The opinion of the court was delivered by
Redfield, J.
The only question arising in the present case, is, as to the constitutionality of the statute of 1839, authorizing the supreme and county courts, in the state, to [749]*749take the franchise, or easement, of any turnpike corporation, when, in their judgment, the public good requires a public highway over such easement, or the land in which such easement exists.
It is now too late in the day, and the law upon this subject is too far settled, to go into the discussion of elementary principles. No one now questions the right of the highest judicial tribunal in a state to declare an act of the legislature void, when its provisions conflict, either with the state or the United States constitution. On the other hand, it is, at this day, I apprehend, equally well settled, that no court can pronounce any act of the legislature void, for any supposed inequality or injustice in its intention, or its operation; provided it be upon a subject-matter fairly within the scope of legislative authority, and the provisions of the law be general. Hence it is true, no doubt, that the legislature, by general enactments, might tax any given species of property, either private or corporate, to the full value of the property itself; for the power of taxation, when once conceded to the legislature, over any given subject, “ implies the power of destruction ” even, as was declared by the court in the case af M’Culloch v. The State of Maryland, 4 Wheaton, 316. And the legislature having, in the present case, referred the question of discretion, as to the necessity of taking the franchise, to the courts, can make no difference, so far as regards the present question.
The only question which we now propose to consider is the power of the legislature to take the road of a turnpike company, for a public highway, upon making adequate compensation. This is the first time this court have been called upon to discuss this naked question. But similar questions have been before us, arising under the same act; and the question has, of late, been so fully discussed, both in the national and state tribunals, that little more remains for determination, unless we are prepared to disregard the aid and authority of those numerous determinations which have so commended themselves to the learning of the profession and the good sense of the public generally, that one, who should now attempt to run' counter to their general current, might incur the imputation of rash, self-confidence, if not the suspicion of foolhardiness, even. This is not said as a justifica[750]*750tion for an opinion, which is esteemed questionable in its principles, but as an excuse for foregoing the labor of an ex- " tended discussion of the foundation of those principles, which is much better done in the cases which will be referred to. .In all cases of constitutional law, the determinations of the state tribunals, upon similar questions, are entitled to very great weight; but, in a case like the present, where the act is alleged to contravene the provisions of the United States constitution, the decisions of the national tribunals, upon the point, are of paramount authority. We come, then, to a brief consideration of the question involved, upon the grounds thus indicated.
It is not claimed, I apprehend, as I have before said, that there is any power in this court to declare the statute in question void, except so far as it shall be found fairly and necessarily to conflict with some express or necessarily implied provision, either of the state or United States constitution. It is not claimed that this statute does conflict with any such provision of the state constitution, or with any portion of the United States constitution, unless it be that which prohibits the states from passing any “ law impairing the obligation of contracts.” Art. I., sec. 10. The general power of the legislature to take private property for public-uses, upon making adequate compensation, is universally conceded, and seems to be expressly granted by our “ declaration of rights,” part first, state constitution, article two: “ That private property ought to be subservient to public ‘ uses, when necessity requires it; nevertheless, whenever ‘ any person’s property is taken for the use of the public, the ‘ owner ought to receive an equivalent in money.”
It has never been questioned, that the legislature had the full power to take private property for the purpose of public highways. They may grant this power to a private corporation, as was done to the defendants. It is now settled, in most of the states, that this privilege may be granted to a rail-road corporation, which is considered but an improved mode of constructing highways. Bonaparte v. C. & A. Rail Road Co. 1 Baldwin’s C. C. R. 205; Rail Road Co. v. Davis, 2 Dev. & Bott’s North C. R. 451; Bloodgood v. Mohawk & H. R. R. Co. 14 Wend. R. 51, and same case again 18 Wend. 1; Louisville C. H. R. R. Co. v. Chappel, [751]*7511 Rice’s S'. C. R. 383. But it is argued that such a grant, when once made to a private corporation, is a contract, irrevocable, and inviolable. No doubt it is such, just as much, and no more, than was the original grant of the land. All land is, in fee, the property of the sovereignty. Originally it forms a portion of the public domain, until parcelled out to private persons, either natural or artificial. All such grants are contracts, irrevocable, and inviolable. Hence if there be a condition, beneficial to such grantees, annexed to the grant, as, for instance, that such land shall be forever exempt from taxes, this exemption becomes perpetual. State of New Jersey v. Wilson, 2 Pet. Cond. R. 457; Herrick v. Randolph, 13 Vt. R. 525. The same is true of the grant of any corporate franchise. But there is no sound reason why the one case of grants should be esteemed any more sacred than the other. Both classes of grants are always understood to be made subject to those reserved rights in the state which are indispensable to state sovereignty. For instance, the grant of the fee in land to private persons does not authorize them to exercise any of the acts of sovereignty, as such, even within the bounds of their own territory, or of resisting the proper sovereign in the exercise of those rights. Those reserved rights of sovereignty, which, by law writers, are denominated the right of eminent domain, always exist as a condition, or implied reservation, in all these grants, whether of lands in fee, or of corporate franchises.
While, on the one hand, it is admitted, that 'no grant of the legislature, of either of the above descriptions, can be revoked or repealed in express terms, it must be conceded, that this right of eminent domain will always enable the legislature to take the benefit of the grant from the grantees, for publicase. But this is one of those rights of sovereignty, which, to be of any avail, must be genera] and unlimited, and when it is remembered that it cannot be done without the “ owner receiving an equivalent in money,” and that the legislature are always exercising it by general Jaws, and upon their own constituents, there is but little danger of abuse. Hence, it was decided in the case of Charles River Bridge v. Warren’s Bridge, 11 Peter’s R.
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The opinion of the court was delivered by
Redfield, J.
The only question arising in the present case, is, as to the constitutionality of the statute of 1839, authorizing the supreme and county courts, in the state, to [749]*749take the franchise, or easement, of any turnpike corporation, when, in their judgment, the public good requires a public highway over such easement, or the land in which such easement exists.
It is now too late in the day, and the law upon this subject is too far settled, to go into the discussion of elementary principles. No one now questions the right of the highest judicial tribunal in a state to declare an act of the legislature void, when its provisions conflict, either with the state or the United States constitution. On the other hand, it is, at this day, I apprehend, equally well settled, that no court can pronounce any act of the legislature void, for any supposed inequality or injustice in its intention, or its operation; provided it be upon a subject-matter fairly within the scope of legislative authority, and the provisions of the law be general. Hence it is true, no doubt, that the legislature, by general enactments, might tax any given species of property, either private or corporate, to the full value of the property itself; for the power of taxation, when once conceded to the legislature, over any given subject, “ implies the power of destruction ” even, as was declared by the court in the case af M’Culloch v. The State of Maryland, 4 Wheaton, 316. And the legislature having, in the present case, referred the question of discretion, as to the necessity of taking the franchise, to the courts, can make no difference, so far as regards the present question.
The only question which we now propose to consider is the power of the legislature to take the road of a turnpike company, for a public highway, upon making adequate compensation. This is the first time this court have been called upon to discuss this naked question. But similar questions have been before us, arising under the same act; and the question has, of late, been so fully discussed, both in the national and state tribunals, that little more remains for determination, unless we are prepared to disregard the aid and authority of those numerous determinations which have so commended themselves to the learning of the profession and the good sense of the public generally, that one, who should now attempt to run' counter to their general current, might incur the imputation of rash, self-confidence, if not the suspicion of foolhardiness, even. This is not said as a justifica[750]*750tion for an opinion, which is esteemed questionable in its principles, but as an excuse for foregoing the labor of an ex- " tended discussion of the foundation of those principles, which is much better done in the cases which will be referred to. .In all cases of constitutional law, the determinations of the state tribunals, upon similar questions, are entitled to very great weight; but, in a case like the present, where the act is alleged to contravene the provisions of the United States constitution, the decisions of the national tribunals, upon the point, are of paramount authority. We come, then, to a brief consideration of the question involved, upon the grounds thus indicated.
It is not claimed, I apprehend, as I have before said, that there is any power in this court to declare the statute in question void, except so far as it shall be found fairly and necessarily to conflict with some express or necessarily implied provision, either of the state or United States constitution. It is not claimed that this statute does conflict with any such provision of the state constitution, or with any portion of the United States constitution, unless it be that which prohibits the states from passing any “ law impairing the obligation of contracts.” Art. I., sec. 10. The general power of the legislature to take private property for public-uses, upon making adequate compensation, is universally conceded, and seems to be expressly granted by our “ declaration of rights,” part first, state constitution, article two: “ That private property ought to be subservient to public ‘ uses, when necessity requires it; nevertheless, whenever ‘ any person’s property is taken for the use of the public, the ‘ owner ought to receive an equivalent in money.”
It has never been questioned, that the legislature had the full power to take private property for the purpose of public highways. They may grant this power to a private corporation, as was done to the defendants. It is now settled, in most of the states, that this privilege may be granted to a rail-road corporation, which is considered but an improved mode of constructing highways. Bonaparte v. C. & A. Rail Road Co. 1 Baldwin’s C. C. R. 205; Rail Road Co. v. Davis, 2 Dev. & Bott’s North C. R. 451; Bloodgood v. Mohawk & H. R. R. Co. 14 Wend. R. 51, and same case again 18 Wend. 1; Louisville C. H. R. R. Co. v. Chappel, [751]*7511 Rice’s S'. C. R. 383. But it is argued that such a grant, when once made to a private corporation, is a contract, irrevocable, and inviolable. No doubt it is such, just as much, and no more, than was the original grant of the land. All land is, in fee, the property of the sovereignty. Originally it forms a portion of the public domain, until parcelled out to private persons, either natural or artificial. All such grants are contracts, irrevocable, and inviolable. Hence if there be a condition, beneficial to such grantees, annexed to the grant, as, for instance, that such land shall be forever exempt from taxes, this exemption becomes perpetual. State of New Jersey v. Wilson, 2 Pet. Cond. R. 457; Herrick v. Randolph, 13 Vt. R. 525. The same is true of the grant of any corporate franchise. But there is no sound reason why the one case of grants should be esteemed any more sacred than the other. Both classes of grants are always understood to be made subject to those reserved rights in the state which are indispensable to state sovereignty. For instance, the grant of the fee in land to private persons does not authorize them to exercise any of the acts of sovereignty, as such, even within the bounds of their own territory, or of resisting the proper sovereign in the exercise of those rights. Those reserved rights of sovereignty, which, by law writers, are denominated the right of eminent domain, always exist as a condition, or implied reservation, in all these grants, whether of lands in fee, or of corporate franchises.
While, on the one hand, it is admitted, that 'no grant of the legislature, of either of the above descriptions, can be revoked or repealed in express terms, it must be conceded, that this right of eminent domain will always enable the legislature to take the benefit of the grant from the grantees, for publicase. But this is one of those rights of sovereignty, which, to be of any avail, must be genera] and unlimited, and when it is remembered that it cannot be done without the “ owner receiving an equivalent in money,” and that the legislature are always exercising it by general Jaws, and upon their own constituents, there is but little danger of abuse. Hence, it was decided in the case of Charles River Bridge v. Warren’s Bridge, 11 Peter’s R. 539, that the legislature might grant a free bridge parallel with, and as near, as they judged the public good required, to toll bridges formerly [752]*752granted by them, and this upon their general powers, without an assertion of the right of eminent domain in the land, out of which the franchise was granted, and of course, without compensation. After this decision, which, in regard to .the United States constitution, must be considered a binding authority, it surely cannot be doubted, that the legislature have the right to take the franchise, upon making a full equivalent to the corporation. This latter course seems to me to be the true one. It cannot escape the observation of any one that the lapse of almost half a century, since the grant of this franchise, must have made a very considerable difference in the public wants, and the public claims to an open highway. If this franchise is not absolutely perpetual and uncontrollable, the time has doubtless come for the legislature to assert its right to interfere, and establish such a highway as the public exigencies now require. And in doing it, in this mode, there is no appearance of quibbling, or evasion, or of injustice and severity, which, whatever may be thought by the learned of the soundness of the decision last quoted, 11 Peters, 539, will be likely to be objected to it by plain, simple, unsophisticated, and unprejudiced minds. It is no doubt a sound legal decision, and the only one the court could have pronounced; but, unfortunately, it is not easy to assign reasons which very strongly commended themselves to our sense of justice. We are apt, in that case, to confound the decision of the court with the act of the legislature. While all now admit that the decision is sound and the act constitutional, it is, nevertheless, a precedent in legislation, that will not be likely to be often followed, and never, except in the most extreme cases. The present case is free from all show either of injustice or severity.
The report is accepted, and the road established and ordered to be opened, and the damages and costs paid in one year.