State v. Broad River Power Co.

• Court: South Carolina Supreme Court
• Writing for the Court: BAKER, Justice.
• Citation: State v. Broad River Power Co., 177 S.C. 240, 181 S.E. 41 (S.C. 1935)
• Decision Date: 22 July 1935
• Docket Number: 14114.
• Parties: STATE v. BROAD RIVER POWER CO. et al.

181 S.E. 41

177 S.C. 240

STATE v. BROAD RIVER POWER CO. et al.

No. 14114.

Supreme Court of South Carolina

July 22, 1935

Appeal from Common Pleas Circuit Court of Richland County; M. M Mann, Judge.

Action in equity by the State of South Carolina against the Broad River Power Company and others. From an order sustaining defendants' demurrer to plaintiff's petition, the plaintiff appeals.

Affirmed.

Complaint, grounds of demurrer, and order, directed to be reported, follow:

Complaint.

The plaintiff through John M. Daniel, its Attorney General complaining of the defendants, respectfully alleges:

1. That during the regular session of 1933 the General Assembly of the State of South Carolina enacted an Act entitled: "An Act Authorizing and Directing the Attorney General to Bring an Action to Test the Validity of Act of the General Assembly, Approved the 24th Day of March, 1925, Entitled 'An Act to Validate, Ratify, and Confirm an Agreement Entered Into Between the State of South Carolina and the Columbia Railway, Gas and Electric Company relating to the Columbia Canal,' and to Determine the Rights and Interests of South Carolina in the Property Effected Thereby," which Act is found at page 1180 of the Acts of 1933, being Act No 625, and a copy of such act is hereto appended as a part of this complaint, being marked "Exhibit I" for identification.

2. That this action is brought by John M. Daniel, the duly elected and qualified Attorney General of South Carolina, pursuant to the authority contained in the said act, and by the direction of the General Assembly of the State of South Carolina, for the use and benefit of all of the people of said state, and to protect and enforce their rights in respect to the subject-matter of this action, and in and to the property hereinafter mentioned and described.

3. That the state of South Carolina is one of the sovereign states of the United States, having right and capacity to sue to protect and enforce its sovereign rights and the rights of all of its citizens.

4. That at the times hereinafter mentioned the defendants, Broad River Power Company, Columbia Railway, Gas & Electric Company, Guaranty Trust Company of New York, and the Chase National Bank of the City of New York, were, and still are, corporations, duly organized under the laws of one or the other of the states of the United States, and having, respectively, the capacity to sue and to be sued; the name of the defendant Columbia Railway, Gas & Electric Company having been changed to that form from its former name of "Columbia Electric Street Railway, Light and Power Company" in accordance with the laws of this state.

5. That the defendant Guaranty Trust Company of New York, and the Chase National Bank of the City of New York are trustees for the bondholders under trust deeds, and have or claim to have some right or interest in the subject-matter of this action, but that such rights, if any, are junior and subject to the rights of the plaintiff in respect to the subject-matter of this action, and in the property involved in or affected by this suit.

6. That on and prior to the 25th day of December, 1887, the state of South Carolina was seized in fee and possessed of all of that certain real estate and property situate, lying and being in Richland county, in the said state, located on, along, and adjacent to the Congaree and Broad rivers, known as the Columbia Canal, and the lands held therewith, together with all rights, easements, rights of way, and rights of overflow, from its source at Bull's sluice on Broad river to the point where it empties into the Congaree river near Rocky Branch, all of which property is commonly and collectively known as the "Columbia Canal," and will be hereinafter referred to by that name.

7. Pursuant to the power and authority contained in the act of the General Assembly of South Carolina (19 Stats. 1090) approved December 24, 1887, reference to which is craved as if incorporated herein, the aforesaid property, commonly and collectively known as the Columbia Canal, was conveyed to a Board of Trustees under the limitations contained in said act and subject to the conditions expressed in such deed or contract of conveyance, some of which limitations and conditions are as follows: "* * * 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"; * * * (section 1) "-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." Section 7.

8. That pursuant to an act of the General Assembly of South Carolina (20 Stats. 967) approved December 24, 1890, reference to which is craved as if incorporated herein, the said Board of Trustees on January 20, 1892, conveyed the Columbia Canal to the Columbia Water Power Company, "subject, nevertheless, to the conditions, limitations, provisions and exceptions" set forth and prescribed in the acts of the General Assembly of the State of South Carolina heretofore mentioned.

9. That thereafter, to wit, on the 1st day of July, 1905, the Columbia Water Power Company conveyed the said canal to the Columbia Electric Street Railway, Light & Power Company, now the defendant Columbia Railway, Gas & Electric Company, "* * * subject, however, to the conditions, limitations, provisions and exceptions set forth in the deed from the Board of Trustees of the Columbia Canal to the aforesaid Columbia Water Power Company, bearing date January 20th, 1892."

10. That by an act approved the 12th day of March, 1917 (30 Stats. 348), the General Assembly of the State of South Carolina declared that the Columbia Water Power Company, and the defendant Columbia Railway, Gas & Electric Company, had failed to fulfill the conditions set forth in the Act of December 24, 1887 (19 Stats. 1090), the statute under which the defendant Columbia Railway, Gas & Electric Company, and its predecessors in title, acquired their rights to the Columbia Canal, and that this defendant had refused to perform the said conditions, and had also neglected to keep in proper repair and open for navigation the said canal, and that by reason thereof the rights of the defendant Columbia Railway, Gas & Electric Company had been forfeited and all of the property known as the Columbia Canal had reverted to the state of South Carolina; and the Attorney General and other agents of the state were directed to take such steps and institute such actions as they might deem proper and necessary to recover possession of the said canal; and, further, that in pursuance of said act the Attorney General of the State of South Carolina on or about the 17th day of December, 1917, commenced suit in the court of common pleas for Richland county, said state, on behalf of the state against the defendant Columbia Railway, Gas & Electric Company, such action being entitled the State of South Carolina, Plaintiff, against Columbia Railway, Gas & Electric Company, Defendant; the purpose of such action being to procure a judgment of forfeiture of the rights and interest of the said defendant in and to all of the property known as the Columbia Canal, and to recover possession thereof for the state.

11. That the action of the state of South Carolina against Columbia Railway, Gas & Electric Company aforesaid was duly tried in the court of common pleas for Richland county, in said state, and a judgment in favor of the state, as plaintiff, was duly rendered and entered therein, adjudging among other things that the defendant Columbia Railway, Gas & Electric Company had forfeited all of its rights, title, and interest in the Columbia Canal and appurtenant property and, further adjudging that the state recover possession thereof; and that upon appeal from such judgment by the defendant Columbia Railway, Gas & Electric Company, such judgment was duly affirmed. State of South Carolina v. Columbia Railway, Gas & Electric Co., 112 S.C. 528, 100 S.E. 355.

12. That on appeal from such judgment the United States Supreme Court in its decision thereon (261 U.S. 236, 43 S.Ct. 306, 67 L.Ed. 629, 637) reversed so much of said judgment as decreed forfeiture of the property in question, but remanded the cause to the Supreme Court and other courts in South Carolina for the purpose of compelling specific performance and granting other relief to the state as plaintiff, as stated in its decision.

13. That thereafter the General Assembly of the State of South Carolina enacted an act entitled: "An Act to Create a Canal Commission and Prescribe its Powers and Duties," which was approved on the 26th day of March, 1923 (Acts 1923 p. 828), which act among other matters provided (section 1): "Be it enacted by the General Assembly of the State of South Carolina: That a Commission is hereby created consisting of three Senators and three members of the House of Representatives, to be appointed, respectively, by the President of the Senate and the Speaker of the House of Representatives, which is hereby vested with full and exclusive power and authority to take full control of the interest of the State, with the...