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EAST HARTFORD V. HARTFORD BRIDGE COMPANY, 51 U. S. 511 (1850)
U.S. Supreme Court
East Hartford v. Hartford Bridge Company, 51 U.S. 10 How. 511 511 (1850)
East Hartford v. Hartford Bridge Company
51 U.S. (10 How.) 511
ERROR TO THE SUPREME COURT OF
ERRORS FOR THE STATE OF CONNECTICUT
From the year 1681 to 1783, a franchise in the ferry over the Connecticut River, belonged to the Town of Hartford, situated on the west bank of the river.
In 1783, the legislature incorporated the Town of East Hartford, and granted to it one-half of the ferry during the pleasure of the general assembly.
In 1808, a company was incorporated to build a bridge across the river, which, being erected, was injured and rebuilt in 1818, when the legislature resolved that the ferry should be discontinued.
This act, discontinuing the ferry, is not inconsistent with that part of the Constitution of the United States which forbids the states from passing any law impairing the obligation of contracts.
There was no contract between the state and the Town of East Hartford by which the latter could claim a permanent right to the ferry. The nature of the subject matter of the grant and the character of the parties to it both show that it is not such a contract as is beyond the interference of the legislature.
Besides, the Town of East Hartford only held the ferry right during the pleasure of the general assembly, and in 1818 the latter expressed its pleasure that the ferry should cease.
After the year 1818, the legislature passed several acts contradictory to each other, alternately restoring and discontinuing the ferry. Those which restored the ferry were declared to be unconstitutional by the state courts upon the ground that the act of 1818 had been passed to encourage the bridge company to rebuild their bridge, which had been washed away. But these decisions are not properly before this Court in this case for revision.
The Town of East Hartford, having no right to exercise the ferry privilege, may have been correctly restrained by injunction from doing so by the state court.
The defendant in error filed its petition in the superior court holden at Hartford for an injunction restraining the Town of East Hartford, plaintiff in error, its servants, agents &c., from the use of a certain ferry over the Connecticut River and from receiving tolls &c. Upon the hearing of the cause on petition, answer, and the report of a committee appointed to inquire into the facts, the injunction was granted, and upon being carried to the Supreme Court of Errors, the decree of the court below was affirmed. Whereupon the case was brought here by writ of error under the twenty-fifth section of the Judiciary Act.
The report of the committee was as follows, omitting the documents referred to therein, and which were appended to the report:
"To the Honorable Superior Court to be holden by adjournment at Hartford, in and for the County of Hartford, on the second Tuesday of June, A.D. 1843: "
"At an adjourned term of said court, holden at said Hartford on 1 May, 1843, upon a bill in equity then and there pending before said court, in which bill the Hartford
Bridge Company is complainant, and the Town of East Hartford and Samuel Brewer, of said Town of East Hartford, are respondents, the subscribers were appointed a committee to find and report to said court, at an adjourned session thereof, to be holden at Hartford aforesaid, on the second Tuesday of June, 1843, the facts in said bill, and the answer thereto. And having duly notified the parties of the time when and the place where we would meet and hear them in relation to the facts in said bill and answer contained, we, in conformity with said notice, met the parties on 6 June instant, at the city courtroom in the said Town of Hartford, and, having been first sworn according to law, fully heard them, from day to day, by their counsel and with their testimony and witnesses, and now find and report the facts following, viz.,"
"That in the month of December, 1681, the Town of Hartford passed a vote regulating the tolls to be taken at the ferry over Connecticut River between said Town of Hartford and what is now the Town of East Hartford, which appears by a copy of said vote hereunto attached and marked A. That on 31 March, 1682, said ferry was by said town of Hartford leased to Thomas Cadwell for the term of seven years, a copy of which lease is attached hereunto, marked B. That on 13 December, 1687, said lease was renewed to the same Thomas Cadwell for the further term of seven years; a copy of which renewal is attached hereunto, and marked C. That on 27 December, 1694, said Town of Hartford chose a committee to contract with some person to take the ferry upon the best terms in their power, of which vote a copy is attached hereunto, marked D. That on 15 January, 1695-1696, said committee engaged the said Thomas Cadwell to take the ferry aforesaid for seven years, of which lease a copy is hereunto attached, marked E. That at the session of the legislature in October, 1695, the tolls to be taken both at the Hartford and Windsor ferries were regulated by law, as will appear by an act in the edition of statutes 1695. That the tolls or fares to be taken at the Hartford ferry were regulated by legislative enactments, as appears in the edition of statutes 1808. That from the year 1681 until October, 1783, said ferry continued to be the franchise of said Town of Hartford, and during that period was used and enjoyed as such by the Town of Hartford alone, but that the legislature, at their session in October, 1783, incorporated the Town of East Hartford, granting to said Town of East Hartford one-half of said ferry during the pleasure of the general assembly, a copy of which act is hereunto attached, marked F."
"That said Town of Hartford, on 1 February, 1810, for the consideration
of an annual rent of forty-five dollars, leased its moiety of said ferry to Daniel Buck and Elisha Williams for the term of five years, and that the payment of the rent reserved in said lease was duly made by said lessees up to the year 1814, when, in consequence of the reduced travel across said ferry, said Town of Hartford exacted of said Buck and Williams no rent thereafter, but that certain individuals interested in the business and real estate on Ferry Street, in said Town of Hartford, and others, at their own expense, procured a ferry boat which was run across said ferry and from which they received no toll whatever and no compensation other than an allowance made by the ferryman for the use of the boat, the Town of Hartford making no opposition to this use of their right, which continued until the year 1818. That at the session of the general assembly in October, 1808, upon the petition of John Watson and others, an act or resolve was passed incorporating the said John Watson and others by the name of the Hartford Bridge Company and granting them liberty to erect a bridge across Connecticut River and to raise and build a causeway through the meadows of East Hartford, which act or resolve is made a part of this report and is contained in the volume of Private acts of the State of Connecticut at the 254th page."
"That the petitioners, in pursuance of said charter or act of incorporation, erected a bridge across said Connecticut River and built said causeway through the meadows of East Hartford, and in all things pursued the provisions contained in said act of incorporation except that said bridge was not so erected that the travel was on a horizontal line in the chord of the arch, nor were the piers as high as contemplated by the act of incorporation, but said bridge and causeway, after the same were completed, were accepted by John Cadwell, Jonathan Brace, and Andrew Kingsbury, Esquires, a standing committee by the general assembly appointed in said act of incorporation, for all the purposes mentioned in said act, whose certificate, marked G, is hereunto attached, and that no objection to the mode or manner of the erection of said bridge in not having the travel thereon on a horizontal line in the chord of the arch, nor to the height of said piers, has been made known until after the petition which the petitioners preferred to the October session of the general assembly in the year 1817, but that the general assembly has once and again acted upon the subject of the tolls of said bridge and other interests appertaining thereto, and granted the petitioners a new charter in the year 1818, without claiming that the charter of 1808 was forfeited by a noncompliance with any of the conditions thereof."
"That the petitioners, on 3 October, 1817, made application
to the general assembly for a discontinuance of said ferry between the Towns of Hartford and East Hartford, which petition is hereunto attached, marked H, upon which petition the general assembly passed a resolve or act, which resolve or act is copied and is hereunto attached, marked I."
"That under said resolve, the petitioners expended large sums in the repairs of said bridge and causeway under the inspection of the said John Cadwell, Jonathan Brace, and Anthony Kingsbury, Esquires, who, by said act or resolve were by said general assembly constituted a committee or commissioners to superintend the repairs on said bridge and causeway."
"That in erecting or repairing said bridge, the petitioners from time to time received directions from said committee or commissioners, which directions were followed and obeyed, and said causeway and bridge were repaired and ready for the accommodation of the public on 1 December, 1818, as appears by the certificate of said committee or commissioners hereunto attached, marked K, but in the erection of said bridge by the petitioners, that part of the woodwork or floor of said bridge which is opened or unfolded for the passage of vessels was constructed only 24 feet 7 inches wide, while the space underneath, between the abutment and pier of said bridge on the west side, through which the hull of vessels must pass, is more than 30 feet wide."
"That no delay has ever been occasioned to any vessel in passing through said bridge for want of space or room through which to pass; nor does it appear that any objection against the width of the passage through said bridge was ever raised by the public or by those who are in the habit of passing with their vessels through said bridge until after the year 1836. And this committee is of opinion and does find that notwithstanding the opening in the woodwork of said bridge, through which vessels are to pass, does not exceed 24 feet 7 inches in width, yet there is adequate room for the accommodation of all who have occasion to pass through said bridge with their vessels, and no inconvenience is suffered by the public in consequence of the narrowness of the passage through the woodwork of said bridge."
"And although the rights of the petitioners in relation to said bridge and their compliance with or violation of the terms and provisions of their several charters have been frequently, both incidentally and directly, the subjects of discussion and debate before the general assembly, and their decision upon said points been had, yet has no real or apparent noncompliance on the part of the petitioners with the terms or provisions of the charter of 1818, in neglecting to make the opening in the woodwork of said bridge for the passage of vessels wider than 24 feet 7 inches, ever been deemed or adjudged by
said general assembly a violation of said charter, or a forfeiture thereof, notwithstanding they have once and again been urged to come to such a conclusion."
"That on 21 April, 1837, S. W. Mills and others preferred their petition to the general assembly of said state, to be holden at Hartford on the first Wednesday of May of the same year, complaining, among other things, of the width of the draw of said bridge, a copy of which petition is hereunto attached, marked L, upon which petition, at the same session of the general assembly, a report of the joint standing committee on roads and bridges was made and accepted, a copy of which is hereunto attached, marked M. That when the Town of Manchester, by an act of the general assembly passed at their session in May, 1823, was incorporated into a town and set off from said Town of East Hartford, no notice was taken in said act of the interest of said Town of East Hartford in said ferry, which act incorporating said town of Manchester may be found on the 1155th page of the private acts or laws of the State of Connecticut, and is made a part of this report."
"That after the passage of the act of the year 1818 by the general assembly and the discontinuance of the ferry between the Towns of Hartford and East Hartford, the Town of Hartford, at an adjourned town meeting holden in said town on the first Monday of December, 1835, passed several votes, copies of which votes are hereunto attached, marked N, and that prior to the year 1818 and the passage of the act of the general assembly granting to the petitioners permission to erect a new bridge, the inhabitants of said Town of Hartford, at an adjourned town meeting by them holden on the 29th day of December, 1817, passed a vote, a copy of which, marked O, is hereunto attached. That at the session of the general assembly in May, 1836, an act was passed, repealing so much of the act of 1818 as abolished or discontinued the ferry between the Towns of Hartford and East Hartford, which act is made a part of this report and is on the 565th page of the private acts or laws of the State of Connecticut, which act or resolve was passed upon the petition of Caleb Stockbridge and others, to which petition the Towns of Hartford and East Hartford were made respondents."
"That said general assembly, at their session in May, 1842, passed a resolve, which is made a part of this report and is found on the 21st page of the resolutions of the general assembly passed May session, 1842. That on the 14th day of May, 1842, application was made by the agent and attorney of the petitioners to several of the selectmen of said Town of Hartford, for the purchase of the right of said Town of Hartford in and to said ferry. That several of
said selectmen to whom said application was made did not suppose that said Town of Hartford had an interest in more than a moiety of said ferry, although they had been from time to time conversant with all the facts in relation to said ferry and the various claims concerning the same made before the legislature when the rights of the petitioners and of said Town of East Hartford were discussed, and the petitioners claimed that neither the Town of Hartford nor East Hartford had any right to said ferry, but that said selectmen subscribed an instrument or indenture, a copy of which, marked R, is hereunto attached, subject, however, to the approval of the inhabitants of said Town of Hartford, to be expressed at a town meeting to be subsequently held, and that on 18 May, 1842, said Town of Hartford, at a special town meeting on that day held by virtue of warning which is hereunto attached, marked S, approved of said indenture or instrument thus executed previously by said selectmen of said Town of Hartford, and we find that the agent and attorney of the petitioners, when negotiating with said selectmen in relation to the purchase by the petitioners of the right of said Town of Hartford in and to said ferry, distinctly stated to said selectmen that the object of the petitioners, in purchasing the right of the said Town of Hartford in and to said ferry, was to enable the petitioners to commence some process before a court of law or equity by which the questions at issue between the petitioners and the Town of East Hartford might be finally decided."
"That the whole negotiation between the agent and attorney of the petitioners and said selectmen and Town of Hartford was fairly and honestly conducted. That the petitioners paid to said Town of Hartford the first annual payment due on said instrument in the month of September, 1842. That from time immemorial until the year 1818, no boats other than flat-bottomed scow boats moved by oars had been used on said ferry, but that from the year 1836 until this time, said Town of East Hartford, when using said ferry, has run a horse boat at said ferry."
"That with the exception of the time when the bridge of the petitioners has been impassable and said Town of Hartford has by law been compelled to keep up said ferry, the said Town of Hartford has not made any use of said ferry as a franchise or derived any benefit or emolument therefrom since the year 1814."
"That from the time when the bridge of the petitioners was completed in the year 1818 until after the passage of the resolve of the general assembly in May, 1836, said ferry between the Towns of Hartford and East Hartford was not used as a public ferry, and no boats during said time were kept thereat by said Towns of
Hartford and East Hartford, or either of them, to transport and convey passengers, freight &c."
"That from the time when said ferry between the Towns of Hartford and East Hartford was restored by the general assembly in 1836 until it was discontinued, in 1841, the Town of East Hartford has received for ferriages and tolls collected at said ferry, which during said time has been carried on solely by said Town of East Hartford, a large sum of money, viz., more than ten thousand dollars."
"That after the year 1814, the ferry between said Towns of Hartford and East Hartford was not kept up by both or either of said towns, but that individuals, upon their own responsibility and at their own cost and charges, managed said ferry and collected toll thereon until the bridge first erected by the petitioners was partially or wholly destroyed in the year 1818, when by law said Towns of Hartford and East Hartford were compelled to keep boats at said ferry for the accommodation of the public travel, which the said Town of Hartford relinquished and abandoned as soon as the petitioners rebuilt or repaired their said bridge, the erection of which relieved the said Towns of Hartford and East Hartford from the necessity and expense of maintaining boats suitable for crossing the meadows in time of flood."
"That since the completion of the first bridge of the petitioners, in 1811, the petitioners have ever been accustomed to take toll according to law of all who have made use of their said bridge, nor has any person disputed or resisted their right upon the pretense that either the first or the second bridge was not constructed according to the provisions of their several charters or grants."
"That the petitioners, since the purchase by them of the right of the Town of Hartford in and to said ferry, have not run any boat across said ferry, nor made any provision for the accommodation of the public travel at said ferry, nor commenced, until the date of this petition, any suit at law or bill in equity against the respondents, or either of them."
"The committee further finds that the petitioners have invested in said bridge and causeway a large sum of money; that the bridge and causeway erected by them under the grant or charter of 1808, and which was accepted and approved by the commissioners or standing committee appointed by the general assembly, cost more than ninety-six thousand dollars, that to reconstruct said bridge under the grant or charter of 1818, and to rebuild said causeway and make therein and in said bridge such alterations and improvements as were directed by the act of the legislature, the petitioners expended about thirty thousand dollars, and that for various other repairs and expenditures on said bridge and causeway the petitioners have disbursed a further
sum of forty-seven thousand dollars and upwards, so that the standing committee or commissioners on said bridge, when settling the accounts of said Hartford Bridge Company on 12 April, 1842, found and reported to the general assembly that on said 12 April, 1842, there was due to the petitioners, for arrears of interest on the capital by them invested, at the rate of twelve percent annum, the sum of $227,270.89."
"That the annual receipts for toll, so far as the same can be ascertained from the treasury office, are contained in a schedule hereunto attached, marked T. The committee finds that Samuel Brewer, one of the respondents, at the time of commencing this petition, was one of the selectmen of said Town of East Hartford, and, as agent of said Town of East Hartford, had charge of said ferry and of the ferry boat. And we further find that although some of the inhabitants of East Hartford, Glastenbury, and other towns are personally accommodated by a continuance of the ferry, especially when their business in the Town of Hartford calls them into State Street or parts of the Town of Hartford lying south of State Street, inasmuch as the distance which they are under the necessity of traveling is considerably diminished and the toll or fare which they are compelled to pay is less at the ferry than at the bridge, still it is only when the river is low in the summer season and the weather not windy and boisterous that the ferry is preferable to the bridge, even to these individuals."
"But the committee is of opinion and finds that said ferry is not of public convenience and necessity, nor do the interests of the community require its continuance. The committee further finds that the bridge of the Hartford Bridge Company over Connecticut River is not only highly advantageous to the prosperity and increasing growth of both the Towns of Hartford and East Hartford, but is of great public convenience to all who have occasion to cross Connecticut River at this place."
"That the value of real estate, both in the Towns of Hartford and East Hartford, has been greatly enhanced since the erection of said bridge, and in consequence of the facilities of intercourse with the City of Hartford and places contiguous thereby furnished, and that said bridge is of great public convenience and necessity, and is abundantly adequate to accommodate all who may wish to come to or depart from Hartford across Connecticut River between the Towns of Hartford and East Hartford; neither can the inhabitants of Hartford or East Hartford nor the community at large dispense with said bridge. The committee is of opinion that the real estate in the Towns of Hartford and East Hartford, since the erection of said bridge and by reason of the facilities thereby furnished to travelers and
others, has been increased in value to an amount greater than all that has been expended by the petitioners in the erection and support of said bridge and causeway since the year 1808, and that, were said ferry of public convenience and necessity, it would not be made at all seasons of the year, both by night and by day, so safe and so commodious as the bridge of the petitioners now is and has ever been."
"That at the time of the passage of the act of 1818, the tolls which the petitioners were before that time authorized to receive were much reduced. That the legislature has from time to time taken into consideration said bridge and ferry, and the interests and rights of the public in relation thereto will appear by several resolves and acts of said legislature, all of which are part of this report, two of which acts are found on the 260th and two on the 261st page of the private laws of the State of Connecticut, and one on the 55th page of the resolves passed by the general assembly in the year 1839, and two of said resolves are to be found on the 564th and 565th pages of the private acts of the State of Connecticut."
"That the resolve or act passed by the general assembly at their session in May, 1842, restoring to the Towns of Hartford and East Hartford the ferry between said towns, was founded upon a report of the joint select committee of the legislature, a copy of which report, marked X, is hereunto attached, to the admission of which report as evidence on the part of the respondents the petitioners objected, and the same was admitted, subject to such objection. That at a session of the general assembly in May, 1841, a resolve was passed discontinuing or suppressing said ferry, which act or resolve is hereunto attached, marked Y, which act or resolve was passed upon the report of a committee of said assembly, a copy of which report is hereunto attached, marked Z, to the admission of which report on the part of the petitioners an objection was made by the respondents, and the same was admitted, subject to said objection."
"That at the time when said instrument or indenture between the Town of Hartford and the petitioners was executed, a petition in favor of the Town of East Hartford was pending before the legislature, to which petition the said Town of Hartford and the petitioners in this bill were respondents."
"All which is respectfully submitted by"
"Hartford, June 10, 1843"
The following summary of the legislation of Connecticut on the subject matter of this controversy will be sufficient to indicate the constitutional question growing out of it.
The act of 1783 divided the ancient Town of Hartford which lay on both sides of the river into the Towns of Hartford and East Hartford, and at the same time the property of the ancient town was also divided; "and the privilege of keeping one-half of the ferry," &c., was declared to "belong to East Hartford during the pleasure of this assembly."
The act of 1806 established the boundaries of the two ferries between the Towns of Hartford and East Hartford, and provided
"that the occupiers of such ferry, south of said boundaries, shall have the exclusive privilege of taking passengers south of said boundaries, and the occupiers of said ferry north of such boundary shall have the exclusive privilege of taking passengers north of said boundaries."
The act of 1808, which incorporated the Hartford Bridge Company, contained the following proviso, viz.:
"Provided that nothing in this grant shall now or at any future time in any way lessen, impair, injure, or obstruct the right to keep up and maintain the ferries established by law between the Towns of Hartford and East Hartford,"
The act of 1818 provided that whenever the bridge company should have repaired their bridge &c.,
"the ferries by law established between the Towns Hartford and East Hartford shall be discontinued, and said towns shall thereafter never be permitted to transport passengers across said river unless on the happening of the contingency hereinafter mentioned."
The contingency was the nonrepair of the bridge, in which case the Towns of Hartford and East Hartford were to resume their rights "to occupy and improve said ferries."
The act of 1836 repealed the act of 1818 so far as it interdicted the ferry.
The act of 1841 repealed that of 1836, and the act of 1842 repealed that of 1841, and in the second section provided, that the right of the Town of East Hartford to keep and use the ferry, "as possessed by said Town of East Hartford prior to said act of 1841, is hereby restored and confirmed," &c.
MR. JUSTICE WOODBURY delivered the opinion of the Court.
It is claimed by the plaintiff that the clause in the Constitution of the United States against impairing the obligation of contracts was set up there in defense to certain proceedings which had been instituted against that corporation by virtue of rights derived from legislative acts of that state, which acts the plaintiff insisted had impaired the obligation of a contract existing in behalf of East Hartford.
It being manifest from the record that such a defense was set up, and that the court overruled the objection, so that jurisdiction exists here to revise the case, we proceed to examine whether, on the facts of the case, any such contract appears to have existed and to have been violated by the state legislation which was drawn in question.
It will be seen that the point before us is one of naked constitutional law, depending on no equities between the parties, but on the broad principle in our jurisprudence, whether power existed in the Legislature of Connecticut to pass the acts in 1818 and 1841 which are complained of in this writ of error.
The supposed contract claimed to have been impaired related to certain rights in a ferry which were alleged to have been granted by the state across the Connecticut River. This grant is believed to have been made to Hartford as early as the year 1680, and half of it transferred to East Hartford in 1783. But no copy of the first grant being produced, nor any original
referred to or found, it is difficult to fix the terms or character of it, except from the nature of the subject and the subsequent conduct of the parties, including the various acts of the legislature afterwards passed regulating this matter.
From these it is manifest that two leading considerations arise in deciding in the first place whether by this grant a contract like that contemplated in the Constitution can be deemed to exist. They are first the nature of the subject matter of the grant, and next the character of the parties to it.
As to the former, it is certain that Connecticut passed laws regulating ferries in 1695, and Massachusetts began to grant ferries as early as 1644 (Col. Charter 110), and to exercise jurisdiction over some even in 1630, Charles River Bridge v. Warren Bridge, 11 Pet. 420. In 1691 she provided that no one should keep a ferry without license from the Quarter Sessions, and under bonds to comply with the duties and regulations imposed (p. 280).
In the rest of New England, it is probable that a similar course was pursued by the legislatures, making, as a general rule, the tolls and exercise of the franchise entirely dependent on their discretion. But in some instances the owners of the lands on the banks of small rivers opened ferries upon them and claimed private interests therein. And in still other cases of public grants to private corporations or individuals a similar interest has been claimed.
It is highly probable, too, that in some instances, public corporations like the plaintiff in this case may have set up a like interest, claiming that the subject matter granted was one proper for a contract, or incident to some other rights, like private interest owned on the bank of a river.
Supposing, then, that a ferry may in some cases be private property, and be held by individuals or corporations under grants in the nature of contracts, it is still insisted here that the ferry across a large navigable river, and whose use and control were entirely within the regulation of the colonial legislature and came from it, would be a mere public privilege or public license, and a grant of it not within the protection of the Constitution of the United States as a matter of contract.
But it is not found necessary for us to decide finally on this first and more doubtful question, as our opinion is clearly in favor of the defendant in error on the other question -- viz., that the parties to this grant did not by their charter stand in the attitude towards each other of making a contract by it, such as is contemplated in the Constitution and as could not be modified by subsequent legislation. The legislature was acting
here on the one part, and public municipal and political corporations on the other. They were acting, too, in relation to a public object, being virtually a highway across the river over another highway up and down the river. From this standing and relation of these parties and from the subject matter of their action we think that the doings of the legislature as to this ferry must be considered rather as public laws than as contracts. They related to public interests. They changed as those interests demanded. The grantees likewise, the towns being mere organizations for public purposes, were liable to have their public powers, rights, and duties modified or abolished at any moment by the legislature.
They are incorporated for public, and not private, objects. They are allowed to hold privileges or property only for public purposes. The members are not shareholders nor joint partners in any corporate estate which they can sell or devise to others or which can be attached and levied on for their debts.
Hence, generally, the doings between them and the legislature are in the nature of legislation, rather than compact, and subject to all the legislative conditions just named, and therefore to be considered as not violated by subsequent legislative changes.
It is hardly possible to conceive the grounds on which a different result could be vindicated without destroying all legislative sovereignty and checking most legislative improvements and amendments as well as supervision over its subordinate public bodies.
Thus, to go a little into details, one of the highest attributes and duties of a legislature is to regulate public matters with all public bodies, no less than the community, from time to time, in the manner which the public welfare may appear to demand.
It can neither devolve these duties permanently on other public bodies, nor permanently suspend or abandon them itself, without being usually regarded as unfaithful, and indeed attempting what is wholly beyond its constitutional competency.
It is bound also to continue to regulate such public matters and bodies, as much as to organize them at first. Where not restrained by some constitutional provision, this power is inherent in its nature, design, and attitude, and the community possess as deep and permanent an interest in such power remaining in and being exercised by the legislature, when the public progress and welfare demand it, as individuals or corporations can in any instance possess in restraining it. See TANEY, C.J., in 36 U. S. 11 Pet. 547-548.
In Goszler v. Corporation of Georgetown, 6 Wheat. 596, 19 U. S. 598, it was held that a city with some legislative power as to bylaws, streets &c., could, after establishing a graduation for its streets, and after individuals had built in conformity to it, change materially its height. This case appears to settle the principle that a legislative body cannot part with its powers by any proceeding, so as not to be able to continue the exercise of them. It can and should exercise them, again and again, as often as the public interests require. And though private interests may intervene, and then should not be injured except on terms allowed by the Constitution, yet public interests in one place or corporation may be affected injuriously by laws, without any redress, as legislation on public matters looks to the whole and not a part, and may, for the benefit of the whole to the injury of a part, change what is held under it by public bodies for public purposes. The legislature therefore could not properly divest itself of such control, nor devolve it on towns or counties, nor cease from any cause to exercise it on all suitable occasions. Clark v. Corporation of Washington, 12 Wheat. 54
Its members are made by the people agents or trustees for them on this subject, and can possess no authority to sell or grant their power over the trust to others. Presbyterian Church v. City of New York, 5 Cow. 542; Fairtitle v. Gilbert, 2 T.R. 169.
Nor can the public be estopped by such attempts, since the acts of their agents are to be for the public, and for its benefit, and not for themselves individually, and are under a limited authority or jurisdiction, so as to be void if exceeding it.
Looking to the subject, when, as here, the grantees as well as the grantors are public bodies, and created solely for municipal and political objects, the continued right of the legislature to make regulations and changes is still clearer. Perhaps a stronger illustration of this principle than any yet cited exists in another of our own decisions.
In the Maryland v. Baltimore & Ohio Railroad, 3 How. 551, this Court held that a grant by the legislature to a county of a sum forfeited could be dispensed with by the legislature afterwards, as it was made for public, not private purposes, and to a public body.
There is no private interest or property affected by this course, but only public corporations and public privileges. It may be otherwise in case of private bodies, or individuals, or of private property granted or acquired. The legislature might not be justified to revoke, transfer, or abolish them on account of the private character of the party or the subject.
While maintaining the exemption of private corporations from legislative interference, Justice Washington, in 17 U. S. 4 Wheat. 659, in the Dartmouth College Case, still admits that corporations for "public government," such as a "town or city," are under the control of legislation, whereas private corporations are governed by the statutes of their founders or by their charters, pp. 17 U. S. 660-661. He remarks further that the members of such a public corporation
"accepted the charter for the public benefit alone, and there would seem to be no reason why the government, under proper limitations, should not alter or modify such a grant at pleasure,"
pp. 17 U. S. 661-663. And Justice Story concurs with him by saying:
"It may also be admitted that corporations for mere public government, such as towns, cities, and counties, may in many respects be subject to legislative contract."
4 Wheat. 17 U. S. 694.
When they are wished to be in some respects not so subject, but to act exclusively, it should be so expressed in the constitutions of their states. What is exclusive in them would there appear expressly, and when it is not, a legislative provision, if made for the purpose of rendering it exclusive, is, for the reasons before stated, doubtful in its validity.
The public character of all the parties to this grant, no less than its subject matter, seems therefore to show that nothing in the nature of a contract, with terms to be fulfilled or impaired like private stipulations, existed in this case so as to prevent subsequent interference with the matter by the legislature as the public interests should appear to require.
But in order to justify the plaintiff in what it set up below, there must not only have been a contract or quasi-contract, but a violation of its obligation. It will therefore be useful to follow out farther the nature and conditions of this supposed contract in order to throw more light on both the questions whether this grant was such a contract as the Constitution contemplates and whether it has been at all impaired. The authority of a legislature may probably supersede such a ferry as is public, and across a great public highway of a navigable river, by allowing a bridge over the same place, as has before been virtually held by this Court. 36 U. S. 11 Pet. 422; 47 U. S. 6 How. 507. It could also alter or abolish wholly the public political corporation to which the grant was made, as this is yearly done in dividing towns and counties and discontinuing old ones. It is therefore clear that whatever in the nature of a contract could be considered to exist in such a case by a grant to a town of some public privilege, there must be implied in it
a condition that the power still remained or was reserved in the legislature to modify or discontinue the privilege in future as the public interests from time to time appear to require. Charles River Bridge v. Warren Bridge, 11 Pet. 421; West River Bridge v. Dix, 6 How. 507.
Accordingly, it is admitted in this case that the legislature, as early as 1695, in fact regulated the tolls of this ferry, and continued to do it until 1783, when it granted to East Hartford one-half of the privilege, and that only "during the pleasure of the assembly." All concerned in the privilege, therefore, became thus estopped to deny that this ferry was to be used by the town as a mere public license, and to be used in conformity with the views of the legislature as to what in future might be deemed most useful to the community at large.
Because the old Town of Hartford acquiesced in this regulation of tolls and in this transfer of half to East Hartford in this limited or conditional manner, and the latter acquiesced in the acceptance of it on the terms expressed, to hold it during "the pleasure of the assembly."
Such being, then, the public character of the subject and parties of the grant, and such the terms and conditions of it -- rather than being one of private property, for private purposes, to private corporations or individuals, and absolutely rather than conditionally -- in what respect has it been violated by the legislature?
No pretense is made that it has been unless by the discontinuance of the ferry in 1818 and in 1841. The former act of the legislature was passed under the following circumstances: a bridge had been authorized over the river near the ferry as early as 1808, and no provision was then made as to the ferry, probably from a belief that it would, after the bridge was finished, fall into disuse and be of no importance to any body.
No objection was made or could be sustained to the constitutionality of this incorporation in this way (11 Pet. 420; 4 Pick. 463). But when the bridge became damaged greatly in 1818, and the company was subjected to large expenses in rebuilding, the legislature deemed it proper to provide in its behalf that the ferry should not be kept up afterwards except when the bridge became impassable.
The words were that
"after the company shall have repaired the bridge &c., 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,"
This bridge corporation, being the present defendant in error, proceeded therefore to rebuild and keep up their bridge in
a more costly manner and beneficially and safely to the community. They were a private pecuniary body, and were aided much by the suspension or discontinuance of the ferry in their additional charter.
The legislature, in making the discontinuance, did only what it supposed was advantageous to the public by securing a better, quicker, and surer method of passing the river on the bridge, and it thus appears to have violated no condition or terms of any contract or quasi-contract, if it had made any with the plaintiff. 36 U. S. 11 Pet. 542.
On the contrary, as before suggested, the legislature merely acted within its reserved rights, and only passed a new law on a public subject, and affecting only a public body. But beside the implied powers continuing in the legislature, as heretofore explained, and which warrant all it did in 1818, and the exercise of which cannot be regarded as impairing any contract, we have seen that there was an express provision in the grant to East Hartford limiting the half of the ferry transferred to it "during the pleasure of the assembly."
The legislative pleasure expressed in 1818 that the ferry should cease, came then directly within this condition, and the permission to exercise that pleasure in this way was not only acquiesced in from 1818 to 1836, but was treated as the deliberate understanding on both sides from 1783 to 1836.
The statute books of Connecticut are full of acts regulating ferries, including this, and modifying their tolls from 1783 downwards, and in many instances imposing new and onerous duties. See 1 Stat. of Conn. 314 to 327.
And to show how closely the power of the legislature was exercised to regulate this matter, without being regarded as impairing in that way any contract or obligation, it appears that when Hartford was incorporated into a city about 1820, Rev.Stat. 110, it was expressly provided: "But said city shall have no power to regulate or affect the fisheries in, or the ferry upon, said river" (Connecticut).
Well, too, might East Hartford, in 1783, be not unwilling to take her charter and half the ferry, subject to this suspension as her own existence at all, then and thereafter, depended on legislative pleasure, and as all the property or privileges of the old town would remain with the old one when a new was carved out of it, unless otherwise expressly provided. 4 Mass. 384; 2 N.H. 20.
Our inquiries would terminate here, as this legislation, in 1818, is the supposed violation of a contract that was chiefly relied on below, had there not been several other acts of legislation as to this ferry in 1836, 1841, and 1842, some of which
are claimed to have impaired contracts made with the plaintiff either then or in 1783.
But the act of 1836, about which much has been said in the argument here, and much was very properly urged in the court below, simply repealed that part of the act of 1818 discontinuing the ferry. It thus affected the bridge company deeply and injuriously, but did not impair any supposed contract with East Hartford, was not hostile to its rights, and is not, therefore complained of by that town nor open to be considered as a ground for revising the judgment below under this writ of error.
The state court, however, pronounced it unconstitutional, and had jurisdiction to do it, and if they had not arrived at such a result, they could not have sustained some of their other conclusions.
This decision of theirs being founded on their own Constitution and statutes, must be respected by us and in this inquiry must be considered prima facie final. Luther v. Borden, 7 How. 1, and cases there collected.
We shall therefore not revise the legal correctness of that decision, but refer only to a few of the facts connected with the repeal of 1836, and with the decision on it below, so far as is necessary to explain the legislation subsequent to it, and which is yet to be examined.
The legislature does not appear to have proceeded at that time on any allegation of wrong or neglect on the part of the bridge company, nor did they make any compensation to the latter for thus taking from it the benefits of a discontinuance of the ferry and attempting to revive half the privileges again in East Hartford. The state court appears to have considered such a repeal, under all the circumstances, as contrary at least to the vested rights of the bridge company and to certain provisions in the state constitution. See also The Enfield Bridge v. Hartford & New Haven Railroad Co., 17 Conn. 464.
But without going further into the history of this proceeding in 1836 and the decision on it by the state court, it is manifest that the dissatisfaction and complaints growing out of it, or some other important reason, induced the legislature in 1841 to repeal the repealing act of 1836, and thus to leave the bridge company once more in the full enjoyment of its former privileges after the ferry had been discontinued in 1818.
To this conduct of the legislature the plaintiff in error objected, and under this writ asks our decision whether it does not impair contracts which had before been made with it by the legislature. In reply it need only be stated that we think it does not, and this for the reasons already assigned why it was competent for the legislature to pass the discontinuing part of the act of 1818 if it thought proper, and in this did not violate the Constitution of the United States as to contracts.
But matters were not permitted to remain long in this position. In 1842 the legislature proceeded to repeal the act of 1841, and thus sought virtually to restore the ferry to Hartford and East Hartford as it stood before 1818. It appears to have done this on the complaint of East Hartford, that half of the ferry had been taken away from her without making "any compensation."
It is unnecessary, in relation to this last repeal, to say more than that, like the repeal of 1836 and for like reasons, the state court pronounced it void, and on the ground before explained we are not called on by this writ to reconsider or reverse that decision.
It follows then, finally, that East Hartford, in proceeding to exercise the ferry privilege again since 1842 and to the special injury of the bridge company, has done it without legal authority, and should therefore be restrained by injunction from exercising it longer.
The judgment below must be
This cause came on to be heard on the transcript of the record from the Supreme Court of Errors within the for the State of Connecticut, and was argued by counsel, on consideration whereof it is now here ordered, adjudged, and decreed by this Court that the decree of the said Supreme Court of Errors in this cause be and the same is hereby affirmed, with costs.
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