BRIDGE PROPRIETORS v. HOBOKEN CO

Mr. Bradley and Mr. Gilchrist for the Hoboken Company:

I. As respects jurisdiction. The case was decided on bill and answer. Hence the allegations of the answer are to be taken as true; and those of the bill are not to be taken as true, except so far as admitted by the answer. Now what is it that the pleadings put in issue? The answer, admitting the inviolability of contracts, sets up eight defences in confession and avoidance. They are already stated. What are they? We must be excused for recapitulation.

Ante, p. 121-3 As respected "compensation" for rights, c., used, a matter relied on in the dissenting opinion of one member of the court, GRIER, J., in this case, the statute provided that in case the Hoboken Company could not agree with the corporation owning the right, c., application should be made by the company to the Chief Justice of New Jersey for the appointment of commissioners in the matter. Notice of the intended application for them, of not less than ten days, was to be given to the parties interested. A particular time was to be assigned for the appointment, and the appointment made only after the Chief Justice had satisfactory evidence of the service or publication of the notice. The statute then proceeded to say that the Chief Justice should appoint three disinterested freeholders such commissioners; and they, having first taken oath impartially to examine the matter and to make a true report, should meet at a time and place to be appointed by said judge, and proceed to examine the matter and the route of the railroad, so far as the same should be located, and report in writing what rights, c., were necessary to be taken and appropriated for the purposes of the act, and should make a just appraisement of the value of the said rights, c., and an assessment of such damages as should be paid by the company for them; which report, it was enacted — or in case of appeal, the verdict of the jury and judgment of the Supreme Court thereon — shall (the damages being first paid to, or if they refuse the same, or are unknown, "or labor under any disability, then deposited for the owner or owners in the Supreme Court) at all times be considered as plenary evidence of the right of the said company to take, have, hold, use, occupy, possess, exercise, appropriate, and enjoy so much and such parts of said rights, c., so necessary to be taken, appropriated, c."
It was further enacted in substance, that in case either the company or the claimants of the said rights, c., should be dissatisfied with the report, either might appeal to the Supreme Court of the State by petition, the filing of which should give the court power to direct an issue, and to order a jury and a view of the road, and that the jury should assess the value of the rights. There was an enactment giving a right to collect by execution the amount awarded, with a proviso, that the appeal from the commissioners to the Supreme Court "shall not prevent the company from taking and appropriating, exercising, using, and enjoying the said rights, privileges, franchises, and property, or so much thereof as said commissioners shall assess and appraise, upon the filing of the aforesaid report, and paying the assessment and appraisement aforesaid, or making tender thereof, and depositing the same in the said Supreme Court for the owner or owners thereof."

1. That by the act of 1790, the State did not make a "contract." This defence involves simply the construction of the act of 1790.

2. That the language of the act, "it shall not be lawful,"c., was not in restraint of the legislature. This defence also did but involve the construction of this act.

3. That if the act of 1790 was a contract originally, it was one on conditions precedent, and that the omission of the parties who claimed the benefit of it to perform those conditions precedently, operated to dissolve whatever contract there was. This involved the construction of the act, a question of fact, and perhaps a question of general State law.

4. That the defendants were not building a "bridge," within the meaning of the act of 1790. This also involved but the interpretation of the act and a question of fact.

5. That any contract was discharged by the non-performance of certain conditions subsequent named in the act. Here again was only a question of construction, a question of fact, and perhaps a question of general State law.

6. That the complainants showed no transfer to themselves of the rights originally given by the act. This involved nothing beyond a question of fact, and the general rules regulating the transfer and devolution of property.

7. That the exclusive franchise given by the act of 1790 had been destroyed by the complainants' own acts, as admitted in the bill, in consenting to other bridges within the prohibited limits. This involved the construction of the act of 1790, and the law regulating the nature of incorporeal hereditaments.

8. That equity would not restrain by injunction the making of a railway bridge like the defendants', if the complainants had the exclusive right and would not exercise it. In this defence there was nothing but a question of equity practice.

The decree of the chancellor was in four lines. That of the Court of Errors and Appeals in five. The former was a dismissal without reasons assigned. The latter an affirmance of the same kind. Though the opinions of the chancellor and the arguments of the judges in the higher court, as delivered, are not part of the record nor in evidence, we know as a fact that the bill was dismissed, and that this dismissal was affirmed, because all the tribunals considered that a viaduct was not a "bridge," within the intent of the act of 1790. The whole matter turned, therefore, on a construction of that act. The constitutionality of the act of 1860 was not in question, nor was its meaning discussed.

It is not true that the entire subject of contracts, like that of foreign commerce, and commerce between the States, is placed under the regulation of the Federal Government. Were it so, then, in every case where a State court should adjudicate upon a contract, its decision ought to be subject to revision by Federal authority. On the contrary, to give to this court jurisdiction over a decree of a State court, supposed to decide in favor of the validity of a State statute, by the very words of the Judiciary Act, —

1st. The validity of the State statute must have been drawn in question; and the statute must have been in "dispute."

2d. There is but one ground on which the validity must have been drawn in question, i.e., the ground that the statute was repugnant to the Constitution of the United States.

3d. The decision of the Court must have been in favor of "such" its validity, with respect to the Constitution.

And it makes no difference whether the contract alleged to be impaired is an ordinary contract between private citizens, or a contract made by the State with citizens. State contracts, in this regard, are of no greater validity, and have no greater sanctity, than other contracts, whether they are in the shape of statutes, or charters, or grants of land, or franchises, or otherwise. In our case, the contract relied on is the act of 1790. The only law which is pretended to have impaired its obligation is the act of 1860, authorizing the defendants to construct their railroad and bridges. Does this law of 1860 impair the obligation of the alleged contract, contained in the act of 1790, giving to that contract any construction we choose? If it does not, then, although the courts of New Jersey may not have correctly construed that contract, this court has no jurisdiction, and cannot reverse their decision, any more than it could reverse the decision of the State court in any other case, however erroneous. The Commercial Bank v. Buckingham's Executors,^fn_ in this court is in point.

If a land proprietor, without any State legislation, had erected a bridge across the Hackensack River for his own use, within the prohibited limits, and the plaintiffs had sued him in the State courts as for an infringement of their franchise, could this court have reversed the decision of the State courts in the case? Certainly not. And why not? Because the case specified in the Constitution did not arise. No law was passed impairing the obligation of a contract. The decision of the State court on the validity and construction of the alleged contract would have been final. And so in this case, if no law has been passed impairing the obligation of the contract, the decision of the State court, though based on a construction of the contract, is final. If, indeed, a State court so interprets a State law as to make it operate to impair the obligation of a contract, that must be received here as the true reading of the law, and this court will then acquire jurisdiction. But, in this case, as we have said, the State court has not put any construction upon the act of 1860 to render it obnoxious to this objection. The act of 1790 it was which was considered; but even it was not drawn in question on the ground of its being repugnant to the Constitution of the United States, and there neither was nor could have been a decision that it was not so repugnant. As a result, indeed, of the construction put on the act of 1790, the act of 1860 may be to be regarded as constitutional; so may other acts of the legislature, or the bridge-building on the Hackensack of private individuals not under State authority. But the act of 1860 has not been drawn in question, nor ever considered. It was outside of what was involved, and might have sat down by itself to look calmly on the conflict which it had raised between the act of 1790 and the courts of New Jersey, who were about to strangle that act's extravagant pretensions. If this is so, then the whole question is a domestic one, which belongs to the exclusive jurisdiction of the New Jersey courts; and they may construe the contract of 1790 as they please, just as they might any other contract in litigation before them.

Undoubtedly where the only title of a plaintiff is a State statute, the decision of the suit in his favor is a decision in favor of the validity of the statute. Such were cases which the court will recall: Smith v. Maryland, (6 Cranch, 286;) Willson v. Blackbird Creek, (2 Peters, 245;) Craig v. State of Missouri, (4 Id., 410;) Martin v. Hunter's lessee, (1 Wheaton, 304.) So, where the title of the plaintiff is good, unless a State statute under which the defendant claims, gives the defendant a title, and the defendant has no other defence, a decision of the suit in the defendant's favor would seem to be a decision in favor of the validity of the latter statute. But where many defences are set up, and the defendant's acts are attributed to a State statute, how is the court to determine that the validity of the statute was drawn in question, as repugnant to the Constitution of the United States, and that the mere decision of the suit against the party raising the questions of validity, is a decision in favor of the validity of the statute, and not a decision entirely independent of that question?

For such cases the court have from time to time settled rules.

I. The State statute complained of must be stated in the record.^fn_ Here it is merely referred to.

II. It must be averred in the pleadings that the statute is void. This averment nowhere appears.

Medberry v. Ohio, 24 Id., 413.

III. The particular clause of the Constitution of the United States must appear by the record to have been specified by the plaintiffs in error in the State court; it is not enough to show that the question was involved, and might and ought to have been considered. Here the Constitution of the United States is not even mentioned in the record.

Hoyt v. Shelden, 1 Black, 518; Maxwell v. Newbold, 18 Howard, 515, 517.

IV. Any general charge of unconstitutionality of the statute, will not be considered as referring to the Constitution of the United States, but to the State Constitution.

Porter v. Foley, 24 Howard, 415.

The point insisted on, that the State cannot impair the contract, and other references to this incapacity of the State, are not so definite in the reference to a constitutional repugnance as the third exception in Maxwell v. Newbold, decided by this court, and must be referred to the State Constitution, if referable to any constitution.

Page 129 18 Id., 514, 516.

V. If it appears by the record that the cause might have been decided on the construction of a State statute not impeached, which admits of a construction consistent with the decision — without deciding in favor of the validity of the statute impeached — this court will not take jurisdiction.

Commercial Bank v. Buckingham Executors, 5 Id., 317.

That the decision in the principal case may be fairly referred to a construction of the act of 1790 alone, and to the courts' holding that a railroad viaduct is not a bridge, in the sense that the word "bridge" is used in the act of 1790, is manifest by the fact that the same decision of that question has been made in numerous cases; and in the opinions of the chancellor and Court of Errors in the principal case, which are not cited to show what the decision was, but that the case will admit of such decision without deciding on the validity of any statute. This we have already said.

Cited post, in the opinion of the court, ad finem.

VI. Nor, as we have said also already, and in our general remarks, will the court take jurisdiction, if they see that, on a view of the case that might have been taken by the State court, it is a question depending on general principles of State law, as one or more of the defences do in the principal case. In other words, a controversy which turns entirely upon the interpretation of State laws is exclusively within the jurisdiction of the State courts, if they first acquire jurisdiction, and the Supreme Court of the United States has no appellate power over them.^fn_

VII. Nor will the court take jurisdiction, when the court below decided the cause on a question of practice.^fn†

The last defence against the relief prayed, is that a rule of practice in equity will prevent an injunction; and that rule is, that where the owner of a franchise (as of a ferry), neglects to exercise it (provide proper boats, c.), the court will not interfere by injunction to protect the franchise from invasion. In the principal case, the structure complained of was a railroad bridge or viaduct, and the complainants had not provided such a bridge, although they claimed a right to prevent its construction.

II. How stands the case as respects contract?

1. Is there any contract in the case? The act of 1790 is a mere act of legislation; a measure by which the State, for the benefit of all, carries on a public work. The commissioners were vested with a portion of political power. There was no consideration for any contract with them. In a country where there is less indisposition to the granting of monopolies than in ours, Sir Wm. Scott says, with profound truth:^fn‡ "A general presumption is, that government does not mean to divest itself of a universal attribute of sovereignty, unless it is so clearly and unequivocally expressed. The wise policy of our law, which interprets grants of the crown in this respect, by other rules than those which are applied in the construction of grants of individuals, must be taken in conjunction with the universal presumption. Against an individual, it is presumed he meant to convey a benefit, with the utmost liberality his words will allow. It is indifferent to the public in which person an interest remains, whether in the grantor or grantee. With regard to the grant of the sovereign it is far otherwise. It is not held by the sovereign as private property; and no alienation shall be presumed, except that which is clearly and indisputably expressed."

2. But, if the legislature had directly contracted with the bridge proprietors, that for ninety-nine years no other bridge within these limits should be authorized or built, would such law be valid to bind future legislatures as a contract? The power to make roads and build bridges is a governmental power. It is always a part of the sovereign or legislative power, and the duty to provide them is correlative. In New Jersey, now, as in 1790, all legislative power is in the Senate and Assembly, elected periodically by the people. No legislature can rest it or any part of it in any other body, or place it beyond the control of the next elected legislative body. Their only power is to exercise, not to alien their powers. The grant of a power or a franchise is a grant of property; it is an act of legislative power, not an abdication of such power. But if the franchise or power attempted to be granted is not property, but part of the legislative or sovereign power, the grant is void; it is revolution, or constitution-making, not legislation. The legislature could not grant away nor limit the power of future legislatures to punish crimes, to establish courts, to regulate succession to property, or to suppress drunkenness, in the whole State or in any section of it. These are not more properly or peculiarly legislative powers, than the power of making and regulating roads or bridges. If the legislature were to incorporate a prison discipline society, or juvenile reform society, and to enact that it should not be lawful without their consent to punish capitally any one under seventeen years of age, either in the State, or in the county where such institution was, this as law, while unrepealed, would be good, but as a contract it would not take away the power of future legislatures. An act incorporating a law school, with a provision that no Supreme Court judge should be appointed in this State, except from its pupils; or, incorporating a large hotel at the seat of government, with a provision that it should not be lawful for any legislature afterwards to prohibit the sale of ardent spirits in any quantities, and that no taverns should ever afterwards be licensed; or incorporating a bank, with provisions that no future legislature should allow any other power or corporation to transact any banking business, — are examples of the same kind of legislation as the grant of the monopoly, if any monopoly ever was granted, which we deny. On the theory of the complainants, a legislature of any peculiar views on vexed questions of government, could by a section in a charter bind all future legislatures from exercising legislative powers, and fix the law forever. All will agree that such acts would be void.

This bridge act, preventing the legislature for ninety-nine years exercising a clear governmental or legislative power needed for the public prosperity and protection, is of the same kind; the same as if it had been enacted that murder there should never be punished with death; or selling of liquor should be forever free.

If one power of legislation may be parted with or placed under the veto of a private corporation, not to be resumed, so may every power successively be and by degrees, and future legislatures may be such in name only. The government controlled by corporations would not be the republican government guaranteed by the Constitution.

This company can have no property or grant of property in the river, except in the length occupied by their own bridge. They have paid nothing to the public or to land-owners above or below for this incumbrance or incubus upon them that they should be for ninety-nine years deprived of the benefits of legislative protection.

3. Is the contract, admitting one, impaired?

The act of 1860 provides compensation for every right, privilege, franchise, or property which might be necessary to be exercised, used, appropriated, or taken in the construction of the railroad or bridges of the defendants. The exclusive right here claimed is a franchise. That such a right of franchise may be taken or extinguished for public purposes on compensation given, is settled at the present day.^fn_ A contract is property, but is no more sacred than other property. Its obligation is not impaired, but is recognized, when compensation is provided for its infringement.

III. The structure is not a bridge within the meaning of the act of 1790. Such a structure as the defendants propose to build, it had not, in 1790, entered into any man's mind to conceive of. He would have been regarded as a dreamer, or insane, who at that time had spoken seriously of such a fabric as is described in this case.^fn† Now there are certain rules for the construction of grants, long established in the law. They come to us with the common law of England, are very ancient, and very settled. They may be found in the oldest reporters. One of them is thus enunciated in Lord Hobart's reports: "Words in grants shall be construed according to a reasonable and easie sense; not strained to things unlikely or unusual;" ^fn‡ and this rule, the great chief justice of King James I, illustrates by a case more ancient than his own day; citing a decision from 14 Henry VIII, "that if a man grant all his woods and trees, apple-trees do not pass." "Every grant," says another old reporter, Croke,^fn§ "shall be expounded as the intent was at the time of the grant; as if I grant an annuity to J.S., until he be promoted to a competent benefice, and at the time of the grant he was but a mean person, and afterward is made an archdeacon, yet, if I offer him a competent benefice, according to his estate at the time of the grant, the annuity doth cease."

As respects royal or government grants, it is an equally settled rule, that nothing passes by general words or by implication. The reasons are set forth by Sir William Scott, in the passage already cited.^fn_ Hence we gather from Plowden ( Case of the Mines)^fn† that if the King grants lands and the mines therein contained, it will pass only common mines, not mines of gold or silver; for the words in their common sense are satisfied by the passing of the more usual ones. So Sir John Davies, Chief Justice of Ireland in the time of James I, reports, that where the King granted to Sir R.M. all the territories adjoining a river, and all the fisheries within it, except three parts of the Fishery of Banne, the fourth part did not pass to him, for the King's grants pass nothing by implication.^fn‡ The same doctrine is declared in Rolle's Abridgment, under the head of "Prerogative Le Roy." ^fn§

The special character of the structure, and its want of resemblance to a bridge, is set forth in the defendants' answer.^fn Neither man nor beast can cross on it, save in the defendants' cars. The viaduct is for a kind of vehicle which no bridge known in 1790 can carry. It is wholly open. The only roadway is two or more iron rails, separated by a distance of four feet asunder. It is in fact no more a bridge than a sieve is a bucket.

Such a structure, it has been decided in North Carolina and in New York, is not a bridge.^fn¶ If in Connecticut a different decision has been given in the Enfield Bridge case — a case which will be cited and relied on by the other side — it was in a case where the viaduct was planked and railed, which made a secure roadway for man, beast, and vehicles.

Mr. Zabriskie for the Bridge Proprietors:

1. Has this court jurisdiction to revise? The plaintiffs claim that they are protected by a contract with the State from any bridge being erected within certain limits, and that the State cannot, by law, impair that contract. They complain further that the State had passed such law, and that the defendants were proceeding under it to erect such bridge. The defendants admit the law, alleged to violate that contract, and that they are under it proceeding to erect this bridge. They deny the contract, or that the contract prohibits the erection of a railroad bridge.

The act of 1860 is the only authority the defendants have. No bridge can be erected over a navigable river but by authority of the sovereign. The record shows that the whole right depended on this statute. The decision dismissing the bill and refusing all relief, was in favor of the statute and the authority exercised under it. The validity of the statute of 1860 and the authority exercised under it was therefore drawn in question, as being repugnant to the Constitution of the United States. This was not done in words so reciting, or pointing out the clause of the Constitution, but by stating that it was in violation of the contract; in the words of the Constitution, that "it impaired the obligation of the contract." The defence was on the ground that the act or the bridge did not impair the obligation of the contract; either that there was no contract or that it did not extend to a railroad bridge. The record shows that this was the question raised and argued, and as there could be no decision in favor of the defendant except by holding the act and authority valid, the record shows by necessary intendment that this was the decision of the State court. If this appears, this court has jurisdiction by the uniform current of decisions in this court to this time. Crowell v. Randell ^fn_ is the leading case. All cases recognize it.^fn†

2. Is there a contract in the case? This we consider too plain for extended argument. The language of the act is pleonastically full on that subject. It declares that the contract of the commissioners shall bind the State of New Jersey, "to all intents and purposes whatsoever, as if the same and every part, covenant, and condition therein contained had been particularly and expressly set forth and enacted."

3. Does the act of 1860 violate this contract? There is nothing in the act to show that the legislature intended to limit the words which it uses, or to make them inconsistent with the meaning which they have from their natural force. The words are " any other bridge;" words of the widest import; and which taken in connection with the fact that any kind of bridges would impair the income and value of the bridge erected by the plaintiffs, should settle the question. No lexicographer confines the meaning of the word to old-fashioned bridges, for old-fashioned coaches; the American "article" of the specific year of grace, 1790. In encyclopædias; in works on railway engineering; in acts of Parliament and of our legislatures authorizing railways; in all works written in the English language, by good authors, in which railway bridges are spoken of, they are called bridges, and the very act of 1860 brought here in question, uses the word "bridge" to designate railroad bridges; so using it seven times in its first section. The tubular iron structure for railroads over the Straits of Menai and over the St. Lawrence at Montreal, are well known wherever the language is spoken, as the Menai bridge and the Victoria bridge. Neither of them, any more than the defendants' bridge or other railway bridges, have a footway; and, though an agile pedestrian might clamber over any of them, such use would thwart the purpose of their construction, and be at great peril to life. The subject-matter of the contract was to prohibit any injurious competition by bridges within the prescribed limits. Beyond the limits they were not to be protected; and within the limits only against bridges, not against ferries, tunnels, balloons, or any other device. The object was, that all passengers and cattle, and produce and goods, carried in the vehicles on which they had a right to take toll, should have no other way of passing the river on any bridge within these limits but this. This would compel them to cross by plaintiffs' bridge or to go out of their way, or by an inconvenient and tedious ferry-boat. And the intent of the legislature was, by this covenant, to induce capitalists to expend their money in building bridges which would not at first remunerate them, but by a long monopoly would. The object would not have been effected by protecting them only against a bridge like their own, which, if erected, would only take away one-half their custom, and allowing a railroad bridge, which would take away nineteen-twentieths of it. Had the act of 1790 contained in the contract against any other bridge, an exception of a railroad bridge, or plank road bridge, or any other bridge which might be used for any improved system of travel thereafter to be brought in use, the persons who built this bridge would never have undertaken it. A toll bridge, or a free bridge, or a bridge, which, like this, is used as part of a railroad line, charging no tolls eo nomine, but a fare for being carried over the whole route, in which compensation for the use of the bridge is included, all are within the object and intent of this prohibition. They all carry passengers, animals, and freight, that without them would pass over this bridge of the plaintiffs and pay tolls. The object and intent of the legislature coincide with the subject-matter of the act, and can only be carried out by prohibiting "any other bridge." It is idle to say that the plaintiffs cannot charge toll for locomotives, cars, elephants, c., and are not bound to provide bridges for them, and, therefore, bridges can be built to accommodate them; and all passengers and carriages that should otherwise go over plaintiffs' bridge, be carried on these new bridges. If the contract is clear, and the bridges both within the letter and object of it, the State must adhere to its contract although improvident.

In The Enfield Toll-Bridge Company v. The Hartford and New Haven Railway Company,^fn_ the point now before this court was fully argued in a full bench. Williams, C.J., one of the ablest of the jurists of America, in delivering the opinion of the court speaks as follows. We cite his language as much for its cogency, as we do the judgment for its authority. Thus he speaks for the law. It is impossible that we can speak more potently for ourselves. Let his exposition of law be our argument in the case. We adopt his language as our own:

"What is a bridge? It is a structure of wood, iron, brick or stone, ordinarily erected over a river, brook, or lake, for the more convenient passage of persons or beasts, and the transportation of baggage; and whether it is a wide raft of logs floating upon the water, and bound with withes, or whether it rests on piles of wood, or stone abutments or arches, it is still a bridge. The particular manner in which the structure is built is not described; but it is said to be much in the manner common to railroad bridges, — the bottom covered with plank and the sides secured by railing. It is a matter of notoriety that railroad bridges are built upon solid abutments of mason-work and resting on piers of stone between the abutments, thus giving strength and security to the frame above. It is not easy to see wherein such a structure differs from an ordinary bridge, except that, as it is to endure a greater burden, it is more solid and substantial. It is true the planks and rails upon it are laid in a manner most convenient for the cars which are to pass it, and not convenient for, perhaps not admitting, common vehicles, and not intended for, though admitting, the passage of foot-passengers.

"It would seem, therefore, as if this was what would be ordinarily called a bridge. But we agree that it is not the name which is sufficient to designate it. We must then consider the object: What was the intent of this structure? The safe and expeditious passage of persons, whether from greater or less distances, over this stream, in the cars or carriages provided for that purpose, together with all baggage or freight intrusted to the care of the company. It may not, and it is not intended to accomplish all the objects of a common bridge, as it is not adapted to the common vehicles in use; but can that fact change its character as a bridge? A bridge adapted only to foot-passengers would be still a bridge; and it would hardly be claimed that such a bridge might be erected by the side of the plaintiffs' under the provisions of this act. We find then a structure of the form of a bridge, with the name of a bridge and of the character of a bridge. But go a step further, and see if it is not doing the business of a bridge? Certain facts are not specifically found, which we all know must exist, such as — that every passenger in the cars must cross this river upon this bridge, within the limits secured to the plaintiffs. It is constantly doing at least some, if not much, of the business which the plaintiffs had a fair right to expect under their grant.

"We find then this structure with the form of a bridge, with the name of a bridge, with the character of a bridge, doing its work, and in this way doing the very injury to the plaintiffs which this proviso was designed to guard against. We cannot, then, but conclude that it is a bridge.

"It is said it is not the bridge contemplated in the act, or `another bridge.' It cannot be claimed that by another bridge was intended a bridge exactly like this, or that a bridge of iron or stone would not be within the provisions, or even a bridge of boats; nor can it be claimed that a bridge much safer or stronger would be equally within the prohibitions. Nor is it the improvement in the structure of the bridge, nor the additional safety it affords to travellers, that will give the rights, or constitute it `another bridge.'

"It is further claimed, that when the plaintiffs' charter was granted, railroads were unknown; therefore it cannot be supposed the legislature intended bridges connected with railroads. But whether the fact is so or not it can make no difference. Is a grant of this kind, which we here adjudged to be a contract, to be set aside, because an advantage not contemplated at the time may result from its violation? Is there any implied condition in such a grant, that, upon some new improvement being made, the grant should be void? How would such a claim be treated in other cases of great public improvement? Suppose the city of New York had leased Fulton Ferry for a term of years, when no boats were known but those which were moved by the hand and wind or tide; after the introduction of steamboats, could they have leased the ferry to the persons who would navigate it by steam? Or could the legislature do this, if they had granted the ferry? We know of no principle by which this case can be distinguished from that."

This opinion is an answer to all that has been said by the opposite side on the point which it treats of; an answer to which that side can find no reply.

The case cited by the other side, from North Carolina, does not decide anything contrary to this. The suit was one for a penalty in violating an act of Assembly, passed in 1756, to encourage B. Herron to build a bridge over the Cape Fear River. Among other enactments made by the Assembly was this one: "It shall not be lawful for any person whatever to keep any ferry, build any bridge, or set any person or persons, carriage or carriages, cattle, c., over the said river for fee or reward, within six miles of the same, under a penalty of twenty shillings for each offence."

The defendants pleaded specially a charter of 1833 to themselves.

Pearson, J., in deciding the case, said that it was unreasonable on the part of Herron, in consideration of the services he was to perform, to exact a perpetual monopoly of setting persons and property over the river by means of his bridge, so that it should never thereafter be in the power of the Governor, Council, and Assembly, no matter what might be the change in the condition of things, either in reference to the increased necessity for transports across the river, or the improved modes of transportation, to authorize any other mode of crossing the river, c. "Suppose, for instance, two cities had grown up, one on either side of the river, so that the necessities of the public should call for a dozen such bridges, or the progress of science had called for a tunnel under the river, or a line of balloons over the river or a railroad rushing by steam from one extremity of the continent to the other, across the rivers, was it the meaning of the parties that the government tied its own hands, and disabled itself for all time to come from doing its duty?"

But the Judge declines to decide the case upon that ground, and says:

"We are not, however, under the necessity of putting the decision upon the mere question of construction, for the Declaration of Rights at once puts an end to any such unreasonable pretension or claim to an hereditary and perpetual monopoly as that set up by the plaintiffs. Declaration of Rights, § 3, says `that no set of men are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services;' § 22, `that no hereditary emoluments, privileges, or honors ought to be granted or conferred in this State;" § 23, `that perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.'"

And the case, proceeding entirely upon the peculiar Constitution of North Carolina, is evidently of no authority outside of that State.

The case cited from New York — even if it were in point — is more than answered by the reasoning of Williams, C.J., in the case of the Enfield Toll Bridge, which we have quoted at large a page or two back.