The West River Bridge Company v. DIX

JANUAEY k>7 ». et Bridge Company Kiver Dix al. The West of Court the State of Supreme record from and Louisiana, counsel, On consideration it is by whereof, now argued and this thé adjudged by court, here ordered of judgment said in this cause and Court the same is here- Supreme costs, with and that reversed, this cause he and by the same the said remanded to. he hereby Supreme Court, to proceeded in of court, as to law conformity opinion and justice and shall appertain. Bridge Josep Company, West error, The River Plaintiffs in v. Dix and the Towns Dummerston, of Brattleboro’ h and County Windham, of in error. Defendants Bridge Company, error, The West Plaintiffs The River v. County Dummerston, of Towns Windham, Brattleboro’ of Joseph Dix, Boyden, Asa and Phineas Under wood, Defendants error. bridge, State, an incorporated held company, A under a charter from a part road, condemned and taken as of a ünder the laws that State. but, This charter was a contract between the State and the pri- like company, all rights, subject vate right it is to the of eminent domain in State. Constitution of the United States so cannot be construed as to take away - right from the States. does Nor the exercise eminent domain inviolability interfere with the All tenure from all contracts.- held contracts subject right of is, therefore, made eminent domain. The contract not' right. by the violated exercise of the United The Constitution States prohibit intended to all laws impairing of contracts ás interpolate condition, the the foreign some new term or obligation original agreement. Property incorporated held an footing stands the same with that company individual, held an distinguished franchise cannot from other prop- erty. cases were á un- brought up, writ of error issued These der Act, section twenty-fifth Judiciary from the Su- Court preme State of Vermont. Judicature 1795, legislature act, entitled, Vermont passed “ An act -Blake, John W. granting Knowlton, Calvin associates, their over privilege toll-bridge building River, West Brattleboro’.” section Knowlton, first enacted their Blake, a associates, should be continue body politic corporate, by dred name of the West for one Bridge hun- Company, and that years; they should have the exclusive privilege of erecting continuing RiveV, within over four miles from the where said place stream with Con- .united necticut River. SUPREME COURT. Dis al.

The West River et The second section fixed the rate tolls. at that,

The'third section enacted, expiration forty December, 1st of from-the years judges Su- Court, should commissioners examine the preme appoint and if accounts of the it should books that the net company; .appear a should have sum than averaged larger proceeds cent, twelve the should lessen the annum, tolls, per per judges did reduce so low to them as they prevent provided cent. from twelve proprietors receiving per sections for the remaining government provided &c., for their in keeping good repair-, &c. company, 1796, 1797, built During 1795, company years the bridge. a small 1799, conveyed Josiah the company Arms. of land, acres, two on the south bank of- lying, about

piece West River. ' , In to the 1803, charter, legislature supplément passed which altered rate of left the tolls, remaining but parts it unaltered? In November, 1839, entitled, an act “An legislature passed

act in and it was enacted and relating highways,” whereby that new any there shall be occasion provided, “whenever town or towns highway Supreme Courts shall have to take County easement, estate, the same real corporation, franchise or other of any turnpike, high- requires in their when, good judgment, State,'to which now the laws of this have, by such courts way, and the individual or out over lay highways private property; observed, and the same rules shall be granted, same. and persons, to all such making compensation corporations rights taken, as franchise, or estate, whose are now shall easement, that in other cases; provided, granted provided be taken in no such real shall estate, easement, franchise the whole of aforesaid, for the unless purposes the manner cor- real to said estate, .easement, belonging or franchise shall made therefor.”' taken, and compensation poration other On the Dix and fifty-four 25th of August, Joseph County Court persons presented for following petition — county Windham: “ from That the leading public highway stage-road, the north- stage-house Smith, Brattleboro’, through Henry Dummerston, of said the town of erly part town, through in said time a long line south has Putney, county, to the been- of the steep a subject both on account' of-great complaint, difficulty keeping dangerous hills, great and repeated same in as now That various travelled. repair, TERM,, Bridge Company The West River al. «.'Dix.-et same, have been made improve little suc- attempts cess. further Your actual petitioners represent, sur- that* admeasurement, are highway vey confident bemay termini, and laid between said made at a moderate expense, mQst of the hills will avoid and be perfectly satisfactory Your, are aware that some altera- public. petitioners made on said tions have route recently by committee of Paul court, Chase petition others, said indictments are now towns for not pending against believe that said your com- same; petitioners making mittee, said alterations, influenced ordering soli- individuals, of interested rather than the citations public good, alterations are would worked, they and that said form but and that. the will never little improvements, satisfied laid said on the best route until and fur- highway possible ; cqst that it will to make ther, alterations, said much (which as will wé to make good useless,) consider travelling on the route road contemplated by petition. ,the “And further your petitioners represent, toll-bridge West River, Brattleboro’, on said route in owned across the- .a River and for Corporation, is, West time has Bridge long been, a sore both to the and the grievance, inhabitants traveller the towns in of who have occasion to vicinity, and pass on said and labor, travel and however highway; repass, legislature sound discretion in in the have infancy exercised said in the granting yet, toll-bridge, present and condition of the thriving inhabitants, improved your peti- tioners unable to discover reason said any good why griev- ance should longer endured, town why wealthy of well Brattleboro’ should as as other towns less not, much able, sustain free across West River. Your bridge, petitioners and court, able, judicious, therefore pray disinterested to cause and committee, tions and said.route such altera- surveyed, be made in old road; or new .improvements one as the laid, public good may require; also to ‘ easement, take real or franchise estate, of West River the aforesaid toll- corporation Company,’ owning for the a free bridge, making, road across purpose river, said the statute in such agreeable to pro- .case made in, and as will ever ; vided duty pray.” bound In the above the court conformity prayer, appointed three examine make persons premises report. ex- commissioners had May, reported that a were unanimously opinion premises, amined new road laid out over a considerable ought portion the termini mentioned- the petition, distance between

43* COURT. SUPREME Bridge Company v. Dix et al. River The West had caused to be laid said, they surveyed road, they which — as : then follows proceeded The report out. “ also examined commissioners the toll-bridge said and have taken Brattleboro’, into consid- River across a free road across said at laying bridge, eration propriety Brattleboro’, town contemplated .by of said expense were in this the said commissioners unani- ; said petition that the required real public good mously opinion, River of the West Bridge Corpo- or franchise easement, estate, that, therefor, made taken, ration should be compensation a free bridge. become thereafter said toll-bridge might assessed to the said West have therefore said commissioners dollars, of four thousand the.sum Bridge Corporation River River out of the said Bridge Corporation West; be paid Jo in full Brattleboro’, of said town treasury to said estate, or franchise easement, belonging corpora- all real or franchise situate in said estate, easement, real tion, River, near the mouth of West Brattleboro’, town described in a deed be more from Jo- particularly (cid:127)supposed West River dated on the Bridge Company, siah Ames seventeen hundred and year ninety- day April, first records of deeds, Brattleboro’ liber D, and recorded nine, land, be the same acres of more or two 203, containing page toil-house, bam, other less, with bridge, gate, covered thereoni buildings F. HAMMOND, THOMAS CONVERSE, JULIUS

ISAAC N. CUSHMAN, Commissioners.” Bridge Company, the West town To report^ and the Dummerston, town of who persons Brattleboro’, entitled, all land, &c., loss filed for the ob- were to damages jections. objections, filed five the last of Brattleboro’ The town — which was as follows: “ said from and is not report, 5. Because it does not appear said or that commissioners consid- fact, wasj that there true for new on there occasion- was, highway ered wit, to within two miles of distance, viithin a route great said said bridge.” ten the objections, of Dummerston filed first’four The town — which as follows: are of Cl in said proceeded 1. said commissioners report Because of so called a road Road, ; the Indited. the which discontinue did not ask the Dix and others discontinu- of petition, Joseph 1848. TERM» Bridge

The West River r* Dix Company et al. liable make, then which said was town anee; road since raised to make. money has “ said would render the report 2. Because acceptance ..of maintenance, through large of two roads necessary part with are so town, great, that, natural while the. difficulties with its means, of compared the burdens said when one, town, onerous. unusually “ route, or Nurse so 3. route, Swamp That said surveyed route, be- is a more called, more longer, expensive wet, tween the in. question. termini “ were That partial, prejudiced, said commissioners of and acted mistaken; made under the influence misrepresentations interested by persons.” were awarded persons by report whom damages were fifteen in of these filed six objections, number. Eleven follows:;— the first of which aswas “ 1. Because the said were partial, prejudiced, commissioners made and acted mistaken, the misrepresentations interested persons.” filed, seven objections, West River Bridge Company sixth of it, which stated their observance charter, their desire for its continuance. In was and the November,T843, tried, case report ordered commissioners was two towns were accepted. The awarded whose lands

pay through damages persons to. “ Brattlebpro’ the road laid out, was and the town pay West River the sum of Bridge damages, as- said commissioners, 1844; sessed 31st day May, and that said the free travel for opened 1st 1844.” day June, was sued out 1844, writ February, certiorari Court, the whole Supreme whereby proceedings were review. County the West brought argument, up Upon Court River addition to the Company, exceptions filed the two below, court presented had fol- — lpwing: “ First. That the said this State, statute of having enacted after the long said the same State of the said grant by franchise of toll to the said Bridge Corporation, after the said .long acted on accepted said is corporation; authorizing validity purpose the said of said cor- taking franchise consent against poration, upon of a over and laying out free highway said bridge, statute, said ground to authorize purports aforesaid, is a violation the proceedings, contract this State the said. corporation, COURT. SUPREME. Bridge River

The West v. Dix et al. that clause of therein Constitution repugnant that no United States State shall law provides pass of contract. the obligation impairing That inasmuch as it is “Secondly. the said apparent upon cause, and filed said of which record, are here- proofs copies there is no that occasion for new unto highway annexed^ town of said Brattleboro’, within the said near bridge; that out, new is in fact laid to be laid out, highway adjudged two miles within the distance of from either terminus said and that the awarded to the said West River damages bridge; as a inadequate grossly Bridge Company franchise', and other ad- the value of the corporate ' the said taken; taking franchise, lay- judged said free over and the said public highway out ing upon of the said under County Court, bridge, by judgment a mere under color of of the said circumstances, evasion, law, of the United and an ex- States, Constitution provision this State which ercise of invalid authority wholly West River said against ground Company, the constitutional its afore- being repugnant provisions said.” — the following judgment: Court passed Súfreme “ And after their hearing parties by thereupon, respective and the said counsel, their upon respective allegations, excep- contained, ordered, it is ad- considered, tions in said record that the statute was here, the court judged by aforesaid said, taking franchise, laying valid for the purpose the said over and the said highway out free public bridge; and is in no was wise and that the same the Con- repugnant States; the United stitution of the said proceedings were a of the said Court exercise the au- County lawful of the State under the said and neither statute, thority repug- to nor an evasion of the the said nant provisions Constitu- is no error in the record and tion that there ; proceedings the said defendant their aforesaid; parties recover. costs.” To review case a writ error judgment, brought to this court.

up Mr. Mr. Webster and on behalf argued by Collamer, and Mr. error, for the defendants plaintiffs Phelps, On both sides error. al- argumentative filed; briefs were all the counsel many added though arguments, illustrations briefs, discussion, orally, their respective progress thinks yet it the safer the briefs reporter course to reprint themselves... Bridge Company ®. Dix et al. Collamer, for Mr. Webster and Mr. error. plaintiffs Brattleboro’, A. Vermont, D. 1795, township the west of was a bank highway along there Connecti- across West a River, and River, passing

cut tributary was highway re-surveyed Connecticut, year, continue has, does, and still unaltered within ever said and was act re-survey town. This (Whitney’s Record, affidavit, survey ; 34, and pp. 35.) copy legislature an act 1795, by Vermont, In plain- one a for tiffs were created hundred corporation years, and erecting exclusive privilege continuing toll-bridge River, within four miles of the where that over stream place unites with River, Connecticut of toil and the rate was said fixed provided act should be bridge act. where built .the roád was to and within two surveyed, years, was and it so done. and (Charter, Record, 26, 4, p. proviso § 6, to p. 28.) § The act further that, at the provided, expiration forty years, and outlay income of the plaintiffs might be exam- ined by commissioners, appointed by Supreme Court; and, cent, if the had realized plaintiffs more than twelve per per reduce, annum, the to might court the tolls so as yield only that amount. The within the limited erected plaintiffs, time, it, and have ever since sustained bridge, several having times at it'; now, rebuilt and have great erected so expense, large with stone, of it that to sustain it is part much less expense than and the franchise' and formerly, bridge now of great a^e , to value, wit, value thousand ten (Record, dollars. p. 56.) law By general of Vermont to relating highways, County Court,1on petition, may appoint commissioners to lay out highways within the county, who the way and survey damage landholders, assess and make to the report who court, same make their thereupon orders and accordingly; Court, given in Supreme laying highways two or more into counties. Statutes of (Revised Vermont, p. 553.) “ November, In 1839, the legislature passed ah act relating “ which, to highways,” whenever provided, there shall be oc- for new casion any in highway or town towns within this and Supreme County Courts shall have the same take real estate, easement, or of any franchise other turnpike or when corporation, judgment their public good requires public highway, which such courts now have, laws of the State, to lay over out.highways indi- vidual or and property; same power granted, SUPREME COURT. West Riyer Company v. Dis et al. observed, rules shall be

the same all such chise, making compensation whose corporations persons estate, easement, fran- shall be taken, are now granted provided cases; estate, that no such real provided easement, other taken franchise shall be in the manner and for the purpose unless the whole aforesaid, of such real estate, easement, franchise said belonging shall taken, corporation made therefor.” Court of County petition presented of Windham, and im- county Vermont, re-survey praying in the Brat- provements highway, beginning village n tleboro’, and across this north" leading north bridge, thence to and the town of through Dummerston; relation it is as a bridge; represented petition great griev- n “ ance, should longer -that endured”; praying said road be real re-surveyed, estate, easement, or fran- “ ” the' West chise River Bridge should be taken a free road said purpose making across On that the river. court petition commissioners, appointed road, who to examine the and in decide in this the proceeded premises. and laid out a They manner, road surveyed (as ap- at Record, about p. beginning Brattleboro’village, pears, 17,) one mile of this and the bridge, existing south following high- north, to and the and of the across thence way bridge, bridge miles, two without alteration whatever. making any (Record, in , and then the 32, They changes ,p. Report, p. 17.) report Dummerston; all but rods of which is and, highway, fifty in. — as to this the commissioners as follows: bridge, report ’ “ The commissioners also examined the toll-bridge said West in and into con- River, Brattleboro’, across sideration the taken .have free road across said laying bridge, propriety of the as Brattleboro’, at expense contemplated town said, were and in this the unani- said commissioners petition; that the real that the required mously opinion, public good River Com- Bridge or franchise of the West estate, easement, that, therefor, made should and taken, be pany compensation The commis- bridge. said be free might made toll-bridge have West Bridge sioners assessed to the River said therefore dollars, the sum of four thousand be paid Corporation out of West Riyer said Bridge Corporation treasury real, all town in full Brattleboro’, said estate, which real

easement, corporation, or franchise to said belonging in said estate,, easement, or franchise is situate Brattleboro’, near River.” (Record, town of the mouth of West Ames’s 15, deed, and 16, p. pp. 32.) This was and court, though exceptions returned into report v. Dix et al. The on the were thereto part made present objections and town Brattleboro’, yet said by, court, as well-as plaintiffs, and decided to said approve accept report, on the hearing, ' road, whole of said that Brattle- qrdered established said sum of four thousánd present plaintiff boro’ pay “.that said be for the free opened- dollars, 25, travel.” pp. (Record, 26.) and these were carried before decision proceedings of the State that by certiorari, Court court Supreme this writ brings plaintiff affirmed; whereupon error. section Judiciary-Act of twenty-fifth By is “That final it (cid:127)United de- States, provided, judgment court of law suit, highest of a equity cree in any could had, which decision suit where State in is of, statute validity drawn ex- question authority on the their under, any State, ground ercised being repug- or laws Constitution, treaties, nant to the United States, their is in decision favor of such be re- validity, affirmed and reversed or Court of Supreme examined the error.” a writ of insists plaintiff United States exercised under authority the State of the statute of that State, Vermont, passed was exercised manner it which the. done, to the Constitution of United States. repugnant never This court is called on to decide State law uncon- a. stitutional in the abstract. It-must have a’ case before it, it is, Is constitutional as question construed and applied the case court? If were State State so, courts to take a law, have but good its face, con- strue it cases, to cover however -grossly unconstitutional, there would redress, is might said, The law good, but is not, the decision bad, the jurisdiction within of this court. treat way statute as the State it court has treated and in the applied a case, then consider it is whether, purpose, for such constitutional. Such has court. A law been the this course in consti- tutional not for- some others. v. purposes, (Golden 3 The Prince, Wash. C. O. R. statute of Maryland, 313.) a tax on levying operation bank in that State with- put out of its not consent was legislature, decided as unconstitution- al in It the abstract. was undoubtedly good as banks, to private or those of other when it Statesbut was the State applied by courts of to a branch States this Bank, then court United decided for that it that, was bad, unconstitu- purpose, being tional. v. 4 (McCulloch Wheaton, Maryland, .235.) statute of York, New the exclusive of its granting navigation COUET. SUPEEME The1 West River Bridge Company i». Dix et ál. was, steam-vessels, waters by court, this holden as uncon- as vessels stitutional, applied.to coming without the State. Ogden, Wheaton, (Gibbons Indeed', 209.) words of States. United statute are carefully to such adapted, an ob- It not ject. that this court is provides, merely bn the pass of the State but on -constitutionality law, any authority exer- cised State. If, then, that, in appears this case, the plaintiffs’ been invaded rights.have by any authority under State, or the State to the by any .the repugnant law Consti-. tution of the United the decision of the. States, State court must be reversed. I. It is insisted defendant, this is pretended ex- ercise an power domain, eminent incident of sovereignty, taking private use; property —the when, in truth and is but an actual reality,' impairing force of a destroying obligation contract,'contrary of the United States the provisions Constitution. This to be effected under the attempted disguise, calling ¿s grant franchise is no such property. It property

falls be the within, subject-matter can of, eminent do- main. The idea of the domain was the original eminent residuum of the land sovereignty, over which re- power mained in the or lord sovereign after the fee paramount granted,. to the and was feudatbry, therefore confined to the realty.' of arts and progress when commerce, be- personal property came worthy legal consideration, power sovereignty was extended over and even that, included debts. But this grant can fall within no such plaintiffs category prop- erty. It is a franchise, franchise. It included the pure of no real or personal. lay grant, It was livery. in, created and had its by', existence the grant in the and it could cease contract; and de- only by impairing that contract. If a ás a stroying in contract, debt or chose domain, could be taken action, under the of eminent (cid:127) still the But' this is debt is on foot and in force. yet kept not to take and actu- attempt, ally contract, in force this keep if it has true, it. Even were extinguish destroy as. been holden, or ac- which the create corporation and the quire, of which would not the grant, .taking destroy be taken might exercise eminent proper this-power domain, yet grant itself, franchise, A property. “ franchise is defined or branch royal privilege king’s subject.” in the hand of a prerogative, subsisting State alone erect sustain possessed across streams in the toll-bridges large highway. as to a prerogative certain duly granted plaintiffs 517 Bridge o. Dix et al. Company The West in the and within plaintiffs’ hands, limitations of ; stream not be could overthrown the exercise of by another the grant, of only arid no sovereignty of force. equal greater branch in a the shares true, corporation is but the It are. be is not. It cannot taken to liabili- respond any franchise and of the only extinguished corporatipn, ties c<tn b/-for- unlike land, It is of to-which the entirely grant feiture. — it, this, this is a of court grant royal State compare pre- or branch when land is whereas, rogative, sovereignty; to enforce the sovereignty, laws, all levy powers granted, taxes, and in all other remain still State over respects, territory. the granted States, sovereign States, IL All must powers subject limitations the United always expressed can Constitution, (nor more be they permitted States to. any limitations the exercise one branch

overstep power by to them, than another. What is forbidden sovereignty not be do should directly, cannot they- they permitted indirection. other color, oblique . to do by Among pretence, — is No State this: restricting- sovereignty matters limiting “ law of con- obligation shall impairing State pass like other domain, every The sov- tracts.” eminent power is to this limitation and subject ereign power for the Laws creating corporations, powers prohibition. benefit of the. individual even corporators, for though railroads, &c., like have turnpikes, almost toll-bridges, al- purposes, court in the every Union, this by ways, court, the government been decided be contracts between franchise was plaintiffs’ and the corporators. for one hundred this act of years, contract under, contract is it; and the proceedings utterly destroyed.; arid State can no more this impaired, do under eminent law- doiriain, under than , said, other is It sovereignty. making power, exercise of because, is eminent safe, citizen whatever he is for is taken. domain, to receive the mode amount of furnishes no com- security, That is fixed ex its government agents; parte pensation and, of the Constitution is that, general, besides prohibition exercise of this power and contains exception as to domain contracts. eminent the im- Constitution,.which forbids If the provision .of the does not extend to the contracts, contracts pairing destroyed by are left subject State governments, to. n faith. end of- domain, eminent then there court which has writer, almost said, every every vi. von. SUPREME COURT. West River et al. Dix subject, the eminent passed- domain, that it must rest “with legislative determine power when public uses re- quire assumption' and private property,” to regulate the mode of Kent’s compensation. (2 If Comm. to this 340.) be holden that this extends even to contracts of the govern- ment then it itself, follows, that the State Mississippi, or any indebted, State has but lawby other to declare that public that the good requires debts, State shall bonds, &c., be taken for the ent market value declare them use, and to.fix appoint commissioners their.pres- holders, and, on payment thereof, is the real

extinguished. Such character of this transaction.' III. The power authority exercised under the State in this case was this: under the pretence laying.a new.high- none where was and

way, have taken required; none, fact, laid, they the, a and abolished franchise, tolls of a chartered statute of uiider bridge. By is which this proceeding “ it is to be justified, provided, attempted whenever there shall.be occasion for any highway,” new &c. this &c.$ a case, it there had been there highway appears this, 'was, in that and 1796, and built this bridge highway, pub- .lie was who followed made stage-road commissioners for more than a mile south of survey this across it, bridge, and this and two miles north of without it, was variation; ap- thus that no proved by 'court; deciding new conclusively was All required there. that was mere highway pretence and (cid:127) fiction, and shown to be false. Let us now record re- duce that statute of the as it tof.undisguised State, English was construed and enforced exercised under authority State case. in this Whenever heretofore toll-bridge granted becomes-of value to the and thereby obnoxious proprietors, to the inhabitants of the a vicinity, they may present petition therein, Court, County to.their that a new falsely pretend is .there and the court shall highway needed, commis- appoint sioners, óf own who selecting, lay their out .pretend new old one follow the across the highway, really - bridge, damage proprietors appraise ; and the court bridge adjudge, may thereupon declare all at said though tolls cease on said sum being paid, of the' grant time has not sum does expired, though Thisjwoúld be, half the franchise. value of the equal not. substance, tolls enacting, paid that “hereafter shall River hereby abolished, same passing because Bridge, being offensive vicinity, proprietors ex shall selected gross parte by sum persons receive - is but shall decide.” All this vicinity destroying' et al. ®. Dix Bridge Company The West under, created, which the franchise the contract domain. Chan- exercising eminent color and pretence : domain, says of this eminent Kent, treating power cellor “— a franchise, or of should vacate grant If they would such cases use or service, under á of some pretext attacks on discretion, of their fraudulent be abuses and void/’ law unconstitutional clearly rights, Kent’s Comm. (2 340.) where the has has in every IV. It been holden point court, of this that every arisen, judges turnpike, before made still corporation, railroad, a toll-bridge, though an erection for therefore use; highway, in such take private making compen- clause without consent of for such therefor, owner, high- sation domain. éxercise of the of eminent way, legitimate delega- has or the When, therefore, exercised, its and been" tion of exercise has been to the granted corporation devoted to the used, and the and been taken private property All on the úse, subject. the itself has exhausted public that power with the remains is of the State corporation, the contract the that that be is, by corporation the erection shall sustained the re- for therefor use, by and received public abolish can State ceipt this contract Now; impair certain tolls. the domain of eminent exercising the by again power ? Can the We del- eminent subject the the State to say corporation, consideration, to for good egate, you, power domain in to make a road or for bridge taking property public We will assume and use; done, when this then say, again and sold exercise over same we you very delegated to ? you V. whether, It is not now to for the inquike pur- necessary of' new, extensive, highway, some continuous pose making canal, railroad, or and which required, public good which short, railroad, it required including within some turnpike, or or bridge, or toll-bridge granted, previously turnpike, object. in the greater railroad not be might merged legitimately whether this case, bridge Nor is it to decide necessary, to destroyed franchise be taken might prevent not dif- fortification; any or to into a or for invasion, convert public ferent use it is already from to which appropriated. that public character, prop- be This case cannot very distinct erected in erly confounded such cases. is devoted constitutes highway, highway, that part can the pro- nor to as a use exclusively- public highway; The at- it. of so any using one of the prietors deprive new is, public to it to tempted proceeding appropriate SUPREME COURT.

(cid:127)The West.River Company ». Dix et al. use, but to it devoted to keep precisely contract same Use, but only to abolish tolls, by belong plaintiff. It is said the State court, this is that the same as a grant Let land. us, then, this to be so, supposing inquire whether land, a .State, for having, good consideration, granted in fee- for simple grantee to use, improve, to occupy, sell to others for same under the purpose, can, eminent domain, any form, take land the owner, that and com- him to receive a pel sum which the State’s commissioners shall state, for the same purpose State,- for the using, n same it was used purposes before sell owner; grant' others, for same If and uses. this be purposes so, there is no have the right to limitation for, as the alone power; legislature when and determine what private property shall be for use, taken public there that superadded, shall determine they what is also public use, it must follow that courts have often said, what State could not take one man’s give another, is -not true; they have but declare that will take for the use of the State, and then it to greater others price better cultivation; or take the lands of all for an agrarian operation for the benefit. If these tolls abolished by this what from granting same proceeding, charter prevents ? to some to-morrow favorite political that can obtain no should here observed, pe- benefit similar nor relieved cuniary of this or operation, derived thereby, fraudulently what is except any,burden com- on the other coercively insufficient imposing party as in this case. What ought justly pensation, plaintiff .the receive was the that sum which franchise, is, value the tolls would him of sus- yielded expense have beyond If justly plaintiff taining bridge. pay the and then outlay precisely. the their sum, same as support bridge, sustain, bridge, the and to they paid left plaintiff object of this tolls. can be the Unjust oppression proceeding. This a few which within domain, only in this eminent power, the was years country, first naturalized and recognized has to of the It Unknown States. our or that Constitution been and governments, from writers on other adopted arbitrary all the heretofore goes regard- powers that the-ground, ed some existing as the of must be incidents sovereignty true. of But which is far from department State authority, be is to found being now our in.court, only security recognized in this and well-defined tribunal, to some safe it within keep or our will be but unlimited limits, despot- State governments TERM, Bridge Company West River v. Dix et al. will soon citizens. resolve They isriasover them- private, will of selves into existing existing majority, what shall, shall be left to taken, be what obnoxious natu- is easy see, that, ral or artificial a person. by very slight case, on the in this arid improvement proceedings pursuance as to that, of the the exercise avowed of this principle, or their domain, agents, of eininent are to legislature, and to taken, the sole what is what use judges the most levelling it is ultraisms of Anti- appropriated, or Abolitionism may rentism or ad- agrarianism successfully vanced. for defendants error.

Mr. Phelps, 1795, the in' error were made a plaintiffs corpo- In the year of Vermont, of the the State and, act legislature ration by exclusive said had them act, privilege by erecting granted within a over West bridge River, four maintaining tolls certain mouth, taking miles for of its n passing was to continue This franchise term the same. and has yet expired. company of one years, hundred have it until maintained bridge, to erect their proceeded and have, in question, during of the institution proceeding so of the franchise enjoyment grant- time, all that was instituted Court County ed. In proceeding which said was sit- Windham, bridge within for the county Vermont for law uated, general which highways, by proceeding and opening out laying the right and free highway, made was judicial de- was effected extinguished. tolls take termination qf conform- jurisdiction. court competent whole statute, with the ity provisions and due franchise, appraised, pro- realty both plaintiffs, vision made full to the value plaintiffs same. force and still in (passed of that then aBy statute have Courts County the Supreme November, 1839), easement, franchise, real estate, same power take in their when, judgment, corporation, other any turnpike have "by highway, requires public good law to or private property. over individual out lay highways seek to reverse the proceedings error now The plaintiffs court, ground of the State judgment to authorize so far as it statute, .professes above-mentioned is unconstitutional of their franchise, the extinguishment void. the State States of the United The Constitution

522 SUPREME COURT. Bridge

The et al. v. Dix of Vermont both take recognize right private property — declares; latter use. The to be ought “That subservient private property requires uses when whenever it; nevertheless, necessity taken the usé the owner person’s property public, to receive in money.” ought equivalent as well as the similar one in the provision, Constitution of the United States, power, does not confer the but merely limits its exercise.

The itself is ah essential and attribute indispensable which can be neither alienated nor sovereignty, abridged by ordinary legislation, the limitation Constitution, Without imposed by might

be exercised without of Cast Plate compensation. Gov., &c., 4 Meredith, Manuf. Co.~v. T. R. 1 794; Stark v. Nott McGowen, . C. R. McCord, S. 387. &> Full plaintiffs having provided with, cáse, does not conflict the constitu- proceeding tion of Vermont. Nor that of the United as the States, in that provision not is' restrictive of. the States, instrument but of the general only. government then,, proceeding, being regular legitimate exer- cise of of the State, the constitution power, warranted arises, Does it question conflict with that Con- provision United stitution States which State from prohibits a law ? And this passing impairing obligation.of contracts itself question into another, Does this namely, resolves provis- ion of the Constitution override, annui, abrogate right as it domain, eminent would in the .sover- otherwise exist States ? eignty respective For if this is still exist, supposed notwithstanding this clause of the Constitution, then its exercise' can- legitimate with that provision. conflict held, All real held, estate supposed the State. If it cannot be taken for use in proper case, and in a way, proper .restriction constitution, then it cannot all, i>etaken at and the right eminent domain is gone. still remains is not now

That in the several States to be questioned. ; Beek- 20 Johns. 742 Rogers Bradshaw, 3 man v.<Sar. and 45; Schen. Railroad R. Bos- Co., C. Paige’s ton Water Power Co. v. Co., Boston and Railroad Worcester Pick. -‘360 15 ; Verm. v. Warren 745; Charles River 7 Pick. 11C., 459 S. ; Peters,. Bridge, But is no en- there need authorities on this' point. dge Dix al. Company The West. River Bi s. et judicial tire universal of the country, practice opinion from the of the Constitution to extra-judicial, this adoption day, have settled the matter. It is not the that of this restriction supposed, purpose was to in the several State extinguish so power sovereignties essential to the exercise of their functions.

If, this obnoxious to the then, objection of vi- proceeding the it must be for some Constitution, other reason than olating once granted by State, because has been private property, use in the manner out resumed for pointed con- (cid:127)- laws of the State. stitution and does hot If this restriction forbid the exercise the power, ’ - it ? does it limit control it does. is a contract, A Unquestionably which defeats or it, out of in a thing impairs' rights growing manner inconsistent with the constitution and laws of the Thus, be said to to take its obligation. impair pri- vate for use without where the property compensation, State doubtless, constitution forbids such is, taking, prohibited by that clause of the United Constitution States which that no law shall'be provides passed obligation impairing of contracts. to render of emi- order, then, the exercise right justifiable nent domain and consistent with the' Constitution States, be, first, the United it is admitted there com- should constitution owner, requires where the State pensation it; a rational exer- and, for the act as secondly, necessity requires. cise of in view its end and power, keeping purpose, the, toAs it is in this instance compensation, fully provided So on this for.' the law of the State scrupulous pojnt, was the whole not .only compensated property plaintiffs is made for at in this value, instance, appraised provision its revision Vermont, statute Statutes of (see p. 133) subject, cases, judicial in certain tribunals. , notice It was that no objected court, before the before commissioners, given proceeding plaintiffs by assess damages. The State found notice was as doubtless, given, court, if fact were the return of the so But commissioners states. as the not otherwise, does vitiate proceeding, omission alluded a case. just statute in such remedy provides The of com- value of and the amount plaintiffs’ property determination, pensation having judicial been ascertained by ( reasonable court will not whether it was in fact inquire conclusive, and not. adjudication of the State court is this, an error of would not vitiate judgment, particular, proceeding. SUPREME COURT.. Bridge. Dix et al. is as to

The next inquiry necessity for exercise of in this instance. It is admitted that the to take use Yet necessity. that need be of depends upon public the — an character, stringent unavoidable, uncontrollable most It is if interest or necessity. enough the public convenience short, it be a it; measure require public expediency. has been exercised in Upoft principle vast majority cases All modern throughout country. im- means communication stand provements upon this New roads ones footing. venience alone. are substituted for for con- old Canals railroads are not indispensable; may subsist, done, country without them; yet has. connected, are so with they the intimately the interests of great and have country, such important bearing its upon pros- and welfare, that the perity propriety exer- legaliiy cise of this of eminent domain for their right establishment have never doubted. If the exist the power State governments, power of in. óf judging its exercise in a reasonableness of given case, and. which degree necessity justifies the generally exist, use, to appropriation also. private property must there This is-.admitted to to the power State appertain legisla- , tures, and may, question, without be delegated by them to the judicial as it is often tribunals, to delegated private corpora- tions and mere executive officers. When exercised by it is- of latter, subject judicial course revision and control. this stands the Upon ground in proceeding in chancery court, State has been hither brought writ of error. judicial function must be vested somewhere, from nature very it, reference having to a of mere matter internal and domestic policy, it must be in the State govern- ment. The decision of is therefore, court point, conclusive, and necessity for the exercise the power in is case established. judicially If, then, the has been exercised to the agreeably pro-

vision of the State constitution, and upon sufficient necessity, and rational and in a proper objects, man- proper legal ner, driven plaintiffs either alternative of admit- ting constitutionality validity of-the proceeding, denying For, such an power altogether. if of it exercise be forbidden in prohibition Constitution of United all States, and every exercise of it is so. equally But that was not prohibition intended to override or abro- Company ®. Dix et al

The West f«ll, domain. latter remains eminent right gate in a exerted sound legislative and' unimpaired, ample, cases and for ends. discretion, in proper and judicial proper, does impair obligation- question The proceeding in 1795. to. the plaintiffs of the grant subject made this kind is the right, Every condition that domain, implied of course upon eminent resumed, for use whenever the may. the property is admitted in it. This require universally necessities there is no and I endeavour show that land, shall respect a like the land and iri this between franchise respect difference whenever the therefore, one in question. resumption, require is. in it, harmony original public exigencies and tenor grant. intent It,is but the or annul the attempt grant, hot.an repeal and the derived from rights its recognizes validity proceeding is made. is on this ground if. It franchise, the State plaintiffs’ It is .of purchase, be'illustrated, to a by grantor its analogy purchase his. own conveyance. of a title derived from originally 'invitum; but,- is, aware, being Í am proceeding than the the grant, no more derogation purchase, seizes of a creditor virtue who, legal process, .course of a conveyance of his debtor held force by'- of that himself, derogation conveyance. is. a sale from the compel of a State Whether condition to itself is derived from implied plaintiffs in its from a inherent sovereignty, unimpor- grant, all, after it is effected, ; legally purchase sale tant than if made is no more inconsistent with the original grant' voluntarily by plaintiffs. of the impair contract, It does obligation because and if the full benefit of ,(cid:127) leaves to the the grant plaintiffs form originally that benefit cannot they enjoy precise law, is the same what, eye take specified, is but is an franchise equivalent. extinguished The thing, purchase; injustice is done, any extinguished must exercise arbitrary unnecessary consist rather denial or impeach- of an than acknowledged power, or the derived validity rights ment of the of the grant, questioning it. or impairing The instead proceeding, it, and gives of the and affirms obligation a contract, recognizes that the upon only ground, simple are grant derived from rights and property plaintiffs not.to be questioned. reclaim, use, The the State general public power, SUPREME COURT. West River v. Dix et al. lands which have been granted will individuals, not be ques- but the has question tioned beeñ ; agitated elsewhere, and may- be started whether a franchise here, granted to private persons for their emolument, for a yet public use, is not the reach of that beyond These power. cases of a being character, mixed combining private right emolument with convenience, question resolves itself into public viz.:— two others, 1st. Are thus conferred private rights of any superior ? sanctity And, 2d. Does the and limited qualified, partial, appropriation use exclude the ifurther exercise of the.property of eminent domain ? right It is think, we make impossible, distinction between franchises thus and titles to land granted, derived from letters- The same exists. patent. sovereign power The same great (cid:127) law of public necessity, demanding private right should yield to both. public,exigency, applies The distinction to be drawn from the attempted supposition, that the citizen takes his of land lmowing expecting that it be resumed for iriay use, but receives his grant of a franchise with different is expectations, evidently dis- tinction without a tion in difference, it is based upon assump- of view every point erroneous. The éxercise of this domain right eminent over fran- chises created special grant common occurrence. are substituted for Bridges ferries; turnpikes superseded by railroads and canals; yet, frequent as this occurrence is, it has rarely contested. of the to take legislature franchises, like other never, use, my for denied. knowledge, been has it has jQn often been contrary,

judicially judicially asserted. See v. 15 Term. Armington Barnet, In v. the canal Rogers Bradshaw, 742, 20 Johns. encroached took upon portion turnpike, latter en- croached yet adjoining land; ' was sustained. In the case of Charles River Bridge Warren Bridge, the ferry, was the of a private corporation, superseded bridge. by the. In the case between the Water Boston Power Company the Worcester Railroad, 23 Pick. legis- lature that case over franchises asserted. expressly franchise was not, indeed, annihilated, was diminished If take a value, the could legislature portion impaired. could franchise, they whole, doubtless take the the exi- it. gency required 527 Diz et al. Bridge ®. Company River

The Weét adverted case Charles here River Phelps Mr. to show the 7 Warren-Bridge, Pickering, opinions Bridge at the and on the bench. bar on this See entertained- point 500, 523, 528. 453, 513, 522, Also, 394, 399, 452; pp. 472, 505, 569, 579, 580, 638, 11 case, Peters, 490, same pp. 641, 644, 645! Canal Co. v. The James also Tuckahoc

He cited Co. v. 42; Enfield Hartford 11 Co., Leigh, Railroad Co., 40, Conn. samé 60; case, New Haven Railroád 398. N. 457, Hamp. 461; pp. real estate of the mind, is to be in the It borne plaintiffs nor was it 1795, acquired from the grant not derived was con- -no State; authority being aid without owner’s act to take-private.property ferred (cid:127)assent. with therefore, if it conflict land, grant, The taking British made crown, from the with the original grant conflicts in collision If it come grant to the Revolution. prior only incidentally it is franchise, consequentially. then, the franchise Unless, legislature, grant . domain with the of eminent over the 1795, right parted' in was to exercised, where the franchise taking, place land for lawful. use conceded to be must ' the- then, the land cari be could riot same If, taken, to ? which'is incident franchise, merely take we shall find that the fran- we to the act If advert . chise of‘to consists in the take toll right upon: bridge, their, land, at their own maintained by plaintiffs, if the itself theiri Now, passes own expense. it, cease maintain take way, right legal n ceases. toll fran- is not one which the case, then, bad faith, is chise revoked or annulled legislature rights one in having thé which, acquired is neither reason- exércise the franchise further plaintiffs, just. nor able argued below, in the court that the franchise not taken, and therefore but where land, annexed “.could land.,” to' take given be exercised at .franchise, any place might grant, four miles the mouth of the river. The proceeding within place., its exercise in this merely prohibits particular question value enjoyed it to be if it be leaving elsewhere,, within view, In this the case falls plaintiffs. precisely decisiori v. Worcester Boston Water Power Railroad, 23 Pick. SUPREME COURT. Bridge River Company The West t>.Dix et al. had a however, given The location plaintiffs, it, and its being exercise elsewhere of no probably the value, case was court as treated the practical .State extinguishmént of it,' made and accordingly. matter, the In this view franchise still subsists, im- the establishment aof only by paired public highway particular place. the Does qualified partial appropriation plaintiffs’ use exclude the exercise of the property public right em- inent domain ? is observed, It to be the land that had plaintiffs never taken been sovereign for use until the power public pro- was ceeding question instituted. was voluntarily now. devoted to use that with a view to plaintiffs, the enjoy- ment of the franchise. The is. still property private, use public it only by an- form toll. paying equivalent,

Were it it would be otherwise, difficult to make out that a exercise partial eminent domain exhausts the or that, devoted to power, being property public use, the sover- . eign cannot or control power regulate, that use. modify, The of such fact devotion -comes rathér in aid, than otherwise, of the public right. Whether, therefore, we have to the fact regard toor property qualified use, there is private, public for

impediment absolutely more taking enlarged beneficial on the use, one public hand, modifying chang- on the other. ing use. difficulty arising There is no from the that the fact, property already sequestered public use; but thé difficulty has' as arisen, show, cases from the reported employment pri- vate to exercise corporations question, and to carry out these measures of great internal improvement. objec- The started, that, tion was first in the case turnpike railroad has the citizen been corporations, property not for taken, for use and benefit of use, but public tion. private the corpora- however, The been has, proceeding sustained, upon been ground, that, although enterprise undertaken with has (cid:127) a view private emolument, yet ultimate is the purpose convenience; legislative public can take pri- such, for it may vate taken purposes, through as well corporation, of a agenqy executive public where So, officer. a grant of franchise comes in collision awith of a been previous grant kind, similar it has objected, that it was thé for to' take the competent legislature prop-' of one erty for the use benefit another person ; yet such al. v. Dix et

The sustained, it is for been where use, has public a proceeding the sacrifice. requires to the public increased benefit The however, objection. is free case, Our prop- benefit another taken, private has not for cor- erty use. solely but strictly and. poration, that no new State'court, The objection urged high- out, is laid is founded erroneous way assumption. is, sense, free in a different legal highway which is way, from a bridge, thing use a toll, which the citizens in each only paid instance' of using. in a limited sense. That it highway for the courts,

was under the competent legislature or the the to statute, enlarge is, think, public.use, I clear. (cid:127) objection is, If no new in- highway necessary, as the there, asmuch had a of and public already right passage use the as is, had answer way done, could they previously of the -courts over this matter is not limited to the;,power of at strict, cases absolute are necessity, liberty but they consult and to to a convenience, look more beneficial and use. enlarged are the constitutional They judges on this their decision conclusive. point,'and upon The statute of Yermont, under which the court proceeded, “ does not use word necessity. is, Its Whenever language shall there be occasion for a new &c., “when, .highway,” in their requires judgment,1 good pub- court’s] [the lic highway.” There are-several made courts, in the State which are points rather courts, discretion of those addressed have bearing upon constitutional it is not question; necessary deemed notice them here.

Mr. Justice DANIEL delivered the court. opinion'of the The . West River Bridge vs. Company, Plaintiffs, Dix Joseph and the ants, of Duramerston, Towns Brattleborough Defend- a writ of to the upon error Court of Supreme Judicature of the State of Yermont, certain sittihg proceedings of law, court

The same Plaintiffs, vs. The Towns of Brattleborough and Dummerston, Asa Dix, Phineas Joseph' Boyden, Un- derwood, writ of error to the Court Judica- Supreme ture, and to of the Chancellor' First Circuit Yermont. These two causes have treated as one, argument von. vi. SUPREME COURT.

The West River v. Dix et al. — are. they essentially and such Though” in dif- prosecuted in different and, forms forums ferent below, are they merely modes various attain the endeavouring end, same and a in either only question decision raise for the cogni- court of this disposes zance of that equally question other. before They brought us under the are section twenty-fifth Judiciary Act, order to test the conformity with tbe

Constitution the United States certain statutes of Ver- mont laws that have ; been sustained Court of Supreme Vermont, but which it is.alleged tenth repugnant section the first article of the Constitution, prohibiting of State laws passage impairing contracts. obligation from the of these appears causes, that, in year records error 1795, plaintiffs were, act of legislature Vermont, created corporation, invested with the exclusive of erecting bridge over West privilege miles River, four within mouth, of its tolls taking pass- same. franchise granted this ing was to corporation continue for one hundred years, the period originally pre- scribed its duration has not yet expired. corporation for. their have erected maintained and used bridge, enjoyed it, the franchise granted, until law, the institution them now proceeding under review. By. law of general roads, Vermont relating passed 19th Revised of Vermont, p. Laws 553,) [vide November^ Courts are County authorized, to- appoint upon petition, commissioners to counties, holders out lay their highways within respective and to assess the land- damages which accrue may. the by of roads, and the opening courts, these upon of the commissioners so reports are appointed, empowered roads establish within the bounds of jurisdiction. their local A similar is vested in the Court, to out and power Supreme lay establish highways several counties. extending through an of the By Vermont, act of legislature passed November “ 19th, it is 1839; there declared, that whenever shall be occa- sion any new in or State, town towns of highway the and Supreme shall have Courts the same County power real estate, take or. franchise easement, any turnpike corporation, other judgment when in their re- good the public a public quires highway,.which have, such the courts now State, to. lay laws vate the individual or out.highways over pri- and the same' property-; and the same granted, observed, in rules shall to all making compensation and persons whose franchise, corporations estates, easement, taken, are now shall be rights granted and other provided Bridge Company v. Dix et al.

T.he of these the authority statutes, Under cases.” was instituted in the proceeding modes therein prescribed, Windham, Court Dix County upon petition Joseph of that judgment court, and others, which, by puKic and established between road was extended certain termini; and convert- over upon plaintiffs, passing it highway. By into a free ing proceedings mentioned, was judgment just assessed for this awarded their plaintiffs appropriation consequent their franchise. extinguishment Court, been carried County having certiorari judgment before Court of the State, was latter tri- Supreme bunal affirmed. law Pending of Dix petition at proceedings bill was others, in error to the presented plaintiffs Vermont, chancellor the first judicial circuit of the State of injunction to those so far as related

praying proceedings to the to the estate, real or franchise be- plaintiffs easement, to them. This bill, been demurred dis- longing having to, was missed whose on chancellor, decree affirmed appeal to the and a writ of error to the Court, last decision Supreme the case on the second record. brings up in these considering question causes, there propounded can doubt, be no nor has it been doubted on argument, either side of this controvérsy, charter incorporation granted plaintiffs 1793, with the rights privileges it-declared or formed implied, of between the contract plaintiffs the State Vermont, latter, under the inhibition in the tenth section of the first article of could Constitution, have no Yét impair. taken proposition, though as a postulate both sides, determines as to the real nothing merits of these causes. True, furnishes a to-our in- guide quiries, yet leaves those tent, as to the real still inquiries in their widest ex- open, with reference to position parties State legislation or to the Constitution. Following guide thus furnished us, we will to ascertain that proceed position. No shall declared, law pass impairing obliga- tion of contracts; yet, this concession constantly yielded, it cannot be justly that in disputed, every political sovereign there community inheres necessarily the the duty aqd its own guarding existence, protecting promoting the interests and welfare of the at community large.' power and this duty to be exerted highest acts of sovereignty, of relations govern- external ments ; they reach and likewise interior comprehend pol- ity of relations social life, which with regulated should.be SUPREME COURT.

The West River b.Díx et af. of reference the whole advantage society. power, denominated the eminent domain of State, is, as its name to all vested imports,-paramount ernment, subordination to this to its rights gov- the. last are, these necessary held in implication, yield and must power, every instance exercise. proper of- The Constitution States, the United although adopted by of this sovereign .States Union, in its proclaimed own mguage law for their supreme can, government, rational, attri-, no interpretation, conflict with this brought bute in the States is there no of it ,(cid:127) delegation express Constitution; it would an incredible fatuity imply States, ascribe to them the intention to relinquish to. of self-government A correct view of and'-self-preservation. this matter must demonstrate, moreover, that emi- right nent domain in in no government wise with the interferes in- that the violability contracts; most sanctimonious regarvd one consistent perfectly possession exercise of the other. Under government, established tenure every property is derived or from the mediately immediately sovereign power or in such mode exerted political body, organized or, f.neh as the have way community State- thought proper ;c ordain. It can rest on other can have no foundation, other, It is to these characteristics guarantee. only, owing nature of can be made to the original tenure, appeals laws either for assertion of the protection rights prop any other the law of would erty. be hypothesis, Upon property the law force. the in undeniable, Now it is simply vestment in the citizen whether government, made for consideration pecuniary or founded on conditions civil or duty, is a contract political between the as its both the government acting and the agent, grantee; to, thereto are bound fulfil it. But into all faith parties contracts, good whether individuals or be made between States and tween individuals which arise not' there -enter conditions only, itself; out induced the literal of the contract are they super- terms laws by the preexisting. higher' authority nature, of -of nations, community parties are and must be belong ; be known always presumed, presumed, and need all, recognized by all, binding upon therefore, never, into express carried stipulation, .is add made in to their force. contract nothing Every could them, control, con yield and must to their subordination for their necessity ditions wherever a inherent paramount, of emi execution shall condition occur. Such al; Bridge Company River ®. Dix

The West et This does not to the nent domain. con right operate impair its it, but in the tract fullest by recógnizes obligation effected the fulfilment of an extent, claiming essential insepa qualifi or- Thus, rable condition. in the claiming resumption it investiture, cation of-an insists on the true nature merely of. character the invested. The of con right impairing tracts the Constitution can by inhibited scarcely, great est construction, be made violence of the enfor applicable to of of lan cing necessary import contract;.the terms of the-inhibition were to guage meaning embrace designed of some new term or proceedings attempting interpolation condition incon foreign original therefore agreement, sistent with and violative It, thereof. that the then, clear being in power tion question within of restric being purview thé tenth of the section first article imposed Constitution, remains with States extent in it to the full in, be exer evéry sovereign which cised inheres to government, in that shall them that them deem degree ed commensurate public necessity.. long So shall steer clear of single predicament. Renounced ' Constitution, shall avoid interference with of obligation- contracts, the wisdom, modes, policy, hardship any exertion of this subjects not within power proper this cognizance of in is, question truth, courts purely and, the State power; to reside in conceding power this concession would seem to door government, upon close the all further in instances controversy connection with it. The of this exertion other, in some mode or power, foundation civil very have been so numer government, familiar, ous and that it seems somewhat at day, strange, to raise a doubt or question it. In whole concerning fact, - n policy country, relative and ca- roads, .mills, to bridges, nals, have single rests power, which lands upon condemned; without the exertion of this power, always not one of the could be con just mentioned improvements structed. our that the country, is believed power never, or, at until the seems rate, questioned, rarely, opinion have obtained, to in a cor that the chartered right property was more sacred and than poration right. the same intangible could which possibly,be citizen; person opinion be de must be can rest until it grounds upon, without to. monstrated creature person, either the ideal more.than or the For, is less. as a being question corporeal persons, uses the property private appropriate there resting, right, .ordinary private foundations would A dis difficulty. seem to .be room nor neither doubt

45* SUPREME .COURT. The West Company ®. Dix et al. tinction has been aof attempted, argument, between the power government appropriate uses be said to corporeal, may being, the like power pr government resume extinguish franchise. The distinction thus we as a attempted regard refinement which has no foundation in reason, one that, truth, avoids the true or constitutional legal the question causes; in these namely, in the use or persons, enjoyment their private property, and control and actually prohibit of the duty government advance and protect general We good. are aware of ato franchise nothing peculiar which can class it higher, or render it more sacred, than other proper A ty. franchise is and it is property, nothing more; incorpo real and is so defined property, Justice Blackstone, when in his treating, of second volume, 3, 20, chap. page Rights It is its character of Things. property only imparts to it value, and authorizes in individuals a right action alone or disturbances of its enjoyment. invasions Vide Bl. Comm., Vol. III., 236, as to 16, injuries to this chap. p. description of and the remedies property, given them. redressing franchise, therefore, A to erect to construct a bridge, road, to and keep ferry, to collect tolls them, au granted thority of the State, we the same regard.as occupying position, with and respect paramount power duty the.State to promote and as does the protect public good,1 citizen to the and his land possession under his enjoyment of patent or.contract with the any obstruction in the and it can no more interpose of their Such way just exertion. ex ertion we hold to be not within the Constitu inhibition of tion,, and no violation aof contract. of a State, The power in the exercise of eminent domain, to extinguish immediately a franchise it had never to have been granted, appears directly- here brought adjudication, for. and has not consequently heretofore formally from extent, but in propounded court; Eng land, this to the fullest power, recognized case of the and Governor of the Cast Plate Manufac Company turers v. Meredith, 4 794, Term Lord Kenyon, Reports, especially en case, solely upon founded tire policy of all laws the road canal authority kingdom. The several from 3 decisions cited the argument, Paige’s Chancery Pickering, 361, p. from 23 Report's, 45, p. from 17 Connecticut 454, Hampshire from 8 New Reports, p. Reports, p. 398, 371, from 10 New p. Hampshire Reports, 11 New with the de- Hampshire Reports, 20, accordant p. are. cision above East, entirely 4 mentioned, Durnford 535 a!. Bridge Company v. Dix et West River ''One of these State decisions, namely, it. supported case v. The Enfield Hartford Toll-Bridge Railroad New Haven Company, Reports, Connecticut. in an attitude so asserted seems striking, principle places of a case notice. The worthy legisla render that separate the Enfield Connecticut, having previously ture incorporated in a charter inserted,- subsequently granted Bridge Company, Railroad them to the Hartford Springfield Company, “— That words, in these therein con nothing provision construed tained shall be prejudice impair any the Enfield now vested in Bridge Company.” rights as its seem be, comprehensive language may provision, was decided Court of State as not em Supreme from the bracing qny exemption Bridge Company legis lative of eminent domain, franchise, to its respect — declare this, that, but to and this only, notwithstanding a railroad from Hartford to privilege in constructing Springfield route, the most direct the latter char granted by feasible Enfield ter, the franchise should re Bridge Company main as as the of other citizens of the State. inviolate These decisions sustain clearly com following positions, in this summary Chancellor prised given by Walworth, Paige’s “ where he Reports, p. that, says, notwithstanding- to individuals, the eminent domain, most exact highest idea of remains or.in the government, aggre in- in their gate body people sovereign the capacity; have a to resume the of the right possession the property directed tne manner constitution and laws of the State, whenever the public it. requires interest This of' re be exercised, may where sumption where the only the safety, also interest, or even the of the State is con expediency, In these positions, cerned.” no containing re exception with ain franchise gard we property which should (an exception to be without warrant in we deem the true- recognize reason), doctrines of the law to the cases before us. applicable as — the considering constitutional question the power, — question properly records, these presented upon we institute as inquiry the of the adequacy, inadequacy compensa tion allowed to the in error for the 'plaintiffs extinguishment their franchise; nor inquire into the between conformity do^e the modes the statutes of and the prescribed by Vermont pro which ceedings of those actually were‘adopted the execution these are statutes; matters as court regarded by peculiarly to' the belonging cise tribunals the for the exer designated by State of her legitimate as without the authority,, being prov to this assigned ince court by .Act. Judiciary SUPREME COURT.

The v. Dix et al. for, we Upon whole, consider authority claimed State of Yermont, the exertion that authority and. has occurred provisions under statutes above mentioned, of the franchise extinguishment previously granted us, as set records before plaintiffs, no instance of forth,upon as presenting of a contract, within impairing the meaning tenth section of the first article of the Constitution, and case which is consequently no proper interposition court. The decisions of the Court of Supreme Yermont are therefore affirmed. Mr. Justice McLEAN. As this is a constitutional of considerable question practical will

importance, subject. state, I succinctly, views on the my general

The West River Bridge, the statutes Yermont, was And appropriated charter public purposes. alleged under which the was built and possessed by' such this was Our inquiry is appropriation impaired. limited to ' For whatever injury the point. proceeding may have done to the interests of the unless its corporation, contract was we jurisdiction have no impaired, case. The ain State to take use power property public

is undoubted. is often essential to advance is an incident to its sovereignty, exercise interests. act done If under the State. those regulations regulations have not strictly been is not matter observed, of inquiry for' this court. local tribunals have power exclusive cases. This act a State has never held obli- impair of the contract which the gations property appropriated held. acts not on the con- A a grant tract. made. by State cannot annul or of land modify fairly take land for use. taken, done But it This is for the making compensation law. property provided But if it be an appropriation use, it con- be held to obligations cannot impair tract. insisted,

It is that this was a exercise of the pretended domain, of eminent the view of the force with destroying the the of charter. obligation plaintiffs’ under a law whole of standing the proceeding on an the State, sanctioried, by arid it was appeal, Supreme A thus by law, Court of the State. authorized procedure has all cannot be the sanctioned, regarded. solem- lightly sovereign nities of a act. ®. Dix et al. The that the franchise of the it is said cannot plaintiff But de- bé (< it included of nominated no property; grant property that it in lay grant, real or not personal; livery.” of the State had If the action the franchise only, ' be objection would unanswerable. The State cannot a a charter for a bridge, modify repeal or a turnpike-road, 'charter, unless bank, or other to private the. power do.so (cid:127) grant. has been reserved But no original one doubts a of the State take banking-house for power public use, owned real property by other the bank. personal In a subject this domain, holds corporation property eminent respect, ;The as citizens. object the same of an great act of is, to enable a of men to exercise the body facul- incorporation ties of individual. vested privileges sometimes Peculiar with the view of body conven- politic, advancing iénce and interests the publie. a The no more than can be, franchise land annulled the State. These muniments right are protected. alike But under both held to a property subject public held determined the State. necessity, In case, either be. taken renders being valueless property evidence right. riot, But this does sense Constitution, impair contracts. The and the bridge ground it, connected with to- toll, gether constitute the-value of the right exacting the elements which are. The situation bridge. arid produc- soil tiveness the value cases, land. both constitute an estimate is made value, of 'the under forms, and prescribed it is when the is taken-for use. paid And public property these cases the evidences of are incidents to the property.' charter, No State resume under power could appro- priation, and the-functions A corporation. carrf bank be charter could riot thus taken, and the business of the for,' bank continued Nor could this public purposes.' State, have been kept by it, taken as. toll- up bridge. not be called an This could appropriation There would be property change purposes. use, except and this profits, would application not the act within bring must power. not bona but -the its not property, prod- exercised uct, fide use. must applied It is argued, that, take iriay this bridge,.it the. n it to other individuals, transfer charter. This the the same or different do. in effect be

State cannot It would B. taking from to convey A real', for which purpose is exerted must pre- tended. If in the course of change time

SUPREME COURT. l)ix Bridge -Company The v. et al. no be should for circumstances, longer required public use, it of. But this ais case be-otherwise not may disposed likely of the act depends upon occur. The facts cir- legality n it was done. If the use of land taken cumstances by vert, which a abandoned, should be it Would re- highway public and owner the fee. to the original proprietor a owned objected by It- is this bridge, being corporation does not within and used come by public, designation whether owned an indi- by All privaté property. sole, vidual a is within individuals, corporation aggregate not all is short, the term. private. property , contended, it is is the same as before The use of this bridge, The use the now act of appropriation. But it was a before the act of by toll-bridge, appropriation. use, it is made is not therefore, the act free.- the same. The town, The assessed the citizens tax keep up (cid:127)but unjust; for the that is not pay bridge, may impolitic of this court. matter for consideration It is is sustained the State of Ver- by supposed, power of a mont, wilLbe 'in the State to seize evidences power citizens, juris- of its in the hands of its or within its indebtment assessed, and, amount, have their value diction, by paying bears them. Such case the one be- analogy extinguish fore acted in the case us. The is only supposed. contract is The State im- materially money by obligation pay Constitution. But which case within the paired, brings or title.by affects contract the. appropriation ,is an ex- said, it is This, which it is held only.^incidentally. sustainable, as it ena- technical and is tremely bles a distinction, to do prohibits. State what the Constitution indirectly be, when However nice the exarn- distinction seem ined it will be found substantial. has never been The held State power appropriation of a obligation con- judicial tribunal as impairing And this has tract, in the Constitution. power sense of States, since the been all adoption exercised frequently of the amendments to fifth article Constitution. In the “ the Constitution it shall declared, private property is Nor This refers use just

taken without compensation.” action of the but a similar provision to-the .federal government, the Constitu- in all Now contained the State constitutions. the obligation tion does not a State from prohibit impairing inhibition is made, contract unless the prohibition, So that if an act come within absoluto. exercised the’ has unconstitutional. But act by since foundation of the States, government, and.no. TERM, Dix et al. West River that clause prohibited has one supposed “ .obli- inhibits impairing Constitution of a contract.” gations we to which come result, therefore, reasonable can power, in the State is independent that the is, the Con- within the class cases does not prohibited come stitution. n a sal- in imposing view the Constitution effect give's contracts, leaves affecting restraint utary legislation upon ,the domain, exercise of the eminent States free in their the advancement is essential for belongs to their sovereignties, within internal and acts only property upon improvements, do not belong their jurisdictions. powers respective same That which acts contracts impairs class. their is obligation only prohibited.

Mr. Justice WOObBURY. In the decisions of on this court questions constitutional it has that, happened frequently, though its members were united in the judgment, differences great among ^existed them in the reasons for it, or in the limitations on some prin- been, involved. ciples it has Hence such in customary cases their express views I separately. conform to that in usage case the this more readily, as it is one the first impression this tribunal, very important its consequences,. as before a great landmark for the States as well as the general govern-, ment, and, from shades of difference even conflicts in opin- ion, will be open some misconstruction. I take the liberty say, as to the then, cardinal principle in, involved case, this that, in all the my opinion, property State is derived from, or protected by, its government, and hence is held subject to its wants in and to taxation, certain important public uses, both .in Vattel, B. peace. 1, war ch. 20, 244; 2 Kent, § Comm. 270; Jurist, 37 Am. 121; 1 Bl. Comm. 3 139; Wils. 3 303; Story on Const. 3 661; Dallas, 95. Some ground, on public right sovereignty. Kent, 2 Comm. 339; Grotius, B. 1, Some, on 1, neces § ch. 2 sity. Johns. Ch. 11 162; Wend. 14 Wend. 1 51; 51; Rice, 383; Yanhorne’s Lessee v. Dorrance, Dallas, 2 310; v. Dyer Tuscaloosa Bridge, 2 Porter, 3 303; v. Harding Goodlett, Yer ger, 53. Some, on implied compact. Gaston Rail Raleigh & road Co. v. Davis, 2 Dev. Bat.& 2 in S. 456; 36, ;Car. Bay, 3 Yerger, 53. Where a charter is laws exist to granted after condemn property' when needed for- others purposes, public might well rest on right that such laws hypothesis, virtually part condition of the itself, much as

640 COURT. SUPREME Bridge Co.mpany v. Dix et al.

The West River Towne verbis. v. 1 Smith, totidem it, inscribed Wood .if Howard, 1 60S,. 2 Minot, 134; 617; bury Howard, & 311; 1378, 1377, 3 on Story quære. Const. §§ domain derived, this eminent éxists all But, however gov ernments, distinguished public domain, and is as that- lands, &c., buildings, trust consists owned exclu Kent, Comm. entirely by government (3 sively 339; Overton, 3 while consists Yerger, only in Memphis 389), needed, for others, to use the certain when now further into the reasons going Without public purposes. whatever name it, extent of appropriately most the views still remains court, I concur in described, like the Union in case in. each State of present, having far as so general government never been granted respects and that State, it extends highways taking a road any property use for suitable and case, Canal it. Tuckahoe necessary Leigh, 75; Pe 3 Paige, Ch. 7 Pick. 724,; 45; 20 Johns. But ters, 660; taken without compensation, where it could whether in the fifth amendment like that exists provision Consti that in the States, or Vermont constitu the United tution- question, a more difficult similar, tution, somewhat 1 4 D. E. 794; Rice, 383; & Which have doubted. some on to-express any opinion this, not mean 3 337. I Leigh, do. called, But case. the facts compensa as for by in modem cases prevails generally tion from the better the 2 Dal burden. equalize seems times, certainly 4 7 D. E. Bridge, 63; N. & Hamp. v. Old Pisc. las, 310 ; 794; Stokes et al. v. Ass. 387; Co., McCord, Sup. Nott. & 1 17 Conn. 76; Hartford Bridge, 91; 3 11 337; Leigh, Leigh, Ch. 45 Dev. ; 2 Paige, & Bat. 244; 3 1, 20, B. ch. Vattel, § Oh. Lex. & Railroad note; 339, case, Kent, 2 Comm. 451; 8 289. Dana, it is on this whether principle discuss I to' Nor shall stop alone, has private, property always that domain of the eminent on making in England, compensation, been taken for highways, was done former there for us. so be a precedent as'to it was for ad here, “writ qun'd.damnum, as ly, not. new king, before franchise^by issued ages .the related to the inquiry market; a road, ferry,’or whether Fitz, or individuals. tó the public it, whéther damage A. 3 Bac. Abr., Highways, N.B. 221; widening dis or in'roads, éven'.the qr Nór were .alterations v. it. Sorrel, Without Thomas them, allowed continuing 348, 349; 6 Barn. Ald. 267; ch. Cooke, & 314, Vaughan, 6 6 5 TERM, 1848. 541 Bridge Company West River Dix et al. Parliament, modern times various laws, But in have au all these, after inquiry thorized awarded compensation n 1 Burr. magistrates. 648; certain Cro. 263; Camp. Car. 1, 5 Taunt. B. t. 266, 267; 634 ; 7 Adol. Domat, 2; & § Ellis, 12 4 thus, the theoretical notwithstanding omnipotence .And Parliament, and contracts been in these rights par- have ticulars, use, about for as necessity much here. England respected under, as-to railroad as well as So companies, turnpikes, pub lic .as to trustees, and common the former often highways; authorized there erect carry their roads over bridges, and other highways-; but it is on certain turnpikes conditions, them in that passable near, and on keeping place making v. L. & B. 1 compensation. Kemp Railway Co., Railway Cases, 505; and Attorney-General v. The L. S.& Railroad. I ib. 302, 224; 2 ib. 1 711; Gale D. ib. 4 Ju 324; 1; & 2 5 ib. rist, 966; 9 652; Ádol. Dowling, P. C. 7 563; 42; Ellis, & .. 3 Maule Selw. 11 124; & 526; Leigh, But I that no freely confess, case has been found there by n me for exactly point such as the of the this, road- taking of one- bridge or of corporation another, taking a franchise’ of individuals connected witli them. at the same Though, time, I discovered ho prohibition have it, either principle precedent, if making compensation mode 'following prescribed' statute. case, peculiarity consists in the present facts, that taken part to a belonged corporation not to an individual, and a was the franchise part itself of the act of incorporation. views, I concur in the corporation, created to build a like that of the plaintiffs in error is itself, sense, one a franchise. 2 Bl. Comm. Bank 37; Earle, of Augusta 13 Peters, 596; 4 Wheat. 657; 7 Pick. 394; Peters, 474, 454, 472, And, 645; 11 490, 641, 76; Kent, Comm. Leigh, another sense, it possesses franchises incident to its existence objects, such powers to erect as. the bridge ' - to take tolls. See cases. same concur in the I views,-also, that the incor franchise as such ais poration Canal Co. species of 7 N. property. Tuckahoe Hamp. 66; v. Tuckahoe Co.,. fc.Camb. Railroad 76. 11.Leigh, It is a estate vested legal in the corporation. 4 Wheat. ; 700 II 560. But Peters, it is often and inde- distinct property pendent of the other in property .land, or timber, choses goods, in action, which corporation, like a artificial, not body may own. 3 11 Bland, 449; Leigh, 76. vol. vi. 46 SUPREME COURT.

542 Bridge Dix et al. Company-». River subject sold, even sometimes is also on ex property Peters, 4 11 Mass. 495; may ecution 434), (Semb., 17 Conn. And while inherited. 60. I accede or devised the counsel for that the bridge, act of urged principle contract, in this case was or the nature of incorporation members Mylne the State its (1 between & Craig, one 560; Nailer, 4 Lee v. 2 You. Coll. Peters, 514, & 162; 618; v. 3 Woodward Pasmoor, v. D. E. Dartmouth 246; & King 7 v. 628; Cranch, 164; 4 Wheat. Terrett Tayler, College, 257; Wend. 11 Canal Cranch, 43, Peters, 52 9 Co. ; 351; 9 d Kent, 459; 4 Johns. 3 Comm. Enfiel Railroad, v. Gill 146; & 8 Conn. 1 Wheat. cage, 40; Greenleaf, 79; 17 Toll-Bridge 1 2 Alabama, 23; Stewart, Peck, 269; 10 Conn. 522; 464; other court, I concur in the views prop 30), or. fo; aof be taken may high erty corporations purpose eminent, and that the laws of domain, under the way, are to that Vermont not in that extent respect authorizing violations of the contract made it with obligation Bradshaw Johns. 103, 742; v. 20 corporation. Rodgers, v. Salmond, 113; The Trust. of Belf. 2 Fairf. Enfield Ac. 3 case, 40, 45, 45; Conn. Ch. Charles 61; 17 Bridge River Paige, ; 394, C., Warren 7 Pick. S. v. Bridge, 399 3 Bellona Co. 449. Bland, case, Bland, 11 1 Peters, 449; 474; no charter Because there covenant condition not be liable contract, that the owned should property uses taken, State, like all other 4 v. 196; 7 N. Wheat highways. Hamp. 69; Jackson 3 Peters, Lamphire, 289. all covenant, without such their Because, property, prop- uses, must be by necessity, liable either erty, proper public of the State over agreement. or the sovereignty by implied itror a like -taxes may And on because, imposed principle, ’ as well as all com though other property, be done vio without ing by grant when there is no contract, bonus lating obligation tax it. made the charter paid well stipulation Cases, settled. Ald. 2 17 157; Railway arg. 5 Barn. & Wilson, 4 Prov 23; Peters, 7 New v. Cranch, 164; 511; Jersey 567, idence Bank 11 in Charles Peters, Shaw, J., v. C. Billings, Court, Gordon Tax Warren v. Bridge v. Bridge ; Appeal 4 Gill Howard, 4; Wheaton, 699; 12 146; 3 Mass. 252 & e. 2. The 132, Pritchard, Johns. 153 4 D. & ; Williams all incidents or know these' grantees legal presumed or contract, liabilities, and they being implied Peters, 287; violation of it. 8 their happening Peters, 641, 644; Paige, TERM, 1848. 348 Bridge River Company The West ®. Dix et al. “The of certain is says,— Yattel things given'up this individuals with reserve.” B. ch. only 1, 20, 244. «§> when titles land became England anciently, granted services, immunities ancient it was

with from numerous still lands were,subject by that such' under considered a certain trinoda implication, necessitous, expenses repair bridges , invasion. Tomlins, DiCt., as well as repelling forts* Necess tas; 3 Bac. Abr., A. Highways, Trinoda ato "way Even the sometimes implied Jac. 189; D. from Cro. 8 4 Maule necessity. E. grant, 50; &. 1 322, Saund. note. 387; Selw. & “ laid down, also, Justice of a that Story, grant is not in franchise from a point principle distinguishable other Dartmouth Wood- v. College property.” 4 Wheat. 699, 701. ward, concur, therefore, views, I the further that the corporation as a and all its franchise, as powers franchises, being both prop for these and like erty, may reasons, be taken for cases, proper use for a Pierce 10 N. 'highway. Somersworth, v. 11 N. 370; Piscat. v. N. Hamp. Hamp. 20; Bridge Hamp. Peters, N.7 35, 66; 398, 8 N. 11 Bridge, Hamp. 143; Hamp. J., in 645; Warren Charles 2 Story Bridge River Bridge; Comm. Kent, 340, Peters, note 5 Ch. 1 ; 146; 2 658; Paige, Rice, 2 7 3 383; Porter, Ellis, Adol. 296; 41; & 124; Yerger, Fairf. 222; 2 23 Pick. J. v. C. 360; Railroad, Bonaparte Baldw. C. C. 205; Canal Co. v. The T. J. Tuckahoe & Railroad 11 Co., Enfield Co. Leigh, 42; v. Hart Bridge ford New Haven Railroad, & 17 Conn. v. Bar 40; Armington 15 Vermont, 745, net, 16 Cow Vermont, 446, case ; this 3 en, 11 733, 754; Wendell, Lex. Oh. 590; case, Railroad & 8 Dana, 18 Wend. 14. 289; It must be confessed, that some has been felt to find surprise so doctrine widely States, in so many sustained* no exact yet precedent existing England. But in relation to it I here; am constrained, some respects, others, differ and, advised, at agree present last proposition, concerning of the franchise itself taking ,the of a corporation, when only further exercise of the fran- chise as corporation is inconsistent or with the' incompatible to be laid highway out. It is. under limitation as to itself, the franchise there seems to.be it will which, take necessity be seen in the positions heretofore hereafter explained, exist. do limitátion, Nor I with- should agree out another, it must be intent is in cases where clear —that manifested the laws, that one shall .in and its uses corporation SUPREME COURT.

The West River Dix t>. et al. another yield another, use, supposed 4 Gill of the latter and the case. superiority necessity N. Andover, Johns. Barbour v. 150; Hamp. & the acts' of limitations, however, Within these' incorporation me to and all to no more possess corporate appear franchises demands for roads and. immunity taxes, from reasonable public than the soil'and freehold of individuals. the State, land or as may come grant, patent The

well as and corporation 'and -both corporation, grant .the rights be may giving contracts. But are contracts to held, subject be held, and of course understood to property,, those all and easements burdens and services to necessary other, with liable. And it is inconsistent property neither contained them, nor violation'of the contract an ex- easements, to those burdens and unless them, impose made the State has to contrary by press agreement n as act or is sometimes done grant", of incorporation franchise, to But where the as a corporation, taxation. respect as ean be franchises, or its still usefully exercised powers I authorized, laid out as see no and the be highway profitably, be should then condemned these franchises why reasons a,- or manufacturing taken. The owned by banking property highways, for be condemned. instance, for may, corporation travel; why line of where on necessarily, situated great use existence should their franchises if their continued be, with and one not inconsistent be feasible and may the profitable, for a of their other taking, pub- property employment lic. ? highway was estab- as the franchise instance, however, fact, In' be,useful con- lished seems in one only locality. to be of no it at this would tinuance of elsewhere than spot 'benefit, or the If individual members public. taken, were at that place itself and land the corporation should be taken the franchise was for the latter that "better because, unlike any, with if them, enhancing damages do could corporation bank not manufacturing company, the four within the limited elsewhere, even to advantage business within, grant. as their miles, there was road elsewhere might toll-bridge that the clear, The law of Termont, too, therefore, is, It highway. be máde a free give way for to. case, and nature only particular circumstances under itself was the franchise that, taking my apprehension, circum- For, different of the contract. not violation a highway, for if stances, a franchise 'taken condemned when wanted, other when not locally property, connected , not elsewhere, when ordinary principles it-can-be exercised TERM, 545 1848. v. Dix et al. The West River with, or tied to, particular incident up in some respects am not now it. needed, I prepared uphold . place property I further, am go say, even disposed as to in the direct is-not so situated he either kind path it, or be needed to build incli really for a public highway, that it cannot be taken the con mind my is, against nation Because, eminent of the owner. though sent it does cases, all, in some not exist in as domain exists all nor as, as to such from its only but probably property, fitness, is . use. necessary locality, Semb. , 4 Co.; 116 Webb Manch. Leeds Craig, Mylne Railway Railway & & Cases, 1 576. such, the bed of the road, but per materials in stone, gravel, ánd.timber, build with. haps-for even then it Yet dents. must as inci- necéssary appropriate Dev. & Bat. 462; East, also, And I must, from its aught see, circumstances row (cid:127) and the wants, raise an it. locality necessity for urgent “ ” necessities fit spoken, usually are. occasion to exercise the if not it be derived them power, in a and the reason of the is confined to case great degree, them. cases (See before.) trinoda ancient necessitas extended to nothing beyond such necessity. Indeed, without examination, further I even fear that these not be found sufficient in kinds some public limitations highways, more in as for instance. railroads, And I must hear —such support this last before their position acquiescing right to take, in all invitum, the materials to necessary build

such roads, —as the timbers on which their rails are or laid, the iron for the rails themselves. Nor do I in all agree that, cases of a use, public which is.suitable or can appropriate condemned. pub lic use here a is for and the road, and cases are con reasoning fined chiefly to bridges roads, the incidents war.. to But doctrine, that this domain .eminent exists for kind of every for a úse, or public use when con merely venient, though not .does not necessary, seem to me by any means clearly maintainable. too broad, too to abuse. open Where public'use general is one like thát pressing, often in wax for batteries, sites of or for little doubt provisions, would to exist . est right. Salus populi .as lex. suprema So as to a if road, really demanded in fórms and párticular places to accommodate growing changing community, and to with keep up wants improvements age, — súch as its demands for easier pressing social intercourse,

46*

546 SUPREME COURT.

The West-River v. Dix et al. — communication, or trade, better internal quicker political advancing and. with the necessities public from blazed trees to and thence to wheel-roads, and rail- bridle-paths, turnpikes, roads. we to other go uses, when not so not public But urgent, not difficult localities, with to be for precise connected provided of eminent it domain,

without where places not I entertain convenient, necessary, strong would Who heard of of its ever laws con- applicability. doubts use, for for marine or demn private property hospital state prison? So a' is a use for the govern- custom-house genéral or for State. But would be

ment, jail and court-house or- argument justify difficult find precedent taking private consent-, on, tó erect without them though appropriate. exist, No seems to necessity suf- for the purpose. a measure. A so as justify particular locality strong ficient to few rods quence.; to their site is no conse- usually respect fort, wharf, a light-house, high- while termini, may very certain important between way also, for-such seiz- am aware of precedents, I imperative. former, for like the abroad, objects ures of private property to have advanced in some such doctrines appear though 45. Again, many things belonging country. Paige, and railroads, corporations where bridges, turnpikes, local not, they rest, the land which like some purposes, obtain them necessity to. public, peculiar cars, domain. of the eminent Such seem the power them- rails, the timber for rails &c., not engines,’ Co., J. Railway Railway Cases, v. C. selves. Gordon & do seem to-come-within the public exigency things Such justifies roads which application connected Nor does even path eminent domain. principle not itself, if the use of be but public, easement road, in some ben- individuals, merely and degree for merely eficial particular for the the user must be contrary, to On the the public. — all, for —must also be com- travellers, at large, —for. people a be them, .owners,; not and by pulsory optional —must — be must favor, reg- a under public not by people, subject owned, tolls, owned, as to or or ulations object and for public^ order to make corporation v.Co. 3 Kent, this. Comm. Railroad 270; Chap- a like purpose 53; v. 3 Overton, 383; King 1 Rice, pell, Memphis Yerger, 4 Ward, v. Adol. 566; King Barn. Cres. & Russell, 6 & Ellis, 384. 547 ®. Dix et al. Bridge Company

The West River for is an act not that there enough incorporation It is as to make them or railroad, public, a so bridge, turnpike, ,to without take property constitutionally, private able object, interests, their and uses, the owner’s consent; essence, in their indicated, must be what has just —must liabilities, be the meaning and and within character, public There a as bridge, may the term use.” “public private with- and this with or road, railroad, well as private private out an act of incorporation. the use was to be for. however, instance, the present a kind. whole and not community, corporation a free road for the was taken to make people a use, use, was thus for eminently public had where there before been tolls imposed private profit a so far regards as interest private corporation its tolls and property. And the on which only ground that corporation, private , condemn land was entitled in view interest, or originally tolls that the use of its was, bridge collect public,.—.was all and at fare rates of fixed open legislature by itself, subjected to revision and reduction of the authorities. public be, truly is, individuals are public benefited, often extensively roads, as private mills, and manufactories, But a bridges. benefit is not technically use, nor unless substantially public has public 1 rights. Rice, 388. And in of law it point seems questionable very call such,a corpora- tion a one, arm with public to seize authority on private property without the consent its owners. I exclude, therefore, all conclusions toas my hére opinions otherwise than being these conformity to suggestions; when, as in the though case, a present free use in a high- way and substituted and on a toll-bridge, long or great and a new benefit and line increasing travel, and thus vests both use, and more one, enlarged public, and not in any few I stockholders,. have doubt that these entitle for such use condemn private t.o owned whether by an individual or a W. corporation. Boston P. v. B. Co. W.& Railroad 23 Pick. Corp., 360. And it' is manifest that unless such a course can be the means pursued, of social and commercial intercourse might petrified, remain for like ages, the fossil in sandstone, unaltered, remains and the government, organ community, progressive be paralyzed in every Dev. important public 2 improvement. Bat. & 456; Rice, 395; Dana, COURT. SUPREME 548 «, al. Dix ét West' River The' that, in inference, doc- exclude, also, any assenting . I for a a contract, act of toll-bridge incorporation that trine, well as as ones, interests rights public private giving to take ones or alter allowing not thereby them,- use, for some or legitimate. by consent, unless as public do 4 Wheat. I can or assent to the 628, doctrine down laid in' to public of the there judges respect being of some offices a. not to or abolished State on changed contracts as. a violation of without considerations, incurring eon- public tract. hold, advised,- till further that should be reluctant I very are towns, &c., mere counties, like not; offices public be abolished or establishments, to changed political political for. with the Cranch, welfare. considerations connected 9 duration; existence the offices'them salaries, 43. sélyes matters, to be mod exclusively public seem open decide to public may which the representatives ification be restriction on the .subject whenever no .necessary, express Quære laws. Hoke has been imposed constitution . 1. Henderson, 4 Dev. v. of the office con condition This would seem implied that it be taxed government- as much as tract, held, which it is not other so though governments under See, as to v. last, or obstruct it. McCulloch as to impair 4 Wheat. Weston C. C. of Charles 316; Maryland, ton, Dobbins v. Comm. of Erie 16 Pet Peters, 2 449; City, 435 ers, even this franchise, I do' not that Finally, agree property, con- taken from this without violating can-be corporation with-it, measure was bona honest, fide, unless the tract be, for what it beside as be- .required being, really fore professed n on account of the nature of remarked, locality proper, for this purpose. this condemned cases and I for most that, purposes, And though agree, suitable as to judges a State are the this public authorities if their laws are con and that the decide judiciary point, Rice, 1 that the legis stitutional Comm. Kent, 340; 383); (2 3 Bl. (2 Porter, 303; lature acts for the generally this 139, agents 4 road 797); Comm. D. E. note; & I Rice, am- yet limitation .agents, (1 are their 383); face whole if;.on pro agree, prepared — law, commissioners, doings ceedings, report — object it is that the was not legitimate, of the courts, manifest forms, covered dr of that intentions' were up illegal “ would our duty require whole mere pretext,” proceedings 391. Rice, England, us to them. Ibid.; though uphold ANUARY v. Dix- et al. Bridge Company,

The West if used exists, yet maliciously wantonly, it is v. Porter et al., East, be void. Boyfield held to while the fairness it is case, however, In this impeached on the record thé error, yet object avowed plaintiffs It was to make free where it was before legal. taxed, travel and the from the remote desired in bridge, though changes old on the road, still situated line travel great it, over and not color and finest connected, merely by and, in- in, and business, creases seemed to be made population proper the town or free county. at expensé Nor the face of the récord do seem proceedings void, been,without because the assessment when jury, have it was officers, for that legal appointed purpose. mafle 3 Dev. Peters, 451, 2 Beekman v. 280; 460; & Sar. Bat. 3 45. Ch. Nor void as made the commis Railroad, Paige, sioners when notice, notice, without return states and when was a- full all before the court on hearing enjoyed by there the report. Nor void because the was too small to the — — was assessed in corporation, law, conformity too as. burdensome to the town aloné to discharge, though last well have been on a might like a flung larger number, county.. N. 10 Tomlins, Dict., 1 Hamp. 2; Rice, 392. Ways, Nor 370; take, because the commissioners a fee instead of an easement, when the fee as more legislature provide- expedient. 2 Dev. Bat. 'Nbr & 467. because some of the property condemned was when it was mixed with the personal, real, and when .real needed and personal, appropriate, may at times be liable. 383. Rice, With these I would explanations, concurrence in express my of the court. judgment

Mr. WAYNE delivered a Justice dissenting opinion.

Order. The West River Company, error, Joseph Plaintiffs Dix, Towns Brattleboro’ Dummerston in the County of Windham. This cause came heard on on tó be transcript record from Supreme Court Judicature of the and was Vermont, argued counsel. On where- consideration of, it is diere now ordered court, that the adjudged by this and. said judgment of the cause be and Court Supreme same is hereby-affirmed, with costs. COURT. SUPREME

Patterson Gaines ef us. River Bridge Company, Plaintiffs in error, v. Towns of Brattleboro’ and Dummerston, County Windham, Asa Dix, Joseph Boyden, Phineas Under- wood. cause came on to be heard on the the, transcript from the record Court of Supreme Judicature of the State Vermont, and the Chancellor of the first Judicial Circuit of said State of and was Vermont, argued by counsel. On consideration whereof, is now here ordered and adjudged by court, said judgment Supreme Court of Judicature and Chancellor of the first Judicial Circuit of the State- of in this cause be Vermont and the same is hereby affirmed, with costs. Patterson, Appellant, Charles v. Edmund P. Gaines and Wife.* Chew, opinion (2 this cóurt in the case of Gaines 0. Relf and Howard 619,) reviewed. equity question party court of a is the heir can decide the whether or not A a person. deceased It is not to the issue of fact to be tried necessary send court of law. marriage Pennsylvania, Where a took place proved must be laws of contract, form, Pennsylvania. in favor completed by any In that it is a civil be words tense, present regard eyery without intendment made in legitimacy. without and the complainant oath, Where the in a bill receive an answer without offers to oath, allegations denying accordingly filed the answer defendant the bill, according general complainant put necessity, is not rule, witnesses or of contradicting the answer the evidence of two one answer, being oath, without corroborating circumstances. The witness evidence, apply. not and the usual rule does not however, had case, denied In this even the been under oath answer had. bill, allegations ness, yet there is in -the evidence one sufficient matter wit- circumstances, bill. corroborating support sustained can marriage may by any present identify A be was proved one who as a priest, habited ceremony If parties. performed by person ceremony presumed must per presentí, person performing verba de nave a clergyman. issue, legitimacy If marriage proved, impugn the fact of nothing can that the short husband could be' showing impossible of the proof of facts it to be the father. marriage void, woman and a By the laws of between a Louisiana and Pennsylvania, marry and the could man who had woman living then was wife another declaring again pronounced waiting judicial without sentence 'marriage to be void. contested, marriage be again, her second marry validity *If so she does and the marriage first it because ground that she was to contract unable conviction of the record legal, necessary produce it is not for her to * family Taney cause, in this relative being Mr. Chief Justice did not sit near interested in the event. did not sit in cause. Mr. Justice McLean cause, indisposition. did sit-in this reason Mr. Justice Catron

Case Details

Case Name: The West River Bridge Company v. DIX

Court Name: Supreme Court of the United States

Date Published: Jan 31, 1848

Citation: 47 U.S. 507

Court Abbreviation: SCOTUS