Town of East-Hartford v. Hartford Bridge Co.

17 Conn. 79

Opinion

Chürcii, J.

A decree of the superior court has been made in this case, conformably with the advice of this court, at its June term, 1844; and now the cause is again before us, on a motion in error from the decree thus made.

The plaintiffs in error do not profess to request us to review or reverse any of the essential principles so recently recognized by us ; although it is obvious, that several of the points now made are in conflict with our opinions before expressed.

No question is here raised as to the legal construction of either the original or amended charters of the Bridge Company.

By our former decision, we said, that the ferry between the towns of Hartford zed East-Hartford was a beneficial franchise, and not a burden imposed by law upon them ; subject, however, to the same legislative supervision and con-troul as other ferries in the state. And it was properly conceded, by counsel and parties, that the right of the town of Hartford to the ferry, could not be constitutionally taken away, without compensation, or the consent of that town. This principle we repeat: and upon it the claim of the town of East-Hartford seems now chiefly to be based. . . •' . ,

. One claim is, because there was a vested franchise m the town Hartford, that the Bridge Company is, in effect, es-topped, not only from claiming a title in itself, but also from denying the title of Harford to the ferry. The Bridge Company does not contest any rights with Harford, in this controversy; nor does it insist upon any right of its own to the ferry franchise. It does not, to be sure, admit, that the town of Hartford can claim any thing in opposition to the company, since its lease or contract of May, 1842. The ground of complaint against the town of East-Hartford. is, that as bridge owners, the plaintiffs below are entitled to the full enjoyment of their bridge franchise, conferred by their several charters, and especially enlarged by the legislative resolve of 1818; that they are entitled to receive at their bridge the tolls from passengers crossing Connecticut river between the towns of Harford and East-Hartford, without disturbance ; and that they are essentially molested in the enjoyment of these rights, by a diversion of travel and toils from the bridge to the ferry, which ferry the town of East-Hartford illegally persists in keeping up. The question is, as to the right of East-Hartford thus to continue the ferry, and not as to any present rights of the town of Harford.

We shall not here again discuss the question, whether at common law, an individual or a corporation may lawfully do any thing, which shall operate directly and essentially as a disturbance of another’s franchise. On this point we refer to the authorities formerly cited, and also to 3 Bla. Com. 230. 1 Chitt. Gen. Pr. 724. Rut whatever may be the euinmon law on this subject, the resolve of 1818, if constitutional, ought to protect the Bridge Company. It declares, that after the company shall have repaired the bridge &e. the ferries by law established between the towns of Hartford and East-Hartford shall be discontinued, and said towns shall never thereafter be permitted to transport passengers across said river” &c. The obvious pur-pose of this enactment, was, to enlarge the franchise of the Bridge Company, and to secure to it the exclusive right to transport passengers across the river; at the bridge, and to receive the increased tolls therefor.

But the town of East-Hartford here assumes, that this re solve was an attempt, bv the k‘<>islatiirc, to divest itself of , ' " . the power of eminent domain, and is therefore void ; that the legislature, notwithstanding, has power to revive the ferry, without making provision for compensation to the Bridge Company. We suppose this matter was set at rest, by our late decision in this case, the very basis of which was, that the resolve of 1818 constituted a contract constitutionally obligatory upon the state, and therefore inviolable. But, what is meant by the position, that the legislature cannot divest itself of the power of eminent domain ? Nothing more, we presume, than that the legislature, by its own act, cannot irre-clairnably abandon a power, which essentially belongs to it, or which has been constitutionally imposed upon it. But this has not been done, by the resolve of 1818. It is not denied, that the legislature may not only revive the ferry, but discontinue the bridge itself, whenever the public interests shall require it, by providing an adequate compensation. This we have just now decided, in the case of The Enfield Bridge Company v. The Hartford and Springfield Hail-Road Company.

Footnotes

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(a) The complaint is, that the ferry was attempted to be revived, without providing compensation. The object and effect of suppressing the ferry, was, to enlarge the bridge franchise ; and this the legislature could as constitutionally do, as to confer an original franchise, without interrupting its right of_ eminent domain. It is quite too late now to contend, that the legislature may not modify or restrict trie future exercise of its own powers. It always does tins, when it makes a cone tract, which it cannot impair. And whether such contract; be executed or executory, it matters not. There is perhaps; no more essential and perfect right of sovereignty, than the; right and power of taxation ; and yet a legislature may, by contract, even relinquish this right overa limited and specif fieri territory, and for an object promotive of the public goodj New-Jersey v. Wilson, 7 Cranch 168. Atwater v. Woodbridge, 6 Conn. R. 223. Osborne v. Humphrey, 7 Conn. R. 335. Landon v. Litchfield, 11 Conn. R. 251. We must, therefore, repeat, notwithstanding this objection growing out of the right of eminent domain, what we have before said, that the provision in the resolve of 1818, which enacted, that the towns of Hartford and East-IIart ford should never thereafter be to transport passengers across the river, unless upon ¡lappenjng 0f certain contingencies, so far as East-Hartford was thereby affected, was an essential part of a conJ • 1 tract made with the Bridge Company, which could not be impaired, without compensation. And yet the town of East-Hartford persists in its claim to the ferry privilege. Because, say they, as there was a conceded and vested franchise in the town of Hartford, which could not be impaired, by the resolve of 1818, it was not suppressed, even as against them. To support this position, we think it is incumbent upon East-Hartford to show a right in itself, derived from the town of Hartford, or a right in some way sustained by the Hartford title. How is this attempted ? Let it be conceded, that the resolve of 1818 was unconstitutional and void as to Hartford, because its rights were beyond the reach of the General Assembly. The title of East-IIarford rested upon no such tenure; it was a title durante bene plácito; — it was not derived from Harford, nor created by any act of Hartford, but entirely by the legislative act of division of the towns, passed in 1783. East-Hartford then received what the legislature gave, and no more ; — a right to use the ferry, so long only as the legislature pleased. The act of 1818 declared the pleasure of the legislature ; and the right of East-IIarford ceased. If this act or resolve was unconstitutional as to Harford, and so far to be disregarded, it was not so as to East-IIarford; and therefore, it must have full effect, in all its constitutional provisions, against the latter town. Bank of Hamilton v. Dudley's lessee, 2 Peters 526. Therefore, as Hart ford cannot complain that the legislature has declared its pleasure as to East-IIarford, neither can East-IIarford complain, or claim any thing, because the rights of Hartford exist, while their privileges are extinguished.

We have said, that East-IIarford derived no title from any act of Hartford. The vote of the town of Hartford, passed on the first Monday of December, 1835, invested East-IIarford with no rights, nor did it propose to do so ; nor did it, in any way, connect, or propose to connect, the interests of the two towns in the ferry privilege, so that these interests should at all be dependent upon each other. That vote was no more than a strong expression of the opinion of the town, that the suppression of the ferry had been injurious to the public, and was an unjust measure, and an equally-strong expression of its wishes, that the ferry should be restored. We cannot suppose, if the entire franchise belonged to Hartford, that that town, without compensation, would propose to relinquish to East-liar ford the one half of so valuable an estate. The resolution of 1836 followed ; and by it, the ferry was again revived ; but this act derived neither force nor character from the previous vote of Harford; nor can it, by any construction, be extended further, than if no such vote had been obtained, nor than if it had passed upon the application of any other town, or body of citizens. What is that resolution of 1836, which the town of East-Ilarford now claims gave to them an indefeasible title to the ferry, no longer dependent upon the will of the legislature ? It was just what the town of Harford asked for, and no more; it was a repeal of so much of the resolve of 1818, as had abolished the ferry. The only legal effect of this, was, to remit the towns to their former rights; to give back to East-Ilarford its franchise, during the pleasure of the General Assembly, and no longer — If the town of Harford can be supposed to have assented to this.

The ferry revived again under the supposed authority of the resolution of 1836, and continued until May, 11141, when that resolution was repealed, and the pleasure of the legislature, upon which the continuance of the franchise of East-Ilarford was still dependent, was again expressed, and the rights of East-Ilarford again ceased. Before the General Assembly again acted on this subject, to wit, on the 18th of May, 1842, the town of Harford, in which the entire ferry privilege, if any, remained, relinquished it entirely to the Bridge Company, upon a full and satisfactory compensation received. The ferry franchise was now relinquished, by the only corporation which had any legal claim to it. The bridge franchise was now perfect, and the company in the undisturbed enjoyment of it.

In 1842, after the town of Harford had relinquished its rights, and when East-Ilarford had no further pretence to be protected under the rights of Harford, the legislature, without compensation, attempted once more to invade the franchise of the Bridge Company, by restoring the ferry. We have already determined this proceeding to be uncon* , , " 10 stifutional.

^ ac|m¡tte(j; as jt seerns to be, by all parties, that the resolve of 1818, bv determining the rights of East-Hnrl1brd, -■ g- . y - vested the entire ferry franchise in Hartford, the legislature could not, without providing for a compensation, restore the one half of if to Easl-Hartford, by the resolution of 1838; and if that resolution had any effect, it was only to revive the ferry in favour of Hartford, unless the vote of the town of Hartford before referred to, may be considered as the consent of the town to relinquish the one half of a valuable privilege without compensation. There is nothing expressive of such an intention in the language of that vote.

But if the title of the town of Hartford, afforded a protection to Easl-Ilartford originally, how could it do thus, after the former town had relinquished its right ? The act oí the legislature suppressing the ferry in 1841, might have been ineffectual until compensation was made: but in May. 1812, and before the legislature again acted, the town of ] fart lord received a full and adequate compensation, and thus the act of 1841 became operative upon every body, and the privileges conferred by it could not again be taken away, by the act of 1842, without compensation made to the Bridye Cam-pari//.

Upon a careful review of our former opinion, as well as an attentive examination of the arguments now urged upon us, a majority of us are of opinion, that there is no error in the judgment complained of.

In this opinion, 'Waite and Storrs, Js., concurred. WiiMMs, Ch. J., being interested in the event of the suit, was not present when the case was argued, and gave no opinion. Hkoiah, J., dissented.

Judgment affirmed.

Ante, 40,