COOSAW MIN. CO. v. STATE OF SOUTH CAROLINA ex rel. TILLMAN, GOVERNOR, et al.

The Coosaw Mining Company undoubtedly acquired by the act of 1870, and upon the conditions therein prescribed, the right, for the full term of 21 years, to dig, mine, and remove phosphate rocks and phosphatic deposits in the navigable waters of South Carolina. But the right thus acquired was not made an exclusive one. The state was at liberty, so far as that act was concerned, to grant similar rights to other associations, corporations, or persons. This is not disputed.

Did the appellant, by its acceptance of the act of 1876, acquire an exclusive right with respect to that part of Coosaw river then occupied for the purposes of its business? If this question be answered in the affirmative—as, in view of the express language of the act, it must be—the state is nevertheless entitled to a decree upon the issue as to the impairment of the obligation of the alleged contract, unless it be held that that act gave an exclusive right to the Coosaw Mining Company, in perpetuity, conditioned only upon its meeting the terms prescribed by the third section, namely, that it would make true and faithful returns of the number of tons of phosphate rock and phosphatic deposits dug, mined, removed, shipped, or otherwise sent to market, and pay the royalty as provided for in the first section of that act. It cannot be denied that the third section, if it be construed literally, and without reference to other sections or to the act of 1870, will bear this interpretation. But the act of 1876, if interpreted, as it ought to be, in connection with that of 1870, will, to say the least, bear equally another construction, namely, that the right granted by the original act for the term of 21 years was made, by the act of 1876, exclusive, only during the remainder of that term, as to the part of Coosaw river occupied by the appellant's works, 'so long as and no longer than' it made the returns and paid the royalty prescribed by the latter act. Under the latter construction the right of the appellant, oy the acts of 1870 and 1876, to dig, mine, and remove phosphate rocks and phosphatic deposits in the navigable waters of the state, ceased altogether after the expiration of 21 years from March 1, 1870. If the act of 1876 materially altered that of 1870 in respect to the times and manner of making returns, or the royalty to be paid, the Coosaw Mining Company received in consideration therefor what it did not previously have; that is, an exclusive right, for a limited period, in the particular part of Coosaw river which it occupied when the act of 1876 was passed.

If the act of 1876 is fairly susceptible of either of the constructions we have indicated, as we think it is, the interpretation must be adopted which is most favorable to the state. The doctrine is firmly established that only that which is granted in clear and explicit terms passes by a grant of property, franchises, or privileges in which the government or the public has an interest. Rice v. Railroad Co., 1 Black, 358, 380; Fertilizing Co. v. Hyde Park, 97 U. S. 666; Hannibal & St. J. R. Co. v. Missouri River Packet Co., 125 U. S. 271, 8 Sup. Ct. Rep. 874; Central Transp. Co. v. Pullman's Palace-Car Co., 139 U. S. 24, 49, 11 Sup. Ct. Rep. 478; Stein v. Water-Supply Co., 141 U. S. 67, 80, 11 Sup. Ct. Rep. 892; State v. Guano Co., 22 S. C. 50, 83, 86. Statutory grants of that character are to be construed strictly in favor of the public, and whatever is not unequivocally granted is withheld. Nothing passes by mere implication. Holyoko Co. v. Lyman, 15 Wall. 512; The Binghamton, 3 Wall. 51, 75. This principle, it has been said, 'is a wise one, as it serves to defeat any purpose concealed by the skillful use of terms to accomplish something not apparent on the face of the act, and thus sanctions only open dealing with legislative bodies.' Slidell v. Grandjean, 111 U. S. 412, 438, 4 Sup. Ct. Rep. 475.

The wisdom of the rule adverted to is well illustrated by the present case. Neither the title nor the preamble of the act of 1876 suggests the purpose on the part of the Coosaw Mining Company, or of any other association or corporation, to obtain, or the intention of the legislature to grant, a new right to dig, mine, and remove phosphate rocks and phosphatic deposits, much less a grant of such a right in perpetuity. The title discloses only a purpose to settle definitely the time for making returns of rocks and deposits so dug, mined, and removed, to establish the royalty to be paid, and to fix the terms on which the act might be accepted by the parties named in it. If the parties so named had in mind to acquire a grant for an indefinite period, their purpose was concealed under the general words in the title, 'and also to fix the terms on which this act may be accepted by the parties named therein.' Turning to the preamble, which has been said to be a key to open the understanding of a statute, we find that the occasion of the passage of the act of 1876 was a dispute between the Coosaw Mining Company and the comptroller general of the state, not as to the right of that company to dig, mine, and remove phosphate rock and phosphatic deposits, but only as to the times and manner in which it should make its returns and pay the prescribed royalty, and that 'for remedy thereof' the act was passed. Neither the title nor the preamble indicates a purpose to enlarge the right given by the act of 1870 for 21 years to one for an indefinite period. While express provisions in the body of an act cannot be controlled or restrained by the title or preamble, the latter may be referred to when ascertaining the meaning of a statute which is susceptible of different constructions. In U. S. v. Fisher, 2 Cranch, 358, 386, Chief Justice MARSHALL said: 'Neither party contends that the title of an act can control plain words in the body of the statute; and neither denies that, taken with other parts, it may assist in removing ambiguities. Where the intent is plain, nothing is left to construction. Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration.' U. S. v. Palmer, 3 Wheat. 610, 631. This rule is especially applicable in states whose constitutions, like that of South Carolina, provide that 'every act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.' Meyer v. Car Co., 102 U. S. 1, 11, 12. So, in Beard v. Rowan, 9 Pet. 301, 317: 'The preamble in the act may be resorted to, to aid in the construction of the enacting clause, when any ambiguity exists.' The ambiguity here referred to is not simply that arising from the meaning of particular words, but such as may arise, in respect to the general scope and meaning of a statute, when all of its provisions are examined. Interpreting the act of 1876, with such aid as may be properly derived from its title and preamble, we are of opinion that the legislature did not intend to grant the appellant an exclusive right for an indefinite period, but only an exclusive right during the balance of the term of 21 years fixed by the act of 1870, and not even an exclusive right for that period, except upon the performance of the conditions set forth in the act of 1876, as to making returns and paying the prescribed royalty.

It results that the contention of the state must be sustained, whether we apply the rule requiring public grants to be favorably construed for the government, or whether, independently of that rule, we give effect to the intention of the legislature as disclosed by the words of the statute.

It is contended by the appellant that this case is not one of which a court of the United States, sitting in equity, could take cognizance. In meeting this question the counsel for the state have placed some reliance upon the provisions in the act of 1890 authorizing the board of phosphate commissioners, in the name and on behalf of the state, 'to take such measures or proceedings as they may be advised are proper to enjoin and terminate' any molestation, interference, or obstruction of the peaceable possession and occupation for mining purposes of the navigable streams of the state, either by the board or by any one licensed or authorized by it, and to take such action for and in behalf of the state as they deem proper for the protection of its interests. This statute is not important here, except as showing the authority of that board to bring suits in the name of or for the state to protect its interests. The suit may have been cognizable in the state court, sitting in equity. But if it was not one of which the circuit court of the United States, sitting in equity, could properly take cognizance, (Payne v. Hook, 7 Wall. 425, 430; Arrowsmith v. Gleason, 129 U. S. 86, 98, 9 Sup. Ct. Rep. 237,) the pleadings, upon removal of the case from the state court, should have been reformed so as to make it a case to be tried at law. It is necessary, therefore, to inquire whether, according to the principles of equity, as recognized in the courts of the United States, the state can obtain relief by a suit in equity.

The grounds of equity jurisdiction in such cases as the one before us are substantially those upon which courts of equity interfere in cases of waste, public nuisance, and purpresture.

The case of U. S. v. Gear, 3 How. 120, 121, 133, bears upon this question. The United States, claiming to be the owner of certain lands upon which there was a lead mine, brought an action of trespass quare clausum fregit against the party in possession. They also brought a suit in equity for an injunction to stay waste. This court held in the equity case that digging ore from lead mines upon the public lands was such waste as entitled the United States to a writ of injunction to restrain it.

In City of Georgetown v. Canal Co., 12 Pet. 91, 98, it was said to be 'now settled that a court of equity may take jurisdiction in cases of public nuisance by an information filed by the attorney general, * * * upon the principle that equity can give more adequate and complete relief than can be obtained at law.'

In Attorney General v. Richards, 2 Anstr. 603, an information in equity, in the name of the attorney general, to restrain the erection of wharves and docks in a certain harbor, and to abate those erected, was sustained; the court observing that 'where the king claims and proves a right to the soil, where a purpresture and nuisance have been committed, he may have a decree to abate it.' In Attorney General v. Forbes, 2 Mylne & C. 123, 133, it was said by the lord chancellor that 'in informations and proceedings for the purpose of preventing public nuisances the ordinary course is for the attorney general to take it on himself to sue as representing the public.' In reply to the suggestion that an application to the high court of chancery to prevent a nuisance to a public road was never heard of before, he said: 'Many cases might have been produced in which the court has interfered to prevent nuisances to public rivers and to public harbors; and the court of exchequer, as well as this court, acting as a court of equity, has a well-established jurisdiction, upon a proceeding by way of information, to prevent nuisances to public harbors and public roads, and in short, generally, to prevent public nuisances.' So, in Gibson v. Smith, 2 Atk. 182, in which an injunction was sought to restrain a defendant from opening mines upon an estate held by him under a deed containing reservations against waste and the opening of mines, and in which it was objected that the matter was not for the determination of a court of equity, Lord Chancellor HARDWICKE said: 'The plaintiff may certainly come into this court to restrain the defendant from opening the mines, etc., even if he has only threatened to do it; nor is it necessary the plaintiff should have waited till the waste is actually committed, where the intention appears, and the defendant, even by his answer, insists on his right to do so.'

An instructive case upon this subject is Attorney General v. Jamaica Pond Aqueduct, 133 Mass. 361, 363, 364. That was an information in equity, in the name of the attorney general, to restrain a corporation from doing certain illegal acts, the necessary effects of which would be, not only to impair the rights of the public in the use of one of the great ponds of Massachusetts for purposes of fishing and boating, but to create a nuisance by lowering the pond, and exposing upon its shores slime, mud, and offensive vegetation detrimental to the public health. It was held, upon the authority of numerous cases, American and English, that where the nuisance is a public one an information by the attorney general was the appropriate remedy. After observing that the preventive force of a decree in equity, restraining the illegal acts before any mischief was done, would give a more efficacious and complete remedy than an indictment or proceedings under a statute for the abatement of the nuisance, the court said: 'There is another ground upon which, in our opinion, this information can be maintained, though perhaps it belongs to the same general head of equity jurisdiction of restraining and preventing nuisances. The great ponds of the commonwealth belong to the public, and, like the tide-waters of navigable streams, are under the control and care of the commonwealth. The rights of fishing, boating, bathing, and other like rights which pertain to the public are regarded as valuable rights, entitled to the protection of the government. * * * If a corporation or an individual is found to be doing acts without right, the necessary effect of which is to destroy those rights and privileges, it furnishes a proper case for an information by the attorney general to restrain and prevent the mischief.' So, in Eden on Injunctions: 'The usual, and perhaps the more correct, mode of proceeding in equity in cases of public nuisance, is by information at the suit of the attorney general.' Page 267. Mr. Justice STORY said that an information in equity at the suit of the attorney general would lie in cases of purpresture and public nuisance; the jurisdiction of courts of equity being sustained because of 'their ability to give a more complete and perfect remedy than is attainable at law, in order to prevent irreparable mischief, and also to suppress oppressive and vexatious litigations.' Eq. Jur. §§ 922-924; People v. Vanderbilt, 26 N. Y. 287, 293; District Attorney v. Railroad Co., 16 Gray, 242, 245; Kerr, Inj. 262, 263; 1 Joyce, Inj. 120.

These principles are applicable to the present case. The remedy at law for the protection of the state in respect to the phosphate rocks and phosphatic deposits in the beds of its navigable waters is not so efficacious or complete as a perpetual injunction against interference with its rights by digging, mining, and removing such rocks and deposits without its consent. The Coosaw Mining Company, unless restrained, will not only appropriate to its use property held in trust for the public, but will prevent the proper administration of that trust, for an indefinite period, by obstructing others, acting under lawful authority, from enjoying rights in respect to that property derived from the state. These conflicting claims cannot be so effectively or conclusively settled by proceedings at law as by a comprehensive decree covering all the matters in controversy. Proceedings at law or by indictment can only reach past or present wrongs done by the appellant, and will not adequately protect the public interests in the future. What the public are entitled to have is security for all time against illegal interference with the control by the state of the digging, mining, and removing of phosphatic rock and phosphatic deposits in the bed of Coosaw river. Such security was properly given by the decree below.

Decree affirmed.