The opinion in this case was filed November 20, 1906, but remittitur held up on petition for rehearing until
January 27, 1907. The opinion of the Court was delivered by This action was begun on the first day of September, 1905. Its object was to recover by the plaintiff of the defendant the sum of eight thousand dollars on account of the tort of the defendant by a dike erected by the defendant on the east side of the Seneca River, which it was alleged had caused the waters of said Seneca River to overflow forty-three acres of bottom lands owned by the plaintiff, so that said lands were so injured and damaged by the said dike on defendant's land on the west side of Seneca River that plaintiff's bottom land became practically ruined and useless, to the damage of plaintiff in the sum of eight thousand dollars. Also that the plaintiff seeks an injunction against the defendant whereby said dike should be removed.
The defendant by its answer denied all the allegations of the plaintiff's complaint, but insisted that the land upon which the dike was erected was and is still held by the State of South Carolina as the owner in fee simple thereof, and the same is now and has been since 1890 in the possession of said State of South Carolina, and that the defendant, the Clemson Agricultural College of South Carolina, has *Page 27 had and still has the management of the said property belonging to the said State of South Carolina, but the defendant has no title or interest in said land. And that the dike in question in 1894 was built by the State of South Carolina upon its own property, and that the defendant simply acted as the agent of said State in the erection and maintenance of said dike, which was fully authorized by the State.
When this action was called for trial, a consent in writing signed by the attorneys on each side was made, by which it was agreed that the jurisdictional issue raised by the defendant should be first determined, and that either party may offer such testimony on this issue as he may desire. Judge James Aldrich heard the issue thus presented, and after argument rendered the following decree, dated 25th April, 1906:
"Plaintiff in his complaint alleges that he is the owner in fee and in possession of a very valuable tract of bottom land on the west side of Seneca River, in the County of Oconee; that about the years 1894-1895, the defendant, by its board of trustees, constructed on its land lying on the east side of Seneca River, and opposite the bottom lands of plaintiff, a high and strong embankment or dike, for the purpose of preventing the overflow of the waters of Seneca River on its bottom lands in times of freshet or floods; that said embankment prevents entirely the accustomed overflow of said water upon the bottom lands of defendant, and in times of freshet the entire volume of said water is thrown upon, and forced to flow with great volume and momentum upon plaintiff's bottom land aforesaid, whereby plaintiff's natural bank on plaintiff's side, and the rich soil of his bottom lands were washed away; that said bottom lands of plaintiff have been practically ruined and rendered sterile, to plaintiff's damage in the sum of eight thousand dollars.
"Wherefore, plaintiff asks judgment against defendant (1) for $8,000 and costs, (2) that defendant be enjoined by the proper order of this Court to abate and remove said dike, and restore the condition prevailing and existing prior *Page 28 to the construction of said dike; (3) and for such other and further relief as to the Court may seem proper.
"The defendant answered the complaint, alleging that the farm and land on the east side of Seneca River, described in the complaint, was the property of the State of South Carolina; that all acts done with reference to the erecting and maintaining said dike were done by said State through its agents and employees, duly authorized by the State, and that the Court has no jurisdiction in this action.
"Counsel for plaintiff and defendant entered into a written agreement, by the terms of which it is provided that the jurisdictional issues raised by the defendant shall be first determined, and then the other issues in the case shall be tried, unless those issues are finally disposed of herein.
"At the winter term of this Court the case came up for trial under said agreement, and both sides offered testimony relating to the jurisdictional issue, which will be found in the record herein.
"The complaint alleges two causes of action, one for injunction, etc., on the equity side of the Court, and the other for damages on account of alleged injuries to lands of plaintiff, by reason of a tort committed thereon by the defendant.Water Power Co. v. Electric Co., 43 S.C. 155,20 S.E., 1002.
"By the will of Honorable Thomas G. Clemson, duly probated in the County of Oconee, on the 20th day of April, 1888, he devised and bequeathed the Fort Hill place, consisting of 814 acres (the land upon which the dike involved in the action was constructed), and other property, real and personal, to his executor, `in trust that whenever the State of South Carolina may accept said property as a donation from me for the purpose of thereupon founding an agricultural college, in accordance with the views I have hereinbefore expressed * * * then my executor shall execute a deed of the said property to the said State, and turn over to the same all property hereinafter given as an endowment of said institution, to be held as such by the said State so long *Page 29 as it in good faith devotes said property to the purpose of the donation.'
"`Item 2. The following named gentlemen, seven in number, shall be seven of the board of trustees, to wit: R. W. Simpson, D.K. Norris, M.L. Donaldson, R.F. Bowen, B.R. Tillman, J.E. Wannamaker and J.E. Bradley; and the State, if it accepts the donation, shall never increase the board of trustees to a number greater than thirteen in all, nor shall the duties of said board be taken away or conferred upon any other men or body of men The seven trustees appointed by me shall always have the right, and the power is hereby given them and their successors, which right the legislature shall never take away or abridge, to fill all vacancies which may occur in their number by death, resignation, refusal to act, or otherwise. But the legislature may provide as it sees proper for the appointment or election of the other six trustees, if it accepts the donation * * * The name of this institution is to be "The Clemson Agricultural College of South Carolina." '
"In the preamble to his will, testator says: `I have determined to devote the bulk of my property to the establishment of an agricultural college upon the Fort Hill place. This institution I desire to be under the control and management of a board of trustees, a part of whom are hereinafter appointed, and to be modeled after the agricultural college of Mississippi as far as practicable,' * * * `But I desire to state plainly that I wish the trustees of said institution to have full authority and power to regulate all matters pertaining to said institution, to fix the course of studies, to make rules and regulations for the government of the same, and to change them as in their judgment and experience may prove necessary.' * * *
"By an act of the General Assembly, approved November 27th, 1889, the State of South Carolina declares that it accepts the devise and bequest of Hon. Thomas G. Clemson, subject to the terms and conditions set forth in his said will, `and that the treasurer of the State be, and he is hereby, authorized and empowered to receive and securely hold the *Page 30 said property, both real and personal, and to execute all necessary papers and receipts thereafter, as soon as the said executor shall convey and transfer the said devise and bequest to the said State.' An agricultural and mechanical college was established in connection with the aforesaid devise, and bequest to be styled `The Clemson Agricultural College of South Carolina,' `to be situated at Fort Hill, in Oconee County, on the plantation so devised.' It is further provided that said college shall be under the management and control of a board of thirteen trustees, composed of the said seven members nominated by said will, and their successors, and six members to be elected by the legislature; they shall organize the college and put it in operation, prescribe the courses of study, elect professors, * * * and make all rules and regulations for the government of the college; employ such superintendents, head workmen, laborers for the farm, shops and grounds as may be necessary; charge tuition, etc.'
"Section 4 of said act provides, `That the said board of trustees is hereby declared to be a body politic, and corporate, under the name and style of the Clemson Agricultural College of South Carolina. They shall have a corporate seal, which they may change at their discretion, and in their corporate name they may contract for, purchase and hold property for the purposes of this act, and may take any property and money given or conveyed by the deed, devise or bequest to said college, and hold the same for its use and benefit. * * * The board may sell any of the personal property "not subject to trust." They may sue and be sued, plead and be impleaded, in their corporate name, and may do all things necessary to carry out the provisions of this act, and may make by-laws for this purpose if they deem it necessary.'
"In section 6 of said act, this proviso appears: `And provided further, that all personal property purchased with money appropriated by the State shall be taken and held as property of the State of South Carolina, and it shall be the duty of said board of trustees to make to the legislature an *Page 31 annual report of the college, and of all farming operations and tests and experiments, and of all receipts and expenditures, with a statement of the conditions of the property and funds of said college, and of all receipts and expenditures of money appropriated thereto by the State.'
"Pursuant to the power in discharge of the trust vested in him by the will of Mr. Clemson, on March 6th, 1890, the executor thereof conveyed, in fee simple, the Fort Hill place, and all the residue and remainder of the estate of testator (after paying legacies), unto the State of South Carolina, `subject, however, to all and singularly the uses, trusts, limitations and conditions hereinafter expressed and contained;' that is to say, `In trust for the purpose of founding upon the Fort Hill plantation herein and hereby conveyed and hereinafter more fully described, an agricultural college in accordance with the views, limitations and conditions set forth in the last will and testament and codicil of the said Thomas G. Clemson, hereinbefore referred to, and all holdings and balance of the said property as an endowment of said institution, under the terms and conditions in the said last will and testament and codicil.'
"By a joint resolution, approved January 4th, 1894, the legislature authorized the board of trustees to purchase the Lee lands of 228 acres, adjoining the Fort Hill place, for ten thousand dollars, and pay for same. On May 25th, 1894, a deed was made for this land by Floride Isabelle Lee. Another small tract of fourteen acres, purchased and paid for by the State, was deeded to the college by Mrs. Anna P. Lewis, the price thereof being $420, and the date of the deed is June 30th, 1893.
"On the 23d day of December, 1889, the legislature passed an act providing for the building and maintenance of Clemson College, and vested one-half of the Land Script and Hatch funds, and what is known as the Morrill fund, in the six trustees elected by the State, the income for the support of the college. The only other source of income of the college is the fertilizer tax. This tax is paid to the *Page 32 State Treasurer, subject to the order of the trustees. The fact of December 24th, 1890, so provides, and all monies appropriated to public institutions are paid by the State Treasurer. Section 724, Code of Laws of S.C. 1902.
"By a joint resolution, approved December 23d 1890, entitled `A joint resolution providing for the investment of all funds in the hands of the State Treasurer, under the Clemson bequest, and directing him to pay the interest arising thereon to the board of trustees of Clemson Agricultural College,' the State Treasurer is directed to invest and reinvest the funds now in his hands and as such may come into his hands, derived from the Clemson bequest, in such manner as he shall be directed by the Governor, the Comptroller General and the Treasurer of the State, or any two of them, and the State Treasurer is to collect the interest on said funds and pay them to the treasurer of the board of trustees.
"By a joint resolution, approved December 22d 1891, the State Treasurer is authorized to collect all evidences of indebtedness now held by him, and which were turned over to him as a part of the Clemson bequest, and invest the same in Brown Consols bearing interest at the rate of six per cent. per annum.
"On December 24th, 1890, the General Assembly passed `An Act to abolish the department of agriculture and the office of commissioner of agriculture, and to devolve all their powers and duties on the board of trustees of "The Clemson Agricultural College of South Carolina," except the control of phosphate interests of the State.'
"The act prescribing the duties of the board of trustees, and the last section thereof, enacts `That all the privilege tax on fertilizers, now required to be paid to the commissioner of agriculture, shall in the future be paid to the Treasurer of the State, subject to the order of the board of trustees of the Clemson Agricultural College of South Carolina, * * * for its erection and maintenance.' *Page 33
"The dike in question was built on the eight hundred and fourteen acre tract conveyed, as heretofore stated, by the executor of Mr. Clemson to the State. By a joint resolution, approved January 4, 1894, the board of directors of the South Carolina penitentiary were authorized to furnish convicts to the said board of trustees, and providing that fifty convicts be employed by said trustees in diking the Seneca River.
"A municipal corporation, known as Clemson College, was created by `An act to incorporate Clemson College for the purpose of police regulation and the abatement of nuisance,' approved December 24th, 1894. "The limits of said corporation * * * is a circle formed with the college building as a centre, with a radius of five miles, thus making the diameter of the circle ten miles, within which boundaries the jurisdiction of the corporation shall extend.'
"Section 2. `That the board of trustees of Clemson College and their successors in office shall have perpetual control and direct the affairs of said corporation.' But section 5 enacts `That nothing herein shall give said board of trustees the right to levy or collect any tax.'
"There are no stock subscriptions issued to any one; no returns are made, and no taxes paid on any property of the college. No money is expended by the board of trustees except as directed by the Legislature, to whom they make annual report.
"The State of South Carolina now owns the Fort Hill plantation in fee, holds the legal title in trust, and is using said place according to the trust.
"Under these facts, and the record herein, is this action a suit against the State, or has the State consented to the suit?
"It is now well settled that it is not necessary that the State should be a party upon the record to determine this question; but that a suit, though not in form, is in effect an action against the State, where the State has such an interest in the subject of the suit as to make it a necessary party, or *Page 34 where the property of the State would have to respond to any judgment which might be obtained in the action.
"This action is brought against `The Clemson Agricultural College of South Carolina, a corporation created by and existing under the laws of the State of South Carolina.' To ascertain the nature, powers and duties of this corporation we must examine the charter and the laws relating thereto.
"The State owns the property of the college, and pays the current expenses from the income of the donation of Mr. Clemson, now held and owned by the State, and appropriations from and by the legislature. Much law may be cited as to what constitutes a private and what a public corporation, but that is not the real question here. Is `The Board of Trustees' of `The Clemson Agricultural College of South Carolina' an agent of the State, and acting as agent of the State? I think that it is, for the State holds the fee in the 814 acres contained in the Fort Hill place, and has founded and is maintaining `The Clemson Agricultural College of South Carolina' by and through `The Board of Trustees,' as its agents, in accordance with the terms of the trust, created in the will of Mr. Clemson, and specifically accepted by the State.
"This action is not brought against the trustees as individuals, but against the corporation created under the name of `The Clemson Agricultural College of South Carolina,' which is an agent of the State, and as such, at the expense of the State, constructed the dike in question, upon lands of the State.
"Has the State consented to a suit of this character being brought against it? In Lowry v. Thompson, 25 S.C. 416, it is held that a State cannot be sued without its consent, except in the limited class of cases in which a State may be sued in the original jurisdiction expressly granted to the Supreme Court by the Constitution of the United States. The consent of the State must be expressly and unequivocally given by the legislature of the State, for the State is a *Page 35 sovereign, and anything not expressly given is withheld. No consent has been given by the State.
"The plaintiff alleges that the State has, in the charter of the defendant, expressly empowered the defendant `to sue and be sued.' The `sue and be sued' provision in the charter of the defendant relates to such powers as were conferred upon the trustees by the act, and the Legislature did not throw the State open to any and all kinds of suits. Under the charter the trustees could sue and be sued only so far and no further than was necessary to carry out the powers conferred upon the board, and upon such contracts and obligations as they might make in pursuance of such power. Such permission does not warrant a suit of this nature. This suit is for a tort, and in effect but not in form against the State, and is not warranted by any statute.Lowry v. Thompson, 25 S.C. 416; 26th A. E. Ency. of Law, p. 487-480; Belknap v. Schild, 161 U.S. 10.
"This being an action for tort, against the State, to recover eight thousand dollars, cannot be maintained.
"The suit is also for injunction and restoration of former conditions, which are equitable demands, to be determined on the equity side of the Court. `The Court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving these rights; but when a complete determination of the controversy cannot be had, without the presence of other parties the Court must cause them to be brought in.' Sec. 143, Code of laws, 1902. There can be no complete determination of the controversy at bar without the presence of the State, because a complete determination, should the plaintiff prevail, would result in an injunction against the use of the dike, and its removal, and a restoration of former conditions. The dike is the property of the State. It benefits and protects the State's lands from the overflow of the waters of Seneca River. It enables the State to better devote the land to the purpose of its donation. It is evident that the Court should not perpetually enjoin the use of the *Page 36 State's property, by destroying the dike, an improvement on the State's lands, made by the agents of the State in carrying out the purpose and trust for which the land was donated to the State, without the presence of the State, as a party.
"The Court cannot order the State to be brought into this action, because it has no authority to make the State a party to any action in its own Court, without its consent. Therefore, for this reason, if no other, this suit must be dismissed.Columbia W.P. Co. v. Columbia Electric Co.,43 S.C. 154, 20 S.E., 1002; Belknap v. Schild,161 U.S. 10; Lowry v. Thompson, 25 S.C. 410.
"It is also evident that all the property held by the board of trustees, as the agent of the State, is the property of the State. Much of said property is in the custody of the State Treasurer, held by him as such, and he only pays the income therefrom, as well as the legislative appropriation, to the board of trustees for specific purposes. Therefore, the property of the State must respond to any judgment for damages which could be given in this action, because the board has no other property out of which the judgment might be satisfied. For every wrong there is a remedy, and it is most gratifying to know that the wrong alleged by plaintiff has its appropriate remedy. The State in its sovereignty has not consented to be a party to this suit, but the plaintiff can go before the Legislature, which represents the State, and petition the State to consider the wrongs alleged in the complaint herein, and his alleged rights; and in the language of Chief Justice McIver, `where, if his claim be well founded, it is not permissible to doubt that he would receive ample justice.'
"Wherefore, it is ordered, adjudged and decreed, that the complaint herein be, and hereby is, dismissed, with costs, in favor of the defendant."
We are perfectly satisfied with the Circuit decree, and will only add a few observations thereon.
The plaintiff exhibited fifty-six grounds of appeal therefrom, and these grounds of appeal will be reported. *Page 37
We will confine ourselves to the two questions, viz: (1) Is the action in effect a suit against the State of South Carolina? (2) Is the State an indispensable party to the complete determination of the controversy?
(1) We do not see how it can be successfully contended that this suit is not against the State. Before Thomas G. Clemson's death he owned the 814 acres of land known as the Fort Hill plantation. By his last will he directed his executor upon certain conditions, to convey said tract of land to the State of South Carolina in fee simple. The conditions named in said will and testament of Thomas G. Clemson have been fully complied with, and the deed of conveyance has actually been made, to wit: in 1890, to the State of South Carolina, and said tract of land is still in full possession of the same as the sole owner thereof. By an act of her Legislature, the board of trustees of the Clemson Agricultural College has been made the agent of said State in the maintaining and managing the same. In 1894, a dike, on the bank of Seneca River, on its eastern side, was built and constructed, under the authority of the State, by the Clemson Agricultural College. This dike solely on the lands owned by the State, is the cause of this controversy. The suit is brought against the Clemson Agricultural College, and, not, in name or fact, against the State of South Carolina. What kind of a corporation is this, public or private? It seems to us it is a public corporation. This matter independent of the history of the origin, conduct, and maintenance of the college in question, is set at rest by the case of the State of Kansas ex rel. Little v. Board of Regentsof University of Kansas et al., 29 L.R.A., 378, and the exhaustive note on this question. We may refer also to Williamson v. Louisville Industrial School of Reform, 95 Kentucky, 251; Weddell v. Board of County School Commissioners,94 Md., 334.
But will the words of the charter, "to sue and be sued," give sanction to the idea that those words operate as a legislative *Page 38 authorization of suit for a tort? This question has been before the Court before, and in every case we have held that these words only confer a right to sue such public corporations for the enforcement of a contract, and that it is necessary, to have direct and explicit authority to sue such corporations for a tort. Bryant v. City Council ofOrangeburg, 70 S.C. 137; White v. City Council ofCharleston, 2 Hill, 571, which held that it is settled in this State that an action to recover damages for tort, unless it is provided for by statute, cannot be maintained against a municipal corporation. Columbia v. Chester, 20 S.C. 286;Gibbes v. Town Council of Beaufort, 20 S.C. 218.
There is no special statute of this State authorizing a suit against the Clemson Agricultural College of South Carolina for tort. It follows therefore, that the action on the law side of the Court must be dismissed.
(2) The fee in this land is unquestionably in the State of South Carolina. The State has only by its legislative action, made the defendant its agent in managing this land and other property. To preserve the fee is unquestionably the duty of the State. How can its property be made liable to a sale to pay any judgment without a failure on its part to keep the legacy to it by Mr. Thomas G. Clemson intact? This is very well illustrated in the cases of Lowry v. Thompsonet al., 25 S.C. 416, and Columbia Water Power Co. v.Columbia Electric Street Railway Co., 43 S.C. 155,20 S.E., 1002.
Thus it is manifest that the State has such an interest in this suit, that its presence as a party is imperatively necessary. The State has not consented to be a party.
It is the judgment of this Court, that the judgment of the Circuit Court be, and the same is, affirmed.
January 27, 1907.