Appeal
from common pleas circuit court of Beaufort county; HUDSON
Judge.
Action
by the state against W. F. Scheper and John F. Hutching on a
bond conditioned that W. T. Seward & Co., a body corporate
to which a license had been issued by the agricultural
department to work phosphate deposits in the navigable waters
of the state, should perform all the requirements of the
rules and regulations of the agricultural department in
respect to such licenses. The license was as follows
"To all whom these presents may concern, greeting
Whereas, application has been made to the department of
agriculture by W. T. Seward & Co., a citizen, body corporate,
of the said state, for a license granting a general right to
dig and mine phosphate rock and phosphatic deposits from
Broad, Beaufort, Johnson, and Morgan rivers, Parrott and
Battery creeks, and tributaries, being part of the navigable
streams and waters of the state not now occupied by companies
having exclusive rights therein in accordance with the laws
of said state in such case made and provided, and the rules
and regulations of the said department of agriculture made in
pursuance thereof: Now, know ye that, in pursuance of the
said laws, rules, and regulations, the said department of
agriculture do hereby license the said W. T. Seward & Co.,
granting unto the said W. T. Seward & Co. a general right to
dig and mine phosphate rock and phosphatic deposits in the
following streams and waters of the state, not now occupied
by companies having exclusive rights therein, to-wit Broad,
Beaufort, Johnson, and Morgan rivers, Parrott and Battery
creeks, and tributaries; subject, nevertheless, to the
requirements, terms, and conditions prescribed and imposed by
and expressed in the said laws of the state, and the rules
and regulations of the department of agriculture hereon
indorsed, and all such other laws, rules and regulations as
have been and shall hereafter be enacted, made, and
prescribed in relation thereto. This license is for the term
of one year from date thereof, renewable at the pleasure of
the department of agriculture. In witness whereof the said
department of agriculture has caused the seal of said
department to be annexed to and this license to be signed by
A. P. Butler, the commissioner of agriculture, at Columbia,
this 2d day of May, Anno Domini 1887. A. P. BUTLER,
Commissioner of Agriculture. [Seal.] Witness: L. A.
RANSOM." On the back of the license were indorsed the
following: "Rules and regulations of the department of
agriculture for the protection and management of the rights
and interests of the state in the phosphate rocks and
phosphatic deposits in the navigable streams and waters of
the state. Rule 1. All persons, companies, or firms holding
phosphate licenses from the board of agriculture are
forbidden from subletting the same. Rule 2. No persons,
companies, or firms shall be granted or hold general rights
and exclusive rights at the same time. Rule 3. The board of
agriculture will not grant license to any person, company, or
firm now engaged, or intending to engage, in the mining of
land rock. Rule 4. All persons, companies, or firms who shall
apply for phosphate license shall designate the stream or
portion of stream or streams in which they propose to mine,
and shall not change their location without permission from
the commissioner of agriculture. Rule 5. No persons,
companies, or firms holding licenses from the board of
agriculture shall be allowed to traffic or barter in
phosphate rock other than that mined by themselves while
holding such license. Rule 6. In all cases where phosphate
royalties are not promptly paid in the time prescribed by law
the license shall be suspended, and any mining done under the
same after such suspension shall be considered and treated as
illegal. Rule 7. Whenever suspension occurs under the
foregoing rule, parties cannot resume their operations until
royalty has been paid, and the same certified to the
commissioner, and his permission obtained. Rule 8. Each flat
engaged in the work shall be conspicuously marked with the
name of the person or company working it, and be numbered in
regular and continuing sequence with the other flats of the
person or company licensed. Each lighter and dredge shall be
likewise marked and numbered in a separate series of its
class. Rule 9. Each captain of a flat, dredge, or lighter
shall be furnished by the person or body corporate in whose
employment he is with a certificate of said employment,
giving his name and number of the flats, lighters, and
dredges under his charge; also stating the particular stream
or streams in which he or they have been licensed to mine for
the time being. This certificate, which the captain shall
have with him at all times when at work, must be
countersigned by the commissioner of agriculture or the
special assistant. Rule 10. Persons and bodies corporate
licensed shall report monthly to the special assistant the
dredges, flats, and lighters, with the captains thereof, and
the location in which engaged, that they have at work on the
first Wednesday of each month, and any increase or decrease
of the number before the next monthly report."
McGOWAN
J.
In May
1887, the department of agriculture of the state granted to
W. T. Seward & Co., a body corporate, a license to dig and
mine phosphate rocks and phosphatic deposits in certain
navigable waters of the state, subject to the requirements,
terms, and conditions provided by and expressed in the laws
of the state and the rules of the department of agriculture.
See the license and the rules in the case. The defendants,
with Seward & Co., the licensees, executed a joint and
several bond to the state in the penalty of $5,000,
conditioned "that if the said W. T. Seward & Co. shall
make true and faithful returns to the comptroller general of
the number of tons of phosphate rocks and phosphatic deposits
by the said W. T. Seward & Co. dug, mined, and removed, and
shipped, or otherwise sent to market, at the end of every
month, and shall punctually pay to the state treasurer at the
end of every quarter, or three months, the royalty provided
by law to be paid thereon, to-wit, one dollar upon each and
every ton, to be estimated only on the crude rock, and not
upon rock after it has been steamed or dried,--the first
quarter to commence to run on the 1st day of January in each
year,--then the above obligation to be void, and of none
effect; otherwise, to remain in full force and virtue,"
etc. It seems that the said Seward & Co. went immediately to
mining, and made "returns" of the number of tons
mined and removed, by what conveyance, and the amount due the
state in money therefor, for the months of September,
October, November, and December of 1887, and of January,
February, and March of 1888; but as it appeared from the
records of the treasurer's office that Seward & Co. were
largely in arrears of dues to the state, viz., $7,764.36, the
department of agriculture revoked their license to mine,
about the middle of April, 1888, and soon thereafter brought
this action on the bond in the name and for the benefit of
the state. The bond itself was not before the court, but the
third paragraph of the complaint set out the condition in the
terms above set forth, and then proceeded, in a number of
paragraphs, to assign breaches of the bond, as follows:
"Par. 4. That the said W. T. Seward & Co., under and by
virtue of said license, dug, mined, and removed large
quantities of phosphate rocks and phosphatic deposits from
the navigable streams and waters of the state. Par. 5. That
the condition of said bond has been broken; that the said W.
T. Seward & Co. did not make true and lawful returns to the
comptroller general of the number of tons of phosphate rocks
and phosphatic deposits by them dug, mined, removed, or
shipped, or otherwise sent to market, at the end of each
month, and that they did not pay to the state treasurer at
the end of every quarter, or three months, the royalty
provided by law to be paid thereon." Paragraphs 6, 7, 8,
9, 10, 11, and 12 assign
breaches for the different months named, in the words
following: "That W. T. Seward & Co. did not pay the
royalty provided by law to be paid by them on phosphate rocks
and phosphatic deposits dug, mined, and removed by them, as
required by said bond," etc. Paragraph 13 assigned as a
breach "that the said W. T. Seward & Co. failed and
neglected to make returns to the comptroller general of the
number of tons of phosphate rocks and phosphatic deposits
dug, mined, or removed by them during the months of April and
May, 1888; and that the said W. T. Seward & Co. did not pay
to the state treasurer at the end of the current quarter the
royalty provided by law to be paid," etc.; "and
that the said W. T. Seward & Co. are now indebted unto the
said plaintiff in the sum of $2,936.53 on account of royalty
due by them for said months on phosphate rocks," etc.,
"dug, mined, and removed by them, and for which they
have made no returns as aforesaid," etc. "Par. 14.
That the defendants are indebted to the plaintiff upon the
said bond, by reason of the breaches of the condition
thereof, as hereinbefore assigned, in the sum of $5,000; that
payment has been demanded of the defendants, but they have
refused to pay the same," etc. At the September term of
the court, 1888, the complaint having been read, the
defendants, without making any particular objections to the
pleadings, moved to dismiss the complaint on the ground that
it did not state facts sufficient to constitute a cause of
action. Judge NORTON overruled...
