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TANEY, Ch.
J., delivered the opinion of the court.
The questions involved in this case are of the gravest character, and
the Court have given to them the most anxious and deliberate
consideration. The value of the right claimed by the plaintiffs is large
in amount, and many persons may, no doubt, be seriously affected in
their pecuniary interests by any decision which the Court may pronounce;
and the questions which have been raised as to the power of the several
States in relation to the corporations they have chartered are pregnant
with important consequences, not only to the individuals who are
concerned in the corporate franchises, but to the communities in which
they exist. The Court are fully sensible that it is their duty, in
exercising the high powers conferred on them by the Constitution of the
United States, to deal with these great and extensive interests with the
utmost caution, guarding, so far as they have the power to do so, the
rights of property, and at the same time, carefully abstaining from any
encroachment on the rights reserved to the states.
It appears from the record that, in the year 1650, the Legislature of
Massachusetts granted to the president of Harvard College "the
liberty and power" to dispose of the ferry from Charlestown to
Boston, by lease or otherwise in the behalf and for the behoof of the
college, and that, under that grant, the college continued to hold and
keep the ferry by its lessees or agents, and to receive the profits of
it, until 1785. In the last-mentioned year, a petition was presented to
the Legislature by Thomas Russell and others, stating the inconvenience
of the transportation by ferries over Charles River and the public
advantages that would result from a bridge, and praying to be
incorporated for the purpose of erecting a bridge in the place where the
ferry between Boston and Charlestown was then kept. Pursuant to this
petition, the Legislature, on the 9th of March 1785, passed an act
incorporating a company by the name of "The Proprietors of the
Charles River Bridge" for the purposes mentioned in the petition.
Under this charter, the company were empowered to erect a bridge in "the
place where the ferry was then kept;" certain tolls were granted,
and the charter was limited to [p*537] forty years from the first
opening of the bridge for passengers, and from the time the toll
commenced, until the expiration of this term, the company were to pay £200
annually to Harvard College, and, at the expiration of the forty years,
the bridge was to be the property of the Commonwealth,
saving (as the law expresses it) to the said college or university a
reasonable annual compensation for the annual income of the ferry which
they might have received had not the said bridge been erected.
The bridge was accordingly built, and was opened for passengers on the
17th of June 1786. In 1792, the charter was extended to seventy years
from the opening of the bridge, and, at the expiration of that time, it
was to belong to the Commonwealth. The corporation have regularly paid
to the college the annual sum of £200, and have performed all of
the duties imposed on them by the terms of their charter.
In 1828, the Legislature of Massachusetts incorporated a company by the
name of "The Proprietors of the Warren Bridge" for the purpose
of erecting another bridge over Charles River. This bridge is only
sixteen rods, at its commencement on the Charlestown side, from the
commencement of the bridge of the plaintiffs, and they are about fifty
rods apart at their termination on the Boston side. The travelers who
pass over either bridge proceed from Charlestown square, which receives
the travel of many great public roads leading from the country, and the
passengers and travelers who go to and from Boston used to pass over the
Charles River Bridge, from and through this square, before the erection
of the Warren Bridge.
The Warren Bridge, by the terms of its charter, was to be surrendered
to the State as soon as the expenses of the proprietors in building and
supporting it should be reimbursed, but this period was not, in any
event, to exceed six years from the time the company commenced receiving
toll.
When the original bill in this case was filed, the Warren Bridge had
not been built, and the bill was filed, after the passage of the law, in
order to obtain an injunction to prevent its erection, and for general
relief. The bill, among other things, charged as a ground for relief
that the act for the erection of the Warren Bridge impaired the
obligation of the contract between the Commonwealth and the proprietors
of the Charles River Bridge, and was, therefore, repugnant to the the
Constitution of the United States. Afterwards, a supplemental bill was
filed stating that the bridge had then been so far [p*538] completed
that it had been opened for travel, and that divers persons had passed
over and thus avoided the payment of the toll which would otherwise have
been received by the plaintiffs. The answer to the supplemental bill
admitted that the bridge has been so far completed that foot passengers
could pass, but denied that any persons but the workmen and the
superintendents had had passed over with their consent. In this State of
the pleadings, the cause came on for hearing in the Supreme Judicial
Court for the County of Suffolk, in the Commonwealth of Massachusetts,
at November Term 1829, and the Court decided that the act incorporating
the Warren Bridge did not impair the obligation of the contract with the
proprietors of the Charles River Bridge, and dismissed the complainants'
bill, and the case is brought here by writ of error from that decision.
It is, however, proper to State that it is understood that the State
court was equally divided upon the question, and that the decree
dismissing the bill, upon the ground above stated, was pronounced by a
majority of the Court for the purpose of enabling the complainants to
bring the question for decision before this Court.
In the argument here, it was admitted that, since the filing of the
supplemental bill, a sufficient amount of toll had been reserved by the
proprietors of the Warren Bridge to reimburse all their expenses, and
that the bridge is now the property of the state, and has been made a
free bridge, and that the value of the franchise granted to the
proprietors of the Charles River Bridge has by this means been entirely
destroyed. If the complainants deemed these facts material, they ought
to have been brought before the State court by a supplemental bill, and
this Court, in pronouncing its judgment, cannot regularly notice them.
But in the view which the Court take of this subject, these additional
circumstances would not in any degree influence their decision. And as
they are conceded to be true, and the case has been argued on that
ground, and the controversy has been for a long time depending, and all
parties desire a final end of it, and as it is of importance to them
that the principles on which this Court decide should not be
misunderstood, the case will be treated, in the opinion now delivered,
as if these admitted facts were regularly before us.
A good deal of evidence has been offered, to show the nature and extent
of the ferry right granted to the college, and also to show the rights
claimed by the proprietors of the bridge, at different times [p*539] by
virtue of their charter, and the opinions entertained by committees of
the Legislature and others upon that subject. But as these circumstances
do not affect the judgment of this Court, it is unnecessary to
recapitulate them.
The plaintiffs in error insist, mainly, upon two grounds: 1st. that by
virtue of the grant of 1650, Harvard College was entitled, in
perpetuity, to the right of keeping a ferry between Charlestown and
Boston, that this right was exclusive, and that the Legislature had not
the power to establish another ferry on the same line of travel, because
it would infringe the rights of the college, and that these rights, upon
the erection of the bridge in the place of the ferry under the charter
of 1785, were transferred to, and became vested in "The Proprietors
of the Charles River Bridge," and that under, and by virtue of this
transfer of the ferry right, the rights of the bridge company were as
exclusive in that line of travel as the rights of the ferry. 2d. That,
independently of the ferry right, the acts of the Legislature of
Massachusetts of 1785 and 1792, by their true construction, necessarily
implied that the Legislature would not authorize another bridge, and
especially, a free one, by the side of this, and placed in the same line
of travel, whereby the franchise granted to the "Proprietors of
the Charles River Bridge" should be rendered of no value, and the
plaintiffs in error contend that the grant of the ferry to the college,
and of the charter to the proprietors of the bridge, are both contracts
on the part of the state, and that the law authorizing the erection of
the Warren Bridge in 1828 impairs the obligation of one or both of these
contracts.
It is very clear that, in the form in which this case comes before us
(being a writ of error to a State court), the plaintiffs, in claiming
under either of these rights, must place themselves on the ground of
contract, and cannot support themselves upon the principle that the law
divests vested rights. It is well settled by the decisions of this Court
that a State law may be retrospective in its character, and may divest
vested rights and yet not violate the Constitution of the United States
unless it also impairs the obligation of a contract. In Satterlee v.
Matthewson, 2 Pet. 413, this Court, in speaking of the State law
then before them and interpreting the article in the Constitution of the
United States which forbids the States to pass laws impairing the
obligation of contracts, uses the following language:
It (the State law) is said to be retrospective, be it so. But
retrospective laws which do not impair the obligation of contracts
[p*540] or partake of the character of ex post facto laws are not
condemned or forbidden by any part of that instrument
(the Constitution of the United States). And in another passage in the
same case, the Court say:
The objection, however, most pressed upon the Court and relied upon by
the counsel for the plaintiff in error was that the effect of this act
was to divest rights which were vested by law in Satterlee. There is,
certainly, no part of the Constitution of the United States which
applies to a State law of this description, nor are we aware of any
decision of this or of any Circuit Court, which has condemned such a
law, upon this ground, provided its effect be not to impair the
obligation of a contract.
The same principles were reaffirmed in this Court in the late case of
Watson and others v. Mercer, decided in 1834, 8 Pet. 110:
As to the first point (say the Court), it is clear that this Court has
no right to pronounce an act of the State Legislature void, as contrary
to the Constitution of the United States, from the mere fact that it
divests antecedent vested rights of property. The Constitution of the
United States does not prohibit the States from passing retrospective
laws, generally, but only ex post facto laws.
After these solemn decisions of this Court, it is apparent that the
plaintiffs in error cannot sustain themselves here either upon the ferry
right or the charter to the bridge, upon the ground that vested rights
of property have been divested by the Legislature. And whether they
claim under the ferry right or the charter to the bridge, they must show
that the title which they claim was acquired by contract, and that the
terms of that contract have been violated by the charter to the Warren
Bridge. In other words, they must show that the State had entered into a
contract with them, or those under whom they claim, not to establish a
free bridge at the place where the Warren Bridge is erected. Such, and
such only, are the principles upon which the plaintiffs in error can
claim relief in this case.
The nature and extent of the ferry right granted to Harvard College in
1650 must depend upon the laws of Massachusetts, and the character and
extent of this right has been elaborately discussed at the bar. But in
the view which the Court take of the case before them, it is not
necessary to express any opinion on these questions. For, assuming that
the grant to Harvard College and the charter to the bridge company were
both contracts, and that the ferry right was as extensive and exclusive
as the plaintiffs contend for, still they [p*541] cannot enlarge
privileges granted to the bridge unless it can be shown that the rights
of Harvard College in this ferry have, by assignment or in some other
way, been transferred to the proprietors of the Charles River Bridge,
and still remain in existence, vested in them, to the same extent with
that in which they were held and enjoyed by the college before the
bridge was built.
It has been strongly pressed upon the Court by the plaintiffs in error
that these rights are still existing, and are now held by the
proprietors of the bridge. If this franchise still exists, there must be
somebody possessed of authority to use it, and to keep the ferry. Who
could now lawfully set up a ferry where the old one was kept? The bridge
was built in the same place, and its abutments occupied the landings of
the ferry. The transportation of passengers in boats, from landing to
landing was no longer possible, and the ferry was as effectually
destroyed as if a convulsion of nature had made there a passage of dry
land. The ferry, then, of necessity, ceased to exist as soon as the
bridge was erected, and when the ferry itself was destroyed, how can
rights which were incident to it be supposed to survive? The exclusive
privileges, if they had such, must follow the fate of the ferry, and can
have no legal existence without it, and if the ferry right had been
assigned by the college, in due and legal form, to the proprietors of
the bridge, they themselves extinguished that right when they erected
the bridge in its place. It is not supposed by anyone that the bridge
company have a right to keep a ferry. No such right is claimed for them,
nor can be claimed for them, under their charter to erect a bridge, and
it is difficult to imagine how ferry rights can be held by a corporation
or an individual who have no right to keep a ferry. It is clear that the
incident must follow the fate of the principal, and the privilege
connected with property cannot survive the destruction of the property,
and if the ferry right in Harvard College was exclusive, and had been
assigned to the proprietors of the bridge, the privilege of exclusion
could not remain in the hands of their assignees if those assignees
destroyed the ferry.
But upon what ground can the plaintiffs in error contend that the ferry
rights of the college have been transferred to the proprietors of the
bridge? If they have been thus transferred, it must be by some mode of
transfer known to the law, and the evidence relied on to prove it can be
pointed out in the record. How was it transferred? It is not suggested
that there ever was, in point of fact, a deed of [p*542] conveyance
executed by the college to the bridge company. Is there any evidence in
the record from which such a conveyance may, upon legal principle, be
presumed? The testimony before the Court, so far from laying the
foundation for such a presumption, repels it in the most positive terms.
The petition to the Legislature in 1785, on which the charter was
granted, does not suggest and assignment nor any agreement or consent on
the part of the college, and the petitioners do not appear to have
regarded the wishes of that institution as by any means necessary to
insure their success. They place their application entirely on
considerations of public interest and public convenience and the
superior advantages of a communication across Charles River by a bridge
instead of a ferry. The Legislature, in granting the charter, show, by
the language of the law, that they acted on the principles assumed by
the petitioners. The preamble recites that the bridge "will be of
great public utility," and that is the only reason they assign for
passing the law which incorporates this company. The validity of the
character is not made to depend on the consent of the college, nor of
any assignment or surrender on their part, and the Legislature deal with
the subject as if it were one exclusively within their own power, and as
if the ferry right were not to be transferred to the bridge company, but
to be extinguished, and they appear to have acted on the principle that
the state, by virtue of its sovereign powers and eminent domain, had a
right to take away the franchise of the ferry because, in their
judgment, the public interest and convenience would be better promoted
by a bridge in the same place; and, upon that principle, they proceed to
make a pecuniary compensation to the college for the franchise thus
taken away; and as there is an express reservation of a continuing
pecuniary compensation to the college when the bridge shall become the
property of the state, and no provision whatever for the restoration of
the ferry right, it is evident that no such right was intended to be
reserved or continued. The ferry, with all its privileges, was intended
to be forever at an end, and a compensation in money was given in lieu
of it. The college acquiesced in this arrangement, and there is proof in
the record that it was all done with their consent. Can a deed of
assignment to the bridge company which would keep alive the ferry rights
in their hands be presumed under such circumstances? Do not the
petition, the law of incorporation, and the consent of the college to
the pecuniary provision made for it in perpetuity all repel the notion
of an assignment of its rights to the bridge [p*543] company, and prove
that every party to this proceeding intended that its franchises,
whatever they were, should be resumed by the state, and be no longer
held by any individual or corporation? With such evidence before us,
there can be no ground for presuming a conveyance to the plaintiffs.
There was no reason for such a conveyance; there was every reason
against it, and the arrangements proposed by the charter to the bridge,
could not have been carried into full effect, unless the rights of the
ferry were entirely extinguished.
It is, however, said that the payment of the £200 a year to the
college, as provided for in the law, gives to the proprietors of the
bridge an equitable claim to be treated as the assignees of their
interest, and by substitution, upon chancery principles, to be clothed
with all their rights. The answer to this argument is obvious. This
annual sum was intended to be paid out of the proceeds of the tolls,
which the company were authorized to collect. The amount of the tolls,
it must be presumed, was graduated with a view to this incumbrance, as
well as to every other expenditure to which the company might be
subjected under the provisions of their charter. The tolls were to be
collected from the public, and it was intended that the expense of the
annuity to Harvard College should be borne by the public, and it is
manifest that it was so borne from the amount which it is admitted they
received until the Warren Bridge was erected. Their agreement,
therefore, to pay that sum can give them no equitable right to be
regarded as the assignees of the college, and certainly can furnish no
foundation for presuming a conveyance; and as the proprietors of the
bridge are neither the legal nor equitable assignees of the college, it
is not easy to perceive how the ferry franchise can be invoked in aid of
their claims, if it were even still a subsisting privilege, and had not
been resumed by the state, for the purpose of building a bridge in its
place.
Neither can the extent of the preexisting ferry right, whatever it may
have been, have any influence upon the construction of the written
charter for the bridge. It does not, by any means, follow that, because
the legislative power of Massachusetts in 1650 may have granted to a
justly favored seminary of learning the exclusive right of ferry between
Boston and Charlestown, they would, in 1785, give the same extensive
privilege to another corporation who were about to erect a bridge in the
same place. The fact that such a right [p*544] was granted to the
college cannot, by any sound rule of construction, be used to extend the
privileges of the bridge company beyond what the words of the charter
naturally and legally import. Increased population, longer experience in
legislation, the different character of the corporations which owned the
ferry from that which owned the bridge, might well have induced a change
in the policy of the State in this respect, and as the franchise of the
ferry and that of the bridge are different in their nature, and were
each established by separate grants which have no words to connect the
privileges of the one with the privileges of the other, there is no rule
of legal interpretation which would authorize the Court to associate
these grants together and to infer that any privilege was intended to be
given to the bridge company merely because it had been conferred on the
ferry. The charter to the bridge is a written instrument which must
speak for itself and be interpreted by its own terms.
This brings us to the act of the Legislature of Massachusetts of 1785,
by which the plaintiffs were incorporated by the name of "The
Proprietors of the Charles River Bridge," and it is here, and in
the law of 1792 prolonging their charter that we must look for the
extent and nature of the franchise conferred upon the plaintiffs. Much
has been said in the argument of the principles of construction by which
this law is to be expounded, and what undertakings on the part of the
state may be implied. The Court think there can be no serious difficulty
on that head. It is the grant of certain franchises by the public to a
private corporation, and in a matter where the public interest is
concerned. The rule of construction in such cases is well settled both
in England and by the decisions of our own tribunals. In the case of
the Proprietors of the Stourbridge Canal v. Wheeley and Others,
2 B. & Ad. 793, the Court say,
the canal having been made under an act of Parliament, the rights of
the plaintiffs are derived entirely from that act. This, like many other
cases, is a bargain between a company of adventurers and the public the
terms of which are expressed in the statute, and the rule of
construction in all such cases is now fully established to be this --
that any ambiguity in the terms of the contract must operate against the
adventurers and in favor of the public, and the plaintiffs can claim
nothing that is not clearly given them by the act.
And the doctrine thus laid down in abundantly sustained by the
authorities referred to in this decision. The case itself was as strong
a one as could well be imagined for giving to the [p*545] canal company,
by implication, a right to the tolls they demanded. Their canal had been
used by the defendants, to a very considerable extent in transporting
large quantities of coal. The rights of all persons to navigate the
canal were expressly secured by the act of Parliament, so that the
company could not prevent them from using it, and the toll demanded was
admitted to be reasonable. Yet, as they only used one of the levels of
the canal, and did not pass through the locks, and the statute, in
giving the right to exact toll, had given it for articles which passed "through
any one or more of the locks," and had said nothing as to toll for
navigating one of the levels, the Court held that the right to demand
toll in the latter case could not be implied, and that the company were
not entitled to recover it. This was a fair case for an equitable
construction of the act of incorporation, and for an implied grant, if
such a rule of construction could ever be permitted in a law of that
description. For the canal had been made at the expense of the company,
the defendants had availed themselves of the fruits of their labors, and
used the canal freely and extensively for their own profit. Still, the
right to exact toll could not be implied, because such a privilege was
not found in the charter.
Borrowing, as we have done, our system of jurisprudence from the
English law, and having adopted, in every other case, civil and
criminal, its rules for the construction of statutes, is there anything
in our local situation or in the nature of our political institutions
which should lead us to depart from the principle where corporations are
concerned? Are we to apply to acts of incorporation a rule of
construction differing from that of the English law, and, by
implication, make the terms of a charter in one of the states more
unfavorable to the public than upon an act of Parliament framed in the
same words would be sanctioned in an English court? Can any good reason
be assigned for excepting this particular class of cases from the
operation of the general principle and for introducing a new and adverse
rule of construction in favor of corporations while we adopt and adhere
to the rules of construction known to the English common law in every
other case, without exception? We think not, and it would present a
singular spectacle, if, while the courts in England are restraining,
within the strictest limits, the spirit of monopoly, and exclusive
privileges in nature of monopolies, and confining corporations to the
privileges plainly given to them in their charter, the courts of this
country should be found enlarging [p*546] these privileges by
implication and construing a statute more unfavorably to the public and
to the rights of community than would be done in a like case in an
English court of justice.
But we are not now left to determine for the first time the rules by
which public grants are to be construed in this country. The subject has
already been considered in this Court, and the rule of construction
above stated fully established. In the case of the United States v.
Arredondo, 8 Pet. 738, the leading cases upon this subject are
collected together by the learned judge who delivered the opinion of the
Court, and the principle recognised that, in grants by the public,
nothing passes by implication. The rule is still more clearly and
plainly stated in the case of Jackson v. Lamphire, 3 Pet. 289. That was
a grant of land by the state, and in speaking of this doctrine of
implied covenants in grants by the state, the Court use the following
language, which is strikingly applicable to the case at bar:
The only contract made by the state, is the grant to John Cornelius,
his heirs and assigns, of the land in question. The patent contains no
covenant to do or not to do any further act in relation to the land, and
we do not feel ourselves at liberty in this case to create one by
implication. The State has not by this act impaired the force of the
grant; it does not profess or attempt to take the land from the assigns
of Cornelius and gave it to one not claiming under him; neither does the
award produce that effect; the grant remains in full force, the property
conveyed is held by his grantee, and the State asserts no claim to it.
The same rule of construction is also stated in the case of Beaty
v. Lessee of Knowler, 4 Pet. 168, decided in this Court in 1830. In
delivering their opinion in that case, the Court say:
That a corporation is strictly limited to the exercise of those powers
which are specifically conferred on it, will not be denied. The exercise
of the corporate franchise, being restrictive of individual rights,
cannot be extended beyond the letter and spirit of the act of
incorporation.
But the case most analogous to this, and in which the question came
more directly before the Court is the case of the Providence Bank v.
Billings, 4 Pet. 514, which was decided in 1830. In that case, it
appeared that the Legislature of Rhode Island had chartered the bank, in
the usual form of such acts of incorporation. The charter contained no
stipulation on the part of the State that it would not impose a tax on
the bank, nor any reservation of the right to do so. It was silent on
this point. Afterwards, a law [p*547] was passed, imposing a tax on all
banks in the state, and the right to impose this tax was resisted by the
Providence Bank, upon the ground that if the State could impose a tax,
it might tax so heavily as to render the franchise of no value, and
destroy the institution, that the charter was a contract, and that a
power which may in effect destroy the charter is inconsistent with it,
and is impliedly renounced by granting it. But the Court said that the
taxing power was of vital importance, and essential to the existence of
government, and that the relinquishment of such a power is never to be
assumed. And in delivering the opinion of the Court, the late chief
justice states the principle, in the following clear and emphatic
language. Speaking of the taxing power, he says,
as the whole community is interested in retaining it undiminished, that
community has a right to insist that its abandonment ought not to be
presumed in a case in which the deliberate purpose of the State to
abandon it does not appear.
The case now before the Court is, in principle, precisely the same. It
is a charter from a state; the act of incorporation is silent in
relation to the contested power. The argument in favor of the
proprietors of the Charles River Bridge is the same, almost in words,
with that used by the Providence Bank -- that is, that the power claimed
by the state, if it exists, may be so used as to destroy the value of
the franchise they have granted to the corporation. The argument must
receive the same answer, and the fact that the power has been already
exercised so as to destroy the value of the franchise cannot in any
degree affect the principle. The existence of the power does not, and
cannot, depend upon the circumstance of its having been exercised or
not.
It may, perhaps, be said that, in the case of the Providence Bank,
this Court were speaking of the taxing power, which is of vital
importance to the very existence of every government. But the object and
end of all government is to promote the happiness and prosperity of the
community by which it is established, and it can never be assumed that
the government intended to diminish its power of accomplishing the end
for which it was created. And in a country like ours, free, active and
enterprising, continually advancing in numbers and wealth, new channels
of communication are daily found necessary, both for travel and trade,
and are essential to the comfort, convenience and prosperity of the
people. A State ought never to be presumed to surrender this power,
because, like the taxing power, the whole community have an interest in
[p*548] preserving it undiminished. And when a corporation alleges that
a State has surrendered, for seventy years, its power of improvement and
public accommodation in a great and important line of travel, along
which a vast number of its citizens must daily pass, the community have
a right to insist, in the language of this Court, above quoted, "that
its abandonment ought not to be presumed in a case in which the
deliberate purpose of the State to abandon it does not appear." The
continued existence of a government would be of no great value if, by
implications and presumptions, it was disarmed of the powers necessary
to accomplish the ends of its creation, and the functions it was
designed to perform transferred to the hands of privileged corporations.
The rule of construction announced by the Court was not confined to the
taxing power, nor is it so limited in the opinion delivered. On the
contrary, it was distinctly placed on the ground that the interests of
the community were concerned in preserving undiminished the power then
in question, and whenever any power of the State is said to be
surrendered or diminished, whether it be the taxing power or any other
affecting the public interest, the same principle applies, and the rule
of construction must be the same. No one will question that the
interests of the great body of the people of the state would, in this
instance, be affected by the surrender of this great line of travel to a
single corporation, with the right to exact toll and exclude competition
for seventy years. While the rights of private property are sacredly
guarded, we must not forget that the community also have rights, and
that the happiness and wellbeing of every citizen depends on their
faithful preservation.
Adopting the rule of construction above stated as the settled one, we
proceed to apply it to the charter of 1785, to the proprietors of the
Charles River Bridge. This act of incorporation is in the usual form,
and the privileges such as are commonly given to corporations of that
kind. It confers on them the ordinary faculties of a corporation for the
purpose of building the bridge, and establishes certain rates of toll
which the company are authorized to take; this is the whole grant. There
is no exclusive privilege given to them over the waters of Charles
River, above or below their bridge, no right to erect another bridge
themselves, nor to prevent other persons from erecting one, no
engagement from the State that another shall not be erected, and no
undertaking not to sanction competition, nor to make improvements that
may diminish the amount of its income. Upon all these subjects the
charter is silent, and [p*549] nothing is said in it about a line of
travel, so much insisted on in the argument, in which they are to have
exclusive privileges. No words are used from which an intention to grant
any of these rights can be inferred. If the plaintiff is entitled to
them, it must be implied, simply, from the nature of the grant, and
cannot be inferred from the words by which the grant is made.
The relative position of the Warren Bridge has already been described.
It does not interrupt the passage over the Charles River Bridge, nor
make the way to it, or from it, less convenient. None of the faculties
or franchises granted to that corporation has been revoked by the
Legislature, and its right to take the tolls granted by the charter
remains unaltered. In short, all the franchises and rights of property
enumerated in the charter and there mentioned to have been granted to it
remain unimpaired. But its income is destroyed by the Warren Bridge,
which, being free, draws off the passengers and property which would
have gone over it and renders their franchise of no value. This is the
gist of the complainant, for it is not pretended that the erection of
the Warren Bridge would have done them any injury, or in any degree
affected their right of property, if it had not diminished the amount of
their tolls. In order, then, to entitle themselves to relief, it is
necessary to show that the Legislature contracted not to do the act of
which they complain, and that they impaired, or, in other words,
violated, that contract by the erection of the Warren Bridge.
The inquiry, then, is does the charter contain such a contract on the
part of the state? Is there any such stipulation to be found in that
instrument? It must be admitted on all hands that there is none -- no
words that even relate to another bridge, or to the diminution of their
tolls, or to the line of travel. If a contract on that subject can be
gathered from the charter, it must be by implication, and cannot be
found in the words used. Can such an agreement be implied? The rule of
construction before stated is an answer to the question: in charters of
this description, no rights are taken from the public or given to the
corporation beyond those which the words of the charter, by their
natural and proper construction, purport to convey. There are no words
which import such a contract as the plaintiffs in error contend for, and
none can be implied, and the same answer must be given to them that was
given by this Court to Providence Bank. The whole community are
interested in this inquiry, and they have a right to require that the
power of promoting their [p*550] comfort and convenience, and of
advancing the public prosperity by providing safe, convenient and cheap
ways for the transportation of produce and the purposes of travel, shall
not be construed to have been surrendered or diminished by the state
unless it shall appear by plain words that it was intended to be done.
But the case before the Court is even still stronger against any such
implied contract as the plaintiffs in error contend for. The Charles
River Bridge was completed in 1786, the time limited for the duration of
the corporation, by their original charter, expired in 1826. When,
therefore, the law passed authorizing the erection of the Warren Bridge,
the proprietors of Charles River Bridge held their corporate existence
under the law of 1792, which extended their charter for thirty years,
and the rights, privileges and franchises of the company must depend
upon the construction of the last-mentioned law, taken in connection
with the Act of 1785.
The act of 1792 which extends the charter of this bridge incorporates
another company to build a bridge over Charles River, furnishing another
communication with Boston, and distant only between one and two miles
from the old bridge. The first six sections of this act incorporate the
proprietors of the West Boston bridge, and define the privileges and
describe the duties of that corporation. In the 7th section, there is
the following recital:
And whereas, the erection of Charles River Bridge was a work of hazard
and public utility, and another bridge in the place of West Boston
bridge may diminish the emoluments of Charles River Bridge, therefore,
for the encouragement of enterprise,
they proceed to extend the charter of the Charles River Bridge, and to
continue it for the term of seventy years from the day the bridge was
completed, subject to the conditions prescribed in the original act, and
to be entitled to the same tolls. It appears, then, that, by the same
act that extended this charter, the Legislature established another
bridge which they knew would lessen its profits, and this, too, before
the expiration of the first charter, and only seven years after it was
granted, thereby showing that the State did not suppose that, by the
terms it had used in the first law, it had deprived itself of the power
of making such public improvements as might impair the profits of the
Charles River Bridge; and from the language used in the clauses of the
law by which the charter is extended, it would seem that the Legislature
were especially careful to exclude any inference that the extension was
made upon the ground of [p*551] compromise with the bridge company or as
a compensation for rights impaired. On the contrary, words are
cautiously employed to exclude that conclusion, and the extension is
declared to be granted as a reward for the hazard they had run and "for
the encouragement of enterprise." The extension was given because
the company had undertaken and executed a work of doubtful success, and
the improvements which the Legislature then contemplated might diminish
the emoluments they had expected to receive from it.
It results from this statement that the Legislature, in the very law
extending the charter, asserts its rights to authorize improvements over
Charles River which would take off a portion of the travel from this
bridge and diminish its profits, and the bridge company accept the
renewal thus given, and thus carefully connected with this assertion of
the right on the part of the state. Can they, when holding their
corporate existence under this law and deriving their franchises
altogether from it, add to the privileges expressed in their charter an
implied agreement which is in direct conflict with a portion of the law
from which they derive their corporate existence? Can the Legislature be
presumed to have taken upon themselves an implied obligation contrary to
its own acts and declarations contained in the same law? It would be
difficult to find a case justifying such an implication even between
individuals; still less will it be found where sovereign rights are
concerned and where the interests of a whole community would be deeply
affected by such an implication. It would, indeed, be a strong exertion
of judicial power, acting upon its own views of what justice required
and the parties ought to have done, to raise, by a sort of judicial
coercion, an implied contract, and infer it from the nature of the very
instrument in which the Legislature appear to have taken pains to use
words which disavow and repudiate any intention, on the part of the
state, to make such a contract.
Indeed, the practice and usage of almost every State in the Union old
enough to have commenced the work of internal improvement is opposed to
the doctrine contended for on the part of the plaintiffs in error.
Turnpike roads have been made in succession, on the same line of travel,
the later ones interfering materially with the profits of the first.
These corporations have, in some instances, been utterly ruined by the
introduction of newer and better modes of transportation and traveling.
In some cases, railroads have rendered the turnpike roads on the same
line of travel so entirely useless that the [p*552] franchise of the
turnpike corporation is not worth preserving. Yet in none of these cases
have the corporation supposed that their privileges were invaded, or any
contract violated on the part of the state. Amid the multitude of cases
which have occurred, and have been daily occurring, for the last forty
or fifty years, this is the first instance in which such an implied
contract has been contended for and this Court called upon to infer it
from an ordinary act of incorporation containing nothing more than the
usual stipulations and provisions to be found in every such law. The
absence of any such controversy, when there must have been so many
occasions to give rise to it, proves that neither states nor individuals
nor corporations ever imagined that such a contract could be implied
from such charters. It shows that the men who voted for these laws never
imagined that they were forming such a contract, and if we maintain that
they have made it, we must create it by a legal fiction, in opposition
to the truth of the fact and the obvious intention of the party. We
cannot deal thus with the rights reserved to the states, and, by legal
intendments and mere technical reasoning, take away from them any
portion of that power over their own internal police and improvement,
which is so necessary to their wellbeing and prosperity.
And what would be the fruits of this doctrine of implied contracts on
the part of the states and of property in a line of travel by a
corporation if it would now be sanctioned by this Court? To what results
would it lead us? If it is to be found in the charter to this bridge,
the same process of reasoning must discover it in the various acts which
have been passed within the last forty years for turnpike companies. And
what is to be the extent of the privileges of exclusion on the different
sides of the road? The counsel who have so ably argued this case have
not attempted to define it by any certain boundaries. How far must the
new improvement be distant from the old one? How near may you approach
without invading its rights in the privileged line? If this Court should
establish the principles now contended for, what is to become of the
numerous railroads established on the same line of travel with turnpike
companies, and which have rendered the franchises of the turnpike
corporations of no value? Let it once be understood that such charters
carry with them these implied contracts, and give this unknown and
undefined property in a line of traveling, and you will soon find the
old turnpike corporations awakening from their sleep, and calling
[p*553] upon this Court to put down the improvements which have taken
their place. The millions of property which have been invested in
railroads and canals upon lines of travel which had been before occupied
by turnpike corporations will be put in jeopardy. We shall be thrown
back to the improvements of the last century, and obliged to stand still
until the claims of the old turnpike corporations shall be satisfied and
they shall consent to permit these States to avail themselves of the
lights of modern science, and to partake of the benefit of those
improvements which are now adding to the wealth and prosperity, and the
convenience and comfort, of every other part of the civilized world. Nor
is this all. This Court will find itself compelled to fix, by some
arbitrary rule, the width of this new kind of property in a line of
travel, for if such a right of property exists, we have no lights to
guide us in marking out its extent unless, indeed, we resort to the old
feudal grants, and to the exclusive rights of ferries by prescription,
between towns, and are prepared to decide that, when a turnpike road
from one town to another had been made, no railroad or canal between
these two points could afterwards be established. This Court are not
prepared to sanction principles which must lead to such results.
Many other questions, of the deepest importance have been raised and
elaborately discussed in the argument. It is not necessary, for the
decision of this case, to express our opinion upon them, and the Court
deem it proper to avoid volunteering an opinion on any question
involving the construction of the Constitution where the case itself
does not bring the question directly before them and make it their duty
to decide upon it. Some questions, also, of a purely technical character
have been made and argued as to the form of proceeding and the right to
relief. But enough appears on the record to bring out the great question
in contest, and it is the interest of all parties concerned that the
real controversy should be settled without further delay; and as the
opinion of the Court is pronounced on the main question in dispute here,
and disposes of the whole case, it is altogether unnecessary to enter
upon the examination of the forms of proceeding in which the parties
have brought it before the Court.
The judgment of the Supreme Judicial Court of the Commonwealth of
Massachusetts dismissing the plaintiffs' bill must, therefore be
affirmed, with costs. [p*554] | |
|
This suit in
chancery was commenced in the Supreme Court of Massachusetts, where the
bill was dismissed, by a decree pro forma, the members of that Court
being equally divided in opinion, and a writ of error was taken to this
Court on the ground that the right asserted by the complainants, and
which has been violated, under the charter of the respondents, is
protected by a special provision in the federal Constitution.
The complainants' right is founded on an act of the Legislature of
Massachusetts, passed March 9th, 1785, which incorporated certain
individuals, and authorized them to erect a bridge over Charles River, a
navigable stream between Boston and Charlestown, and an amendatory act,
passed in 1791, extending the charter thirty years. As explanatory of
this right, if not the ground on which it in part rests, a reference is
made to an ancient ferry over the same river which was held by Harvard
College and the right of which was transferred, it is contended, in
equity, if not in law, to the bridge company. The wrong complained of
consists in the construction of a new bridge over the same river, under
a recent act of the Legislature, within a few rods of the old one, and
which takes away the entire profits of the old bridge.
The act to establish the Charles River Bridge required it to be
constructed within a limited time, of certain dimensions, to be kept in
repair, and to afford certain specified accommodations to the public.
The company were authorized to charge certain rates of toll, and they
were required to pay, annually, £200 to Harvard College. The first
charter was granted for forty years. The facts proved in the case show
that a bridge of the description required by the Act of 1785 was
constructed within the time limited, that the annual payment has been
made to the college, and that, in every other respect, the corporation
has faithfully performed the conditions and duties enjoined on it.
It is contended that the charter granted to the respondents, violates
the obligation of that which had been previously granted to the
complainants, and that, consequently, it is in conflict with that
provision of the Constitution which declares that no "state shall
pass any law impairing the obligation of contracts."
In the investigation of this case, the first inquiry which seems
naturally [p*555] to arise is as to the nature and extent of the right
asserted by the complainants. As early as the year 1631, a ferry was
established across Charles River, by the colonial government of
Massachusetts Bay. In 1640, the General Court say "that the ferry
is granted to the college." From this time, the profits of the
ferry were received by the college, and it was required, by various
statutes, under certain penalties, to keep certain boats, &c., for
the accommodation of the public. This duty was performed by the college,
and it continued to occupy the ferry until the Charles River Bridge was
constructed.
From the above act of the General Court, and others which have been
shown, and the unmolested use of the ferry for more than 140 years by
the college, it would seem that its right to this use had received all
the sanctions necessary to constitute a valid title. If the right was
not founded strictly on prescription, it rested on a basis equally
unquestionable.
At the time this ferry was established, it was the only public
communication between Boston and Charlestown. These places, and
especially the latter, were then small, and no greater accommodation was
required than was afforded by the ferry. Its franchise was not limited,
it is contended, to the ferry ways, but extended to the whole line of
travel between the two towns.
It cannot be very material to inquire whether this ferry was originally
public or private property, or whether the landing places were vested in
the college, or their use only, and the profits of the ferry. The
beneficial interest in the ferry was held by the college, and it
received the tolls. The regulation of the ferry, it being a matter of
public concern, belonged to the government. It prescribed the number of
boats to be kept, and the attendance necessary to be given, and, on a
failure to comply with these requisitions, the college would have been
subjected to the forfeiture of the franchise and the other penalties
provided by statute. Was this right of ferry, with all its immunities,
transferred to the Charles River Bridge Company?
It is not contended that there is any express assignment of this right,
by deed or otherwise, but the complainants claim that the evidence of
the transfer is found in the facts of the case. Before the charter was
granted, the college was consulted on the subject; so soon as the bridge
was constructed, the use of the ferry ceased, [p*556] and the college
has regularly received from the complainants the annuity of £200.
This acquiescence, it is contended, taken in connection with the other
facts in the case, goes to establish the relinquishment of the right to
the ferry for the annual compensation required to be paid under the
charter. That there was a substitution of the bridge for the ferry, with
the consent of the college, is evident, but there seems to have been no
assignment of the rights of the ferry. The original bridge charter was
granted for forty years, at the expiration of which period the property
of the bridge was to revert to the Commonwealth,
saving to the college a reasonable and annual compensation for the
annual income of the ferry, which they might have received had not said
bridge been erected.
Had the bridge been destroyed by fire or otherwise, there was no
investiture of right to the ferry in the complainants that would have
enabled them to keep up the ferry and realize the profits of it. On the
destruction of the bridge, the college, it is presumed, might have
resumed all the rights and responsibilities attached to the ferry. At
least it is very clear that these rights and responsibilities would not
have devolved on the complainants. They stipulated to afford a different
accommodation to the public. If, then, these rights could not have been
claimed and exercised by the complainants, under such circumstances, how
can they be considered as enlarging, or in any way materially affecting,
the franchise under the charter of 1785?
That the franchise of a ferry, at common law and in the State of
Massachusetts, extends beyond the landing places is very clear from
authority. 10 Petersdorf 53; 13 Vin. 513; Willes' Rep. 512 note; 12 East
330; 6 Barn. & Cres. 703; Year Book, Hen. 6, 22; Rolles' Abr. 140;
Fitz. 428 n; Com.Digest Market, c. 2; Piscary, B. Action on the Case,
A.; 3 Blk. 219; 1 Nott & M'Cord 387; 2 Saund. 172; 6 Mod. 229; 2
Vent. 344; 3 Levinz 220; Com.Dig.Patent, F. 4, 5, 6, 7; 2 Saund. 72, n.
4; 2 Inst. 406; Chit.Pre. 12, chap. 3; 10, chap. 2; 3 Salk. 198; Willes
512; 4 T.R. 666; Saund. 114, Cro.E. 710.
The annuity given to the college was a compensation for the profits of
the ferry, and shows a willingness by the college to suspend its rights
to the ferry, during the time specified in the act. And if, indeed, it
might be construed into an abandonment of the ferry, still it was an
abandonment to the public, on the terms specified, for a better
accommodation. [p*557]
The bridge was designed not only to answer all the purposes of the
ferry, but to enlarge the public convenience. The profits contemplated
by the corporators were not only those which had been realized from the
ferry, but such as would arise from the increased facilities to the
public.
If there was no assignment of the ferry franchise to the complainants,
its extent cannot be a matter of importance in this investigation, nor
is it necessary to inquire into the effect of an assignment, under the
circumstances of the case, if it had been made.
There is no provision in the act of incorporation vesting the company
with the privileges of the ferry. A reference is made to it merely with
the view of fixing the site of the bridge. The right and obligations of
the complainants must be ascertained by the construction of the Act of
1785. This act must be considered in the light of a contract, and the
law of contracts applies to it. In one sense it is a law, having passed
through all the forms of legislation and received the necessary
sanctions, but it is essentially a contract as to the obligation imposed
by it and the privileges it confers.
Much discussion has been had at the bar as to the rule of construing a
charter or grant, and many authorities have been referred to on this
point. In ordinary cases, a grant is construed favorable to the grantee,
and against the grantor. But it is contended that, in governmental
grants, nothing is taken by implication. The broad rule thus laid down
cannot be sustained by authority. If an office be granted by name, all
the immunities of that office are taken by implication. Whatever is
essential to the enjoyment of the thing granted must be taken by
implication. And this rule holds good whether the grant emanate from the
royal prerogative of the King, in England, or under an act of
legislation, in this country. The general rule is that "a grant of
the King, at the suit of the grantee, is to be construed most
beneficially for the King, and most strictly against the grantee,"
but grants obtained as a matter of special favor of the King, or on a
consideration, are more liberally construed. Grants of limited political
powers are construed strictly. Com.Dig. tit. Grant, E. 5; 2 Dane's Abr.
683; Stark v. McGowan, 1 Nott & M'Cord 387; Pop. 79; Moore
474; 8 Coke 92; 6 Barn. & Cres. 703; 5 Ib. 875; 3 M. & S. 247;
Hargrave, 18-23; Angel on Tide Water 106-1077, 4 Burr. 2161; 4 T.R. 439;
2 Bos. [p*558] & Pul. 472; 1 T.R. 669; 1 Con.Rep. 382; 17 Johns.
195; 3 M. & S. 247; 6 Mass. 437; 1 Mass. 231; 17 Mass. 289; Angel
108; 4 Mass. 140, 522; Bac.Pre.T.2; Plow. 336-337, 9 Coke 30; 1 Vent.
409; Croke J. 179; Dyer 30; Saville 132; 10 Coke 112; Com.Dig.Grant, 9,
12; Bac.tit.Prerog. 2; 5 Barn. & Cres. 875; 1 Mass. 356.
Where the Legislature, with a view of advancing the public interest by
the construction of a bridge, a turnpike road, or any other work of
public utility, grants a charter, no reason is perceived why such a
charter should not be construed by the same rule that governs contracts
between individuals. The public, through their agent, enter into the
contract with the company, and a valuable consideration is received in
the construction of the contemplated improvement. This consideration is
paid by the company, and sound policy requires that its rights should be
ascertained and protected by the same rules as are applied to private
contracts.
In the argument, great reliance was placed on the case of the Stourbridge
Canal v. Wheeley and Others, 2 Barn. & Ald. 792. The question in
this case was, whether the plaintiffs had a right to charge toll in
certain cases, and Lord Tenterden said,
the canal having been made under the provisions of an act of
Parliament, the rights of the plaintiff are derived entirely from that
act. This, like many other cases, is a bargain between a company of
adventurers and the public, the terms of which are expressed in the
statute, and the rule of construction in all such cases, is now fully
established to be this -- that any ambiguity in the terms of the
contract must operate against the adventurers, and in favor of the
public, and the plaintiffs can claim nothing which is not clearly given
to them by the act.
This is relied on to show that nothing is taken, under such a grant, by
implication or inference. His lordship says the right must be clearly
given -- he does not say expressly given, which would preclude all
inference. In another part of the same opinion, his lordship says,
Now it is quite certain that the company have no right, expressly
given, to receive any compensation except the tonnage paid for goods
carried through some of the locks on the canal, or the collateral cuts,
and it is, therefore, incumbent upon them to show that they have a
right, clearly given, by in May this right be shown by inference, and is
not this implication? The doctrine laid down in this case is simply
this: that the right to charge the toll must be given expressly or it
must be clearly made out by inference. Does not this case establish the
doctrine of implication, as applied to the construction of grants? Is it
not the right to pass by-laws incident to a corporation? A right cannot
be claimed by a corporation under ambiguous terms; it must clearly
appear to have been granted either in express terms or by inference, as
stated by Lord Tenterden.
A corporate power to impose a tax on the land of the company, as
considered in the case of Beaty v. Lessee of Knowles, 4 Pet.
168, must, in its nature, be strictly construed, and so, in all cases
where corporate powers in the nature of legislation are exercised. In
that case, the directors were authorized to impose a tax under certain
circumstances, and the Court held that they had no power to impose the
tax under other circumstances.
Charles River being a navigable stream, any obstructions to its
navigation by the erection of a bridge or any other work would have been
punishable unless authorized by law. By the Act of 1785, the
complainants were authorized to build the bridge, elect their officers,
&c., and charge certain rates of toll. The power to tax passengers
was the consideration on which the expense of building the bridge,
lighting it, &c., and keeping it in repair, was incurred. The grant,
then, of tolls was the essential part of the franchise. That course of
reasoning which would show the consideration to consist in anything
short of this power to tax and the profit arising therefrom is too
refined for practical purposes. The builders of the bridge had, no
doubt, a desire to increase the public accommodation, but they looked
chiefly to a profitable investment of their funds, and that part of the
charter which secured this object formed the consideration on which the
work was performed.
But it is said there was no exclusive right given, and that,
consequently, the Legislature might well cause another bridge to be
built whenever, in their opinion, the public convenience required it. On
the other hand, it is insisted that the franchise of the bridge was as
extensive as that of the ferry, and that the grant of this franchise
having been made by the Legislature, it had no power to grant a part of
it to the new bridge. [p*560]
That this part of the case presents considerations of great importance
and of much difficulty cannot be denied. To inquire into the validity of
a solemn act of legislation is, at all times, a task of much delicacy,
but it is peculiarly so when such inquiry is made by a federal tribunal
and relates to the act of a State Legislature. There are cases, however,
in the investigation of which such an inquiry becomes a duty, and then
no Court can shrink, or desire to shrink, from its performance. Under
such circumstances, this duty will always be performed with the high
respect due to a branch of the government which, more than any other, is
clothed with discretionary powers and influenced by the popular will.
The right granted to the Charles River Bridge Company is, in its
nature, to a certain extent exclusive, but to measure this extent
presents the chief difficulty. If the boundaries of this right could be
clearly established, it would scarcely be contended by anyone that the
Legislature could, without compensation, grant to another company the
whole or any part of it. As well might it undertake to grant a tract of
land although an operative grant had been previously made for the same
land. In such a case, the second grant would be void on the ground that
the Legislature had parted with the entire interest in the premises. As
agent of the public, it has passed the title to the first grantee, and,
having done so, it could convey no right by its second grant. The
principle is the same in regard to the question under consideration. If
the franchise granted to the complainants extended beyond the new
bridge, it was as much above the power of the Legislature to make the
second grant as it would be to grant a part of a tract of land for which
a patent had been previously and regularly issued. The franchise, though
incorporeal, in legal contemplation, has body and extension, and having
been granted, is not less scrupulously guarded by the principles of law
than an interest in the soil. It is a substantive right in law, and can
no more be resumed by the Legislature, when once granted, than any other
right.
But would it not be unsafe, it is suggested, for the judicial authority
to interpose and limit this exercise of legislative discretion? The
charter of the Warren Bridge, it is said, was not hastily granted; that
all the circumstances of the case, year after year, were duly examined
by the Legislature, and, at last, the act of incorporation was passed
because, in the judgment of the Legislature, the public [p*561]
accommodation required it, and it is insisted that the grant to the
complainants was necessarily subject to the exercise of this discretion.
It is undoubtedly the province of the Legislature to provide for the
public exigencies, and the utmost respect is always due to their acts;
and the validity of those acts can only be questioned judicially where
they infringe upon private rights. At the time the Charles River Bridge
was built, the population of Boston and Charlestown was small in
comparison with their present numbers, and it is probable that the
increase has greatly exceeded any calculation made at the time. The
bridge was sufficient to accommodate the public, and it was, perhaps,
believed that it would be sufficient during the time limited in the
charter. If, however, the increased population and intercourse between
these towns and the surrounding country required greater accommodation
than was afforded by the bridge, there can be no doubt that the
Legislature could make provision for it.
On the part of the complainants' counsel it is contended, if increased
facilities of intercourse between these places were required by the
public, the Legislature was bound in good faith to give the option to
the Charles River Bridge Company, either to enlarge their bridge or
construct a new one, as might be required. And this argument rests upon
the ground that the complainants' franchise included the whole line of
travel between the two places. Under this view of their rights, the
company proposed to the Legislature, before the new charter was granted
to the respondents, to do anything which should be deemed requisite for
the public accommodation. In support of the complainants' right in this
respect, a case in referred to in 7 Barn. & Cres. 40, where it is
laid down that the lord of an ancient market may, by law, have a right
to prevent other persons from selling goods in their private houses,
situated within the limits of his franchise, and also to 5 Barn. &
Cres. 363. These cases show that the grant to the lord of the market is
exclusive, yet, if the place designated for the market is made too small
by the act of the owner, any person may sell in the vicinity of the
market without incurring any responsibility to the lord of the market.
Suppose, the Legislature had passed a law requiring the [p*562]
complainants to enlarge their bridge, or construct a new one, would they
have been bound by it? Might they have not replied to the Legislature,
we have constructed our bridge of the dimensions required by the
charter; we have therefore provided for the public all the accommodation
which we are bound to give? And if the Legislature could not require
this of the complainants, is it not clear that they cannot assert an
exclusive claim to the advantages of an enlarged accommodation? In
common with our citizens, they submitted propositions to the
Legislature, but they could urge no exclusive right to afford any
accommodation beyond what was given by their bridge. When the Charles
River Bridge was built, it was considered a work of great magnitude. It
was, perhaps, the first experiment made to throw a bridge of such length
over an arm of the sea, and in the construction of it, great risk and
expense were incurred. The unrestricted profits contemplated were
necessary to induce or justify the undertaking. Suppose, within two or
three years after the Charles River Bridge had been erected, the
Legislature had authorized another bridge to be built alongside of it
which could only accommodate the same line of travel. Whether the
profits of such a bridge were realized by a company or by the state,
would not the act of the Legislature have been deemed so gross a
violation of the rights of the complainants as to be condemned by the
common sense and common justice of mankind? The plea that the timbers or
stone of the new bridge did not interfere with the old one could not in
such a case have availed. The value of the bridge is not estimated by
the quantity of timber and stone it may contain, but by the travel over
it. And if one-half or two-thirds of this travel, all of which might
conveniently have passed over the old bridge, be drawn to the new one,
the injury is much greater than would have been the destruction of the
old bridge. A reconstruction of the bridge, if destroyed, would secure
to the company the ordinary profits, but the division or destruction of
the profits by the new bridge runs to the end of the charter of the old
one. And shall it be said that the greater injury, the diversion of the
profits, may be inflicted on the company with impunity, while, for the
less injury, the destruction of the bridge, the law would give an
adequate remedy?
I am not here about to apply the principles which have been long
established in England for the protection of ancient ferries, [p*563]
fairs, mills, &c. In my opinion, this doctrine, in its full extent,
is not adapted to the condition of our country. And it is one of the
most valuable traits in the common law that it forms a rule of right
only in cases and under circumstances adapted to its principles. In this
country, there are few rights founded on prescription. The settlement of
our country is comparatively recent, and its rapid growth in population
and advance in improvements have prevented, in a great degree, interests
from being acquired by immemorial usage. Such evidence of right is found
in countries where society has become more fixed and improvements are in
a great degree stationary. But without the aid of the principles of the
common law, we should be at a loss how to construe the charter of the
complainants and ascertain their rights.
Although the complainants cannot fix their franchise, by showing the
extent of the ferry rights, yet, under the principles of the common law,
which have been too long settled in Massachusetts, in my opinion, to be
now shaken, they may claim their franchise beyond the timbers of their
bridge. If they may go beyond these, it is contended that no exact limit
can be prescribed. And because it may be difficult, and perhaps,
impracticable, to designate with precision the exact limit, does it
follow that the complainants' franchise is as narrow as their bridge? Is
it more difficult to define, with reasonable certainty, the extent of
this right than it is, in many other cases, to determine the character
of an offence against the laws from established facts? What shall
constitute a public or private nuisance? What measure of individual
wrong shall be sufficient to convict a person of the latter? And what
amount of inconvenience to the public shall constitute the former? Would
it be more difficult to define the complainants' franchise than to
answer these questions? And yet public and private nuisances are of
daily cognisance in Courts of justice.
How have ferry rights, depending upon the same principles, been
protected for centuries, in England? The principles of the common law
are not applied with that mathematical precision of which the principles
of the civil law are susceptible. But if the complainants' franchise
cannot be measured by feet and inches, it does not follow that they have
no rights. In determining upon facts which establish rights or wrongs,
[p*564] public as well as private, an exercise of judgment is
indispensable, the facts and circumstances of each case are considered,
and a sound and legal conclusion is drawn from them.
The bridge of the complainants was substituted for the ferry, and it
was designed to accommodate the course of travel between Boston and
Charlestown. This was the view of the Legislature in granting the
charter and of the complainants in accepting it. And if it be admitted
that the great increase of population has required the erection of other
bridges than that which is complained of in this suit over this arm of
the sea, that can afford no protection to the defendants. If the
interests of the complainants have been remotely injured by the
construction of other bridges, does that give a license to the
defendants to inflict on them a more direct and greater injury? By an
extension of the complainants' charter, thirty years, an indemnity was
given and accepted by them for the construction of the West Boston
bridge.
The franchise of the complainants must extend a reasonable distance
above and below the timbers of their bridge. This distance must not be
so great as to subject the public to serious inconvenience, nor so
limited as to authorize a ruinous competition. It may not be necessary
to say that for a remote injury, the law would afford a remedy, but
where the injury is ruinous, no doubt can exist on the subject. The new
bridge, while tolls were charged, lessened the profits of the old one
about one-half, or two-thirds, and now that it is a free bridge by law,
the tolls received by the complainants are merely nominal. On what
principle of law, can such an act be sustained? Are rights acquired
under a solemn contract with the Legislature held by a more uncertain
tenure than other rights? Is the legislative power so omnipotent in such
cases as to resume what it has granted without compensation? It will
scarcely be contended that, if the Legislature may do this, indirectly,
it may not do it directly. If it may do it through the instrumentality
of the Warren Bridge Company, it may dispense with that instrumentality.
But it is said that any check to the exercise of this discretion by the
Legislature will operate against the advance of improvements. Will not a
different effect be produced? If every bridge or turnpike company were
liable to have their property wrested from them, under an act of the
Legislature, without compensation, could much value be attached to such
property? Would prudent men expend their funds in making such
improvements? [p*565]
Can it be considered as an injurious check to legislation that private
property shall not be taken for public purposes without compensation?
This restriction is imposed by the federal Constitution, and by the
constitutions of the respective states.
But it has been urged that the property of the complainants has not
been taken, as the tolls in anticipation cannot be denominated property.
The entire value of the bridge consists in the right of exacting toll.
Is not this right property, and cannot its value be measured? Do not
past receipts and increased intercourse afford a rule by which future
receipts may be estimated? And if the whole of these tolls are taken
under an act of the Legislature, is not the property of the complainants
taken? The charter of the complainants has been compared to a bank
charter, which implies no obligation on the Legislature not to establish
another bank in the same place. This is often done, and it is contended
that, for the consequential injury done the old bank, by lessening its
profits, no one supposes that an action would lie, or that the second
charter is unconstitutional. This case bears little or no analogy to the
one under consideration. A bank may wind up its business, or refuse its
discounts, at the pleasure of its stockholders and directors. They are
under no obligation to carry on the operations of the institution, or
afford any amount of accommodation to the public. Not so with the
complainants. Under heavy penalties, they are obliged to keep their
bridge in repair, have it lighted, the gates kept open, and to pay £200
annually to the college. This the complainants are bound to do although
the tolls received should scarcely pay for the oil consumed in the lamps
of the bridge.
The sovereign power of the State has taken the tolls of the
complainants, but it has left them in possession of their bridge. Its
stones and timbers are untouched, and the roads that lead to it remain
unobstructed.
One of the counsel in the defence, with emphasis, declared that the
Legislature can no more repeal a charter than it can lead a citizen to
the block. The Legislature cannot bring a citizen to the block; may it
open his arteries? It cannot cut off his head; may it bleed him to
death? Suppose the Legislature had authorized the construction of an
impassable wall which encircled the ends of the bridge so as to prevent
passengers from crossing on it. The wall may be as distant from the
abutments of the bridge as the [p*566] Warren Bridge. Would this be an
infringement of the plaintiffs' franchise? On the principles contended
for, how could it be so considered? If the plaintiffs' franchise is
limited to their bridge, then they are not injured by the construction
of this wall, or at least they are without remedy. This wall would be no
more injurious to the plaintiffs than the free bridge. And the
plaintiffs might be told, as alleged in this case, the wall does not
touch your bridge. You are left in the full exercise of your corporate
faculties. You have the same right to charge toll as you ever had.
The Legislature had the same right to destroy the plaintiffs' bridge by
authorizing the construction of the wall as they had by authorizing the
construction of a free bridge. In deciding this question, we are not to
consider what may be the law on this subject in Pennsylvania, Maryland,
Virginia or Ohio, but what it is in Massachusetts. And in that state,
the doctrine has been sanctioned that associations of men to accomplish
enterprises of importance to the public, and who have vested their funds
on the public faith, are entitled to protection. That their rights do
not become the sport of popular excitement, any more than the rights of
other citizens. The case under consideration forms, it is believed, a
solitary exception to this rule, whether we look to the action of the
Legislature, or the opinions of the distinguished jurists of the state,
on the bench and at the bar.
The expense of keeping up the bridge and paying the annuity to the
college is all that is left by the State to the complainants. Had this
been proposed, or anything which might lead to such a result, soon after
the construction of the complainants' bridge, it is not probable that it
would have been sanctioned, and yet it might as well have been done then
as now. A free bridge then could have been no more injurious to the
plaintiffs than it is now. No reflection is intended on the Commonwealth
of Massachusetts, which is so renowned in our history for its
intelligence, virtue and patriotism. She will not withhold justice when
the rights of the complainants shall be established.
Much reliance is placed on the argument, in the case reported in 4 Pet.
560, in which it was decided that a law of the State of Rhode Island
imposing a tax upon banks is constitutional. As these banks were
chartered by the state, it was contended that there was no implied
obligation on the Legislature not to tax them. That if [p*567] this
power could be exercised, it might be carried so far as to destroy the
banks. But this Court sustained the right of the State to tax. The
analogy between the two cases is not perceived. Does it follow, because
the complainants' bridge is not exempt from taxation, that it may be
destroyed, or its value greatly impaired by any other means? The power
to tax extends to every description of property held within the state
which is not specially exempted, and there is no reason or justice in
withholding from the operation of this power property held directly
under the grant of the state.
The complainants' charter has been called a monopoly, but in no just
sense can it be so considered. A monopoly is that which has been granted
without consideration, as a monopoly of trade, or of the manufacture of
any particular article to the exclusion of all competition. It is
withdrawing that which is a common right from the community and vesting
it in one or more individuals, to the exclusion of all others. Such
monopolies are justly odious, as they operate not only injuriously to
trade, but against the general prosperity of society. But the
accommodation afforded to the public by the Charles River Bridge, and
the annuity paid to the college, constitute a valuable consideration for
the privilege granted by the charter. The odious features of a monopoly
do not, therefore, attach to the charter of the plaintiffs.
The 10th article of the declaration of rights in the Constitution of
Massachusetts provides:
Whenever the public exigencies require that the property of any
individual should be appropriated to public uses, he shall receive a
reasonable compensation therefor.
And in the 12th article, it is declared that "no subject shall be
deprived of his property, immunities, privileges or estate, but by the
judgment of his peers or the law of the land." Here is a power,
recognised in the sovereignty, and as incident to it, to apply private
property to public uses by making for it a just compensation. This power
overreaches every other, and must be exercised at the discretion of the
government, and a bridge, a turnpike-road, a tract of land, or any other
property may be taken, in whole or in part, for public purposes on
condition of making compensation.
In the case of Chadwick v. The Proprietors of the Haverhill Bridge,
reported in Dane's Abridgment 683, it appears that a bridge was built
under a charter within forty yards of the plaintiff's ferry, and over
the same water. By an act of the Legislature, commissioners were
authorized to ascertain the damages sustained by the [p*568] plaintiff,
but he preferred his action at law, which was prosecuted, and adequate
damages were recovered. It is true, this matter was referred to
arbitrators, but they were men of distinguished legal attainments and
great experience, and they, after determining that the plaintiff could
sustain his action, assessed the damages. This award was sanctioned by
the Court. Under the circumstances of this case, at least as great a
weight of authority belongs to it as if the decision had been made by a
court on the points involved. The case presented by the complainants is
much stronger than Chadwick's, and if he was entitled to reparation for
the injury done, no doubt can exist of the complainants' right.
In the extension of the national road through the State of Ohio, a free
bridge was thrown across a stream by the side of a toll bridge, which
had some ten or fifteen years of its charter to run. The new bridge did
not in the least obstruct the passage over the old one, and it was
contended that, as no exclusive right was given under the first grant,
the owner of the toll bridge was entitled to no compensation. It was
said on that occasion, as it has been urged on this, that the right was
given subject to the discretion of the Legislature as to a subsequent
grant, and that the new bridge could not be objected to by the first
grantee, whether it was built under the authority of the State or
federal government. This course of reasoning influenced a decision
against the claimant in the first instance, but a reconsideration of his
case, and a more thorough investigation of it, induced the proper
authority to reverse the decision, and award an indemnity for the injury
done. The value of the charter was estimated, and a just compensation
was made. This, it is true, was not a judicial decision, but it was a
decision of the high functionaries of the government, and is entitled to
respect. It was dictated by that sense of justice which should be felt
on the bench, and by every tribunal having the power to act upon private
rights.
It is contended by the respondents' counsel that there was not only no
exclusive right granted in the complainants' charter beyond the timbers
of the bridge, but the broad ground is assumed that the Legislature had
no power to make such a grant, that they cannot grant any part of the
eminent domain which shall bind a subsequent Legislature. And a number
of authorities were cited to sustain their position: 1 Vattell ch. 9,
sec. 101; 4 Litt.R. 327; Domat, Book 1, tit. 6, sec. 1, 17 Vin. 88,
Chit. on Prer. 81; 10 Price 350; Puff. [p*569] ch. 5, sec. 7, 5 Cowen
558, 6 Wheat. 593; 20 Johns.R. 25; Hargrave's Law Tracts 36; 4 Gill &
Johns. 1.
If this doctrine be sustainable as applied to this case, it is not
perceived why an exception should be made in favor of the plaintiffs
within the timbers of their bridge. It is admitted that their grant is
good to this extent, and if the Legislature may grant a part of the
eminent domain to this extent, why may it not go beyond it? If it may
grant any part of the eminent domain, must not the extent of the grant
be fixed at its discretion? In what other mode can it be determined,
than by a judicial construction of the grant?
Acts of incorporation, when granted on a valuable consideration, assume
the nature of contracts, and vested rights under them are no more
subject to the legislative power than any other vested rights. In
granting the charter to the Charles River Bridge Company, the
Legislature did not divest itself of the power to grant similar
charters. But the thing granted passed to the grantee, and can no more
be resumed by the Legislature than it can resume the right to a tract of
land which has been granted. When land is granted, the State can
exercise no acts of ownership over it unless it be taken for public use,
and the same rule applies to a grant for a bridge, a turnpike-road, or
any other public improvement. It would assume a bold position to say
that a subsequent Legislature may resume the ownership of a tract of
land which had been granted at a preceding session, and yet the
principle is the same in regard to vested rights under an act of
incorporation. By granting a franchise, the State does not divest itself
of any portion of its sovereignty, but to advance the public interests,
one or more individuals are vested with a capacity to exercise the
powers necessary to attain the desired object. In the case under
consideration, the necessary powers to construct and keep up the Charles
River Bridge were given to Thomas Russell and his associates. This did
not withdraw the bridge from the action of the State sovereignty any
more than it is withdrawn from land which it has granted. In both cases,
the extent of the grant may become a question for judicial investigation
and decision, but the rights granted are protected by the law.
It is insisted that as the complainants accepted the extension of their
charter in 1792, under an express assertion of right by the Legislature
to make new grants at its discretion, they cannot now object to the
respondents' charter. In the acceptance of the extended charter, the
complainants are bound only by the provisions of that [p*570] charter.
Any general declarations, which the Legislature may have made as regards
its power to grant charters could have no more bearing on the rights of
the complainants than on similar rights throughout the state. There was
no reservation of this power in the prolonged charter, nor was there any
general enactment on the subject. Of course, the construction of the
charter must depend upon general and established principles.
It has been decided by the supreme Court of New York that, unless the
act making the appropriation of private property for public use contain
a provision of indemnity, it is void. Where property is taken under
great emergencies by an officer of the government, he could hardly be
considered, I should suppose, a trespasser though he does not pay for
the property at the time it is taken. There can be no doubt that a
compensation should be provided for in the same act which authorizes the
appropriation of the property, or in a contemporaneous act. If, however,
this be omitted, and the property be taken, the law unquestionably gives
a remedy adequate to the damages sustained. No government which rests
upon the basis of fixed laws, whatever form it may have assumed or
wherever the sovereignty may reside, has asserted the right or exercised
the power of appropriating private property to public purposes without
making compensation.
In the 4th section of the act to establish the Warren Bridge, there is
a provision that the corporation shall make compensation for any real
estate that may be taken for the use of the bridge. The property of the
complainants which was appropriated under the new charter cannot
strictly be denominated real estate, and consequently this special
provision does not reach their case. In this respect, the law must stand
as though no such provision had been made. But was the complainants'
property appropriated, under the charter granted to the respondents, for
particular purposes? If the new bridge were deemed necessary by the
Legislature to promote the general convenience, and the defendants were
consequently authorized to construct it, and a part of the plaintiffs'
franchise were granted to the defendants, it was an appropriation of
private property for public use. It was as much an appropriation of
private property for public use as would have been an appropriation of
the ground of an individual for a turnpike or a railroad authorized by
law.
By the charter of the Warren Bridge, as soon as the company should be
reimbursed the money expended in the construction of the bridge, the
expenses incurred in keeping it up, and five percent [p*571] interest
per annum on the whole amount, the bridge was to become the property of
the state, and, whether these sums should be received or not, it was to
become public property in six years from the time it was completed. The
cost of construction, and the expenses, together with the five percent
interest, have been reimbursed, and, in addition, a large sum has been
received by the State from the tolls of this bridge. But it is now, and
has been since March last, it is admitted, a free bridge. In granting
the charter of the Warren Bridge, the Legislature seem to recognise the
fact that they were about to appropriate the property of the
complainants for public uses, as they provide that the new company shall
pay annually to the college, in behalf of the old one, £100. By
this provision, it appears that the Legislature has undertaken to do
what a jury of the country only could constitutionally do -- assess the
amount of compensation to which the complainants are entitled. Here,
then, is a law which not only takes away the property of the
complainants, but provides, to some extent, for their indemnity. Whether
the complainants have availed themselves of this provision or not does
not appear, nor is it very material. The law in this respect does not
bind them, and they are entitled to an adequate compensation for the
property taken. These considerations belong to the case as it arises
under the laws and Constitution of Massachusetts.
The important inquiry yet remains whether this Court can take
jurisdiction in the form in which the case is presented. The
jurisdiction of this Court is resisted on two grounds. In the first
place, it is contended that the Warren Bridge has become the property of
the state, and that the defendants have no longer any control over the
subject, and also that the Supreme Court of Massachusetts have no
jurisdiction over trusts.
The chancery jurisdiction of the Supreme Court of Massachusetts is
admitted to be limited, but they are specially authorized, in cases of
nuisances, to issue injunctions, and where this ground of jurisdiction
is sustained, all the incidents must follow it. If the law incorporating
the Warren Bridge Company was unconstitutional on the ground that it
appropriated to public use the property of the complainants without
making compensation, can there be any doubt that the Supreme Court of
Massachusetts had jurisdiction of the case? And having jurisdiction, is
it not clear that the whole matter in controversy may be settled by a
decree that the defendants shall [p*572] account to the complainants for
moneys received by them after they had notice of the injunction.
It is also insisted that the State is the substantial party to this
suit, and, as the Court has no jurisdiction against a sovereign State,
that they can sustain no jurisdiction against those who act as agents
under the authority of a State. That if such a jurisdiction were
asserted by this Court, they would do indirectly, what the law prohibits
them from doing directly. In the case of Osborn v. Bank of the
United States, 9 Wheat. 733, this Court says,
the Circuit Courts of the United States have jurisdiction of a bill in
equity, filed by the Bank of the United States for the purpose of
protecting the bank in the exercise of its franchises, which are
threatened with invasion and destruction under an unconstitutional State
law, and as the State itself cannot be made a defendant, it may be
maintained against the officers and agents of the State who are
appointed to execute such law.
As regards the question of jurisdiction, this case, in principle, is
similar to the one under consideration. Osborn acted as the agent or
officer of the State of Ohio in collecting from the bank, under an act
of the state, a tax or penalty unconstitutionally imposed, and if, in
such a case, jurisdiction could be sustained against the agent of the
state, why can it not be sustained against a corporation, acting as
agent, under an unconstitutional act of Massachusetts, in collecting
tolls which belong to the plaintiffs?
In the second place, it is contended that this Court cannot take
jurisdiction of this case under that provision of the federal
Constitution which prohibits any State from impairing the obligation of
contracts, as the charter of the complainants has not been impaired. It
may be necessary to ascertain definitely the meaning of this provision
of the Constitution and the judicial decisions which have been made
under it.
What was the evil against which the Constitution intended to provide by
declaring that no State shall pass any law impairing the obligation of
contracts? What is a contract, and what is the obligation of a contract?
A contract is defined to be an agreement between two or more persons to
do or not to do a particular thing. The obligation of a contract is
found in the terms of the agreement, sanctioned by moral and legal
principles. The evil which this inhibition on the States was intended to
[p*573] prevent is found in the history of our revolution. By repeated
acts of legislation in the different states during that eventful period,
the obligation of contracts was impaired. The time and mode of payment
were altered by law, and so far was this interference of legislation
carried that confidence between man and man was well nigh destroyed.
Those proceedings grew out of the paper system of that day, and the
injuries which they inflicted were deeply felt in the country at the
time the Constitution was adopted. The provision was designed to prevent
the States from following the precedent of legislation so demoralizing
in its effects and so destructive to the commercial prosperity of a
country. If it had not been otherwise laid down, in the case of Fletcher
v. Peck, 6 Cranch 125, I should have doubted whether the inhibition
did not apply exclusively to executory contracts. This doubt would have
arisen as well from the consideration of the mischief against which this
provision was intended to guard as from the language of the provision
itself.
An executed contract is the evidence of a thing done, and, it would
seem, does not necessarily impose any duty or obligation on either party
to do any act or thing. If a State convey land which it had previously
granted, the second grant is void, not, it would seem to me, because the
second grant impairs the obligation of the first, for, in fact, it does
not impair it, but because, having no interest in the thing granted, the
State could convey none. The second grant would be void in this country
on the same ground that it would be void in England if made by the King.
This is a principle of the common law, and is as immutable as the basis
of justice. It derives no strength from the above provision of the
Constitution, nor does it seem to me to come within the scope of that
provision.
When we speak of the obligation of a contract, the mind seems
necessarily to refer to an executory contract, to a contract under which
something remains to be done and there is an obligation on one or both
of the parties to do it. No law of a State shall impair this obligation
by altering it in any material part. This prohibition does not apply to
the remedy, but to the terms used by the parties to the agreement, and
which fix their respective rights and obligations. The obligation, and
the mode of enforcing the obligation, are distinct things. The former
consists in the acts of the parties, and is ascertained by the binding
words of the contract. The other emanates from the lawmaking power,
which may be exercised at the discretion of the Legislature, within the
prescribed limits of the [p*574] constitution. A modification of the
remedy for a breach of the contract does not, in the sense of the
Constitution, impair its obligation. The thing to be done and the time
of performance remain on the face of the contract in all their binding
force upon the parties, and these are shielded by the Constitution from
legislative interference.
On the part of the complainants, it is contended that, on the question
of jurisdiction, as in reference to any other matter in controversy, the
Court must look at the pleadings, and decide the point raised in the
form presented. The bill charges that the act to establish the Warren
Bridge purports to grant a right repugnant to the vested rights of the
complainants, and that it impairs the obligation of the contract between
them and the Commonwealth, and, being contrary to the Constitution of
the United States, is void. In their answer, the respondents deny that
the act creating the corporation of the Warren Bridge, impairs the
obligation of any contract set forth in the bill of the complainants.
The Court must look at the case made in the bill in determining any
questions which may arise, whether they relate to the merits or the
jurisdiction of the Court. But, in either case, they are not bound by
any technical allegations or responses which may be found in the bill
and answer. They must ascertain the nature of the relief sought, and the
ground of jurisdiction, from the tenor of the bill.
In this case, the question of jurisdiction under the Constitution is
broadly presented, and must be examined free from technical
embarrassment. Chief Justice Parker, in the State court, says, in
reference to the charter of the complainants,
the contract of the government is that this right shall not be
disturbed or impaired, unless public necessity demand, and if it shall
so demand, the grantees shall be indemnified.
Such a contract, he observes, is founded upon the principles of our
Constitution, as well as natural justice, and it cannot be impaired
without a violation of the Constitution of the United States, and I
think also it is against the principles of our State Constitution.
In the conclusion of his opinion, Mr. Justice Putam says, in speaking
of the defendants' charter,
it impairs the obligation of the grants before made to the plaintiffs;
it takes away their property, for public uses, without compensation,
against their consent, and without a provision for a trial by jury; it
is therefore void.
Mr. Justice Wilde and Mr. Justice Morton did not consider the [p*575]
new charter as having been granted either in violation of the
Constitution of the state or of the United States.
In their decree, the Court say
that no property belonging to the complainants was taken and
appropriated to public use, within the terms and meaning of the 10th
article of the declaration of rights prefixed to the Constitution of
this Commonwealth.
This decree can in no point of view be considered as fixing the
construction of the Constitution of Massachusetts as it applies to this
case. The decree was entered pro forma, and is opposed to the opinion of
two members of the Court.
But if that Court had deliberately and unanimously decided that the
plaintiffs' property had not been appropriated to public use under the
Constitution of Massachusetts, still, where the same point becomes
important on a question of jurisdiction before this Court, they must
decide for themselves. The jurisdiction of this Court could in no
respect be considered as a consequence of the decision of the above
question by the State court, in whatever way the decree might have been
entered. But no embarrassment can arise on this head, as the above
decree was made, as a matter of form, to bring the case before this
Court.
To sustain the jurisdiction of this Court, the counsel for complainants
place great reliance upon the fact that the right, charged to be
violated is held directly from the State, and they insist that there is
an implied obligation on the State that it will do nothing to impair the
grant. And that, in this respect, the complainants' right rests upon
very different grounds from other rights in the community not held by
grant directly from the State.
On the face of the complainants' grant, there is no stipulation that
the Legislature will do nothing that shall injure the rights of the
grantees; but it is said that this is implied, and on what ground, does
the implication arise? Does it arise from the fact that the complainants
are the immediate grantees of the State?
The principle is admitted that the grantor can do nothing that shall
destroy his deed, and this rule applies as well to the State as to an
individual. And the same principle operates with equal force on all
grants, whether made by the State or individuals.
Does an implied obligation arise on a grant made by the State that the
Legislature shall do nothing to invalidate the grant, which does not
arise on every other grant or deed in the Commonwealth?
The Legislature is bound by the Constitution of the State, and it
[p*576] cannot be admitted that the immediate grantee of the State has a
stronger guarantee for the protection of his vested rights against
unconstitutional acts than may be claimed by any other citizen of the
State. Every citizen of the State, for the protection of his vested
rights, claims the guarantee of the Constitution. This, indeed, imposes
the strongest obligation on the Legislature not to violate those rights.
Does the Legislature give to its grantee, by virtue of its grant, an
additional pledge that it will not violate the Constitution of the
State? Such an implication, if it exist, can scarcely be considered as
adding anything to the force of the Constitution. But this is not, it is
said, the protection which the complainants invoke. In addition to their
property's having been taken without compensation, they allege that
their charter has been impaired by the Warren Bridge charter, and, on
this ground, they ask the interposition of this Court.
The new charter does not purport to repeal the old one, nor to alter it
in any material or immaterial part. It does not, then, operate upon the
complainants' grant, but upon the thing granted. It has, in effect,
taken the tolls of the complainants and given them to the public. In
other words, under the new charter, all that is valuable under the
charter of the complainants has been appropriated to public use.
It is urged that the Legislature did not intend to appropriate the
property of the complainants; that there is nothing in the act of the
Legislature which shows an intention, by the exercise of the eminent
domain, to take private property for public use, but that, on the
contrary, it appears the Warren Bridge charter was granted in the
exercise of a legislative discretion, asserted and sustained by a
majority of the Legislature.
In this charter, provision is made to indemnify the owners of real
estate if it should be taken for the use of the bridge and the new
company is required to pay, in behalf of the Charles River Bridge
Company, one-half of the annuity to the college.
This would seem to show an intention to appropriate private property,
if necessary, for the establishment of the Warren Bridge, and also an
intention to indemnify the complainants to some extent for the injury
done them. There could have been no other motive than this in providing
that the new company should pay the hundred pounds.
But the Court can only judge of the intention of the Legislature
[p*577] by its language, and when, by its act, the franchise of the
complainants is taken, and, through the instrumentality of the Warren
Bridge Company, appropriated to the public use, it is difficult to say
that the Legislature did not intent to do, what in fact it has done.
Throughout the argument, the counsel for the complainants have most ably
contended that their property had been taken and appropriated to the
public use without making compensation, and that the Act was
consequently void under the Constitution of Massachusetts.
If this be the character of the Act, if, under its provisions, the
property of the complainants has been appropriated to public purposes,
it may be important to inquire whether it can be considered as impairing
the obligation of the contract within the meaning of the federal
Constitution.
That a State may appropriate private property to public use is
universally admitted. This power is incident to sovereignty, and there
are no restrictions on its exercise except such as may be imposed by the
sovereignty itself. It may tax at its discretion, and adapt its policy
to the wants of its citizens, and use their means for the promotion of
its objects under its own laws.
If an appropriation of private property to public use impairs the
obligation of a contract within the meaning of the Constitution, then
every exercise of this power by a State is unconstitutional. From this
conclusion there is no escape, and whether compensation be made or not
cannot vary the result.
The provision is not that no State shall pass a law impairing the
obligation of contracts unless compensation be made, but the power is
absolutely inhibited to a State. If the act of the State come within the
meaning of the provision, the act is void. No condition which may be
annexed to it, no compensation that can be made, can give it validity.
It is in conflict with the supreme law of the land, and is therefore a
nullity.
Can a State postpone the day fixed in an obligation for payment, or
provide that a bond for the payment of money shall be discharged by the
payment of anything else than money? This no one will contend can be
done, because such an act would clearly impair the obligation of the
contract, and no compensation which the State could give would make the
act valid.
The question is asked whether the provision implied in the Constitution
of Massachusetts that private property may be taken by making
compensation is not impliedly incorporated in every [p*578] contract
made under it, and whether the obligation of the contract is not
impaired when property is taken by the State without compensation?
Can the contract be impaired within the meaning of the federal
Constitution when the action of the State is upon the property? The
contract is not touched, but the thing covered by the contract is taken
under the power to appropriate private property for public use. If
taking the property impair the obligation of the contract within the
meaning of the Constitution, it cannot be taken on any terms. The
provision of the federal Constitution which requires compensation to be
made when private property shall be taken for public use acts only upon
the officers of the federal government. This case must be governed by
the Constitution of Massachusetts.
Can a State in any form exercise a power over contracts which is
expressly prohibited by the Constitution of the Union? The parties
making a contract may embrace any conditions they please if the
conditions do not contravene the law or its established policy. But it
is not in the power of a State to impose upon contracts which have been
made, or which may afterwards be made, any condition which is prohibited
by the federal Constitution. No State shall impair the obligation of
contracts. Now, if the act of a State in appropriating private property
to public use come within the meaning of this provision, is not the act
inhibited, and consequently void? This point would seem to be too plain
for controversy. And is it not equally clear that no provisions
contained in the Constitution of a State or in its legislative acts
which subject the obligation of a contract to an unconstitutional
control of the State can be obligatory upon the citizens of the State?
If the State has attempted to exercise a power which the federal
Constitution prohibits, no matter under what form the power may be
assumed or what specious pretexts may be urged in favor of its exercise,
the act is unconstitutional and void.
That a State may take private property for public use is controverted
by no one. It is a principle which, from the foundation of our
government, has been sanctioned by the practice of the States
respectively, and has never been considered as coming in conflict with
the federal Constitution.
This power of the State is admitted in the argument, but it is
contended that the obligation of the contract has been impaired, as the
property of the complainants has been taken without compensation.
Suppose the Constitution of Massachusetts provided that no land [p*579]
should be sold for taxes without valuation, nor unless it shall sell for
two-thirds of its value, due notice being given in some newspaper; and
suppose a law of the Legislature should direct land to be sold for taxes
without a compliance with these requisites; would this act impair the
obligation of the grant by which the land is held within the meaning of
the Constitution? The act would be clearly repugnant to the State
Constitution, and, consequently, all proceedings under it would be void,
but it would not be repugnant to the Constitution of the Union. And how
does this case differ, in principle, from the one under consideration?
In both cases, the power of the Legislature is unquestionable, but, by
the Constitution of the State, it must be exercised in a particular
manner, and if not so exercised, the act is void. Now if, in either
case, the obligation of the contract under which the property is held is
impaired, then it must follow that every act of a State Legislature
which affects the right of private property, and which is repugnant to
the State Constitution, is a violation of the federal Constitution.
Can the construction of the federal Constitution depend upon a
reference to a State Constitution, and by which the act complained of is
ascertained to be legal or illegal? By this doctrine, the act, if done
in conformity to the State Constitution, would be free from objections
under the federal Constitution, but if this conformity do not exist,
then the act would not be free from such objection. This, in effect,
would incorporate the State Constitution in, and make it a part of, the
federal Constitution. No such rule of construction exists.
Suppose the Legislature of Massachusetts had taken the farm of the
complainants for the use of a poor-house or an asylum for lunatics
without making adequate compensation, or if, in ascertaining the
damages, the law of the State had not been strictly pursued, could this
Court interpose its jurisdiction, through the Supreme Court of the
State, and arrest the power of appropriation? In any form in which the
question could be made, would it not arise under the Constitution of the
State, and be limited between citizens of the same State to the local
jurisdiction? Does not the State Constitution, which declares that
private property shall not be taken for public purposes without
compensation, afford a safe guarantee to the citizens of the State
against the illegal exercise of this power, a power essential to the
wellbeing of every sovereign State, and which is always exercised under
its own rules?
Had an adequate compensation been made to the complainants, [p*580]
under the charter of the Warren Bridge, would this question have been
raised? Can anyone doubt that it was in the power of the Legislature of
Massachusetts to take the whole of the complainants' bridge for public
use by making compensation? Is there any power that can control the
exercise of this discretion by the Legislature? I know of none, either
in the State or out of it, but it must be exercised in subordination to
the provisions of the Constitution of the State. And if it be not so
exercised, the judicial authority of the State only, between its own
citizens, can interpose and prevent the wrong or repair it in damages.
In all cases where private property is taken by a State for public use,
the action is on the property, and the power, if it exist in the State,
must be above the contract. It does not act on the contract, but takes
from under it vested rights. And this power, when exercised by a State,
does not, in the sense of the federal Constitution, impair the
obligation of the contract. Vested rights are disturbed, and
compensation must be made, but this is a subject which belongs to the
local jurisdiction. Does this view conflict with the established
doctrine of this Court? A reference to the points adjudged will show
that it does not.
The case of Satterlee v. Mathewson, 2 Pet. 380, presented the
following facts. Satterlee was the tenant of Mathewson, who claimed, at
the time of the lease, under a Connecticut title, in Luzerne county,
Pennsylvania. Afterwards, Satterlee purchased a Pennsylvania title for
the same land. An ejectment was brought by Mathewson for the land, and
the Court of Common Pleas decided that, as Satterlee was the tenant of
the plaintiff, he could not set up a title against his landlord. On a
writ of error, this judgment was reversed by the Supreme Court on the
ground that the relation of landlord and tenant could not exist under a
Connecticut title. Shortly afterwards, the Legislature of Pennsylvania
passed a law that, under such a title, the relation of the landlord and
tenant should exist, and the Supreme Court of the State having decided
that this act was valid, the question was brought before this Court by
writ of error. In their opinion, the Court say:
We come now to the main question in the cause. Is the act which is
objected to repugnant to any provision of the Constitution of the United
States? It is alleged to be particularly so because it impairs the
obligation of the contract between the State of Pennsylvania and the
plaintiff, who claims under her grant, &c.;
The grant vested a fee simple in the grantee, with all the rights,
[p*581] privileges, &c.;
Were any of these rights disturbed or impaired by the act under
consideration? It does not appear from the record that they were in any
instance denied, or ever drawn in question.
The objection most pressed upon the Court was that the effect of this
act was to divest rights which were vested by law in Satterlee. "There
is certainly no part of the Constitution of the United States," the
Court say, which applies to a State law of this description, nor are we
aware of any decision of this or any Circuit Court which has condemned
such a law upon this ground, provided its effect be not to impair the
obligation of the contract.
And the Court add that in the case of Fletcher v. Peck, it is
nowhere intimated that a State statute, which divests a vested right, is
repugnant to the Constitution of the United States. There is a strong
analogy between this case and the one under consideration.
The effect of the act of Pennsylvania was to defeat the title of
Satterlee founded upon the grant of the State. It made a title valid
which, in that very case, had been declared void by the Court, and which
gave the right to Mathewson, in that suit, against the prior grant of
the State. And this Court admit that a vested right was divested by the
act, but they say it is not repugnant to the federal Constitution. The
act did not purport to effect the grant, which was left, with its
covenants, untouched, but it created a paramount right, which took the
land against the grant.
In the case under consideration, the Warren Bridge charter does nor
purport to repeal or in any way affect the complainants' charter. But,
like the Pennsylvania act in its effects, it divested the vested rights
of the complainants. Satterlee was not the immediate grantee of the
State, but that could not affect the principle involved in the case. He
claimed under the grant of the State, and the fact that there was an
intermediate grantee between him and the State could not weaken his
right.
In the case of Fletcher v. Peck, 6 Cranch 87 , the Legislature
of Georgia attempted to annul its own grant. The law under which the
first grant was issued was attempted to be repealed, and all grants
under it were declared to be null and void by the second act. Here, the
State acted directly upon the contract, and the case comes within the
rule that, to impair the obligation of the contract, the State law must
act upon the contract.
The act of the Legislature complained of in the case of Sturges v.
Crowninshield, 4 Wheat. 122, had a direct bearing upon the [p*582]
contract. The question was whether, under the bankrupt law of of New
York, a debtor was discharged from his obligation by a surrender of his
property. And so, in the case of Trustees of Dartmouth College v.
Woodward, 4 Wheat. 518 , the question was whether the Legislature
could, without the consent of the corporation, alter its charter in a
material part, it being a private corporation.
In the case of Terrett v. Taylor, 9 Cranch 52, the
uncontroverted doctrine is asserted that a Legislature cannot repeal a
statute creating a private corporation, and thereby destroy vested
rights.
The case of Green v. Biddle, 8 Wheat. 1, has also been cited to
sustain the jurisdiction of the Court in this case. The Court decided in
that case that the compact, which guarantied to claimants of land lying
in Kentucky under titles derived from Virginia their rights as they
existed under the laws of Virginia, prohibited the State of Kentucky
from changing those rights. In other words, that Kentucky could not
alter the compact. And when this Court were called on to give effect to
the act of Kentucky, which they considered repugnant to the compact,
they held the provisions of the compact paramount to the act.
After a careful examination of the questions adjudged by this Court,
they seem not to have decided in any case that the contract is impaired
within the meaning of the federal Constitution where the action of the
State has not been on the contract. That though vested rights have been
divested, under an act of a State Legislature, they do not consider that
as impairing the grant of the State under which the property is held.
And this, it appears, is the true distinction, and the one which has
been kept in view in the whole current of adjudications by this Court
under the above clause of the Constitution.
Had this Court established the doctrine that, where an act of a State
Legislature affected vested rights held by a grant from the State, the
act is repugnant to the Constitution of the United States, the same
principle must have applied to all vested rights. For, as has been
shown, the Constitution of a State gives the same guarantee of their
vested rights to all its citizens, as to those who claim directly under
grant from the State. And who can define the limit of a jurisdiction
founded on this principle? It would necessarily extend over the
legislative action of the State, and control to a fearful extent the
exercise of their powers. [p*583]
The spirit of internal improvement pervades the whole country. There is
perhaps no State in the Union where important public works such as
turnpike roads, canals, railroads, bridges, &c.,are not either
contemplated or in a state of rapid progression. These cannot be carried
on without the frequent exercise of the power to appropriate private
property for public use. Vested rights are daily divested by this
exercise of the eminent domain. And if, in all these cases, this Court
can act as a court of supervision for the correction of errors, its
power may be invoked in numberless instances. If to take private
property impairs the obligation of the contract under which it is held,
this Court may be called to determine in almost every case where the
power is exercised, as well where compensation is made as where it is
not made. For if this Court can take jurisdiction on this ground, every
individual whose property has been taken has a constitutional right to
the judgment of this Court whether compensation has been made in the
mode required by the Constitution of the State.
In ascertaining the damages, the claimant has a right to demand a jury,
and that the damages shall be assessed in strict conformity to the
principles of the law. To revise these cases would carve out for this
Court a new jurisdiction not contemplated by the Constitution and which
cannot be safely exercised.
These are considerations which grow out of our admirable system of
government that should lead the judicial tribunals both of the federal
and State governments to mutual forbearance, in the exercise of doubtful
powers. The boundaries of their respective jurisdictions can never,
perhaps, be so clearly defined, on certain questions, as to free them
from doubt. This remark is peculiarly applicable to the federal
tribunals, whose powers are delegated, and consequently limited. The
strength of our political system consists in its harmony, and this can
only be preserved by a strict observance of the respective powers of the
State and federal government. Believing that this Court has no
jurisdiction in this case, although I am clear that the merits are on
the side of the complainants, I am in favor of dismissing the bill for
want of jurisdiction. [p*584] | |
|
This cause
was argued at a former term of this Court, and, having been then held
under advisement by the Court for a year, was, upon a difference of
opinion among the judges, ordered to be again argued, and has
accordingly been argued at the present term.
The arguments of the former term were conducted with great learning,
research and ability, and have been renewed with equal learning,
research and ability at the present term. But the grounds have been, in
some respects, varied, and new grounds have been assumed which require a
distinct consideration. I have examined the case with the most anxious
care and deliberation, and with all the lights which the researches of
the years intervening between the first and last argument have enabled
me to obtain, and I am free to confess that the opinion which I
originally formed after the first argument is that which now has my most
firm and unhesitating conviction. The argument at the present term, so
far from shaking my confidence in it, has at every step served to
confirm it.
In now delivering the results of that opinion, I shall be compelled to
notice the principal arguments urged the other way, and as the topics
discussed and the objections raised have assumed various forms, some of
which require distinct, and others the same answers, it will be
unavoidable that some repetitions should occur in the progress of my own
reasoning. My great respect for the counsel who have pressed them and
the importance of the cause will, I trust, be thought a sufficient
apology for the course which I have, with great reluctance, thought it
necessary to pursue.
Some of the questions involved in the case are of local law. And here,
according to the known principles of this Court, we are bound to act
upon that law, however different from, or opposite to, the jurisprudence
of other States, it either is or may be supposed to be. Other questions
seem to belong exclusively to the jurisdiction of the State tribunals as
they turn upon a conflict, real or supposed, between the State
Constitution and the State laws. The only question over which this Court
possesses jurisdiction in this case (it being an appeal from a State
court, and not from the Circuit Court) is, as has been Stated at the
bar, whether the obligation of any contract, within the true intent and
meaning of the Constitution of the United States, has been violated as
set forth in the bill. All the other points argued, are before us only
as they preliminaries and incidents to this.
A question has, however, been made as to the jurisdiction of this Court
to entertain the present writ of error. It has been argued that this
bridge has now become a free bridge, and is the property [p*585] of the
State of Massachusetts; that the State cannot be made a party defendant
to any suit to try its title to the bridge; and that there is no
difference between a suit against the State directly and against the
State indirectly, through its servants and agents. And in further
illustration of this argument, it is said that no tolls can be claimed
in this case under the notion of an implied trust, for the State court
has no jurisdiction in equity over implied trusts, but only over express
trusts, and if this Court has no jurisdiction over the principal subject
matter of the suit, the title to the bridge, it can have none over the
tolls, which are but incidents.
My answer to this objection will be brief. In the first place, this is
a writ of error from a State court, under the 25th section of the
Judiciary Act of 1789, ch. 20, and in such a case, if there is drawn in
question the construction of any clause of the Constitution of the
United States, and the decision of the State court is against the right
or title set up under it, this Court has a right to entertain the suit
and decide the question, whoever may be the parties to the original
suit, whether private persons, or the State itself. This was decided in
the case of Cohens v. State of Virginia, 6 Wheat. 264 . In the
next place, the State of Massachusetts is not a party on the record in
this suit, and therefore the constitutional prohibition of commencing
any suit against a State does not apply, for that clause of the
Constitution is strictly confined to the parties on the record. So it
was held in Osborn v. Bank of the United States, 9 Wheat. 738,
and in the Commonwealth Bank of Kentucky v. Wister, 2 Pet. 319,
323. In the next place, it is no objection to the jurisdiction even of
the Circuit Courts of the United States that the defendant is a servant
or agent of the State, and the act complained of is done under its
authority, if it be tortious and unconstitutional. So it was held in the
cases last cited. In the next place, this Court, as an appellate Court,
has nothing to do with ascertaining the nature or extent of the
jurisdiction of the State court over any persons, or parties, or subject
matters, given by the State laws, or as to the mode of exercising the
same, except so far as respects the very question arising under the 25th
section of the Act of 1789, ch. 20.
There are but few facts in this case which admit of any controversy.
The Legislature of Massachusetts, by an act passed on the 9th of March
1785, incorporated certain persons, by the name of the Proprietors of
the Charles River Bridge, for the purpose of building [p*586] a bridge
over Charles River between Boston and Charlestown, and granted to them
the exclusive toll thereof for forty years from the time of the first
opening of the bridge for passengers. The bridge was built and opened
for passengers in June, 1786. In March, 1792, another corporation was
created by the Legislature for the purpose of building a bridge over
Charles River, from the westerly part of Boston to Cambridge, and on
that occasion, the Legislature, taking into consideration the probable
diminution of the profits of the Charles River Bridge, extended the
grant of the proprietors of the latter bridge to seventy years from the
first opening of it for passengers. The proprietors have, under these
grants, ever since continued to possess and enjoy the emoluments arising
from the tolls taken for travel over the bridge, and it has proved a
very profitable concern.
In March, 1828, the Legislature created a corporation called the
Proprietors of the Warren Bridge for the purpose of erecting another
bridge across Charles River between Boston and Charlestown. The termini
of the last bridge (which has been since erected, and was, at the
commencement of this suit, in the full receipt of toll, and is now a
free bridge) are so very near to that of Charles River Bridge that. for
all practical purposes, they may be taken to be identical. The same
travel is accommodated by each bridge, and necessarily approaches to a
point, before it reaches either, which is nearly equidistant from each.
In short, it is impossible, in a practical view, and so was admitted as
the argument, to distinguish this case from one where the bridges are
contiguous from the beginning to the end.
The present bill is filled by the proprietors of Charles River Bridge
against the proprietors of Warren Bridge for an injunction and other
relief founded upon the allegation that the erection of the Warren
Bridge, under the circumstances, is a violation of their chartered
rights, and so is void by the Constitution of Massachusetts, and by the
Constitution of the United States. The judges of the Supreme Judicial
Court of Massachusetts were (as is well known) equally divided in
opinion upon the main points in the cause, and therefore, a pro
forma decree was entered with a view to bring before this Court the
great and grave question whether the Legislature of Massachusetts, in
the grant of the charter of the Warren Bridge, has violated the
obligation of the Constitution of the United States? If the Legislature
has done so, by mistake or inadvertence, I am quite sure that it will be
the last to insist upon maintaining its own act. It has that stake in
the Union, and in the maintenance of the [p*587] constitutional rights
of its own citizens, which will, I trust, ever be found paramount to all
local interests, feelings and prejudices, to the pride of power, and to
the pride of opinion.
In order to come to any just conclusion in regard to the only question
which this Court, sitting as an appellate Court, has a right to
entertain upon a writ of error to a State court, it will be necessary to
ascertain what are the rights conferred on the proprietors of Charles
River Bridge by the act of incorporation. The act is certainly not drawn
with any commendable accuracy. But it is difficult, upon any principles
of common reasoning, to mistake its real purport and object. It is
entitled an
act for incorporating certain persons for the purpose of building a
bridge over Charles River between Boston and Charlestown, and supporting
the same during the term of forty years.
Yet, it nowhere, in terms, in any of the enacting clauses, confers any
authority upon the corporation thus created to build any such bridge,
nor does it State in what particular place the bridge shall commence or
terminate on either side of the river, except by inference and
implication from the preamble. I mention this at the threshold of the
present inquiry as an irresistible proof that the Court must, in the
construction of this very act of incorporation, resort to the common
principles of interpretation, and imply and presume things which the
Legislature has not expressly declared. If the Court were not at liberty
so to do, there would be an end of the cause.
The act begins by reciting that
the erecting of a bridge over Charles River, in a place where the ferry
between Boston and Charlestown is now kept, will be of great public
utility, and Thomas Russell and others having petitioned, &c., for
the act of incorporation, to empower them to build said bridge, and many
other persons, under the expectation of such an act, have subscribed to
a fund for executing and completing the aforesaid purpose.
It then proceeds to enact that the proprietors of the fund or stock
shall be a corporation under the name of the Proprietors of Charles
River Bridge, and it gives them the usual powers of corporations, such
as the power to sue and be sued, &c. In the next section, it
provides for the organization of the corporation, for choosing officers,
for establishing rules and regulations for the corporation, and for
effecting, completing and executing the purpose aforesaid. In the next
section, "for the purpose of reimbursing the said
proprietors the money expended in building and supporting the said
bridge," it provides that a [p*588] toll be, and thereby is granted
and established, for the sole benefit of the proprietors, for
forty years from the opening of the bridge for travel, according
to certain specified rates. In the next section, it provides that the
bridge shall be well built, at least forty feet wide, of sound and
suitable materials, with a convenient draw or passageway for ships and
vessels, &c., and
that the same shall be kept in good, safe and passable
repair for the term aforesaid, and at the end of the said term, the
said bridge shall be left in like repair.
Certain other provisions are also made as to lighting the bridge,
erecting a toll-board, lifting the draw for all ships and vessels, "without
toll or pay," &c. The next section declares that after, the
tolls shall commence, the proprietors shall annually pay to Harvard
College or University, the sum of two hundred pounds, during the
said term of forty years, and, at the end of the said term, the said
bridge shall revert to, and be the property of the Commonwealth, saving
to the said college or university a reasonable and annual compensation
for the annual income of the ferry, which they might have received had
not such bridge been erected.
The next and last section of the act declares the act void unless the
bridge should be built within three years from the passing of the act.
Such is the substance of the charter of incorporation which the Court
is called upon to construe. But, before we can properly enter upon the
consideration of this subject, a preliminary inquiry is presented as to
the proper rules of interpretation applicable to the charter. Is the
charter to receive a strict or a liberal construction? Are any
implications to be made beyond the express terms? And if so, to what
extent are they justifiable by the principles of law? No one doubts that
the charter is a contract and a grant, and that it is to receive such a
construction as belong to contracts and grants, as contradistinguished
from mere laws. But the argument has been pressed here, with unwonted
earnestness (and it seems to have had an irresistible influence
elsewhere) that this charter is to be construed as a royal grant, and
that such grants are always construed with a stern and parsimonious
strictness. Indeed, it seems tacitly conceded that, unless such a strict
construction is to prevail (and it is insisted on as the positive
dictate of the common law), there is infinite danger to the defence
assumed on behalf of the Warren Bridge proprietors. Under such
circumstances, I feel myself constrained to go at large into the
doctrine of the common law in respect to royal grants, because I cannot
help thinking that, upon this point, very great [p*589] errors of
opinion have crept into the argument. A single insulated position seems
to have been taken as a general axiom. In my own view of the case, I
should not have attached so much importance to the inquiry, but it is
now fit that it should be sifted to the bottom.
It is a well known rule in the construction of private grants, if the
meaning of the words be doubtful, to construe them most strongly against
the grantor. But it is said that an opposite rule prevails in cases of
grants by the King, for, where there is any doubt, the construction is
made most favorably for the King, and against the grantee. The rule is
not disputed, but it is a rule of very limited application. To what
cases does it apply? To such cases only where there is a real doubt,
where the grant admits of two interpretations, one of which is more
extensive, and the other more restricted, so that a choice is fairly
open, and either may be adopted, without any violation of the apparent
objects of the grant. If the King's grant admits of two interpretations,
one of which will make it utterly void and worthless and the other will
give it a reasonable effect, then the latter is to prevail, for the
reason (says the common law) "that it will be more for the benefit
of the subject, and the honor of the King, which is to be more regarded
than his profit." Com.Dig.Grant, G. 12; 9 Co.R. 131a; 10 Co.R. 67b;
6 Co.R. 6. And in every case, the rule is made to bend to the real
justice and integrity of the case. No strained or extravagant
construction is to be made in favor of the King. And if the intention of
the grant is obvious, a fair and liberal interpretation of its terms is
enforced. The rule itself is also expressly dispensed with in all cases
where the grant appears upon its face to flow not from the solicitation
of the subject, but from the special grace, certain knowledge, and mere
motion of the Crown, or, as it stands in the old royal patents, "ex
speciali gratia, certa scientia, et ex mero motu regis" (See
Arthur Legat's Case, 10 Co.R. 109, 112b; Sir John Moulin's
Case, 6 Co.R. 6; 2 Black.Com. 347; Com.Dig.Grant, G. 12), and these
words are accordingly inserted in most of the modern grants of the Crown
in order to exclude any narrow construction of them. So the Court
admitted the doctrine to be in Attorney General v. Lord Eardly,
8 Price 39. But what is a most important qualification of the rule, it
never did apply to grants made for a valuable consideration by the
Crown; for in such grants, the same rule has always prevailed as in
cases between subjects. The mere grant of a bounty [p*590] of the King
may properly be restricted to its obvious intent. But the contracts of
the King for value are liberally expounded that the dignity and justice
of the government may never be jeoparded by petty evasions and technical
subtleties.
I shall not go over all the cases in the books, which recognise these
principles, although they are abundant. Many of them will be found
collected in Bacon's Abridgment, Prerogative, F. 2, p. 602-4; in Comyn's
Digest, Grant, G. 12; and in Chitty on the Prerogatives of the Crown,
ch. 16, s. 3. But I shall dwell on some of the more prominent, and
especially on those which have been mainly relied on by the defendants,
because, in my humble judgment, they teach a very different doctrine
from what has been insisted on. Lord Coke, in his Commentary on the
Statute of Quo Warranto, 18 Edw. I., makes this notable remark:
Here is an excellent rule for construction of the King's patent, not
only of liberties, but of lands, tenements and other things which he may
lawfully grant that they have no strict or narrow interpretation, for
the overthrowing of them, sed secundum eundum plenitudinem
judicentur, that is, to have a liberal and favorable construction,
for the making them available in law, usque ad plenitudinem, for
the honor of the King.
Surely, no lawyer would contend for a more beneficent or more broad
exposition of any grant whatsoever than this.
So, in respect to implications, in cases of royal grants, there is not
the slightest difficulty, either upon authority or principle, in giving
them a large effect so as to include things which are capable of being
the subject of a distinct grant. A very remarkable instance of this sort
arose under the Statute of Prerogative (17 Edw. II., Stat. 2, c. 15),
which declared that, when the King granteth to any a manor or land, with
the appurtenances, unless he makes express mention in the deed, in
writing, of advowsons, &c., belonging to such manor, then the King
reserveth to himself such advowsons. Here, the statute itself prescribed
a strict rule of interpretation. [n1] Yet, in Whistler's Case,
10 Co.R. 63, it was held that a royal grant of a manor, with the
appurtenances, in as ample a manner as it came to the King's hands,
conveyed an advowson, which was appendant to the manor, by implication
from the words actually used, and the apparent intent. This was
certainly a very strong case of raising an implication from words
susceptible of different interpretations, where the statute had
furnished a positive rule for a narrow construction, excluding the
[p*591] advowson. So it has been decided that, if the King grants a
messuage and all lands spectantes, aut cum eo dismissas, lands
which have been enjoyed with it for a convenient time, pass. 2
Rolle.Abridg. 186, c. 25, 30; Cro.Car. 169; Chitty on the Prerogatives,
ch. 16, s. 3, p. 393; Com.Dig.Grant, G. 5. In short, wherever the intent
from the words is clear, or possesses a reasonable certainty, the same
construction prevails in Crown grants as in private grants, especially,
where the grant is presumed to be from the voluntary bounty of the
Crown, and not from the representation of the subject.
It has been supposed in the argument that there is a distinction
between grants of lands held by the King and grants of franchises which
are matters of prerogative, and held by the Crown for the benefit of the
public, as flowers of prerogative. I know of no such distinction, and
Lord Coke, in the passage already cited, expressly excludes it, for he
insists that the same liberal rule of interpretation is to be applied to
cases of grants of liberties as to cases of grants of lands.
I am aware that Mr. Justice Blackstone, in his Commentaries, 2
Black.Com. 347, has laid down some rules apparently varying from what
has been Stated. He says,
the manner of granting by the King does not more differ from that by a
subject than the construction of his grants when made. 1. A grant made
by the King, at the suit of the grantee, shall be taken most
beneficially for the King and against the party, whereas, the grant of a
subject is construed most strongly against the grantor, &c. 2. A
subject's grant shall be construed to include many things besides what
are expressed if necessary for the operation of the grant; therefore, in
a private grant of the profits of land for one year, free ingress,
egress and regress, to cut and carry away those profits, are also
inclusively granted, &c. But the King's grant shall not inure to any
other intent, than that which is precisely expressed in the grant. As,
if he grants land to an alien, it operates nothing, for such a grant
shall not inure to make him a denizen that so he may be capable to take
by the grant. Now in relation to the last position, there is nothing
strange or unnatural in holding that a Crown grant shall not inure to a
totally different purpose from that which is expressed, or to a double
intent, when all its terms are satisfied by a single intent. It is one
thing to grant land to an alien, and quite a different thing to make him
a denizen. The one is not an incident to the other, nor does it
naturally flow from it. The King may be willing to grant land to an
alien, when [p*592] he may not be willing to give him all the privileges
of a subject. It is well known that an alien may take land by grant, and
may hold it against every person but the King, and it does not go to the
latter until office found, so that, in the meantime, an alienation by
the alien will be good. A grant, therefore, to an alien is not utterly
void; it takes effect, though it is not indefeasible. And, in this
respect, there does not seem any difference between a grant by a private
person and by the Crown, for the grant of the latter takes effect,
though it is liable to be defeated. See Com.Dig. Alien, c. 4, 1 Leon.
47, 4 Leon. 82. The question in such cases is not whether there may not
be implications in a Crown grant, but whether a totally different effect
shall be given to a Crown grant from what its terms purport. The same
principle was acted upon in Englefield's Case, 7 Co.R. 14a.
There, the Crown had demised certain lands, which were forfeited by a
tenant for life, by attainder, to certain persons for forty years, and
the Crown, being entitled to a condition which would defeat the
remainder over after the death of the person attainted, tendered
performance of the condition to the remainderman, who was a stranger to
the demise, and he contended that, by the demise, the condition was
suspended. And it was held that the demise should not operate to a
double intent, viz., to pass the term, and also, in favor of a stranger,
to suspend the condition, for (it was said)
the grant of the Crown shall be taken according to the express
intention comprehended in the grant, and shall not extend to any other
thing, by construction or implication, which doth not appear by the
grant that the intent did extend to,
though it might have been different in the case of a subject.
In regard to the other position of Mr. Justice Blackstone, it may be
supposed that he means to assert that, in a Crown grant of the profits
of land for a year, free ingress, egress and regress to take the profits
are not included by implication, as they would be in a subject's grant.
If such be his meaning, he is certainly under a mistake. The same
construction would be put upon each, for otherwise nothing would pass by
the grant. It is a principle of common sense, as well as of law, that,
when a thing is granted, whatever is necessary to its enjoyment is
granted also. It is not presumed that the King means to make a void
grant; and therefore, if it admits of two constructions, that shall be
followed which will secure its validity and operation. In Comyn's Digest
(Com.Dig.Grant, E. 11, Co.Litt. 56a), a case is cited from the Year
Book, 1 Hen. 4, 5 (it should be 6a) that if there be a grant of land,
cum pertinentiis, [p*593] to which common is appendant, the
common passes as an incident, even though it be the grant of the King.
So, it is said, in the same case, if the King grant to me the foundation
of an abbey, the corody passes. So, if the King grant to me a fair, I
shall have a Court of Piepoudre, as incident thereto. And there are
other cases in the books to the same effect. See Bac.Abridg.
Prerogative, F. 2, p. 602; Comyn's Dig.Grant, G. 12; Lord Chandos'
Case, 6 Co.R. 55; Sir Robert Atkyn's Case, 1 Vent. 399, 409;
9 Co.R. 29-30. Finch, in his Treatise on the Law, contains nothing
beyond the common authorities. Finch's Law, b. 2, ch. 2, p. 24 (ed.
1613); Cro.Eliz. 591 per Popham, C.J., 17 Vin.Abr.Prerogative, O. c. pl.
13, Com.Dig.Franchise, C. 2; Inst. 282.
Lord Coke, after stating the decision of Sir John Moulin's Case,
6 Co.R. 6, adds these words:
Note the gravity of the ancient sages of the law, to construe the
King's grants beneficially for his honor, and not to make any strict or
literal construction in subversion of such grants.
This is an admonition, in my humble judgment, very fit to be remembered
and acted upon by all judges who are called upon to interpose between
the government and the citizen in cases of public grants. Legat's
Case, 10 Co.R. 109, contains nothing that in the slightest degree
impugns the general doctrine here contended for. It proceeded upon a
plain interpretation of the very words of the grant, and no implications
were necessary or proper to give it its full effect.
The case of the Royal Fishery of the Banne, decided in Ireland,
in the Privy Council, in 8 James I. (Davies 149), has been much relied
on to establish the point that the King's grant shall pass nothing by
implication. That case, upon its actual circumstances, justifies no such
sweeping conclusion. The King was owner of a royal fishery in gross
(which is material), on the river Banne, in navigable waters, where the
tide ebbed and flowed, about two leagues from the sea, and he granted to
Sir R. M'D. the territory of Rout, which is parcel of the county of
Antrim, and adjoining to the river Banne, in that part where the said
fishery is, the grant containing the following words,
omnia castra, messuagia, &c., piscarias, piscationes, aquas,
aquarum cursus, &c., ac omnia alia hereditamenta in vel infra dictum
territorium de Rout, in comitatu Antrim, exceptis, et ex hac concessione
nobis heredibus et successoribus nostris reservatis tribus partibus
piscationibus fluminis de Banne.
The question was whether the grant passed the royal fishery in the
[p*594] Banne to the grantee? And it was held that it did not, first,
because the river Banne, so far as the sea ebbs and flows, is a royal
navigable river, and the fishery there a royal fishery; secondly,
because no part of this royal fishery could pass by the grant of the
land adjoining, and by the general grant of all the fisheries (in or
within the territory of Rout), for this royal fishery is not appurtenant
to the land, but is a fishery in gross, and parcel of the inheritance of
the Crown itself, and general words in the King's grant shall not pass
such special royalty, which belongs to the Crown by prerogative;
thirdly, that, by the exception in the grant of three parts of this
fishery, the other fourth part of this fishery did not pass by this
grant, for the King's grant shall pass nothing by implication, and for
this was cited 2 Hen. 7, 13.
Now there is nothing in this case which not easily explicable upon the
common principles of interpretation. The fishery was a royal fishery in
gross, and not appurtenant to the territory of Rout. Ward v.
Cresswell, Willes' R. 265. The terms of the grant were of all
fisheries in and within this territory, and this excluded any fishery
not within it, or not appurtenant to it. The premises, then, clearly did
not, upon any just construction, convey the fishery in question, for it
was not within the territory. The only remaining question was whether
the exception of three-quarters would, by implication, carry the fourth
part which was not excepted, that is, whether terms of exception in a
Crown grant should be construed to be terms of grant, and not of
exception. It is certainly no harsh application of the common rules of
interpretation to hold that an implication which required such a change
in the natural meaning of the words ought not to be allowed to the
prejudice of the Crown. Non constat that the King might not have
supposed, at the time of the grant that he was owner of three parts only
of the fishery, and not of the fourth part. This case of the Fishery of
the Banne was cited and commented on by Mr. Justice Bayley in delivering
the opinion of the court in the case of the Duke of Somerset v.
Fogwell, 5 Barn. & Cres. 875, 885, and the same view was taken
of the grounds of the decision, which has been here Stated, the learned
judge adding that it was further agreed in that case that the grant of
the King passes nothing by implication, by which he must be understood
to mean nothing which its terms do not, fairly and reasonably construed,
embrace as a portion of or incident to the subject matter of the grant.
As to the case cited from 2 Hen. 7, 13 (which was the sole authority
[p*595] relied on), it turned upon a very different principle. There,
the King, by letters patent, granted to a man that he might give twenty
marks annual rent to a certain chaplain to pray for souls, &c., and
the question was whether the grant was not void for uncertainty, as no
chaplain was named. And the principal stress of the argument seems to
have been whether this license should be construed to create or enable
the grantee to create a corporation capable of taking the rent. In the
argument, it was asserted that the King's grants should not be construed
by implication to create a corporation, or to inure to a double intent.
In point of fact, however, I find (Chronica Juridicialia, p. 141) that
neither of the persons whose opinions are Stated in the case was a judge
at the time of the argument, nor does it appear what the decision was,
so that the whole report is but the argument of counsel. The same case
is fully reported by Lord Coke, in the case of Sutton's Hospital,
10 Co.Rep. 27-28, who says that he had seen the original record, and who
gives the opinions of the judges at large, by which it appears that the
grant was held valid. And so, says Lord Coke, "Note, reader, this
grant of the King inures to these intents, viz., to make an
incorporation, to make a succession, and to grant a rent." So that
here we have a case not only of a royal grant being construed liberally,
but divers implications being made, not at all founded in the express
terms of the grant. The reason of which was (as Lord Coke says) because
the King's charter made for the erection of pious and charitable works
shall be always taken in the most favorable and beneficial sense. This
case was recognised by the judges as sound law in the case of Sutton's
Hospital. And it was clearly admitted by the judges that, in a charter
of incorporation by the Crown, all the incidents to a corporation were
tacitly annexed, although not named, as the right to sue and be sued, to
purchase, hold and alien lands, to make by-laws, &c. And if power is
expressly given to purchase, but no clause to alien, the letter follows
by implication, as an incident. Comyn's Dig.Franchise, F. 6, F. 10, F.
15. It is very difficult to affirm in the teeth of such authorities
that, in the King's grants, nothing is to be taken by implication, as is
gravely asserted in the case in Davies' Reports 149. The case cited to
support it is directly against it. In truth, it is obvious that the
learned judges mistook the mere arguments of counsel for the solemn
opinions of the Court, and the case, as decided, is a direct authority
the other way. [p*596]
The case of Blankley v. Winstanley, 3 T.R. 279, has also been
relied on for the same purpose, but it has nothing to do with the point.
The Court there held that, by the saving in the very body of the
charter, the concurrent jurisdiction of the county magistrates was
preserved. There was nothing said by the Court in respect to the
implications in Crown grants. The whole argument turned upon the meaning
of the express clauses.
Much reliance has also been placed upon the language of Lord Stowell in
The Elsebe, 5 Rob. 173. The main question in that case was, whether the
Crown had a right to release captured property, before adjudication,
without the consent of the captors. That question depended upon the
effect of the King's orders in council, his proclamation, and the
Parliamentary Prize Act, for, independently of these acts, it was clear
that all captured property, jure belli, belonged to the Crown, and was
subject to its sole disposal. Lord Stowell, whose eminent qualifications
as a judge entitle him to great reverence, on that occasion said:
A general presumption arising from these considerations is that
government does not mean to divest itself of this universal attribute of
sovereignty conferred for such purposes (to be used for peace, as well
as war) unless it is so clearly and unequivocally expressed. In
conjunction with this universal presumption must be taken also the wise
policy of our own peculiar law, which interprets the grants of the Crown
in this respect by other rules than those which are applicable in the
construction of the grants of individuals. Against an individual, it is
presumed that he meant to convey a benefit with the utmost liberality
that his words will bear. It is indifferent to the public in which
person an interest remains, whether in the grantor or the taker. With
regard to the grant of the sovereign, it is far otherwise. It is not
held by the sovereign himself, as private property, and no alienation
shall be presumed except what is clearly and indisputably expressed.
Now the right of the captors in that case was given by the words of the
King's order in council only. It was a right to seize and bring in
for adjudication. The right to seize, then, was given, and the duty
to bring in for adjudication was imposed. If nothing more had existed,
it would be clear that the Crown would have the general property in the
captures. Then again, the prize act and prize proclamation gave to the
captors a right in the property, after adjudication, as lawful
prize, and not before. This very limitation naturally implied that, until
adjudication, they had no right in the property. [p*597] And this is
the ground, upon which Lord Stowell placed his judgment, as the clear
result of a reasonable interpretation of these acts, declining to rely
on any reasoning from considerations of public policy. And it is to be
considered that Lord Stowell was not speaking of an ordinary grant of
land, or of franchises, in the common course of mere municipal
regulations, but of sovereign attributes and prerogatives, involving the
great rights and duties of war and peace, where, upon every motive of
public policy and every ground of rational interpretation, there might
be great hesitation in extending the terms of a grant beyond their fair
interpretation.
But what, I repeat, is most material to be stated is that all this
doctrine in relation to the King's prerogative of having a construction
in his own favor is exclusively confined to cases of mere donation,
flowing from the bounty of the Crown. Whenever the grant is upon a
valuable consideration, the rule of construction ceases, and the grant
is expounded exactly as it would be in the case of a private grant --
favorably to the grantee. Why is this rule adopted? Plainly, because the
grant is a contract, and is to be interpreted according to its fair
meaning. It would be to the dishonor of the government that it should
pocket a fair consideration, and then quibble as to the obscurities and
implications of its own contract. Such was the doctrine of my Lord Coke,
and of the venerable sages of the law in other times, when a resistance
to prerogative was equivalent to a removal from office. Even in the
worst ages of arbitrary power, and irresistible prerogative, they did
not hesitate to declare that contracts founded in a valuable
consideration ought to be construed liberally for the subject, for the
honor of the Crown. 2 Inst. 496. See also Com.Dig.Franchise, C. F. 6. If
we are to have the grants of the Legislature construed by the rules
applicable to royal grants, it is but common justice to follow them
throughout, for the honor of this republic. The justice of the
Commonwealth will not, I trust, be deemed less extensive than that of
the Crown.
I think that I have demonstrated, upon authority, that it is by no
means true that implications may not, and ought not, to be admitted, in
regard to Crown grants. And I would conclude what I have to say on this
head by a remark made by the late Mr. Chief Justice Parsons, a lawyer
equally remarkable for his extraordinary genius and his professional
learning.
In England, prerogative is the cause of one against the whole; here, it
is the cause of all against [p*598] one. In the first case, the feelings
and vices, as well as the virtues, are enlisted against it; in the last,
in favor of it. And therefore, here, it is of more importance that the
judicial Courts should take care that the claim of prerogative should be
more strictly watched.
Martin v. Commonwealth, 1 Mass. 356.
If, then, the present were the case of a royal grant, I should most
strenuously contend, both upon principle and authority, that it was to
receive a liberal, and not a strict, construction. I should so contend,
upon the plain intent of the charter, from its nature and objects, and
from its burdens and duties. It is, confessedly, a case of contract, and
not of bounty; a case of contract for a valuable consideration, for
objects of public utility, to encourage enterprise, to advance the
public convenience, and to secure a just remuneration for large outlays
of private capital. What is there in such a grant of the Crown which
should demand from any Court of justice a narrow and strict
interpretation of its terms? Where is the authority with contains such a
doctrine, or justifies such a conclusion? Let it not be assumed, and
then reasoned from as an undisputed concession. If the common law
carries in its bosom such a principle, it can be shown by some
authorities, which ought to bind the judgment, even if they do not
convince the understanding. In all my researches, I have not been able
to find any whose reach does not fall far -- very far -- short of
establishing any such doctrine. Prerogative has never been wanting in
pushing forward its own claims for indulgence or exemption. But it has
never yet (so far as I know) pushed them to this extravagance.
I stand upon the old law, upon law established more than three
centuries ago, in cases contested with as much ability and learning, as
any in the annals of our jurisprudence, in resisting any such
encroachments upon the rights and liberties of the citizens secured by
public grants. I will not consent to shake their title deeds by any
speculative niceties or novelties.
The present, however, is not the case of a royal grant, but of a
legislative grant, by a public statute. The rules of the common law in
relation to royal grants have, therefore, in reality, nothing to do with
the case. We are to give this act of incorporation a rational and fair
construction, according to the general rules which govern in all cases
of the exposition of public statutes. We are to ascertain the
legislative intent, and that once ascertained, it is our duty to give it
a full and liberal operation. The books are full of cases to this
[p*599] effect, see Com.Dig.Parliament, R. 10 to R. 28, Bac.Abridg.
Statute, if indeed, so plain a principle of common sense and common
justice stood in any need of authority to support it. Lord Chief Justice
Eyre, in the case of Boulton v. Bull, 2 H. 136, 463, 500, took notice of
the distinction between the construction of a Crown grant and a grant by
an act of Parliament, and held the rules of the common law, introduced
for the protection of the Crown in respect to its own grants, to be
inapplicable to a grant by an act of Parliament.
It is to be observed [said his lordship] that there is nothing
technical in the composition of an act of Parliament. In the exposition
of statutes, the intent of Parliament is the guide. It is expressly laid
down in our books (I do not here speak of penal statutes) that every
statute ought to be expounded, not according to the letter, but the
intent.
Again, he said,
this case was compared to the case of the King being deceived in his
grants, but I am not satisfied that the King, proceeding by and with the
advice of Parliament, is in that situation in respect to which he is
under the special protection of the law, and that he could, on that
ground, be considered as deceived in his grant. No case was cited to
prove that position.
Now it is to be remembered that his lordship was speaking upon the
construction of an act of Parliament of a private nature, an act of
Parliament in the nature of a monopoly, an act of Parliament granting an
exclusive patent for an invention to the celebrated Mr. Watt. And let it
be added that his opinion as to the validity of that grant,
notwithstanding all the obscurities of the act, was ultimately sustained
in the King's bench by a definitive judgment in its favor. See Hornblower
v. Boulton, 8 T.R. 95. A doctrine equally just and liberal has been
repeatedly recognised by the Supreme Court of Massachusetts. In the case
of Richards v. Daggett, 4 Mass.R. 534, 537, Mr. Chief Justice
Parsons, in delivering the opinion of the Court, said:
It is always to be presumed that the Legislature intend the most
beneficial construction of their acts when the design of them is not
apparent.
See also Inhabitants of Somerset v. Inhabitants of Dighton, 12
Mass.R. 383; Whitney v. Whitney, 14 Mass.R. 88; 8 Mass.R. 523;
Holbrook v. Holbrook, 1 Pick.R. 248; Stanwood v. Peirce,
7 Mass.R. 458. Even in relation to mere private statutes, made for the
accommodation of particular citizens, and which may affect the rights
and privileges of others, Courts of law will give them a large
construction if it arise from necessary implication. Coolidge v.
Williams, 4 Mass.R. 145. [p*600]
As to the manner of construing Parliamentary grants for private
enterprise, there are some recent decisions which, in my judgment,
establish two very important principles applicable directly to the
present case which, if not confirmatory of the views which I have
endeavored to maintain, are at least not repugnant to them. The first is
that all grants for purposes of this sort are to be construed as
contracts between the government and the grantees, and not as mere laws;
the second is that they are to receive a reasonable construction, and
that if, either upon their express terms or by just inference from the
terms, the intent of the contract can be made out, it is to be
recognised and enforced accordingly. But if the language be ambiguous,
or if the inference be not clearly made out, then the contract is to be
taken most strongly against the grantor, and most favorably for the
public. The first case is the Company of Proprietors of the Leeds
and Liverpool Canal v. Hustler, 1 Barn. & Cres. 424, where the
question was upon the terms of the charter, granting a toll. The toll
was payable on empty boats, passing a lock of the canal. The Court said
no toll was expressly imposed upon empty boats, &c., and we are
called upon to say that such a toll was imposed by inference. Those who
seek to impose a burden upon the public should take care that their
claim rests upon plain and unambiguous language; here, the claim is by
no means clear.
The next case was the Kingston-upon-Hull Dock Company v. La Marche,
8 Barn. & Cres. 42, where the question was as to right to wharfage
of goods shipped off from their quays. Lord Tenterden, in delivering the
judgment of the Court in the negative, said:
This was clearly a bargain made between a company of adventurers and
the public, and as in many similar cases, the terms of the bargain are
contained in the act, and the plaintiffs can claim nothing which is not
clearly given.
The next case is the Proprietors of the Stourbridge Canal v.
Wheeley, 2 Barn. & Ad. 792, in which the question was as to a
right to certain tolls. Lord Tenterden, in delivering the opinion of the
Court, said,
this like many other cases, is a bargain between a company of
adventurers and the public, the terms of which are expressed in the
statute. And the rule of construction in all such cases in now fully
established to be this -- that any ambiguity in the terms of the
contract must operate against the adventurers and in favor of the
public, and the plaintiffs can claim nothing which is not clearly given
to them by the act. . . . Now it is quite certain that the company have
no right expressly given to receive any compensation, except, &c.,
and [p*601] therefore it is incumbent upon them to show that that they
have a right, clearly given by inference from some other of the clauses.
This latter statement shows that it is not indispensable that, in
grants of this sort, the contract or the terms of the bargain should be
in express language; it is sufficient if they may be clearly proved by
implication or inference.
I admit that, where the terms of a grant are to impose burdens upon the
public or to create a restraint injurious to the public interest, there
is sound reason for interpreting the terms, if ambiguous, in favor of
the public. But at the same time, I insist that there is not the
slightest reason for saying, even in such a case, that the grant is not
to be construed favorably to the grantee so as to secure him in the
enjoyment of what is actually granted.
I have taken up more time in the discussion of this point than perhaps
the occasion required. because of its importance and the zeal, and
earnestness and learning with which the argument for a strict
construction has been pressed upon the Court as in some sort vital to
the merits of this controversy. I feel the more confirmed in my own
views upon the subject by the consideration that every judge of the
State court, in delivering his opinion, admitted either directly or by
inference the very principle for which I contend. Mr. Justice Morton,
who pressed the doctrine of a strict construction most strongly, at the
same time said,
although no distinct thing or right will pass by implication, yet I do
not mean to question that the words used should be understood in their
most natural and obvious sense, and that whatever is essential to the
enjoyment of the thing granted will be necessarily implied in the grant.
7 Pick. 462.
Mr. Justice Wilde said, in doubtful cases, it seems to me a sound and
wholesome rule of construction to interpret public grants most favorably
to the public interests, and that they are not to be enlarged by
doubtful implications. . . . When, therefore, the Legislature makes a
grant of a public franchise, it is not to be extended by construction
beyond its clear and obvious meaning. . . . There are some legislative
grants, no doubt, that may admit of a different rule of construction,
such as grants of land on a valuable consideration, and the like.
7 Pick. 469. These two learned judges were adverse to the plaintiffs'
claim. But the two other learned judges, who were in favor of it, took a
much broader and more liberal view of the rules of interpretation of the
charter.
An attempt has, however, been made to put the case of legislative
grants upon the same footing as royal grants as to their construction,
[p*602] upon some supposed analogy between royal grants and legislative
grants under our republican forms of government. Such a claim in favor
of republican prerogative is new, and no authority has been cited which
supports it. Our Legislatures neither have nor affect to have any royal
prerogatives. There is no provision in the Constitution authorizing
their grants to be construed differently from the grants of private
persons in regard to the like subject matter. The policy of the common
law which gave the Crown so many exclusive privileges and extraordinary
claims different from those of the subject was founded, in a good
measure, if not altogether, upon the divine right of Kings, or at least
upon a sense of their exalted dignity and preeminence over all subjects,
and upon the notion that they are entitled to peculiar favor for the
protection of their Kingly rights and office. Parliamentary grants never
enjoyed any such privileges; they were always construed according to
common sense and common reason, upon their language and their intent.
What reason is there that our legislative acts should not receive a
similar interpretation? Is it not at least as important in our free
governments that a citizen should have as much security for his rights
and estate derived from the grants of the Legislature as he would have
in England? What solid ground is there to say that the words of a grant,
in the mouth of a citizen shall mean one thing, and in the mouth of the
Legislature shall mean another thing? That, in regard to the grant of a
citizen, every word shall, in case of any question of interpretation or
implication, be construed against him, and in regard to the grant of the
government, every word shall be construed in its favor? That language
shall be construed not according to its natural import and implications
from its own proper sense and the objects of the instrument, but shall
change its meaning, as it is spoken by the whole people or by one of
them? There may be very solid grounds to say that neither grants nor
charters ought to be extended beyond the fair reach of their words, and
that no implications ought to be made which are not clearly deducible
from the language and the nature and objects of the grant. In the case
of a legislative grant, there is no ground to impute surprise,
imposition or mistake to the same extent as in a mere private grant of
the Crown. The words are the words of the Legislature, upon solemn
deliberation and examination and debate. Their purport is presumed to be
well known, and the public interests are [p*603] watched, and guarded by
all the varieties of local, personal and professional jealousy, as well
as by the untiring zeal of numbers, devoted to the public service.
It should also be constantly kept in mind that, in construing this
charter, we are not construing a statute involving political powers and
sovereignty, like those involved in the case of The Elsebe, 5
Rob.R. 173. We are construing a grant of the Legislature, which though
in the form of a statute, is still but a solemn contract. In such a
case, the true course is to ascertain the sense of the parties, from the
terms of the instrument, and, that once ascertained, to give it full
effect. Lord Coke, indeed, recommends this as the best rule, even in
respect to royal grants.
The best exposition [says he] of the King's charter is, upon the
consideration of the whole charter, to expound the charter by the
charter itself, every material part thereof [being] explained according
to the true and genuine sense, which is the best method.
Case of Sutton's Hospital, 10 Co.R. 24b.
But with a view to induce the Court to withdraw from all the common
rules of reasonable and liberal interpretation in favor of grants, we
have been told at the argument that this very charter is a restriction
upon the legislative power, that it is in derogation of the rights and
interests of the State, and the people, that it tends to promote
monopolies and exclusive privileges, and that it will interpose an
insuperable barrier to the progress of improvement. Now upon every one
of these propositions, which are assumed, and not proved, I entertain a
directly opposite opinion, and if I did not, I am not prepared to admit
the conclusion for which they are adduced. If the Legislature has made a
grant which involves any or all of these consequences, it is not for
Courts of justice to overturn the plain sense of the grant because it
has been improvidently or injuriously made.
But I deny the very groundwork of the argument. This charter is not (as
I have already said) any restriction upon the legislative power, unless
it be true that, because the Legislature cannot grant again what it has
already granted, the legislative power is restricted. If so, then every
grant of the public land is a restriction upon that power, a doctrine
that has never yet been established, nor (so far as I know) ever
contended for. Every grant of a franchise is, so far as that grant
extends, necessarily exclusive, and cannot be resumed or interfered
with. All the learned judges in the State [p*604] Court admitted that
the franchise of Charles River Bridge, whatever it be, could not be
resumed or interfered with. The Legislature could not recall its grant
or destroy it. It is a contract, whose obligation cannot be
constitutionally impaired. In this respect, it does not differ from a
grant of lands. In each case, the particular land, or the particular
franchise, is withdrawn from the legislative operation. The identical
land, or the identical franchise, cannot be regranted, or avoided by a
new grant. But the legislative power remains unrestricted. The subject
matter only (I repeat it) has passed from the hands of the government.
If the Legislature should order a government debt to be paid by a sale
of the public stock, and it is so paid, the legislative power over the
funds of the government remains unrestricted, although it has ceased
over the particular stock, which has been thus sold. For the present, I
pass over all further consideration of this topic, as it will
necessarily come again under review in examining an objection of a more
broad and comprehensive nature.
Then, again, how is it established that this is a grant in derogation
of the rights and interests of the people? No individual citizen has any
right to build a bridge over navigable waters, and consequently, he is
deprived of no right when a grant is made to any other persons for that
purpose. Whether it promotes or injures the particular interest of an
individual citizen constitutes no ground for judicial or legislative
interference beyond what his own rights justify. When, then, it is said
that such a grant is in derogation of the rights and interests of the
people, we must understand that reference is had to the rights and
interests common to the whole people as such (such as the right of
navigation), or belonging to them as a political body, or, in other
words, the rights and interests of the State. Now I cannot understand
how any grant of a franchise is a derogation from the rights of the
people of the State any more than a grant of public land. The right in
each case is gone to the extent of the thing granted, and so far may be
said to derogate from that is to say to lessen the rights of the people,
or of the State. But that is not the sense in which the argument is
pressed, for, by derogation, is here meant an injurious or mischievous
detraction from the sovereign rights of the State. On the other hand,
there can be no derogation from the rights of the people, as such,
except it applies to rights common there before, which the building of a
bridge over navigable waters certainly is not. If it had been said that
[p*605] the grant of this bridge was in derogation of the common right
of navigating the Charles River by reason of its obstructing, pro tanto,
a free and open passage, the ground would have been intelligible. So if
it had been an exclusive grant of the navigation of that stream. But if,
at the same time, equivalent public rights of a different nature, but
of greater public accommodation and use, had been obtained, it could
hardly have been said in a correct sense that there was any derogation
from the rights of the people or the rights of the State. It would be a
mere exchange of one public right for another.
Then again, as to the grant being against the interests of the people.
I know not how that is established, and certainly it is not to be
assumed. It will hardly be contended that every grant of the government
is injurious to the interests of the people, or that every grant of a
franchise must necessarily be so. The erection of a bridge may be of the
highest utility to the people. It may essentially promote the public
convenience, and aid the public interests, and protect the public
property. And if no persons can be found willing to undertake such a
work unless they receive in return the exclusive privilege of erecting
it and taking toll, surely it cannot be said as of course that such a
grant, under such circumstances, is per se against the interests of the
people. Whether the grant of a franchise is, or is not, on the whole,
promotive of the public interests is a question of fact and judgment
upon which different minds may entertain different opinions. It is not
to be judicially assumed to be injurious, and then the grant to be
reasoned down. It is a matter exclusively confided to the sober
consideration of the Legislature, which is invested with full discretion
and possesses ample means to decide it. For myself, meaning to speak
with all due deference for others, I know of no power or authority
confided to the judicial department to rejudge the decisions of the
Legislature upon such a subject. It has an exclusive right to make the
grant, and to decide whether it be, or be not, for the public interests.
It is to be presumed, if the grant is made, that it is made from a high
sense of public duty, to promote the public welfare, and to establish
the public prosperity. In this very case, the Legislature has, upon the
very face of the act, made a solemn declaration as to the motive for
passing it, that "the erecting of a bridge over Charles River, &c.,
will be of great public utility."
What Court of justice is invested with authority to gainsay this
[p*606] declaration? To strike it out of the act, and reason upon the
other words, as if it were not there? To pronounce that a grant is
against the interest of the people which the Legislature has declared to
be of great utility to the people? It seems to me to be our duty to
interpret laws, and not to wander into speculations upon their policy.
And where, I may ask, is the proof that Charles River Bridge has been
against the interests of the people? The record contains no such proof,
and it is therefore a just presumption that it does not exist.
Again, it is argued that the present grant is a grant of a monopoly,
and of exclusive privileges, and therefore to be construed by the most
narrow mode of interpretation. The sixth article of the bill of rights
of Massachusetts has been supposed to support the objection,
No man, nor corporation or association of men, have any other title to
obtain advantages or particular and exclusive privileges, distinct from
those of the community, than what arises from the consideration of
services rendered to the public, and this title being in nature neither
hereditary nor transmissive to children, or descendants, or relations by
blood, the idea of a man born a magistrate, lawgiver or judge, is absurd
and unnatural.
Now it is plain that, taking this whole clause together, it is not an
inhibition of all legislative grants of exclusive privileges, but a
promulgation of the reasons why there should be no hereditary
magistrates, legislators or judges. But it admits, by necessary
implication, the right to grant exclusive privileges for public
services, without ascertaining of what nature those services may be. It
might be sufficient to say that all the learned judges in the state
court admitted that the grant of an exclusive right to take toll at a
ferry, or a bridge, or a turnpike, is not a monopoly which is deemed
odious in law, nor one of the particular and exclusive privileges,
distinct from those of the community, which are reprobated in the bill
of rights. All that was asserted by the judges opposed to a liberal
interpretation of this grant was that it tended to promote monopolies.
See the case, 7 Pick.R. 116, 132, 137.
Again, the old colonial act of 1641 against monopolies has been relied
on to fortify the same argument. That statute is merely in affirmance of
the principles of the English statute against monopolies, of 21 James
I., ch. 3, and if it were now in force (which it is not), it would
require the same construction. There is great virtue in particular
phrases, and when it is once [p*607] suggested that a grant is of the
nature or tendency of a monopoly, the mind almost instantaneously
prepares itself to reject every construction which does not pare it down
to the narrowest limits. It is an honest prejudice, which grew up in
former times from the gross abuses of the royal prerogatives, to which,
in America, there are no analogous authorities. But what is a monopoly,
as understood in law? It is an exclusive right, granted to a few, of
something which was before of common right. Thus, a privilege granted by
the King for the sole buying, selling, making, working or using a
thing, whereby the subject, in general, is restrained from that liberty
of manufacturing or trading which before he had, is a monopoly. 4
Black.Com. 159, Bac. Abridg. Prerogative, F. 4. My Lord Coke, in his
Pleas of the Crown, 3 Inst. 181, has given this very definition of a
monopoly, and that definition was approved by Holt and Treby (afterwards
chief justices of King's bench), arguendo, as counsel, in the
great case of the East India Company v. Sandys, 10 How.St.Tr.
386. His words are that a monopoly is
an institution by the King, by his grant, commission, or otherwise, to
any persons or corporations, of or for the sole buying, selling, making,
working or using of everything, whereby any persons or corporations are
sought to be restrained of any freedom or liberty they had before, or
hindered in their lawful trade.
So that it is not the case of a monopoly if the subjects had not the
common right or liberty before to do the act, or possess or enjoy the
privilege or franchise granted, as a common right. 10 How.St.Tr. 425.
And it deserves an especial remark that this doctrine was an admitted
concession, pervading the entire arguments of the counsel who opposed,
as well as of those who maintained the grant of the exclusive trade, in
the case of the East India Company v. Sandys, 10 How.St.Tr. 386,
a case which constitutes, in a great measure, the basis of this branch
of the law.
No sound lawyer will, I presume, assert that the grant of a right to
erect a bridge over a navigable stream is a grant of a common right.
Before such grant, had all the citizens of the State a right to erect
bridges over navigable streams? Certainly they had not, and therefore
the grant was no restriction of any common right. It was neither a
monopoly nor, in a legal sense, had it any tendency to a monopoly. It
took from no citizen what he possessed before, and had no tendency to
take it from him. It took, indeed, from the Legislature the power of
granting the same identical privilege or franchise [p*608] to any other
persons. But this made it no more a monopoly than the grant of the
public stock or funds of a State for a valuable consideration. Even in
cases of monopolies, strictly so called, if the nature of the grant be
such that it is for the public good, as in cases of patents for
inventions, the rule has always been to give them a favorable
construction in support of the patent, as Lord Chief Justice Eyre said,
ut res magis valeat quam pereat. Boulton v. Bill, 2 H
Bl. 463, 500.
But it has been argued, and the argument has been pressed in every form
which ingenuity could suggest, that if grants of this nature are to be
construed liberally, as conferring any exclusive rights on the grantees,
it will interpose an effectual barrier against all general improvements
of the country. For myself, I profess not to feel the cogency of this
argument, either in its general application to the grant of franchises
or in its special application to the present grant. This is a subject
upon which different minds may well arrive at different conclusions,
both as to policy and principle. Men may, and will, complexionally
differ upon topics of this sort according to their natural and acquired
habits of speculation and opinion. For my own part, I can conceive of no
surer plan to arrest all public improvements founded on private capital
and enterprise that to make the outlay of that capital uncertain and
questionable, both as to security and as to productiveness. No man will
hazard his capital in any enterprise in which, if there be a loss, it
must be borne exclusively by himself, and if there be success, he has
not the slightest security of enjoying the rewards of that success for a
single moment. If the government means to invite its citizens to enlarge
the public comforts and conveniences, to establish bridges, or
turnpikes, or canals, or railroads, there must be some pledge that the
property will be safe, that the enjoyment will be coextensive with the
grant, and that success will not be the signal of a general combination
to overthrow its rights and to take away its profits. The very agitation
of a question of this sort is sufficient to alarm every stockholder in
every public enterprise of this sort throughout the whole country.
Already, in my native State, the Legislature has found it necessary
expressly to concede the exclusive privilege here contended against in
order to insure the accomplishment of a railroad for the benefit of the
public. And yet we are told that all such exclusive grants are to the
detriment of the public.
But if there were any foundation for the argument itself in a [p*609]
general view, it would totally fail in its application to the present
case. Here, the grant, however exclusive, is but for a short and limited
period, more than two-thirds of which have already elapsed, and when it
is gone, the whole property and franchise are to revert to the State.
The Legislature exercised a wholesome foresight on the subject, and.
within a reasonable period, it will have an unrestricted authority to do
whatever it may choose in the appropriation of the bridge and its tolls.
There is not, then, under any fair aspect of the case, the slightest
reason to presume that public improvements either can or will be
injuriously retarded by a liberal construction of the present grant.
I have thus endeavored to answer, and I think I have successfully
answered, all the arguments (which indeed run into each other) adduced
to justify a strict construction of the present charter. I go further,
and maintain not only that it is not a case for strict construction, but
that the charter, upon its very face, by its terms, and for its
professed objects demands from the Court, upon undeniable principles of
law, a favorable construction for the grantees. In the first place, the
Legislature has declared that the erecting of the bridge will be of
great public utility, and this exposition of its own motives for the
grant requires the Court to give a liberal interpretation in order to
promote, and not to destroy, an enterprise of great public utility. In
the next place, the grant is a contract for a valuable consideration,
and a full and adequate consideration. The proprietors are to lay out a
large sum of money (and, in those times, it was a very large outlay of
capital) in erecting a bridge; they are to keep it in repair during the
whole period of forty years; they are to surrender it in good repair, at
the end of that period, to the State as its own property; they are to
pay, during the whole period, an annuity of £200 to Harvard
College; and they are to incur other heavy expenses and burdens for the
public accommodation. In return for all these charges, they are entitled
to no more than the receipt of the tolls during the forty years for
their reimbursement of capital, interest and expenses. With all this,
they are to take upon themselves the chances of success, and if the
enterprise fails, the loss is exclusively their own. Nor let any man
imagine that there was not, at the time when this charter was granted,
much solid ground for doubting success. In order to entertain a just
view of this subject, we must go back to that period of general
bankruptcy and distress and difficulty. The Constitution of [p*610] the
United States was not only not then in existence, but it was not then
even dreamed of. The union of the States was crumbling into ruins under
the old confederation. Agriculture, manufactures, and commerce were at
their lowest ebb. There was infinite danger to all the States from local
interests and jealousies and from the apparent impossibility of a much
longer adherence to that shadow of a government, the Continental
Congress. And even four years afterwards, when every evil had been
greatly aggravated, and civil war was added to other calamities, the
Constitution of the United States was all but shipwrecked, in passing
through the State conventions. It was adopted by very slender
majorities. These are historical facts which required no coloring to
give them effect, and admitted of no concealment to seduce men into
schemes of future aggrandizement. I would even now put it to the common
sense of every man whether, if the Constitution of the United States had
not been adopted, the charter would have been worth a forty years'
purchase of the tolls.
This is not all. It is well known historically that this was the very
first bridge ever constructed in New England over navigable tidewaters
so near the sea. The rigors of our climate, the dangers from sudden
thaws and freezing, and the obstructions from ice in a rapid current
were deemed by many persons to be insuperable obstacles to the success
of such a project. It was believed that the bridge would scarcely stand
a single severe winter. And I myself am old enough to know that, in
regard to other arms of the sea at much later periods, the same doubts
have had a strong and depressing influence upon public enterprises. If
Charles River Bridge had been carried away during the first or second
season after its erection, it is far from being certain that, up to this
moment, another bridge upon such an arm of the sea would ever have been
erected in Massachusetts. I State these things, which are of public
notoriety, to repel the notion that the Legislature was surprised into
an incautious grant, or that the reward was more than adequate to the
perils. There was a full and adequate consideration, in a pecuniary
sense, for the charter. But, in a more general sense, the erection of
the bridge, as a matter of accommodation, has been incalculably
beneficial to the public. Unless, therefore, we are wholly to disregard
the declarations of the Legislature, and the objects of the charter, and
the historical facts of the times, and indulge in mere private
speculations of profit and loss by our present lights and experience,
[p*611] it seems to me that the Court is bound to come to the
interpretation of this charter with a persuasion that it was granted in
furtherance, and not in derogation, of the public good.
But I do not insist upon any extraordinary liberality in interpreting
this charter. All I contend for is that it shall receive a fair and
reasonable interpretation, so as to carry into effect the legislative
intention and secure to the grantees a just security for their
privileges. I might, indeed, well have spared myself any investigation
of the principles upon which royal and legislative grants are ordinarily
to be construed, for this Court has itself furnished an unequivocal rule
for interpreting all public contracts. The present grant is confessedly
a contract, and in Huidekoper's Lessee v. Douglass, 3 Cranch 1,
this Court said:
This is a contract, and although a State is a party, it ought to be
construed according to those well established principles which regulate
contracts, generally,
that is, precisely as in cases between mere private persons, taking
into consideration the nature and objects of the grant. A like rule was
adopted by this Court in the case of a contract by the United States.
United States v. Gurney, 4 Cranch 333. And the good sense and
justice of the rule seem equally irresistible.
Let us now enter upon the consideration of the terms of the charter. In
my judgment, nothing can be more plain than that it is a grant of a
right to erect a bridge between Boston and Charlestown, in the place
where the ferry between those towns was kept. It has been said that the
charter itself does not describe the bridge as between Charlestown and
Boston, but grants an authority to erect "a bridge over Charles
River, in the place where the old ferry was then kept," and that
these towns are not named except for the purpose of describing the then
ferry. Now this seems to me, with all due deference, to be a distinction
without a difference. The bridge is to be erected in the place where the
old ferry then was. But where was it to begin? and where was it to
terminate? Boston and Charlestown are the only possible termini, for the
ferry ways were there, and it was to be built between Boston and
Charlestown because the ferry was between them. Surely, according to the
true sense of the preamble, where alone the descriptive words occur (for
it is a great mistake to suppose that the enacting clause anywhere
refers, except by implication, to the location of the bridge), it is
wholly immaterial, whether we read the clause, "whereas, the
erecting of a bridge [p*612] over Charles River, in the place where the
ferry between Boston and Charlestown is now kept," or "whereas,
the erecting of a bridge over Charles River, between Charlestown and
Boston, where the ferry is now kept." In each case, the bridge is
to be between Boston and Charlestown, and the termini are the ferry
ways. The title of the act puts this beyond all controversy, for it is "an
act for incorporating certain persons for the purpose of building a
bridge over Charles River, between Boston and Charlestown, &c."
But then we are told that no rule in construing statutes is better
settled than that the title of an act does not constitute any part of
the act. If by this no more be meant than that the title of an act
constitutes no part of its enacting clauses, the accuracy of the
position will not be disputed. But if it is meant to say that the title
of the act does not belong to it for any purpose of explanation or
construction, and that in no sense is it any part of the act, I, for
one, must deny that there is any such settled principle of law. On the
contrary, I understand that the title of an act (though it is not
ordinarily resorted to) may be legitimately resorted to for the purpose
of ascertaining the legislative intention just at much as any other part
of the act. In point of fact, it is usually resorted to whenever it may
assist us in removing any ambiguities in the enacting clauses. Thus, in
the great case of Sutton's Hospital, 10 Co.R. 23, 24b, the title
of an act of Parliament was thought not unworthy to be examined, in
construing the design of the act. In Boulton v. Bull, 2 Hen.Bl. 463,
500, the effect of the title of an act was largely insisted upon in the
argument, as furnishing a key to the intent of the enacting clauses. And
Lord Chief Justice Eyre admitted the propriety of the argument, and met
it, by saying that, in that case, he would, if necessary, expound the
word "engine" in the body of the bill, in opposition to the
title to it, to mean a "method," in order to support the
patent. In the case of the United States v. Fisher, 2 Cranch
358, the Supreme Court of the United States expressly recognised the
doctrine, and gave it a practical application. In that case, the Chief
Justice, in delivering the opinion of the Court, after adverting to the
argument at the bar respecting the degree of influence which the title
of an act ought to have in construing the enacting clauses, said:
Where the mind labors to discover the design of the Legislature, it
seizes everything from which aid can be derived, and, in such a case,
the title claims a degree of notice, and will have its due share of
consideration. [p*613]
According to my views of the terms of the charter, the grant, then, is
of the franchise of erecting a bridge over Charles River between
Charlestown and Boston, and of taking tolls or pontage from passengers.
It is, therefore, limited to those towns, and does not exclude the
Legislature from any right to grant a bridge over the same river between
any other towns and Boston, as, for example, between Chelsea and Boston,
or Cambridge and Boston, or Roxbury and Boston.
But although, in my judgment, this is the true construction of the
limits of the charter, ex vi terminorum, my opinion does not in
any important degree rest upon it. Taking this to be a grant of a right
to build a bridge over Charles River in the place where the old ferry
between Charlestown and Boston was then kept (as is contended for by the
defendants), still it has, as all such grants must have, a fixed
locality, and the same question meets us: is the grant confined to the
mere right to erect a bridge on the proper spot, and to take toll of the
passengers who may pass over it, without any exclusive franchise on
either side of the local limits of the bridge? or does it, by
implication, include an exclusive franchise on each side, to an extent
which shall shut out any injurious competition? In other words, does the
grant still leave the Legislature at liberty to erect other bridges on
either side, free or with tolls, even in juxtaposition with the timbers
and planks of this bridge? or is there an implied obligation on the part
of the Legislature to abstain from all acts of this sort which shall
impair or destroy the value of the grant? The defendants contend that
the exclusive right of the plaintiffs extends no farther than the planks
and timbers of the bridge, and that the Legislature is at full liberty
to grant any new bridge, however near and although it may take away a
large portion, or even the whole, of the travel which would otherwise
pass over the bridge of the plaintiffs. And to this extent, the
defendants must contend, for their bridge is, to all intents and
purposes, in a legal and practical sense, contiguous to that of the
plaintiffs.
The argument of the defendants is that the plaintiffs are to take
nothing by implication. Either (say they) the exclusive grant extends
only to the local limits of the bridge or it extends the whole length of
the river, or at least up to old Cambridge bridge. The latter
construction would be absurd and monstrous, and therefore the former
must be the true one. Now I utterly deny the alternative involved in the
dilemma. The right to build a bridge over a [p*614] river and to take
toll may well include an exclusive franchise beyond the local limits of
the bridge and yet not extend through the whole course of the river, or
even to any considerable distance on the river. There is no difficulty,
in common sense or in law, in maintaining such a doctrine. But then, it
is asked, what limits can be assigned to such a franchise? The answer is
obvious, the grant carries with it an exclusive franchise to a
reasonable distance on the river, so that the ordinary travel to the
bridge shall not be diverted by any new bridge, to the injury or ruin of
the franchise. A new bridge, which would be a nuisance to the old
bridge, would be within the reach of its exclusive right. The question
would not be so much as to the fact of distance as it would be as to the
fact of nuisance. There is nothing new in such expositions of
incorporeal rights, and nothing new in thus administering, upon this
foundation, remedies in regard thereto. The doctrine is coeval with the
common law itself. Suppose, an action is brought for shutting up the
ancient lights belonging to a messuage, or for diverting a watercourse,
or for flowing back a stream, or for erecting a nuisance near a dwelling
house; the question in such cases is not one of mere distance, of mere
feet and inches, but of injury -- permanent, real and substantial injury
-- to be decided upon all the circumstances of the case. But of this I
shall speak again hereafter.
Let us see what is the result of the narrow construction contended for
by the defendants. If that result be such as is inconsistent with all
reasonable presumptions growing out of case, if it be repugnant to the
principles of equal justice, if it will defeat the whole objects of the
grant, it will not, I trust, be insisted on that this Court is bound to
adopt it.
I have before had occasion to take notice that the original charter is
a limited one for forty years; that the whole compensation of the
proprietors for all their outlay of capital, their annuity to Harvard
College, and their other annual burdens and charges, is to arise out of
the tolls allowed them during that period. No other fund is provided for
their indemnity, and they are to take it subject to all the perils of
failure and the chances of an inadequate remuneration. The moment the
charter was accepted, the proprietors were bound to all the obligations
of this contract on their part. Whether the bargain should turn out to
be good or bad, productive or unproductive of profit, did not vary their
duties. The franchise was not a mere jus privatum. From the
moment of its acceptance and the erection of [p*615] the bridge, it
became charged with a jus publicum. The government had a right
to insist that the bridge should be kept in perfect repair for public
travel by the proprietors, that the bridge should be lighted, that the
draw should be raised without expense for the purposes of navigation,
and, if the proprietors had refused or neglected to do their duty in any
of these respects, they would have been liable to a public prosecution.
It could be no apology or defence that the bridge was unprofitable, that
the tolls were inadequate, that the repairs were expensive, or that the
whole concern was a ruinous enterprise. The proprietors took the charter
cum onere, and must abide by their choice. It is no answer to all this
to say that the proprietors might surrender their charter, and thus
escape from the burden. They could have no right to make such a
surrender. It would depend upon the good pleasure of the government
whether it would accept of such a surrender or not, and, until such an
acceptance, the burdens would be obligatory to the last hour of the
charter. And when that hour shall have arrived, the bridge itself, in
good repair, is to be delivered to the State.
Now I put it to the common sense of every man whether if, at the moment
of granting the charter, the Legislature had said to the proprietors,
you shall build the bridge, you shall bear the burdens, you shall be
bound by the charges, and your sole reimbursement shall be from the
tolls of forty years; and yet we will not even guaranty you any
certainty of receiving any tolls; on the contrary, we reserve to
ourselves the full power and authority to erect other bridges, toll or
free bridges, according to our own free will and pleasure, contiguous to
yours and having the same termini with yours, and if you are successful,
we may thus supplant you, divide, destroy your profits, and annihilate
your tolls without annihilating your burdens; if, I say, such had been
the language of the Legislature, is there a man living, of ordinary
discretion or prudence, who would have accepted such a charter upon such
terms? I fearlessly answer, no. There would have been such a gross
inadequacy of consideration, and such a total insecurity of all the
rights of property under such circumstances that the project would have
dropped still-born. And I put the question further, whether any
Legislature, meaning to promote a project of permanent public utility
(such as this confessedly was) would ever have dreamed of such a
qualification of its own grant when it sought to enlist private capital
and private patronage to insure the accomplishment of it? [p*616]
Yet this is the very form and pressure of the present case. It is not
an imaginary and extravagant case. Warren Bridge has been erected under
such a supposed reserved authority in the immediate neighborhood of
Charles River Bridge, and with the same termini, to accommodate the same
line of travel. For a half-dozen years, it was to be a toll bridge, for
the benefit of the proprietors, to reimburse them for their
expenditures; at the end of that period, the bridge is to become the
property of the State, and free of toll unless the Legislature should
thereafter impose one. In point of fact, it has since become, and now
is, under the sanction of the act of incorporation and other subsequent
acts, a free bridge, without the payment of any tolls, for all persons.
So that, in truth, here now is a free bridge, owned by and erected under
the authority of the Commonwealth, which necessarily takes away all the
tolls from Charles River Bridge while its prolonged charter has twenty
years to run. And yet the act of the Legislature establishing Warren
Bridge is said to be no violation of the franchise granted to the
Charles River Bridge. The Legislature may annihilate -- nay, has
annihilated -- by its own acts all chance of receiving tolls by
withdrawing the whole travel, though it is admitted that it cannot take
away the barren right to gather tolls, if any should occur, when there
is no travel to bring a dollar. According to the same course of
argument, the Legislature would have a perfect right to block up every
avenue to the bridge, and to obstruct every highway which should lead to
it, without any violation of the chartered rights of Charles River
Bridge, and, at the same time, it might require every burden to be
punctiliously discharged by the proprietors during the prolonged period
of seventy years. I confess that the very statement of such propositions
is so startling to my mind, and so irreconcilable with all my notions of
good faith and of any fair interpretation of the legislative intentions,
that I should always doubt the soundness of any reasoning which should
conduct me to such results.
But it is said that there is no prohibitory covenant in the charter,
and no implications are to be made of any such prohibition. The
proprietors are to stand upon the letter of their contract, and the
maxim applies, de non apparentibus et non existentibus, eadem est
lex. And yet it is conceded that the Legislature cannot revoke or
resume this grant. Why not, I pray to know? There is no negative
covenant in the charter, there is no express prohibition to be found
there. The reason is plain. The prohibition arises by [p*617] natural,
if not by necessary, implication. It would be against the first
principles of justice to presume that the Legislature reserved a right
to destroy its own grant. That was the doctrine in Fletcher v. Peck,
6 Cranch 87 , in this Court, and in other cases turning upon the same
great principle of political and constitutional duty and right. Can the
Legislature have power to do that indirectly which it cannot do
directly? If it cannot take away, or resume, the franchise itself, can
it take away its whole substance and value? If the law will create an
implication that the Legislature shall not resume its own grant, is it
not equally as natural and as necessary an implication that the
Legislature shall not do any act directly to prejudice its own grant, or
to destroy its value? If there were no authority in favor of so
reasonable a doctrine, I would say, in the language of the late lamented
Mr. Chief Justice Parker in this very case:
I ground it on the principles of our government and Constitution, and
on the immutable principles of justice, which ought to bind governments,
as well as people.
But it is most important to remember that, in the construction of all
legislative grants, the common law must be taken into consideration, for
the Legislature must be presumed to have in view the general principles
of construction which are recognised by the common law. Now no principle
is better established than the principle that, when a thing is given or
granted, the law giveth, impliedly, whatever is necessary for the taking
and enjoying the same. This is laid down in Co.Litt. 56a, and is,
indeed, the dictate of common sense applicable to all grants. Is not the
unobstructed possession of the tolls indispensable to the full enjoyment
of the corporate rights granted to the proprietors of Charles River
Bridge? If the tolls were withdrawn, directly or indirectly, by the
authority of the Legislature, would not the franchise be utterly
worthless? A burden, and not a benefit? Would not the reservation of
authority in the Legislature to create a rival bridge impair, if it did
not absolutely destroy, the exclusive right of the proprietors of
Charles River Bridge? I conceive it utterly impossible to give any other
than an affirmative answer to each of these questions. How, then, are we
to escape from the conclusion that that which would impair or destroy
the grant is prohibited by implication of law, from the nature of the
grant? "We are satisfied," said Mr. Chief Justice Parsons, in
delivering the opinion of the court in Wales v. Stetson, 2
Mass.R, 143, 146,
that the rights legally vested in any corporation cannot [p*618] be
controlled or destroyed by any statute unless a power for that purpose
be reserved to the Legislature in the act of incorporation.
Where is any such reservation to be found in the charter of Charles
River Bridge?
My brother Washington (than whom few judges ever possessed a sounder
judgment or clearer learning), in his able opinion in the case of Dartmouth
College v. Woodward, 4 Wheat. 658, took this same view of the true
sense of the passage in Blackstone's Commentaries, and uses the
following strong language on the subject of a charter of the government:
Certain obligations are created (by it) both on the grantor and the
grantees. On the part of the former, it amounts to an extinguishment of
the King's prerogative to bestow the same identical franchise on another
corporate body, because it would prejudice his former grant. It implies,
therefore, a contract not to reassert the right to grant the franchise
to another, or to impair it. I know not how language more apposite could
be applied to the present case. None of us then doubted its entire
correctness when he uttered it, and I am not able to perceive how the
legal inference can now be escaped. The case of the Chesapeake and
Ohio Canal Company v. Baltimore and Ohio Railroad Company, 4 Gill &
Johns.R. 1, 4, 6, 143, 146, 149, fully sustains the same doctrine and
most elaborately expounds its nature and operation and extent.
But we are not left to mere general reasoning on this subject. There
are cases of grants of the Crown, in which a like construction has
prevailed, which are as conclusive upon this subject in point of
authority as any can be. How stands the law in relation to grants by the
Crown of fairs, markets and ferries? I speak of grants, for all claims
of this sort resolve themselves into grants, a prescription being merely
evidence of, and presupposing, an ancient grant which can be no longer
traced except by the constant use and possession of the franchise. If
the King grants a fair, or a market, or a ferry, has the franchise no
existence beyond the local limits where it is erected? Does the grant
import no more than a right to set up such fair or market or ferry,
leaving in the Crown full power and authority to make other grants of
the same nature in juxtaposition with those local limits? No case, I
will venture to say, has ever maintained such a doctrine, and the common
law repudiates it (as will be presently shown) in the most express
terms.
The authorities are abundant to establish that the King cannot [p*619]
make any second grant which shall prejudice the profits of the former
grant. And why not? Because the grant imposes public burdens on the
grantee, and subjects him to public charges, and the profits constitute
his only means of remuneration, and the Crown shall not be at liberty
directly to impair, much less, to destroy, the whole value and objects
of its grant. In confirmation of this reasoning, it has been repeatedly
laid down in the books that, when the King grants a fair, or market, or
ferry, it is usual to insert in all such grants a clause or proviso that
it shall not be to the prejudice of any other existing franchise of the
same nature as a fair, or market, or ferry. But if such a clause or
proviso is not inserted, the grant is always construed with the like
restriction, for such a clause will be implied by law. And therefore, if
such new grant is without such a clause, if it occasion any damage
either to the King or to a subject in any other thing, it will be
revocable. So my Lord Coke laid it down in 2 Inst. 406. The judges laid
down the same law in the House of Lords in the case of the King v.
Butler, 3 Leo. 220, 222, which was the case of a grant of a new
market to the supposed prejudice of an old market. Their language on
that occasion deserves to be cited: it was "that the King has an
undoubted right to repeal a patent wherein he is deceived, or his
subjects prejudiced, and that by scire facias." And,
afterwards, referring to cases where a writ of ad quod damnum
had been issued, they added,
there, the King takes notice that it is not ad damnum, and yet,
if it be ad damnum, the patent is void, for in all such patents,
the condition is implied, viz., that it be not ad damnum of the
neighboring merchants.
And they added further,
this is positively alleged (in the scire facias) that concessio
predicta est ad damnum et depauperationem, &c., which is a
sufficient cause to revoke the patent if there were nothing more.
The same doctrine is laid down in Mr. Serjeant Williams' learned note
(2) to the case of Yard v. Ford, 2 Saund. 174. Now if, in the
grant of any such franchise of a fair or market or ferry, there is no
implied obligation or condition that the King will not made any
subsequent grant to the prejudice of such prior grant, or impairing its
rights, it is inconceivable, why such a proviso should be implied. But
if (as the law certainly is) the King can make no subsequent grant to
the prejudice of his former grant, then the reason of such implication
is clear, for the King will not be presumed to intend to violate his
duty, but rather to be deceived in his second grant, if to the prejudice
of the first. [p*620]
It is upon this ground, and this ground only that we can explain the
established doctrine in relation to ferries. When the Crown grants a
ferry from A. to B. without using any words which import it to be an
exclusive ferry, why is it (as will be presently shown) that, by the
common law, the grant is construed to be exclusive of all other ferries
between the same places or termini, at least if such ferries are so near
that they are injurious to the first ferry and tend to a direct
diminution of its receipts? Plainly it must be because, from the nature
of such a franchise, it can have no permanent value unless it is
exclusive, and the circumstance that, during the existence of the grant,
the grantee has public burdens imposed upon him raises the implication
that nothing shall be done to the prejudice of it while it is a
subsisting franchise. The words of the grant do, indeed, import, per
se, merely to confer a right of ferry between A. and B., but the
common law steps in, and, ut res magis valeat quam pereat,
expands the terms into an exclusive right from the very nature and
objects and motives of the grant.
I say this is the theory of the common law on this subject. Let us now
see if it is not fully borne out by the authorities in relation to
ferries, a franchise which approaches so near to that of a bridge that
human ingenuity has not as yet been able to state any assignable
difference between them except that one includes the right of pontage
and the other of passage or ferriage (see Webb's Case, 8 Co.R.
47 b), that is, each includes public duties and burdens, and an
indemnity for these duties and burdens by a right to receive tolls. A
grant of a ferry must always be by local limits; it must have some
termini; and must be between some fixed points, villes or places. But is
the franchise of a ferry limited to the mere ferry ways? Unless I am
greatly mistaken, there is an unbroken series of authorities
establishing the contrary doctrine -- a doctrine firmly fixed in the
common law and brought to America by our ancestors as a part of their
inheritance. The case of a ferry is put as a case of clear law by
Paston, Just., as long ago as in 22 Hen. V. 14b. "If," says
he,
I have a market or a fair on a particular day, and another sets up a
market on fair on the same day in a ville which is near to my market, so
that my market, or my fair, is impaired, I shall have against him an
assize of nuisance, or an action on the case.
And the same law is,
if I have an ancient ferry in a ville, and another sets up another
ferry upon the same river, near to my ferry, so that the profits of my
ferry are impaired, I shall have an action on the case [p*621] against
him.
And Newton (who, it seems, was of counsel for the defendant in that
case) admitted the law to be so, and gave as a reason, for you are bound
to support the ferry, and to serve and repair it for the ease of the
common people, and otherwise you shall be grievously amerced, and it is
inquirable before the sheriff, at his tourn, and also before the
justices in eyre.
As to the case of a market or fair, Newton said that, in the King's
grant of a market or fair, there is always a proviso that it should not
be to the nuisance of another market or fair. To which Paston, Just.,
replied,
suppose the King grants to me a market, without any proviso, if one
sets up after that time another market which is a nuisance to that, I
shall have against him an assize of nuisance.
The doctrine here laid down seems indisputable law, and it was cited
and approved by Lord Abinger, in Huzzey v. Field, 2 Cromp.Mees. &
Rosc. 432, to which reference will presently be made. In Bacon's
Abridgment, Prerogative, F. 1, it is laid down
that if the King creates or grants a fair or market to a person, and
afterwards grants another to another person, to the prejudice of the
first, the second grant is void.
See 16 Viner's Abridg. Nuisance, G. pl. 2. The same law is laid
down in 3 Black.Com. 218-19.
If (says he) I am entitled to hold a fair or market, and another person
sets up a fair or market so near mine that it does me a prejudice, it is
a nuisance to the freehold which I have in my market or fair.
He adds,
if a ferry is erected on a river so near another ancient ferry as to
draw away the custom, it is a nuisance to the old one, for where there
is a ferry by prescription, the owner is bound always to keep it in
repair and readiness, for the ease of the King's subjects; otherwise he
may be grievously amerced. It would be therefore extremely hard if a new
ferry were suffered to share the profits which does not also share the
burden.
The same doctrine is to be found in Comyn's Digest (Action upon the
Case for a Nuisance, A.) and in many other authorities. See Yard v.
Ford, 2 Saund. 175, and note 2, Fitz. N.Brev. 184, Hale de Port.
Maris, ch. 5, Harg.Law Tracts, p. 59, Com.Dig.Piscary, B., Id.; Market,
C. 2, C. 3, 2 Black.Com. 27.
The doctrine is, in England, just as true now, and just as strictly
enforced, as it was three centuries ago. In Blisset v. Hart,
Willes' R. 508, the plaintiff recovered damages for a violation of his
right to an ancient ferry against the defendant, who had set up a
neighboring ferry to his nuisance. The Court said,
A ferry is publici [p*622] juris. It is a franchise
that no one can erect without a license from the Crown, and when one is
erected, another cannot be erected without an ad quod damnum. If
a second is erected without a license, the Crown has a remedy by a quo
warranto, and the former grantee has a remedy by action.
The case of Tripp v. Frank, 4 T.R. 666, proceeds upon the
admission of the same doctrine, as does Prince v. Lewis, 5 Barn.
& Cres. 363; Peter v. Kendall, 6 Barn. & Cres. 703; Mosley
v. Chadwick, 7 Barn. & Cres. 47, note a, and Mosley v.
Walker, 7 Barn. & Cres. 40.
There is a very recent case (already alluded to) which was decided by
the Court of Exchequer upon the fullest consideration, and in which the
leading authorities upon this point were discussed with great acuteness
and ability. I mean the case of Huzzey v. Field, in 1835, 13 Law
Journ. 239, S.C., 2 Cromp.Meeson & Rose. 432. Lord Abinger, in
delivering the opinion of the Court on that occasion, used the following
language:
So far, the authorities appear to be clear that, if a new ferry be put
up without the King's license, to the prejudice of an old one, an action
will lie, and there is no case which has the appearance of being to the
contrary except that of Tripp v. Frank, hereafter mentioned.
These old authorities proceeded upon the ground, first, that the grant
of the franchise is good in law, being for a sufficient consideration,
to the subject, who, as he received a benefit, may have, by the grant of
the Crown, a corresponding obligation imposed upon him, in return for
the benefit received, and secondly that if another, without legal
authority, interrupts the grantee in the exercise of his franchise by
withdrawing the profits of passengers which he would otherwise have had,
and which he has, in a manner, purchased from the public at the price of
his corresponding liability, the disturber is subject to an action for
the injury. And the case is in this respect analogous to a grant of a
fair or market, which is also a privilege of the nature of a monopoly. A
public ferry, then, is a public highway of a special description, and
its termini must be places where the public have rights, as towns or
villes, or highways leading to towns or villes. The right of the grantee
is, in one case, an exclusive right of carrying from town to town, in
the other, of carrying from one point to the other, all who are going to
use the highway to the nearest town or ville to which the highway leads
on the other side. Any new ferry, therefore, which has the effect of
taking away such passengers must be injurious. For instance, if anyone
should construct a new landing [p*623] place at a short distance of one
terminus of the ferry, and make a proclamation of carrying passengers
over from the other terminus, and then landing them at that place, from
which they pass to the same public highway upon which the ferry is
established, before it reaches any town or ville, by which the
passengers go immediately to the first and all the villes, to which that
highway leads, there could not be any doubt but such an act would be an
infringement of the right of ferry, whether the person so acting
intended to defraud the grantee of the ferry or not. If such new ferry
be nearer, or the boat used more commodious, or the fare less, it is
obvious that all the custom must be inevitably withdrawn from the old
ferry. And thus, the grantee would be deprived of all the benefit of the
franchise, whilst he continued liable to all the burdens imposed upon
him.
Language more apposite to the present case could scarcely have been
used. And what makes it still stronger is that the very case before the
Court was of a new ferry, starting on one side, from the same town, but
not at the same place in the town, to a terminus on the other side,
different from that of the old ferry-house, and more than half a mile
from it, and thence by a highway, communicated with the highway which
was connected with the old ferry, at a mile distant from the ferry. Now
if the right of the old ferry did not, by implication, extend on either
side beyond its local termini, no question could have arisen as to the
disturbance. Trotter v. Harris, 2 Younge & Jerv. 285,
proceeded upon similar principles, though it did not call for so exact
an exposition of them.
It is observable that, in the case of Huzzey v. Field, the
defendant did not claim under any license or grant from the Crown, and
therefore it may be supposed in argument that it does not apply to a
case where that is a grant of the new ferry from the Crown. But, in
point of law, there is no difference between the cases. In each case,
the new ferry must be treated as a clear disturbance of the rights of
the old ferry, or it is not, in either case; for if the first grant does
not by implication carry an exclusive right above and below its local
termini, then there can be no pretence in either case for the grantee of
the old ferry to complain of the new ferry, for it does not violate his
rights under his grant. If the first grant does, by implication, carry
an exclusive right above and below its local termini so far as it may be
prejudiced or disturbed by a new ferry, then it is equally clear upon
established principles that the King [p*624] cannot, by a new grant,
prejudice his former grant, for the law deprives him of any such
prerogative. It is true that, where the new ferry is got up without a
license from the Crown, it may be abated as a nuisance upon a quo
warranto or information by the Crown. But this will not confer any right
of action on the grantee of the old ferry unless his own rights have
been disturbed.
I have said that this is the result of established principles, and the
case of the Islington Market, recently before the judges of England upon
certain questions submitted to them by the house of lords, is an
authority of the most solemn and conclusive nature upon this identical
point of franchise. What gives it still more importance is that, in the
last three questions proposed to the judges by the house of lords, the
very point as to the power of the King to make a second grant of a
market, to the prejudice of his former grant, within the limits of the
common law, arose and was pointedly answered in the negative. On that
occasion the judges said that, while the first grant of a market remains
unrepealed, even the default of the grantee of the franchise in not
providing, according to his duty, proper accommodations for the public
cannot operate, in point of law, as a ground for granting a new charter
to another to hold a market, within the common law, which shall really
be injurious to the existing market. The judges, after adverting to the
usual course of the issuing of a writ of ad quod damnum in cases where a
new market is asked for, added:
We do not say that a writ of ad quod damnum is absolutely
necessary. But if the Crown were to grant a new charter without a writ
of ad quod damnum, and it should appear that the interests of
other persons were prejudiced, the Crown would be supposed to be
deceived, and the grant might be repealed on a scire facias.
And they cited with approbation the doctrine of Lord Coke in 2 Inst.
406 that,
if one held a market either by prescription or by letters-patent and
another obtains a market to the nuisance of a former market, he shall
not tarry till he have avoided the letters-patent of the latter market
by course of law that he may have an assize of nuisance,
thus establishing the doctrine that there is no difference in point of
law whether the first market be by prescription or by grant, or whether
the new market be with, or without, a patent from the Crown. In each
case, the remedy is the same for the owner of the first market if the
new market is a nuisance to him. The judges also held that the [p*625]
circumstance of the benefit of the public requiring a new market would
not, of itself, warrant the grant of the new market.
Mr. Dane, in his Abridgment (2 Dane's Abridg. ch. 67, p. 683), lays
down the doctrine in terms equally broad and comprehensive as applicable
to America. After having spoken of a ferry as imposing burdens publici
juris, he adds, in this way, a ferry becomes property, an
incorporeal hereditament, the owners of which, for the public
convenience, being obliged by law to perform certain public services,
must, as a reasonable equivalent, be protected in this property.
And he cites the case of Chadwick v. Proprietors of the Haverhill
Bridge as directly in point, that the erection of a neighboring
bridge, under the authority of the Legislature, is a nuisance to a
ferry. Notwithstanding all the commentary bestowed on that case to
escape from its legal pressure, I am of opinion that the report of the
referees never could have been accepted by the Court, or judgment given
thereon, if the declaration had not stated a right which, in point of
law, was capable of supporting such a judgment. The Court seems, from
Mr. Dane's statement of the case, clearly to have recognised the title
of the plaintiff if he should prove himself the owner of a ferry.
Besides, without disparagement to any other man, Mr. Dane himself (the
chairman of the referees), from his great learning and ability, is well
entitled to speak with the authority of a commentator of the highest
character upon such a subject.
It is true that there is the case of Churchman v. Tunstal,
Hard.R. 162, where a different doctrine as to a ferry was laid down. But
that case is repugnant to all former cases, as well as later cases, and
Lord Ch. Baron Macdonald, in Attorney-General v. Richard, 2
Anstr.R. 603, informs us that it was afterwards overturned. Lord
Abinger, in Huzzey v. Field, 2 Comp.Mees. & Rosc. 432, goes
further and informs us that, after the bill in that case was dismissed
(which was a bill by a farmer of a ferry, as it should seem, under the
Crown, for an injunction to restrain the defendant, who had lands on
both sides of the Thames, three-quarters of a mile off, and who was in
the habit of ferrying passengers across, from continuing to do so),
another bill was brought, after the restoration, in 1663, and a decree
made by Lord Hale in favor of the plaintiff that the new ferry should be
put down. This last determination is exceedingly strong, carrying the
implication in regard to the franchise of a ferry as exclusive of all
other ferries [p*626] injurious to it, to a very enlarged extent, and it
was made by one of the greatest judges who ever adorned the English
bench.
But it has been suggested that the doctrine as to ferries is confined
to ancient ferries by prescription, and does not apply to those where
there is a grant which may be shown. In the former case, the exclusive
right may be proved by long use, and exclusive use; in the latter, the
terms of the grant show whether it is exclusive or not, and, if not
stated to be exclusive in the grant, it cannot, by implication, be
presumed to be exclusive. Now there is no authority shown for such a
distinction, and it is not sound in itself. If a ferry exists by
prescription, nothing more, from the nature of the thing, can be
established by long possession than that the ferry originated in some
grant, and that it has local limits from the ferry ways on one side to
those on the other side. T he mere absence of any other near ferry
proves nothing except that there is no competition, for until there is
some interference by the erection of another ferry, there can be nothing
exclusive, above or below the ferry ways, established by the mere use of
the ferry. If such an interference should occur, then the question might
arise, and the long use could establish no more than the rightful
possession of the franchise. The question whether the franchise is
exclusive or not must depend upon the nature of such a franchise at the
common law and the implications belonging to it. In short, it is, in the
authorities, taken to be exclusive unless a contrary presumption arises
from the facts, as it did in Holcroft v. Heel, 1 Bos. & Pul. 400.
But Lord Coke, in 2 Inst. 406, lays down the law as equally applicable
to all cases of prescription and of grant:
If, says he, one hath a market either by prescription or by
letters-patent of the King, another obtains a market, to the nuisance of
the former market, he shall not tarry till he have avoided the
letters-patent of the latter market by course of law, but he may have an
assize of nuisance.
The same rule must, for the same reason, apply to fairs and ferries.
The case of Prince v. Lewis, 5 Barn. & Cres. 363, was the
case of the grant of a market, and not of a market by prescription, yet
no one suggested any distinction on this account. Holcroft v. Heel,
1 Bos. & Pul. 400, was the case of a grant of a market by
letters-patent.
In Ogden v. Gibbons, 4 Johns. Ch. 150, Mr. Chancellor Kent
recognises, in the most ample manner, the general principles of the
common law. Speaking of the grant in the case of an exclusive right to
navigate with steamboats from New York to Elizabethtown Point, [p*627] &c.,
he declared that the true intent was to include not merely that point,
but the whole shore or navigable part of Elizabethtown. "Any
narrower construction," said he,
in favor of the grantor would render the deed a fraud upon the grantee.
It would be like granting an exclusive right of ferriage between two
given points, and the setting up a rival ferry within a few rods of
those very points, and within the same course of the line of travel. The
common law contained principles applicable to this very case, dictated
by a sounder judgment and a more enlightened morality. If one had a
ferry by prescription, and another erected a ferry so near to it as to
draw away its custom, it was a nuisance for which the injured party had
his remedy by action, &c. The same rule applies, in its spirit and
substance, to all exclusive grants and monopolies. The grant must be so
construed so as to give it due effect by excluding all contiguous and
injurious competition.
Language more apposite to the present case could not well be imagined.
Here, there is an exclusive grant of a bridge from Charlestown to Boston
on the old ferry ways, must it not also be so construed as to exclude
all contiguous and injurious competition? Such an opinion, from such an
enlightened judge, is not to be overthrown by general suggestions
against making any implications in legislative grants.
The case of the Newburgh Turnpike Company v. Miller, 5 Johns.
Ch. 101, decided by the same learned judge, is still more directly in
point, and, so far as his authority can go, conclusively establishes the
doctrine not only that the franchise of a ferry is not confined to the
ferry ways, but that the franchise of a bridge is not confined to the
termini and local limits of the bridge. In that case, the plaintiffs had
erected a toll-bridge over the river Wallkill, in connection with a
turnpike, under an act of the Legislature, and the defendants afterwards
erected another road and bridge near to the former, and thereby diverted
the toll from the plaintiffs' bridge. The suit was a bill in chancery
for a perpetual injunction of this nuisance of the plaintiffs' bridge,
and it was accordingly, at the hearing granted by the Court. Mr.
Chancellor Kent on that occasion said,
considering the proximity of the new bridge, and the facility that
every traveler has, by means of that bridge and the road connected with
it, to shun the plaintiffs' gate, which he would otherwise be obliged to
pass, I cannot doubt for a moment that the new bridge is a direct and
immediate disturbance of the plaintiffs' enjoyment of their privileges,
&c.;
The new road, by its termini, created a competition [p*628] most
injurious to the statute franchise, and becomes what is deemed in law in
respect to such franchise, a nuisance.
And after adverting to his own language, already quoted, in Odgen v.
Gibbons, 4 John.Ch.R. 150, 160, he added:
The same doctrine applies to any exclusive privilege created by
statute. A such privileges come within the equity and reason of the
principle. No rival road, bridge or ferry, or other establishment of a
similar kind, and for like purposes, can be tolerated so near to the
other as materially to affect or take away its custom. It operates as a
fraud upon the grant, and goes to defeat it. The consideration, by which
individuals are invited to expend money upon great and expensive and
hazardous public works, as roads and bridges, and to become bound to
keep them in constant and good repair, is the grant of an exclusive
toll. This right, thus purchased for a valuable consideration, cannot be
taken away by direct or indirect means devised for the purpose, both of
which are equally unlawful.
Now when the learned chancellor here speaks of an exclusive privilege
or franchise, he does not allude to any terms in the statute grant
expressly giving such a privilege beyond the local limits, for the
statute contained no words to such an effect. The grant, indeed, was, by
necessary implication, exclusive, as to the local limits, for the
Legislature could not grant any other bridge in the same place with the
same termini. It was to such a grant of a franchise exclusive in this
sense, and in no other, that his language applies. And he affirms the
doctrine in the most positive terms that such a grant carries with it a
necessary right to exclude all injurious competition as an indispensable
incident. And his judgment turned altogether upon this doctrine.
It is true that, in this case, the defendants did not erect the new
bridge under any legislative act. But that is not material in regard to
the point now under consideration. The point we are now considering is
whether the grant of a franchise to erect a bridge or a ferry is
confined to the local limits or termini, to the points and planks of the
bridge, or to the ferry ways of the ferry. The learned chancellor
rejects such a doctrine with the most pointed severity of phrase. "It
operates (says he) as a fraud upon the grant, and goes to defeat it."
The grant necessarily includes, "a right to an exclusive toll."
"No rival road, bridge or ferry can be tolerated so near to the
former as to affect or take away its custom." Now if such be the
true construction of the grant of such a franchise, it is just as true a
construction in relation to the government, as in relation [p*629] to
private persons. It would be absurd to say that the same grant means one
think as to the public, and an entirely opposite thing in relation to
individuals. If the right to an exclusive franchise or toll exists, it
exists from the nature and objects of the grant, and applies equally in
all directions . It would be repugnant to all notions of common sense,
as well as of justice, to say that the Legislature had a right to commit
a fraud upon its own grant. The whole reasoning of the learned
chancellor repudiates such a notion.
But in what manner is the doctrine to be maintained that the franchise
of a ferry is confined to the ferry ways, and the franchise of a bridge
to the planks? It is said that in Saville's Reports 11, it is laid down,
"that a ferry is in respect to the landing place, and not of the
water, which water may belong to one, and the ferry to another."
There can be no doubt of this doctrine. A ferry must have local limits.
It must have termini or landing places, and it may include only a right
of passage over the water. And is not this equally true whether it be a
ferry by prescription or by grant? If so, can there be any difference as
to the value of the exclusive right in cases of grant or of
prescription? Does not each rest on its landing places? But it is added,
in Saville:
And in every ferry, the land on both sides of the water ought to be
[belong] to the owner of the ferry, for otherwise he cannot land upon
the other part.
Now if by this is meant that the owner of the ferry must be the owner
of the land, it is not law, for all that is required is that he should
have a right or easement in the landing places. So it was adjudged in
Peter v. Kendall, 6 Barn. & Cres. 703, and the dictum of
Saville was there overruled. If the same principle is to be applied (as
I think it must be) to a bridge, then, as there must be a subsisting
right in the proprietors of Charles River Bridge to have such landing
places on the old ferry ways, there must be an assignment or grant
implied of those ferry ways by Harvard College to the proprietors for
that purpose. But of this I shall speak hereafter.
One of the learned judges in the State court (who was against the
plaintiffs) admitted that if any person should be forcibly prevented
from passing over the plaintiffs' bridge, it would be an injury for
which an action on the case would lie. I entirely assent to this
doctrine, which appears to me to be founded in the most sound reasoning.
It is supported by the case of the Bailiffs of Tewksbury v. Diston,
6 East R. 438, and by the authorities cited by Lord Ellenborough [p*630]
on that occasion, and especially by the doctrine of Mr. Justice Powell
in Ashby v. White, 2 Lord Raym. 948, and S.C. 6 Mod. 49. But how
can this be if the franchise of the bridge is confined to the mere local
limits or timbers of the bridge? If the right to take toll does not
commence or attach in the plaintiffs, except when the passengers arrive
on the bridge, how can an action lie for the proprietors for obstructing
passengers from coming to the bridge? The remedy of the plaintiffs can
only be coextensive with their rights and franchise. And if an action
lies for an obstruction of passengers, because it goes to impair the
right of toll and to prevent its being earned, why does not the
diversion of passengers from the bridge by other means equally give a
cause of action, since it goes, equally, nay more, to impair the right
of the plaintiffs to toll? If the Legislature could not impair or
destroy its own grant by blocking up all avenues to the bridge, how can
it possess the right to draw away all the tolls by a free bridge, which
must necessarily withdraw all passengers? For myself, I cannot perceive
any ground upon which a right of action is maintainable for any
obstruction of passengers which does not equally apply to the diversion
of passengers. In each case, the injury of the franchise is the same,
although the means used are, or may be, different.
The truth is that the reason why the grant of a franchise, for example,
of a ferry or of a bridge, though necessarily local in its limits, is
yet deemed to extend beyond those local limits by operation and
intendment of law is founded upon two great fundamental maxims of law
applicable to all grants. One is the doctrine already alluded to, and
laid down in Liford's Case, in 11 Co.R. 46, 52a, lex est
cuicunque, aliquis, quod concedit, concedere videtur et id, sine quo res
ipsa esse non potuit, or, as it is expressed with pregnant brevity
by Mr. Justice Twisden in Pomfret v. Ricroft, 1 Saund. 321, 323,
"when the use is granted, everything is granted by which the
grantee may have and enjoy the use." See also Lord Darcy v.
Askwith, Hob.R. 234, 1 Saund. 323, note 6, by Williams; Co.Litt.
56a. Another is that wherever a grant is made for a valuable
consideration which involves public duties and charges, the grant shall
be construed so as to make the indemnity coextensive with the burden.
Qui sentit onus, sentire debet et commodum. In the case of a
ferry, there is a public charge and duty. The owner must keep the ferry
in good repair upon the peril of an indictment. He must keep sufficient
accommodations for all travelers, [p*631] at all reasonable times. He
must content himself with a reasonable toll. Such is the jus
publicum. In return, the law will exclude all injurious competition,
and deem every new ferry a nuisance which subtracts from him the
ordinary custom and toll. See Com.Dig.Piscary, B. id.
Ferry. So strong is the duty of the ferry owner to the public that it
was held, in Paine v. Patrick, 3 Mod. 289, 294 that the ferry
owner could not excuse himself from not keeping proper boats even by
showing that he had erected a bridge more convenient for passengers. It
would be a fraud upon such a grant of a ferry to divert the travel and
yet to impose the burden. The right to take toll would, or might, be
useless unless it should be exclusive within all the bounds of injurious
rivalship from another ferry. The franchise is therefore construed to
extend beyond the local limits, and to be exclusive within a reasonable
distance, for the plain reason that it is indispensable to the fair
enjoyment of the franchise and right of toll. The same principle
applies, without a shadow of difference that I am able to perceive, to
the case of a bridge, for the duties are publici juris, and
pontage and passage are but different names for exclusive toll for
transportation.
In the argument at the present term, it has been further contended
that, at all events, in the State of Massachusetts, the ancient doctrine
of the common law in relation to ferries is not in force, and never has
been recognised; that all ferries in Massachusetts are held at the mere
will of the Legislature, and may be established by them and annihilated
by them at pleasure; and, of course, that the grantees hold them durante
bene placito of the Legislature. And in confirmation of this view of
the subject, certain proceedings of the colonial Legislature have been
relied on, and especially those stated in the record, between the years
1629 and 1650, to the colonial act of 1641, against monopolies (which
is, in substance, like the statute of monopolies of the 21 James I., c.
3), and to the general colonial and provincial and State statutes
regulating ferries passed in 1641, 1644, 1646, 1647, 1695, 1696, 1710,
1719, 1781 and 1787, some of which contain special provisions respecting
Charlestown and Boston ferry.
As to the proceedings of the colonial government so referred to, in my
judgment, they establish no such conclusion. But some of them, at least,
are directly opposed to it. Thus, for example, in 1638, a ferry was
granted to Garret Spencer, at Lynn, for two years. In 1641, it was
ordered that they that put two boats between [p*632] Cape Ann and
Annisquam shall have liberty to take sufficient toll, as the Court shall
think fit, for one-and-twenty years. Could the colonial government have
repealed these grants, within the terms specified, at their pleasure? In
1648, Juhn Glover had power given him to let a ferry over Neponset river
between Dorchester and Braintree to any person or persons for the term
of seven years, &c., or else to take it to himself and his heirs, as
his inheritance forever, provided it be kept in such a place, and at
such a price, as may be most convenient for the country, and pleasant to
the General Court. Now if Glover, according to this act, had taken this
ferry to him and his heirs as an inheritance, could the colonial
Legislature have revoked it at its pleasure? Or rather, can it be
presumed that the colonial Legislature intended such a ferry,
confessedly an inheritance, to be an estate held only at will? It would
be repugnant to all notions of legal interpretation.
In 1637, the General Court ordered the ferry between Boston and
Charlestown to be let for three years. It was afterwards, in 1640,
granted to Harvard College. From that time down to 1785, it was always
held and claimed by the college as its inheritance. But the college
never supposed that it was not subject to the regulation of the
Legislature so far as the public interests were concerned. The acts of
1650, 1654, 1694, 1696, 1710 and 1781 establish this. But they show no
more. That many of the ferries in Massachusetts were held, and perhaps
were always held, under mere temporary licenses of the Legislature or of
certain magistrates to whom they were intrusted is not denied. But it is
as clear that there were other ferries held under more permanent
tenures. The colonial act of 1644 authorized magistrates to pass ferries
toll-free except such ferries as are appropriated to any, or rented out,
and are out of the country's hands, and then it is "ordered that
their passages be paid by the country." The act of 1694 excepts
from its operation "such ferries as are already stated and settled
either by the court or town to whom they appertain." The colonial
act of 1670, as an inducement to the town of Cambridge or other persons
to repair the bridge at Cambridge or to erect a new one, declared,
that this order (granting certain tolls) should continue in force so
long a time as the said bridge is maintained serviceable and safe for
passage.
So that it is plain that the colonial Legislature did contemplate both
ferries and bridges to be held by permanent tenures, and not to be
revocable at pleasure. [p*633]
But to all the general laws respecting ferries, one answer may be given
that their provisions are generally confined to the due regulation of
public ferries and matters publici juris, and so far as the public have
rights which ought to be enforced and protected, and which the
Legislature had a proper right to enforce and protect by suitable laws.
And in regard to matters not strictly of this nature, the enactments may
well apply to all such ferries within the State as were held under the
mere temporary license of the State, and were revocable and controllable
at pleasure by the Legislature, in which predicament a very large number
of ferries in the State were, and also to those ferries (among which
Charlestown ferry seems to have been) over which a modified legislative
control had been, at their original establishment, reserved. Beyond
these results, I am not prepared to admit that these statutes either had
or ever were supposed to have any legitimate operation. And before I
should admit such a conclusion, I should require the evidence of some
solemn judgment of a court of justice in Massachusetts to the very
point.
But the argument presses the doctrine to an extent which it is
impossible can be correct if any principles respecting vested rights
exist, or have any recognition in a free government. What is it? That
all ferries in Massachusetts are revocable and extinguishable at
pleasure. Suppose, then, the Legislature of Massachusetts, for a
valuable consideration, should grant a ferry from A. to B. to a grantee
and his heirs, or to a grantee for forty years, or for life; will it be
contended that the Legislature can take away, revoke or annihilate that
grant within the period? That it may make such a grant cannot well be
denied, for there is no prohibition touching it in the Constitution of
Massachusetts. That it can take away or resume such a grant has never
yet been held by any judicial tribunal in that State. The contrary is as
well established as to all sorts of grants unless an express power be
reserved for the purpose, as any principle in its jurisprudence. In the
very case now before this Court, every judge of the Supreme Court of the
State admitted that the Legislature could not resume or revoke its
charter to Charles River Bridge. Why not, if it could revoke its solemn
grant of a ferry to a private person, or to a corporation, during the
stipulated period of the grant? The Legislature might just as well
resume its grant of the public land, or the grant of a turnpike, or of a
railroad, or of any other franchise, within the period stipulated by its
charter.
The doctrine, then, is untenable. The moment that you ascertain [p*634]
what the terms and stipulations of a grant of a ferry or any other
franchise are that moment, they are obligatory. They cannot be gainsaid
or resumed. So this Court has said, in the case of Fletcher v. Peck,
6 Cranch 87 , and so are the unequivocable principles of justice, which
cannot be overturned without shaking every free government to its very
foundations. If, then, the ferry between Charlestown and Boston was
vested, in perpetuity, in the corporation of Harvard College, it could
not be taken away without its consent by the Legislature. It was a ferry
so far withdrawn from the power of any legislation trenching on its
rights and franchises. It is assuming the very point in controversy to
say that the ferry was held at the mere pleasure of the Legislature. An
exclusive claim, and possession and user, and taking of the profits
thereof, for 150 years, by the corporation of Harvard College, without
interruption, was as decisive evidence of its exclusive right to the
franchise in perpetuity as the title deed of any man to his own estate.
The Legislature of Massachusetts has never, so far as I know, breathed a
doubt on the point. All the judges of the State court admit the
exclusive right of Harvard College to the ferry in the most unequivocal
terms. The argument, then, that the English doctrine as to ferries has
not been adopted, and is not in force in Massachusetts, is not
supported. For myself, I can only say that I have always understood that
the English doctrine on this subject constitutes a part of the common
law of Massachusetts. But, what is most material to be stated, not one
of the learned judges in the State court doubted or denied the doctrine,
though it was brought directly before them, and they gave, seriatim,
opinions containing great diversities of judgment on other points. [n2]
It is also fully established by the case of Chadwick v. Proprietors
of Haverhill Bridge, already cited.
But it is urged that some local limits must be assigned to such grants,
and the Court must assign them, for otherwise they would involve the
absurdity of being coextensive with the range of the river, for every
other bridge or ferry must involve some diminution of toll, and how much
(it is asked) is necessary to constitute an infringement of the right? I
have already given an answer, in part, to this suggestion. The rule of
law is clear. The application of it must depend upon the particular
circumstances of each case. Wherever [p*635] any other bridge or ferry
is so near that it injures the franchise, or diminishes the toll in a
positive and essential decree, there it is a nuisance, and is
actionable. It invades the franchise, and ought to be abated. But
whether there be such an injury or not is a matter not of law, but of
fact. Distance is no otherwise important than as it bears on the
question of fact. All that is required is that there should be a
sensible, positive injury. In the present case, there is no room to
doubt upon this point, for the bridges are contiguous, and Warren
Bridge, after it was opened, took away three-fourths of the profits of
the travel from Charles River Bridge, and when it became free (as it now
is), it necessarily took away all the tolls, or all except an
unimportant and trivial amount.
What I have said, however, is to be understood with this qualification
-- that the franchise of the bridge has no assigned local limits, but it
is a simple grant of the right to erect a bridge across a river, from
one point to another, without being limited between any particular
villes or towns, or by other local limits. In the case now before the
Court, I have already stated that my judgment is that the franchise is
merely to erect a bridge between Charlestown and Boston, and therefore
it does not necessarily exclude the Legislature from making any other
grant for the erecting of a bridge between Boston and any other town.
The exclusive right being between those towns, it only precludes another
legislative grant between those towns which is injurious to Charles
River Bridge. The case of Tripp v. Frank, 4 T.R. 666, is a clear
authority for this doctrine. It was there decided that the grant of an
exclusive ferry between A. and B. did not exclude a ferry between A. and
C. But the argument of the plaintiff's counsel was tacitly admitted by
the Court that ferries, in general, must have some considerable extent
upon which their right may operate; otherwise, the exclusive privilege
would be of no avail; that extent must be governed by local
circumstances.
And there is the greatest reason for supporting such rights, because
the owners of ferries are bound, at their peril, to supply them to the
public use, and are therefore fairly entitled to the public advantage
arising from them.
But it is said, if this is the law, what then is to become of turnpikes
and canals? Is the Legislature precluded from authorizing new turnpikes
or new canals simply because they cross the path of the old ones, and
incidentally diminish their receipt of tolls? The answer is plain. Every
turnpike has its local limits and local termini, its points of beginning
and of end. No one ever imagined that the [p*636] Legislature might
grant a new turnpike with exactly the same location and termini. That
would be to rescind its first grant. The grant of a turnpike between A.
and B. does not preclude the Legislature from the grant of a turnpike
between A. and C., even though it should incidentally intercept some of
the travel, for it is not necessarily a nuisance to the former grant.
The termini being different, the grants are or may be substantially
different. But if the Legislature should grant a second turnpike,
substantially taking away the whole travel from the first turnpike
between the same local points, then, I say, it is a violation of the
rights of the first turnpike. And the opinion of Mr. Chancellor Kent and
all the old authorities on the subject of ferries support me in the
doctrine.
Some reliance has been placed upon the cases of Prince v. Lewis,
5 Barn. & Cres. 363, and Mosley v. Walker, 7 Barn. &
Cres. 40, as impugning the reasoning. But it appears to me that they
rather fortify than shake it. In the former case, the King granted a
market to A. and his heirs in a place within certain specified limits,
and the grantee used part of the limits for other purposes, and space
enough was not ordinarily left for the marketing. It was held that the
owner of the market could not maintain an action against a person for
selling marketable goods in the neighborhood without showing that, at
the time of the sale, there was room enough in the market for the
seller. This clearly admits the exclusive right of the owner if there is
room enough in the market. The other case affirms the same principle,
as, indeed, it was before affirmed in Mosley v. Chadwick, 7 Barn. &
Cres. 47, note.
But then again, it is said that all this rests upon implication, and
not upon the words of the charter. I admit that it does, but I again say
that the implication is natural and necessary. It is indispensable to
the proper effect of the grant. The franchise cannot subsist without it,
at least, for any valuable or practical purpose. What objection can
there be to implications if they arise from the very nature and objects
of the grant? If it be indispensable to the full enjoyment of the right
to take toll that it should be exclusive within certain limits, is it
not just and reasonable that it should be so construed? If the
legislative power to erect a new bridge would annihilate a franchise
already granted, is it not, unless expressly reserved, necessarily
excluded by intendment of law? Can any reservations be raised by mere
implication to defeat the operation of a grant, especially when such a
reservation would be coextensive with the whole [p*637] right granted,
and amount to the reservation of a right to recall the whole grant.
Besides, in this very case, it is admitted on all sides that, from the
defective language and wording of the charter, no power is directly
given to the proprietors to erect the bridge, and yet it is agreed that
the power passes by necessary implication from the grant, for otherwise
it would be utterly void. The argument, therefore, surrenders the point
as to the propriety of making implications and reduces the question to
the mere consideration of what is a necessary implication. Now I would
willingly put the whole case upon this point, whether it is not as
indispensable to the fair and full operation of the grant that the
plaintiffs should be secure in the full enjoyment of their right to
tolls, without disturbance or diversion -- as that they should have the
power to erect the bridge. If the tolls may be all swept away, by a
contiguous free bridge erected the next day, can it be said in any sense
that the object of the franchise is obtained? What does the sound logic
of the common law teach us on this point? If a grant, even of the Crown,
admits of two constructions, one of which will defeat, and the other
will promote and secure, the fair operation of the grant, the latter is
to be followed.
The truth is that the whole argument of the defendants turns upon an
implied reservation of power in the Legislature to defeat and destroy
its own grant. The grant, construed upon its own terms, upon the plain
principles of construction of the common law, by which alone it ought to
be judged, is an exclusive grant. It is the grant of a franchise,
publici juris, with a right of tolls, and in all such cases, the common
law asserts the grant to be exclusive, so as to prevent injurious
competition. The argument seeks to exclude the common law from touching
the grant by implying an exception in favor of the legislative authority
to make any new grant. And let us change the position of the question as
often as we may, it comes to this, as a necessary result -- that the
Legislature has reserved the power to destroy its own grant, and
annihilate the right of pontage of the Charles River Bridge. If it stops
short of this exercise of its power, it is its own choice, and not its
duty. Now I maintain that such a reservation is equivalent to a power to
resume the grant, and yet it has never been for a moment contended that
the Legislature was competent to resume it.
To the answer already given to the objection that, unless such a
reservation of power exists, there will be a stop put to the progress
[p*638] of all public improvements, I wish, in this connection, to add
that there never can any such consequence follow upon the opposite
doctrine. If the public exigencies and interests require that the
franchise of Charles River Bridge should be taken away, or impaired, it
may be lawfully done, upon making due compensation to the proprietors. "Whenever,"
says the Constitution of Massachusetts,
the public exigencies require that the property of any individual
should be appropriated to public uses, he shall receive a reasonable
compensation therefor,
and this franchise is property -- is fixed determinate property. We
have been told, indeed that where the damage is merely consequential
(as, by the erection of a new bridge, it is said that it would be), the
Constitution does not entitle the party to compensation, and Thruston
v. Hancock, 12 Mass. 220, and Callender v. Marsh, 1 Pick.
418, are cited in support of the doctrine. With all possible respect for
the opinions of others, I confess myself to be among those who never
could comprehend the law of either of those cases, and I humbly continue
to doubt if, upon principle or authority, they are easily maintainable,
and I think my doubts fortified by the recent English decisions. But,
assuming these cases to be unquestionable, they do not apply to a case
like the present, if the erection of such a new bridge is a violation of
the plaintiffs' franchise. That franchise, so far as it reaches, is
private property, and, so far as it is injured, it is the taking away of
private property. Suppose, a man is the owner of a mill, and the
Legislature authorizes a diversion of the watercourse which supplies it
whereby the mill is injured or ruined; are we to be told that this is a
consequential injury, and not within the scope of the Constitution? If
not within the scope of the Constitution, it is, according to the
fundamental principles of a free government, a violation of private
rights, which cannot be taken away without compensation. The case of
Gardner v. Village of Newburgh, 2 Johns. Ch. 139, would be a
sufficient authority to sustain this reasoning if it did not stand upon
the eternal principles of justice, recognised by every government which
is not a pure despotism.
Not a shadow of authority has been introduced to establish the position
of the defendants that the franchise of a toll bridge is confined to the
planks of the bridge, and yet it seems to me that the onus probandi
is on them, for all the analogies of the common law are against them.
They are driven, indeed, to contend that the same principles apply to
ferries, which are limited to the ferry ways, [p*639] unless some
prescription has given them a more extensive range. But here, unless I
am entirely mistaken, they have failed to establish their position. As I
understand the authorities, they are, unequivocally, the other way. Are
we then to desert the wholesome principles of the common law, the
bulwark of our public liberties, and the protecting shield of our
private property, and assume a doctrine which substantially annihilates
the security of all franchises affected with public easements?
But it is said that, if the doctrine contended for be not true, then
every grant to a corporation becomes, ipso facto, a monopoly or
exclusive privilege. The grant of a bank, or of an insurance company, or
of a manufacturing company, becomes a monopoly, and excludes all
injurious competition. With the greatest deference and respect for those
who press such an argument, I cannot but express my surprise that it
should be urged. As long ago as the case in the Year Book, 22 Hen. VI.
14, the difference was pointed out in argument between such grants as
involve public duties and public matters for the common benefit of the
people and such as are for mere private benefit, involving no such
consideration. If a bank or insurance company or manufacturing company
is established in any town by an act of incorporation, no one ever
imagined that the corporation was bound to do business, to employ its
capital, to manufacture goods, to make insurance. The privilege is a
mere private corporate privilege, for the benefit of the stockholders,
to be used or not at their own pleasure, to operate when they please,
and to stop when they please. Did any man ever imagine that he had a
right to have a note discounted by a bank, or a policy underwritten by
an insurance company? Such grants are always deemed privati juris.
No indictment lies for a non-user. But in cases of ferries and bridges,
and other franchises of a like nature (as has been shown), they are
affected with a jus publicum. Such grants are made for the
public accommodation, and pontage and passage are authorized to be
levied upon travelers (which can only be by public authority), and, in
return, the proprietors are bound to keep up all suitable accommodations
for travelers, under the penalty of indictment for their neglect.
The tolls are deemed an equivalent for the burden, and are deemed
exclusive because they might not otherwise afford any just indemnity. In
the very case at bar, the proprietors of Charles River Bridge (as we
have seen) are compellable to keep their draws and [p*640] bridge in
good repair during the period of seventy years, to pay an annuity to
Harvard College, to give all reasonable accommodations to the public
travel, and, if they do not, they may be grievously amerced. The burdens
being exclusively on them, must not the tolls granted by way of
remuneration (I repeat it), must they not be equally exclusive, to
insure an indemnity? Is there any analogy in such a case to the case of
a bank, or an insurance company, or a manufacturing company? The case of
Jackson v. Lamphire, 3 Pet. 280, contains no doctrine which in
the slightest degree interferes with that which I have been endeavoring
to establish in the present case. In that decision I believe that I
concurred, and I see no reason now to call in question the soundness of
that decision. That case does not pretend to inculcate the doctrine that
no implication can be made, as to matters of contract, beyond the
express terms of a grant. If it did, it would be in direct conflict with
other most profoundly considered adjudications of this Court. It
asserted only that the grant in that case carried no implication that
the grantee should enjoy the land therein granted free from any
legislative regulations to be made, in violation of the Constitution of
the State. Such an implication, so broad and so unmeasured, which might
extend far beyond any acts which could be held, in any just sense, to
revoke or impair the grant, could by no fit reasoning be deduced from
the nature of the grant. What said the Court on that occasion?
The only contract made by the State is a grant to J.C., his heirs and
assigns, of the land in question. The patent contains no covenant to do
or not to do any further act in relation to the land, and we do not, in
this case, feel at liberty to create one by implication. The State has
not, by this act, impaired the force of the grant. It does not profess
or attempt to take the land from the assigns of C. and give it to one
not claiming under him. Neither does the award produce that effect. The
grant remains in full force, the property conveyed is held by the
grantee, and the State asserts no claim to it.
But suppose the reverse had been the fact. Suppose that the State had
taken away the land and granted it to another, or asserted its own right
otherwise to impair the grant; does it not follow from this very
reasoning of the Court that it would have been held to have violated the
implied obligations of the grant? Certainly it must have been so held,
or the Court would have overturned its own most solemn judgments in
other cases. Now there is not, and cannot be, any real distinction
between a grant of land [p*641] and a grant of franchises. The
implication, in each case, must be the same, viz., that the
thing granted shall not be resumed or impaired by the grantor.
It has been further argued that, even if the charter of the Charles
River Bridge does imply such a contract on the part of the Legislature,
as is contended for, it is void for want of authority in the Legislature
to make it, because it is a surrender of the right of eminent domain,
intrusted to the Legislature and its successors for the benefit of the
public, which is not at liberty to alienate. If the argument means no
more than that the Legislature, being intrusted with the power to grant
franchises, cannot, by contract, agree to surrender or part with this
power generally, it would be unnecessary to consider the argument, for
no one supposes that the Legislature can rightfully surrender its
legislative power. If the argument means no more than that the
Legislature, having the right by the Constitution to take private
property (among which property are franchises) for public purposes,
cannot divest itself of such a right by contract, there would be as
little reason to contest it. Neither of these cases is like that before
the Court. But the argument (if I do not misunderstand it) goes further,
and denies the right of the Legislature to make a contract granting the
exclusive right to build a bridge between Charlestown and Boston, and
thereby taking from itself the right to grant another bridge between
Charlestown and Boston at its pleasure, although the contract does not
exclude the Legislature from taking it for public use, upon making
actual compensation, because it trenches upon the sovereign right of
eminent domain.
It is unnecessary to consider whether the phrase "eminent domain,"
in the sense in which it is used in the objection, is quite accurate.
The right of eminent domain is usually understood to be the ultimate
right of the sovereign power to appropriate not only the public
property, but the private property of all citizens within the
territorial sovereignty to public purposes. Vattel (B. 1, c. 20, §
244) seems so to have understood the terms, for he says that the right,
which belongs to the society, or the sovereign, of disposing, in case of
necessity, and for the public safety, of all the wealth (the property)
contained in the State is called the "eminent domain." And he
adds that it is placed among the prerogatives of majesty, which, in
another section (B. 1, c. 4, § 45), he defines to be
all the prerogatives without which the sovereign command, or authority,
[p*642] could not be exerted in the manner most conducive to the public
welfare.
The right of "eminent domain," then, does not comprehend all,
but only is among the, prerogatives of majesty. But the objection uses
the words in a broader sense, as including what may be deemed the
essential and ordinary attributes of sovereignty, such as the right to
provide for the public welfare, to open highways, to build bridges, and,
from time to time, to make grants of franchises for the public good.
Without doubt, these are proper attributes of sovereignty, and
prerogatives resulting from its general nature and functions. And so
Vattel considers them in the passage cited at the bar: B. 1, c. 9, §
100-101. But they are attributes and prerogatives of sovereignty only,
and can be exercised only by itself, unless specially delegated.
But without stopping to examine into the true meaning of phrases, it
may be proper to say that, however extensive the prerogatives and
attributes of sovereignty may theoretically be, in free governments,
they are universally held to be restrained within some limits. Although
the sovereign power in free governments may appropriate all the
property, public as well as well as private, for public purposes, making
compensation therefor, yet it has never been understood, at least, never
in our republic, that the sovereign power can take the private property
of A. and give it to B., by the right of "eminent domain," or
that it can take it at all, except for public purposes, or that it can
take it for public purposes without the duty and responsibility of
making compensation for the sacrifice of the private property of one for
the good of the whole. These limitations have been held to be
fundamental axioms in free governments like ours, and have accordingly
received the sanction of some of our most eminent judges and jurists.
Vattel himself lays them down, in discussing the question of the right
of eminent domain, as among the fundamental principles of government,
binding even upon the sovereignty itself. "If," says he,
the nation itself disposes of the public property in virtue of this
eminent domain, the alienation is valid as having been made with a
sufficient power. When it disposes in like manner, in a case of
necessity, of the possessions (the property) of a community or of an
individual, the alienation will be valid for the same reason. But
justice demands that this community or this individual be recompensed
out of the public money, and if the treasury is not able to pay, all the
citizens are obliged to contribute to it. [p*643] Vattel, b. 1, c. 20, §
244. They have also been incorporated into most of our State
constitutions, and into that of the United States, and, what is most
important to the present argument, into the State Constitution of
Massachusetts. So long as they remain in those constitutions, they must
be treated as limitations imposed by the sovereign authority upon
itself, and, a fortiori, upon all its delegated agents. The
Legislature of Massachusetts is in no just sense sovereign. It is but
the agent, with limited authority, of the State sovereignty, and it
cannot rightfully transcend the bounds fixed in the Constitution. What
those limits are, I shall presently consider. It is but justice to the
argument to say that I do not understand it to maintain that the
Legislature ought not, in all cases, as a matter of duty, to give
compensation where private property or franchises are taken away. But
that the Legislature is the final judge as to the time, the manner, and
the circumstances under which it should be given or withheld, whether
when the property is taken or afterwards, and whether it is or is not a
case for compensation at all.
But let us see what the argument is in relation to sovereignty in
general. It admits that the sovereign power has, among its prerogatives,
the right to make grants, to build bridges, to erect ferries, to lay out
highways, and to create franchises for public and private purposes. If
it has a right to make such grants, it follows that the grantees have a
right to take and to hold these franchises. It would be a solecism to
declare that the sovereign power could grant, and yet no one could have
a right to take. If it may grant such franchises, it may define and
limit the nature and extent of such franchises, for, as the power is
general, the limitations must depend upon the good pleasure and
discretion of the sovereign power in making the particular grant. If it
may prescribe the limits, it may contract that these limits shall not be
invaded by itself or by others.
It follows from this view of the subject that, if the sovereign power
grants any franchise, it is good and irrevocable within the limits
granted, whatever they may be, or else, in every case, the grant will be
held only during pleasure, and the identical franchise may be granted to
any other person, or may be revoked at the will of the sovereign. This
latter doctrine is not pretended, and, indeed, is unmaintainable in our
systems of free government. If, on the other hand, the argument be sound
that the sovereign power cannot grant a franchise, to be exclusive
within certain limits, and cannot contract [p*644] not to grant the same
or any like franchise within the same limits to the prejudice of the
first grant, because it would abridge the sovereign power in the
exercise of its right to grant franchises, the argument applies equally
to all grants of franchises, whether they are broad or narrow, for, pro
tanto, they do abridge the exercise of the sovereign power to grant the
same franchise within the same limits. Thus, for example, if the
sovereign power should expressly grant an exclusive right to build a
bridge over navigable waters between the towns of A. and B., and should
expressly contract with the grantees that no other bridge should be
built between the same towns, the grant would, upon the principles of
the argument, be equally void in regard to the franchise within the
planks of the bridge,as it would be in regard to the franchise, outside
of the planks of the bridge, for, in each case, it would, pro tanto,
abridge or surrender the right of the sovereign to grant a new bridge
within the local limits. I am aware that the argument is not pressed to
this extent, but it seems to me a necessary consequence flowing from it.
The grant of the franchise of a bridge twenty feet wide, to be exclusive
within those limits, is certainly, if obligatory, an abridgment or
surrender of the sovereign power to grant another bridge within the same
limits if we mean to say that every grant that diminishes the things
upon which that power can rightfully act, is such an abridgment. Yet the
argument admits that, within the limits and planks of the bridge itself,
the grant is exclusive and cannot be recalled. There is no doubt that
there is a necessary exception in every such grant that, if it is wanted
for public use, it may be taken by the sovereign power for such use upon
making compensation. Such a taking is not a violation of the contract,
but it is strictly an exception resulting from the nature and attributes
of sovereignty, implied from the very terms, or at least acting upon the
subject matter of the grant, suo jure.
But the Legislature of Massachusetts is, as I have already said, in no
just sense the sovereign of the State. The sovereignty belongs to the
people of the State, in their original character as an independent
community, and the Legislature possesses those attributes of
sovereignty, and those only, which have been delegated to it by the
people of the State under its Constitution. There is no doubt that among
the powers so delegated to the Legislature is the power to grant the
franchises of bridges and ferries, and others of a like nature. The
power to grant is not limited by [p*645] any restrictive terms in the
Constitution, and it is, of course, general and unlimited as to the
terms, the manner, and the extent of granting franchises. These are
matters resting in its sound discretion, and, having the right to grant,
its grantees have a right to hold according to the terms of their grant
and to the extent of the exclusive privileges conferred thereby. This is
the necessary result of the general authority upon the principles
already stated.
But this doctrine does not stand upon general reasoning alone. It is
directly and positively affirmed by all the judges of the State court
(the true and rightful expositors of the State Constitution) in this
very case. All of them admit that the grant of an exclusive franchise of
this sort, made by the Legislature, is absolutely obligatory upon the
Legislature, and cannot be revoked or resumed, and that it is a part of
the contract implied in the grant that it shall not be revoked or
resumed, and that, as a contract, it is valid to the extent of the
exclusive franchise granted. So that the highest tribunal in the State
which is entitled to pass judgment on this very point has decided
against the soundness of the very objection now stated, and has affirmed
the validity and obligation of such a grant of the franchise. The
question among the learned judges was not, whether the grant was valid
or not, for all of them admitted it to be good and irrevocable. But the
question was what was, in legal construction, the nature and extent of
the exclusive franchise granted. This is not all. Although the
Legislature have an unlimited power to grant franchises, by the
Constitution of Massachusetts, they are not intrusted with any general
sovereign power to recall or resume them. On the contrary, there is an
express prohibition in the bill of rights in that Constitution
restraining the Legislature from taking any private property except upon
two conditions: first, that it is wanted for public use, and secondly
that due compensation is made. So that the power to grant franchises,
which are confessedly property, is general, while the power to impair
the obligation of the grant and to resume the property is limited. An
act of the Legislature transcending these bounds is utterly void, and so
it has been constantly held by the State judges. The same doctrine has
been maintained by this Court on various occasions, and especially, in
Fletcher v. Peck, 6 Cranch 146, and in Trustees of Dartmouth
College v. Woodward, 4 Wheat. 518.
Another answer to the argument has been, in fact, already given. It is
that, by the grant of a particular franchise, the Legislature does
[p*646] not surrender its power to grant franchises, but merely parts
with its power to grant the same franchise, for it cannot grant that
which it has already parted with. Its power remains the same, but the
thing on which it can alone operate is disposed of. It may, indeed, take
it again for public uses, paying a compensation. But it cannot resume
it, or grant it to another person, under any other circumstances or for
any other purposes. In truth, however, the argument itself proceeds upon
a ground which the Court cannot act upon or sustain. The argument is
that, if the State Legislature makes a grant of a franchise exclusive,
and contracts that it shall remain exclusive within certain local
limits, it is an excess of power, and void as an abridgment or surrender
of the right of sovereignty under the State Constitution. But this is a
point over which this Court has no jurisdiction. We have no right to
inquire, in this case, whether a State law is repugnant to its own
Constitution, but only whether it is repugnant to the Constitution of
the United States. If the contract has been made, we are to say whether
its obligation has been impaired, and not to ascertain whether the
Legislature could rightfully make it. Such was the doctrine of this
Court in the case of Jackson v. Lamphire, already cited. 3 Pet.
280-289. But the conclusive answer is that the State judges have already
settled that point, and held the present grant a contract to be valid to
the extent of the exclusive limits of the grant, whatever they are.
To sum up, then, the whole argument on this head: I maintain that, upon
the principles of common reason and legal interpretation, the present
grant carries with it a necessary implication that the Legislature shall
do no act to destroy or essentially to impair the franchise, that (as
one of the learned judges of the State court expressed it) there is an
implied agreement that the State will not grant another bridge between
Boston and Charlestown, so near as to draw away the custom from the old
one, and (as another learned judge expressed it) that there is an
implied agreement of the State to grant the undisturbed use of the
bridge and its tolls so far as respects any acts of its own or of any
persons acting under its authority. In other words, the State impliedly
contracts not to resume its grant or to do any act to the prejudice or
destruction of its grant. I maintain that there is no authority or
principle established in relation to the construction of Crown grants,
or legislative grants, which does not concede and justify this doctrine.
Where the thing is given, [p*647] the incidents, without which it cannot
be enjoyed, are also given, ut res magis valeat quam pereat. I maintain
that a different doctrine is utterly repugnant to all the principles of
the common law, applicable to all franchises of a like nature, and that
we must overturn some of the best securities of the rights of property
before it can be established. I maintain that the common law is the
birthright of every citizen of Massachusetts, and that he holds the
title deeds of his property, corporeal and incorporeal, under it. I
maintain that, under the principles of the common law, there exists no
more right in the Legislature of Massachusetts to erect the Warren
Bridge, to the ruin of the franchise of the Charles River Bridge, than
exists to transfer the latter to the former, or to authorize the former
to demolish the latter. If the Legislature does not mean in its grant to
give any exclusive rights, let it say so expressly, directly, and in
terms admitting of no misconstruction. The grantees will then take at
their peril, and must abide the results of their overweening confidence,
indiscretion, and zeal.
My judgment is formed upon the terms of the grant, its nature and
objects, its designs and duties; and, in its interpretation, I seek for
no new principles, but I apply such as are as old as the very rudiments
of the common law.
But if I could persuade myself that this view of the case were not
conclusive upon the only question before this Court, I should rely upon
another ground which, in may humble judgment, is equally decisive in
favor of the plaintiffs. I hold that the plaintiffs are the equitable
assignees (during the period of their ownership of the bridge) of the
old ferry, belonging to Harvard College, between Charlestown and Boston,
for a valuable consideration, and, as such assignees, they are entitled
to an exclusive right to the ferry, so as to exclude any new bridge from
being erected between those places during that period. If Charles River
Bridge did not exist, the erection of Warren Bridge would be a nuisance
to that ferry, and would, in fact, ruin it. It would be exactly the case
of Chadwick v. Proprietors of the Haverhill Bridge, which,
notwithstanding all I have heard to the contrary, I deem of the very
highest authority. But, independently of that case, I should arrive at
the same conclusion, upon general principles. The general rights and
duties of the owners of the ferries at the common law were not disputed
by any of the learned judges in the State court to be precisely the same
in Massachusetts as in England. I shall not, therefore, attempt to go
over [p*648] that ground with any further illustrations than what have
already, in another part of this opinion, been suggested. I cannot
accede to the argument that the ferry was extinguished by operation of
law, by the grant of the bridge and the acceptance of the annuity. In my
judgment, it was indispensable to the existence of the bridge as to its
termini that the ferry should be deemed to be still a subsisting
franchise, for otherwise, the right of landing on each side would be
gone. I shall not attempt to go over the reasoning by which I shall
maintain this opinion, as it is examined with great clearness and
ability by Mr. Justice Putnam, in his opinion in the State court, to
which I gladly refer as expressing mainly all my own views on this
topic. Indeed, there is, in the whole of that opinion, such masculine
vigor, such a soundness and depth of learning, such a forcible style of
argumentation and illustration, that, in every step of my own progress,
I have sedulously availed myself of his enlightened labors. For myself,
I can only say that I have as yet heard no answer to his reasoning, and
my belief is that, in a judicial sense, it is unanswerable.
Before I close, it is proper to notice, and I shall do it briefly,
another argument strongly pressed at the bar against the plaintiffs, and
that is that the extension of the term of the franchise of the
plaintiffs for thirty years, by the Act of 1792 (erecting the West
Boston bridge, between Boston and Cambridge), and the acceptance thereof
by the plaintiffs, amounted to a surrender or extinguishment of their
exclusive franchise, if they ever had any, to build bridges over Charles
River, so that they are barred from now setting it up against the Warren
Bridge. In my judgment, there is no foundation whatsoever, either in law
or in the facts, to sustain this objection. If any legitimate conclusion
be deducible from the terms of that act, it is that the plaintiffs, if
they had claimed any such exclusive right over the whole river, would,
by their acceptance of the new term of years, have been estopped to
claim any damages done to their franchise by the erection of West Boston
bridge, and that their consent must be implied to its erection. But
there is no warrant for the objection in any part of the language of the
act. The extension of the term is not granted upon any condition
whatsoever. No surrender of any right is asked or required. The clause
extending the term purports, in its face, to be a mere donation or
bounty of the Legislature, founded on motives of public liberality and
policy. It is granted expressly as an encouragement to enterprise, and
as a compensation [p*649] for the supposed diminution of tolls, which
West Boston bridge would occasion to Charles River Bridge, and in no
manner suggests any sacrifice or surrender of right whatsoever to be
made by the plaintiffs. In the next place, the erection of West Boston
bridge was no invasion whatsoever of the franchise of the plaintiffs.
Their right, as I have endeavored to show, was limited to a bridge, and
the travel between Charlestown and Boston, and did not extend beyond
those towns. West Boston bridge was between Boston and Cambridge, at the
distance of more than a mile by water, and by land of nearly three
miles, and as the roads then ran, the line of travel for West Boston
bridge would scarcely ever, perhaps never, approach nearer than that
distance to Charles River Bridge. The grant, therefore, could not have
been founded in any notion of any surrender or extinguishment of the
exclusive franchise of the plaintiffs, for it did not reach to such an
extent, it did not reach Cambridge, and never had reached it.
As to the
report of the committee on the basis of which the West Boston bridge was
granted, it has, in my judgment, no legal bearing on the question. The
committee say that they are of opinion that the Act of 1785 did not
confer "an exclusive grant of the right to build over the waters of
Charles River." That is true, and it is equally true that the
plaintiffs never asserted, or pretended to have, any such right. In
their remonstrance against the erection of West Boston bridge, they
assert no such right, but they put themselves upon mere equitable
considerations, addressing themselves to the sound discretion of the
Legislature. If they had asserted such a broad right, it would not
justify any conclusion that they were called upon to surrender, or did
surrender, their real and unquestionable rights. The Legislature
understood itself to be granting a boon, and not making a bargain or
asking a favor. It was liberal, because it meant to be just, in a case
of acknowledged hazard, and of honorable enterprise very beneficial to
the public. To suppose that the plaintiffs meant to surrender their
present valuable and exclusive right of franchise for thirty-four
remaining years, and to put it in the power of the Legislature, the next
day, or the next year, to erect a bridge, toll or free, which, by its
contiguity should ruin theirs, or take away all their profits, is a
supposition, in my judgment, truly extravagant, and without a scintilla
of evidence to support it. The burdens of maintaining the bridge were to
remain; the payment of the annuity to Harvard College was to remain; and
yet, upon this [p*650] supposition, the extension of the term of their
charter, granted in the shape of a bounty, would amount to a right to
destroy the franchise the next day, or the next hour, at the pleasure of
the Legislature. I cannot perceive upon what ground such an implication
can be made, an implication not arising from any words or intent
expressed on the face of the act or fairly inferrible from its purposes,
and wholly repugnant to the avowed objects of the grant, which are to
confer a benefit, and not to impose an oppressive burden, or create a
ruinous competition.
Upon the whole, my judgment is that the act of the
Legislature of Massachusetts granting the charter of Warren Bridge is an
act impairing the obligation of the prior contract and grant to the
proprietors of Charles River Bridge, and, by the Constitution of the
United States, it is therefore utterly void. I am for reversing the
decree to the State court (dismissing the bill), and for remanding the
cause to the State court for further proceedings, as to law and justice
shall appertain.
1. S.P. in Attorney-General v. Sitwell, 1 Younge's Rep.
583.
2. See Proprietors of Charles River Bridge, 7 Pick.R. 344. |
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