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Statement of the Case.

tution of this suit. South Carolina v. Coosaw Mining Co., 47 Fed. Rep. 225. The relief asked was, therefore, granted.

The principal question to be considered depends upon certain legislative enactments relating to phosphate rocks and phosphatic deposits in the navigable waters of South Carolina. It is necessary to ascertain the scope of those enactments.

By an act which took effect March 1, 1870, the State granted to certain named persons and their associates the right, for the full term of twenty-one years, to dig, mine and remove phosphate rocks and phosphatic deposits from the beds of the navigable streams and waters within the jurisdiction of the State of South Carolina. This grant was made upon the express condition that the grantees pay the State one dollar per ton for every ton of phosphate rock and phosphatic deposits, so dug, mined and removed, and five hundred dollars as a license fee before commencing business under the grant.

The act further provided that before commencing operations under authority of the act, the grantees, and their associates, should file, or cause to be filed, in the office of the state auditor, a bond in the sum of fifty thousand dollars, conditioned that they would make true and faithful returns to that officer, annually, on or before the first day of October, and oftener, if required, of the number of tons of phosphate rocks and phosphatic deposits dug, mined and removed by them, and punctually pay to the state treasurer, annually, on the first day of October, one dollar per ton for every ton of rocks and deposits by them so dug, mined and removed, during the year preceding; such bond to be renewed annually, and approved by the attorney general. 14 Gen. Stats. S. C. p. 381.

The Coosaw Mining Company, it is admitted, succeeded to all the rights given by this act.

On March 28, 1876, another act was passed entitled “An act to settle definitely the period at which returns shall be made of phosphate rocks and phosphatic deposits dug and mined in the beds of the navigable streams and waters of the State of South Carolina and the royalty shall be paid thereon, and also to fix the terms on which this act may be accepted by the parties named therein." This act is the foundation of

Statement of the Case.

the appellant's claim of an exclusive right, for an indefinite period, to dig, mine and remove phosphate rocks and phosphatic deposits in that part of Coosaw River which it occupies. Its provisions are, therefore, given in full as follows:

“ Whereas differences have arisen between the Coosa w Mining Company and the comptroller general as to the times and manner in which the said company shall make their returns of the number of tons of phosphate rocks and phosphatic deposits dug, mined and removed by them from the beds of the navigable streams and waters of the State, and also as to the times when the royalty thereon shall be paid ; therefore, for remedy thereof,

“SECTION 1. Be it enacted," etc., “That the said Coosaw Mining Company and all other companies and persons engaged in digging, mining and removing phosphate rocks and phosphatic deposits from the bed of the navigable streams and waters of the State shall be, and they are hereby, required, from and after the passage of this act, to make to the comptroller general true and faithful returns of the number of tons of phosphate rocks and phosphatic deposits they have so dug, mined and removed and shipped, or otherwise sent to market, at the end of every month; and shall punctually pay to the state treasurer the royalty already provided by law to be paid thereon at the end of every quarter or three months, the first quarter to commence to run on the first day of March in the present year.

“SEC. 2. That the said Coosaw Mining Company, and all other companies and persons mentioned in the preceding section, shall, within ten days from the passage of this act, enter into new bonds, in the penal sums and in the manner and form already provided by law, but conforming, in their conditions, to the terms set forth in the said preceding section, and also pay to the state treasurer the royalty accrued up to the said first day of March of the present year. And whereas it is desirable that the said Coosaw Mining Company, and all other companies and persons engaged in digging, mining and removing phosphate rock and phosphatic deposits as aforesaid, shall accept the terms of this act, in order to make it binding on

Statement of the Case.

them respectively; and whereas the said Coosaw Mining Company have already occupied so much of the Coosaw River as lies opposite to and south of Chisolm's Island, whereon their works are located, and to the marshes thereof, and have expended large sums of money in establishing themselves thereon with sufficient mining plant for mining and preparing for market the phosphate rocks and phosphatic deposits of that part of the said Coosaw River; therefore, in consideration thereof,

“SEC. 3. That the said Coosaw Mining Company, on accepting the terms of this act within ten days from the passage thereof, shall thenceforth have the exclusive right to occupy and dig, mine and remove phosphate rock and phosphatic deposits from all that part of the said Coosaw River above mentioned so long as and no longer than they shall make true and faithful returns of the number of tons thereof they shall so dig, mine and remove, and ship or otherwise send to market, and punctually pay the royalty thereon, as provided in the first section of this act.

“Sec. 4. That all other companies and persons engaged in digging, mining and removing phosphate rocks and phosphatic deposits as aforesaid under gift and grant of the State of South Carolina or by authority thereof, who shall accept the terms of this act within ten days from the passage thereof, shall thenceforth have the same exclusive right where they have respectively occupied and established themselves for mining purposes, and on the same limitations as are prescribed in the preceding section of this act.

“Sec. 5. That all acts and parts of acts inconsistent with this act be, and they are hereby, for the purpose of this act, repealed.” Acts of South Carolina, 1875–6, p. 198.

The appellant accepted the terms of that act, and thereby, it is contended, acquired the exclusive right in question. The act which is supposed to have impaired the obligation of its contract with the State was that of December 23, 1890, creating a Board of Phosphate Commissioners, consisting of the governor, attorney general, comptroller general and two individual citizens, charged with the exclusive control and protec

Statement of the Case.

tion of the rights and interest of the State in the phosphate rocks and phosphatic deposits in its navigable streams and marshes. The latter act empowered the Board - if, upon full investigation and examination, they deemed it advisable-to require all persons or corporations digging or mining phosphate rock or phosphatic deposits in the navigable streams and marshes of the State, to pay a royalty not to exceed two dollars per ton for all or any phosphate rock so dug or mined, six months' notice being given before raising the royalty above one dollar.

It also authorized and directed the Board after the first day of March, 1891, “to take possession and control of the Coosaw River phosphate territory heretofore occupied by the Coosaw Mining Company," and to issue licenses to mine and remove therefrom phosphate rock and phosphatic deposits, in like manner as was then provided by law for the other navigable streams and waters of the State; each ton of phosphate rock or phosphatic deposits, the product of such mining operations, to be deemed the property of the State until the said parties paid thereon a royalty, to be fixed by the Board, at not exceeding two dollars per ton on each ton of phosphate rock or phosphatic deposits dug, mined and removed, and six months' notice to be given before raising the royalty above one dollar.

It was further provided that if any person interfered with, obstructed, molested or attempted to interfere with, obstruct or molest, the Board, or any one by them authorized or licensed, in the peaceable possession and occupation for mining purposes of any of the marshes and navigable streams and waters of the State, it was authorized, in the name and on behalf of the State of South Carolina, "to take such measures or proceedings as they may be advised are proper to enjoin and terminate any such molestation, interference or obstruction, and place the State, through its agents, the said Board of Phosphate Commissioners, or any one under them authorized, in absolute and practicable possession and occupation of the same."

Other sections of the act made it an offence, punishable by fine or imprisonment or both, at the discretion of the court,

Argument for Appellant.

for any person or persons to wilfully interfere with, molest or obstruct, or attempt to interfere with, molest or obstruct, the State or the Board of Phosphate Commissioners, or any one by them authorized or licensed, in the peaceable possession and occupation of any of the said marshes and navigable streams and waters of the State, “including the said Coosaw River phosphate territory,” or who shall dig or mine, or attempt to dig or mine, any of the phosphate rock or phosphatic deposits of this State, without a license so to do by the Board. The Board were authorized and empowered to inquire into and protect the interests of the State in and to any phosphate deposits or mines, whether in the navigable waters of the State or in land marshes or other territory owned or claimed by other parties, and in the proceeds of any such mines, and to take such action for or in behalf of the State in regard thereto as they might find necessary or deem proper. All acts or parts of acts inconsistent with the provisions of the act of 1890 were repealed. Acts of South Carolina, 1890,

p. 691.

Mr. Augustine T. Smythe and Mr. Edward McCrady for appellant.

I. The courts have no jurisdiction in equity over this case. The essential prerequisite to the jurisdiction of courts of equity is that there is no adequate remedy at law-otherwise the constitutional right to a trial by jury would be invaded and taken away. This fundamental rule has prevailed in England from the inception of equity jurisprudence, and always in the United States. Hipp v. Babin, 19 How. 271; Parker v. Winnipiseogee Mfg Co., 2 Black, 545; Grandchute v. Winegar, 15 Wall. 355, 373; Lewis v. Cocks, 23 Wall. 466; Ellis v. Davis, 109 U. S. 485 ; Killian v. Ebbinghaus, 110 U. S. 568; Fussell v. Gregg, 113 U. S. 550; United States v. Wilson, 118 U. S. 86; 'Whitehead v. Shattuck, 138 U. S. 146; Scott v. Veely, 140 U. S. 106; Smyth v. N. 0. Canal and Banking Co., 141 U. S. 656.

In the case before the court the complainant does not allege even that it is in possession of the property, or that such pos

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