When the highest court of a state holds a judgment of an
inferior court of that state to be final, this Court can hardly
consider it in any other light in exercising its appellate
jurisdiction.
A ferry connecting Wheeling with wheeling Island was licensed at
an early day in Virginia. Subsequently a general law of that state
prohibited
Page 138 U. S. 288
the courts of the different counties from licensing a ferry
within a half a mile in a direct line from an established ferry. In
1847, the defendant purchased the ferry and its rights.
Held:
(1) That the general law of Virginia had in it nothing in the
nature of a contract.
(2) That the transfer of the existing rights from the vendor to
the vendee added nothing to them.
An alleged surrender or suspension of a power of government
respecting any matter of public concern must be shown by clear and
unequivocal language; it cannot be inferred from any inhibitions
upon particular officers or special tribunals, or from any doubtful
or uncertain expressions.
This was a motion to dismiss or affirm. The case was thus stated
by the court.
This was a proceeding commenced by petition in a court of West
Virginia by the Wheeling Bridge Company, a corporation under the
laws of that State, to condemn for its use a parcel of ground owned
by the Wheeling and Belmont Bridge Company, a corporation formed
under the laws of Virginia, of which the territory composing West
Virginia was then a part. The petitioner represented that it was
created a corporation for the purpose of constructing and
maintaining a bridge across the Ohio River from a point on the east
side of its main channel north of the public landing in the City of
Wheeling to a point nearly opposite on Wheeling Island in that city
-- the bridge to be for public use, and that in order to construct
it and its approaches, it was necessary to build over and to take a
parcel of land belonging to the Wheeling and Belmont Bridge Company
on Wheeling Island, which parcel was described in the petition and
designated on an accompanying plat, and contained about thirty
perches.
The petitioner averred that there was no lien or charge upon the
parcel of land, that it was unable to agree with the Wheeling and
Belmont Bridge Company on the terms of purchase, and that the land
was necessary for the construction of the proposed bridge and the
approaches to it. It therefore prayed that notice might be given to
the Wheeling and Belmont Bridge Company of the filing of the
application, and
Page 138 U. S. 289
that the same would be heard on a day designated, that
commissioners be appointed by the court to ascertain what would be
a just compensation for the land, and that upon the payment of the
compensation thus ascertained, the title might be vested in the
petitioner.
To this petition the Wheeling and Belmont Bridge Company
appeared and tendered seven pleas, in the first four of which the
defendant joined issue, raising the question of the necessity of
the parcel of land desired for the purpose of maintaining the
proposed bridge of the petitioner and its approaches, and of the
necessity of the parcel and certain structures thereon for the
proper exercise by the defendant of its franchise. The issues were
found in favor of the petitioner by a jury, establishing the fact
that the land desired was essential to the proposed work of the
petitioner and was not essential to the proper exercise of the
franchise of the defendant. No questions were raised as to the
correctness of the rulings upon the trial of these issues -- at
least none which can be considered by this Court.
The other three pleas raised the question of the power of the
legislature to authorize the construction of a new bridge within
half a mile either way from the bridge of the defendant to
transport persons and property across the Ohio River, the defendant
contending that by its charter and the privileges of owners of
ferries which it had acquired, it had become invested with the
exclusive right to thus transport persons and property within that
distance of its bridge. The court held the pleas insufficient and
rejected them, and rendered judgment sustaining the proceedings for
the condemnation of the property, adjudging that it was necessary
for the petitioner to take it for the purpose of prosecuting its
proposed work, and was not necessary to the defendant for the
exercise of its franchise. The court thereupon named commissioners
to ascertain what would be just compensation for the land. A writ
of error was subsequently allowed, the proceedings of the
commissioners stayed, and the case taken to the Supreme Court,
where the judgment of the lower court was affirmed. To review this
latter judgment the case was brought here.
Page 138 U. S. 290
MR. JUSTICE FIELD, after stating the facts as above, delivered
the opinion of the Court.
The defendant in error, the plaintiff below, moves in the
alternative to dismiss the appeal on the ground that the judgment
recovered is not final, or to affirm the judgment on the ground of
the manifest insufficiency of the errors assigned. The essential
points of contention in the case related to the necessity of the
property for the purpose of the petitioner, and to its necessity to
the defendant for the proper exercise of its franchise. The
judgment for the condemnation was conclusive upon both particulars.
A right to condemn, as held by the supreme court of the state, is
to be determined before the appointment of commissioners to
estimate the amount of compensation to be made.
Baltimore &
Ohio Railroad v. Pittsburgh, Wheeling &c. Railroad, 17
W.Va. 812. If the judgment had been different, all further
proceedings would have been ended. Being for the condemnation, the
estimate of the compensation, which was to follow, was to be made
by commissioners, to be appointed, and might therefore be treated
as being a distinct proceeding. The judgment appears to have been
considered by that court as so far final as to justify an appeal
from it, and if the supreme court of a state holds a judgment of an
inferior court of the state to be final, we can hardly consider it
in any other light in exercising our appellate jurisdiction. The
motion to dismiss must therefore be denied. But upon the motion to
affirm, other considerations arise upon the fifth, sixth, and
seventh special pleas, which were held insufficient, and
rejected.
The fifth special plea sets forth in substance that the
defendant was organized under a charter from the State of Virginia
to erect a bridge across the Ohio River at or near the Town of
Wheeling; that in pursuance of the charter, it erected, and has for
many years maintained for public use,
Page 138 U. S. 291
in consideration of tolls lawfully exacted, a wire suspension
bridge extending from the eastern shore of the river at Tenth
Street in the city of Wheeling to the eastern shore of Zane's or
Wheeling Island; that it was empowered by the legislature to
purchase acquire, and hold all ferry rights and privileges between
Zane's Island and the main Virginia shore at the City of Wheeling;
that in the year 1847, there was, and for many years had been,
between those points, a ferry maintained and owned by certain
parties named, together with the rights and privileges by law
incident thereto; that in September, 1847, it acquired by purchase
from them the said ferry and the rights and privileges thereof, and
has since owned and enjoyed the same; that its present toll bridge
was erected and has been maintained substantially in the location
of the ferry, and by the use of the bridge for the public it has
kept in full force and vigor the rights and privileges appertaining
to the ferry. The plea also sets forth that at the time when the
defendant acquired the ferry and the rights and privileges incident
thereto, one of them was the exclusive right to transport persons,
animals, and vehicles across the Ohio River within the limits of
one-half a mile from the ferry, and that the bridge proposed to be
built by the petitioner is to be located, and the whole parcel of
land proposed to be condemned is situated, within half a mile of
the said ferry and of the defendant's bridge. The sixth special
pleas embodies substantially the averments of the fifth, with an
additional one to the effect that out of the powers and authorities
granted to the defendant and the acquisition by it of the said
ferry and the rights, privileges, and franchises thereof, a
contract arose between the State of Virginia and the defendant that
it should have and enjoy during its chartered existence the
exclusive privilege of transporting persons, animals, and vehicles
across the Ohio River at all points within half a mile of the
location of the ferry; that upon the formation of the State of West
Virginia, it became a party to the contract, and is bound by it,
but that the legislature of the state, not regarding its
obligations, in March, 1882, passed an act providing that
corporations might be formed
Page 138 U. S. 292
for the purpose of erecting and maintaining toll bridges over
the Ohio River for the transportation of persons, vehicles, and
other things, and that no ferry privileges or franchises should
preclude the erection of such bridges or entitle the owner to
damages by reason thereof. The defendant avers that this act of the
Legislature of West Virginia is unconstitutional and void as
impairing the obligation of the contract between west Virginia and
Virginia and the defendant. The seventh special plea adds nothing
material to the averments of the other two.
The contention of the defendant is that by the acquisition of
the ferry and its privileges and the authority to construct its
bridge, it has the exclusive right to transport passengers,
animals, and vehicles over the Ohio River at all points within a
half a mile of the bridge. The ferry which it purchased -- the one
connecting the mainland with Wheeling Island -- was licensed at an
early day, and no exclusive privileges, such as are claimed now,
were then attached to the franchise. The subsequent general law of
Virginia, passed in 1840, prohibiting the courts of the different
counties from licensing a ferry within half a mile in a direct line
from an established ferry, had in it nothing of the nature of a
contract. It was a gratuitous proceeding on the part of the
legislature, by which a certain benefit was conferred upon existing
ferries, but not accompanied by any conditions that made the act
take the character of a contract. It was a matter of ordinary
legislation, subject to be repealed at any time when, in the
judgment of the legislature, the public interest should require the
repeal. The mere purchase by the defendant of existing rights and
privileges added nothing to them. It would be absurd to suppose
that the transfer from vendor to vendee gave them any additional
force or validity. Here, the prohibition of the act of 1840 was
only upon the county courts, and that in no way affected the
legislative power of the state.
Fanning v.
Gregoire, 16 How. 524. Nor did the charter of the
defendant contain any inhibition upon the state to authorize the
establishment of another bridge within the distance claimed
whenever the public interest should require it. An alleged
surrender
Page 138 U. S. 293
or suspension of a power of government respecting any matter of
public concern must be shown by clear and unequivocal language; it
cannot be inferred from any inhibitions upon particular officers or
special tribunals, or from any doubtful or uncertain expressions.
As was said substantially in the case of
Charles
River Bridge v. Warren Bridge, 11 Pet. 420,
36 U. S. 548,
whenever it is alleged that a state has surrendered or suspended
its power of improvement and public accommodation on an important
line of travel along which a great number of persons must daily
pass, the community has a right to insist that its surrender or
suspension shall not be admitted, in a case in which the deliberate
purpose of the state to make such surrender or suspension does not
appear, referring to several adjudications of this Court in support
of the doctrine. And whatever of exclusiveness there was in the
privilege extended by the act of 1840 within half a mile on each
side of an established ferry was repealed in 1882. From that time,
the defendant could claim no exclusive privilege to transport
passengers, animals, and vehicles over the Ohio River within the
distance mentioned under the repealed statute, even if it could
have done so before.
Judgment affirmed.
