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against legislative revocation, a vested equitable interest being property in the same sense and entitled to the same protection as a legal.1
Those charters of incorporation, however, which are granted, not as a part of the machinery of the government, but for the private benefit or purposes of the corporators, stand upon a different footing, and are held to be contracts between the legislature and the corporators, having for their consideration the liabilities and duties which the corporators assume by accepting them; and the grant of the franchise can no more be resumed by the legislature, or its benefits diminished or impaired without the consent of the grantees, than any other grant of property or valuable thing, unless the right to do so is reserved in the charter itself.? ratably to the city and county." And see Bush v. Shipman, 4 Scam. 190; Richland County v. Lawrence County, 12 Ill. 1; Borough of Dunmore's Appeal, 52 Penn. St. 374; Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N.Y., 143; ante, 235-239, and cases cited.
1 See Town of Pawlet v. Clark, 9 Cranch, 292, and Terrett v. Taylor, 9 Cranch, 43. The municipal corporation holding property or rights in trust might even be abolished without affecting the grant; but the Court of Chancery might be empowered to appoint a new trustee to take charge of the property, and to execute the trust. Montpelier v. East Montpelier, 29 Vt. 12.
· Dartmouth College v. Woodward, 4 Wheat. 519; Trustees of Vincennes University v. Indiana, 14 How. 268; Planters Bank v. Sharp, 6 How. 301 ; Piqua Bank v. Knoop, 16 How. 369; Binghampton Bridge Case, 3 Wal. 51; Norris v. Trustees of Abingdon Academy, 7 G. & J. 7; Grammar School v. Burt, 11 Vt. 632; Brown v. Hummel, 6 Penn. St. 86 ; State v. Heyward, 3 Rich. 389; People 0. Manhattan Co., 9 Wend. 351; Commonwealth v. Cullen, 13 Penn. St. 133; Commercial Bank of Natchez v. State, 14 Miss. 599; Backus v. Lebanon, 11 · N. H. 19; Michigan State Bank o. Hastings, 1 Doug. (Mich.) 225; Bridge Co. v. Hoboken Co., 2 Beas. 81; Miners Bank v. United States, 1 Greene (Iowa), 553; Edwards v. Jagers, 19 Ind. 407 ; State v. Noyes, 47 Me. 189; Bruffet v. G. W. R.R. Co., 25 Ill. 353 ; People v. Jackson and Michigan Plank Road Co., 9 Mich. 285; Bank of the State v. Bank of Cape Fear, 13 Ired. 75; Mills v. Williams, 11 Ired. 558; Hawthorne v. Calef, 2 Wal. 10; Wales v. Stetson, 2 Mass. 146; Nichols v. Bertram, 3 Pick. 342; King v. Dedham Bank, 15 Mass. 447; State v. Tombeckbee Bank, 2 Stew. 30; Central Bridge v. Lowell, 15 Gray, 106 ; Bank of the Dominion v. McVeigh, 20 Grat. 457. The mere passage of an act of incorporation, however, does not make the contract; and it may be repealed prior to a full acceptance by the corporators. Mississippi Society v. Musgrove, 44 Miss. 820; 8. c. 7 Am. Rep. 723. It is under the protection of the decision in the Dartmouth College Case that the most enormous and threatening powers in our country have been created; some of the great and wealthy corporations actually having greater influence in the country at large and upon the legislation of the country than the States to which they owe their corporate existence.
[* 280] * Perhaps the most interesting question which arises in
this discussion is, whether it is competent for the legislature to so bind up its own hands by a grant as to preclude it from exercising for the future any of the essential attributes of sovereignty in regard to any of the subjects within its jurisdiction; whether, for instance, it can agree that it will not exercise the power of taxation, or the police power of the State, or the right of eminent domain, as to certain specified property or persons ; and whether if it shall undertake to do so, the agreement is not void on the general principle that the legislature cannot diminish the power of its successors by irrepealable legislation, and that any other rule might cripple and eventually destroy the government itself. If the legislature has power to do this, it is certainly a very dangerous power, exceedingly liable to abuse, and may possibly come in time to make the constitutional provision in question as prolific of evil as it ever has been, or is likely to be, of good.
So far as the power of taxation is concerned, it has been so often Every privilege granted or right conferred — no matter by what means or on what pretence — being made inviolable by the Constitution, the government is frequently found stripped of its authority in very important particulars, by unwise, careless, or corrupt legislation; and a clause of the Federal Constitution, whose purpose was to preclude the repudiation of debts and just contracts, protects and perpetuates the evil. To guard against such calamities in the future, it is customary now for the people in framing their constitutions to forbid the granting of corporate powers except subject to amendment and repeal; but the improvident grants of an early day are beyond their reach.
In Mills v. Williams, 11 Ired. 561, Pearson, J., states the difference between the acts of incorporation of public and private corporations as follows: “ The substantial distinction is this. Some corporations are created by the mere will of the legislature, there being no other party interested or concerned. To this party a portion of the power of the legislature is delegated, to be exercised for the general good, and subject at all times to be modified, changed, or annulled. Other corporations are the result of contract. The legislature is not the only party interested; for, although it bas a public purpose to be accomplished, it chooses to do it by the instrumentality of a second party. These two parties make a contract. The legislature, for and in consideration of certain labor and outlay of money, confers upon the party of the second part the privilege of being a corporation, with certain power and capacities. The expectation of benefit to the public is the moving consideration on one side, that of expected remuneration for the outlay is the consideration on the other. It is a contract, and therefore cannot be modified, changed, or annulled, without the consent of both parties." An incorporated academy, whose endowment comes exclusively from the public, is a public corporation. Dart v. Houston, 22 Geo. 506. Compare State o. Adams, 44 Mo. 570.
decided by the Supreme Court of the United States, though not without remonstrance on the part of State courts, that an agreement by a State, for a consideration received or supposed to be received, that certain property, rights, or franchises shall be exempt from taxation, or be taxed only at a certain * agreed [* 281] rate, is a contract protected by the Constitution, that the question can no longer be considered an open one. In any case, however, there must be a consideration, so that the State can be supposed to have received a beneficial equivalent; for it is conceded on all sides that if the exemption is made as a privilege only, it may be revoked at any time.3
| Mechanics and Traders Bank v. Debolt, 1 Ohio, n. s. 591; Toledo Bank v. Bond, ib. 622; Knoop v. Piqua Bank, ib. 603 ; Milan and R. Plank Road Co. v. Husted, 3 Ohio, n. s. 578; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 69; Brewster v. Hough, 10 N. H. 143; Backus v. Lebanon, 11 N. H. 24; Thorpe v. R. & B. R.R. Co., 27 Vt. 140; Brainard v. Colchester, 31 Conn. 410; Mott v. Pennsylvania R.R. Co., 30 Penn. St. 9; East Saginaw Salt Manuf. Co. v. East Saginaw, 19 Mich. 259. See also the dissenting opinion of Mr. Justice Miller in Washington University v. Rouse, 8 Wal. 441, in which the Chief Justice and Justice Field concurred. Also Raleigh, &c., R.R. Co. v. Reid, 64 N, C. 155.
2 New Jersey v. Wilson, 7 Cranch, 164; Gordon v. Appeal Tax Court, 3 How. 133; Piqua Bank v. Knoop, 16 How. 369; Ohio Life and Trust Co. v. Debolt, ib. 416; Dodge v. Woolsey, 18 How. 331; Mechanics and Traders Bank v. Debolt, 18 How. 380; Mechanics and Traders Bank v. Thomas, ib. 381; McGee v. Mathis, 4 Wal. 143; Home of the Friendless v. Rouse, 8 Wal. 430; Washington University v. Rouse, ib. 431 ; Wilmington R.R. Co. v. Reid, 13 Wal. 264; Raleigh and Gaston R.R. Co. v. Reid, ib. 269. See also Atwater v. Woodbridge, 6 Conn. 223; Osborne v. Humpbrey, 7 Conn. 335; Parker v. Redfiel.), 10 Conn. 495; Landon v. Litchfield, 11 Conn. 251 ; Herrick v. Randolph, 13 Vt. 525; Armington v. Barnet, 15 Vt. 751; O'Donnell v. Bailey, 24 Miss. 386; St. Paul, &c., R.R. Co. v. Parcher, 14 Minn. 297.
3 Christ's Church v. Philadelphia, 24 How. 300; Brainard v. Colchester, 31 Conn. 410. See also Commonwealth v. Bird, 12 Mass. 412; Dole v. The Governor, 3 Stew. 387. If an exemption from taxation exists in any case,
it must be the result of a deliberate intention to relinquish this prerogative of sovereignty, distinctly manifested. Easton Bank v. Commonwealth, 10 Penn. St. 450; Providence Bank v. Billings, 4 Pet. 561; Christ Church v. Philadelphia, 24 How. 302; Gilman v. Sheboygan, 2 Black, 513; Herrick v. Randolph, 13 Vt. 531; East Saginaw Salt Manuf. Co. v. East Saginaw, 19 Mich. 259 ; 8. C. 13 Wal. 373; People v. Roper, 25 N. Y. 629 ; People v. Commissioners of Taxes, 47 N. Y. 501 ; Lord v. Litchfield, 36 Conn. 116; s. c. 4 Am. Rep. 41 ; Erie Railway Co. v. Commonwealth, 66 Penn. St. 84; s. C. 5 Am. Rep. 351 ; Bradley v. McAtee, 7 Bush, 667; 8. c. 3 Am. Rep. 309; North Missouri R.R. Co. v. Maguire, 49 Mo. 490 ; s. c. 8 Am. Rep. 141.
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,' — 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 them
, selves 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
1 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. v. 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. o. 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 &