State v. Columbia Ry., Gas & Electric Co.

The opinion of the Court was delivered by Mr. Justice Hydrick. The State brought this action to obtain a judgment of forfeiture of the rights of defendant in and to the Columbia Canal, and to recover possession thereof. The complaint alleges that the State was the owner of the canal, and, in pursuance of an act of the legislature, in 1887 (19 Stat. 1090), it was conveyed to a board of trustees “for the use and benefit of the city of Columbia, for the purposes hereinafter in this act mentioned, subject, nevertheless, to the performance of the conditions and limitations herein prescribed on the part of the said board of trustees and their assigns: Provided, That should the said canal not be completed to Gervais street within seven years from the passage of this act all the rights, powers, and privileges guaranteed by this act shall cease, and the said property shall revert to the State.” *536 That it had been completed nearly to Gervais street, something more than half its proposed length, and the trustees were required to carry it on to the point where it was to empty into the Congaree River, as soon as practicable, and provisions were made therein for that purpose; that in 1892, in pursuance of an act of 1890, amending the act of 1887 (20 Stat. 967), the trustees conveyed it to the Columbia Water Power Company, “subject, nevertheless, to the conditions, limitations, provisions, and exceptions” contained in said act, and in 1905 the Water Power Company conveyed it in like manner to defendant; that the chief inducement to the conveyance of the property by the State was to open navigation through the canal around the shoals in the Congaree and Broad rivers at and near their confluence, and develop the water power thereof south as well as north of Gervais street, all of which is provided for in minute detail by the terms of the acts referred to; that nothing has been done toward the completion of the canal south of Gervais street, notwithstanding it has long since been practicable to have done so, and defendant has allowed it to be obstructed, so as to prevent the navigation thereof north of that street, and has abandoned the completion thereof, and the development of the water power contemplated south of that street; that by an act of 1917 (30 Stat. 348) the legislature declared that the rights of defendant in and to said property had been forfeited, and the same had reverted to the State, on account of the failure to perform the conditions upon which it had been granted, and the Attorney General and other agents of the State therein named were directed to take such steps and institute such action as they might deem proper to recover possession thereof, unless defendant should, within 90 days after the passage thereof, make satisfactory arrangements with said officers and agents with reference thereto, as therein provided; and that defendant declined to make any *537 arrangements whatever with regard thereto, and denied any obligation to perform the conditions of the grant. Defendant sought to remove the case to the Federal Court on the ground that the act of 1917 was in effect a denial of due process of law, and an attempt by legislative fiat to impair the obligation of the State’s contract. Judge Memminger refused to order removal, on the ground that no Federal right was involved, and that defendant could contest the validity of the act of 1917 in the State Court as well as in the Federal Court. Thereafter the Federal Court remanded the case, on the ground that no right under Federal law was necessarily involved. 1 There was no error in refusing the application for removal. Taylor v. Anderson, 234 U. S. 74, 34 Sup. Ct. 724, 58 L. Ed. 1218; Arkansas & Texas Coal Co., 183 U. S. 185, 22 Sup. Ct. 47, 46 L. Ed. 144. 2 Besides, when the Federal Court remanded the case it was the duty of the State Court to proceed as though no removal had been attempted. Railroad Co. v. Koontz, 104 U. S. 5, 56 E. Ed. 643; St. Paul etc. R. Co. v. McLean, 108 U. S. 212, 2 Sup. Ct. 498, 27 L. Ed. 703; Empire Co. v. Towboat Co., 59 S. C. 549, 38 S. E. 156. Defendant demurred to the complaint for insufficiency, on several grounds, the one chiefly relied upon being that the act of 1887 does not contain apt words to create a condition subsequent the breach of which would work a forfeiture. Judge Townsend overruled the demurrer in an opinion which will be reported. The conclusions therein announced are fully supported by the authorities cited. 3 While Courts lean against a construction which creates a condition subsequent, because that works forfeiture which often results in unconscionable hardship, they have no power by construction to make or modify contracts or statutes. *538 4 Their power and duty is limited to the discovery of the intention therein expressed, and to give it effect; and, if it is clear that forfeiture has been provided for and incurred, it is as much the duty of the Court to enforce it as any other lawful provision, except, of course, in cases where the Court has power to relieve against it, and the circumstances call for the exercise of that power. 5 The purpose of construction is to find out the intention, however it may be • expressed, whether in apt and technical words or otherwise; and that which is clearly implied is as good as if expressed. 6 No particular phraseology and no technical words are necessary to create a condition subsequent; and even that which is expressed as a condition may be held to be only a limitation or restriction, and vice versa, if it clearly appears that such was the intention; and, when such condition is created, provision for reverter or re-entry for breach thereof is not indispensable, since these are but remedies which follow the breach as legal consequences. 7 It makes little difference, therefore, that the statute does not provide for reverter or re-entry. 8, 9 The legislative intention must be gathered from the language of the statute — not that found in any particular section or proviso, but from the statute as a whole - — and it must be read in the light of all the circumstances, the situation and relation of the parties, the subject of the grant, and the purpose to be attained. 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 *539 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. 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. The other purposes contemplated, such as the development of water power, were incidental and subsidiary, but, nevertheless, important. 10 Having in mind the purposes and subject matter of the grant, let us consider the words thereof. It was made, “subject to the performance of the conditions and limitations herein prescribed.” These words are apt and sufficient to manifest the intention that the continuance of the estate granted was to depend upon the doing of the things prescribed; in other words, to make performance of them conditions subsequent, the breach of which would result in forfeiture. Appellant argues that as the proviso to section 1, above quoted, does create a condition subsequent, and provides for forfeiture and reverter for breach thereof, in apt and technical language, under the rule “expressio unius” no other like condition was intended or it would have been expressed in like manner. The argument fails to appreciate the circumstances. The proviso expresses a particular intention relative to a comparatively small part of the work, and is not inconsistent with the general'intention previously declared; it was not intended, therefore, to be restrictive of it. The general intention was that the grant should be subject to 'the performance not of one but of all the things required to be done. *540 11 *539 On the issue of waiver, appellant has called attention to the act of 1912 (27 Stat. 779), in which there is a provision *540 which indicates the intention to allow such further time for the completion of the work as might be fixed by the Court. That shows no intention to waive the right to have the canal completed, but rather the contrary. Besides, the allowance of further time was conditioned upon acceptance of the terms of the act, and it does not appear that that was done. Therefore, it cannot avail appellant on demurrer, which admits the allegation that a reasonable time has elapsed, and that appellant has refused to do the work at all. 12 Whether a reasonable time has in fact elapsed, and whether, under all the circumstances, the drastic remedy of forfeiture should be adjudged, without giving further time, are questions upon which we express no opinion, since they are matters of defense, and will depend upon the facts and circumstances developed at the trial. There is authority for the proposition that where no time is fixed for the performance of a condition a reasonable time is intended, and no default can ordinarily attach until after a demand and refusal to perform. 3 Elliott on Contracts, sec. 2098. But, as said, all that is a matter of defense, and is not open to consideration on demurrer. 13 The act of 1917 violates no constitutional right of defendant. The legislature did not undertake to adjudicate anything, but merely declared that, in its opinion, a forfeiture had been incurred, and directed a judicial investigation and determination of the question in accordance with law. The action is to enforce the obligations of the contract and not to impair them. Judgment affirmed.