1. A bridge intended for and used as a throughfare is a public
highway, and hence a work of internal improvement within the
meaning of the Act of Nebraska passed Feb. 15, 1869, authorizing
cities, counties, and precincts in that state to issue bonds in aid
of works of internal improvement.
2. The fact that the bridge in aid of the construction of which
the bonds were issued was built as a toll bridge and is used as
such does not affect their
validity in the hands of a
bona fide holder for value
before maturity.
This was an action brought by George B. Chandler to recover the
amount of certain coupons attached to certain bonds issued by the
Board of County Commissioners of the County of Dodge, in the State
of Nebraska, on behalf of the Precinct of Fremont in said county.
Chandler purchased the coupons sued on before maturity and for a
valuable consideration. The controversy in the case relates to the
validity of the bonds and his title to the coupons.
By a law of the State of Nebraska passed Feb. 15, 1869, it was
enacted that any county or city in the state should be authorized
to issue bonds to aid in the construction of any railroad or other
work of internal improvement, the amount to be determined by the
county commissioners of such county or the city council of such
city, not exceeding ten percent of the assessed valuation of all
taxable property in said county or city, provided the county
commissioners or city council should first submit the question of
issuing such bonds to a vote of the legal voters of said county or
city in the manner provided by chap. 9 of the Revised Statutes of
Nebraska for submitting to the people of a county the question of
borrowing money. By a subsequent section it was enacted that any
precinct in any organized county of the state should have the
privilege of voting to aid works of internal improvement and be
entitled to all the privileges conferred upon counties and cities,
and that in such cases, the precinct election should be governed in
the same manner, so far as applicable, and the county commissioners
should issue special bonds for the precinct.
Page 96 U. S. 206
It thus appears that the board of county commissioners had
sufficient power to issue bonds for the precinct, if authorized and
required so to do by the latter, for the purpose of aiding works of
internal improvement.
In the present case, the bonds purport on their face to have
been thus issued. The following is a copy of one of them:
"UNITED STATES OF AMERICA"
"STATE OF NEBRASKA"
"It is hereby certified that Fremont Precinct, in the County of
Dodge in the State of Nebraska, is indebted unto the bearer in the
sum of $1,000, payable on or before twenty years after date, with
interest at the rate of ten percent per annum from date. Interest
payable annually on the presentation of the proper coupons hereto
annexed. Principal payable at the office of the County Treasurer in
Fremont, Dodge County, Nebraska. Interest payable at the Ocean
National Bank in the City of New York."
"This bond is one of a series issued in pursuance of and in
accordance with a vote of the electors of said Fremont Precinct at
a special election held on the eleventh day of November, A.D. 1870,
at which time the following proposition was submitted:"
" Shall the County Commissioners of Dodge County, Nebraska,
issue their special bonds on Fremont Precinct in said county, to
the amount not to exceed $50,000, to be expended and appropriated
by the county commissioners, or as much thereof as is necessary, in
building a wagon bridge across the Platte River in said precinct,
said bonds to be made payable on or before twenty years after date,
bearing interest at the rate of ten percent per annum, payable
annually, which proposition was duly elected, adopted, and accepted
by a majority of the electors of said precinct voting in favor of
the proposition."
"And whereas the Smith Bridge Company of Toledo, Ohio, have
entered into a contract with said county commissioners to furnish
the necessary materials and to build and construct said bridge
referred to in the foregoing proposition, therefore this bond with
others is issued in pursuance thereof, as well as under provisions
of an Act of the Legislature of the State of Nebraska approved Feb.
15, A.D. 1869, entitled"
" An Act to enable counties, cities, and precincts to borrow
moneys on their bonds, or to issue bonds to aid in the construction
or completion of works of internal improvements in this state, and
to legalize bonds already issued for such purposes. "
Page 96 U. S. 207
"In witness whereof, we, the said County Commissioners of said
Dodge County, have hereunto set our hands this first day of
September, A.D. 1871."
"[Signed and sealed by the county commissioners.]"
It is conceded that the precinct regularly voted for an issue of
bonds to the amount named therein, to be appropriated for building
a bridge across the Platte River, but the defendant, in its answer,
set forth the notice of the election, by which it appears that the
proposition submitted to the people was to build a toll bridge, and
not a free bridge, and that the bridge was accordingly built and
operated as a toll bridge. The notice of election further declared
that the tolls were to be used for the purpose of raising a sinking
fund to pay the principal, interest, repairs, and expenses of the
bridge, and were to be regulated from time to time by the county
commissioners.
The plaintiff demurred to this answer. The demurrer was
sustained and judgment rendered in his favor. In the argument
below, three questions were raised on which the judges were divided
in opinion, and it is on this division of opinion that the case
comes here. The questions were as follows:
1. Whether the said answer sets up a sufficient defense in law
to the causes of action stated in the petition.
2. Whether the recital in the bond charged the holder thereof
with notice of the proposition, which was in fact the one submitted
to a vote of the people, as contained in and shown by the records
of the county.
3. Whether the fact that the bonds were issued for a toll bridge
of the character of the one set forth in the proposition submitted
to the votes of said Fremont Precinct, as shown in the answer,
makes them invalid in the hands of the holder thereof for value
before due, without other notice than that imparted on the face of
the bonds.
MR. JUSTICE BRADLEY, after stating the case, delivered the
opinion of the Court.
In approaching the solution of the questions presented by this
certificate, the first inquiry that naturally presents itself
is
Page 96 U. S. 208
whether a toll bridge like that referred to is a public bridge,
and hence a work of internal improvement. And we can hardly refrain
from expressing surprise that there should be any doubt on the
subject. What was the bridge built for if not fit for public use?
Certainly not for the mere purpose of spanning the Platte River as
an architectural ornament, however beautiful it may be as a work of
art, nor for the private use of the common council and their
families, nor even for the exclusive use of the citizens of
Fremont. All persons of whatever place, condition, or quality are
entitled to use it as a public throughfare for crossing the river.
The fact that they are required to pay toll for its use does not
affect the question in the slightest degree. Turnpikes are public
highways, notwithstanding the exaction of toll for passing on them.
Railroads are public highways, and are the only works of internal
improvement specially named in the act; yet no one can travel on
them without paying toll. Railroads, turnpikes, bridges, ferries,
are all things of public concern, and the right to erect them is a
public right. If it be conceded to a private individual or
corporation, it is conceded as a public franchise, and the right to
take toll is granted as a compensation for erecting the work and
relieving the public treasury from the burden thereof. Those who
have such franchises are agents of the public. They have, it is
true, a private interest in the tolls, but the works are public,
and subject to public regulation, and the entire public has the
right to use them. These principles are so elementary in the common
law that we can hardly open our books without seeing them
recognized or illustrated. Comyns's Digest, title "Toll through,"
commences thus:
"Toll through is a sum demanded for a passage through an
highway, or, for a passage over a ferry, bridge, &c.; or for
goods which pass by such a port in a river, and it may be demanded
in consideration of the repair of the pavement in a high street, or
of the repair of a sea wall, bridge, &c.; cleansing of a river,
&c. But toll through cannot be claimed simply, without any
consideration."
These few sentences indicate conclusively that the existence of
a toll is not inconsistent with the public character of the work on
which it is exacted.
Of course, there may be private bridges as there may be
private
Page 96 U. S. 209
ways, and they are put in the same category by the text writers.
Woolrych on Ways 195. But all bridges intended and used as
throughfares are public highways, whether subject to toll or not.
Regularly, all public bridges are a county charge, and the county
is bound to erect and maintain them. 1 Bla.Com. 357. But others may
be charged with this duty, and a toll is the commonest of means for
obtaining compensation for its performance. In Angell on Highways,
it is said that public bridges may be divided into three
classes:
"First, those which belong to the public, as state, county, or
township bridges, over which all people have a right to pass,
without or with paying toll; these are built by public authority at
the public expense, either of the state itself or of a district or
portion of the state; secondly, those which have been built by
companies (like turnpike and railroad companies) or at the expense
of private individuals, over which all persons have a right to pass
on the payment of a toll fixed by law; thirdly, those which have
been built by private individuals, and which have been surrendered
or dedicated to the use of the public."
Angell on Highways, sec. 38. Chancellor Kent says:
"The privilege of making a road or establishing a ferry and
taking tolls for the use of the same is a franchise, and the public
have an interest in the same, and the owners of the franchise are
answerable in damages if they should refuse to transport an
individual without any reasonable excuse upon being paid or
tendered the usual rate of fare."
In the same connection, he enumerates in this class of
franchises ferries, bridges, turnpikes, and railroads. 3 Kent Com.
458, 459.
But it is unnecessary to continue the discussion further. In our
judgment, the bridge in question is a public bridge and a work of
internal improvement within the meaning of the statute.
Whether the precinct or the county commissioners have the right,
without further legislative authority, to demand tolls for passing
on the bridge is a totally different question, and one that does
not in our judgment affect the validity of the bonds. The bridge
being an internal improvement, the precinct had the power to aid in
its construction. This it resolved to do, and on this resolve is
founded the issue of the bonds. Whether
Page 96 U. S. 210
it should get any consideration from the public in return was a
question in which the purchaser of the bond is not concerned. A
resolve to make the bridge a toll bridge was an incidental matter
that might or might not be valid and might or might not be carried
out, if valid, without affecting the main purpose -- the
construction of the bridge or the bonds issued in aid of its
accomplishment. The toll question was an incidental one, in which
the precinct alone was beneficially interested. If in the execution
of their power to aid in the construction of the bridge the people
of the precinct proposed to get some return in the shape of tolls,
and should find that they had no authority to exact them, how can
that affect their bonds, to issue which their power was undoubted?
In voting the bonds, they may have acted, and undoubtedly did act,
under the expectation that the proposed tolls would relieve them
from some taxation for their payment; but, if mistaken in this --
that is, in their power to exact tolls -- how can this affect the
bonds? And how can their want of power to exact tolls concern the
purchaser of the bonds? The truth is, the two things -- the power
to aid in the construction of the bridge and the power to stipulate
for tolls thereon -- are distinct, and in that light they should be
viewed on the question of the validity of the bonds. The bridge is
an accomplished fact, a public improvement, of which the public and
the people of Fremont have the benefit, and its erection is due to
those who advanced their money on the bonds. There are some
equities in the case that ought not to be entirely ignored in
considering not the powers of the precinct, but the manner in which
it has attempted to exercise them. If any party is to suffer from a
mistake of law in respect to the power of exacting tolls, equity
and justice require that it should be that party which has received
the benefit, and not the party that advanced the consideration.
This principle should always govern when it involves no violation
of any rule of law.
We deem it unnecessary to advert to other points made in the
argument. They present nothing that requires distinct
consideration.
On the whole, we are of opinion that the answer does not set up
a sufficient defense in law to the cause of action stated in
Page 96 U. S. 211
the petition, whether the plaintiff had notice of the election
proceedings and of the character of the proposed bridge or not
before purchasing the coupons on which the suit is brought.
This conclusion requires, and our judgment is, that the first
and third questions should be answered in the negative and that the
second question is immaterial, and consequently that the judgment
of the circuit court should be affirmed.
Judgment affirmed.
