George Sutherland

“ The proviso for a forfeiture in the one case is at least strongly persuasive of an intention not to impose it in other cases not so qualified. When, in addition to this, we consider all the circumstances, including the fact that the sale to the defendant was absolute and for a valuable consideration, that there are no express terms creating a condition, no clause of re-entry nor words of any sort indicating such purpose, the conclusion is unavoidable that the obligation in quest on is a covenant and not a condition subsequent. ”

“ Under this statute the canal was sold to defendant's pr decessor, whose title the defendant now has.
The case turns upon the provision contained in section 7, requiring the trustees, as soon as practicable, to complete the canal down to the Congaree river, and depends upon whether this is a condition subsequent, the failure to perform which incurs a forfeiture, or is a covenant the breach of which gives rise to another form of remedy. That the provision has not been complied with is not disputed. ”

“ The company has never accepted such a construction, but, on the contrary, has always opposed it, and raises the question in this proceeding at the very outset. Upon these facts this court has jurisdiction, and it is its duty to determine for itself the existence, construction and validity of the alleged contract, and also to determine whether, as construed by this court, it has been impaired by any subsequent state legislation to which effect has been given by the court below. Bridge Proprietors v. Hoboken Company, 1 Wall. 116; University v. People, 99 U.S. 309 ”

“ If this requirement, nevertheless, be construed as a condition subsequent, there can be no rational ground for holding that the other obligations of the contract are not susceptible of a like construction. Among these obligations is that requiring the completion of the canal to Gervais street in two years; but the express provision for a forfeiture for failure to complete it in seven years, negatives, as a matter of logical necessity, any suggestion that a forfeiture would be incurred for a failure to complete in two years. ”

“ Prior to the year 1887 a small canal, following the course of the one now in question was owned by the state; the title being vested in the board of directors of the state penitentiary. In 1887 the Legislature passed an act incorporating the board of canal trustees, to whom the penitentiary directors were required to and did transfer the canal. 19 Stat. ”

“ Fisk v. Jefferson Police Jury, 116 U.S. 131; New Orleans Water Works Company v. Louisiana Sugar Refining Company, 125 U.S. 18; Central Land Company v. Laidley, 159 U.S. 103, 109; Bacon v. Texas, 163 U.S. 207, 216 ”