THE BINGHAMTON BRIDGE
Supreme Court of the United States
December 1865
70 U.S. 51
peals on application to the District Court, and giving security, if required, for prosecution.
This act makes no provision concerning returns to this court, and none concerning citations; nor does it impose any limitation of time within which appeals may be allowed.
But we cannot suppose that Congress intended no regulation of these appeals in these important respects. It had already prescribed regulations for the most usual invocation of appellate jurisdiction; and when it provided for appeals in these land cases from the District Court for California, it had, doubtless, these regulations in view. We think, therefore, that the appeals authorized by this section must be regarded as appeals subject to the general regulations of the acts of 1789 and 1803. If we held otherwise, we should be obliged to sanction appeals taken at any term, and brought here at any time after final decision; or to confine the right of appeal to the term of the District Court in which the decision complained of was made. We cannot ascribe to Congress either intention.
The appeal before us, therefore, must be considered as having been made subject to those regulations, and must be dismissed for want of conformity to them by the appellant.
MOTION GRANTED.
THE BINGHAMTON BRIDGE.
- Where a party to a suit sets up that under one statute a State made a contract with him, and that by a subsequent statute it violated the contract, and the highest court of law or equity of a State has held that such subsequent act was a valid act and decreed accordingly, the jurisdiction of this court under the 25th section of the Judiciary Act of 1789, attaches.
- The statute of a State may make a contract as well by reference to a previous enactment making one, and extending the rights, &c., granted by such enactment to a new party, as by direct enactment setting forth the contract in all its particular terms. And a third contract may be made in a subsequent statute by importation from the previously im-
ported contract, in the former statute, and a fourth contract by importation from a third.
The doctrine applied by the court to a somewhat nice case before it.
- An enactment by a State, in incorporating a company to build a toll-bridge and take tolls fixed by the act, that it should not be lawful for any person or persons to erect any bridge within two miles either above or below the bridge authorized, held to be within the case of Dartmouth College v. Woodward (4 Wheaton, 625), and a contract inviolable; this though the charter of the company was without limit as to the duration of its existence.
- A clause in a statute “that it shall not be lawful for any person or persons to erect a bridge within a distance of two miles” means, not only that no person or association of persons shall erect such a bridge without legislative authority; but that the Legislature itself will not make it lawful for any person or association of persons to do so by giving them authority.
THE legislature of New York was desirous in early times to have turnpike communications from the Chenango River, in the interior of the State, as the river approaches the Pennsylvania line, to the Hudson River at and below Newburgh, on that stream. Roads from the one river to the other by the routes contemplated had to cross the east branch of the Susquehanna, the east and west branches of the Delaware, and it was proposed also to make a bridge westward across the Chenango River itself. Accordingly, on the 6th of April, 1805, the legislature passed an act to establish a “turnpike corporation,” as it was called, for these purposes. The act was a very long one—forty-two sections—and for the purpose of a subdivision of labor, created in fact some four or five corporations. Among them a company for the purpose of building, by subscription of capital, bridges over the west and east branches of the Delaware River, was incorporated by the name of “The President and Directors of the Delaware Bridge Company.” The sections of the act relating to this company, fifteen in number, besides incorporating company in form, with the usual incidents, “continual succession,” “suing,” &c., gave it the right of purchasing, holding, and conveying any estate, real and personal, necessary to fulfil the end and intent of the corporation. They prescribed the mode of organizing the company, the kind of
Power was given to the directors to increase the stock of the company from time to time, after the original capital had been expended, as the exigency should in their judgment require, by assessments on the old shares, and to collect it, with a right of forfeiture of the old shares, if not paid, and shares in the corporation were made personal property.
The 31st section enacted:
“It shall not be lawful for any person or persons to erect any bridge, or establish any ferry across the said west and east branches of Delaware River, within two miles either above or below the bridges to be erected and maintained in pursuance of this act.” . . . . “Provided, nevertheless,” the act went on to say, “that nothing herein contained shall be construed to prevent any person, residing within two miles of the said bridges, from crossing the said river to or from his or her own house or land with his or her own boat or craft, without being subject to the payment of any toll.”
An additional—the 36th—section provided that, at the expiration of thirty years, the bridge should become the property of the people of this State.
So far as regards the Delaware Bridge Company.
A subsequent part of the same act—its 38th section—incorporated another company — a single company— “The Susquehanna Bridge Company,” for the purpose of erecting a bridge across the Susquehanna, at what was then called Oquaga, and since Windsor; and also for erecting a bridge at Chenango Point, the now village of Binghamton.
This section enacts, among other things, that the persons named, their successors and assigns,
“Shall be and are hereby created a body politic, and by the
name of ‘The Susquehanna Bridge Company,’ their successors and assigns shall be and hereby are invested with all and singular the powers, rights, privileges, immunities, and advantages, and shall be subject to all the duties, regulations, restraints, and penalties which are contained in the foregoing incorporation of the Delaware Bridge Company; and all and singular the provisions, sections, and clauses thereof, not inconsistent with the particular provisions herein contained, shall be and hereby are fully extended to the president and directors of this incorporation.”
The charters of these bridge companies—inserted, as already mentioned, in the body of the act incorporating the road—were prefaced by this preamble.
“Whereas, the foregoing road incorporation cannot be sufficiently carried into effect, or the public convenience fully promoted, if durable and permanent bridges across the Susquehanna and Chenango rivers, and the east and west branches of Delaware River, at the several places of intersection of the said roads, are not at the same time erected and maintained. And whereas, by reason of the great expense necessarily to be incurred in erecting and maintaining such bridges, on account of the size and rapidity of those streams, and the extraordinary freshets and frequent obstructions happening in those rivers; to which such bridges will be exposed, and which will endanger their permanency and durability, and may call forth a frequent renewal of the whole capital required for rebuilding such bridges, and therefore require a power (not contained in the foregoing incorporations) of calling from the stockholders, from time to time, such sums as shall be required for upholding such bridges, and which equally forbid the policy incorporated in the foregoing incorporations, that said property shall revert to the State; and whereas it is suggested that it will be most expedient for the purposes aforesaid to make two separate and distinct bridge incorporations, with powers adequate to the accomplishment thereof in the best possible manner. Therefore,
“Section 23. Be it enacted,” &c.
On the 1st April, 1808, the Susquehanna and Chenango bridges not being yet built, another act was passed amendatory of the old one. It ran in substance thus:
“Section 3. Be it enacted, That the incorporation of the Susquehanna Bridge Company shall hereafter be deemed and considered to exist for the sole purpose of erecting and maintaining a toll-bridge, under their said charter, across the Susquehanna River at Oquaga, under all its present provisions, except the limitation of its duration of thirty years, which said limitation shall be and hereby is repealed; and that the time within which it shall be built shall be and hereby is extended to four years from the passing of this act.
“Section 4. And be it further enacted, That for the purpose of erecting and maintaining a toll-bridge across the Chenango River, at or near Chenango Point, the present stockholders of the Susquehanna Bridge Company, or such others as shall associate for that purpose, shall be and hereby are created a body corporate, in fact and in name, by the name and style of ‘The Chenango Bridge Company,’ and as such to have perpetual succession, under all the provisions, regulations, restrictions, clauses, and provisions* of the before-mentioned Susquehanna Bridge Company.”
Under this last section, several persons consociated themselves, in 1808, under the name of the Chenango Bridge Company, and built a toll-bridge at Chenango Point, about one hundred rods above the point at which that stream merges itself and is lost in the larger and more important Susquehanna.
In 1805, when the first act was passed, Chenango Point had but two or three houses, was a small place every way; hard, comparatively, of access; and with a surrounding region sparsely populated. Matters were not much different in 1808 when the second one was passed. In the course of fifty years, the condition of things had changed. Population had increased. The New York and Erie and other railways ran near the place. Villages had sprung up around. In 1854, several persons, “inhabitants of the village of Binghamton and its vicinity,” presented a petition to the legis-
“That the said village, situated at the confluence of the Susquehanna and Chenango Rivers, has a population of about ten thousand persons. That it covers the point between the rivers, and extends to the opposite side of both. That since the construction of the New York and Erie Railroad, which crosses the Chenango River about one mile from the mouth, the village has rapidly extended up said river, on both sides, and has largely increased, particularly upon the westerly side.
“They represent that the depots of all the railroads are on the easterly side of the Chenango, above where it is proposed to place the new bridge; that the said railroad depots occasion much travel to and from them, to and from the westerly side of the Chenango River, and that those who would cross in the vicinity of said depots are compelled to go nearly one-half mile down the Chenango River, and up it again on the other side, to and from the depots, thus losing nearly one mile of travel upon every such occasion. That a large volume of travel constantly passes over said old Chenango bridge, so great that it is frequently blocked up, by waiting for some to pay toll and otherwise, to the hindrance of travellers and citizens, and especially upon public days and funeral occasions. That all the churches, except the Catholic, are situated, and the principal business streets are upon the easterly side of the Chenango, and that the new, and hereafter to be principal public cemetery is situated upon the westerly side of the Chenango, about one mile above the old bridge. That the river is subject to high freshets and ice floods, and that in case the present bridge across the Chenango should be carried away there would be no means but a railroad bridge, where travel is not permitted, of reaching said churches, nor the business street from the westerly side of the Chenango, or the cemetery from the easterly side, nor could numerous citizens who reside upon the westerly side of the Chenango reach their places of business. That by reason of the great amount of travel over the present bridge and other causes it is frequently out of repair, so that only one side of it can be used, and at such times it is passed only with great delay and difficulty.”
The old bridge company now accordingly filed a bill in the Supreme Court of New York to enjoin the new rival.
The bill—resting itself, of course, on the postulate that the rights given by the act of 1805 to the Delaware Bridge Company were imported by the 38th section of it into that of the Susquehanna Company of that act; that these again, thus imported, were translated (with the thirty-years restriction only thrown off) into the third section of the act of 1808, and that these last were carried finally into the fourth section of this new act—insisted that these various enactments made an “absolute, unconditional, and unlimited contract” with them that no bridge should ever be built over the Chenango River within two miles of theirs, either above or below it.
The answer denied the contract set up.
The Supreme Court of New York dismissed the bill. On appeal, the Court of Appeals, the highest court of the State of law or equity in which a decision of the matter could be had, affirmed the decree. The case was now brought here for review; the matter coming here, of course, under the 25th section of the Judiciary Act of 1789, which provides that a final judgment or decree in the highest court of law or equity in a State, “where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution of the United States, and the decision is in favor of such validity, may be examined and reviewed in this court;” and the allegation being that the act of April 5, 1855, incorporating the new bridge company, was contrary to that clause of the Constitution of the United States which ordains that “no State shall pass any law impairing the obligation of contracts.”
The certificate from the Court of Appeals declared that
“That the said act of April 5, 1855, was repugnant to the Constitution of the United States; and the question decided by this court, in order to induce the judgment of this court, was, that the said act of April 5, 1855, was not repugnant to the Constitution of the United States, and that said act of April 5, 1855, is held valid and binding by this court, notwithstanding said act was drawn in question in this cause, and the question clearly raised therein that said act was void as aforesaid.”
It was then “ordered that the record and proceedings be remitted to the Supreme Court,” here to be proceeded upon according to law.
Three questions were made here:
1st. A preliminary one, not very much pressed, whether the certificate gave this court jurisdiction under the 25th section of the Judiciary Act?
2d. Did the acts of 1805 and 1808 give the complainants an exclusive and perpetual privilege against anybody; either individuals or legislature?
3d. Supposing that under the expression “it shall not be lawful for any person or persons to erect any bridge” it gave them such privilege as against individuals, did it give them such right as against the legislature also?
[To understand fully the argument on this third point, it must be stated, that it was assumed in the argument by the Chenango company‘s counsel, and was stated as a fact in some of the opinions below, that in 1797 an act was passed providing for the opening and construction of highways and bridges, by superintendents and commissioners of highways; and that in the same year provision was made to authorize and regulate ferries within the State—forbidding the establishing and use of any ferry, for profit and hire, unless duly authorized, and conferring authority upon the courts of common pleas in each county of the State to grant licenses for keeping ferries, as many and to such persons as the court shall think proper.]
Mr. D. S. Dickenson, for the Binghamton Bridge Company, and against the jurisdiction and exclusive privileges.
I. Whatever the certificate may state, it is obvious that the real question below was whether the acts of 1805 and 1808 made a contract exclusive as against the State. Supposing such a contract, there could be no doubt that the act of 1855 impaired it. The decision below was that they did not make it. The decision then was an adjudication of a State court upon a statute of the State; and construing it. Such a case is not one within the 25th section. It may be said, however, that this point has been otherwise adjudicated in Bridge Proprietors v. Hoboken Company.* If that is so, there remain other grounds for dismissing the case.
The certificate states that “in order to induce the judgment of this” (the Supreme Court of the United States), the question decided below, was thus and so. Can cases thus be decided in a particular manner, for the purpose of bringing them here, under the 25th section, and then be certified into jurisdiction? The purpose of the act was not to have anything brought here which was not decided for the purposes of justice in the case; cases decided merely to get a review by this tribunal, however decided, are not proper matters for its jurisdiction. Jurisdiction cannot be “manufactured,” and authority thus given, even to this court, to review the legislation and judicial proceedings of a State, which ordinarily belong to the State courts alone, and should rest there.
II. We concede that the legislature may, by a clear manifestation of its intention to do so, make dispositions of matters which are proper subjects of its disposition. It may sell all which is the subject of bargain. But its sovereignty cannot be vended in perpetuo. One legislature cannot place the sovereignty of the State or any portion of it beyond the reach of all succeeding ones.
A disposition of that in which the supremacy of government rests, is an assumption of power not legislative in its
The Dartmouth College case may perhaps be invoked against these views and in support of the pretensions of the other side. If it sustain such pretensions—grants of the State sovereignty from the control of successive legislatures forever—we deny its authority in this day.
But in truth there is no relation whatsoever between it and the case at bar. In the college case a royal charter had been granted to a number of persons, incorporating them as a religious and literary institution. Large donations were made to it. It had the power to fill vacancies in the board of its trustees, to manage its funds, &c. The legislature largely increased the number of trustees, and provided a different mode for the appointment of persons to have charge of the trust funds, &c. The court found no difficulty in. holding that a contract had been made and its obligations violated. But suppose that the charter had said “it shall not be lawful to erect any other college in New Hampshire,” would such an enactment—in injury of education and of public right forever—have been held binding?
If the provident principles of government which we have asserted be questioned, the principle of law will not be ques-
Now “it would present,” as Taney, C. J., said, in a well-known case,§ “a singular spectacle, if while the courts of England are restraining within the strictest limits the spirit of monopoly, and exclusive privileges in the nature of monopolies, and confining corporations to privileges plainly given them in their charter, the courts in this country should be found enlarging these privileges by implication, and construing a statute more unfavorably to the public and to the rights of the community than would be done in an English court of justice.” There, after premising that those who accept charters have full opportunity to examine and consider the provisions before they invest their money, he adds: “And if individuals choose to accept a charter in which the words are susceptible of different meanings; or might have been considered by the representatives of the State as words of legislation only, and subject to future revision and repeal, and not as words of contract; the parties who accept it have no just right to call upon this court to exercise its high power over a State upon doubtful or ambiguous words, nor upon any supposed equitable construction or inferences based upon other provisions in its acts of incorporation.”
In Dartmouth College v. Woodward, 4 Wheaton, 625, Marshall, C. J., says: “On more than one occasion this court has declared, that in
In a great Pennsylvania case,* Black, C. J., says: “When the State means to clothe a corporate body with a portion of her sovereignty, and to disarm herself to that extent of the power that belongs to her, it is so easy to say so, that we will never believe it to be meant when it is not said. In the construction of a charter, to be in doubt is to be resolved, and every resolution which springs from doubt is against the corporation. If the usefulness of the company would be increased by extending privileges, let the legislature see to it, but remember that nothing but plain English words will do it.”
Now, considering this question by the light of these general principles of government, or even by the general principles of the more restricted science of municipal law, has there been a perpetual exclusion of right, even as against individuals, to build?
The view taken by the Chenango Bridge Company is set out (supra, p. 57). It need not be here repeated. But we deny that the “exclusive right,” whatever it may have been, in the Delaware charter, could have been extended to the Chenango bridge by any phraseology, such as the claim here rests on.
It will be observed (supra, pp. 52-3), that in incorporating the Delaware company, the act of 1805 sets forth the grant of the usual corporate powers specifically. These themselves—continual succession, suing, &c., are, we submit, “powers, rights, privileges, immunities, and advantages.” But the act gives to the Delaware company not only these “powers, rights, privileges, and immunities,” usually incident to corporations, but it gives, also, a right to purchase, hold, and convey real estate; not an incidental right to the creation of a corporation as such; and, over and above this, a power to the directors to increase the stock indefinitely, and to enforce payments for new stock by forfeiting old. When the Susque-
Conceding, however, that, under the act of 1805, the restrictive clause did apply for thirty years; we deny that it ever applied at all to the new Chenango Bridge Company, under the act of 1808. Under this last act, the former Susquehanna Bridge Company is divided into two companies; one, with the old name, to build a bridge across the Susquehanna; another, with the name of the Chenango Bridge Company, to build a bridge across the Chenango. Let us con-column the language of the old and new charters, as respects the Susquehanna company.
| UNDER THE OLD CHARTER, 1805. | UNDER THE NEW CHARTER, 1808. |
The Susquehanna Bridge Company is hereby invested “with all and singular the powers, rights, privileges, immunities, and advantages, . . . which are contained in the foregoing incorporation of the Delaware Bridge Company; and all and singular the PROVISIONS, sections, and clauses thereof not inconsistent with the particular provisions herein contained, shall be and hereby are fully extended to the president and directors of this corporation.” | The incorporation of the Susquehanna Bridge Company shall hereafter be deemed and considered to exist for the sole purpose of erecting and maintaining a toll-bridge, under their said charter, across the Susquehanna River, at Oquaga, under all its present PROVISIONS, except the limitation of its duration of thirty years, which said limitation shall be and hereby is repealed. |
Not a word in the new charter about either “powers, rights, privileges, immunities, or advantages.” The new
| SUSQUEHANNA BRIDGE COMPANY, 1808. | CHENANGO BRIDGE COMPANY, 1808. |
“The incorporation of the Susquehanna Bridge Company shall hereafter be deemed to exist for the sole purpose of erecting and maintaining a toll-bridge, under their said charter, across the Susquehanna River, at Oquaga, under all its present provisions, except the limitation of its duration of thirty years.” | The present stockholders, &c., or such others, &c., “are created a body corporate, by the name of the Chenango Bridge Company, and as such have perpetual succession, under all the provisions, regulations, restrictions, clauses, and provisions of the before mentioned Susquehanna Bridge Company.” |
Everything like the valuable old “powers, rights, privileges, immunities, and ADVANTAGES” gone! clean gone! “Regulations,” restrictions, clauses (or restricting clauses?), and provisions have assumed their place; and the term “provisions,” to which these restrictive expressions are added, remains the forlorn hope of a monopoly. Now, though the word “provision” is sometimes used as synonymous with enactment, it is not philologically so used well. In its true meaning it expresses restriction. It comes from pro, before, and video, to see; and implies foresight; prudence with respect to futurity; a sense inconsistent with granting away forever the right of a whole people to cross a stream running through one of the best and most populous parts of a great State, and to the increase in population of which no limits could be fixed; a sense equally inconsistent with that of its consociated terms—“regulations, restrictions, clauses (or restricting clauses and provisions?),” its
We insist, too, that the Chenango company was modelled after the then existing Susquehanna company—the Susquehanna company of the act of 1805—and not after it as the bill pending proposed to make it. The “regulations, restrictions,” &c., of the Susquehanna company, under which the Chenango company was incorporated, were thus the legal, existing regulations and restrictions upon the statute-book, including the thirty years’ limitation. The expression, “before mentioned Susquehanna company,” used in the act of 1808, and subject to whose provisions, regulations, &c., the new Chenango company was incorporated, does not mean the Susquehanna company as the proposed act designed to make it. That might be true, if there had never yet been any such company as the Susquehanna company; but it would be true only because the expression could not otherwise be satisfied. But here there was already existing a completely organized and well-known company of that name, subject to provisions, regulations, &c., in esse and defined. Thus construed, the act of 1808, as to these charters, would read as follows: “The Chenango company shall be made as the Susquehanna company now is by law. The thirty years’ limitation, now on the charter of the Susquehanna, is hereby repealed.”
If this is so, instead of having a monopoly, the Chenango bridge has for the last twenty years been the property of the people of New York; has for all that time been imposing its exactions upon travel by usurpation; and its corporators now, instead of seeking to prevent and destroy other facilities for transit, demanded by public convenience, and to levy contributions upon wayfarers through all time, should be answering a quo warranto, filed by the attorney-general, and refunding to the people the tolls its corporators have collected without right.
It must be remembered that the legislative provision which the Chenango company set up as a “contract,” was originally placed in the Delaware charter, when its duration was limited, in a separate section, to thirty years; that the
Does any one believe that any such thing was understood by the legislature? Does not this importation and reimportation of legislative enactment, so strangely carried out to make a contract, have the aspect of contrivance to obtain a contract without the legislature being aware that one was given? Why are the plain words of the earlier act—“powers, rights, privileges, immunities and advantages“—departed from, and the whole attempted to be got in under the term “provisions,” &c.? Has there been any want of clear and round dealing on the part of the Chenango company? If the contract set up has been made by what Rogers, J., in the Pennsylvania case of Lambertson v. Hogan,* called “the covert design of the draughtsman,” the observations of that judge in that case may be referred to for the weight that is due to the enactment. Certainly, at least, this legislative phraseology, called a contract, coming down to the Chenango charter under such circumstances—such a multiplicity of provisions, mixed up with near half a dozen corporations, some coming, some going—such a confusion of legislative tongues—such a jargon of tangled phrases—present reasons why the language set up as a contract should, in its application to the Chenango charter, and in its meaning, if placed there, be read with more than ordinary care, and be construed according to the strictest rules relating to legislative contracts and perpetual monopolies.
III. But conceding that it was “not lawful for any person or persons,” of their own right or by authorization from the county boards or courts to erect a bridge over this stream within two miles of the complainants’ bridge above or below
The Chenango, as is matter of common knowledge, is a fresh-water stream, where the tide does not ebb and flow, — not navigable except for arks and rafts in freshets, and was to all intents and purposes a private river, subject to the public easement as a highway. The riparian proprietors might establish bridges or ferries at such points as they pleased, unless restrained by legislation; and, the statutes of New York, as early as 1797, had authorized the construction of highways and bridges by superintendents and commissioners; had forbidden the use of ferries for hire, unless duly authorized, and had given courts of common pleas power to license them at such points as they might think proper. The provision of the 31st section, in the charter, declaring that it should not be lawful for any person or persons to erect any bridge or establish any ferry within two miles of the bridge, &c., applied to the superintendents and commissioners of highways, and to the courts of common pleas, and to private persons. And that this is so is shown by the proviso to the 31st section, excepting persons residing within two miles of the said bridges and crossing to or from their own land in their own boats. There were thus sufficient persons and officers and public authorities to satisfy fully the restriction clause in the section without extending its operation to the State or to the legislative authority. For without the provision, the superintendent of highways for the county, and the commissioners of highways of the town and towns contiguous to the Chenango River, might have laid out highways and constructed bridges across the river at such places as they deemed proper; and the court of common pleas might have allowed ferries to be established across the same, so as entirely to destroy the plaintiffs’ franchise.
That such enactments as this one—there being no exclusion of the power of the legislature—operate to exclude individuals and corporations only, that they do not prohibit the legislature from the exercise of its sovereign authority in
Cases may, no doubt, be found in this and other States, where it has been held, that when the legislature had made a contract in terms excluding itself from authorizing a rival work within defined limits, that a law authorizing such rival work within prescribed limits would be unconstitutional, and that the privileged corporation could have relief against it in equity. Such was The Boston & Salem Railroad v. The Salem & Lowell Railroad. The legislature, as Shaw, C. J., declares, there put in plain terms a restraint on itself.
But not one case of respectable authority can be found, which holds that a legislative contract, disposing of a State‘s sovereignty, can be recognized by implication from a series
of tangled phrases, doubtfully expressed, perhaps artfully contrived; or that mere every-day legislative phraseology constitutes a contract.We have denied (supra, p. 59) that a contract to surrender the sovereignty of the State forever could, under any form, be enacted by legislation that will bind for future time the State‘s representatives. To that view we hold. If, how- ever, courts will but adhere to their own salutary prece- dents, so often laid down—and from the facility with which great franchises are now obtained from our legislators by designing men, becoming every day more salutary—not to spell out of language, suitable and intended for mere legis- lative enactments, contracts which sap the foundation of common rights, fetter the State, and make her the servant of her own creation—the evil done by anything that is actually enacted will probably be small.
The complainants have no doubt suffered loss. But it is not every loss suffered that gives a remedy. There is a very ancient head of the law known as damnum absque injuria; and it is precisely that loss which these complainants have encountered.*
Mr. Mygatt, contra.
Mr. Justice DAVIS delivered the opinion of the court.†
The
The plaintiffs in error brought a suit in equity in the
Supreme Court in New York, alleging that they were
The bill seeks to obtain a perpetual injunction against the
Binghamton Bridge Company, from using or allowing to
be used the bridge thus built, on the sole ground that the
statute of the State, which authorizes it, is repugnant to
that provision of the
The questions presented by this record are of importance, and have received deliberate consideration.
It is said that the revising power of this court over State
adjudications is viewed with jealousy. If so, we say, in the
words of Chief Justice Marshall, “that the course of the
A departure from it now would involve dangers to society
that cannot be foreseen, would shock the sense of justice of
the country, unhinge its business interests, and weaken, if
not destroy, that respect which has always been felt for the
judicial department of the Government. An attempt even
to reaffirm it, could only tend to lessen its force and obliga-
tion. It received its ablest exposition in the case of Dartmouth
College v. Woodward,* which case has ever since been
considered a landmark by the profession, and no court has
since disregarded the doctrine, that the charters of private
corporations are contracts, protected from invasion by the
The principle is supported by reason as well as authority.
It was well remarked by the Chief Justice, in the Dartmouth
College case, “that the objects for which a corporation is
created are universally such as the Government wishes to
promote. They are deemed beneficial to the country, and
this benefit constitutes the consideration, and in most cases
the sole consideration for the grant.” The purposes to be
attained are generally beyond the ability of individual enter-
It is argued, as a reason why courts should not be rigid in enforcing the contracts made by States, that legislative bodies are often overreached by designing men, and dispose of franchises with great recklessness.
If the knowledge that a contract made by a State with individuals is equally protected from invasion as a contract made between natural persons, does not awaken watchful- ness and care on the part of law-makers, it is difficult to perceive what would. The corrective to improvident legis- lation is not in the courts, but is to be found elsewhere.
A great deal of the argument at the bar was devoted to
the consideration of the proper rule of construction to be
adopted in the interpretation of legislative contracts. In
this there is no difficulty. All contracts are to be construed
to accomplish the intention of the parties; and in determin-
ing their different provisions, a liberal and fair construction
will be given to the words, either singly or in connection with
the subject-matter. It is not the duty of a court, by legal
subtlety, to overthrow a contract, but rather to uphold it and
give it effect; and no strained or artificial rule of construc-
tion is to be applied to any part of it. If there is no ambi-
In 1805 the State of New York passed an act, in forty-
two sections, creating five different corporations. The main
purpose of the act was, at that early day, to secure for the
convenience of the public good turnpike roads; but the
country was new; the undertaking hazardous; the roads
crossed large and rapid streams, and the legislature, in its
wisdom, thought proper to create two separate and distinct
bridge incorporations, with larger powers than were confer-
red on the turnpike corporations.
No one can read the entire act through, and fail to per- ceive that the legislature intended to create two bridge incor- porations, exactly similar in all material respects. Protection was alike necessary to both; the public wants required both; the scheme of improvement embraced both; the danger of present loss applied to both; and there were the same mo- tives to give valuable franchises to both.
The inquiry, then, is, has the legislature used language that clearly conveys that intention? and on this point we entertain no doubt.
It is not questioned that the provision limiting the Dela-
The clause in the Delaware charter on that subject is in
the following words: “that it shall not be lawful for any
person or persons to erect any bridge, or establish any ferry
across the said west and east branches of the Delaware
River, within two miles, either above or below the bridges,
to be erected and maintained in pursuance of this act.”
This was, undoubtedly, a covenant with the Delaware com-
pany that they should be free from competition within the
prescribed limits. It is argued, because the east and west
branches of the Delaware are named, that the prohibition
was not intended to reach the Susquehanna company. But
this construction is narrow and technical, and would defeat
the very end the legislature had in view. It is true there
were certain minor provisions in the Delaware charter which
were peculiar to it, and of course it would be absurd to sup-
pose that they were transferred, or intended to be transferred
to the Susquehanna company; but, by the terms of the law,
whatever provisions were applicable, were extended to the
latter company. It is easy to see that the legislature never
meant that the judges of Delaware County, who were to visit
and inspect the Delaware bridges, should also visit and in-
spect the Susquehanna, because there were similar officers
in Tioga County, where the Susquehanna bridges were
located. But the privilege against competition was applica-
ble to both corporations, and, in the unsettled state of the
country, necessary to the existence of both, for the legisla-
ture well knew, that it would madness for adventurers to
build toll-bridges in a new country, where travel was limited
and settlers few, if the right was retained to authorize other
adventurers to build other bridges, so near as to divide even
that limited travel. The form adopted in making the grants
has weight, in arriving at the true legislative intention, and
it is worthy of consideration, that it is not unusual in the
legislation of this country to grant vast powers in a short
act, by referring to and adopting the provisions of other
The history of the subsequent legislation of the State, on
the subject of these bridges, is explanatory of the intention
of the legislature of 1805, and confirmatory of the view
already taken. In 1808, the Susquehanna and Chenango
bridges were not built, and longer time and greater privi-
leges were required to insure the success of that enterprise.
The legislature, in fear that the scheme of internal improve-
ment, which was not complete without the bridges, would
fail, furnished still greater inducements to the parties pro-
posing to erect them. The thirty years limitation was re-
pealed, and the charter made perpetual, and the time limited
The intention of the legislature was manifest to confer on the Susquehanna corporation all the advantages enjoyed by the Delaware company that were applicable to it, and con- sistent with the different locality it occupied; and the lan- guage used, in our opinion, gives effect to that intention: and the two-mile restriction is as much a part of the charter of the Susquehanna company, as if it had been directly in- serted in it. It is argued that the restriction cannot apply to the Chenango bridge, because it is located less than two miles from the confluence of the Chenango River with the Susquehanna. But the restriction is for two miles, either above or below the bridges, and is applicable to a bridge built above and within the prohibitory limits, although a question might arise, whether it was extended to a bridge which was built below the junction of the streams. The Susquehanna company, by the original charter, was to erect bridges over both the Susquehanna and Chenango rivers; but, with the amendments which were made in 1808, it was declared to exist for the sole purpose of building and maintaining a bridge over the Susquehanna, while at the same time the privilege of bridging the Chenango was given to “The Chenango Bridge Company,” a new corporation, created with the same faculties and franchises, and subject to the same duties and restrictions as the Susquehanna cor- poration.
The construction which has been given by us to the
Susquehanna charter is necessarily a solution of all ques-
tions pertaining to the charter of the Chenango Bridge
Has the legislature of 1855 broken the contract, which the legislatures of 1805 and 1808 made with the plaintiffs?
The foregoing discussion affords an easy answer to this question. The legislature has the power to license ferries and bridges, and so to regulate them, that no rival ferries or bridges can be established within certain fixed distances. No individual without a license can build a bridge or es- tablish a ferry for general travel, for “it is a well-settled principle of common law that no man may set up a ferry for all passengers, without prescription time out of mind, or a charter from the king. He may make a ferry for his own use, or the use of his family, but not for the common use of all the king‘s subjects passing that way, because it doth in consequence tend to a common charge, and is become a thing of public interest and use; and every ferry ought to be under a public regulation.”* As there was no necessity of laying a restraint on unauthorized persons, it is clear that such a restraint was not within the meaning of the legisla- ture. The restraint was on the legislature itself. The plain reading of the provision, “that it shall not be lawful for any person or persons to erect a bridge within a distance of two miles,” is, that the legislature will not make it lawful by licens- ing any person, or association of persons, to do it. And the obligation includes a free bridge as well as a toll bridge, for the security would be worthless to the corporation if the right by implication was reserved, to authorize the erection
of a bridge which should be free to the public. The Bing-
hamton Bridge Company was chartered to construct a bridge
for general road travel, like the Chenango bridge, and near
to it, and within the prohibited distance. This was a plain
violation of the contract which the legislature made with
the Chenango Bridge Company, and as such a contract is
within the protection of the
DECREE of the Court of Appeals of New York reversed, and a mandate ordered to issue, with directions to enter a judgment for the plaintiff in error, the Chenango Bridge Company, in conformity with this opinion.
The CHIEF JUSTICE, and Justices FIELD and GRIER dissented. The latter delivering an opinion, as follows:
I feel unable to concur in the opinion of the majority of my brethren, which has just been read. The general prin- ciples of law, as connected with the question involved in the case, are, no doubt, correctly stated, as to the strict con- struction of statutes as against corporations claiming rights so injurious to the public. My objection is, that they have not been properly applied to the case before us.
The power of one legislature to bind themselves and their
posterity, and all future legislatures, from authorizing a
bridge absolutely required for public use, might well be de-
nied by the courts of New York; and as a construction of
their own constitution, we would have no right to sit in
error upon their judgment. But assuming a power for one
legislature to restrain the power of future legislatures, those
who assert that it has been exercised should prove their as-
sertion beyond a doubt. Such intention must be clearly
expressed in the letter of the statute, and not left to be dis-
covered by astute construction and inferences. Although
an act of incorporation may be called a contract, the rules
of construction applied to it are admitted to be the reverse
of these applied to other contracts. Yet the opinion of the
The judgment given by the majority of my brethren re- gards the general language of the act of incorporation as first bringing to the Susquehanna company a provision that “it shall not be lawful for any person or persons to erect any bridge,” &c., across the east and west branches of the Delaware: as then bringing this specific clause into the char- ter of the Chenango company, and applying it to the Che- nango River (a river with but a single stream); making it, moreover, apply to that stream for two miles, indeed, above the bridge, but for three-quarters of a mile only below it, the river‘s entire extent in that direction, and finding the complement of the “two miles,” in a mile and a quarter of the river Susquehanna, into which the Chenango falls and is lost. While withal, by like construction only, the original limitation of thirty years disappears, and the charter be- comes perpetual.
This mode of interpreting a legislative grant appears to me irrational, and beyond the most liberal construction that has been given to that class of enactments. Indeed, the fact that it required so ingenious and labored an argument by my learned brother to vindicate such a construction of the act seems to me, of itself, conclusive evidence that the construction should not be given to it.