprietors v. Hoboken
Co., 1 Wall. 116.
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. Under this section, there are three classes of
cases in which the final decree of a state court may be reexamined
here:
Page 172 U. S. 488
(1) "Where is drawn in question the validity 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 Constitution, or any treaty or statute of, or commission
held or authority exercised under, the United States, and the
decision is against the title, right, privilege or immunity
specially set up and claimed by either party under 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,
123 U. S. 181;
French v. Hopkins, 124 U. S. 524;
Chappell v. Bradshaw, 128 U. S. 132;
Baldwin v. Kansas, 129 U. S. 52;
Leeper v. Texas, 139 U. S. 462;
Oxley Stave Co. v. Butler County, 166 U.
S. 648.
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 is 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;
Willson v.
Blackbird Creek Marsh Co., 2 Pet. 245;
Satterlee v.
Matthewson, 2 Pet. 380,
27 U. S. 410;
Fisher's Lessee v.
Cockerell, 5 Pet. 248;
Crowell v.
Randell, 10 Pet. 368;
Harris v.
Dennie, 3 Pet. 292;
Farney v.
Towle, 1 Black 350;
Hoyt v.
Shelden, 1 Black 518;
Railroad
Co. v. Rock, 4 Wall. 177;
Furman v.
Nichol, 8 Wall. 44;
Kaukauna Co. v. Green Bay
&c. Canal Co., 142 U. S. 254.
The case under consideration falls within the second class,
Page 172 U. S. 489
and, as it appears from the record and from the opinion of the
Court, which may be examined for that purpose (
Kreiger v.
Shelby Railroad, 125 U. S. 39), 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, evidence 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 five hundred horsepower 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 support
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 So.Car.Stats.
No. 4797, p. 393, 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 enclosure, on which to erect
suitable penitentiary buildings."
And by a subsequent act, approved December 19, 1866, 13
So.Car.Stats. 408, 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
Page 172 U. S. 490
September 21, 1868, 14 So.Car.Stats. 83, the commissioners were
vested by section four 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
So.Car.Stats. 444, to provide for the disposal of the Columbia
Canal, there was also a proviso in section four 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 So.Car.Stats. 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 six of the same act, they were authorized
"to furnish to the City of Columbia, for the purpose of
operating its water works and for other purposes, five hundred
horsepower 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 horsepower as in their judgment may be
proper, and also to lease such millsites 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 later ones indicated that such power was
also reserved for the use of the City of Columbia for the purpose
of operating its water works and other purposes, as well as for
leasing to others. But however cogent these acts might be to
indicate that the object of the state
Page 172 U. S. 491
was to reserve to the individual use of the penitentiary the
five hundred horsepower, it is equally clear that the act of 1887
is decisive of a change of purpose in that regard, and, in
providing that the right of the state to the free use of its amount
of water power should be
absolute, it meant that the
directors of the penitentiary should make such use of it as they
pleased, regardless of prior acts and the immediate requirements of
the penitentiary. The clearer the reservation for the individual
use of the penitentiary may have formerly been, the clearer the
change of purpose becomes manifest by the use of the word
"absolute." The theory of the plaintiff is that by the use of this
word was meant simply the right of the state to the free use of the
said five hundred horsepower unaffected by any mutations of
ownership. This, however, was already secured to the state by the
previous clause of section seven requiring the board of trustees
"to furnish to the state, free of charge, on the line of the canal,
five hundred horsepower of water power." Nor are the requirements
of this word met by treating it as the equivalent of "perpetual" or
"for all time." In construing statutes, words are taken in their
ordinary sense. No authority can be found for such a definition of
the word "absolute," nor does the context suggest it. Its most
ordinary signification is "unrestricted" or "unconditional." Thus,
an absolute estate in land is an estate in fee simple. 2 Bl.Com.
104;
Johnson v.
McIntosh, 8 Wheat. 543,
21 U. S. 588;
Fuller v. Missroon, 35 S.C. 314, 330;
Johnson v.
Johnson, 32 Ala. 637;
Converse v. Kellogg, 7 Barb.
590, 599. In the law of insurance, that is an absolute interest in
property which is so completely vested in the individual that there
could be no danger of his being deprived of it without his own
consent.
Hough v. City Fire Ins. Co., 29 Conn. 10;
Reynolds v. State Mutual Ins. Cop., 2 Grant's Cases 326;
Washington Fire Ins. Co. v. Kelly, 32 Md. 421.
We have no doubt that, in providing that the right of the state
should be absolute, it was intended to permit the board of
directors to do exactly what was done in this case --
i.e.
to lease such portion of the five hundred horsepower as was not
required for the individual use of the penitentiary. Indeed,
Page 172 U. S. 492
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 of street railways was manifestly a public
purpose.
If plaintiff's theory were sound, the penitentiary would be
unable to make use of its reserved water power unless it were also
possessed of the requisite means to establish a plant, while under
its actual arrangement with the defendant, it grants to the latter
its surplus water power, and in consideration thereof receives all
such power as is necessary for its own purposes, and in addition
thereto a substantial annual revenue for its other needs.
3. The remaining question, as to injuries threatened and
inflicted upon plaintiff's property by the entry of the defendant
upon the western embankment of the canal, the digging, excavating,
and removal of the earth, and the erection of buildings and
machinery thereon, does not demand an extended consideration. The
court of common pleas found that plaintiff was owner of the
property upon which these works were erected, but that the state,
having the right to the five hundred horsepower, had also the
incidental right to lease the same to the defendant, which took
thereby the right to put its electric plant upon the banks of the
canal, as well as the supplementary right to put in a steam plant,
to be used at times when the water power was unavailable by reason
of freshets, or by necessary repairs to the canal, or other causes.
The supreme court did not expressly pass upon the validity of
plaintiff's title to the land, but held that whether the contract
conferred upon the defendant the right to erect a steam plant
depended upon the fact whether it was merely incidental to, or
essential to, the enjoyment of the water
Page 172 U. S. 493
plant, and that, no jury having been demanded, the court must
assume that the circuit judge decided this question properly, and,
even if there were error on his part in the finding of fact, it was
not the subject of review by the supreme court in a law case. It
needs no argument to show that neither of these rulings involved a
federal question. Whether plaintiff had a legal title to the lands
was purely a local issue, and whether the erection of a steam plant
by the defendant was an incident of its contract with the state
penitentiary is, for the reason stated 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 Carolina is
therefore
Affirmed.
*
"
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, 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 Carolina 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 Columbia, for the purposes hereinafter in
this act mentioned, subject, nevertheless, to the performance of
the conditions and limitations herein prescribed on the part of the
said board of trustees and their assigns,
provided that
should the said canal not be completed to Gervais 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 ten 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, five hundred horsepower of water power, to
Sullivan Fenner or assigns five hundred horsepower of water power,
under his contract with the canal commission, and to furnish the
City of Columbia five hundred horsepower 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 five hundred horsepower 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 bylaws 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 five hundred horsepower of
water power at the penitentiary, and five hundred horsepower
of water power for Sullivan Fenner or his assigns, and five hundred
horsepower 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 Dec. 24, 1890. (20 S.C.Stats.
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, alienate, 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, A.D. 1890.
