The West River Bridge Company v. DIX

47 U.S. 507, 12 L. Ed. 535, 6 How. 507, 1848 U.S. LEXIS 322

• Court: Supreme Court of the United States
• Decided: January 31, 1848
• Status: Published

Opinions

Mr. Justice DANIEL

delivered the opinion'of the court.

The West River Bridge Company, Plaintiffs, vs. Joseph Dix . and the Towns of Brattleborough and Duramerston, Defendants, upon a writ of error to the Supreme Court of Judicature of the State of Yermont, sittihg in certain proceedings as a court of law,

and

The same Plaintiffs, vs. The Towns of Brattleborough and Dummerston, and Joseph' Dix, Asa Boyden, and Phineas Underwood, upon a writ of error to the Supreme Court of Judicature, and to the Chancellor' of the First Circuit of the State of Yermont.

These two causes have been treated in the argument as one, — and such they essentially are. Though” prosecuted in different forms and, in different forums below, they are merely various modes of endeavouring to attain the same end, and a decision in either of the only question they raise for the cognizance of this court disposes equally of that question in the other.

They are brought before us under the twenty-fifth section of the Judiciary Act, in order to test the conformity with tbe Constitution of the United States of certain statutes of Vermont ; laws that have been sustained by the Supreme Court of Vermont, but which it is.alleged are repugnant to the tenth section of the first article of the Constitution, prohibiting the passage of State laws impairing the obligation of contracts.

It appears from the records of these causes, that, in the year 1795, the plaintiffs in error were, by act of the legislature of Vermont, created a corporation, and invested with the exclusive privilege of erecting a bridge over West River, within four miles of its mouth, and with the right of taking tolls for passing the. same. The franchise granted this corporation was to continue for one hundred years, and the period originally prescribed for. its duration has not yet expired. The corporation erected their bridge, have maintained and used it, and enjoyed the franchise granted, to them by law, until the institution of the proceeding now under review.

By. the general law of Vermont relating to roads, passed 19th November^ 1839, [vide Revised Laws of Vermont, p. 553,) the County Courts are authorized, upon petition, to- appoint commissioners to lay out highways within their respective counties, and to assess the damages which may. accrue to landholders by the opening of roads, and these courts, upon the reports of the commissioners so appointed, are empowered to establish roads within the bounds of their local jurisdiction. A similar power is vested in the Supreme Court, to lay out and establish highways extending through several counties.

By an act of the legislature of Vermont, passed November 19th, 1839; it is declared, that “ whenever there shall be occasion for any new highway in any town or towns of this State, the Supreme and County Courts shall have the same power to take any real estate, easement, or. franchise of any turnpike or other corporation, when in their judgment the public good requires a public highway,.which such courts now have, by the laws of the State, to. lay out.highways over individual or private property-; and the same' power is granted, and the same rules shall be observed, in making compensation to all such corporations and persons whose estates, easement, franchise, or rights shall be taken, as are now granted and provided in other cases.” Under the authority of these statutes, and in the modes therein prescribed, a proceeding was instituted in the County Court of Windham, upon the petition of Joseph Dix and others, in which, by the judgment of that court, a puKic road was extended and established between certain termini; passing over and upon the bridge of the plaintiffs, and converting it into a free public highway. By the proceedings and judgment just mentioned, compensation was assessed and awarded to the plaintiffs for this appropriation of their property, and for the consequent extinguishment of their franchise. The judgment of the County Court, having been carried by certiorari before the Supreme Court of the State, was by the latter tribunal affirmed.

Pending the proceedings at law upon the petition of Dix and others, a bill was presented by the plaintiffs in error to the chancellor of the first judicial circuit of the State of Vermont, praying an injunction to those proceedings so far as they related to the plaintiffs or to the real estate, easement, or franchise belonging to them. This bill, having been demurred to, was dismissed by the chancellor, whose decree was affirmed on appeal to the Supreme Court, and a writ of error to the last decision brings up the case on the second record.

In considering the question propounded in these causes, there can be no doubt, nor has it been doubted in argument, on either side of this controvérsy, that the charter of incorporation granted to the plaintiffs in 1793, with the rights and privileges it- declared or implied, formed a contract between the plaintiffs and the State of Vermont, which the latter, under the inhibition in the tenth section of the first article of the Constitution, could have no power to impair. Yét this proposition, though taken as a postulate on both sides, determines nothing as to the real merits of these causes. True, it furnishes a guide to- our inquiries, yet leaves those inquiries still open, in their widest extent, as to the real position of the parties with reference to the State legislation or to the Constitution. Following the guide thus furnished us, we will proceed to ascertain that position. No State, it is declared, shall pass a law impairing the obligation of contracts; yet, with this concession constantly yielded, it cannot be justly disputed, that in every political sovereign community there inheres necessarily the right and the duty of guarding its own existence, aqd of protecting and promoting the interests and welfare of the community at large.' This power and this duty are to be exerted not only in the highest acts of sovereignty, and in the external relations of governments ; they reach and comprehend likewise the interior polity and relations of social life, which should.be regulated with reference to the advantage of the whole society. This power, denominated the eminent domain of the State, is, as its name imports,- paramount to all private rights vested under the. government, and these last are, by necessary implication, held in subordination to this power, and must yield in every instance to its proper exercise.

The Constitution of- the United States, although adopted by the sovereign .States of this Union, and proclaimed in its own 1 mguage to be the supreme law for their government, can, by no rational, interpretation, be brought to conflict with this attri-, bute in the States ,• there is no express delegation of it by the Constitution; and it would imply an incredible fatuity in the States, to. ascribe to them the intention to relinquish the power of self-government and'-self-preservation. A correct view of this matter must demonstrate, moreover, that the right of eminent domain in government in no wise interferes with the inviolability of contracts; that the most sanctimonious regarvd for the one is perfectly consistent with the possession and exercise of the other.

Under every established government, the tenure of property is derived mediately or immediately from the sovereign power of the political body, organized in such mode or exerted in f.neh way as the community or, State- may have thought proper ;c ordain. It can rest on no other foundation, can have no other, guarantee. It is owing to these characteristics only, in the original nature of tenure, that appeals can be made to the laws either for the protection or assertion of the rights of property. Upon any other hypothesis, the law of property would be simply the law of force. Now it is undeniable, that the investment of property in the citizen by the government, whether made for a pecuniary consideration or founded on conditions of civil or political duty, is a contract between the State, or the. government acting as its agent, and the grantee; and both the parties thereto are bound in good faith to, fulfil it. But into all contracts, whether made between States and individuals or between individuals only, there -enter conditions which arise not' out of the literal terms of the contract itself; they are super-induced by the preexisting. and higher' authority of the laws -of nature, of nations, or of the community to which the parties belong ; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. Every contract is . made in subordination to them, and must yield to their control, as conditions inherent and paramount, wherever a necessity for their execution shall occur. Such a condition is the right of eminent domain. This right does not operate to impair the contract effected by it, but recógnizes its obligation in the fullest extent, claiming only the fulfilment of an essential and inseparable condition. Thus, in claiming the resumption or- qualification of-an investiture, it insists merely on the true nature and character of. the right invested. The impairing of contracts inhibited by the Constitution can scarcely, by the greatest violence of construction, be made applicable to the enforcing of the terms or necessary import of a contract;.the language and meaning of the- inhibition were designed to embrace proceedings attempting the interpolation of some new term or condition foreign to the original agreement, and therefore inconsistent with and violative thereof. It, then, being clear that the power in question not being within the purview of the restriction imposed by thé tenth section of the first article of the Constitution, it remains with the States to the full extent in which it inheres in, evéry sovereign government, to be exercised by them in that degree that shall by them be deemed commensurate . with public necessity.. So long as they shall steer clear of the single predicament. Renounced by the. Constitution, shall avoid interference with the obligation- of ' contracts, the wisdom, the modes, the policy, the hardship of any exertion of this power are subjects not within the proper cognizance of this courts This is, in truth, purely a question of power; and, conceding the power to reside in the State government, this concession would seem to close the door upon all further controversy in connection with it. The instances of the exertion of this power, in some mode or other, from the very foundation of civil government, have been so numerous and familiar, that it seems somewhat strange, at this day, to raise a doubt or question concerning it. In fact, the whole ■policy of the country, relative to roads, .mills, bridges, and ca- - nals, rests upon this single power, under which lands have been always condemned; and without the exertion of this power, not one of the improvements just mentioned could be constructed. In our country, it is believed that the power was never, or, at any rate, rarely, questioned, until the opinion seems to have obtained, that the right of property in a chartered corporation was more sacred and intangible than the same right. could possibly,be in the person of the citizen; an opinion which must be without any grounds to. rest upon, until it can be demonstrated either that the ideal creature is more.than a person, or the corporeal being is less. For, as a question of the power to appropriate to public uses the property of private persons, resting, upon the .ordinary foundations of private right, there would seem to .be room neither for doubt nor difficulty. A distinction has been attempted, in argument, between the power of a government to appropriate for public uses property which is corporeal, or may be said to be in being, and the like power in the government to resume pr extinguish a franchise. The distinction thus attempted we regard as a refinement which has no foundation in reason, and one that, in truth, avoids the true legal or constitutional question in these causes; namely, that of the right in private persons, in the use or enjoyment of their private property, to control and actually to prohibit the power and duty of the government to advance and protect the general good. We are aware of nothing peculiar to a franchise which can class it higher, or render it more sacred, than other property. A franchise is property, and nothing more; it is incorporeal property, and is so defined by Justice Blackstone, when treating, in his second volume, chap. 3, page 20, of the Rights of Things. It is its character of property only which imparts to it value, and alone authorizes in individuals a right of action for invasions or disturbances of its enjoyment. Vide Bl. Comm., Vol. III., chap. 16, p. 236, as to injuries to this description of private property, and the remedies given for redressing them. A franchise, therefore, to erect a bridge, to construct a road, to keep a ferry, and to collect tolls upon them, granted by the authority of the State, we regard.as occupying the same position, with respect to the paramount power and duty of the.State to promote and protect the public good,1 as does the right of the citizen to the possession and enjoyment of his land under his patent or. contract with the State, and it can no more interpose any obstruction in the way of their just exertion. Such exertion we hold to be not within the inhibition of the. Constitution,, and no violation of a contract. The power of a State, in the exercise of eminent domain, to extinguish immediately a franchise it had granted, appears never to have been directly-brought here for. adjudication, and consequently has not been heretofore formally propounded from this court; but in England, this power, to the fullest extent, was recognized in the case of the Governor and Company of the Cast Plate Manufacturers v. Meredith, 4 Term Reports, 794, and Lord Kenyon, especially in that case, founded solely upon this power the entire policy and authority of all the road and canal laws of the kingdom.

The several State decisions cited in the argument, from 3 Paige’s Chancery Report's, p. 45, from 23 Pickering, p. 361, from 17 Connecticut Reports, p. 454, from 8 New Hampshire Reports, p. 398, from 10 New Hampshire Reports, p. 371, and 11 New Hampshire Reports, p. 20, are. accordant with the decision above mentioned, from 4 Durnford and East, and entirely supported by it. ''One of these State decisions, namely, the case of the Enfield Toll-Bridge Company v. The Hartford and New Haven Railroad Company, 17 Connecticut. Reports, places the principle asserted in an attitude so striking, as seems to render that case worthy of a separate notice. The legislature of Connecticut, having previously incorporated the Enfield Bridge Company, inserted,- in a charter subsequently granted by them to the Hartford and Springfield Railroad Company, a provision in these words, — “ That nothing therein contained shall be construed to prejudice or impair any of the rights now vested in the Enfield Bridge Company.” This provision, comprehensive as its language may seem to be, was decided by the Supreme Court of the State as not embracing qny exemption of the Bridge Company from the legislative power of eminent domain, with respect to its franchise, but to declare this, and this only, — that, notwithstanding the privilege of constructing a railroad from Hartford to Springfield in the most direct and feasible route, granted by the latter charter, the franchise of the Enfield Bridge Company should remain as inviolate as the property of other citizens of the State. These decisions sustain clearly the following positions, comprised in this summary given by Chancellor Walworth, 3 Paige’s Reports, p. 73, where he says, that, “ notwithstanding- the grant to individuals, the eminent domain, the highest and most exact idea of property, remains in- the government, or. in the aggregate body of the people in their sovereign capacity; and they have a right to resume the possession of the property in the manner directed by tne constitution and laws of the State, whenever the public interest requires it. This right of' resumption may be exercised, not only where the safety, but also where the interest, or even the expediency, of the State is concerned.” In these positions, containing no exception with regard to property in a franchise (an exception which we should deem to be without warrant in reason), we recognize the true-doctrines of the law as applicable to the cases before us. In considering the question of constitutional power, — the only question properly presented upon these records, — we institute no inquiry as to the adequacy, or inadequacy of the compensation allowed to the 'plaintiffs in error for the extinguishment of their franchise; nor do^e inquire into the conformity between the modes prescribed by the statutes of Vermont and the proceedings which actually were‘adopted in the execution of those statutes; these are matters regarded by this court as peculiarly belonging to' the tribunals designated by the State for the exercise of her legitimate authority,, and as being without the province assigned to this court by the Judiciary .Act.

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

Mr. Justice McLEAN.

As this is a constitutional question of considerable practical importance, I will state, succinctly, my general views on the subject.

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

The power in a State to take private property for public use is undoubted. It is an incident to sovereignty, and its exercise is often essential to advance the public interests. This act is done under the regulations of the State. If those regulations have not been strictly observed, that is not a matter of inquiry for' this court. The local tribunals have the exclusive power in such cases.

This act by a State has never been held to impair the obligations of the contract by which the property appropriated was held. The power acts upon the property, and not on the contract. A State cannot annul or modify a grant of land fairly made. But it may take the land for public use. This is done by making compensation for the property taken, as provided by law. But if it be an appropriation of property to public use, it cannot be held to impair the obligations of the contract.

It is insisted, that this was a pretended exercise of the power of the eminent domain, with the view of destroying the force and obligation of the plaintiffs’ charter.

This whole proceeding was under a standing law of the State, arid it was sanctioried, on an appeal, by the Supreme Court of the State. A procedure thus authorized by law, and sanctioned, cannot be lightly regarded. It has all the solemnities of a sovereign act.

But it is said that the franchise of the plaintiff cannot bé denominated property; that (< it included the grant of no property real or personal; that it lay in grant, and not in livery.”

If the action of the State had been upon the franchise only, this objection would be unanswerable. ' The State cannot modify or repeal a charter for a bridge, a turnpike-road, or a bank, or any other private 'charter, unless the. power to do .so has been reserved in the original • grant. But no one doubts the power of the State to take a banking-house for public use, or any other real or personal property owned by the bank. In this respect, a corporation holds property subject to the eminent domain, the same as citizens. ;The great object of an act of incorporation is, to enable a body of men to exercise the faculties of an individual. Peculiar privileges are sometimes vested in the body politic, with the view of advancing the conveniénce and interests of the publie.

The franchise no more than a grant for land can be, annulled by the State. These muniments of right are alike protected. But the property held under both is held subject to a public necessity, to be. determined by the State. In either case, the property being taken renders valueless the evidence of right. But this does riot, in the sense of the Constitution, impair the contracts. The bridge and the ground connected with it, together with the right of exacting toll, are. the elements which constitute the-value of the bridge. The situation arid productiveness of the soil constitute the value of land. In both cases, an estimate is made of 'the value, under prescribed forms, and it is paid when the property is taken-for public use. And in these cases the evidences of right are incidents to the property.'

No State could resume a charter, under the power of appropriation, and carrf on the-functions of the corporation. A bank charter could riot be thus taken, and the business of the bank continued for,' public purposes.' Nor could this bridge have been taken by the State, and kept up by it, as. a toll-bridge. This could not be called an appropriation of private property to public purposes. There would be no change in the use, except the application of the profits, and this would not bring the act within the power. The power must not only be exercised bona fide by a State, but -the property, not its product, must be applied to public use.

It is argued, that, if the. State iriay take this bridge,.it may transfer it to other individuals, under the same or a different ■ charter. This the State cannot do. It would in effect be taking the property from A to convey it to B. The public purpose for which the. power is exerted must be real', not pretended. If in the course of time the property, by a change of circumstances, should no longer be required for public use, it may be- otherwise disposed of. But this is a case not likely to occur. The legality of the act depends upon the facts and circumstances under which it was done. ■ If the use of land taken by the public for a highway should be abandoned, it Would revert, to the original proprietor and owner of the fee.

It- is objected that this bridge, being owned by a corporation and used by the public, does not come within the designation of privaté property. All property, whether owned by an individual or individuals, a corporation aggregate or sole, is within the term. In short, all property not public is private.

The use of this bridge, , it is contended, is the same as before the act of appropriation. The public use the bridge now as before the act of appropriation. But it was a toll-bridge, and by the act it is made free.- The use, therefore, is not the same. The tax assessed on the citizens of the town, to keep up and pay for the bridge, may be impolitic or unjust; but • that is not a matter for the consideration of this court.

It is supposed, if this power is sustained by the State of Vermont, it wilLbe 'in the power of a State to seize the evidences of its indebtment in the hands of its citizens, or within its jurisdiction, have their value assessed, and, by paying the amount, extinguish them. Such a case bears no analogy to the one before us. The contract only is acted upon in the case supposed. The obligation to pay the money by the State is materially impaired, which brings the case within the Constitution. But the appropriation of property affects the. contract or title.by which it is held only.^incidentally. This, it is said, ,is an extremely technical distinction, and is not sustainable, as it enables a State to do indirectly what the Constitution prohibits.

However nice the distinction may seem to be, when exarnined it will be found substantial.

The power of appropriation by a State has never been held by any judicial tribunal as impairing the obligation of a contract, in the. sense of the Constitution. And this power has been frequently exercised by all the States, since the adoption of the Constitution. In the fifth article of the amendments to the Constitution it is declared, “ Nor shall private property be taken for public use without just compensation.” This refers to-the action of the .federal government, but a similar provision is contained in all the State constitutions. Now the Constitution does not prohibit a State from impairing the obligation of a contract unless compensation be made, but the inhibition is absoluto. So that if such an act come within the prohibition, the’ act is unconstitutional. . But this power has been exercised by the States, since the foundation of the government, and.no. one has supposed that it was prohibited by that clause in the Constitution which inhibits a State “ from impairing the .obligations of a contract.”

The only reasonable result, therefore, to which we can come is, that the power in the State is an independent power, and does not come within the class of cases prohibited by the Constitution.

■ This view give's effect to the Constitution in imposing a salutary restraint upon legislation affecting contracts, but leaves ,the States free in their exercise of the eminent domain, which belongs to their sovereignties, is essential for the advancement of internal improvements, and acts only upon property within their respective jurisdictions. The powers do not belong to the same class. That which acts upon contracts and impairs their obligation only is prohibited.

Mr. Justice WOObBURY.

In the decisions of this court on constitutional questions it has happened frequently, that, though its members were united in the judgment, great differences ^existed among them in the reasons for it, or in the limitations on some of the principles involved. Hence it has been, customary in such cases to express their views separately. I conform to that usage in this case the more readily, as it is one of the first impression before this tribunal, very important in its consequences,. as a great landmark for the States as well as the general govern-, ment, and, from shades of difference and even conflicts in opinion, will be open to some misconstruction.

I take the liberty to say, then, as to the cardinal principle involved in, this case, that, in my opinion, all the property in a State is derived from, or protected by, its government, and hence is held subject to its wants in taxation, and to certain important public uses, both .in war and peace. Vattel, B. 1, ch. 20, § 244; 2 Kent, Comm. 270; 37 Am. Jurist, 121; 1 Bl. Comm. 139; 3 Wils. 303; 3 Story on Const. 661; 3 Dallas, 95. Some ground, this public right on sovereignty. 2 Kent, Comm. 339; Grotius, B. 1, ch. 1, § 6. Some, on necessity. 2 Johns. Ch. 162; 11 Wend. 51; 14 Wend. 51; 1 Rice, 383; Yanhorne’s Lessee v. Dorrance, 2 Dallas, 310; Dyer v. Tuscaloosa Bridge, 2 Porter, 303; Harding v. Goodlett, 3 Yerger, 53. Some, on implied compact. Raleigh & Gaston Railroad Co. v. Davis, 2 Dev. & Bat. 456; 2 Bay, 36, in S. Car. ; 3 Yerger, 53. Where a charter is granted after laws exist to condemn property' when needed for- public purposes, others might well rest such a right on the hypothesis, that such laws are virtually a part and condition of the grant itself, as much as .if inscribed in it, totidem verbis. Towne v. Smith, 1 Woodbury & Minot, 134; 2 Howard, 60S,. 617; 1 Howard, 311; 3 Story on Const. §§ 1377, 1378, quære.

But, however derived, this eminent domain éxists in all governments, and is distinguished from the public domain, as that-consists of public lands, buildings, &c., owned in trust exclusively and entirely by the. government (3 Kent, Comm. 339; Memphis v. Overton, 3 Yerger, 389), while this consists only in the right to use the property of others, when needed, for certain public purposes. Without now going further into the reasons or extent of it, and under whatever name it is most appropriately described, I concur in the views of the court, that it still remains in. each State of the Union in a case like the present, having never been granted to the general government so far as respects the public highways of a State, and that it extends to the taking for public use for a road any property in the State, suitable and necessary for it. Tuckahoe Canal case, 11 Leigh, 75; 11 Peters, 660; 20 Johns. 724,; 3 Paige, Ch. 45; 7 Pick. 459, But whether it could be taken without compensation, where no provision exists like that in the fifth amendment of the Constitution- of the United States, or that in the Vermont constitutution, somewhat similar, is a more difficult question, and on Which some have doubted. 4 D. & E. 794; 1 Rice, 383; 3 Leigh, 337. I do. not mean to-express any opinion on this, as it is not called, for by the facts of this case. But compensation from the public in such cases prevails generally in modem times, and certainly seems to equalize better the burden. 2 Dallas, 310 ; Pisc. Bridge v. Old Bridge, 7 N. Hamp. 63; 4 D. & E. 794; 1 Nott. & McCord, 387; Stokes et al. v. Sup. Ass. Co., 3 Leigh, 337; 11 Leigh, 76; Hartford Bridge, 17 Conn. 91; Vattel, B. 1, ch. 20, § 244; 3 Paige, Ch. 45 ; 2 Dev. & Bat. 451; 2 Kent, Comm. 339, note; Lex. & Oh. Railroad case, 8 Dana, 289.

Nor shall I stop to' discuss whether it is on this principle of the eminent domain alone, that private, property has always been taken for highways, in England, on making compensation, so as'to be a precedent for us. This was done there formerly, not. as here, but by a “writ ad qun'd.damnum, and it was for ages issued before .the grant of any new franchise^by the king, whether a road, ferry,’or market; and the inquiry related to the damage by it, whéther tó the public or individuals. Fitz, N.B. 221; 3 Bac. Abr., Highways, A.

Nór were .alterations in'roads, or éven'.the widening qr discontinuing of them, allowed Without it. Thomas v. Sorrel, Vaughan, 314, 348, 349; Cooke, ch. 267; 6 Barn. & Ald. 566

But in modern times Parliament, by various laws, have authorized all these, after inquiry and compensation awarded by certain ■ magistrates. 1 Burr. 263; Camp. 648; Cro. Car. 266, 267; 5 Taunt. 634 ; Domat, B. 1, t. 8, § 2; 7 Adol. & Ellis, 124.

.And thus, notwithstanding the theoretical omnipotence of Parliament, private rights and contracts have been in these particulars, about compensation and necessity for public use, as much respected in England as here.

So as-to railroad companies, as well as turnpikes, under, public trustees, and .as to common highways; the former are often authorized there to erect bridges, and carry their roads over turnpikes and other highways-; but it is on certain conditions, keeping them passable in that place or near, and on making compensation. Kemp v. L. & B. Railway Co., 1 Railway Cases, 505; and Attorney-General v. The L. & S. Railroad. I ib. 302, 224; 2 ib. 711; 1 Gale & D. 324; 2 ib. 1; 4 Jurist, 966; 5 ib. 652; 9 Dowling, P. C. 563; 7 Ádol. & Ellis, .. 124; 3 Maule & Selw. 526; 11 Leigh, 42;

But I freely confess, that no case has been found there by me exactly in point for this, such as ■ the taking of the road- or bridge of one- corporation for another, or of taking for the public a franchise’ of individuals connected witli them. Though, at the same time, I have discovered ho prohibition of it, either on principle or precedent, if making compensation and 'following the mode prescribed' by statute.

The peculiarity in the present case, consists in the facts, that a part of the property taken belonged to a corporation of the State, and not to an individual, and a part was the franchise itself of the act of incorporation.

I concur in the views, that a corporation, created to build a bridge like that of the plaintiffs in error is itself, in one sense, a franchise. 2 Bl. Comm. 37; Bank of Augusta v. Earle, 13 Peters, 596; 4 Wheat. 657; 7 Pick. 394; 11 Peters, 474, 454, 472, 490, 641, 645; 11 Leigh, 76; 3 Kent, Comm. 459. And, in another sense, that it possesses franchises incident to its existence and objects, such as. powers to erect the bridge and to take tolls. See same cases. ' -

I concur in the views,-also, that such a franchise as the incorporation is a species of property. 7 N. Hamp. 66; Tuckahoe Canal Co. v. Tuckahoe fc.Camb. Railroad Co.,. 11.Leigh, 76. It is a legal estate vested in the corporation. 4 Wheat. 700 ; II Peters, 560. But it is often property distinct and independent of the other property in .land, timber, goods, or choses in action, which a corporation, like a body not artificial, may own. 3 Bland, 449; 11 Leigh, 76.

It is also property subject to be sold, sometimes even on execution (Semb., 4 Mass. 495; 11 Peters, 434), and may be devised or inherited. 17 Conn. 60. And while I accede to the principle urged by the counsel for the bridge, that the act of incorporation in this case was a contract, or in the nature of one between the State and its members (1 Mylne & Craig, 162; 4 Peters, 514, 560; Lee v. Nailer, 2 You. & Coll. 618; King v. Pasmoor, 3 D. & E. 246; Woodward v. Dartmouth College, 4 Wheat. 628; 7 Cranch, 164; Terrett v. Tayler, 9 Cranch, 43, 52 ; 9 Wend. 351; 11 Peters, 257; Canal Co. v. Railroad, 4 Gill & Johns. 146; 3 Kent, Comm. 459; Enfield Toll-Bridge cage, 17 Conn. 40; 1 Greenleaf, 79; 8 Wheat. 464; 10 Conn. 522; Peck, 269; 1 Alabama, 23; 2 Stewart, 30), I concur in the views of the court, that this or. other property of corporations may be taken fo; the purpose of a highway, under the right of eminent, domain, and that the laws of Vermont authorizing it are not in that respect and to that extent violations of the obligation of any contract made by it with the corporation. Bradshaw v. Rodgers, 20 Johns. 103, 742; The Trust. of Belf. Ac. v. Salmond, 2 Fairf. 113; Enfield Bridge case, 17 Conn. 40, 45, 61; 3 Paige, Ch. 45; Charles River Bridge v. Warren Bridge, 7 Pick. 394, 399; S. C., 11 Peters, 474; 1 Bland, 449; Bellona Co. case, 3 Bland, 449.

Because there was no covenant or condition in the charter or contract, that the property owned by it should not be liable to be taken, like all other property in the State, for public uses in highways. 7 N. Hamp. 69; 4 Wheat. 196; Jackson v. Lamphire, 3 Peters, 289.

Because, without such covenant, all their property, as property, must be liable to proper public uses, either by necessity, or the sovereignty of the State over itror by implied agreement.

And because, on a like principle, -taxes may be imposed on such property, ’ as well as all other property, though coming by grant from the State, and may be done without violating the obligation of the contract, when there is no bonus paid or stipulation made in the charter not to tax it. This is well settled. 5 Barn. & Ald. 157; 2 Railway Cases, 17 arg. 23; 7 Cranch, 164; New Jersey v. Wilson, 4 Peters, 511; Providence Bank v. Billings, 11 Peters, 567, Shaw, C. J., in Charles River Bridge v. Warren Bridge ; Gordon v. Appeal Tax Court, 3 Howard, 146; 12 Mass. 252 ; 4 Wheaton, 699; 4 Gill & Johns. 132, 153 ; Williams v. Pritchard, 4 D. & e. 2. The grantees are presumed to know all these' legal incidents or liabilities, and they being implied in the grant or contract, their happening is no violation of it. 8 Peters, 281, 287; 11 Peters, 641, 644; 3 Paige, 72.

Yattel says,— “The property of certain things is given'up to the individuals only with this reserve.” . B. 1, ch. 20, «§> 244.

In England anciently, when titles of land became granted with immunities from numerous ancient services, it was still considered that such' lands were,subject by implication, under a certain trinoda necessitous, to the expenses of repair of bridges as well , as forts* and of repelling invasion. Tomlins, DiCt., Trinoda Necess tas; 3 Bac. Abr., Highways, A.

Even the right to a private "way is sometimes implied in a grant, from necessity. Cro. Jac. 189; 8 D. &. E. 50; 4 Maule & Selw. 387; 1 Saund. 322, note.

It is laid down, also, by Justice Story, that “ a grant of a franchise is not in point of principle distinguishable from a grant of any other property.” Dartmouth College v. Woodward, 4 Wheat. 699, 701.

I concur, therefore, in the further views, that the corporation as a franchise, and all its powers as franchises, both being property, may for these and like reasons, in proper cases, be taken for public use for a 'highway. Pierce v. Somersworth, 10 N. Hamp. 370; 11 N. Hamp. 20; Piscat. Bridge v. N. Hamp. Bridge, 7 N. Hamp. 35, 66; 8 N. Hamp. 398, 143; 11 Peters, 645; Story J., in Warren Bridge v. Charles River Bridge; 2 Kent, Comm. 340, note ; 2 Peters, 658; 5 Paige, Ch. 146; 1 Rice, 383; 2 Porter, 296; 7 Adol. & Ellis, 124; 3 Yerger, 41; 2 Fairf. 222; 23 Pick. 360; J. Bonaparte v. C. Railroad, Baldw. C. C. 205; Tuckahoe Canal Co. v. The T. & J. River Railroad Co., 11 Leigh, 42; Enfield Bridge Co. v. Hartford & New Haven Railroad, 17 Conn. 40; Armington v. Barnet, 15 Vermont, 745, and 16 Vermont, 446, this case ; 3 Cowen, 733, 754; 11 Wendell, 590; Lex. & Oh. Railroad case, 8 Dana, 289; 18 Wend. 14.

It must be confessed, that some surprise has been felt to find this doctrine so widely sustained* and in so many of the States, and yet no exact precedent existing in England.

But in relation to it here; I am constrained, in some respects, to differ from others, and, as at present advised, agree to the last proposition, concerning the taking of the franchise itself of a corporation, only when ,the further exercise of the franchise as a corporation is inconsistent or incompatible with the' highway to be laid out.

It is. only under this limitation as to the franchise itself, that there seems to.be any of the necessity to take it which, it will be seen in the positions heretofore and hereafter explained, should exist. Nor do I agree to it with that limitátion, without another, — that it must be in cases where a clear intent is manifested .in the laws, that one corporation and its uses shall yield to another, or another public use, under the supposed superiority of the latter and the necessity of the case. 4 Gill & Johns. 108, 150; Barbour v. Andover, 8 N. Hamp. 398.

Within these' limitations, however, the acts' of incorporation and all corporate franchises appear to me to possess no more immunity from reasonable public demands for roads and. taxes, than the soil' and freehold of individuals.

The land may come by grant, or patent from the State, as well as the corporation, 'and -both .the grant and corporation may be contracts. But they are contracts giving rights of property,, held, and of course understood to be held, subject to those necessary burdens and services and easements to which all other, property is liable. And it is neither inconsistent with the grant of them, nor a violation'of the contract contained in them, to impose those burdens and easements, unless an express agreement has been made to the contrary by the State ■in the act of incorporation or grant", as is sometimes done in respect to taxation. But where the corporation, as a franchise, or its powers as franchises, ean still be exercised usefully or profitably, and the highway be laid out as authorized, I see no reasons why these franchises should then be condemned or taken. The property owned by a,- banking or manufacturing corporation may, for instance, be condemned. for highways, necessarily, where situated on a great line of travel; but why should their franchises be, if their continued existence and use may be feasible and profitable, and one not inconsistent with the taking, and employment of their other property for a public. highway ?

In' this instance, however, as a fact, the franchise was established and seems to be,useful only in one locality. The continuance of it elsewhere than at this spot would be of no 'benefit, to individual members or the public. If the bridge itself and land of the corporation at that place were taken, it was "better for the latter that the franchise should be taken with them, if enhancing the damages any, because, unlike a bank or manufacturing company, the corporation could not do business to advantage elsewhere, even within the limited four miles, as there was no road elsewhere within, their grant. The law of Termont, too, was clear, that the toll-bridge might be máde to. give way for a free highway. It is, therefore, only under the particular circumstances and nature of this case, that, in my apprehension, the taking of the franchise itself was not a violation of the contract. For, under different circumstances, if a franchise be 'taken and condemned for a highway, when not connected locally with other property, wanted, when it-can-be exercised on ordinary principles , elsewhere, when not in some respects incident to, or tied up with, the particular . property and place needed, I am not now prepared to uphold it. I am even disposed to go further, and say, that if any property of any kind is-not so situated as to he either in the direct path for a public highway, or be really needed to build it, the inclination of my mind is, that it cannot be taken against the consent of the owner. Because, though the right of eminent domain exists in some cases, it does not exist in all, nor as to all property, but probably as to such property, only as, from its locality, and fitness, is . necessary to the public use. Semb., 4 Mylne & Craig, 116 Webb v. Manch. & Leeds Railway Co.; 1 Railway Cases, 576.

It may be such, not only for the bed of the road, but perhaps-for materials in gravel, stone, ánd.timber, to build it with. Yet even then it must be necéssary and appropriate as inci- . dents. 2 Dev. & Bat. 462; 13 East, 200.

And also, for aught I row see, circumstances must, from its locality and the public wants, raise an urgent necessity for it. • “ The public necessities ” are. spoken, of usually as the fit occasion to exercise the power, if it be not derived from them in a great degree, and the reason of the case is confined to them. (See cases before.)

The ancient trinoda necessitas extended to nothing beyond such necessity.

Indeed, without further examination, I fear that even these limitations may not be found sufficient in some kinds of public highways, — such as railroads, for instance. And I must hear more in support of this last position before acquiescing in their right to take, in invitum, all the materials necessary to build such roads, —as the timbers on which their rails are laid, or the iron for the rails themselves.

Nor do I agree that, in all cases of a public use, property which is. suitable or appropriate can be condemned. The public use here is for a road, and the reasoning and cases are confined chiefly to bridges and roads, and the incidents to war.. But the. doctrine, that this right of .eminent domain exists for every kind of public úse, or for such a use when merely convenient, though not necessary, .does not seem to me by any means clearly maintainable. It is too broad, too open to abuse. Where the public'use is one general and pressing, like thát often in wax for sites of batteries, or for provisions, little doubt would exist .as to the right. . Salus populi suprema est lex. So as to a road, if really demanded in párticular fórms and places to accommodate a growing and changing community, and to keep up with the wants and improvements of the age, — súch as its pressing demands for easier social intercourse, quicker political communication, or better internal trade, — and. advancing with the public necessities from blazed trees to bridle-paths, and thence to wheel-roads, turnpikes, and railroads.

But when we go to other public uses, not so urgent, not connected with precise localities, not difficult to be provided for without this power of eminent domain, and in places where it would be only convenient, but not necessary, I entertain strong doubts of its applicability. Who ever heard of laws to condemn private property for public use, for a marine hospital or state prison?

So a' custom-house is a public use for the genéral government, and a court-house or jail for a State. But it would be difficult to find precedent or- argument to justify taking private property, without consent-, tó erect them on, though appropriate. for the purpose. No necessity seems to exist, which is sufficient to justify so strong a measure. A particular locality as to a few rods in respect to their site is usually of no consequence. ; while as to a light-house, or fort, or wharf, or highway between certain termini, it may be very important and imperative. I am aware of no precedents, also, for- such seizures of private property abroad, for objects like the former, though some such doctrines appear to have been advanced in this country. 3 Paige, 45. Again, many things belonging to . bridges, turnpikes, and railroads, where public corporations for some purposes, are not, like the land on which they rest, local and peculiar and public, in the necessity to. obtain them by the power of the eminent domain. Such seem to be cars, engines, &c., if not the timber for rails, and the rails themselves. ’ Gordon v. C. & J. Railway Co., 2 Railway Cases, 809.

Such things do not seem to-come-within the public exigency connected with the roads which justifies the application of the principle of the eminent domain. Nor does even the path for the road, the easement itself, if the use of it be not public, but merely for particular individuals, and merely in some degree beneficial to the public. On the contrary, the user must be for the people at large, —for. travellers, — for all, —must also be compulsory by them, and not optional with the .owners,; — must be a right by the people, not a favor, — must be under public regulations as to tolls, or owned, or subject to be owned, by the State, in order to make the corporation and object public^ for a purpose like this. 3 Kent, Comm. 270; Railroad Co. v. Chappell, 1 Rice, 383; Memphis v. Overton, 3 Yerger, 53; King v. Russell, 6 Barn. & Cres. 566; King v. Ward, 4 Adol. & Ellis, 384.

It is not enough that there is an act of incorporation for a bridge, or turnpike, or railroad, to make them public, so as to be able ,to take private property constitutionally, without the owner’s consent; but their uses, and object, or interests, must be what has just been indicated, — must in their essence, and character, and liabilities, be public within the meaning of the term “public use.” There may be a private bridge, as well as private road, or private railroad, and this with or without an act of incorporation.

In the present instance, however, the use was to be for. the whole community, and not a corporation of any kind. The property was taken to make a free road for the people of the State to use, and was thus eminently for a public use, and where there had before been tolls imposed for private profit and by a private corporation so far as regards the interest in its tolls and property.

And the only ground on which that corporation, private in interest, , was entitled in any view originally to condemn land or collect tolls was, that the use of its bridge was public,. — .was open to all and at rates of fare fixed by the legislature and not by itself, and subjected to the revision and reduction of the public authorities.

. It may be, and truly is, that individuals and the public are often extensively benefited, by private roads, as they are by mills, and manufactories, and private bridges. But such a benefit is not technically nor substantially a public use, unless the public has rights. 1 Rice, 388. And in point of law it seems very questionable as to the power to call such,a corporation a public one, and arm it with authority to seize on private property without the consent of its owners.

I exclude, therefore, all conclusions as to my opinions hére being otherwise than in conformity to these suggestions; though when, as in the present case, a free public use in a highway and bridge is substituted for a toll-bridge, and on a long or great and increasing line of public travel, and thus vests both a new benefit and use, and a more enlarged one, in the public, and not in any few stockholders,. I have no doubt that these entitle that public for such a use t.o condemn private property, whether owned by an individual or a corporation. Boston W. P. Co. v. B. & W. Railroad Corp., 23 Pick. 360. And it' is manifest that unless such a course can be pursued, the means of social and commercial intercourse might be petrified, and remain for ages, like the fossil remains in sandstone, unaltered, and the government, the organ of a progressive community, be paralyzed in every important public improvement. 2 Dev. & Bat. 456; 1 Rice, 395; 8 Dana, 309.

. I exclude, also, any inference, that, in assenting to the doctrine, that an act of incorporation for a toll-bridge is a contract, giving private interests and rights as well as public ones, and thereby not allowing a State to take the private ones or alter them,- unless for some legitimate. public use, or by consent, as laid down in 4 Wheat. 628, I can or do assent to the doctrine of some of the judges there in' respect to public offices being such contracts as. not to be changed or abolished by a. State on public considerations, without incurring a violation of the eon-tract.

I should be very reluctant to hold, till further advised,- that public offices are not; like public towns, counties, &c., mere political establishments, to be abolished or changed for. political considerations connected with the public welfare. 9 Cranch, 43. The salaries, duration; and existence of the offices'themsélyes seem to be exclusively public matters, open to any modification which the representatives of the public may decide to be .necessary, whenever no express restriction on the .subject has been imposed in the constitution or laws. Quære. Hoke v. Henderson, 4 Dev. 1.

This would seem the implied condition of the office or contract, as much as that it may be taxed by the government-under which it is held, though not by other governments so as to impair or obstruct it. See, as to the last, McCulloch v. Maryland, 4 Wheat. 316; Weston v. The C. C. of Charleston, 2 Peters, 449; Dobbins v. Comm. of Erie City, 16 Peters, 435.

Finally, I do' not agree that even this franchise, as property, can-be taken from this corporation without violating the contract with-it, unless the measure was honest, bona fide, and really .required for what it professed to be, beside being, as before remarked, proper, on account of the locality and nature of ■ this property, to be condemned for this purpose.

And though I agree, that, for most cases and purposes, the public authorities in a State are the suitable judges as to this point, and that the judiciary only decide if their laws are constitutional (2 Kent, Comm. 340; 1 Rice, 383); that the legislature generally acts for the public in this (2 Porter, 303; 3 Bl. Comm. 139, note; 4 D. & E. 794, 797); that road agents are their .agents, under this limitation (1 Rice, 383); yet I am-not prepared to agree, that if;.on the. face of the whole proceedings, — the law, the report of commissioners, and the doings of the courts, — it is manifest that the object was not legitimate, of that illegal intentions' were covered up in forms, dr the whole proceedings a mere “ pretext,” our duty would require us to uphold them. Ibid.; Rice, 391. In England, though this power exists, yet if used maliciously or wantonly, it is held to be void. Boyfield v. Porter et al., 13 East, 200.

In this case, however, while the fairness of it is impeached by the plaintiffs in error, yet on the record thé object avowed is legal. It was to make travel free where it was before taxed, and the bridge, though remote from the changes desired in the old road, was still situated on the great line of travel over it, and not merely by color and finest connected, and, from increases in, population and business, seemed proper to be made free at the expensé of the town or county.

Nor on the face of the récord do the proceedings seem void, because the assessment may have been,without a jury, when it was mafle by the legal officers, appointed for that purpose. 3 Peters, 280; 2 Dev. & Bat. 451, 460; Beekman v. Sar. Railroad, 3 Paige, Ch. 45. Nor void as made by the commissioners without notice, when the return states notice, and when there was a- full hearing enjoyed by all before the court on the report.

Nor void because the compensation was too small to the corporation, — as. it was assessed in conformity to law, — or too burdensome to the town aloné to discharge, though the last might well have been flung on a larger number, like a county.. 10 N. Hamp. 370; Tomlins, Dict., Ways, 2; 1 Rice, 392. Nor because the commissioners take, a fee instead of an easement, when the legislature provide- for a fee as more expedient. 2 Dev. & Bat. 451, 467. 'Nbr because some of the property condemned was personal, when it was mixed with the real, and when .real or personal, if needed and appropriate, may at times be liable. 1 Rice, 383.

With these explanations, I would express my concurrence in the judgment of the court.