State of South Carolina ex rel. Tillman v. Coosaw Min. Co.

• Decision Date: 21 April 1891
• Citation: 45 F. 804
• Parties: STATE ex rel. TILLMAN, Governor, et al. v. COOSAW MIN. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

45 F. 804

STATE ex rel. TILLMAN, Governor, et al. v. COOSAW MIN. CO.

United States Circuit Court, D. South Carolina.

April 21, 1891

Y. J Pope, Atty. Gen., Mitchell & Smith, and George S. Mower, for plaintiffs.

McCrady Sons & Bacot and Smythe & Lee, for defendant.

SIMONTON J.

The summons and complaint in this case were filed in the office of the clerk of Beaufort county in South Carolina on 23d March, 1891. The complaint sets forth the ownership by the state of the beds of Coosaw river, including that part of it which 'lies opposite to and south of Chisolm's island,' and in the phosphate and phosphatic deposits therein. That the Coosaw Mining Company, a joint-stock company, claims a perpetual grant to all such deposits in that part of Coosaw river, and the exclusive right to mine the same, which claim relators deny. That, notwithstanding such denial, the Coosaw Company continues to assert its claim, and hinders and obstructs the relators, who are the duly qualified and appointed board of phosphate commissioners, and all persons authorized by them, from mining in said territory. That it is necessary to dispose of this claim, which is based on a certain act of the general assembly of South Carolina, approved 20th March, 1876 (setting out the title of the act,) which act relators charge to be in conflict with the state constitution. That the deposits are of great value, variable, however, in price, and liable in this respect to be affected by the discovery and the production of phosphate rock elsewhere. Charges that the Coosaw Company has brought and threatens suits against persons licensed by plaintiffs to mine in this territory, and that this cloud on the state's title should be removed. The prayer is for a perpetual injunction against the Coosaw Company, and in the mean time a restraining order, and also for the appointment of a receiver. After the filing of the complaint an order was made by his honor, Judge ALDRICH, sitting in chambers at Aiken, containing a rule against the Coosaw Company to show cause before him, on 7th April next thereafter, why the injunction as prayed for be not granted, and why the receiver be not appointed. In the mean time a restraining order was issued, and a temporary receiver appointed without bond. The defendant was served with summons and complaint on 23d March, 1891. On 30th March, 1891, a petition was filed with the clerk of the court of common pleas for Beaufort county for the removal of the cause into this court, accompanied by a bond with good surety in the sum of $5,000. The court of common pleas for that county was then and is now in vacation. The next regular term will be held on 4th of May next. The defendant exhibited a copy of the petition and bond to Judge ALDRICH at Aiken on 31st March. What action he took does not appear. A copy of the summons and complaint, petition and bond, with exhibits certified by the clerk of the court of common pleas for Beaufort county, was filed in this court on 1st April. On the 6th day of April the regular term of this court began. On the 7th of April the Coosaw Company came into open court, and asked leave to file a return to the rule issued by Judge ALDRICH. Thereupon the Honorable Y. J. Pope, who is the attorney general of the state of South Carolina, and who appears on the record as plaintiffs' attorney, entered a qualified appearance for the plaintiffs, simply to test the jurisdiction of the court. At the same time he filed in writing a suggestion to the court that the rule and the return thereto were then actually being heard before his honor, Judge ALDRICH, at Aiken, S.C.

At the threshold of this case plaintiffs submit two questions to the impairs the obligation of a contract, can be made to appear on that jurisdiction, are there not considerations of courtesy and comity towards the state court which will induce it to withhold action?

Has this court jurisdiction of this case? This will depend upon two questions: Is the case removable from the state court to this court? Has it been removed? The case cannot be removed unless it comes within the class of cases arising under the constitution of the United States, of which circuit courts of the United States are given jurisdiction by the first section of the act of congress of 1888. 25 St.at Large, 434. Section 1 of that act gives to the circuit courts of the United States original cognizance concurrent with the courts of the several states of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of $2,000, and arising under the constitution of the United States. The value of the matter in dispute here is beyond the sum stated. The act makes no exception because of the character of the parties. The sole question, therefore, is, does this case arise under the constitution of the United States?

The complaint does not anywhere state the authority upon which it is brought by these relators in the name of the state, nor how they became and are the duly appointed and qualified board of phosphate commissioners, nor how or when they were authorized to do the acts which it is charged the Coosaw Mining Company obstructs. Nor does it mention or refer to any legislative action of the state of South Carolina with respect to the claim of the Coosaw Company to hold her grant. It does allege that the state is the sole owner of the disputed territory; that the Coosaw Mining Company claims a perpetual grant of the exclusive right to mine therein, based upon an act of the general assembly of that state, whose title and the date of whose approval are stated in the complaint, which the complaint says is invalid. The petition for removal states that the relators are acting under and by the authority of an act of the assembly of this state, approved-- -December, 1890, giving its title at length; that the grant which they have, and which they charge is a contract between them and the said state, is impaired by said act of 1890. That the said act is a violation of the constitution of the United States in sundry particulars, especially in that it impairs the obligation of a contract.

There can be no doubt that if the question, whether the act of 1890 impairs the obligation of a contract, can be made to appear on that part of this record, which this court is at liberty to examine at this stage of the proceedings, the case is removable. It is a federal question, arising under the constitution of the United States. In the case of Dartmouth College v. Woodward, 4 Wheat. 518, the legislature of New Hampshire had passed an act materially amending the charter granted by the crown to the trustees of Dartmouth College. It was claimed on the one side that the charter was a contract, and this was denied on the other. If it was a contract, the amending act impaired it. The supreme court of the United States took jurisdiction of this as a federal question, discussed whether the charter was a contract, and decided that it was. The decision of the supreme court of New Hampshire to the contrary was reversed, and the act was declared invalid. So, in this case, if it can be made to appear from that part of the record which the court is at liberty to inspect that the questions are distinctly made whether there did exist such a contract, and whether this act of 1890 impairs its obligation, then it is competent for this court to entertain and decide both questions. See Bank v. Skelly, 1 Black, 436; Proprietors v. Hoboken Co., 1 Wall. 145. Not only so, this federal question would be the controlling question in the case. For if, on the one hand, the court should decide that there was such a contract, and that the act of 1890 impaired its obligation, laws, or aver facts, which the courts are bound, judicially, to know. relators to interfere with the possession of the Coosaw Mining Company and its operations sanctioned by that contract, or to give licenses to any person to mine in the disputed territory, or to seek an injunction or a receiver, is null and void. On the other hand, if there be no such contract, or the act of assembly does not impair its obligation, the case of the relators must be sustained. So, the inquiry is, is this federal question presented to this court now? Where in the record must we look for it? The counsel for the plaintiffs, with great learning and force of argument, contend that in making this inquiry the court cannot go outside of the complaint; that the allegations of the petition for removal cannot be used in aid of this inquiry. On the other hand, the counsel for the Coosaw Company, with equal learning and force, insist that as they seek the jurisdiction, and as the plaintiffs seek to escape it, they must not depend upon the allegations of the complaint; but that it is not only incumbent upon them, it is their right, to show the grounds of jurisdiction, and that they can for this purpose use the allegations of the petition for removal.

We will inquire, first, confining ourselves to the complaint without any reference to the allegations of the petition for removal, does it appear that a federal question is involved in the case made by it? That is to say, suppose the parties are heard here on the complaint alone, without any answer or plea setting forth facts not in the complaint, would the federal question arise? Could the court entertain the question, was there a contract between the state and the Coosaw Company? Has the state by legislation sought to impair its obligation? There are certain matters in all causes of which courts will of themselves take notice, and which, therefore, need not be pleaded or proved. Wharton on Evidence (section 277) thus expresses it:

'Certain facts or conclusions from facts, however, may be

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