100 S.E. 355 | S.C. | 1919
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *530
August 26, 1919. The opinion of the Court was delivered by
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 (
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 (
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.
There was no error in refusing the application for removal. Taylor v. Anderson,
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,
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.
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
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.
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.
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 reentry for breach thereof is not indispensable, since these are but remedies which follow the breach as legal consequences.
It makes little difference, therefore, that the statute does not provide for reverter or re-entry.
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.,
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.
On the issue of waiver, appellant has called attention to the act of 1912 (
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.
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.
*541Judgment affirmed.