Bristol v. New-Chester

| Superior Court of New Hampshire | Nov 15, 1826

Richardson, C. J.

This action is founded upon a clause k the act incorporating the town of Bristol; and the only question, which it presents for our decision, is, whether that clause in the aet is repugnant to the constitution of this state, or of the United States. On the part of .Yew-Chester, it is urged, that this clause is repugnant to that part of the con-si itui ion of the United States, which declares, “that no state ct shall pass any law impairing the obligation of contracts.” We are not aware, that there are more than two ways, in which it can be supposed, that the clause in that act, which W5e are now examining, conflicts with that provision in the constitution of the United States. The property of Mew-Cl,ester, which this clause declares shall belong to Bristol, consisted of lots or pa^ts of lots, which had been, originally, reserved in the grant of the township of New-Chester, for the use of schools and the minister. And it may be, and in fact ts, urged in this case, that the reservation of those lots for those purposes was a contract, the obligation of which this clause in the act, has a tendency to impair. We have no doubt, that such reservations are contracts, the validity of which cannot be impaired by an act of the legislature ; and vve think, that the only enquiry on this point is, whether the clause in question does attempt to impair the obligation of the contract, contained in those reservations.

Lands uiay be reserved to towns, for particular purposes, with an understanding between the parties to the reservation, that the title shall be retained by the towns forever, and the rents and profits only be applied to the intended purposes.— And we are of opinion, that such an understanding would constitute a contract, the obligations of which could not be impaired by an act of the legislature.

On the other hand, such reservations might be intended and understood by all parties, as absolute and unlimited gifts to the inhabitants of towns, to aid them, in their infant days, in procuring education for their children, and religious instruction for all, without any understanding or contract, either express or implied, that the towns should forever hold the lands for those particular purposes- And, in that case, reservations of this kind would stand upon the same ground, as all other property belonging to towns.

In the case of the Baptist Society vs. Wilton, (2. N. H. Rep. 508,) we had occasion to advert to the nature of these reservations, and were of opinion, that they were intended merely to aid the first settlors of towns, and were not intended to be kept perpetually for the purposes mentioned in the reservations. And we stated, in that case, the reasons, on which the opinion is founded, and which it is unnecessary to repeat at this time. We still remain of the same opinion.— It is then very obvious, that the clause, we are now' considering, does not impair the obligation of any contract, in the reservation. The reservation was an executed contract passing the title of the land from the JMasonian proprietors to the town of JSew-Chester ; and there is nothing in this clause ⅛ any way affecting that, contract Indeed this clause in the act can have no operation, unless the reservation remains in lull force, as a conveyance passing the title of the lands.— For it is the properly of New- Chester, which the act declares shall belong to Bristol.

Another way, in which this clause in the act may be imagined to conflict with that part of the constitution of the United States, is, that the act incorporating New-Chester isa contract, the obligation of which is impaired. But it may be conceded, that the act, incorporating that town, is a contract, the obligation of which cannot be impaired by an act of the legislature ; yet still it will remain to be shewn, that the obligation of the contract has, in this instance, been impaired. Towns are public corporations, created for purposes purely public, empowered to hold property, and invested with many powers and faculties, to enable them to answer the purposes of their creation. In the creation of such cor porations, there must, in the nalure of things, be reserved, by necessary implication, a power to modify them in such manner, as to meet the public exigencies. There would be great absurdity in the supposition, that corporations, created by the legislature for purposes purely public, could not be modified and altered from time to time, as the public convenience or necessity might require.

A powTer to alter and change such a corporation and adapt it to the purposes, it was intended to accomplish, is implied in its very nature.

It has been the constant usage, in all the New-England states, to enlarge or curtail the power of towns, and to divide their territory and make new towns, whenever the convenience of the public required it ; and no doubt is believed ever to have been entertained of the power of the legislatures to do this. And it seems to us, that a power to divide the property of a municipal corporation, is necessarily incident to a power to divide the territory of such a corporation, and thus form two corporations. Every principle of natural justice might be violated, by the division of a town into two towns, without a division of the corporate property We are not, therefore, able to see any thing in the act incorporating Bristol, which tends to impair the obligation of any contract in the charter of Nm-Chester.

But it is said, that this clause attempts to take the property of .v'eir Chester, and give it, in effect, to inhabitants of another town. It is true, that a part of lirvlgexealer was included in the town of Bristol, and that the property, in dispute in this case, will go to the benefit of the inhabitants of that part with the rest, if this clause in the act is binding — And it may be conceded, that in the incorporation of a town, there is no implied power reserved to take its property arbitrarily and give it to another town. Corporations, both public and private, may be conceded to stand, in this respect, on the same ground with individuals But how is this case ? A part ai\\ eic-Chcstcr and a part of Bridgewater were taken to make the new town of Bristol ; and it was declared by the act, incorporating the latter town, that portions of the corporate property of the old towns, should belong to the new. The complaint of jYcw-Chester is, that a part of its property is to he taken for the benefit of a part of the inhabitants of Bridgewater But it ought to be a decisive answer to this complaint, that ail this is compensated by a part of the property of Bridgewater, taken at the same, time, for the benefit, of the former inhabitants of New-Chester, who are now included in Bristol, Two towns have been divided into three, and the corporate property of the two divided between the three. There is no complaint, that the division was in itself unequal. Natural justice required, that there should be an equitable division. Surely the circumstance, that the property of one town has been taken and gone to the benefit of the inhabitants of another, in the manner above stated, which was a necessary and unavoidable consequence of the exercise of the power of the legislature to make a new town from two or more old towns, cannot change the nature of the transaction. If it be fit and proper, and within the competency of the legislature, to divide the corporate property of a town, when its territory is divided into two towns, it is imagined, that it will be extremely difficult to conceive, why it is not fit and proper, and within the competency of (he legislature, to divide the corporate property of two towns, when they are divided into three.

But it is said, that this clause, in the act incorporating Bristol, is a retrospective law, and contrary to the twenty-third article in our bill of rights, which declares, that “all te retrospective laws are highly injurious, oppressive, and unjust. No such laws therefore should be made, either for the trial of civil causes, or the punishment of offences.” The question is, can this clause be considered as a retrospective law, for the trial of a civil cause ? A retrospective raw, for the decision of a civil cause, is a law prescribing the rules, by which an existing cause shall be decided, upon facts existing previous to the making of the law. It is, in its nature, a judicial decision of an existing cause of action.

But the clause in the act, which we are now considering, prescribes no rule for the decision of an existing cause of action. The cause of action, in this case, had no existence previously to the passing of that act.

The power to divide towns is strictly legislative ; and the power to prescribe the rule, by which a division of the property of the old town shall be divided, is incident to the power to divide the territory, and is, in its nature, purely legislative. No general rule can be prescribed, by which an equal and just division, in such cases, can be made Such a division must be founded upon the circumstances of each particular case. This clause prescribed no rule to operate retrospectively upon on existing cause of action, but simply declared, how the property should be divided among those, by whose exertions, and for whose benefit, it had been acquired.

When an act of the legislature grants a right to make a turnpike over the lands of individuals, a new right to the easement is created in the grantees, and the rights of the owners of the lands are abridged. But such a law has never been supposed to be retrospective, within the meaning of this clause in our hill of rights. And in this case the objection seems in reality to be, not that the act is retrospective, but that it takes property from one corporation, and gives it to another. But the power of the legislature to take the property of individuals for public purposes, is indisputable. It is a power limited, undoubtedly, in its nature by the public exigencies ; but it is a power recognized by the constitution. There is no doubt, that when this power is exercised, a just compensation is lobe made. The constitutions of some of the states expressly declare, that such compensation shall be made. And natural justice speaks on this point, where our constitution Is silent- We admit, that the legislature cannot arbitrarily lake the properly of one town, and give it to another. But that is not this case. Here the properly had been acquired as much for the benefit of the inhabitants of J\ew-Chesicr, who were included in Bristol, as of the residue» And instead of taking arbitrarily the property of one town and giving it to another, the act provides for a just and equitable division of the property among those, for whose benefit it had been accumulated. Such is the real nature of the case, stripped of the forms of law, with which it has been enveloped. And we are of opinion, that the clause in the act. incorporating Bristol, on which this action is founded, is not repugnant to any provision in the' constitution of this state, or ©f the United States, and that there must be

Judgmr.nl on the verdict,