Chenango Bridge Co. v. Binghamton Bridge Co.

26 How. Pr. 297

• Court: New York Court of Appeals
• Decided: January 15, 1864
• Status: Published

Opinion

Emott, J. (dissenting).

That the Chenango Bridge Co., which was created by act of the legislature passed April 1st, 1808, became vested with all the rights and privileges which had been previously conferred upon the Susquehannah Bridge Company by the 30th section of the act of April 6th, 1805, is sufficiently plain to need but little argument or remark. By the act of 1805 the Susquehannah Bridge Company was incorporated for the purpose of building a bridge over the Susquehannah river near what was then known as Oquago in the county of Tioga, and also another bridge across the Chenango river at Chenango Point, where the village of Binghamton has since grown up. The act of 1808 divided as it were the corporation into two. Its original capital was $20,000, and it was authorized, as I have mentioned, to erect and maintain two bridges, one over each of the rivers specified. It was now restricted under its original name and corporation to the building and maintaining one of the bridges which were included within the original design, that over the Susquehannah river, and its capital was reduced to $10,000, one-half of the .original amount. At the same time its stockholders, with any others who might associate with them, were created a new body corporate under the name of the Chenango Bridge Company, with the power and right -exclusive of the parent organization to build and maintain the Chenango bridge. The remaining $10,000, or one-half of the capital originally authorized, was set apart and designated as the capital of the new corporation, and the corporation was declared to exist under all the provisions, regulations, restrictions, clauses and provisions, of the Susquehannah Bridge Company's charter. The obvious meaning and the effect of this was to create a new corporation with all the powers, duties and liabilities which attached to that from which it sprang, at the time of its creation, subject only to such modifications or interpretations of those powers as would be incident to the distinct object of the new company. It is contended that this did not confer upon the appellants the powers and privileges which were given to the Susquehannah company by the act of 1808 itself, but only such as belonged to the latter by its original charter, and before the passage of the act which divided the original company into two corporations. But this would be a narrow and an unreasonable construction of the act. The legislature incorporated the Susquehannah company anew in 1808, changing materially not only the object but the conditions and character of its existence, and it at the same time chartered the Chenango Bridge Company for a purpose which had been included within the design of the original charter of the Susquehannah Company, but was now excluded from its powers. It would not be contended that both companies were authorized -to bridge the Chenango river, or that the new 'Company had any right to bridge the Susquehannah. The act of 1808 in conferring upon the Chenango company the same rights 'as were possessed by the before mentioned Susquehannah Bridge Company, referred to the amended corporation which was the creation or result of the amendment made in the original charter of that company by the act itself. It is the Susquehannah Bridge Company then and there created and referred to in the act itself whose powers and privileges are conferred mutatus mutandis upon the Chenango Bridge Company. It does not, therefore, admit of any doubt to my mind that the Chenango Bridge Company has perpetual succession without the limitation of 30 years, which was originally imposed upon the parent company, but was removed by the act of 1808, and-that the Chenango bri'dge might be built at any time within four years from the passage of this act instead of being required to be completed by the 1st of December, 1809, which was required of the Delaware bridges, and as it is contended if not conceded of the Susquehannah bridge in like manner by the act of 1805.

As the next step in the present discussion we must go back and examine the effect of the two statutes of 1805 and 1808 upon the Susquehannah Bridge pompany, and especially the construction of the 38th section of the former statute in reference to the privileges of that corporation. The act of 1805 incorporated the Delaware Bridge Company with specific and enumerated powers, privileges and restrictions, and with all necessary regulations for its corporate existence and management. Then the 38th section of the act created the Susquehannah Bridge Company, and invested it with “all and singular the powers, rights, privileges, immunities and advantages, and declared that it shall be subject to all the duties, regulations, restraints and penalties which are contained, in the foregoing incorporation of the Delaware Bridge Company, and adds that all and singular the provisions, sections and clauses thereof, not inconsistent with the particular provisions herein contained, shall be and hereby.are fully extended to the president and directors of this incorporation. This single section of the act is the entire charter of the Susquehanna company, and it contains nothing beside the provisions which I have quoted, except a designation of commissioners to receive subscriptions to the stock, and regulations as to the toll on each of the bridges which the company .were originally authorized to build, that is, the Susquehannah and the Chenango bridges respectively. It is very plain that the charter of the Susquehannah Bridge Company was the law incorporating the Delaware Bridge Company applied to the first named corporation, and modified if necessary to adapt it to its circumstances and design. The language conferring upon the one the powers and duties of the other is as full and comprehensive, and as distinct as can be imagined, and it is given in the place of any enumeration of powers or duties in respect to the Susquehannah company specially. Whatever, therefore, and all which is contained in the act incorporating the Delaware Bridge Company, which is not inconsistent with or inapplicable to the Susquehannah company is as much a part of the charter of the latter as if it had been expressly enacted in reference to it. One or two considerations growing out of the act of 1808, will make this still plainer if it were necessary. The act of 1808 while it continued the Susquehannah company in existence as a corporation, not only limited its powers and purposes to bridging the Susquehannah river only, but removed the limitation of its existence to 30 years, and gave it perpetual succession. This is an express provision of the act. But the limitation is found not in the 38th section of the act of 1805, which expressly relates to the Susquehannah company, but in that portion of the act relating to the Delaware company, and is made a part of the charter of the Susquehannah company'solely by the language which I have quoted which inserts into the charter of the one, this provision contained in that of the other. So also the Delaware company were bound to erect their bridges within a certain time. This also was considered by the legislature to have become a- part of the organic law of the Susquehannah company, since.the act of 1808 expressly released the latter from this obligation also, and extended the time within which their bridge was to be constructed. It should be observed also with reference to this latter provision that in the original charter of the Delaware company it is coupled with or immediately followed by a provision that upon the completion of their bridge in the manner and within the time specified it should be inspected by the judges of the court of common pleas of Delaware county, and - upon their certifying to the company’s compliance with the act, and not otherwise nor before, toll might be taken. So far as this conferred powers or duties upon the judge of Delaware county it was not applicable to the Susquehannah or Chenango bridges, which were in other counties, and yet the requirements of the act as to the time and mode of erection of the structures have been conceded on all hands to apply as well to the latter as to their prototypes.

The main question in this part of the case, and that upon which the supreme court decided the controversy against the plaintiffs, is the question whether the first clause of the 31st section of the act of 1805 being a part of that act relating to the Delaware Bridge Company is made applicable to and a part of the charter of the Susquehannah company by the words of the 38th section already quoted. The 31st section enacts “ that it shall not be lawful for any person or persons to erect any bridge or establish any ferry across the said west and east branches of the Delaware river within two miles either above or below the bridges to be erected and maintained in pursuance of this act, except between the times the said bridges or either of them shall not be passable, or forcibly to pass the said bridges or either of them without having previously paid to the toll gatherers for the use of said corporation, the toll hereby established for crossing said bridges. The section proceeds to give a penalty and an action to recover it for passing the bridges without paying toll, and it adds a proviso that any person may cross the river within the forbidden limits to or from his own land, in his own craft, without toll. The effect of this provision as to the Delaware company is to confer upon them the privilege of excluding all other persons or corporations from bridging or ferrying for hire across the rivers which they proposed to bridge for a distance of two miles on each side' of their bridges. It is as if the legislature had said to the Delaware company, we authorize you to build two bridges over certain rivers, and we give you the privilege of excluding all other bridges or ferries for two miles on each side of each of your bridges. Whether this was merely a privilege to last until the legislature removed the bar or exclusion, or operated as a grant and a contract against subsequent invasion of their privileges even by legislation will be hereafter considered. Assuming at present for this argument that it was the latter, and it was manifestly no unimportant part of the privileges, immunities and advantages of the Delaware company. The power to exclude competition within certain limits was hardly less valuable to them than the power to compel the payment of tolls by the exaction and enforcement of a penalty. It will not be denied that the 38th section of the act makes the latter clause or provision applicable to the Susquehannah company, or that they could by virtue of it prosecute and recover a penalty for crossing their bridge or bridges without paying the toll. After careful consideration I am unable to see why the right to exclude all other bridges for a certain distance is not in like manner conferred upon the Susquehannah company. It is true that the words of a grant of privilege to a corporation in derogation of the rights or interests of the public must be strictly construed, and nothing passes but what is explicitly granted. (See 1 Black, U. S. R. 446). But this is a rule which has but a remote application here, or certainly is not decisive,of the present dispute. We are to determine this question by our apprehension of the intention of the legislature and the meaning of their words used in the act of 1805. , If their language by a natural and obvious construction imports the grant of this exclusive privilege, it is but % slight argument against such a construction of it, that it appears after the lapse of fifty years that such a grant is now opposed to public convenience. No such public convenience was affected by the grant when it was made, nor can we presume that the legislature foresaw or supposed that it ever would be. The growth and development of this beautiful and flourishing region of the state, which is now a part of our history as well as matter of observation, was then hardly imagined by any one. The necessity which the legislature saw and the object which they evidently sought to accomplish was to secure the construction of one bridge and not to provide against an interference with a damped .by the public convenience for more. It can hardly Be supposed that the possibility of such a demand was within their contemplation at all. The argument, however, must proceed here upon the intention of the legislature at the time, and the actual consequences of their action at a remote period while they may prove that the legislation in question was unwise, can hardly show what that legislation really was or was intended to be. It is undisputed that the clause in question is a part of the privileges of the Delaware Bridge Company. It is expressly declared by the legislature that the same privileges which they obtain shall belong to their associate company, so far as they are applicable. The question then is whether this privilege of the Delaware Bridge Company is consistent with the nature and circumstances of the Susquehannah company, and applicable to the bridges of the latter. It was argued that it was not applicable to the present plaintiffs, the Chenango company, because the Chenango river is a single stream, while the act is applicable and refers to the two branches of the Delaware. But the question really is whether the privilege was conferred upon the Susquehannah company the parent of the plaintiffs, and the circumstances of this company nearly resemble those of the Delaware. Like the latter company, the Susquehannah Bridg'e Company was incorporated to bridge two streams. The Delaware company was to bridge the east fork and the west fork of the Delaware, two distinct structures widely distant, and the other company was in like manner to bridge the Susquehannah and the Chenango. If there would be any force in the argument applied to a direct succession of the Chenango Bridge Company to the privileges of the Delaware company, because the act conferring these privileges upon the latter refers to two streams and their bridge, while there is but one over the Chenango, the argument loses all its force, by reason of the fact that the title of the latter corporation is derived through the Susquehannah company, which resembled the Delaware company, exactly in the •point under consideration. Nor do I find any difficulty in the fact that the Chenango river terminates its separate existence by a junction with the Susquehannah less than two miles below the plaintiffs’ bridge. Whether the restriction against other bridges for two miles across the river bridged by the plaintiffs, will extend to and include the greater stream into which it is merged within that distance, or whether if only extends to the mouth of the Chenango, is a question which we need not answer at present. If the restriction in question is applicable to the plaintiffs and to the river which their bridge crosses, it will extend up and down that stream two miles so far as its existence will be recognized, and it is not inconsistent with the existence or applicability of such a privilege for the specified distance in one direction, that the river does not run or is not recognized for a similar distance from the plaintiffs’ bridge in the other. It is not material to the present question if the plaintiffs’ bridge is so near the mouth of the river that there cannot be two miles of the course of the river below included within the grant. The defendants’ bridge is above the plaintiffs’ and I see no reason why the plaintiffs should not have the benefit of an exclusive privilege by virtue of such a clause as this for two miles above their structure, although the situation of the latter was such that a similar privilege could only include a short distance, or even nothing at all below. I am unable to concur in the opinion expressed in the supreme court upon this part of the case. As I read these acts the effect of them is that the legislature say that it shall not be lawful for any person or persons" to erect any bridge or establish any ferry across the Chenango river within two miles above or below the plaintiffs’ bridge. This is the language of the act, and having arrived at the conclusion- that it is applicable to the plaintiffs, the next question is upon its effect.

The legislature reserved no power to alter, amend or repeal these acts or any portion of the privileges conferred upon the companies. The plaintiffs contend that this clause of the statute of 1805 is a contract by the state that they will grant no liberty or authority to any person to bridge or ferry across their waters within the specified limits, and that the subsequent incorporation of the defendants to bridge the Chenango river less than two miles above the plaintiffs’ bridge is a violation of the contract, and is therefore void under the provision of the constitution of the United States forbidding the states to pass laws which impair the obligations of contracts.

That the legislature of a state may bind the state by a contract, and that such contract is within the protection of the constitution of the United States, so that the act containing it cannot be repealed, nor the rights conferred or obligations assumed by it, impaired by subsequent legislation, are doctrines long established both in the federal and state jurisprudence. (Providence Bk. agt. Billings, 4 Peters, 561; Charles River Bridge agt. Warren Bridge, 11 Pet. 420; Richmond Railroad agt. Louisa Railroad, 13 How. 71; Boston & Lowell Railroad agt. Salem & Lowell Railroad, 2 Gray, 1).

A state may even limit or measurably part with its taxing power, one of the highest attributes of sovereignty, and that by a clause in the charter of a corporation, and such a charter is a contract from which future legislatures cannot depart, nor tax the corporation otherwise than according to its provisions. (State Bk. of Ohio agt. Knoop, 16 How. 369; Ohio Life & Trust Company agt. Debolt, id. 416; Jefferson Br. Bk. agt. Skelly, 1 Black, U. S. R. 436). If in the present instance the plaintiffs’ charter contained a clause to the effect that the state will not authorize nor allow any bridge or ferry within two miles of the plaintiffs’ bridge, then the plaintiffs present a contract made with them by the state, and which the state could not violate nor impair by chartering the defendants. The case thus comes to a question of the meaning and effect of this clause of the statute. Upon this subject we are not furnished with any case precisely parallel. In the Mohawk Bridge Company agt. The Utica & Schenectady Railroad Company (6 Paige, 554), .Chan. Walworth expressed the opinion that a prohibition against the establishment of a ferry within a certain distance of the plaintiffs’ toll bridge, did not deprive future legislatures of the right to authorize the erection of another bridge within the prescribed limits whenever the public.good shall appear to require it. The circumstances of that case, however, are different from the present, since the defendants there did not propose to carry passengers who merely desired to cross the river, and would otherwise employ the plaintiffs’ bridge, but only traveller's in their railroad cars from one part of the state to another. The railroad bridge, as the chancellor observes, was not a toll bridge within the meaning of the grant to the Mohawk Bridge Company. In the case of Thompson agt. The New York & Harlem Railroad, (3 Sand, Ch. R. 625), Vice-Chancellor Sandford construed a clause perhaps still more closely resembling that in question here, as not restricting the power of the legislature to permit the construction of other bridges, but only the right of individuals without such permission or authority. But in this case also, the bridge whose erection was complained of was a railroad bridge for the transportation of passengers in railroad cars, and not for the ordinary purposes of a bridge, or of a character to compete with the plaintiffs. The doctrine of the Charles River Bridge case (11 Pet. 420) is that no contract that other bridges or ferries across the same waters shall not be erected or authorized, is to be implied from the mere grant to a corporation of the right to erect and maintain a bridge and take tolls for using it. In the opinion in that case, the statement of Lord Tenterden in the case of The Stonebridge Canal agt. Wheely (2 B. & A. 793), is quoted with approval, that such an act of incorporation is a contract between the public and a company of adventurers, and that any ambiguity must operate in favor of the public, and the grant be construed strictly against the company.

In the recent case of The State Bk. of Ohio agt. Knoop (16 How. 388), however, the authorities are adverted to. Judge McLean, and his reasoning and the judgment of the supreme court of the United States in that case shows that the extent of the rule to be derived from these decisions is, that a right set up under such a grant must clearly appear and is not to be presumed. The rule is undoubtedly to be found in these and other cases that in a grant of privileges or franchises by a state, as in a royal grant, nothing passes by mere implication. Yet the construction of the express words of such a grant must be reasonble and sensible, and its objects are not to be defeated by a narrow and literal interpretation of words fairly susceptibie of an enlarged sense.

The 31st section of the act of 1805 confers upon the corporation or corporations to which it applies, two distinct privileges, one that it should not be lawful for any person to have any other bridge or ferry within a certain distance of those authorized by the act, and the other that it should not be lawful for any person to pass the bridges of the corporation without paying toll. These privileges are given in the same terms and in immediate succession. The act declares in precisely the same phrase, that it shall not be lawful for any persons to erect any bridge within the prescribed limits, or to cross the bridge to be built by the company without paying toll. Both these grants must receive a similar construction.

If the interpretation applied by the defendants to that part of the section forbidding the establishment of another bridge or ferry be correct, the residue which confers upon the plaintiff the right and the power to exact tolls for the use of their bridge must be constructed in a similar manner. If the legislature are not forbidden by the clause now in question from authorizing the construction of another bridge within the limit of two miles, they are equally at liberty to authorize any person to pass the plaintiffs’ bridge without the payment of tolls. This would leave the most vital and valuable part of the plaintiffs’ franchise, notwithstanding the irrepealability of the statute conferring it, wholly at the mercy of subsequent legislatures. It is a consequence which would hardly be contended for by any lawyer, and yet it is difficult to see how it could be escaped, if the principles of construction for which the defendants contend are to be adopted.

The bridges or ferries which this section is designed to prohibit within two miles of the plaintiffs’ bridge are evidently such bridges and ferries as are highways or open to the use of the public, either free of charge or under the payment of tolls. Private bridges," or other means of Crossing the stream for the convenience of individuals adjoining it, are not within the mischief against which the act aims to protect the corporation, and the section contains a proviso expressly excepting them.

But a bridge or a ferry for general and public use, whether as a common highway or upon payment of tolls, could not be erected or maintained by individuals without authority of law. The first would require at least the action of the public authorities under the existing laws to open or to accept it, and the latter could not be established at all without the intervention of the legislature to create and confer the franchise of taking tolls and maintaining the bridge or the ferry. If the section of the statute which we are considering forbids nothing but the establishment of a ferry or a bridge without authority of law by private individuals, it was unnecessary, since the existing .laws were adequate to protect the company against any such acts and against any invasion of their privileges not directly authorized by legislative authority. Besides, if the erection of a bridge by authority subsequently expressly given by the legislature is not forbidden by such a clause, why should the subsequent erection of a bridge by individuals, under the authority of general laws already existing, be held within its scope ? If the clause does not extend to the action of the legislature, it seems to me to forbid nothing but unlawful acts; and this, as I have observed, was unnecessary,' if not nugatory.

It is true that when the legislature in an ordinary statute declares that a particular act is not or shall not be lawful, it simply declares a fact, and a fact which it is at any time competent to alter, by establishing a different rule of law in the particulars referred to. But this statute is more than a mere law, it is a contract with the plaintiffs, and the provision that the erection of another bridge shall not be lawful, is one of its terms. It would be a narrow and unreasonable construction óf a contract by a private individual that a certain thing should not be done, to hold that its meaning was that it should not be done until he chose to permit it.

The thing stipulated against by this statute is something which the legislature alone can do or authorize to be done, and it is as narrow and but little more reasonable a construction of their language, declaring that it shall be unlawful, to regard it as meaning that it shall not be lawful until they chose to authorize it. The question is not one of implication, but of construction, and while nothing is to be implied, yet such a statute is to be construed fairly and with reference to its purpose and effect. It seems clear to me that where the legislature agree that an act shall not be lawful or be done, they agree that they will not do it, or make it lawful or permissible for others to do it. I read this statute, therefore, as the judges of the supreme court did, as forbidding the legislature from conferring the privilege of maintaining a bridge or a ferry within two miles of the bridge or bridges to which this provision applies. I differ with them in considering that the plaintiffs are entitled to the benefit of the provision in question, and that it forms a part of their charter and is applicable to their bridge.

The argument from inconvenience cannot be listened, to by a court. If the legislature have conferred such privileges as these upon the plaintiffs, it is no answer to them to say that it was unwise, inconsistent with sound policy, or indicative of a want of foresight to do so. These are considerations for the legislature, and not for us. But there is an answer to this argument. If the possession of this exclusive franchise, or of the monopoly of the travel across this river is prejudicial to the public interests—if those interests demand the opening of other avenues, or the removal of all tolls or restrictions to the passage to and from the two portions of the village of Binghamton, which are separated by the Chenango, the remedy is an easy and obvious one, The state possesses the power,.by an exercise of its eminent domain, to confiscate to public use both the bridge and the franchise of the plaintiffs. ( West River Bridge Company, 6 How. U. S. R. 507 ; 13 How. 83.) If the public necessities require, these can both be taken away, and the bridge opened to public use, upon due compensation to their owners. This of course would not accomplish the objects of the defendants, since in destroying the profits of the plaintiffs, by opening their bridge to public use without toll, it would of course equally destroy the value of the defendants’ bridge as a source of income. But so far as the public are concerned, and it is their interests alone which, in this aspect of the case, we are to regard, their necessities would be provided for. When the first bridge should become free and open to public use, of course all restriction upon the erection or maintenance of others would be removed, with the removal of their object and of any interest in any person to supplant them. The monopoly may thus be terminated and the means of transit multiplied to any extent, while the rights guarantied by the legislature to the plaintiffs would be protected, and compensation awarded them for those rights when the public good demanded their extinction.

I am of opinion that the judgment of the supreme court in this case should be reversed and judgment given for the plaintiffs.