Opinion
14114
July 22, 1935.
Before MANN, J., Richland, October, 1934. Affirmed.
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.
Complaint, grounds of demurrer, and order, directed to be reported, follow:
COMPLAINTThe 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 Attorney General, in and over the litigation involving the rights of the State in the Columbia Canal property, wherein a decision has been recently rendered by the Supreme Court of the United States in the cause entitled `The State of South Carolina v. Columbia Railway, Gas Electric Company,' and reference to such Act is hereby craved as if incorporated herein."
14. That the General Assembly of the State of South Carolina enacted an Act, approved the eighth day of March, 1924 (Acts 1924, p. 1839), which reads as follows: "Be it enacted by the General Assembly of the State of South Carolina: The persons heretofore appointed under an Act entitled `An Act to Create a Canal Commission and prescribe Its Powers and Duties,' approved March 26, 1923, are hereby authorized and empowered to continue the discharge of their duties in their said office under this appointment, until the final determination of all questions pertaining to the Columbia Canal is finally determined. That the said Commission is hereby authorized to secure, receive and consider any offers or proposals for the settlements of the rights and claims of the State of South Carolina in or concerning the Columbia Canal property, and to report such offers or proposals to the General Assembly with its recommendations thereon: Provided, Nothing herein contained shall in any way affect the litigation now pending or which may be hereafter instituted on behalf of the State," and reference to such Act is hereby craved as if incorporated herein.
15. That thereafter the said Canal Commission, while the aforesaid suit ( State v. Columbia Railway, Gas Electric Co.) was pending, and while other litigation was being contemplated on behalf of the State to determine and protect the interests of the State in and to the Columbia Canal, and to require compliance with the Act of December 24, 1887, and amendatory Acts and contracts supplementary to and arising thereunder, recommended to the General Assembly of the State of South Carolina a settlement of the rights and interests of the State in and to the Columbia Canal, and of the litigation pending over same, in a contract of certain form and tenor hereinafter fully set forth as a part of the Act of 1925 (34 Stats., 852); reference thereto being craved. as if incorporated herein. See Exhibit 2.
16. That the General Assembly of the State of South Carolina enacted an Act designated as No. 440 (34 Stats., 852), approved the 24th day of March, 1925, a copy of which is hereto annexed as a part of this complaint, and designated as "Exhibit 2," and reference thereunto is respectfully craved as often as may be necessary.
17. That certain officers of the State of South Carolina, pursuant to such Act (34 Stats., 852), have executed and delivered unto the defendants Broad River Power Company and Columbia Railway, Gas Electric Company a contract of form and tenor substantially as set forth in Exhibit 2, hereto attached, and that these defendants have thereunder and since 1925 been in the wrongful and unlawful use and possession of the said Columbia Canal property, and are now using same in violation of law.
18. That, upon information and belief, such Act (34 Stats., 852), and all contracts entered into pursuant thereto, and all acts of any officers of the State of South Carolina done upon authority thereof, are unconstitutional, null, and void, and contrary to law, especially that portion of the Constitution of the State of South Carolina (1895) reading as follows: "Lands belonging to or under the control of the State shall never be donated, directly or indirectly, to private corporations or individuals, or to railroad companies. Nor shall such land be sold to corporations or associations, for a less price than that for which it can be sold to individuals." Section 31, Art. 3. And also: "All navigable waters shall forever remain public highways free to the citizens of the State and the United States without tax, impost or toll imposed; and no tax, poll, impost or wharfage shall be imposed, demanded or received from the owners of any merchandise or commodity for the use of the shores or any wharf erected on the shores or in or over the waters of any navigable stream unless the same be authorized by the General Assembly," Section 28, Art. 1.
19. That under the Act of the General Assembly of 1887 (19 Stats., 1090), and prior to that time, and under the judgments of the Supreme Court of the United States and of the Supreme Court of South Carolina, the State of South Carolina had and has property rights and interests in the real estate aforesaid, known as the Columbia Canal, which is of vast actual and potential value, especially now and hereafter when it is proposed to improve navigation from the ocean via the Santee and Congaree Rivers to the City of Columbia, and beyond, by a development with federal aid of that project commonly known as the "Santee River Hydro-Electric Development"; such development allowing navigation from the ocean to the City of Columbia, and beyond, for the carriage of freight from the ocean to the Central and Piedmont sections of South Carolina at greatly reduced rates; and also providing numerous sites for industrial development.
20. That in reference to the use, value, and purposes of the Columbia Canal the Supreme Court of South Carolina has declared and held: "It appears from the numerous Acts of the Legislature relative to the canal that the dominant purpose in providing for its construction was the improvement of navigation in the Congaree and Broad Rivers, and to make it possible to obviate the obstruction caused by the shoals at and near their confluence. That purpose runs as an unbroken thread through the entire legislative history of the project, and nowhere does it appear more clearly than in the Act of 1887, wherein it is so clearly expressed that no grantee thereunder can be heard to say that he did not contract with reference to it; and, so far as completed, the canal has become a part of the navigable waters of the state, and, as such, impressed by the Constitution with a trust for the public benefit. State v. Columbia Railway, Gas Electric Co., 112 S.C. 528, 538, 100 S.E., 355, 358."
21. That the rights and interest of the State of South Carolina in and to the real estate and property known as the Columbia Canal are of vast actual and potential value, and that, notwithstanding this fact under the Act of 1925 (34 Stats., 852), and the agreement or agreements made pursuant thereto, such property has been donated to the defendants, Broad River Power Company and Columbia Railway, Gas Electric Company, without, or practically without, consideration, contrary to the laws of this State.
22. That the Attorney General, for and in behalf of the State of South Carolina, alleges that by reason of said agreement and statute approving same, the State of South Carolina is deprived of valuable contractual and property rights in and to said canal, reserved and perpetuated to the State by the Constitution of the State of South Carolina and the Act of December 24, 1887 (19 State., 1090), and other Acts and agreements supplementary to and in connection therewith, which the said Canal Commission, by the aforesaid agreement, nor the General Assembly, by statute, had any legal authority to modify or set aside by agreement or otherwise; so that the State has been seriously and grievously damaged by the failure of the defendants Broad River Power Company and Columbia Railway, Gas Electric Company, to complete the said canal and to comply with other contractual obligations entered into as a part of the consideration therefor, which damages since the year 1925 to this date should be determined and assessed against the said defendants in favor of the State.
23. That the Act of 1925 (34 Stats., 852), should be declared unconstitutional and void, and all contracts entered into thereunder by the agents and officers of the State with the defendants Broad River Power Company and the Columbia Railway, Gas Electric Company should be canceled, and the status of the rights of the State and these defendants, and all persons claiming under them, should be restored as of date when the United States Supreme Court rendered its aforesaid judgment in the case of the State v. Columbia Railway, Gas Electric Company; and the State of South Carolina should be allowed to proceed in the enforcement and protection of its rights and interest in and to the said property.
24. That the plaintiff has no plain and adequate remedy at law in the premises, and hence invokes the aid of the equitable jurisdiction of this Court in protecting and enforcing its rights in this behalf.
Wherefore, the plaintiff demands judgment:
1. That the Act of 1925 (34 St. at Large, p. 852), be declared invalid, and all contracts based thereon or connected therewith be rescinded and canceled.
2. That the defendants be required to specifically perform the contract or contracts to complete the Columbia Canal.
3. That the plaintiff have all damages arising from the failure of the defendants, or any one or either of them, to specifically perform such contract or contracts determined or assessed by a judgment of the Court.
4. For such other and further relief in all and singular the premises as may be just and equitable, with costs and disbursements.
GROUNDS OF DEMURRER1. That it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action, in that the complaint alleges that the contract of 1925 was expressly authorized by Act No. 440 of 1925, and then alleges that the Act of 1925 is in violation of Section 31 of Article 3 and Section 28 of Article 1 of the Constitution of 1895. That it appears from the complaint that there were no lands belonging to or under the control of the State involved in the release authorized by the Act of 1925 or accomplished by the contract thereunder, but, on the contrary, that only contract rights of the State were released thereby including the right to the free use of 500 horse power of water power of the water flowing in said canal; and it further appears that such release was in no wise a donation by the State, but was based on valuable and adequate consideration.
That it further appears that the Act of 1925 in no wise violates Section 28 of Article 1, because the canal, as completed, is a part of the navigable waters of the State, and the proviso to Section 12 of the contract of 1925 (34 St. at Large, p. 858), continues the obligations imposed by existing legislative enactment, to wit, to maintain and keep in such condition and repair as to render all that part of the canal north of Gervais Street available at all times for navigation, and to keep the said canal free and open to the citizens of the State and the United States without tax, impost, or toll imposed; and Section 2 of the Act of 1925 (34 St. at Large, p. 858), reserves to the State the right to complete the Columbia Canal down to Congaree River.
2. That it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action, in that it appears that the State has for more than eight years received continuous substantial and valuable benefits in actual money and measurable in money, by way of performance by defendants of their obligations under the contract of 1925, which the State has retained and enjoyed and has not tendered or offered to return; and it appears further from the complaint that by reason of the State's long-continued acquiescence and receipt and enjoyment of such benefits and the change of status incurred by defendants, to their substantial detriment, with the knowledge and acquiescence of the State, the State has elected to confirm and ratify the Act of 1925, has waived any right to claim that the same is unconstitutional, and is now estopped from so doing.
3. That it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action, in that it appears that the State has for more than eight years received continuous substantial and valuable benefits in actual money and measurable in money, by way of performance by defendants of their obligations under the contract of 1925, which the State has retained and enjoyed and has not tendered or offered to return; and that a tender back or offer to return such consideration is a condition precedent to the right of the State to commence or maintain this action.
4. That it appears upon the face of the complaint that this Court has no jurisdiction of the subject of the action, in that Act No. 625 of 1933 instructs and directs the Attorney General to test the validity of the Act of 1925 and to determine the rights and interests of South Carolina in the property affected thereby and does not authorize an action to enforce any rights of the State, and that the action authorized by the statute does not present any actual controversy, but merely presents a moot question and seeks a declaratory judgment of this Court, which it is not within the jurisdiction of this Court to render.
Wherefore, defendants pray that the complaint herein be dismissed.
ORDER OF JUDGE MANNThis action in equity is brought by the Attorney General in the name of the State to cancel the contract incorporated in the Act of March 24, 1925 (34 Stats., p. 852), and executed pursuant thereto, which compromised the prolonged dispute and litigation between the State and the defendant Columbia Railway, Gas Electric Company (its predecessor in title, Columbia Water Power Company, and successor, Broad River Power Company), concerning the Columbia Canal. The Act of May 15, 1933 (38 Stats., p. 1180), directs the Attorney General to bring an action to test the validity of the Act of 1925 and to determine the rights and interests of South Carolina in the property affected thereby. This action is the result of such mandate.
The gravamen of the complaint lies in the allegation that the Settlement Act of 1925 violates Section 28 of Article 1 of the Constitution, requiring that all navigable waters shall forever remain public highways, free of toll, and Section 31 of Article 3, forbidding the donation of lands belonging to or under the control of the State.
The first ground of the demurrer for insufficiency, in which all the defendants join, asserts the validity of the Act of 1925, and thereby raises the controlling question whether this statute violates the Constitution in either of the respects alleged.
There are no facts or inferences of fact to come into dispute. The question turns on the interpretation of statutes, instruments of conveyance, and opinions of the Court accompanying judgments rendered in other actions between the State on the one side, and defendants and their predecessors on the other, involving the same subject-matter. These are all alleged in the complaint and thereby brought before the Court for its consideration on the demurrer. Otherwise, many of them, as well as additional relevant facts, are judicially known to the Court, and hence may be considered in disposing of this question. Under Section 4 of Article 6 of the Constitution, every statute is a public law, unless otherwise declared in the statute itself, and hence is within the knowledge of the Court. 23 C.J., 128; State v. Sartor, 33 S.C.L. (2 Strob.), 60, 64. The legislative journals of both houses of the General Assembly are judicially noticed, as well as the official reports of legislative, departments, such as the Tax Commission and the Comptroller General. 23 C.J., 102; State v. Platt, 2 S.C. 150, 155, 16 Am. Rep., 647. "Courts will not profess to be more ignorant than the rest of mankind," Fleischman, Morris Co. v. So. Ry. Co., 76 S.C. 237, 241, 56 S.E., 974, 975, 9 L.R.A. (N.S.), 519, and should take notice of whatever is or ought to be generally known within the limits of their jurisdiction. 15 R.C.L., p. 1057, § 2.
The ultimate facts alleged and judicially known to the Court are many, as they cover history and controversy extending over more than fifty years of time; but they are not complicated or difficult to understand. More patience than other quality is required for their comprehension. I now undertake their statement.
The Columbia Canal was projected to extend from Bull's sluice on the Broad River, around the shoals at the confluence of the Broad and Saluda Rivers, to Rocky Branch on the Congaree River, along the east side of the rivers and passing through the western edge of the City of Columbia — a distance of several miles. Prior to 1887 the Stated owned the land on which the canal was to be dug, the title being vested in the Board of Directors of the State Penitentiary. The canal was originally projected as an aid to navigation, but by 1887 the development of power therefrom had become an important purpose.
By the Act of December 24, 1887 (19 Stats., p. 1090), the Legislature incorporated the board of canal trustees, to whom the penitentiary directors were required to convey the canal property. Paragraph 7 of the complaint alleges this, and that the canal property was accordingly conveyed by the penitentiary directors to the canal trustees. The title to the canal property was thereby vested in the trustees, for the use and benefit of the City of Columbia, subject to the performance of certain obligations imposed by the Act of 1887.
By the amendatory Act of December 24, 1890 (20 Stats., pp. 967, 968), the canal trustees were authorized to "sell, alienate and transfer" the property, subject "to all the duties and liabilities imposed thereby [Act of 1887], and subject to all contracts, liabilities and obligations made and entered into by said Board [of Canal Trustees]. * * *" Section 2. Under this statute, in January, 1892, the canal property was conveyed by the Canal Trustees to Columbia Water Power Company, defendant's predecessor, as alleged in Paragraph 8 of the complaint.
Paragraph 9 of the complaint alleges that on July 1, 1905, Columbia Water Power Company conveyed the canal property to defendant Columbia Railway, Gas Electric Company, which in turn — as conceded before me — on June 15, 1925, conveyed to defendant Broad River Power Company, pursuant to the authority of another Act of March 19, 1925 (34 Stats., p. 842). As a part of this transaction, Broad River Power Company assumed all of the obligations imposed by the Act of 1887, and is the party now actually in possession of this property. These two defendants are indiscriminately referred to as "defendant," as they occupy the same legal position on this question.
THE FORFEITURE LITIGATIONThe Act of March 12, 1917 (30 Stats., p. 348), as alleged in Paragraph 10, declared that the title to the canal property had reverted to the State by reason of breach of conditions subsequent imposed by the Act of 1887 working a forfeiture of the title. The forfeiture was adjudged by the State Courts, but reversed on writ of error by the Supreme Court of the United States. Columbia Ry., Gas Elec. Co. v. State of South Carolina, 261 U.S. 236, 43 S.Ct., 306, 67 L.Ed., 629. The State Court held ( State v. Columbia Ry., Gas Elec. Co., 112 S.C. 528, 100 S.E., 355; Id., 129 S.C. 68, 123 S.E., 646), that the obligation imposed by the Act of 1887 to extend the canal down to the Congaree River at Rocky Branch was a condition subsequent, the breach of which caused a reversion of the title of the canal property, and adjudged a forfeiture. The Supreme Court of the United States held that the obligation to extend the canal to the river was at most a covenant that might be enforced by specific performance, or otherwise, but that it was not a condition subsequent, the breach of which worked a forfeiture of the title. The opinion of the Supreme Court of the United States was filed on February 19, 1923. These facts are all alleged in Paragraphs 10-12 of the complaint.
By the Act of March 26, 1923 (33 Stats., p. 828), a new Canal Commission was created and subsequently appointed to control the litigation. Section 2 authorized the commission to discontinue the existing action and bring a new one in any county. A new action for specific performance of the alleged contractual obligation to extend the canal to the Congaree River was brought in Saluda County. The order of Judge DeVore, refusing defendant's motion to change the venue to Richland County, was reversed; the Supreme Court holding that Section 2 was unconstitutional. State v. Columbia Ry., Gas Elec. Co., 129 S.C. 455, 124 S.E., 758. The venue was accordingly changed to Richland County, and this was the pending action referred to in the Act of 1924, and the Settlement Act of 1925. See bottom p. 114, Senate Journal, 1925.
The Act of March 8, 1924 (33 Stats., p. 1839), enlarged the Act of 1923, creating the Canal Commission, by authorizing the commission "to secure, receive and consider any offers or proposals for the settlements of the rights and claims of the State of South Carolina in or concerning the Columbia Canal property, and to report such offers or proposals to the General Assembly with its recommendations thereon. * * *" Section 1 (Quoted from Paragraph 14 of the complaint.) The commission "recommended to the General Assembly of the State of South Carolina a settlement of the rights and interest of the State in and to the Columbia Canal, and of the litigation pending over same, in a contract of certain form and tenor hereinafter fully set forth as a part of the Act of 1925 (34 Stats., p. 852)," a copy of which Act is annexed as Exhibit 2 to the complaint. (Quoted from Paragraph 15 of the complaint.) The Governor of the State executed and delivered the contract. (Paragraphs 16 and 17 of the complaint.) The Act of 1925 is sometimes referred to as the "Settlement Act," and the contract authorized thereby as the "Settlement Contract." They were in legal effect one instrument.
THE CONTRACTUAL OBLIGATION THAT THE STATE CLAIMS WERE IMPOSED ON DEFENDANT BY THE ACT OF 1887 AND WHICH WERE RELEASED BY THE SETTLEMENT ACT
The State started out by claiming title to the canal property. The Supreme Court of the United States held (February 19, 1923), that there was no basis for such a claim, that the title was in the defendant, that the State could claim at most that certain covenants or contractual obligations were imposed on the defendant as a grantee of the canal property by the Act of 1887. The State then abandoned any claim of title to or estate in the canal property. It switched to the contention that defendant was under a contractual obligation to extend the canal to the Congaree River at Rocky Branch, and that the State could enforce this by an action for specific performance. (Note Paragraph 12 of the complaint.) Hence the action commenced in Saluda County, already mentioned.
The defendant has never admitted that it was bound to extend the canal to the Congaree River. It denied such an obligation in the forfeiture action. It denied such an obligation in the action for specific performance brought in Saluda County and pending when the Settlement Act was adopted.
The State alleged in the complaint in the forfeiture action that the Act of 1887 imposed other obligations on defendant in addition to the obligation to extend the canal to Congaree River. On the trial of the forfeiture action the defendant proved so conclusively that it had complied with all other alleged obligations that the State abandoned them and relied only on the obligation to extend the canal to the river. The opinion of the Supreme Court of the United States makes this very clear. Nevertheless, when the defendant came to consider the settlement of 1925, whereby it was to pay out and furnish a large amount of money and power, both presently and in perpetuity, it was natural that defendant should desire to have the slate wiped entirely clean, so as to obviate any such contentions by the State thereafter. This probably explains why the Settlement Contract dealt with the various alleged obligations so specifically and so much in detail.
First, the obligation imposed by Section 7 of the Act of 1887 (19 Stats., p. 1092), to complete or extend the canal down to Congaree River at Rocky Branch. By Section 3 of the Settlement Contract (34 Stats., 852), the State released and discharged the defendant from any obligation "to complete or extend the Columbia Canal in any manner or to extend the same beyond its present existing southern terminus."
Second. Section 6 of the Act of 1887 (19 Stats., p. 1092), required the canal trustees to build a bridge at Gervais Street. This was necessary if and when the canal might be extended to the river. Section 3 of the Settlement Contract released defendant from any obligation "to do any work or build any structures or bridges incidental to or in connection with any extension, maintenance or completion of said canal."
Third. Sections 1 and 7 of the Act of 1887 (19 Stats., pp. 1090, 1092), required the completion of the canal, to the dimensions specified, to Gervais Street within two years, and thereafter that the canal trustees furnish free to the State 500 horse power of water power, to Sullivan Fenner a like amount, and to the City of Columbia a like amount, making it expressly a condition subsequent that the canal be completed to Gervais Street within seven years. While the State practically conceded on the trial of the forfeiture action that these obligations had been complied with, it was natural, to avoid any such claim in the future, for defendant to have inserted in Section 3 of the Settlement Contract the release from any obligation "to enlarge or change the existing structure or capacity of the said canal as to width, depth or volume of water carried, or power developed thereby"; and to cover any past failure in this respect, as well as those mentioned above, to cause the release "from any claim or damages for any alleged failure or default in respect to such construction or completion, except as hereinafter provided in Paragraph twelve" to be inserted in Section 3 of the Settlement Contract.
Fourth. Section 5 of the Act of 1887 (19 Stats., p. 1092), requires that the canal be kept open for navigation — free of charge. Paragraph 18 of the complaint here alleges that the Settlement Act violates the similar provision of our Constitution (Article 1, § 28).
CONSIDERATION MOVING TO THE STATE UNDER THE SETTLEMENT ACT — CONTRACTFirst consideration. Section 7 of the Act of 1887 required the canal trustees to furnish free to the State in perpetuity sufficient water from the canal to develop 500 horse power of water power. The State relinquished this by Section 2 of the contract. In lieu thereof, and in consideration of the release by the State of its other contractual rights, the defendant agreed (by Section 4), to furnish in perpetuity to the State 600 electrical horse power (or 450 kilowatts of electrical power), at defendant's terminal station in Columbia, the State having a prior right thereto from all power generated; 5 per cent. was allowed the State for line loss, making 631.5 horse power at the terminal station. By Section 5 the State agreed to pay for current consumed in excess of 600 horse power of electrical power. By Section 8 defendant agreed to pay the State for so much of the 600 horse power as the State did not use, at $40.00 per horse power per annum.
The Canal Commission in 1925 valued 1 horse power of water power at $7.00 per year (S.J., 1925, p. 114). On this basis the value of the 500 horse power of water power that the State surrendered amounts to $3,500.00 per annum. The Act of 1925 valued 1 horse power of electric power at $40.00 per year. On this basis the value of the 600 horse power that the State receives in perpetuity amounts to $24,000.00 per annum. This simple mathematical calculation establishes that the State has received a net profit of $20,500.00 each year that the contract has been in effect, and will continue to receive this in perpetuity amounts to $24,000.00 per annum. This simple mathematical calculation establishes that the State has received a net profit of $20,500.00 each year that the contract has been in effect, and will continue to receive this in perpetuity. For the nine years since the execution of the contract this aggregates $184,500.00.
Second consideration. By Section 7 of the contract the defendant agreed to replace and maintain all transmission lines, poles, and appurtenances, exclusive of meters, then owned by the state, and used to distribute the power, from defendant's terminal station in Columbia to the entrance of all state institutions located within ten miles; and defendant further agreed to extend lines to such institution until the total demand of the state for power should have exceeded the 600 electric horse power. The amount that has been expended to do this in the past and will be required to do so in perpetuity does not now appear. Doubtless it is substantial.
Third consideration. By Sections 10 and 11, defendant agreed to construct a steam plant of 10,000 horse power capacity by July 1, 1926, and by April 2, 1930, to increase this capacity to 20,000 horse power, or to develop certain water powers.
The Court judicially knows that defendant has erected a large steam plant at Parr Shoals and has paid a substantial amount of property taxes thereon to the State and County of Fairfield. The plant is admittedly large enough to comply with the contract, since the complaint alleges no breach. The Court also judicially knows that allied interests have made a very large hydro development at Lake Murray on the Saluda River.
Sections 9 and 12 of the contract provide drastic penalties and forfeitures against the defendant for a failure to perform its obligations thereunder.
FIRST GROUND OF DEMURRERThis ground must be sustained, because the Act of 1925 and the contract executed pursuant thereto are not in violation of the Constitution.
Statutes are presumed to be constitutional, and every reasonable doubt must be resolved in favor of their validity. Powell v. Hargrove, 136 S.C. 345, 134 S.E., 380; McKiever v. Sumter, 137 S.C. 266, 135 S.E., 60; Means v. Highway Dept., 146 S.C. 19, 143 S.E., 360; Scroggie v. Scarborough, 162 S.C. 218, 160 S.E., 596.
Our Constitution is not a grant, but a limitation, of legislative power. Its provisions will not be construed to impose limitations beyond their clear meaning. Pelzer v. Campbell, 15 S.C. 581, 40 Am. Rep., 705; Ex parte Lynch, 16 S.C. 32; Walpole v. Wall, 153 S.C. 106, 149 S.E., 760: Duke Power Co. v. Bell, 156 S.C. 299, 152 S.E., 865: Scroggie v. Scarborough, supra: Heslep v. State Highway Dept., 171 S.C. 186, 171 S.E., 913.
In the action for specific performance the Supreme Court said: "When the state comes into her own Court to assert a right of property, she is, of course, bound by all the rules established for the administration of justice between individuals. State v. Pacific Guano Co., 22 S.C. [50], 74." ( State v. Columbia Ry., Gas Elec. Co., 129 S.C. 455, 124 S.E., 758, 760).
In Lynch v. U.S. decided June 4, 1934, 292 U.S. 571, 54 S.Ct., 840, 844, 78 L.Ed., 1434, Mr. Justice Brandeis said: "Punctilious fulfillment of contractual obligations is essential to the maintenance of the credit of public as well as private debtors. * * *"
Both the Supreme Court of South Carolina ( State v. Columbia Ry., Gas Elec. Co., 129 S.C. 68, 123 S.E., 646), and the Supreme Court of the United States (Columbia Ry., Gas Elec. Co. v. State of S.C., 261 U.S. 236, 43 S.Ct., 306, 67 L.Ed., 629), held that the effect of the Acts of 1887 and 1890 and the deeds to Columbia Water Power Company (in 1892) and to Columbia Railway, Gas Electric Company (in 1905), based thereon, was to vest in the Columbia Railway, Gas Electric Company title to the property in fee. The Supreme Court of the United States further held that the consideration moving to the State for the conveyance was valuable and substantial. The Supreme Court of South Carolina held, however, that, although the title in fee had passed out of the State in 1892, the conveyance was subject to a condition subsequent working a forfeiture and that the breach thereof had caused the title to revert to the State. On this point the Supreme Court of the United States specifically disagreed and for this reason reversed the judgment. The Supreme Court of the United States held that Columbia Railway, Gas Electric Company still had title to the property in fee. The judgment of that Court is final and conclusive on this question. As the defendant and its predecessors have had title to the lands in fee since the conveyance to Columbia Water Power Company in 1892, it necessarily follows that since 1892 the State has owned no land incident to this property, and that by the Settlement Act of 1925 the State did not undertake to donate or sell any land belonging to or under the control of the state.
The question is concluded by Haesloop v. Charleston, 123 S.C. 272, 115 S.E., 596, 598. The Court there held, when the city in 1922 undertook to sell to a private party certain land that had been granted to the city by the State in 1873, that this was not land belonging to or under the control of the State within Section 31 of Article 3 of the Constitution. Upon the same theory and reasoning, the conclusion must follow that the real estate, title in fee to which had been conveyed away by the State in 1892, "was not at the time of the adoption of the Constitution of 1895, `lands belonging to or under the control of the state' within either the letter or the reasonable intendment of the language there employed."
The same case, along with Chapman v. Greenville Chamber of Commerce, 127 S.C. 173, 120 S.E., 584, and Antonakas v. Anderson Chamber of Commerce, 130 S.C. 215, 126 S.E., 35, are conclusive that there was here no "donation" within the inhibition of this section. These cases establish the rule that the indirect benefits expected to result from the improvement of the land granted, by way of the promotion of the public convenience, increase in the value of adjacent property, and taxes to be paid on the improvements themselves are sufficient to keep such a grant from amounting to a donation within the constitutional inhibition.
Under the settlement contract the State received substantial and valuable indirect benefits of this character; it also received direct benefits, both in money and electric power measurable in money, and it will continue to receive such benefits in perpetuity. The State has already received under this contract power of a net value substantially exceeding $180,000.00, as well as the benefit of moneys expended by defendant in the construction and maintenance of the distribution lines, not to mention the generating tax of 5 mills per K.W.H. that defendant has paid to the State on the power so furnished under Section 2558 of the Code, as well as the large amount of property taxes that defendant has paid on the steam plant constructed under the contract. The State will continue to receive these substantial money considerations in perpetuity. The Supreme Court of the United States having held that when the State conveyed this land in 1892 the consideration moving to the State was "valuable and substantial," it cannot now be successfully contended that this transaction, either in its inception in 1892, or its consummation in 1925, was a "donation" in any sense of the term.
The words of the Constitution are presumed to be used in their ordinary and popular meaning. Charleston v. Oliver, 16 S.C. 47. The ordinary meaning of "land" is the solid part of the earth's surface, as opposed to water, sea, or ocean. Webster's New International Dictionary; Winston's Simplified Dictionary. It is legally defined as, "Any ground, soil or earth whatsoever * * *." Bouvier's Law Dictionary. There was no "land" conveyed by the Settlement Act.
The State had "property rights" in the canal, as any valid contract rights are "property." Lynch v. U.S., supra. But "property" is a generic term, including both real estate and personal property — lands and chattels. There is no inhibition against the donation or sale of "property." The inhibition is limited to "lands."
The Act of 1925 was a compromise of contract rights claimed by the State. The case is like Northern Central Ry. Co. v. Hering, 93 Md., 164, 48 A., 461 (writ of error dismissed, 186 U.S. 480, 22 S.Ct., 944, 46 L.Ed., 1259). The railroad was a mortgage debtor of the State, and a statute making an adjustment thereof came up for construction. Headnote No. 2 reads: "The state and a corporation indebted to it may make a contract releasing such indebtedness on consideration of the payment of an annuity to the state." The Court said: "The parties are sui juris, and they undoubtedly have the power to make any contract which does not violate some established legal principle. [Citing many cases.]"
Paragraph 19 of the complaint alleges: "That under the Act of the General Assembly of 1887 (19 Stats., 1090), and prior to that time, and under the judgments of the Supreme Court of the United States and of the Supreme Court of South Carolina, the State of South Carolina had and has property rights and interests in the real estate aforesaid, known as the Columbia Canal, which is of vast actual and potential value * * *." Paragraph 21 speaks of the rights and interests of the State "in and to the real estate and property known as the Columbia Canal" and alleges that "such property has been donated." Paragraph 22 alleges that the State "is deprived of valuable contractual and property rights in and to said canal," reserved to the State by the Constitution and the Act of 1887.
But the complaint previously alleges all of the ultimate facts — that is, the Acts of 1887 and 1890, the conveyances to the successive grantees thereunder, and the decisions of the Supreme Court of South Carolina and the United States. These facts, instruments, and decisions are before the Court under the allegations of the complaint, and plaintiff cannot benefit by alleging erroneous legal conclusions based thereon.
The Supreme Court of the United States adjudged that there had been no reversion of title to the State that the title in fee was still in defendants. The demurrer does not admit the allegation of the erroneous conclusion of law that the State had an interest in this real estate in 1925. Nor does the demurrer admit the erroneous conclusion, whether of fact or law, that the Settlement Act Contract was a donation or sale of lands or any interest in real estate. The Act is before the Court under the allegations of the complaint, as well as under the rule of judicial notice. The construction and effect of the Act is for the Court itself, and the plaintiff cannot benefit by making an erroneous allegation as to the effect thereof.
"A demurrer is an admission of the facts alleged in a pleading, but a denial of the law arising on those facts." Spigner v. Ins. Co., 148 S.C. 249, 146 S.E., 8, 9.
"Demurrers to a complaint admit facts alleged therein, but do not admit inferences drawn by plaintiffs from such facts, and it is for the Court to determine as to whether or not such inferences are justifiable." Headnote, Oliveros v. Henderson, 116 S.C. 77, 106 S.E., 855.
"A demurrer admits facts, but not construction of statutes or conclusions of law or fact." Henderson v. McMaster, 104 S.C. 268, 88 S.E., 645.
"The rule as to admissions does not apply to allegations which are not well pleaded, and hence conclusions of law are not admitted, as are not evidentiary facts, nor mere inferences or conclusions of facts, even if alleged in the pleading, nor inferences or conclusions from facts not stated, nor matters of opinion, nor surplusage and irrelevant matter. A demurrer does not admit facts which the Court will take judicial notice are not true, nor does the rule apply to legally impossible facts, nor to facts inadmissible in evidence, nor to facts which appear unfounded by a record incorporated in the pleading, or by a document referred to, nor to omitted facts. Allegations respecting the course of law and proceedings in Court are not admitted, as are not allegations of facts which have been previously decided and are res judicata. A demurrer does not admit an alleged construction of an instrument, or of a statute, nor a general allegation of fraud, nor a pleader's interpretation of foreign law; but an allegation as to the content of foreign law is admitted. * * *" 49 C.J., 438-442.
The Settlement Act does not violate Section 28 of Article 1.
Paragraph 18 of the Bill makes a general allegation in this respect, but a further search does not disclose any explanation of this theory in the complaint or any facts alleged showing that this section of the Constitution has any application whatsoever. The proviso to Section 12 of the Settlement Contract (34 St. at Large, page 858) reads: "Provided, That nothing herein contained shall be construed to release or discharge the said Company, or any of its successors or assigns, from any obligation imposed by existing legislative enactment to maintain and keep in such condition and repair as to render all of that part of the canal north of Gervais Street available at all times for navigation, or from keeping the said canal free and open to the citizens of the State and the United States without tax, impost or toll imposed, for such purpose."
Counsel for the State attempt to impeach the conveyance to Columbia Water Power Company in 1892 as a "donation," and argue that in 1887 there was a navigation trust imposed on the projected canal throughout its entire extent.
The complaint alleges no facts to support such theory. On the contrary, it alleges the judgment of the Supreme Court of the United States ( Columbia Ry., Gas Elec. Co. v. State of S.C., 261 U.S. 236, 43 S.Ct., 306, 67 L.Ed., 629) in the forfeiture action between the same parties (Paragraph 12), wherein it was expressly held and adjudicated that the conveyance of 1892 was based on "valuable and substantial" consideration. This concludes any further contention of "donation" in this respect. There was no limitation as to the donation of public lands in the Constitution of 1868. This first appeared as Section 31 of Article 3 of the Constitution of 1895.
The contention that the entire canal as projected in 1887 was subject to a navigation trust is contrary to the express language of Section 28 of Article 1 of the Constitution of 1895 and Section 40 of Article 1 of the Constitution of 1868 — the same in both instruments. The trust is imposed on "all navigable waters." It is not imposed in respect to "land" in any circumstances.
The Supreme Court of South Carolina on the first appeal in the forfeiture case ( State v. Columbia Ry., Gas Elec. Co., 112 S.C. 528, 538, 100 S.E., 355, 358) did say (as quoted in Paragraph 20 of the complaint) that "so far as completed, the canal has become a part of the navigable waters of the State, and, as such, [is] impressed by the Constitution with a trust for the public benefit." This had been held in State v. Columbia Water Power Co., 82 S.C. 181, 63 S.E., 884, 22 L.R.A. (N.S.), 435, 129 Am. St. Rep., 876, 17 Ann. Cas., 343; State v. City of Columbia, 85 S.C. 113, 68 S.E., 1119; State v. Columbia Water Power Co., 90 S.C. 568, 74 S.E., 26, where the State sought to require the city to remove a bridge that it had built across and just above the surface of the waters of the canal, a few feet north of Gervais Street, for the purpose of supporting its water mains. The Court there said that the canal as completed to Gervais Street was impressed with a trust for navigation purposes, because the completed portion had become part of the navigable waters of Broad River.
This falls far short of suggesting that either Constitution imposed a trust in respect to the land below Gervais street, which in 1887 it was hoped would some day be used for the construction of the canal. The Constitution imposes a trust only on "navigable waters."
If, however, by any stretch of the imagination, a trust was imposed in respect to this land south of Gervais street, the Settlement Act does not violate the trust, because the State by Section 2 thereof (34 Stat., 858) reserves the right to extend the canal down to the river and thus preserves serves any potential rights of the public as beneficiaries of such a trust.
The rights of the State in the contract relating to the canal were held in its proprietary capacity. It cannot reasonably be said that the Constitution, by declaring a trust in "all navigable waters," intended to impose a trust on a contract to build a canal, so that the State held in trust the former obligation of defendant so to do. By the reservation the State has fully preserved any public right in this respect. And by the proviso quoted above, all navigation rights in the canal as completed are fully and expressly preserved for the benefit of the public.
In their able argument, and with entire propriety, counsel for the State expressly disclaim any criticism of the motive or policy of the General Assembly, recognizing that these are beyond judicial review. It is not for the Court to say whether the Legislature has made a good bargain or a bad bargain. Considerations of this character have not affected the conclusion that the statute is constitutional. But the Court is constrained to say, by way of dictum, that the careful investigation and consideration given this matter by both the Canal Commission and the General Assembly are most impressive. It will be recalled that the powers of the Canal Commission were enlarged in 1924 so that it might receive offers to settle this vexatious matter. The report of the Canal Commission, which was printed in the journals of both houses on January 28, 1925 (S.J., page 111; H.J., page 132), shows that the Commission received and took under consideration various offers of settlement, commencing on March 11, 1924, and that the final offer was submitted July 22, 1924. The Commission had this offer under consideration for more than six months. To its report the Commission attached a suggested Bill, for consideration by the General Assembly. The journals show that this Bill was subsequently introduced, that it was fully debated, that various amendments were proposed and considered, some being adopted and some rejected, so that the measure as finally ratified represents the final conclusion of the legislative mind, based upon extensive investigation, discussion, and consideration. The Court states this by way of dictum, in justice to the commission and members of the General Assembly, although it recognizes that it has no bearing on the constitutional question.
For these reasons, the first ground of the demurrer will be sustained.
SECOND GROUND OF DEMURRERThe second ground of demurrer is that by reason of its long-continued acceptance of substantial benefits from defendants under the contract — from 1925 to the commencement of this action on December 6, 1933, more than eight years — the State has elected to ratify the Act of 1925 and has waived its right to attack its validity; and, further, that by reason of the detriment and change of status that defendants have suffered thereby, the State is now estopped from so doing.
The solution of these questions may turn on various detailed facts that do not appear on the face of the complaint and are not within the Court's judicial knowledge. These may all be adduced and given consideration on a trial on the merits.
This ground of demurrer will be overruled without prejudice to defendants on the merits.
THIRD GROUND OF DEMURRERThis ground is based on the failure of the complaint to allege that the State has tendered or offered to return the benefits in actual money, and measurable in money, that the State has received, by way of performance by defendants of their obligations under the contract.
This contention must be sustained under the compelling authority of Kennerty v. Etiwan Phosphate Co., 21 S.C. 226, 236, which was decided on demurrer, and Cathcart v. Stewart, 144 S.C. 252, 142 S.E., 498, 499.
The net benefit to the State on the power received and the basis on which it may be valued in money has been fixed by the Act of 1925 itself, as to electric power, and by the Canal Commission, as to water power, as already stated. This amount is definitely ascertainable and measurable in money, and the complaint states no cause of action, since it fails to allege any tender or offer to refund this amount. Paragraph 23 of the complaint alleges that "the status of the rights of the State and these defendants, * * * should be restored as of" the date of the judgment of the United States Supreme Court (February 19, 1923). This is no offer by the State to restore the status. Much less is it a tender or offer to return the consideration that the State has received since 1925 and which is reducible to a liquidated and money basis by a simple calculation. It is not for the Court to undertake to decide now as to the extent and character of the tender or offer to return benefits and restore the status that must be made as a condition precedent to the State's right to institute and maintain this action. It is sufficient here to say that there is no allegation to this effect.
This ground of demurrer will be sustained.
FOURTH GROUND OF DEMURRERThe claim here advanced is that the Act of 1933 instructs and directs the Attorney General to bring an action to test the validity of the Act of 1925 and to determine the rights and interest of the State; and that the action commenced exceeds this authority, in that it is an effort to enforce alleged rights of the State.
The question made is a puzzling one. There is force in defendant's contention that the Legislature intended merely that a declaratory judgment should be sought under the Act of 1922, now Section 660 of the Code. But the prayer for relief is no part of the complaint and may be disregarded on this demurrer. The complaint may be amended in response to this order and this question may become academic. In these circumstances, it is wiser to leave the question for determination on the merits.
Defendant makes the additional point in this connection that Section 660 of the Code is unconstitutional under the doctrine of Anway v. Ry. Co. (1920), 211 Mich., 592, 179 N.W., 350, 12 A.L.R., 26. Considerations already stated are persuasive that this question should likewise be left to the merits.
The fourth ground of demurrer will be overruled without prejudice to defendants on the merits.
It is therefore ordered:
1. That the second and fourth grounds of the demurrer be, and the same are hereby, overruled, without prejudice to defendants on the merits.
2. That the first and third grounds of the demurrer be, and the same are hereby, sustained.
3. That the complaint be dismissed, with leave, however, to the plaintiff to file and serve an amended complaint within twenty days from the date of service of notice of the filing of this order, if plaintiff be so advised.
Messrs. John M. Daniel, Attorney General, J. Ivey Humphrey, and M.J. Hough, Assistant Attorneys General, and William C. Wolfe, for appellant, cite: As to navigable waters: 112 S.C. 538; 100 S.E., 355; 82 S.C. 181; 112 S.C. 187; 109 U.S. 629; 27 L.Ed., 1056.
Messrs. W.C. McLain and J.B.S. Lyles, for respondents, cite: Valuable consideration: 261 U.S. 236; 67 L.Ed., 629. Repudiation of contract: 79 L.Ed., 446. Authority of Attorney General: 157 S.C. 1; 82 S.C. 181; 16 S.C. 533; 18 L.R.A.(N.S.), 672; 92 S.E., 57; 17 Am. Rep., 178. Exceptions: 118 S.C. 300; 118 S.C. 93; 116 S.C. 375; 114 S.C. 323; 110 S.C. 163.
July 22, 1935. The opinion of the Court was delivered by
This is an appeal from order of Circuit Court sustaining demurrer of respondents to complaint of appellant.
Respondents take the position that appellant's Exceptions 1, 2, 3, and 5 (a) should not be considered as they are in violation of Section 6 of Rule 4 of this Court. However, this case involves a controversy which has consumed considerable time of both the legislative and judicial branches of the State, and for this reason the Court has considered the entire matter. It is not amiss to call attention to the fact that Exception 4 and subdivisions (b) and (c) of Exception 5 are directed to grounds of the demurrer which were overruled by the Circuit Judge.
The order of the able Circuit Judge sustaining the demurrer to the complaint of appellant shows exhaustive study, and careful and painstaking thought, and is entirely satisfactory to this Court. Let the said order be printed as the judgment of this Court, and for a complete understanding of the issues involved, the complaint, but not the "Exhibits," which are public statutes, and the grounds of the demurrer should also be incorporated in the report of the case, and it is so ordered.
The order appealed from is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and FISHBURNE concur.
MR. JUSTICE CARTER concurs in result.