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The power of the legislature to preclude itself in any case from exercising the power of eminent domain is not so plainly decided. It must be conceded, under the authorities, that the State may grant exclusive franchises, - like the right to construct the only railroad which shall be built between certain termini; or the only bridge which shall be permitted over a river between specified limits; or to own the only ferry which shall be allowed at a certain point,1 — but the grant of an exclusive privilege will not prevent the legislature from exercising the power of eminent domain in respect thereto. Franchises, like every other thing of value, and in the nature of property, within the State, are subject to this power, and any of their incidents may be taken away, or themselves altogether annihilated by means of its exercise. And it is believed that an express agreement in the charter, that the power of eminent domain should not be so exercised as to impair or affect the franchise granted, if not void as an agreement beyond the power of the legislature to make, must be considered as only a valuable portion of the privilege secured by the grant, and as such
liable to be appropriated under the power of eminent [* 282] domain. The exclusiveness * of the grant, and the agree
ment against interference with it, if valid, constitute elements in its value to be taken into account in assessing compensation ; but appropriating the franchise in such a case no more violates the obligation of the contract than does the appropriation of land which the State has granted under an express or implied agreement for quiet enjoyment by the grantee, but which nevertheless may be taken when the public need requires. All grants are subject to this implied condition; and it may well be worthy of inquiry, whether the agreement that a franchise granted shall not afterwards be appropriated can have any other or greater force than words which would make it an exclusive franchise, but which, notwithstanding, would not preclude a subsequent grant
· West River Bridge Co. v. Dix, 16 Vt. 446, and 6 How. 507; Binghampton Bridge Case, 3 Wal. 51; Shorter v. Smith, 9 Geo. 529; Piscataqua Bridge o. N. H. Bridge, 7 N. H. 35; Boston Water Power Co. o. Boston and Worcester R.R. Co., 23 Pick. 360; Boston and Lowell R.R. v. Salem and Lowell R.R., 2 Gray, 9; Costar v. Brush, 25 Wend. 628; California Telegraph Co. v. Alta Telegraph Co., 22 Cal. 398.
Matter of Kerr, 42 Barb. 119; Endfield Toll Bridge Co. v. Hartford and N. H. R.R. Co., 17 Conn. 40, 454; West River Bridge Co. v. Dix, 16 Vt. 446, and 6 How. 507.
on making compensation. The words of the grant are as much in the way of the grant of a conflicting franchise in the one case as in the other.
It has also been intimated in a very able opinion that the * police power of the State could not be alienated even [* 283] by express grant. And this opinion is supported by those
* Mr. Greenleaf, in a note to his edition of Cruise on Real Property, Vol. II. p. 67, says upon this subject : In regard to the position that the grant of the franchise of a ferry, bridge, turnpike, or railroad, is in its nature exclusive, so that the State cannot interfere with it by the creation of another similar franchise, tending materially to impair its value, it is with great deference submitted that an important distinction should be observed between those powers of government which are essential attributes of sovereignty, indispensable to be always preserved in full vigor, such as the power to create revenues for the public purposes, to provide for the common defence, to provide safe and convenient ways for the public necessity and convenience, and to take private property for public uses, and the like, and those powers which are not thus essential, such as the power to alienate the lands and other property of the State, and to make contracts of service, and of purchase and sale, or the like. Powers of the former class are essential to the constitution of society, as without them no political community can well exist; and necessity requires that they should continue unimpaired. They are intrusted to the legislature to be exercised, not to be bartered away; and it is indispensable that each legislature should assemble with the same measure of sovereign power which was held by its predecessors. Any act of the legislature disabling itself from the future exercise of powers intrusted to it for the public good must be void, being in effect a covenant to desert its paramount duty to the whole people. It is therefore deemed not competent for a legislature to covenant that it will not, under any circumstances, open another avenue for the public travel within certain limits, or in a certain term of time; such covenant being an alienation of sovereign powers, and a violation of public duty." See also Redfield on Railways (3d ed.), Vol. I. p. 258. That the intention to relinquish the right of eminent domain is not to be presumed in any legislative grant, see People v. Mayor, &c., of New York, 32 Barb. 113; Illinois and Michigan Canal v. Chicago and Rock Island Railroad Co., 14 Ill. 321.
? "We think the power of the legislature to control existing railways in this respect may be found in the general control over the police of the country, which resides in the law-making power in all free States, and which is, by the fifth article of the Bill of Rights in this State, expressly declared to reside perpetually and inalienably in the legislature, which is, perhaps, no more than the enunciation of a general principle applicable to all free states, and which cannot therefore be violated so as to deprive the legislature of the power, even by express grant, to any mere public or private corporation. And when the regulation of the police of a city or town, by general ordinances, is given to such cities or towns, and the regulation of their own internal police is given to railroads, to be carried into effect by their by-laws and other regulations, it is, of course, always, in all such cases, subject to the superior control of the legislature. That is &
cases where it has been held that licenses to make use of property in certain modes may be revoked by the State, notwithstanding they may be connected with grants and based upon a consideration. But this subject we shall recur to hereafter.
It would seem, therefore, to be the prevailing opinion, and one based upon sound reason, that the State could not barter away, or in any manner abridge or weaken, any of those essential powers which are inherent in all governments, and the existence of which in full vigor is important to the well-being of organized society; and that any contracts to that end, being without authority, cannot be enforced under the provision of the national Constitution now under consideration. If the tax cases are to be regarded as an exception to this statement, the exception is perhaps to be considered a nominal rather than a real one, since taxation is for the purpose of providing the State a revenue, and the State laws which have been enforced as contracts in these
case have been supposed to be based upon consideration, [* 284] * by which the State receives the benefit which would have
accrued from an exercise of the relinquished power in the ordinary mode.
responsibility which legislatures cannot, divest themselves of, if they would.” Thorpe v. R. & B. R.R. Co., 27 Vt. 149, per Redfield, Ch. J. See also Indianapolis, &c., R.R. Co. v. Kercheval, 16 Ind. 81; Ohio, &c., R.R. Co. v. M'Clelland, 25 Ill. 140. See State v. Noyes, 47 Me. 189, on the same subject. In Bradley v. McAtee, 7 Bush, 367; s. c. 3 Am. Rep. 309, it was decided that a provision in a city charter that, after the first improvement of a street, repairs should be made at the expense of the city, was not a contract; and on its repeal a lot owner, who had paid for the improvement, might have his lot assessed for the repairs. Compare Hammett v. Philadelphia, 65 Penn. St. 146; 8. C. 3 Am. Rep. 615.
See, upon this subject, Brick Presbyterian Church v. Mayor, &c., of New York, 5 Cow. 538; Vanderbilt v. Adams, 7 Cow. 349; State v. Sterling, 8 Mo. 697; Hirn v. State, 1 Ohio, N. s. 15; Calder v. Kurby, 5 Gray, 597; Brimmer v. Boston, 102 Mass. 19. Whether a State, after granting licenses to sell liquors for which a fee is received, can revoke them by a general law forbidding sales, is in dispute upon the authorities. See Freleigh v. State, 8 Mo. 606; State v. Sterling, ib. 697; Calder v. Kurby, 5 Gray, 597; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; and Commonwealth v. Brennan, 103 Mass. 70, which hold that it may: and State v. Phalen, 3 Harr. 441; Adams v. Hackett, 7 Fost. 294; and Boyd v. State, 46 Ala., which are contra. See also State v. Hawthorn, 9 Mo. 389. If it has the power, it would seem an act of bad faith to exercise it, without refunding the money received for the license. Hirn v. State, 1 Ohio, n. s. 21.
We have said in another place that citizens have no vested right in the existing general laws of the State which can preclude their amendment or repeal, and that there is no implied promise on the part of the State to protect its citizens against incidental injury occasioned by changes in the law. Nevertheless there may be laws which amount to propositions on the part of the State, which, if accepted by individuals, will become binding contracts. Of this class are perhaps to be considered bounty laws, by which the State promises the payment of a gratuity to any one who will do any particular act supposed to be for the State interest. Unquestionably the State may repeal such an act at any time;but when the proposition has been accepted by the performance of the act before the law is repealed, the contract would seem to be complete, and the promised gratuity becomes a legal debt. And where a State was owner of the stock of a bank, and by the law its bills and notes were to be received in payment of all debts due to the State, it was properly held that this law constituted a contract with those who should receive the bills before its repeal, and that a repeal of the law could not deprive these holders of the right which it assured. Such a law, with the acceptance of the bills under it, “ comes within the definition of a contract. It is a contract founded upon a good and valuable consideration, — a consideration beneficial to the State, as its profits are increased by sustaining the credit, and consequently extending the circulation of the paper of the bank.”3
That laws permitting the dissolution of the contract of marriage are not within the intention of the clause of the Constitution under discussion seems to be the prevailing opinion. It has been intimated, however, that, so far as property rights are concerned, the contract must stand on the same footing as any other, and that a law passed after the marriage, vesting the property in the wife for
Christ Church v. Philadelphia, 24 How. 300; East Saginaw Salt Manuf. Co. v. East Saginaw, 19 Mich. 259; s. C. 2 Am. Rep. 82, and 13 Wall. 373.
? People v. Auditor-General, 9 Mich. 327. See Montgomery v. Kasson, 16 Cal. 189; Adams v. Palmer, 51 Me. 480.
3 Woodruff v. Trapnall, 10 How. 190. See Winter v. Jones, 10 Geo. 190; Furman v. Nichol, 8 Wall. 44; Antoni v. Wright, 22 Grat. 833.
* Per Marshall, Ch. J., Dartmouth College v. Woodward, 4 Wheat. 629; Maguire v. Maguire, 7 Dana, 183; Clark v. Clark, 10 N. H. 385; Cronise v. Cronise, 54 Penn. St. 255; Carson v. Carson, 40 Miss. 349; Adams v. Palmer, 51 Me. 480.
her sole use, would be void, as impairing the obligation of [* 285] contracts.1 * But certainly there is no such contract embraced in the marriage as would prevent the legislature changing the law, and vesting in the wife solely all property which she should acquire thereafter; and if the property had already become vested in the husband, it would be protected in him, against legislative transfer to the wife, on other grounds than the one here indicated.
"The obligation of a contract," it is said, "consists in its binding force on the party who makes it. This depends upon the laws in existence when it is made; these are necessarily referred to in all contracts, and forming a part of them as the measure of the obligation to perform them by the one party, and the right acquired by the other. There can be no other standard by which to ascertain the extent of either, than that which the terms of the contract indicate, according to their settled legal meaning; when it becomes consummated, the law defines the duty and the right, compels one party to perform the thing contracted for, and gives the other a right to enforce the performance by the remedies then in force. If any subsequent law affect to diminish the duty, or to impair the right, it necessarily bears on the obligation of the contract, in favor of one party, to the injury of the other; hence any law which, in its operations, amounts to a denial or obstruction of the rights accruing by a contract, though professing to act only on the remedy, is directly obnoxious to the prohibition of the Constitution." "It is the civil obligation of contracts which [the Con
1 Holmes v. Holmes, 4 Barb. 295.
2 McCracken v. Hayward, 2 How. 612. "The obligation of a contract. . is the law which binds the parties to perform their agreement. The law, then, which has this binding obligation, must govern and control the contract, in every shape in which it is intended to bear upon it, whether it affects its validity, construction, or discharge. It is, then, the municipal law of the State, whether that be written or unwritten, which is emphatically the law of the contract made within the State, and must govern it throughout, whenever its performance is sought to be enforced." Washington, J., in Ogden v. Saunders, 12 Wheat. 259. "As I understand it, the law of the contract forms its obligation." Thompson, J., ib. 302. The obligation of the contract consists in the power and efficacy of the law which applies to, and enforces performance of, the contract, or the payment of an equivalent for non-performance. The obligation does not inhere and subsist in the contract itself, proprio vigore, but in the law applicable to the contract. This is the sense, I think, in which the Constitution uses the term 'obligation.' Trimble, J., ib. 318. And see Van Baumbach v. Bade, 9 Wis.