*1 12 Hopkins v.
Exсeptions. 44, v. 63 Littlejohn, C., E., comb 40 1023. case S. S. of Fire C., 572, Co. v. Richland E., 73 53 Lodge, S. relied on was different. respondents quite That was not an action for the of real estate but to declare recovery contract written forfeited as occupancy a cloud on title plaintiff. concurs in this opinion.
Mr. Justice Jones HOPKINS CLEMSON AGRICULTURAL COLLEGE. Against 1. Suit Agricul- State —Parties.—An action Clemson College damages tural for to land caused changing the current of a river flood times erection a dike status, maintaining original removal of the dike is an action tort, necessary party equity the State in the State is a action, and the con- cause of suit cannot be maintained without sent of the State. Rei-iearing refused. Oconee, Before Aldrich, J., April, 1906. Affirmed. Action Clemson Hopkins against Agricultural John defendant, Carolina. From College judgment on the plaintiff appeals following exceptions: “I. Because his Honor erred in and holding finding that the corporation created under the name of ‘The Clem son Agricultural College Cаrolina’ State, and, such, sued; it cannot be whereas, he should have found and held that defendant is a politic body corporate, 'and capable of sued. suing being
“II. Because his Honor erred in and holding finding that the legislature creating defend- dant corporation the usual with powers liabilities Corrrge. Term, 1906. *2 for said consent of a ‘has not corporation, given thereby to be sued. in and holding “HI. Because his Honor erred finding sued the could sue and be that under the charter trustees out farther, than far, necessary so and no was carry only board, con- and such upon conferred the powers make pursuance tracts and as they might obligations a suit of does not warrant such permission and power, this nature. his Honor erred in and
“IV. Because finding holding State, tort, ‘This an action for a follows: being maintained;’ dollars, cannot thousand eight recover whereas, he found and held that this is should have an artificial and designated action known person, Col- name of ‘The Cle'mson Agricultural by corporate Carolina,’ and being and capable suing lege South sued, a natural for its unlawful in like manner as person; act, either in its or a's agent own right, State. his and Because Honor erred finding
“V. holding is held the board of the property that said as the property State; whereas, he found should have property is not the that said and held be used for any political govern- in its own right held, the same is used managed but mental purpose; to wit: trustees for corporate purposes, the board of an institution of learning and maintaining founding were made. and appropriations said donations the terms of the Because, under devise and be- “VI. Clemson and the act of the Thomas G. General quest donation; Assembly accepting incorporating into entered tes- a contract was between college, Carolina, the entire whereby tator and became fund for the perpetual the donation corpus institution, a cor- private eleemosynary endowment irrevocable, created, became the contract was poration created will of special authority exercise trustees Correge. Exceptions. testator and confirmed the act of and his incorporation, Honor erred not income, Because use,
“VII. rents profits Fort Hill lands are without enjoyed by corporation, therefor, and while the technical title accounting bemay trustee, which is a mere is the cestui defendant trust, thereof, rents, uses the equitable owner que income, his of said lands as its profits property, Honor in not erred so holding. Because the
“VIII. corporation, known and designated as ‘The Carolina,’ Clemson Agricultural College *3 no or has and political governmental powers, cannot in a sense State, be considered an or officer legal and his Hon'or erred in not so and finding holding.
“IX. Because the lands devised testator, by been having the terms of the by devoted devise to educational purposes; the terms of the devise by are held in trust for the use forever; institution Stаte; same is not cann'ot recall legislature or revoke the devise or make lands, different disposition of the nor sell the property ánd tura funds into the Treasury the money or and his erred in Honor not so holding.
“X. Because 288 acres the Fort adjoining Hill place, Floride by 25, Isabella on conveyed 1894, ‘The May Tee Clemson Agricultural Carolina,’ College owned in fee and said possessed by corporation, and his Honor erred not so and finding holding.
“XI. Because the tract of 14 acres to ‘The donveyed Clemson Agricultural College South Carolina’ Anna by P. the 30th of June, day owned in fee Tewis and the said possessed by corporation, and his Honor erred in not so' and finding holding.
“XII. Because corporation said and 'may purchase and take hold property any property or money given deed, or devise or by and hold the conveyed bequest same for the use and benefit of said and his Honor erred college, in not so finding holding. rents,
“XIII. Because the issues and of all lands profits donated to or for the benefit of are purchased college used by without corporate property, therefor, and his Honor erred not so accounting finding and holding. Because the of testator and the charter
“XIV. will the terms of a contract between embody binding the testator as donations made well parties, as the from time to time made appropriations im- federal expended permanent governments, use of the real estate said college, provements upon thereof transfer, disposition are sale or protected from any State, in the to or violative slightest degree, contrary contract, trust, his Honor erred the terms of the not so finding Because the of a are. ordinary
“XV. powers succession; To sue and as follows: Perpetual (3) (1) name; sued, their grant, corporate receive chattels; lands To have and hold (4) To purchase (3) seal; While these by-laws. powers a common 5 To make ( ) *4 Statute, are the still they given by are generally exprеssly his and Honor inherent of a corporation, usual incidents erred in not so holding.
“XVI. Because the creation of a legislature body confers it the to sue and be corporate upon power impliedly its sued so far be to maintain may necessary legal rights duties, enforce or liabilities. In it and to its legal general is, said that the to sue and sued power prin- bemay law, an of the common incident every corporation, ciples his Honor erred in not so holding. Because -the “XVII. ordinary remedies legal applicable the case of natural are persons in in equally applicable case and his Honor in erred not so corporations, holding. an action
“XVIII. cannot Although be brought against consent, its without if it sovereign yet chooses so Corrrgr. (cid:127)
Exceptions. in far become a corporator, cast off its as to sovereignty in erred not so sued, his Honor character it may holding. an
“XIX. the law a cor- imposes obligation upon Where a natural it fails well аs or poration, person, refuses to it be held recognize discharge, may civilly therefor, in in liable at law or form any appropriate equity, action, his erred in not holding. and Honor “XX. A can commit corporation either trespass upon behalf, person or its in property, through its agents acting and it that an action lie follows will for such injury with the like in case remedies'as of a natural person, his Honor in not erred so holding.
“XXI. liable, be held Corporations may appropriate facts, torts, them, states of commended or authorized by and his Honor in not so erred holding.
“XXII. Because the dike question was erected and has been and maintained being defendant corporation behalf, the board of trustees in its through acting Honor erred in not so his finding holding. “XXIII. When becomes it is re- corporator individual, as an in relation to the corporation. What garded State, do, as a individual Corporator corporator, may more, do, his Honor and no erred not so holding. can A private eleemosynary enjoy “XXIV. reason of its con- immunity exemption by no privilege, than other a corporation composed nection with the citizens, Honor erred in not so and his of private is distinct sovereign capacity, “XXV. it establishes a cor- from a When corporation. separate for any purpose, the usual corporate powers, with poration, charitable, industrial, benevolent, finan- educational, be it not invest the with does cial or governmental, *5 his Honor or immunity, and sovereign power any holding. so in not erred acts of the Assem- the various General Because
“XXVI. ‘The Clemson upon. Agri- powers corporate conferring bly Coring®. cultural Carolina,’ College create three different types corporations, wit: (a) private eleemosynary corporation educational purposes, act approved 'by 27, 1889; November a municipal act (b) corporation, by 24, 1894; December approved a railroad (c) corporation, to all liabilities of subject railroad act corporations, ap- 19, 1900; proved and his Honor so February erred not finding Because con
“XXVII. the several acts of the legislature ‘The corporate powers upon Clemson ferring Agriculutral Carolina’ clothe said with College corporation usual incident to such powers, responsibilities and liabilities these error the face of statutes was corporations, for his Honor to hold ‘The sued” as follows: “sue and be in the charter of defendant to such provision powers relates act, as conferred upon legis were trustees not all kinds lature did throw the open sued the charter the trustees sue and be suits. Under could farther, out far no than to carry was necessary only board, con such and upon conferred powers upon make in might pursuance tracts and obligations they such power.’ corporation, acting Because the defendant
“XXVIII. maintained erected and its board of and through ensue there- and if injury damage in question,' dike lie action therefor will the lands plaintiff, from natural in like manner corporation and holding. in not so finding Honor erred and his person, the com- acts the injurious alleged Because “XXIX. corporation, acting the acts the defendant are plaint not by as its trustees agent, the board of and through and, when or collectively; individually, singly the trustees such injury the corporation brought against action to 'defend incumbent it is damage, natural manner as a act, can, in like if it and justify as the natural do; person acting and, unless must person acted, have could defend alleged defendant 2—77
Exceptions. some justify by invoking constitutional statute, or right the issue joined must be heard and determined Court, and his Honor erred in not so finding
“XXX. A defendant, whether natural or corporate, sued as a wrong-doer, who seeks to substitute the in his or its place, or to justify by authority or to defend on the that ground has his adopted or its act and it, exonerated him or cannot rest on the bare as- sertion of suсh defense. It is for such a necessary defend- ant, in order to defense, his complete to produce a valid law as a of act, warrant his or its his Honor erred in not so holding.
“XXXI. III, Because article 17, section Con stitution of 1895, provides: ‘Every act or resolution having the force of law shall relate to but one subject, and shall be title;’ in the expressed the joint resolution ap 14, proved 1894, it is claimed January authorizes the which of River entitled as ‘A joint Seneca follows: reso diking lution to authorize and require directors of the peniten to furnish tiary trustees of The Clemson Agricultural convicts, College furnish to the fifty of regents convicts, lunatic to furnish to the asylum trustees fifty Carolina Industrial Normal Col and.Winthrop convicts;’ one hundred and so much reso^ joint of said lege lution relates t0‘the River said trus by* diking Seneca tees said convicts this with' work of violates provision, void; unconstitutional, and is null it cannot be invoked act, declaration, aas legislative authorizing' directing River diking Seneca board or as agents whеther acting agents his Honor in not erred and hold corporation, finding ing. I, 5, Because article section
“XXXII. Con- that no shall be de- guarantees person stitution due his without of law. A process person prived his any without physical bemay deprived taking thereof, and Constitution violated provision Hopicins Correge. act
any destroys value of takes property, away of its essential attributes, or deprives the owner of the *7 it; lawful use and, a properly entitled act or resolution of the General Assembly, or a authorizing directing course of action, which results in any such depriving owner of his property, would be unconstitutional, void, null and could furnish no defense in law or equity; his Honor erred in not so holding.
“XXXIII. Because the fourteenth amendment Constitution of the United : provides States ‘Nor shall any deprive life, any person or without liberty property due process of law.’ The allegations of the complaint show that plaintiff has been deprived of his for all property prac- tical purposes as agricultural lands as as if there effectually had been thereof; physical that taking plaintiff has thus been deprived his property by defendant corporation, acting by through board of and this consti- tutional has been guarantee action, violated whether taken pursuant to an act of the otherwise, legislature and his Honor erred in not so holding. Because
“XXXIV. objection this is an action is inconsistent with the involved principle in article 5 of the amendments to the Constitution of the * * States, United ‘That no providing, person shall be life, deprived without due liberty property process law, nor shall be taken for private use with- public out his just Honor erred in: so compensation,’ not The itself is an ideal
“XXXV. person, intangible, invisible, and, immutable. The is an government agent, sphere agency, perfect representative; within but that, it usurpation. outside of is lawless Whatever wrong name is to its attempted imputable State; for, and not the as it can government, agency, law, it does or must say and аct whatever do only by speak which, therefore, unlawful, because made be lawful. That law, States, of the United Constitution supreme
Exceptions. is not a word or deed but is the mere wrong trespass of those persons, whether artificial, natural or who falsely and act speak in its name. The principles indi- vidual and right of cannot liberty if, maintained violated, when the judicial tribunals are jurisdic- forbidden tion in offenders, actions brought against whether natu- ral or artificial, who are the instruments of because wrong, they interpose shield of the and his Honor erred not so holding. that, objection “XXXVI. as the cannot be Court, before brought this suit cannot be sustained the defendant corporation, alleged agent State; whereas, if even the defendant be the *8 and the be agent from exempt judicial it still process, subversive of the would be best established that the cannot principles say law afford the same reme- dies in against employed doing wrong, it would afford him could his be in against principal joined suit; in and his Honor erred not so holding.' An action
“XXXVII. cannot be or as an treated action regarded corporator or its stock or an artificial party When owning property. per- son, existence, it, called a is like all corporation, brought into artificial, other natural well as persons, subjected bemay Courts, to the and the fact that its is process in in owned or whole confers no part suit, from and the or exemption person artificial, it, natural or are whether who persons, compose different; his erred in distinct and Honor not totally holding. time Because the from moneys appropriated
“XXXVIII. are for the the cor use of Assembly to time General a trust or fund corporate and devoted as poation un of its business as an educational institution out carrying trustees, as a control of the board of the direction and der act in the perform said board any body; and corporate in to the unlawful injury rights of its resulting ance duty fund another, such would or person ordinary prоcess to and be reached answerable could wrongs, in for redress of of the Courts actions brought in not so 'holding. and his Honor erred because the follow, that, It does not “XXXIX. corpor- annual to assist defendant makes appropriations in accord- in an institution of learning ation maintaining Clemson, cer- to make of Thomas ance the will G. with annual requires shall not be misapplied, tain its bounty the board to the Assembly General reports disbursements, said corporation receipts showing not so holding. suit, from and his Honor erred exempt complaint in the the relief To prayed grant “XT- effect of one of not have the wheels clogging would nor interfere with government, branches in the political governmental discharge indispensable not party functions. raised; affected in no can it be determina-
issue way cause of action set out of either the legal equitable tion not so Honor and his erred complaint, his Honor erred Because finding holding “XTI. can no 'There determination оf the complete as follows: State; at presence bar without because controversy determination, should the would plaintiff prevail, a complete *9 dike, the use of the and its re- injunction against in an result conditions;’ whereas, former moval, and a restoration of can be a held that there complete found and he should have the of the without presence of controversy determination issued, re- if State; order of would injunction, that such the its board of and through acting the corporation by quire the and re- dike, to remove same trustees, erected who it at the time found as they prevailing store condition the same. constructing unlawful-act their and holding erred finding his Honor Because “XLII. State; whereas, he is the property dike that said is the that dike property and held have found should corporation. defendant Coixege.
Exceptions. C. Because it error “XUH. was for his Honor to find and as hold follows: ‘It evident, is also that all held property trustees, board of Statе, is the agent State;’ whereas, property he should have found and held that the property held said board except such personal property has been purchased 'by them with moneys State, appropriated is the property defendant trustee, that corporation; is a mere said holding for the use property corporation. Because it error was for his “XUV. Honor to find and hold that the must property respond any action; which judgment damages could be in this given because the board has no other out of property which satisfied; might whereas, be he judgment should have found that and held there is far in property ex- cess of the amount damages judgment be could rendered -thisaction.
“XI,V. it Because was error for his Honor to find and bold that the in its has not sovereignty tO' consented suit; whereas, a party he should have found and State, held that the creating cloth- it with the corporate liabilities, usual ing powers, and sued, expressly declaring that sue and be has thereby all grantеd consent given necessary requisite suit may be without of further consent. brought, grant Because a suit an officer or of a
“XLVI. enjoin of an unconstitutional statute enforcing will plaintiff’s injured, or to recover property whereby statute the damages for under void taking citizen, not an action his Honor erred in not
“XlyVII. Because, if a its officers or agents use, for the should seize for use of the public citizens, just without com- making securing him, and thus violate the constitutional pensation pro- *10 shall that no of deprive vision declaring person law, due of the citizen be process without would property Term, 1906. hold State, chooses to agents, so remediless long holding. not his his erred in so Honor property, seizure, true that even in-case of is While “XHVIII. the citizen of an officer damage property or injury choose, if he State, the citizen may, rely or agent faith of the in the matter upon good compen- sation; still not his he is with compelled! part property, State, or benefit of the or sustain injury even for use thereto, the terms supreme except upon prescribed land, made or compensation namely, just law secured, and Honor erred in not so holding. his action, An recover brought money whether or.
“XHIX. un- State, an in the hands of officer State, or for com- in behalf of himby taken lawfully remedy case or, where proper damages, pensation such wrong to- injunction prevent at an law for inadequate, Constitution, not, the meaning within injury, not so erred in his Honor an action against holding. I, That 17, article section Constitution
“H. for ‘Private shall not taken provides: owner, use public use consent nor private without therefor;’ that this made just compensation being without act has been violated provision the Constitution consent plaintiff of the defendant without been to plain- made having just compensation and without in not so defendant, holding. Honor erred tiff and his con- Because, if the defendant even “HI. still in a sense agency sidered legal maintaining action defendant dike erecting nuisancе, created a thereby has continuing resulting an action lands for which damage plaintiff, injury and injurious defendant for such unlawful will lie not lie act, action will even though erred in not his Honor act of unlawful agent, *11 Hopkins Corrjsgs. Exceptions. Because the not suffer will one of its “TIL State citizens to be injured in 'his thereof, property, or deprived unlawful act of an who' in agent, such transaction becomes a false and, therefore, representative principal, while sued, cannot be still it cannot countenance wrong, and, reason, for this the citizen permitted is the agent sue of the unlawful, for the commission of an or unconsti- act, tutional in or resulting damage injury property, thereof, in depriving his Honor erred not so holding. “LIII. Because Honor his confused the of action right against defendant with the remedy, or want of remedy, for the enforcement of a judgment should damages, plaintiff succeed in whereas, of such recovery judgment; matters not whether defendant has or has not out which a propеrty money judgment might execution, enforced and sale under by levy question as the enforcement of a no judgment being part plaintiff’s of action, cause and his Honor erred in not Because the of the allegations complaint show “TIV. creation aof nuisance by the defendant corporation, whether for itself own or right, as an acting and that said nuisance has been and remains a continuous one, and in- resulting continuous damage increasing case jury plaintiff, proper hereby property far relief the removal equitable shown invoking dike, of said and preventing the continuance of said nuis- thereof, ance the abatement and his Honor in not erred so holding. Because, if the even be the owner in fee and
“TV. all real possession property, personal, devised Clemson, and bequeathed by Thomas G. still said property officer, cannot be used or by any agent, agency in such manner as to inflict damage injury citizen, of a the value of such whereby property use thеreof owner depreciated, impaired, deprived such just of his and in case compensation; without officer, lie or corporate action will agent, agency in- act the through damage injury whose Correge. dieted, redress of his erred Honor not wrong, so holding. If ofdoers the private invade agents
“EVI. *12 statute, or if in a not mode authorized right invalid, such statute be has a person injured preventive affected injunction, remedy although erred action, not a his Honor thereby, party yet in not so holding.”
Mr. R. T. cites: Kind Jaynes appellant created: 22 Cor., 1, 11; W*end., 71; on secs. 1 Thiomp. Kyd. Cor., 70; 195; Com., 276; on 275, 2 111 Kent 2[McE., Ind., 336; 365; Dec., 72; I'll., 9 & 31 G. Amar. 122 339. J., and against corporations: Thornp. Suits by on secs. Corp., 7361, 7367, 7360, 7371, 7391, 7394, 6303, 6312, 6313, 6315, 6316; 139; C., 76; C., 12; C., 3 1 128 N. 152 S. S. Mass., 28; Cal., 321; R., 243; A., 93 44 Am. 50 R. St. L. 564; 200; 441; R., 33; A., Y., 23 R. N. 66 Am. 75 St. L. 465; Md„ 20; Md„ 330; 521; 63 4 Mass., 45 56 85 Gray, 669; Mass., 422; 127; Wall., A., 708; 3 Cranch, 2 29 R.L. 433. Suits 411; 675; Mass., R. 34 I., R., 12 Am. 120 168; 196; S., 103 106 U. U. 167 agents: S., 12; 58; S., S., 203; S., 164; S., 165 161 97 U. 149 U. U. U. 357; 738; 458; 251; Wheat., 25 Ky., 95 9 108 Ky., Ky., 270; C., S., 155. C., 416; 196; 43 106 114 U. S.,U. S. S. 299; 270; S., 10 Ency., Constitutional guarantees: 114 U. R., C., 98; 1094; 281; 384; 98 41 Y.,N. 53 1 W. Bay, S. S. 644; 471; 502; Rich., 175; 2 Brev., McM., 1 1 5 Speer, 2 440; Bail., 677; Rich., C., 60 475. Appropriate 10 S. 212; Wheat., 738; Pet., 572; 106 S., 11 140 'remedy: 9 U. 337; Va., 469; E., 740; Wheat., 9 S-, 10; Va., 88 1 U. 77 S.
904; C., 256; S., 466; Pet., 263; Cas., 169 U. 2 2 Fed. 44 S. S., 389; S., 786; 221; Or., 363; 165 U. Wend., 9 154 U. 26 112; S., 149 U. 164. Hood, and James Simpson & & Welch Bellinger
Messrs. suit not P. contra. Mr. When cites: Carey Carey, form 416; 43 but C., 25 suit effect State: S. S. C., College governmental Clemson .C., 154; 60 474. S. 26
Opinion the Court. C.S. 20-3; Md., 251; Mаss., 95 111 63 agency Ky., State: 20; Md., 75 411. not consented be sued State has to sue and be Clemson giving authority R., 487; S., 10; 33. sued: 161 66 Am. Ency., 26 U. St. The is a college public Messrs. cite: & Welch Bellinger A.,R. in tort: corporation,29 378,and as is not liable R. 334; 29 A., 378; A., 300; Md., Note to 94 R. 33 R. R. R. 12; C., A., 677; 1145; 40 C., R. 128 N. Ency., S. R. 416; S., 1009 U. is a party necessary C., S., 71; ; cause action: 43 155 117 U. Code equity Proc., 143. 1906, opinion this case was filed November
but remittitur until up petition rehearing held *13 de-
January 1907. The of the was opinion Court by livered action This Pope. was on the begun Mr. Chief Justice
first of 1905. September, object Its was to recover day by the the of plaintiff defendant sum eight thousand dol lars on account the of tort the of defendant a dike erected by the by defendant on the River, east side of the which Seneca it was had alleged caused the waters of said River Seneca to overflow acres of forty-three bottom the lands owned by plaintiff, so that said injured lands were so and by damaged the dike said on land defendant’s on west side of Seneca River that plaintiff’s land bottom became mined practically useless, of in sum of damage plaintiff eight dollаrs. that thousand Also seeks injunc plaintiff tion- the defendant -said dike should whereby removed.
The defendant -by answer denied all the allegations but insisted that the plaintiff’s complaint, land which the dike still was erected was and is held of Carolina as the owner thereof, South in fee simple same now and has been 1890 in the possession -since. of said of Carolina, South -defendant, that the the Clemson Agricultural of College Carolina, has South- had -the and still has said management Carolina, but belonging that the land. And defendant title interest in said has no dike in in 1894 built question was that the defendant Carolina upon its own property, in the erection as the acted of said simply dike, authorized by maintenance of said was which fully State. trial, this action consent in writing
When was called made, on each side was signed by attorneys that the issue jurisdictional was raised defend- agreed determined, ant should be first and that either may party offer such this issue as he desire. Judge testimony after Aldrich heard the issue thins presented, James decree, 25th April, rendеred dated argument following 1906:
“Plaintiff his he is the complaint alleges owner fee and in land possession valuable tract bottom very Oconee; River, on the west side of County Seneca defendant, 1894-1895, that about the its board years side constructed on its land on the east lying River, lands plaintiff, bottom opposite Seneca dike, pre- embankment or for the purpose high strong River on its overflow waters venting Seneca that, floods; said embank- bottom lands times of freshet or *14 of said the overflow ment accustomed prevents entirely defendant, of and times the bottom lands of water upon and upon, the of said water thrown freshet entire volume upon and momentum volume forced to flow with great natural aforesaid, whereby plaintiff’s land bottom plaintiff’s lands rich soil of his bottom side, the bank plaintiff’s on have lands of bottom plaintiff that said were washed away; sterile, to plaintiff’s rendered ruined and been^practically dollars. thousand in the sum of eight damage asks defendant “Wherefore, judgment ag’ainst plaintiff costs, that enjoined defendant be $8,000 and (2) for (1) remove said to abate and of Court order proper existing prior dike, the condition prevailing and restore Correge. Opinion of the Court. C. S. dike; construction of said for such other (3) further relief as to the seem Court may proper.
“The defendant answered the complaint, that the alleging farm and land on the River, east side of described Seneca in the complaint, was property .the the State Carolina; that all acts done with reference to erecting said dike were done said maintaining through its agents authorized employees, duly that the Court has no jurisdiction this action.
“Counsel for and defendant plaintiff entered into a writ- ten agreement, the terms of provided which is that the jurisdictional issues the defendant by' shall be raised first determined, and then the other issues in the case shall be tried, unless those issues are finally disposed herein.
“At the winter term of this Court case came for up trial under said and both agreement, sides offered testimony issue, to the jurisdictional which relating will be found the record herein.
“The action, in two causes of one for complaint alleges etc., junction, Court, on side other equity on account to lands injuries damages alleged plain tiff, by reason of a tort thereon committed defendant. E., C., S. Co., Water Power Co. Electric “By Clemson, the will of Honorable Thomas G. duly pro Oconee, bated in County 20th day April, 1888, he devised and Eort Hill bequeathed con place, of 814 land acres dike sisting (the involved in the action was and other real and constructed), property, ‘in executor, to his trust whenever personal, Carolina as a donation accept me founding agricul from purpose thereupon I tural accordance with have herein- views college, ** * shall then executor execute my before expressed to the said and turn over of the said property deed hereinafter as an endowment of same given all *15 institution, as such the said so long to be held said Coiabgе. as it in faith devotes said good purpose thiedonation.’ “ ‘Item 2. The named seven following gentlemen, number, trustees, shall be the board to R. seven of wit: Norris, Bowen, Donaldson, W. D. K. M. R. F. Simpson, L. Tillman, B. R. Bradley; Wannamaker E. E. J. J. if it donation, shall never increase accepts all, thirteen in board of trustees to number than greater nor duties be taken conferred shall the of said board away other men or of men The seven trustees upon any body me shall have the and the appointed always right, power successors, and their them which right given hereby take all shall never to fill vacan- away abridge, legislature death, in their number by" resignation, cies which occur act, But refusal or otherwise. the legislature may pro- to it or election of sees proper appointment vide * * * The name trustees, if it donation accepts other six Clemson Col- Agricultural of this institution is to be “The ’ Carolina.” lege will, T deter- testator have says: to his “In preamble the establishment the bulk of my mined devote This the Fort Hill place. of an college agricultural and management under the control I to be institution desire ap- are hereinafter whom part of a board of college after the agricultural and to be modeled pointed, * * * ‘But I state desire to as far practicable,’ Mississippi institution to have trustees of said I that wish plainly pertaining all matters to regulate and power full authority studies, rules to make institution, the course of to fix same, and to government, and regulations prove experience may in their judgment them as change * * * necessary.’ November Assembly, approved of the General an act “By that declares Carolina 27th, Clemson, Thomas of Flon. G. and bequest the devise accepts will, in his said set forth conditions the terms subject be, he hereby, the treasurer ‘and hold securely to receive and empowered authorized *16 Hopkins Corrrge;. Opinion of Court. said both real property, and personal, and to execute all necessary and papers thereafter, receipts аs soon as the said executor shall convey 'and transfer the said devise and bequest said An State.’ agricultural and mechanical wa's college established connection with aforesaid devise, and to be bequest ‘The styled Clemson Agricultural of Carolina,’ College ‘to be Hill, South situated at Fort Oconee County, SO' It plantation' devised.’ is further that provided said shall be under college the management of and control a board of thirteen composed said seven members said will, nominated and their suc cessors, and six ; members be elected legislature shall they organize and it in college put operation, pre * * * scribe courses of elect study, and make professors, all rules and for the regulations government college; workmen, head laborers superintendents, employ farm, be shops grounds may and necessary; charge tuition, etc.’ 4 of said act ‘That the said board provides,
“Section trustees declared to be and body politic, corpo- hereby rate, under the name and style Agricultural Clemson shall a corporate Carolina. have College They seal, discretion, at their and in their which they change may for, name contract and hold may purchase corporate they act, take any for the of this and purposes may property deed, devise given conveyed by money and hold same for use and to said bequest college, * * * prop- sell any personal benefit. board may sued, be trust.” sue and subject They may “not erty name, in their corporate may plead impleaded, act, out the to carry provisions do things necessary all it if deem they for this purpose make by-laws necessary.’ act, ‘And pro- this proviso appears: 6 of said
“In section further, all with purchased personal property vided and held as shall taken appropriated money Carolina, be the shall legislature trustees to make to said board duty annual report and of all college, operations farming and tests and and of all exрeriments, receipts expendi- tures, with statement of the condition of the property all funds and of college, receipts expenditures thereto appropriated money State.’ *17 of trust “Pursuant to the the vested power discharge Clemson, 6th, 1890, the in him the of Mr. on March will in fee Fort Plill executor thereof the conveyed, simple, of all the and remainder of the estate and residue place, the unto testator (after paying legacies), uses, however, Carolina, to all and the ‘subject, singularly and trusts, and hereinafter expressed limitations conditions contained;’ ‘In for the of found- that is to trust say, purpose herein and con- hereby the Fort Hill plantation ing upon described, an agricultural hereinafter more fully veyed views, condi- the limitations and in accordance with college codicil of and testament and last will tions set forth the to, and Clemson, hereinbefore referred Thomas G. as an endow- the said balance of all holdings terms and conditions institution, under the ment of said аnd codicil.’ testament last the said will 1894, the 4th, resolution, approved a joint January “By of trustees to purchase the board authorized legislature for Hill the Fort acres, place, adjoining lands of 228 Fee 25th, May for same. On dollars, and pay ten thousand Isabelle Floride this land by for 1894, made a deed was acres, purchased fourteen tract of Another small Fee. Mrs. State, college deeded was paid and the date $420, being thereof Fewis, the price Anna P. 30th, 1893. deed June ' 1889, December, the legislature day 23d “On and maintenance the building act providing passed Script one-half and vested Fand College, of Clemson fund, the Morrill is known funds, and what and Hatch for the income elected by trustees the six income source other The only the college. support tax is paid This tax. fertilizer the college Correge. Opinion of the Court. Treasurer, subject the order of the trustees. The act of 24th, 1890, December so provides, and all monies appropriated institutions are public paid Treasurer. C., Section Code of Laws resolution,
“By joint 23d, 1890, December approved ‘A entitled joint resolution for the providing investment of all funds in the Treasurer, hands the State under the Clemson bequest, him to directing the interest pay thereon to the board of trustees arising of Clemson Agricul- tural College,’ Treasurer is directed invest reinvest the funds now in his hands and as such come hands, into his derived from the Clemson in such bequest, manner as he Governor, shall be directed Comp- troller Treasurer General two of them, Treasurer is to collect the interest on said funds and them to the treasurer of the pay board *18 trustees. resolution, 22d, 1891,
“By joint approved December Treasurer is authorized to collect in- all evidences of him, and to debtedness now held which were turned over him as a of the Clemson and invest the same in part bequest, cent, interest at the rate of six bearing per Brown Consols annum. per 24th, passed
“On December General Assembly and the department ‘An Act to abolish agriculture and to devolve all commissioner of agriculture, office of “The on the board of trustees of their and duties powers Carolina,” except College Clemson South Agricultural interests of the the control of State.’ phosphate trustees, duties of the board act “The prescribing tax thereof, enacts ‘That all the privilege the last section to the commissioner fertilizers, to be paid now required on the Treasurer future to' paid in the shall of agriculture, trustees of of the board of to the order subject * * * Carolina, College South Agricultural the Clemson maintenance.’ its erection 1906. “The dike in question on was built the eight hundred and stated, fourteen acre tract as heretofore conveyed, executor of Mr. Clemson to resolu- By joint State. tion, approved 4, 1894, the board January of directors of Carolina were authorized furnish penitentiary convicts to the said board of providing convicts be fifty employed said trustees in diking River. Seneca
“A municipal corporation, known Clemson College, ‘An was created act to Clemson incorporate College purpose police and the abatement of regulation nuisance,’ approved December 1894. ‘The limits of 24th* * * * is a circle formed with the college centre, as a miles, with radius building of five thus making miles, diameter circle ten within which bounda- jurisdiction ries the shall extend.’ ‘That board trustees Clemson Col- “Section and their shall successors office lege perpetual have control and direct the affairs of said But corporation.’ section 5 enacts ‘That shall herein said board nothing give trustees collect tax.’ right levy any one;
“There are stock subscriptions no issued no made, returns are and no taxes paid any No the board of trustees college. money expended by make except Legislature, they directed whom report. annual
“The owns the Fort Hill Carolina now *19 fee, trust, in the title in is holds and plantation legal using to the trust. said place according herein, the these is action
“Under record facts* State, the the the a suit or has consented to against State suit? it that thе necessary is is not
“It now well settled that a the determine this party should be record upon State suit, form, a not in is in effect an but that though question; State, has such an the the interest where against action State a the to make it party, of suit as subject necessary the 3—77 Courage;.
Opinion of the Court. where the the of would'have to respond State any judgment might which be obtained in the action.
“This action is brought ‘The against Clemson Agricul- Carolina, of College tural created South the the under laws of of existing State Carolina.’ South nature, To ascertain the powers and duties of this corpora- (cid:127) tion must we examine the charter and the laws relating thereto. the
“The of the college, owns pays State the current from income of the Mr. expenses donation of now Clemson, held owned by appropria- cited tions from Much law legislature. may as and what a private constitutes a public corpora- what Is that is not the here. ‘The Board tion, real question but College of Trustees’ оf ‘The Clemson Agricultural South Carolina! an agent of acting is, the fee in I that it for the holds ? think in, Hill and has founded the Fort place, 814 acres contained Agricultural College ‘The Clemson and is maintaining Trustees,’ as ‘The Board' and through Carolina’ by trust, created the terms of with in accordance its agents, accepted Clemson, specifically in the Mr. will State. as indi- the trustees against not brought action is
“This name under the created viduals, but Carolina,’ College Agricultural ‘The Clemson such, expense at the State, and an agent lands in question, the dike State, constructed' the State. being character suit of this ato consented
“Has C., 35 S. Thompson, In Lowry it? brought consent, sued without its cannot that a is held be cases which State class of the limited except expressly granted jurisdiction the original sued of the United States. Constitution Court Supreme and unequivo- be expressly must of the State consent State, for legislature cally given *20 35 v. 1906. not is sovereign, and. anything expressly withheld. given consent No has been the given State. the has,
“The that in the plaintiff charter of alleges defendant, the the defendant empowered ‘to sue expressly and be sued.’ The ‘sue 'be sued’ in the char- provision ter of the defendant relates to such con- powers were act, ferred the the trustees the upon Legislature did not throw all open kinds of suits. any Under charter the trustees could sue sued only far and no than further was out necessary carry board, conferred contracts powers upon might make of such obligations they pursuance a does not warrant suit of power. permission Such tort, This nature. suit is for and in effect but not in form State, not and is statute. warranted any 416; C., A. & 26th Thompson, Ency. E. Lowry Law, 487-480; S., Schild, U. p Belknap tort, re- an action being
“This dollars, cannot be maintained. thousand eight cover restoration former injunction “The suit also for demands, conditions, are to be determined equitable the Court. ‘The Court determine side of equity it, before when it can parties between controversy others, sav- rights prejudice be done without determinatiоn complete these but when rights; ing had', of other presence cannot be without controversy cause to be brought the Court must them in.’ See. parties can no deter- laws, complete 1902. There Code at presence bar without the of the controversy mination determination, should the complete because result in an injunction against would prevail, plaintiff removal, former and a restoration of dike, and use of It benefits The dike State. conditions. lands from overflow of the the State’s protects It better de- River. enables waters Seneca It of its is evident donation. the purpose the land to vote the use of the enjoin not perpetually should the Court *21 Hopkins 86 v.
Opinion of the Court. , property, dike, State’s destroying an improvement on lands, made State’s of the agents State carry- out the ing purpose and trust for which the land was donated State, without the presence as a party. “The Court cannot order the to be State into brought action, this because it has no to mаke authority State party to action any Court, own without its consent. Therefore, reason', other, this if no suit this must be dis- missed. Columbia P. Co., W. Co. v. Columbia Electric C., 154, E., 1002; 43 20 Schild, S., S. S. v. 161 Belknap U. 10; C., Thompson, 410. Lowry
“It is also evident that all the held property the board as the is property Much of in the State. property custody State Treasurer, such, held him as he the in- only pays therefrom, come as the well legislative appropriation, of trustees for Therefore, board specific purposes. must respond judgment action, which could damages given ‘because board has no other out of which the judgment be satisfied. For there is a might every wrong remedy, it is most know gratifying wrong alleged by has its The in its sov- plaintiff appropriate remedy. suit, has not consented to to this but the party ereignty can before the Legislature, represents plaintiff g-o State, and to consider the petition wrongs alleged herein, his in the in the complaint alleged rights; ‘where, Mclver, if of Chief 'his claim be language Justice founded, it that he is not doubt would рermissible well justice.’ ample receive decreed,
“Wherefore, ordered, it that the adjudged is, dismissed, costs, in be, with herein complaint hereby defendant.” favor of the decree, and the Circuit are satisfied with perfectly
We thereon. observations add a few only will fifty-six appeal exhibited ground's thlere- plaintiff be reported. will from, appeal and these grounds Coleege. will confine We ourselves to the two questions, viz: (1) Is the action effect a suit
Carolina? Is (2) indispensable toi party complete determination of the controversy? We do not
(1) see how can be successfully contended that this suit is not Before State. Thomas G. *22 Clemson’s death he the 814 owned acres of land known the Fort Hill plantation. his last By will he directed his
executor certain conditions, to tract convey said 1 of land to the of Carolina in fee State South simple.
The conditions named in said will testament of Thomas G. Clemson have been fully complied with, and deed of has made, 1890, conveyance bеen actually wit: Carolina, of State South and said tract of land is still in full possession of same as sole owner thereof. By an act of her Legislature, board of trustees of thle Clem son has been Agricultural College made of said 1894, in the In State same. maintaining managing dike, River, side, on the bank of on its eastern was Seneca constructed, built and under the of the authority the Clemson This dike Agricultural College. solely lands owned is the cause of this controversy. The suit is brought against Clemson Agricultural Col and, not, fact, in name or lege, of against this, Carolina. of a is What kind public it ? It seems to us is a This private mat public corporation. ter conduct, of the independent history origin, maintenance of the set is at college question, rest by ex Re case Kansas rel. v. Board Little of of A., 378, al., Kansas et 29 R. gents University L. note the exhaustive on this We refer also question. 95 v. Industrial Reform, Williamson School Louisville 251; Com v. Board Kentucky, Weddell School County Md., 94 missioners, charter,
But sued,” will words “to sue and be sanction to the idea that thosе words give operate as a legis-
88 v.
Opinion of the Court. lative authorization suit for a has tort? This question before, been before the Court and' case have we every held that these to sue such public words confer only right contract, that it for the enforcement of a corporations is to have direct and sue necessary, explicit authority for a Council tort. v. corporations Bryant City C., 137; Council White Orangeburg, City S. in this Hill, settled Charleston, 2 held it is tort, unless recover damages that an action to statute, cannot be maintained provided 286; C., Chester, 20 S. municipal corporation. Columbia C., 218. Beaufort, v. Town Council Gibbes There is no statute of a suit special authorizing the Clemson Caro- Agricultural College therefore, It that the action on the lina for tort. follows must be dismissed. law side Court The fee in this land unquestionably (2) *23 action, has its The only by legislative Carolina. this land the defendant its agent managing made the fee is unquestionably other To preserve property. liable to be made can its proрerty How duty State. failure to a sale to without a pay any judgment part it Thomas intact? Mr. G. Clemson keep legacy Thomp This is illustrated in the cases of well v. very Lowry al., C., 416, Co. v. son et 25 and Columbia Power Water S. C., 20 Co., 43 Columbia S. S. Electric Street Railway E., 1002. that the
Thus is manifest has such an interest in suit, that its as a neces- presence party imperatively has not consented to be sary. party. ' Court, It is the of this that the judgment judgment is, and the same be, the Circuit Court affirmed. 27, 1907. After January Per careful con- Curiam. herein sideration of petition the Court is rehearing, that no material question satisfied law or fact has either or disregarded. been overlooked 89 Roper. Machinery Co. Gibbes November 1906. therefore, ordered, is, It that the be dis petition missed, and that the heretofore stay order granted, remittitur, be revoked. ing GIBBES MACHINERY CO. ROPER. Agent. sell an authorized to ma- agent Principal
1. —Notice by principal been sale chinery having of sale ratified —of mortgage —contract purchaser machinery party of land of a third of limita- imputed principal in absence thereon the vendee is purchaser had notice. authority tion in payable to order Notice. —A note 2. Purchaser for Value Without passing in blank him and into the hands payee, indorsed presumed to be held maturity, third for value before persons existing parties. equities original from between the party free an expressing agreement indorsement Although intermediate non-negotiable, rendered the note the holder payment extend time of rights all of the indorser. succeeded to nevertheless Rehearing refused. 3. October, Modi- J., Williamsburg,
Before Watts, fied. Gibbes, Machinery M.
Action A. Gibbes trading L,. McCall. D. D. Co., Roper, Pocahontas B. Roper, Sinclair, executors of McCall, A. T. C. McCall G. E. *24 defendants, Pocahon- decree, Erom Circuit C. McCall. S. McCall, The facts appeal. and executors of C. tas S. Roper special S'bipp, W. G. report are thus stated referee: at H. one that W. Gibbes was
“The complaint alleges Co.; business, H. & as W. Gibbes trading time engaged 17th, 1902, the sold and said W. H. Gibbes that May conducted under for value business purchased plaintiff