11 N.H. 19 | Superior Court of New Hampshire | 1840
It is admitted that the charter, under which the Fourth New-Hampshire Turnpike corporation has been organized, and has constructed its road, is a contract, and within the protection of the clause of the constitution of the United States, prohibiting the several states from passing any laws impairing the obligation of contracts. But what is the contract ? It is a grant, to the individuals, of a right to organize and form a corporation, with power to construct and keep in repair a road in a certain place ; to erect gates, take tolls, and prevent persons from passing without payment. That grant has taken full effect. The organization has been made ; the road has been constructed ; and the corporation has been in the full exercise of all its powers. But we look in vain for any stipulation, that the [property acquired by the corporation under that contract, whether that property be corporeal or incorporeal, shall be exonerated from contributing, like other property, to the public burdens, or be exempted from any liability to which property is usually subjected in the hands of any citizen of the state. There is nothing in the terms of the grant, nor in the nature of the case, to show a contract, express or implied, that the property of the corporation should not be taken for the public use, if it holds any of such a nature that the public exigencies may require it for that purpose. No clause of the charter has been cited which has the most remote tendency to show any express stipulation of that character. Nor can
It does not impair the obligation of a contract, therefore, to take any of the property of this corporation for the public use, because there is by the charter no contract of that character, express or implied. And if the taking of the property may, incidentally, even put an end to the exercise of the corporate powers, because there is nothing left for their exercise, that will not prove that the property may not be taken. There is no contract that the corporation may not be dissolved, or its operations be suspended, by a subsequent exercise of the power of eminent domain, if their property, franchise included, is of such a nature that that power may operate upon it. The first and second exceptions must, therefore, be overruled. 7 N. H. Rep. 35, Piscataqua Bridge vs. N. H. Bridge; 8 N. H. Rep. 398, Barber vs. Andover; Peirce vs. Somersworth, 10 N. H. Rep. 369.
The corporation, like the individual, is guarded from a despotic exercise of power. Whatever is taken must be paid for. And it may be true that the power does not extend to the desti’uction of rights, whether individual or corporate, merely because an opinion exists that it may be beneficial to the public that they should be extinguished. It may be
But it is argued that the state, having made provision for a way here, which may be used by the public, cannot make further provision for the same object, and take the franchise of the corporation for that purpose; and, furthermore, that as the charter contains a provision by which the state may acquire the property, on certain terms, the right of eminent domain is thereby provided for, and that it cannot be exercised in any other mode.
Had the charter contained an express stipulation that the property of the corporation should never be taken in the exercise of the power of eminent domain, the question would at once have arisen, whether it was competent for any legislature to make a contract of that character—whether any legislature has authority, by contract, to lay restrictions upon this power. We have already had occasion to indicate a pretty strong impression upon that subject; and it is only necessary, at this time, to say, that we have as yet seen no reason to change the views heretofore suggested. 7 N. H. Rep. 69; (10 N. H. Rep. 138, Brewster vs. Hough.)
The fact that the public may now have a use of the road constructed by the turnpike corporation, does not show that the public interest may not require that a public highway be laid over the same ground. The right at present enjoyed, although a public use, is of a limited character, subject to the payment of a toll; and there may be a necessity for an open public highway, which all the citizens may use free from charge. The use which already exists is of the same nature with that which will exist if an open public highway is laid out; but the right to use is1 not the same. The public are entitled to have not merely a way, but a free passage, such as is enjoyed in other parts of the state, whenever the public exigencies shall require such a right of way; and there is nothing in the nature of the corporation, or of the property
Nor does the provision of the charter by which the legislature reserved the right to purchase the property, with the consent of the corporation, (given through their acceptance of the charter,) prove, by any means, that the right of eminent domain was thereby surrendered; even if the legisla-, ture might be supposed to possess the power to make such a surrender. That provides a mode by which the government might, after a certain period, come into possession of all the property of the corporation ; and a mode which would not have existed, but for the provision in the charter itself. But this reservation does not seem to us to imply, in any manner, a relinquishment of any right by which the property of the corporation, or a part of it, might be taken for public use. If the legislature should grant land, to an individual, in fee, with a reservation of a right, at the expiration of a term of years, to resume the property granted, upon the repayment of the purchase money with interest, that could not be construed as implying that a public highway should not be laid through it, in the ordinary exercise of the power of eminent domain. And the principle would be the same, if the tract was, of such a shape and character, that the whole of it was afterwards required by the public exigencies.
It is further contended, that the power to take by eminent domain cannot be transferred to any subordinate agent, but must be exercised by the state itself. The argument seems to be, that each individual exercise of the power must be by
To the last exception, the answer of the counsel for the petitioners is conclusive. This case is within the express exception of the clause in the constitution which provides, that “ In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised, the parties have a right to a trial by jury,” &c. By the long course
It can make no difference that the power or right to take property for a public highway, is applied to property of a different character from that to which it had been applied before the adoption of the constitution. The principle is, that there is an express exception to the constitutional provision providing for a right to a trial by jury, of those cases in which it had been “ otherwise used and practised” ; and it had been otherwise used and practised in all cases where property was taken for public use, by the laying out of a highway. The case, therefore, falls within the principle, although the character of the property taken may in some respects be different.
For these reasons, the exceptions must be overruled, and the case remitted to the common pleas, with directions to accept the report of the committee, and establish the highway.