1. A preliminary motion was made to dismiss this writ of error upon the ground that no federal question was involved, and, even if there were such question, it was not 'specially set up and claimed' in the state court, as required by Rev. St. § 709.
An examination of the complaint shows that the plaintiff relies upon the act of the general assembly of December 24, 1887. This statute (section 1) authorizes the board of directors of the South Carolina penitentiary, which had acquired the ownership of the canal under a previous act of February 8, 1882, to transfer the property to the board of trustees of the Columbia Canal, and (section 7) required the completion of the canal, and a reservation to the state, free of charge, on the line of the canal, of 500 horse power of water power, with a further proviso that the right of the state to the free use of the said 500 horse power should be absolute, and any mortgage, assignment, or other transfer of the said canal by the said board of trustees, or their assignees, should always be subject to this right. In section 21 this reservation is described as a provision for the state, with 500 horse power of water power 'at' the penitentiary. By section 23, as amended in 1890, the board of trustees was given authority to 'sell, alienate, and transfer the canal,' with its appurtenances, lands, and franchises, to any person or corporation, subject, however, to all contracts, liabilities, and obligations made and entered into by said board prior to such sale and transfer. Pursuant to this authority, the board of trustees on January 11, 1892, conveyed the canal and its appurtenances to the plaintiff.
The gist of the complaint is that in 1892 the defendant, acting as the agent of the state, through the board of directors of the penitentiary submitted plans and specifications for the erection of works for making the said 500 horse power of water power available, to which the plaintiff made no objection; but that thereafter, against its protests, defendant proceeded to construct in such works machinery intended for the purpose of running its electric lights and street railway, and furnishing power to the citizens of Columbia for divers industries, and entered upon the premises of the plaintiff, and laid foundations for a steam engine to be used in running its generators, etc., and began the erection of an engine house, boiler house, and coal house for the purpose of establishing a steam plant.
The complaint did not set up the contract of the board of directors of the penitentiary with the defendant, and the act of the general assembly of December, 1892, confirming the same; but these were both set forth in the answer, and relied upon by the defendant as its authority for the erection of its works. In this contract the defendant agreed to erect on the western bank of the canal, opposite the penitentiary, suitable water wheels, of sufficient capacity to utilize and develop the 500 horse power of water power, and to transmit across the canal, to some convenient point within the walls of the penitentiary, not to exceed 100 horse power, for the use and benefit of the penitentiary. In consideration of this the board of directors agreed to allow the defendant the use of all their right, title, and interest to the land on the west side of the canal, and also to allow it the free and uninterrupted use of the said 500 horse power of water power reserved to the penitentiary, with the exception of the 100 horse power so reserved for its private use. This contract was subsequently ratified and confirmed by an act of the general assembly approved December 24, 1892.
While no special mention is made in the complaint of the constitution of the United States, the whole theory of the plaintiff's case, taken in connection with the answer, § that the rights which it acquired to the 500 horse power in question under the act of 1887, were impaired by the subsequent act of December 24, 1892, ratifying and approving the contract of the board of directors of the state penitentiary with the defendant. The contract of the defendant is set up in the complaint, and although the act of December, 1892, ratifying the same, is not set up there, it appears in the answer, and is relied upon as validating the contract; so that, reading the complaint and answer together, the question whether the contract of the plaintiff was impaired by subsequent state action appears on the face of the pleadings.