16 Conn. 149 | Conn. | 1844
Lead Opinion
Some of the questions involved in this case are of unusual importance, and have presented difficulties in their solution; and they have received our careful and deliberate attention. A majority of us, for the reasons which we shall suggest, are of opinion, that the facts appearing upon the report of the committee, are sufficient to sustain the plaintiffs’ bill.
We are not called upon now to enquire into the condition of ferries, as they have been treated here, from the origin of our colonial government—whether they were considered as burthens upon towns, and which the towns were under legal obligations to support, as they do highways and bridges, or whether they were supported as valuable privileges or franchises conferred by grants. It seems, at any rate, that the ferry in dispute, from a very early period, has been considered, by the legislature, in all its dealings with it, as a franchise, and especially by the act or resolve of 1783, dividing the ancient town of Hartford.
The plaintiffs do not claim here as owners of the ferry, or, as having, by reason of their lease from the town of Hartford, any right, in such capacity, to participate in its tolls. We do not enquire, therefore, what rights the town of Hartford has had, or still has, to the ferry; or what rights the Bridge Company acquired under that lease. The town of Hartford makes no claim now; and the town of East-Hartford makes no claim under it. The question is only, what are the rights of the Bridge Company, as against East-Hartford? If the plaintiffs, as against that town, have the exclusive right, by virtue of the amended or additional charter of 1818, to receive the tolls from persons crossing Connecticut river at this place, and are essentially disturbed by the defendants, in the enjoyment of the right they assert, they are entitled to the remedy they ask. Croton Turnpike Co. v. Ryder, 1 Johns. Ch. R. 615. Livingston v. Ogden, 4 Johns. Ch. R. 48. Ogden v. Gibbons, Id. 150. Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. R. 101. 2 Story's Eq. 206.
In opposition to this, the town of East-Hartford insists, that the privilege of keeping one half of the ferry in this place, belongs to that town, not only by reason of the franchise belonging to the ancient town of Hartford, but also by force of the act of 1783, dividing that town.
It is conceded all around, that this ferry was a franchise belonging to the old town, before its division, and was probably subject to legislative supervision and controul, as all other ferries in the state, to some extent, were. By the act dividing the ancient town, and constituting the town of East-Hartford a new and distinct corporation, the legislature granted to the new town the privilege of keeping one half of the ferry, during the pleasure of the General Assembly.
If it be conceded, that the legislature did not, by reason of
This franchise was corporate property, strictly: it did not belong to the individuals residing within the ancient limits of Hartford, as private persons. And, we believe, upon the division of towns in this state, the legislature has always divided the corporate property and corporate burthens, according to its sense of justice, and its pleasure, without being suspected, in so doing, of interfering with vested rights. Therefore, the town of East-Hartford, upon its separation from the parent town, received only such share of the corporate property and franchises, and under such conditions and qualifications, as the legislature thought proper to prescribe, especially, “the privilege of keeping one half of the ferry across Connecticut river, at the place or places where the same had been usually kept in said town of Hartford, during the pleasure of the Assembly.” East-Hartford accepted its town charter, with this provision; and cannot, by virtue of it, now, claim greater rights than it conferred.
Another enquiry is thus made necessary. Has the General Assembly declared its pleasure, by revoking the privilege conferred upon the town of East-Hartford? The resolve of 1818 provides, in the first place, that, whenever the Bridge Company shall have repaired the bridge, and raised the causeway, to the acceptance of the commissioners originally appointed for that purpose, the ferries established by law between the towns, should be discontinued. It proceeds to direct in what manner the bridge should be constructed, and the causeway raised; and that they should be approved and accepted, by the commissioners, and that, unless they should
From the time when the bridge was completed, in 1818, until the year 1836, say the committee, said ferry was not used as a public ferry, and no boats were kept thereat, to convey passengers, &c. Here was a non-user for eighteen years,—a period long enough to create a legal presumption of an abandonment. Corning v. Gould, 16 Wend. 531. Wright v. Freeman, 5 Carr. & Johns. 467. Lawrence v. Obee, 3 Campb. 514.
But in addition to this, the legislature again declared its pleasure, by revoking the ferry franchise, by the resolution of 1841.
Although there have been some other questions suggested, in this discussion, yet, we think, the only remaining one, and indeed, the question chiefly important in the case, is, whether the legislature had the constitutional power to revive the ferry, after it was suppressed, by the resolutions of 1818 and 1841, in the absence of any neglect or forfeiture, on the part of the Bridge Company? Or, whether an attempt to do this, was not in conflict with the chartered rights of the company, as guarantied by the resolve of 1818?
That resolve was an additional or amended charter, granted to the Bridge Company, and thus a contract between the state and the company, which the legislature had no power to
The amended charter of 1818 refers to the original one of 1808; and therefore, it is necessary to consider them in connexion. These charters, like all other acts of legislation, ought to be so construed, as to carry out the great objects intended by them. These were here; first, to make a great and necessary public improvement, at great expense, by erecting a bridge over Connecticut river; secondly, to reimburse those who should venture their money in the undertaking.
This charter of the Bridge Company is more clearly a contract between the public and the corporation, than most others, which have been adjudged to be contracts inviolable. Ordinary charters only grant privileges, and are executed contracts; but this imposes burthens, and requires the performance of continuing duties, of an expensive character. It does not merely grant the power of erecting a bridge, with the privilege of collecting tolls, in such way, and at such expense, as the company shall please; but it directs the manner in which the bridge and causeway shall be constructed, regardless of the cost; and it withholds from the company any power of reimbursement, until its requirements are fulfilled. Having prescribed the duties and fixed the obligations of the corporation, justice demanded that the charter should confer the corresponding privilege of entire compensation; and this having been done, it constituted a mutual and reciprocal contract, with known parties, consideration and obligations. To confer upon the bridge Company the power and privilege of perfect reimbursement for the risks and expenses of the proposed undertaking, the public granted certain tolls, by the original charter, and declared, “that whenever said tolls shall reimburse to said company the sums advanced by them in building said bridge and causeway, with an interest of 12 per cent. per annum on the same, the said bridge and causeway, and the rate of toll, shall be subject to such regulations and orders as the General Assembly shall think proper to make.” This charter, with this stipulation, was offered to the compa
The legislature, having declared its purpose so very clearly, in this part of the original charter, it is not to be presumed it would be retracted in a subsequent provision of the same section. There must be a manifest repugnance even between distinct statutes, much more between different parts of the same statute, to warrant a court in declaring that there has been a repeal, by implication. The repugnancy must be irreconcilable. Dwarris on Stat. 673. McCarter v. Orphan Asylum, 9 Cowen, 437. Commonwealth v. Kimball, 21 Pick.
A majority of us, therefore, believe, that these different charter stipulations, which we have been considering, do not conflict with each other, but refer to distinct subjects. The
In connexion with this, it becomes our duty to consider the charter or resolve of 1818, which, it is supposed, reserves the power to the General Assembly, claimed by the defendants; because this, as will be seen, refers to the former for the measure of the powers reserved. The bridge, which was erected under the first charter, was carried away, by a flood, in the Winter of 1818; and experience had demonstrated, that essential alterations in the construction of the bridge and causeway were necessary, to avoid in future the inconveniences and disasters to which both the public and the company had been subjected. The very case had occurred, which had been anticipated, and which induced the legislature to reserve the power to make alterations from time to time. And thereupon the General Assembly, by the resolve of May, 1818, directed suitable and necessary alterations to be made; which alterations the committee find were such, when made, as to supersede the necessity of the ferry. And to carry out the fair terms of the original contract between the public and the company, and to provide an indemnity for, and reimbursement of, the increased expenditures imposed by the prescribed alterations, it was here provided, that the ferry should be discontinued; and that the towns of Hartford and East-Hartford should never thereafter be permitted to transport passengers across the river, unless upon the happening of certain contingencies. In this way, it was provided, that a portion at least of the tolls collected at the ferry, should be received by the Bridge Company, and become a substantial part of its revenues; as much so, as the tolls specifically provided by the amended charter.
This, now, became one of the stipulations of the contract, equally obligatory upon the state, as any of the stipulations regarding tolls, and which could not be constitutionally impaired, without the consent of the Bridge Company, unless under some authority reserved for that purpose. And the
But the General Assembly, by its resolution of 1842, has attempted to revive the ferry, without reference to the reimbursement of the company, and before it has been made. This was in direct opposition to the positive pledge of the legislature, in the resolve of 1818. Thus, the franchise granted to the company, has been invaded, and the obligation of the contract impaired, as we think, without constitutional au
Dissenting Opinion
dissented on the principal point, being of opinion, that the General Assembly had the constitutional power of reviving the ferry, after its suppression in 1818, by virtue of the reservations in the original and additional charters. In most, if not all, of the positions of the court not bearing on this point, he concurred.
Injunction to be granted.