A bridge, held by an incorporated company, under a charter from
a state, may be condemned and taken as part of a public road under
the laws of that state.
This charter was a contract between the state and the company,
but, like all private rights, it is subject to the right of eminent
domain in the state.
The Constitution of the United States cannot be so construed as
to take away this right from the states.
Nor does the exercise of the right of eminent domain interfere
with the inviolability of contracts. All property is held by tenure
from the state, and all contracts are made subject to the right of
eminent domain. The contract is, therefore, not violated by the
exercise of the right.
The Constitution of the United States intended to prohibit all
such laws impairing the obligation of contracts as interpolate some
new term or condition, foreign to the original agreement.
Property held by an incorporated company stands upon the same
footing with that held by an individual, and a franchise cannot be
distinguished from other property.
In 1795, the Legislature of Vermont passed on act entitled, "An
act granting to John W. Blake, Calvin Knowlton, and their
associates, the privilege of building a toll bridge over West River
in Brattleboro."
The first section enacted that Blake, Knowlton, and their
associates should be and continue a body politic and corporate by
the name of the West River Bridge Company for one hundred years,
and that they should have the exclusive privilege of erecting and
continuing a bridge over West River within four miles from the
place where said stream united with Connecticut River.
Page 47 U. S. 508
The second section fixed the rate of tolls.
The third section enacted that at the expiration of forty years
from 1 December, 1796, the judges of the supreme court should
appoint commissioners to examine the books and accounts of the
company, and if it should appear that the net proceeds should have
averaged a larger sum than twelve percent per annum, the judges
should lessen the tolls, provided they did not reduce them so low
as to prevent the proprietors from receiving twelve percent
The remaining sections provided for the government of the
company, for their keeping the bridge in good repair &c.
During the years 1795, 1796, and 1797, the company built the
bridge.
In 1799, Josiah Arms conveyed to the company a small piece of
land, about two acres, lying on the south bank of West River.
In 1803, the legislature passed a supplement to the charter,
which altered the rate of tolls, but left the remaining parts of it
unaltered.
In November, 1839, the legislature passed an act entitled, "An
act relating to highways," in and whereby it was enacted and
provided, that
"whenever there shall be occasion for any new highway in any
town or towns in this state, the supreme and county courts shall
have the same power to take any real estate, easement, or franchise
of any turnpike, or other corporation, when, in their judgment, the
public good requires a public highway, which such courts now have,
by the laws of this state, to lay out highways over individual or
private property; and the same power is granted, and the same rules
shall be observed, in making compensation to all such corporations
and persons, whose estate, easement, franchise, or rights shall be
taken, as are now granted and provided in other cases, provided
that no such real estate, easement, or franchise shall be taken in
the manner and for the purposes aforesaid, unless the whole of such
real estate, easement, or franchise belonging to said corporation
shall be taken, and compensation made therefor."
On 25 August, 1842, Joseph Dix and fifty-four other persons
presented the following petition to the County Court for the County
of Windham:
"That the public highway or stage road, leading from the stage
house of Henry Smith, in Brattleboro, through the northerly part of
said town, and through the Town of Dummerston, to the south line of
Putney, in said county, has for a long time been a subject of great
complaint, both on account of the steep and dangerous hills and the
great difficulty of keeping the same in repair, as now traveled.
That various and repeated
Page 47 U. S. 509
attempts have been made to improve the same, with little
success. Your petitioners further represent that, from actual
survey and admeasurement, they are confident a highway may be laid
between said termini and made at a moderate expense which will
avoid most of the hills and be perfectly satisfactory to the
public. Your petitioners are aware that some alterations have
recently been made on said route by a committee of this court, upon
the petition of Paul Chase and others, and that indictments are now
pending against said towns for not making the same, but your
petitioners believe that said committee, in ordering said
alterations, are influenced by the solicitations of interested
individuals, rather than the public good, and that if said
alterations are worked, they would form but little improvements,
and that the public will never be satisfied until said highway is
laid on the best possible route, and further that it will cost as
much to make said alterations (which we consider to be useless), as
it will to make a good traveling road on the route contemplated by
the petition."
"And your petitioners further represent that the toll bridge
across West River, on said route in Brattleboro', owned by the West
River Bridge Corporation is, and for a long time has been, a sore
grievance, both to the traveler and the inhabitants of the towns in
the vicinity who have occasion to pass and repass, travel and
labor, on said highway, and however the legislature in the infancy
of the state may have exercised a sound discretion in granting said
toll bridge, yet, in the present improved and thriving condition of
the inhabitants, your petitioners are unable to discover any good
reason why said grievance should longer be endured or why the
wealthy Town of Brattleboro' should not, as well as other towns
much less able, sustain a free bridge across West River. Your
petitioners therefore pray the court, by an able, judicious, and
disinterested committee, to cause said route to be surveyed and
such alterations and improvements to be made in the old road, or a
new one to be laid, as the public good may require, and also to
take the real estate, easement, or franchise of the 'West River
Bridge Company,' a corporation owning the aforesaid toll bridge,
for the purpose of making a free road and bridge across said river
agreeable to the statute in such case made and provided, and as in
duty bound will ever pray."
In conformity with the above prayer, the court appointed three
persons to examine the premises and make report.
In May, 1843, the commissioners reported that they had examined
the premises and were unanimously of opinion that a new road ought
to be laid out over a considerable portion of the distance between
the termini mentioned in the petition,
Page 47 U. S. 510
which road, they said, they had caused to be surveyed and laid
out. The report then proceeded as follows:
"The said commissioners also examined the toll bridge across
West River in Brattleboro', and have taken into consideration the
propriety of laying a free road across said bridge, at the expense
of said Town of Brattleboro', as contemplated by said petition, and
in this the said commissioners were unanimously of the opinion that
public good required that the real estate, easement, or franchise
of the West River Bridge Corporation should be taken and
compensation made therefor, that said toll bridge might thereafter
become a free bridge. The said commissioners have therefore
assessed to the said West River Bridge Corporation the sum of four
thousand dollars, to be paid to the said West River Bridge
Corporation out of the treasury of said Town of Brattleboro', in
full compensation for all real estate, easement, or franchise
belonging to said corporation, which real estate, easement, or
franchise is situate in said Town of Brattleboro', near the mouth
of West River, and is supposed to be more particularly described in
a deed from Josiah Ames to the West River Bridge Company dated on 1
April in the year seventeen hundred and ninety-nine, and recorded
in Brattleboro' records of deeds, liber D, page 203, containing two
acres of land, be the same more or less, with a covered bridge,
gate, toll house, barn, and other buildings thereon."
"THOMAS F. HAMMOND"
"JULIUS CONVERSE"
"ISAAC N. CUSHMAN"
"
Commissioners"
To this report the West River Bridge Company, the Town of
Brattleboro', of Dummerston, and the persons who were entitled to
damages for the loss of land &c., all filed objections.
The Town of Brattleboro' filed five objections, the last of
which was as follows:
"5. Because it does not appear from said report, and is not true
in fact, that there was or that said commissioners considered that
there was any occasion for any new highway on said route within a
great distance -- to-wit, within two miles of said bridge."
The Town of Dummerston filed ten objections, the first four of
which are as follows:
"1. Because said commissioners proceeded in said report to
discontinue the Indited Road, so called, a road of which the
petition of Joseph Dix and others did not ask the
discontinuance,
Page 47 U. S. 511
a road which said town was then liable to make and has since
raised money to make."
"2. Because the acceptance of said report would render the
maintenance of two roads necessary through a large part of the
town, while the natural difficulties are so great, that, with only
one, the burdens of said town, when compared with its means, are
unusually onerous."
"3. That said surveyed route, or Nurse Swamp route, so-called,
is a longer, more wet, and more expensive route between the termini
in question."
"4. That said commissioners were partial, prejudiced, and
mistaken, and acted under the influence of misrepresentations made
by interested persons."
The persons to whom damages were awarded by the report were
fifteen in number. Eleven of these filed six objections, the first
of which was as follows:
"1. Because the said commissioners were partial, prejudiced, and
mistaken, and acted under the misrepresentations made by interested
persons."
The West River Bridge Company filed seven objections, the sixth
of which stated the charter, their observance of it, and their
desire for its continuance.
In November, 1843, the case was tried, and the report of the
commissioners was accepted. The two towns were ordered to pay the
damages awarded to the persons through whose lands the road was
laid out, and
"the Town of Brattleboro' to pay to the West River Bridge
Company the sum of damages, as assessed by said commissioners, by
31 May, 1844, and that said bridge be opened for the free public
travel by 1 June, 1844."
In February, 1844, a writ of certiorari was sued out from the
supreme court whereby the whole proceedings of the county court
were brought up for review. Upon the argument, the West River
Bridge Company, in addition to the exceptions which they had
presented to the court below, filed the two following:
"First. That the said statute of this state, having been enacted
long after the said grant by the same state of the said franchise
of toll to the said West River Bridge Corporation and long after
the said grant was accepted and acted on by the said corporation,
is of no validity for the purpose of authorizing the taking of the
said franchise against the consent of said corporation or the
laying out of a free public highway over and upon the said bridge,
on the ground that the said statute, if it purports to authorize
the proceedings aforesaid, is a violation of the contract of this
state with the said corporation and is
Page 47 U. S. 512
therein repugnant to that clause of the Constitution of the
United States which provides that no state shall pass any law
impairing the obligation of contract."
"Secondly. That inasmuch as it is apparent upon the said record,
and proofs filed in said cause, copies of which are hereunto
annexed, that there is no occasion for any new highway within the
said Town of Brattleboro' near said bridge, and that no new highway
is in fact laid out or adjudged to be laid out within the distance
of two miles from either terminus of said bridge, and that the
damages awarded to the said West River Bridge Company are grossly
inadequate as a compensation for the value of the corporate
franchise, and other property adjudged to be taken, the taking of
the said franchise and laying out of the said free public highway
over and upon the said bridge by the judgment of the said county
court under such circumstances a mere evasion under color of law of
the said provision of the Constitution of the United States and an
exercise of authority under this state which is wholly invalid as
against the said West River Bridge Company, on the ground of its
being repugnant to the constitutional provisions aforesaid."
The supreme court passed the following judgment:
"And thereupon, after hearing the respective parties by their
counsel upon their respective allegations and the said exceptions
in said record contained, it is considered, ordered, and adjudged
by the Court here that the statute aforesaid was and is valid for
the purpose of taking the said franchise and laying out the said
free public highway over and upon the said bridge, and that the
same was and is in no wise repugnant to the Constitution of the
United States, and that the said proceedings of the said county
court were a lawful exercise of the authority of the state under
the said statute and neither repugnant to nor an evasion of the
provisions of the said Constitution, and that there is no error in
the record and proceedings aforesaid, and that the said defendant
parties recover their costs."
To review this judgment, a writ of error brought the case up to
this Court.
Page 47 U. S. 529
MR. JUSTICE DANIEL delivered the opinion of the Court.
These two causes have been treated in the argument as one,
Page 47 U. S. 530
and such they essentially are. Though prosecuted in different
forms and in different forums below, they are merely various modes
of endeavoring to attain the same end, and a decision in either of
the only question they raise for the cognizance of this Court
disposes equally of that question in the other.
They are brought before us under the twenty-fifth section of the
Judiciary Act in order to test the conformity with the Constitution
of the United States of certain statutes of Vermont, laws that have
been sustained by the Supreme Court of Vermont but which it is
alleged are repugnant to the tenth section of the first article of
the Constitution, prohibiting the passage of state laws impairing
the obligation of contracts.
It appears from the records of these causes that in the year
1795, the plaintiffs in error were, by act of the Legislature of
Vermont, created a corporation and invested with the exclusive
privilege of erecting a bridge over West River within four miles of
its month, and with the right of taking tolls for passing the same.
The franchise granted this corporation was to continue for one
hundred years, and the period originally prescribed for its
duration has not yet expired. The corporation erected their bridge,
has maintained and used it, and enjoyed the franchise granted to
them by law, until the institution of the proceeding now under
review.
By the general law of Vermont relating to roads, passed 19
November, 1839, (
vide Revised Laws of Vermont 553), the
county courts are authorized upon petition to appoint commissioners
to lay out highways within their respective counties and to assess
the damages which may accrue to landholders by the opening of
roads, and these courts, upon the reports of the commissioners so
appointed, are empowered to establish roads within the bounds of
their local jurisdiction. A similar power is vested in the supreme
court to lay out and establish highways extending through several
counties.
By an Act of the Legislature of Vermont passed November 19,
1839, it is declared that
"Whenever there shall be occasion for any new highway in any
town or towns of this state, the supreme and county courts shall
have the same power to take any real estate, easement, or franchise
of any turnpike or other corporation, when in their judgment the
public good requires a public highway, which such courts now have,
by the laws of the state, to lay out highways over individual or
private property, and the same power is granted and the same rules
shall be observed in making compensation to all such corporations
and persons whose estates, easement, franchise, or rights shall be
taken as are now granted and provided in other
Page 47 U. S. 531
cases."
Under the authority of these statutes and in the modes therein
prescribed, a proceeding was instituted in the County Court of
Windham upon the petition of Joseph Dix and others in which, by the
judgment of that court, a public road was extended and established
between certain termini, passing over and upon the bridge of the
plaintiffs and converting it into a free public highway. By the
proceedings and judgment just mentioned, compensation was assessed
and awarded to the plaintiffs for this appropriation of their
property and for the consequent extinguishment of their franchise.
The judgment of the county court, having been carried by certiorari
before the supreme court of the state, was by the latter tribunal
affirmed.
Pending the proceedings at law upon the petition of Dix and
others, a bill was presented by the plaintiffs in error to the
Chancellor of the First Judicial Circuit of the State of Vermont
praying an injunction to those proceedings so far as they related
to the plaintiffs or to the real estate, easement, or franchise
belonging to them. This bill, having been demurred to, was
dismissed by the chancellor, whose decree was affirmed on appeal to
the supreme court, and a writ of error to the last decision brings
up the case on the second record.
In considering the question propounded in these causes, there
can be no doubt, nor has it been doubted in argument, on either
side of this controversy, that the charter of incorporation granted
to the plaintiffs in 1793, with the rights and privileges it
declared or implied, formed a contract between the plaintiffs and
the State of Vermont which the latter, under the inhibition in the
tenth section of the first article of the Constitution, could have
no power to impair. Yet this proposition, though taken as a
postulate on both sides, determines nothing as to the real merits
of these causes. True, it furnishes a guide to our inquiries, yet
leaves those inquiries still open in their widest extent as to the
real position of the parties with reference to the state
legislation or to the Constitution. Following the guide thus
furnished us, we will proceed to ascertain that position. No state,
it is declared, shall pass a law impairing the obligation of
contracts; yet with this concession constantly yielded, it cannot
be justly disputed, that in every political sovereign community
there inheres necessarily the right and the duty of guarding its
own existence and of protecting and promoting the interests and
welfare of the community at large. This power and this duty are to
be exerted not only in the highest acts of sovereignty and in the
external relations of governments; they reach and comprehend
likewise the interior polity and relations of social life, which
should be regulated with
Page 47 U. S. 532
reference to the advantage of the whole society. This power,
denominated the eminent domain of the state, is, as its name
imports, paramount to all private rights vested under the
government, and these last are by necessary implication held in
subordination to this power and must yield in every instance to its
proper exercise.
The Constitution of the United States, although adopted by the
sovereign states of this Union, and proclaimed in its own language
to be the supreme law for their government, can by no rational
interpretation be brought to conflict with this attribute in the
states; there is no express delegation of it by the Constitution,
and it would imply an incredible fatuity in the states to ascribe
to them the intention to relinquish the power of self-government
and self-preservation. A correct view of this matter must
demonstrate, moreover, that the right of eminent domain in
government in no wise interferes with the inviolability of
contracts; that the most sanctimonious regard for the one is
perfectly consistent with the possession and exercise of the
other.
Under every established government, the tenure of property is
derived mediately or immediately from the sovereign power of the
political body, organized in such mode or exerted in such way as
the community or state may have thought proper to ordain. It can
rest on no other foundation, can have no other guarantee. It is
owing to these characteristics only, in the original nature of
tenure, that appeals can be made to the laws either for the
protection or assertion of the rights of property. Upon any other
hypothesis, the law of property would be simply the law of force.
Now it is undeniable that the investment of property in the citizen
by the government, whether made for a pecuniary consideration or
founded on conditions of civil or political duty, is a contract
between the state, or the government acting as its agent, and the
grantee, and both the parties thereto are bound in good faith to
fulfill it. But into all contracts, whether made between states and
individuals or between individuals only, there enter conditions
which arise not out of the literal terms of the contract itself;
they are superinduced by the preexisting and higher authority of
the laws of nature, of nations, or of the community to which the
parties belong; they are always presumed, and must be presumed, to
be known and recognized by all, are binding upon all, and need
never, therefore, be carried into express stipulation, for this
could add nothing to their force. Every contract is made in
subordination to them, and must yield to their control, as
conditions inherent and paramount, wherever a necessity for their
execution shall occur. Such a condition is the right of eminent
Page 47 U. S. 533
domain. This right does not operate to impair the contract
effected by it, but recognizes its obligation in the fullest
extent, claiming only the fulfillment of an essential and
inseparable condition.
Thus, in claiming the resumption or qualification of an
investiture, it insists merely on the true nature and character of
the right invested. The impairing of contracts inhibited by the
Constitution can scarcely, by the greatest violence of
construction, be made applicable to the enforcing of the terms or
necessary import of a contract; the language and meaning of the
inhibition were designed to embrace proceedings attempting the
interpolation of some new term of condition foreign to the original
agreement, and therefore inconsistent with and violative thereof.
It then being clear that the power in question not being within the
purview of the restriction imposed by the tenth section of the
first article of the Constitution, it remains with the states to
the full extent in which it inheres in every sovereign government,
to be exercised by them in that degree that shall be them be deemed
commensurate with public necessity. So long as they shall steer
clear of the single predicament denounced by the Constitution,
shall avoid interference with the obligation of contracts, the
wisdom, the modes, the policy, the hardship of any exertion of this
power are subjects not within the proper cognizance of this Court.
This is, in truth, purely a question of power, and conceding the
power to reside in the state government, this concession would seem
to close the door upon all further controversy in connection with
it. The instances of the exertion of this power, in some mode or
other, from the very foundation of civil government have been so
numerous and familiar that it seems somewhat strange at this day to
raise a doubt or question concerning it. In fact the whole policy
of the country relative to roads, mills, bridges, and canals rests
upon this single power, under which lands have been always
condemned, and without the exertion of this power not one of the
improvements just mentioned could be constructed. In our country it
is believed that the power was never, or at any rate rarely,
questioned, until the opinion seems to have obtained that the right
of property in a chartered corporation was more sacred and
intangible than the same right could possibly be in the person of
the citizen -- an opinion which must be without any grounds to rest
upon until it can be demonstrated either that the ideal creature is
more than a person or the corporeal being is less. For as a
question of the power to appropriate to public uses the property of
private persons, resting upon the ordinary foundations of private
right, there would seem to be room neither for doubt nor
difficulty.
A distinction
Page 47 U. S. 534
has been attempted in argument between the power of a government
to appropriate for public uses property which is corporeal or may
be said to be in being and the like power in the government to
resume or extinguish a franchise. The distinction thus attempted we
regard as a refinement which has no foundation in reason, and one
that in truth avoids the true legal or constitutional question in
these causes -- namely that of the right in private persons, in the
use or enjoyment of their private property, to control and actually
to prohibit the power and duty of the government to advance and
protect the general good. We are aware of nothing peculiar to a
franchise which can class it higher or render it more sacred than
other property. A franchise is property, and nothing more; it is
incorporeal property, and is so defined by Justice Blackstone when
treating, in his second volume, chap. 3, page 20, of the Rights of
Things. It is its character of property only which imparts to it
value and alone authorizes in individuals a right of action for
invasions or disturbances of its enjoyment.
Vide Bl.Comm.,
Vol. III, chap. 16, 236, as to injuries to this description of
private property, and the remedies given for redressing them. A
franchise, therefore, to erect a bridge, to construct a road, to
keep a ferry and to collect tolls upon them, granted by the
authority of the state, we regard as occupying the same position,
with respect to the paramount power and duty of the state to
promote and protect the public good, as does the right of the
citizen to the possession and enjoyment of his land under his
patent or contract with the state, and it can no more interpose any
obstruction in the way of their just exertion. Such exertion we
hold to be not within the inhibition of the Constitution and no
violation of a contract. The power of a state, in the exercise of
eminent domain, to extinguish immediately a franchise it had
granted appears never to have been directly brought here for
adjudication, and consequently has not been heretofore formally
propounded from this Court; but in England this power to the
fullest extent was recognized in the case of
Governor and
Company of the Cast Plate Manufacturers v. Meredith, 4 Term
794, and Lord Kenyon, especially in that case, founded solely upon
this power the entire policy and authority of all the road and
canal laws of the Kingdom.
The several state decisions cited in the argument, from 3
Paige's Chancery 45, from 23 Pickering 361, from 17 Conn. 454, from
8 N.H. 398, from 10 N.H. 371, and 11 N.H. 20, are accordant with
the decision above mentioned, from 4 Durnford & East and
entirely
Page 47 U. S. 535
supported by it.
One of these state decisions, namely the case of
Enfield
Toll Bridge Company v. Hartford & New Haven Railroad
Company, 17 Conn., places the principle asserted in an
attitude so striking, as seems to render that case worthy of a
separate notice. The Legislature of Connecticut, having previously
incorporated the Enfield Bridge Company, inserted in a charter
subsequently granted by them to the Hartford and Springfield
Railroad Company a provision in these words -- "That nothing
therein contained shall be construed to prejudice or impair any of
the rights now vested in the Enfield Bridge Company." This
provision, comprehensive as its language may seem to be, was
decided by the supreme court of the state as not embracing any
exemption of the bridge company from the legislative power of
eminent domain with respect to its franchise, but to declare this,
and this only -- that notwithstanding the privilege of constructing
a railroad from Hartford to Springfield in the most direct and
feasible route, granted by the latter charter, the franchise of the
Enfield Bridge Company should remain as inviolate as the property
of other citizens of the state. These decisions sustain clearly the
following positions, comprised in this summary given by Chancellor
Walworth, 3 Paige 73, where he says that
"notwithstanding the grant to individuals, the eminent domain,
the highest and most exact idea of property, remains in the
government or in the aggregate body of the people in their
sovereign capacity, and they have a right to resume the possession
of the property in the manner directed by the constitution and laws
of the state whenever the public interest requires it. This right
of resumption may be exercised not only where the safety, but also
where the interest or even the expediency of the state is
concerned."
In these positions, containing no exception with regard to
property in a franchise (an exception which we should deem to be
without warrant in reason), we recognize the true doctrines of the
law as applicable to the cases before us. In considering the
question of constitutional power -- the only question properly
presented upon these records -- we institute no inquiry as to the
adequacy or inadequacy of the compensation allowed to the
plaintiffs in error for the extinguishment of their franchise; nor
do we inquire into the conformity between the modes prescribed by
the statutes of Vermont and the proceedings which actually were
adopted in the execution of those statutes; these are matters
regarded by this Court as peculiarly belonging to the tribunals
designated by the state for the exercise of her legitimate
authority, and as being without the province assigned to this Court
by the Judiciary Act.
Page 47 U. S. 536
Upon the whole, we consider the authority claimed for the State
of Vermont, and the exertion of that authority which has occurred
under the provisions of the statutes above mentioned, by the
extinguishment of the franchise previously granted the plaintiffs,
as set forth upon the records before us, as presenting no instance
of the impairing of a contract within the meaning of the tenth
section of the first article of the Constitution, and consequently
no case which is proper for the interposition of this Court. The
decisions of the Supreme Court of Vermont are therefore
Affirmed.
MR. JUSTICE McLEAN.
As this is a constitutional question of considerable practical
importance, I will state succinctly my general views on the
subject.
The West River Bridge, under the statutes of Vermont, was
appropriated to public purposes. And it is alleged that the charter
under which the bridge was built and possessed by such
appropriation was impaired. Our inquiry is limited to this point.
For whatever injury the proceedings may have done to the interests
of the corporation, unless its contract with the state was
impaired, we have no jurisdiction of the case.
The power in a state to take private property for public use is
undoubted. It is an incident to sovereignty, and its exercise is
often essential to advance the public interests. This act is done
under the regulations of the state. If those regulations have not
been strictly observed, that is not a matter of inquiry for this
Court. The local tribunals have the exclusive power in such
cases.
This act by a state has never been held to impair the
obligations of the contract by which the property appropriated was
held. The power acts upon the property, and not on the contract. A
state cannot annul or modify a grant of land fairly made. But it
may take the land for public use. This is done by making
compensation for the property taken, as provided by law. But if it
be an appropriation of property to public use, it cannot be held to
impair the obligations of the contract.
It is insisted that this was a pretended exercise of the power
of the eminent domain with the view of destroying the force and
obligation of the plaintiffs' charter.
This whole proceeding was under a standing law of the state, and
it was sanctioned, on an appeal, by the supreme court of the state.
A procedure thus authorized by law and sanctioned cannot be lightly
regarded. It has all the solemnities of a sovereign act.
Page 47 U. S. 537
But it is said that the franchise of the plaintiff cannot be
denominated property; that "it included the grant of no property
real or personal; that it lay in grant, and not in livery."
If the action of the state had been upon the franchise only,
this objection would be unanswerable. The state cannot modify or
repeal a charter for a bridge, a turnpike road, or a bank, or any
other private charter, unless the power to do so has been reserved
in the original grant. But no one doubts the power of the state to
take a banking house for public use, or any other real or personal
property owned by the bank. In this respect a corporation holds
property subject to the eminent domain the same as citizens. The
great object of an act of incorporation is to enable a body of men
to exercise the faculties of an individual. Peculiar privileges are
sometimes vested in the body politic with the view of advancing the
convenience and interests of the public.
The franchise, no more than a grant for land, can be annulled by
the state. These muniments of right are alike protected. But the
property held under both is held subject to a public necessity, to
be determined by the state. In either case the property being taken
renders valueless the evidence of right. But this does not, in the
sense of the Constitution, impair the contracts. The bridge and the
ground connected with it, together with the right of exacting toll,
are the elements which constitute the value of the bridge. The
situation and productiveness of the soil constitute the value of
land. In both cases, an estimate is made of the value, under
prescribed forms, and it is paid when the property is taken for
public use. And in these cases, the evidences of right are
incidents to the property.
No state could resume a charter, under the power of
appropriation, and carry on the functions of the corporation. A
bank charter could not be thus taken and the business of the bank
continued for public purposes. Nor could this bridge have been
taken by the state and kept up by it as a toll bridge. This could
not be called an appropriation of private property to public
purposes. There would be no change in the use except the
application of the profits, and this would not bring the act within
the power. The power must not only be exercised
bona fide
by a state, but the property, not its product, must be applied to
public use.
It is argued that if the state may take this bridge, it may
transfer it to other individuals under the same or a different
charter. This the state cannot do. It would in effect be taking the
property from A to convey it to B. The public purpose for which the
power is exerted must be real, not pretended. If in the course of
time the property, by a change of
Page 47 U. S. 538
circumstances, should no longer be required for public use, it
may be otherwise disposed of. But this is a case not likely to
occur. The legality of the act depends upon the facts and
circumstances under which it was done. If the use of land taken by
the public for a highway should be abandoned, it would revert to
the original proprietor and owner of the fee.
It is objected that this bridge, being owned by a corporation
and used by the public, does not come within the designation of
private property. All property, whether owned by an individual or
individuals, a corporation aggregate or sole, is within the term.
In short, all property not public is private.
The use of this bridge, it is contended, is the same as before
the act of appropriation. The public use the bridge now as before
the act of appropriation. But it was a toll bridge, and by the act
it is made free. The use, therefore, is not the same. The tax
assessed on the citizens of the town, to keep up and pay for the
bridge, may be impolitic or unjust, but that is not a matter for
the consideration of this Court.
It is supposed, if this power is sustained by the State of
Vermont, it will be in the power of a state to seize the evidences
of its indebtment in the hands of its citizens, or within its
jurisdiction, have their value assessed, and, by paying the amount,
extinguish them. Such a case bears no analogy to the one before us.
The contract only is acted upon in the case supposed. The
obligation to pay the money by the state is materially impaired,
which brings the case within the Constitution. But the
appropriation of property affects the contract or title by which it
is held only incidentally. This, it is said, is an extremely
technical distinction and is not sustainable, as it enables a state
to do indirectly what the Constitution prohibits.
However nice the distinction may seem to be, when examined, it
will be found substantial.
The power of appropriation by a state has never been held by any
judicial tribunal as impairing the obligation of a contract in the
sense of the Constitution. And this power has been frequently
exercised by all the states, since the adoption of the
Constitution. In the fifth article of the amendments to the
Constitution it is declared, "Nor shall private property be taken
for public use without just compensation." This refers to the
action of the federal government, but a similar provision is
contained in all the state constitutions. Now the Constitution does
not prohibit a state from impairing the obligation of a contract
unless compensation be made, but the inhibition is absolute. So
that if such an act come within the prohibition, the act is
unconstitutional. But this power has been exercised by the states
since the foundation of the government, and no
Page 47 U. S. 539
one has supposed that it was prohibited by that clause in the
Constitution which inhibits a state "from impairing the obligations
of a contract."
The only reasonable result, therefore, to which we can come is
that the power in the state is an independent power, and does not
come within the class of cases prohibited by the Constitution.
This view gives effect to the Constitution in imposing a
salutary restraint upon legislation affecting contracts, but leaves
the states free in their exercise of the eminent domain, which
belongs to their sovereignties, is essential for the advancement of
internal improvements, and acts only upon property within their
respective jurisdictions. The powers do not belong to the same
class. That which acts upon contracts and impairs their obligation
only is prohibited.
MR. JUSTICE WOODBURY.
In the decisions of this Court on constitutional questions it
has happened frequently that, though its members were united in the
judgment, great differences existed among them in the reasons for
it, or in the limitations on some of the principles involved. Hence
it has been customary in such cases to express their views
separately. I conform to that usage in this case the more readily
as it is one of the first impression before this tribunal, very
important in its consequences, as a great landmark for the states
as well as the general government, and, from shades of difference
and even conflicts in opinion, will be open to some
misconstruction.
I take the liberty to say, then, as to the cardinal principle
involved in this case that in my opinion, all the property in a
state is derived from, or protected by, its government, and hence
is held subject to its wants in taxation, and to certain important
public uses, both in war and peace. Vattel, B. 1, ch. 20, § 244; 2
Kent Comm. 270; 37 Am.Jurist 121; 1 Bl.Comm. 139; 3 Wils. 303; 3
Story on Const. 661;
3 U.S.
3 Dall. 95. Some ground this public right on sovereignty. 2
Kent Comm. 339; Grotius, B. 1, ch. 1, § 6. Some on necessity. 2
Johns.Ch. 162; 11 Wend. 51; 14 Wend. 51; 1 Rice 383;
Vanhorne's Lessee v.
Dorrance, 2 Dall. 310;
Dyer v. Tuscaloosa
Bridge, 2 Porter 303;
Harding v. Goodlett, 3 Yerger
53. Some on implied compact.
Raleigh & Gaston Railroad Co.
v. Davis, 2 Dev. & Bat. 456; 2 Bay 36, in S.Car.; 3 Yerger
53. Where a charter is granted after laws exist to condemn property
when needed for public purposes, others might well rest such a
right on the hypothesis that such laws are virtually a part and
condition of the grant itself, as much as
Page 47 U. S. 540
if inscribed in it
totidem verbis. Towne v.
Smith, 1 Woodbury & Minot 134;
43 U. S. 2 How.
608,
43 U. S. 617;
42 U. S. 1 How.
311; 3 Story on Const. §§ 1377, 1378,
quaere.
But however derived, this eminent domain exists in all
governments, and distinguished from the public domain, as that
consists of public lands, buildings &c., owned in trust
exclusively and entirely by the government, 3 Kent Comm. 339;
Memphis v. Overton, 3 Yerger 389, while this consists only
in the right to use the property of others, when needed, for
certain public purposes. Without now going further into the reasons
or extent of it, and under whatever name it is most appropriately
described, I concur in the views of the Court that it still remains
in each state of the Union in a case like the present, having never
been granted to the general government so far as respects the
public highways of a state, and that it extends to the taking for
public use for a road any property in the state, suitable and
necessary for it.
Tuckahoe Canal Case, 11 Leigh 75;
36 U. S. 11
Pet. 560; 20 Johns. 724; 3 Paige Ch. 45; 7 Pick. 459. But whether
it could be taken without compensation where no provision exists
like that in the Fifth Amendment of the Constitution of the United
States, or that in the Vermont Constitution, somewhat similar, is a
more difficult question, and on which some have doubted. 4 D. &
E. 794; 1 Rice 383; 3 Leigh 337. I do not mean to express any
opinion on this, as it is not called for by the facts of this case.
But compensation from the public in such cases prevails generally
in modern times, and certainly seems to equalize better the burden.
2 U.S. 2 Dall. 310;
Pisc. Bridge v. Old Bridge, 7 N.H. 63; 4 D. & E. 794;
1 Nott & McCord 387;
Stokes v. Sup. Ass. Co., 3 Leigh
337; 11 Leigh 76;
Hartford Bridge, 17 Conn. 91; Vattel, B.
1, ch. 20, § 244; 3 Paige Ch. 45; 2 Dev. & Bat. 451; 2 Kent
Comm. 339, note;
Lex. & Oh. Railroad Vase, 8 Dana
289.
Nor shall I stop to discuss whether it is on this principle of
the eminent domain alone that private property has always been
taken for highways in England on making compensation, so as to be a
precedent for us. This was done there formerly, not as here, but by
a writ
ad quod damnum, and it was for ages issued before
the grant of any new franchise by the King, whether a road, ferry,
or market, and the inquiry related to the damage by it, whether to
the public or individuals. Fitz.N.B. 221; 3 Bac.Abr., Highways,
A.
Nor were alterations in roads, or even the widening or
discontinuing of them, allowed without it.
Thomas v.
Sorrel, Vaughan 314, 348, 349; Cooke, ch. 267; 6 Barn. &
Ald. 566.
Page 47 U. S. 541
But in modern times Parliament, by various laws, has authorized
all these after inquiry and compensation awarded by certain
magistrates. 1 Burr. 263; Camp. 648; Cro.Car. 266, 267; 5 Taunt.
634; Domat, B. 1, t. 8, § 2; 7 Adol. & Ellis 124.
And thus, notwithstanding the theoretical omnipotence of
Parliament, private rights and contracts have been in these
particulars, about compensation and necessity for public use, as
much respected in England as here.
So as to railroad companies as well as turnpikes under public
trustees, and as to common highways; the former are often
authorized there to erect bridges, and carry their roads over
turnpikes and other highways; but it is on certain conditions,
keeping them passable in that place or near, and on making
compensation.
Kemp v. L. & B. Railway Co., 1 Railway
Cases 505, and
Attorney General v. L. & S. Railroad, 1
id. 302, 224; 2
id. 711; 1 Gale & D. 324; 2
id. 1; 4 Jurist 966; 5
id. 652; 9 Dowling, P.C.
563; 7 Adol. & Ellis 124; 3 Maule & Selw. 526; 11 Leigh
42.
But I freely confess that no case has been found there by me
exactly in point for this, such as the taking of the road or bridge
of one corporation for another, or of taking for the public a
franchise of individuals connected with them. Though at the same
time I have discovered no prohibition of it, either on principle or
precedent, if making compensation and following the mode prescribed
by statute.
The peculiarity in the present case consists in the facts that a
part of the property taken belonged to a corporation of the state,
and not to an individual, and a part was the franchise itself of
the act of incorporation.
I concur in the views that a corporation created to build a
bridge like that of the plaintiffs in error is itself, in one
sense, a franchise. 2 Bl.Comm. 37;
Bank
of Augusta v. Earle, 13 Pet. 596;
17 U. S. 4
Wheat. 657; 7 Pick. 394; 11 Pet. 474, 454, 472, 490,
36 U. S. 641,
36 U. S. 645;
11 Leigh 76; 3 Kent Comm. 459. And in another sense that it
possesses franchises incident to its existence and objects, such as
powers to erect the bridge and to take tolls.
See same
cases.
I concur in the views also that such a franchise as the
incorporation is a species of property. 7 N.H. 66;
Tuckahoe
Canal Co. v. Tuckahoe & Camb. Railroad Co., 11 Leigh 76.
It is a legal estate vested in the corporation.
17 U. S. 4
Wheat. 700;
36 U. S. 11
Pet. 560. But it is often property distinct and independent of the
other property in land, timber, goods, or choses in action, which a
corporation, like a body not artificial, may own. 3 Bland 449; 11
Leigh 76.
Page 47 U. S. 542
It is also property subject to be sold, sometimes even on
execution,
semb., 4 Mass. 495; 11 Pet. 434, and may be
devised or inherited. 17 Conn. 60. And while I accede to the
principle urged by the counsel for the bridge that the act of
incorporation in this case was a contract or in the nature of one
between the state and its members, 1 Mylne & Craig 162;
29 U. S. 4 Pet.
514,
29 U. S. 560;
Lee v. Nailer, 2 You. & Coll. 618;
King v.
Pasmoor, 3 D. & E. 246;
Woodward v. Dartmouth
College, 4 Wheat. 628;
11 U. S. 7 Cranch
164;
Terrett v.
Tayler, 9 Cranch 43,
13 U. S. 52; 9
Wend. 351;
36 U. S. 11 Pet.
257;
Canal Co. v. Railroad, 4 Gill & Johns. 146; 3
Kent Comm. 459;
Enfield Toll Bridge Case, 17 Conn. 40; 1
Greenleaf 79;
21 U. S. 8 Wheat.
464; 10 Conn. 522; Peck 269; 1 Ala. 23; 2 Stewart 30, I concur in
the views of the Court that this or other property of corporations
may be taken for the purpose of a highway, under the right of
eminent domain, and that the laws of Vermont authorizing it are not
in that respect and to that extent violations of the obligation of
any contract made by it with the corporation.
Bradshaw v.
Rodgers, 20 Johns. 103, 742;
The Trust. of Belf. Ac. v.
Salmond, 2 Fairf. 113;
Enfield Bridge Case, 17 Conn.
40, 45, 61; 3 Paige Ch. 45;
Charles River Bridge v. Warren
Bridge, 7 Pick. 394, 399;
S.C. 11 Pet. 474; 1 Bland
449;
Bellona Co. Case, 3 Bland 449.
Because there was no covenant or condition in the charter or
contract that the property owned by it should not be liable to be
taken, like all other property in the state, for public uses in
highways. 7 N.H. 69;
17 U. S. 4
Wheat. 196;
Jackson v.
Lamphire, 3 Pet. 289.
Because without such covenant, all their property, as property,
must be liable to proper public uses, either by necessity, or the
sovereignty of the state over it, or by implied agreement.
And because, on a like principle, taxes may be imposed on such
property, as well as all other property, though coming by grant
from the state, and may be done without violating the obligation of
the contract, when there is no bonus paid or stipulation made in
the charter not to tax it. This is well settled. 5 Barn. & Ald.
157; 2 Railway Cases 17
arg. 23;
11 U. S. 7 Cranch
164;
New Jersey v.
Wilson, 4 Pet. 511;
Providence Bank v.
Billings, 11 Pet. 567, Shaw, C.J., in
Charles
River Bridge v. Warren Bridge; 44 U. S. Appeal
Tax Court, 3 How. 146; 12 Mass. 252;
17 U. S. 4
Wheat. 699; 4 Gill & Johns. 132, 153;
Williams v.
Pritchard, 4 D. & E. 2. The grantees are presumed to know
all these legal incidents or liabilities, and they being implied in
the grant or contract, their happening is no violation of it.
33 U. S. 8 Pet.
281,
33 U. S. 287;
36 U. S. 11
Pet. 641,
36 U. S. 644; 3
Paige 72.
Page 47 U. S. 543
Vattel says "The property of certain things is given up to the
individuals only with this reserve." B. 1, ch. 20, § 244.
In England anciently, when titles of land became granted with
immunities from numerous ancient services, it was still considered
that such lands were subject by implication, under a certain
trinoda necessitas, to the expenses of repair of bridges
as well as forts and of repelling invasion. Tomlins, Dict., Trinoda
Necessitas; 3 Bac.Abr., Highways, A.
Even the right to a private way is sometimes implied in a grant,
from necessity. Cro.Jac. 189; 8 D. & E. 50; 4 Maule & Selw.
387; 1 Saund. 322, note.
It is laid down also by Justice Story that "a grant of a
franchise is not in point of principle distinguishable from a grant
of any other property."
Dartmouth College v.
Woodward, 4 Wheat. 699,
17 U. S.
701.
I concur, therefore, in the further views that the corporation
as a franchise, and all its powers as franchises, both being
property, may for these and like reasons, in proper cases, be taken
for public use for a highway.
Pierce v. Somersworth, 10
N.H. 370; 11 N.H. 20;
Piscat. Bridge v. N.H. Bridge, 7
N.H. 35, 66; 8 N.H. 398, 143;
36 U. S. 11
Pet. 645; Story J., in
Warren Bridge v. Charles River
Bridge; 2 Kent Comm. 340, note;
27 U. S. 2 Pet.
658; 5 Paige Ch. 146; 1 Rice, 383; 2 Porter 296; 7 Adol. &
Ellis 124; 3 Yerger 41; 2 Fairf. 222; 23 Pick. 360;
J.
Bonaparte v. C. Railroad, Baldw.C.C. 205;
Tuckahoe Canal
Co. v. T. & J. River Railroad Co., 11 Leigh 42;
Enfield Bridge Co. v. Hartford & New Haven Railroad,
17 Conn. 40;
Armington v. Barnet, 15 Vt. 745, and 16 Vt.
446, this case; 3 Cowen 733, 754; 11 Wendell 590;
Lex. &
Oh. Railroad Case, 8 Dana 289; 18 Wend. 14.
It must be confessed that some surprise has been felt to find
this doctrine so widely sustained and in so many of the states, and
yet no exact precedent existing in England.
But in relation to it here, I am constrained in some respects to
differ from others, and, as at present advised, agree to the last
proposition, concerning the taking of the franchise itself of a
corporation only when the further exercise of the franchise as a
corporation is inconsistent or incompatible with the highway to be
laid out.
It is only under this limitation as to the franchise itself that
there seems to be any of the necessity to take it which, it will be
seen in the positions heretofore and hereafter explained, should
exist. Nor do I agree to it with that limitation, without another
-- that it must be in cases where a clear intent is manifested in
the laws that one corporation and its uses shall
Page 47 U. S. 544
yield to another, or another public use, under the supposed
superiority of the latter and the necessity of the case. 4 Gill
& Johns. 108, 150;
Barbour v. Andover, 8 N.H. 398.
Within these limitations, however, the acts of incorporation and
all corporate franchises appear to me to possess no more immunity
from reasonable public demands for roads and taxes than the soil
and freehold of individuals.
The land may come by grant or patent from the state as well as
the corporation, and both the grant and corporation may be
contracts. But they are contracts giving rights of property, held,
and of course understood to be held, subject to those necessary
burdens and services and easements to which all other property is
liable. And it is neither inconsistent with the grant of them nor a
violation of the contract contained in them to impose those burdens
and easements unless an express agreement has been made to the
contrary by the state in the act of incorporation or grant, as is
sometimes done in respect to taxation. But where the corporation,
as a franchise, or its powers as franchises, can still be exercised
usefully or profitably, and the highway be laid out as authorized,
I see no reasons why these franchises should then be condemned or
taken. The property owned by a banking or manufacturing corporation
may, for instance, be condemned for highways, necessarily, where
situated on a great line of travel; but why should their franchises
be, if their continued existence and use may be feasible and
profitable, and one not inconsistent with the taking and employment
of their other property for a public highway?
In this instance, however, as a fact, the franchise was
established and seems to be useful only in one locality. The
continuance of it elsewhere than at this spot would be of no
benefit to individual members or the public. If the bridge itself
and land of the corporation at that place were taken, it was better
for the latter that the franchise should be taken with them, if
enhancing the damages any, because, unlike a bank or manufacturing
company, the corporation could not do business to advantage
elsewhere, even within the limited four miles, as there was no road
elsewhere within their grant. The law of Vermont, too, was clear
that the toll bridge might be made to give way for a free highway.
It is therefore only under the particular circumstances and nature
of this case that, in my apprehension, the taking of the franchise
itself was not a violation of the contract. For under different
circumstances, if a franchise be taken and condemned for a highway,
when not connected locally with other property wanted, when it can
be exercised on ordinary principles elsewhere, when not
Page 47 U. S. 545
in some respects incident to, or tied up with, the particular
property and place needed, I am not now prepared to uphold it. I am
even disposed to go further and say that if any property of any
kind is not so situated as to be either in the direct path for a
public highway or be really needed to build it, the inclination of
my mind is that it cannot be taken against the consent of the
owner. Because, though the right of eminent domain exists in some
cases, it does not exist in all, nor as to all property, but
probably as to such property only as, from its locality and
fitness, is necessary to the public use.
Semb., 4 Mylne
& Craig 116;
Webb v. Manch. & Leeds Railway Co., 1
Railway Cases 576.
It may be such not only for the bed of the road, but perhaps for
materials in gravel, stone, and timber, to build it with. Yet even
then it must be necessary and appropriate as incidents. 2 Dev.
& Bat. 462; 13 East 200.
And also, for aught I now see, circumstances must, from its
locality and the public wants, raise an urgent necessity for it.
"The public necessities" are spoken of usually as the fit occasion
to exercise the power, if it be not derived from them in a great
degree, and the reason of the case is confined to them.
See cases before.
The ancient
trinoda necessitas extended to nothing
beyond such necessity.
Indeed, without further examination, I fear that even these
limitations may not be found sufficient in some kinds of public
highways -- such as railroads, for instance. And I must hear more
in support of this last position before acquiescing in their right
to take,
in invitum, all the materials necessary to build
such roads -- as the timbers on which their rails are laid, or the
iron for the rails themselves.
Nor do I agree that in all cases of a public use, property which
is suitable or appropriate can be condemned. The public use here is
for a road, and the reasoning and cases are confined chiefly to
bridges and roads, and the incident to war. But the doctrine that
this right of eminent domain exists for every kind of public use,
or for such a use when merely convenient, though not necessary,
does not seem to me by any means clearly maintainable. It is too
broad, too open to abuse. Where the public use is one general and
pressing, like that often in war for sites of batteries, or for
provisions, little doubt would exist as to the right.
Salus
populi suprema est lex. So as to a road, if really demanded in
particular forms and places to accommodate a growing and changing
community, and to keep up with the wants and improvements of the
age -- such as its pressing demands for easier social
intercourse,
Page 47 U. S. 546
quicker political communication, or better internal trade -- and
advancing with the public necessities from blazed trees to bridle
paths, and thence to wheel roads, turnpikes, and railroads.
But when we go to other public uses not so urgent, not connected
with precise localities, not difficult to be provided for without
this power of eminent domain, and in places where it would be only
convenient, but not necessary, I entertain strong doubts of its
applicability. Who ever heard of laws to condemn private property
for public use for a marine hospital or state prison?
So a custom house is a public use for the general government,
and a courthouse or jail for a state. But it would be difficult to
find precedent or argument to justify taking private property
without consent to erect them on, though appropriate for the
purpose. No necessity seems to exist which is sufficient to justify
so strong a measure. A particular locality as to a few rods in
respect to their site is usually of no consequence, while as to a
lighthouse or fort or wharf or highway between certain termini it
may be very important and imperative. I am aware of no precedents,
also, for such seizures of private property abroad, for objects
like the former, though some such doctrines appear to have been
advanced in this country. 3 Paige 45. Again, many things belonging
to bridges, turnpikes, and railroads, where public corporations for
some purposes, are not, like the land on which they rest, local and
peculiar and public in the necessity to obtain them by the power of
the eminent domain. Such seem to be cars, engines &c., if not
the timber for rails, and the rails themselves.
Gordon v. C.
& J. Railway Co., 2 Railway Cases 809.
Such things do not seem to come within the public exigency
connected with the roads which justifies the application of the
principle of the eminent domain. Nor does even the path for the
road, the easement itself, if the use of it be not public, but
merely for particular individuals, and merely in some degree
beneficial to the public. On the contrary, the user must be for the
people at large -- for travelers -- for all -- must also be
compulsory by them, and not optional with the owners -- must be a
right by the people, not a favor -- must be under public
regulations as to tolls, or owned, or subject to be owned, by the
state, in order to make the corporation and object public, for a
purpose like this. 3 Kent Comm. 270;
Railroad Co. v.
Chappell, 1 Rice 383;
Memphis v. Overton, 3 Yerger
53;
King v. Russell, 6 Barn. & Cres. 566;
King v.
Ward, 4 Adol. & Ellis 384.
Page 47 U. S. 547
It is not enough that there is an act of incorporation for a
bridge or turnpike or railroad to make them public so as to be able
to take private property constitutionally without the owner's
consent, but their uses and object or interests must be what has
just been indicated -- must in their essence, and character, and
liabilities, be public within the meaning of the term "public use."
There may be a private bridge, as well as private road, or private
railroad, and this with or without an act of incorporation.
In the present instance, however, the use was to be for the
whole community, and not a corporation of any kind. The property
was taken to make a free road for the people of the state to use,
and was thus eminently for a public use, and where there had before
been tolls imposed for private profit and by a private corporation
so far as regards the interest in its tolls and property.
And the only ground on which that corporation, private in
interest, was entitled in any view originally to condemn land or
collect tolls was that the use of its bridge was public -- was open
to all and at rates of fare fixed by the legislature and not by
itself, and subject to the revision and reduction of the public
authorities.
It may be and truly is that individuals and the public are often
extensively benefited by private roads, as they are by mills, and
manufactories, and private bridges. But such a benefit is not
technically nor substantially a public use unless the public has
rights. 1 Rice 388. And in point of law it seems very questionable
as to the power to call such a corporation a public one, and arm it
with authority to seize on private property without the consent of
its owners.
I exclude, therefore, all conclusions as to my opinions here
being otherwise than in conformity to these suggestions, though
when, as in the present case, a free public use in a highway and
bridge is substituted for a toll bridge, and on a long or great and
increasing line of public travel, and thus vests both a new benefit
and use, and a more enlarged one, in the public, and not in any few
stockholders, I have no doubt that these entitle that public for
such a use to condemn private property, whether owned by an
individual or a corporation.
Boston W. P. Co. v. B. & W.
Railroad Corp., 23 Pick. 360. And it is manifest that unless
such a course can be pursued, the means of social and commercial
intercourse might be petrified and remain for ages, like the fossil
remains in sandstone, unaltered, and the government, the organ of a
progressive community, be paralyzed in every important public
improvement. 2 Dev. & Bat. 456; 1 Rice 395; 8 Dana 309.
Page 47 U. S. 548
I exclude also any inference that in assenting to the doctrine
that an act of incorporation for a toll bridge is a contract giving
private interests and rights as well as public ones, and thereby
not allowing a state to take the private ones or alter them unless
for some legitimate public use or by consent, as laid down in
17 U. S. 4
Wheat. 628, I can or do assent to the doctrine of some of the
judges there in respect to public offices being such contracts as
not to be changed or abolished by a state on public considerations
without incurring a violation of the contract.
I should be very reluctant to hold, till further advised, that
public offices are not, like public towns, counties &c., mere
political establishments, to be abolished or changed for political
considerations connected with the public welfare.
13
U. S. 9 Cranch 43. The salaries, duration, and existence
of the offices themselves seem to be exclusively public matters,
open to any modification which the representatives of the public
may decide to be necessary whenever no express restriction on the
subject has been imposed in the Constitution or laws.
Quaere. Hoke v. Henderson, 4 Dev. 1.
This would seem the implied condition of the office or contract,
as much as that it may be taxed by the government under which it is
held, though not by other governments so as to impair or obstruct
it.
See, as to the last,
McCulloch
v. Maryland, 4 Wheat. 316;
Weston v.
C.C. of Charleston, 2 Pet. 449;
Dobbins v.
Comm. of Erie City, 16 Pet. 435.
Finally, I do not agree that even this franchise, as property,
can be taken from this corporation without violating the contract
with it unless the measure was honest,
bona fide, and
really required for what it professed to be, beside being, as
before remarked, proper, on account of the locality and nature of
this property, to be condemned for this purpose.
And though I agree that, for most cases and purposes, the public
authorities in a state are the suitable judges as to this point,
and that the judiciary only decide if their laws are
constitutional, 2 Kent Comm. 340; 1 Rice 383; that the legislature
generally acts for the public in this, 2 Porter 303; 3 Bl.Comm.
139, note; 4 D. & E. 794, 797; that road agents are their
agents, under this limitation, 1 Rice, 383; yet I am not prepared
to agree that if, on the face of the whole proceedings -- the law,
the report of commissioners, and the doings of the courts -- it is
manifest that the object was not legitimate, or that illegal
intentions were covered up in forms, or the whole proceedings a
mere "pretext," our duty would require us to uphold them.
Ibid.; Rice 391. In England, though
Page 47 U. S. 549
this power exists, yet if used maliciously or wantonly, it is
held to be void.
Boyfield v. Porter, 13 East 200.
In this case, however, while the fairness of it is impeached by
the plaintiffs in error, yet on the record the object avowed is
legal. It was to make travel free where it was before taxed, and
the bridge, though remote from the changes desired in the old road,
was still situated on the great line of travel over it, and not
merely by color and finesse connected, and, from increases in
population and business, seemed proper to be made free at the
expense of the town or county.
Nor on the face of the record do the proceedings seem void,
because the assessment may have been without a jury, when it was
made by the legal officers, appointed for that purpose.
28 U. S. 3 Pet.
280; 2 Dev. & Bat. 451, 460;
Beekman v. Sar. Railroad,
3 Paige Ch. 45. Nor void as made by the commissioners without
notice when the return states notice and when there was a full
hearing enjoyed by all before the court on the report.
Nor void because the compensation was too small to the
corporation -- as it was assessed in conformity to law -- or too
burdensome to the town alone to discharge, though the last might
well have been flung on a larger number, like a county. 10 N.H.
370; Tomlins, Dict., Ways, 2; 1 Rice 392. Nor because the
commissioners take a fee instead of an easement, when the
legislature provide for a fee as more expedient. 2 Dev. & Bat.
451, 467. Nor because some of the property condemned was personal,
when it was mixed with the real, and when real or personal, if
needed and appropriate, may at times be liable. 1 Rice 383.
With these explanations, I would express my concurrence in the
judgment of the court.
MR. JUSTICE WAYNE delivered a dissenting opinion.
Order
The West River Bridge Company, Plaintiffs in error v. Joseph
Dix, and the Towns of Brattleboro' and Dummerston in the County of
Windham.
This cause same on to be heard on the transcript of the record
from the Supreme Court of Judicature of the State of Vermont, and
was argued by counsel. On consideration whereof it is now here
ordered and adjudged by this Court that the judgment of the said
supreme court in this cause be and the same is hereby affirmed with
costs.
Page 47 U. S. 550
The West River Bridge Company, Plaintiffs in error v. Towns of
Brattleboro' and Dummerston, in the County of Windham, and Joseph
Dix, Asa Boyden, and Phineas Underwood.
This cause same on to be heard on the transcript of the record
from the Supreme Court of Judicature of the State of Vermont, and
the Chancellor of the First Judicial Circuit of the said State of
Vermont, and was argued by counsel. On consideration whereof, it is
now here ordered and adjudged by this Court, that the judgment of
the said Supreme Court of Judicature and Chancellor of the First
Judicial Circuit of the State of Vermont in this cause be and the
same is hereby affirmed with costs.