The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1891-08-06
COOSiW LOSES THE CASE.
Chief Justice Fuller Decides in Favor of
the State-Judg: s.monton Concurs.
TSnecial to The State. I

| Judge Simonton added his concurrence
this afternoon. The decision, as will be
seen, is a complete Knockout for the
"Coosaw octopus" and signal victory
for the State. The following is the de-
clsion in full:
STATE OF SOUTH CAROLINA, eX rel,
TILLMAN ct. al. VS.. The COOsAW
MINING COMPANY.
Two motions have been argued:
!. To remand.
2. TO continue the order granting a
preliminary injunction and appointing
4 receiver.
My conclusions are:
l. That upon the face Of this record
the motion TO remand ought not to be
entertained. The question of jurisdic-
ton was adjudicated by this court on
the 2lst of April, 1891, and cannot be
re-examined at this stage Of the pro-
ceedings. But if the question were
open the result would be the same, as l
concur in the opinion of the district
judge, filed here on April p, 1891. (4o
Fed. Rep, SU4.) The motion to relnaud
is therefore overruled.
=. AS to the motion to continue, &c,
the contention of the defendant is that
it has, by contract with the State, in viz
tue of the act of 1873, the exclusive right
| to mine all the phosphate rock with
in defined part OF the Coosaw River,
for all time, at a royal'y of one dollar
per ton. The defendant carried on its
mining operations prior to 1876, in the
particular locality, under an act of 1870,
which gave the right to mine for the
full term of twenty-one years at 81 per
ton. The act of 1876 made the right
exclusive, and it is argled, perpetual,
because it Was provided that defendant
las we'll as other companies should
have the right, 80 long and no longer"
than it should make the returns aud
pay the royalty prescribed. The royalty
thus referred to was fixed by the act Of
1870. 1t was decided in State vs.. Pacific
Guano Company (22 S. G. 50,) that the
rule Of construction applicable to the
right to mine in the beds of navigable
| streams containing phosphate deposits
is the ordinary one in the instance of
grants Of public rights, namely, that
the grant is to be construed strictly in
favor of the State and against the
| grantee. l concur in that view, and
applying the rule here, it forbids TIE
conclusion that the legislature i'll
tended an indefinite grant by the terms
I used. The act of 1876 must necessarily
be read in connection with that of 1870,
and this being done, it seems clear that
the duration Of the exclusive right, as
claimed, was not thereby enlarged.
! This conclusion is strengthened by an
examination ofthe many acts in rela-
tions to phosphate mining referred to
| on the hearing of this motion, which
show the policy ofthe State to have
| been to limit the duration Of the right
| to miue-a policy which it cannot be
properly held the State intended to
depart from by the Act of 1876. 1t
follows that the claim of the defendant
| to the exclusive right to mine within
the mentioned territory, indefinitely,
at one dollar per ton, cannot be sus-
| tained.
3. This being so, and in view Of the
provisions Of the Act of 1890, an injunc-
ton ought to 60 against the defendant,
restraining it, as prayed, until it shall
| take out license under the latter Act
and otherwise comply Herewith, and
such an order may be substituted for
the order made by the State court,
which should be vacated, 80 far as is
| inconsistent with the order so entered.
4. Pending the filing of the foregoing
| memorandum and the entry of the
| order therein agreed to, the parties
having agreed to submit the case on
| the hearing already had, as on the
| merits, and their stipulation in that
behalf having been duly considered, a
final judgment and decree may be en-
tered in accordance with the result
above indicated.
MELVILLE w. FULLER,
August 8, 1891. Chief Justice.
JUDGE sIMoNToN's CONCURRENCE.
Simonton, j., concurring:
The acts of 1870 and 1876 must be
construed in 2oari naatetria. Under the
first act the State gave the grantees, for
twenty-one years, the right to mine IN
its navigable streams. This grant was
upon the condition that the grantees
should pay annually 81 ton on each
ton dug and mined, and that they
should make a return of their opera
tions annually, or oftener If required.
This was not an exclusive right.
bradley VS.. The Phosphate Co., l
Hughes.) 1t was upon condition, that
is to say, it existed so long and no
longer than the conditions were fui-
filled. The act of 1876 proposed
modification Of this contract in four
particulars
l. The time for making the returns
was definitely fixed at the end of each
month. This was an advantage to
both the parties.
2. The royalty was made payable on
each ton dug, mined and shipped, not
on the rock mined. This was in favor
ofthe grantees. =,
3. The royalty was made payable
quarterly, not annually-thls provision
10 go into effect Immediately and the
royalty for the two quarters of the cur
rent year to be paid at once. This was
in favor of the State.
4. The right to mine thereto, if not
exclusive, was made exclusive upon the
acceptance of the States proposals.
The original contract was unchanged
in every other respect. The royalty re-
manned the same-$1 per ton. The
grant was wholly on coDdition-that
IS $50 long as and no longer than" the
conditions were fulfilled. The dura-
ton of this grant, during which these
conditions were of force, vas un-
changed, twenty-one years from 1870.
This is a reasonable construction of
doubtful act, by which the doubt is re-
solved in favcr Of the sovereign gran
tor. Il is a familiar rule of construc-
ton that when a statute operates as a
grant of public property to an individ-
ual, or the REIMBURSEMENT Of public
interest, and there is no doubt as TO the
meaning of its terms, or as to its gen.
eral purposes, that construction will be
adopted which shall support the claim
of the government rather than that of
| the individual. "Nothing can be en-
forced against the State" (Field, j.,
VS.. Slidel, grand juror, III L. 5, 1877
EX-SENATOR SAWYER DEAD.