The Proprietors of the Charles River Bridge, plaintiffs in error v. The Proprietors of the Warren Bridge, and others, 11 Pet. 420

Mr. Chief Justice Taney delivered the opinion of the Court.

The questions involved in this case are of the gravest character, and the Court have given to them the most anxious and deliberate consideration.' The value of the right claimed by the plaintiffs is large in amount; and many persons may no doubt be seriously affected in their pecuniary interests by any decision which the Court may pronounce; and the questions which have been raised as to the power of the several states, in relation to the corporations they have chartered, are pregnant with important consequences; not only to the individuals who are concerned in the corporate franchises, but to the communities in which they exist.

The Court are fully sensible that it is their duty, in exercising the high powers conferred on them by the constitution of the United States, to déal with these great ánd extensive interests with the utmost caution; guarding, as far as they have the power to do so, the rights of property,-and at the same time carefully abstaining from any encroachment on the rights' reserved to the states.

It appears, from the record, that in the year 1650, the legislature of Massachusetts, granted to the president of Harvard college “the liberty and power,” to dispose of the ferry from Charlestown to Boston, by lease or otherwise, in the behalf and for the behoof of the college: and that, under that grant, the college continued to hold and keep the ferry by its lessees or agents, and to receive the profits of it until 1785.

In the last mentioned year, a petition was presented to the legislature, by Thornas Russell and others, stating the inconvenience of the transportation by ferries, over Charles river, and the puolic advantages that would result from a bridge; and praying to be incorporated for the purpose of erecting a bridge in the place where the ferry between Boston and Charlestown was then kept. Pursuant to this petition, the legislature, on the 9th of March, 1785, passed

an act incorporating a company, by the name of “ The Proprietors of the Charles River Bridge,” for the purposes mentioned in the petition.

Under this charter the company.-were empowered to erect a bridge, in “ the place where the ferry was then kept;” certain tolls were granted, and the charter was limited to forty years, from the first opening of the bridge-for passengers; and from the time the toll commenced, until the expiration of this term, the company were to pay two hundred-pounds, annually, to Harvard college; and at the expiration of the forty years the bridge was to be the property of the-commonwealth; “ saving (as the law expresses it) to the said college or university, a, reasonable annual compensation, for the annual income of the ferry, which they might háve received had not the said bridge been erected.” The bridge was accordingly built, and was opened for . passengers on the 17th of June, 1786.

In 1792, the charter was extended to seventy years, from the opening of the bridge; and at the expiration of that time it was to belong to the commonwealth. The corporation have regularly' paid to the college the annual sum of two hundred pounds, and have performed all of the duties imposed on them by the terms of their charter. In 1828, the legislature of Massachusetts incorporated a company by the name of “ The Proprietors of the Warren Bridge,” for the purpose of erecting another bridge over Charles river.

This bridge is only sixteen rods, at its commencement, on the Charlestown side, from the commencement of the bridge of the plaintiffs; and they are about fifty rods apart at their termination on the Boston side. The travellers who pass over either bridge, proceed from Charlestown square, which receives the travel of many great public roads leading from the country; and the passengers and travellers who go to and from Boston, used to pass over the Charles River Bridge, from and through this square, before the erection of the Warren Bridge.

The Warren Bridge, by the terms of its charter, was to be surrendered to the state, as soon as the expenses of the proprietors in building and supporting it should be reimbursed; but this period was not, in any event, to exceed six years from the time the company commenced receiving toll. When the original bill in this case was filed, the Warren Bridge had not been built; and the bill was filed after the passage of the law, in order to obtain an injunction to prevent its erection, and for general relief.

The bill, among other things, charged as a ground for relief, that the act for the erection of the Warren Bridge impaired the obligation of the contract between the commonwealth and the proprietors of the Charles River Bridge; and was therefore repugnant to the constitution of the United States. Afterwards, a supplemental bill was filed, stating that the bridge had then been so far completed, that it had been opened for travel, and that divers persons had passed over, and thus avoided- the payment of the toll, which would otherwise have been received by the plaintiffs.

The answer to the supplemental bill' admitted that the bridge had been so' far completed, that foot passengers could pass; but denied that any persons but the workmen and. the superintendents had passed oyer with their consent.- .

In this state of the pleadings, the cause came on for hearing in the supreme judicial court for the county of Suffolk, in the commonwealth of Massachusetts, at November term, 1829; and the court decided that the act incorporating the Warren Bridge, did not impair the obligation of the contract with the pro-proprietors of the Charles River Bridge, and dismissed the complainants’ bill: and the case is brought here by writ of error from that decision.

It is, however, proper to state, that it is understood that the state court Was equally divided upon the question; and that the decree dismissing the bill upon the ground' above .stated, was pronounced by a majority of the court, for the purpose of enabling the complainants to bring the question for decision before this Court.

In the argument here, it was admitted, that since the filing of the supplemental bill, a sufficient amount of toll had been received by the proprietors of the Warren Bridge to reimburse all their expenses, and that the bridge is now the property of the state, and has been made a free bridge; and that the value of the franchise granted to the proprietors of the Charles River Bridge,' has by this means been entirely destroyed.

If the complainants deemed these ‘facts material, they ought to have been brought before be state court, by a supplemental bill; and this Court, in pronouncing its judgment, cannot regularly notice them. But in the view which the Court take of this subject, these additional circumstances would not in any degree influence their decision.

And as they are conceded to be true, and the case has been argued on that ground, and the controversy has been for a long time depending, and all parties desire a final end of it;' and as it is. of importance to them, that the principles on which this Court decide should not be misunderstood; the case will be treated in the 'opinion now delivered, as if these admitted facts were regularly before us. .

A good deal of evidence has been offered to show the nature and extent of the ferry right granted to the'college;-.and also to show the rights cl airbed by the proprietors of therbridge at. difierent times, bv virtue of their charter; and the opinions entertained by committees of the legislature, and others, upon that subject. But as these circumstances do not affect the judgment of this Court, it is unnecessary to recapitulate them. The .plaintiffs in error insist, mainly, upon two grounds: 1st.

That by virtue of the grant of 1650, Harvard college was entitled, in perpetuity, to the right of beeping a ferry between Charlestown and Boston; that this right was exclusive; and that the legislature had not the power to establish another ferry' on the same line of travel, becaiise .it would infringe the rights of the college; and that these rights, upon the erection of the bridge in the place of the ferry, under the: charter of 1785, were transferred to, and became vested in “ the proprietors of the Charles River.

Bridge;” and that under, and by virtue of this .transfer of the ferry right, the rights of the bridge company were as exclusive in that line of' travel, as the rights of the ferry, 2d.

That independently of the ferry right, the act? of the legislature of Massachusetts of 1785, and 1792, by their true construction, necessarily implied that the legislature would not authorize another bridge, and especially a free one, by the' Side of this, and placed in the same line of travel, whereby the franchise granted to the “ proprietors of the Charles River Bridge” should be rendered of no value; and the plaintiffs in error contend, that the grant of the ferry, to the college, and of the charter to the proprietors of the bridge, are both contracts on the part of the state; and that the law authorizing the erection of the Warren Bridge in 1828, impairs the obligation of one or both of these contracts.

It is very clear, that in the form in which this case comes before us; being a writ of error to a state-court; the plaintiffs in claiming under either of these rights, must place themselves on the ground of contract, and cannot support themselves upon the principle, that the law divests vested rights. It is well settled by the decisions of this Court, that a state law may be retrospective in its character, and may divest vested rights; and yet not violate the constitution of the United States, unless it also impairs the obligation of a contract. In 2 Peters, 413; Satterlee v.

Mathewson; this Court, in speaking of the state law. then before them, and interpreting the

article in the constitution of the United States which forbids the states to pass laws impairing the obligation of contracts, uses the following language. “It (thd state law) is said to be retrospective; be it so. But retrospective laws which do not impair the obligation of contracts, or partake of the character of ex post facto laws, are not condemned . or forbidden by any part of that instrument,” (the constitution of the United States).

And in another passage in the same case, the Court say; “ the objection, however, most pressed upon the Court, and relied upon by the counsel for the plaintiff in error, wás, that the effect of this act was to divest rights which were vested by law in Satterlee.

There is certainly no part of the constitution of the ‘"United States, which applies to a state law of this description; nor are we aware of any decision of this, or of any circuit court, which has condemned such a law' upon this ground, provided its effect be not to impair the obligation of a contract.” The same principles were reaffirmed in this Court, in the late case of Watson and others v. Mercer, decided in 1834, 8 Pet. 110; “as to the first point, (say the Court,) it is clear that this Court has no right to pronounce

an act of the state legislature void, as contrary to the constitution of the; United States, from .the mere fact that it divests antecedent vested rights of property. The constitution of the United.

States does not prohibit the states- from passing retrospective laws, generally;- but only ex post facto laws.” After these solemn decisions of this Court, it is apparent that the plaintiffs in error cannot sustain themselves here, either upon the ferry right, or the charter to the bridge; upon the ground that vested rights of property have been divested by the legislature.' -And whether they claim under the ferry right, or the charter ttf the bridge, they must show that the title which they claim, was acquired by contract, and that the terms of that contract,' have been violated by the charter to the Warren Bridge.

In other words, they must show that the state had entered into a contract with 'them, or those under whom they claim, not to establish a free bridge at the 'place where the Warren Bridge is erected. Such, and such only, áre the principles upon which the plaintiffs in error' can claim, relief in this case. The nature and extent of the- ferry right granted to Harvard. college, in 1650, must depend upon the laws of Massachusetts; and the character and extent of this right has been elaborately discussed- at .the bar.

But in the view which the Court take of the case before, them, it is not necessary to 'express any opinion on these questions.

For assuming that the grant to Harvard college, and the charter to the Bridge company, were both contracts, and that the ferry right was as extensive and exclusive as the plaintiffs contend for; still they cannot enlarge the privileges granted to the bridge, unless it can be shown, that the rights of Harvard college in this ferry-have, by assignment, or in some other way, been transferred to the proprietors of the Charles River Bridge, and still remain in existence, vested in them, to the same extent with that in which they were held and enjoyed by the college before the bridge was built.

It has been strongly pressed upon- the Court, by the plaintiffs in error, that these rights are still existing, and are now held by the proprietors of the bridge. If this franchise still exists, there must be somebody possessed of authority to use it, and to keep the ferry. Who could now lawfully set up a ferry where the old one was kept? The bridge was built in the same place, and its abutments occupied the landings of the ferry..

The transportation of passengers in boats, from landing to landing, was no longer possible; and the ferry was as effectually destroyed, as if a convulsion of nature had made .there a-passage of dry land. The ferry then,, of necessity, ceased to exist, as soon as the bridge was erected; and when the ferry itself was destroyed, how can rights which were incident to it, be supposed to survive?

The exclusive privileges, if they had such, must follow the fafe of the ferry, and can have no legal existence without it-*-and if the ferry right had been assigned by the college, in due and legal form, to the proprietors of the bridge, they themselves extinguished that right, when they erected the bridge in its place. It is not supposed, by any one, that the Bridge company have a right to keep a ferry.

No such right is claimed for them, nor can be claimed for them, under their charter to erect a bridge — and it is difficult to imagine how ferry rights can be held by a corporation, or an individual, who have no right to keep a ferry.

It is clear, that the incident must follow the fate of the principal, and the privilege connected with property, cannot survive the destruction of the-property; and if the ferry right in Harvard college was exclusive, and had been assigned to the proprietors of the bridge, the privilege of exclusion could ’not remain in the hands of their assignees, if those assignees destroyed the ferry.

But upon what ground can the plaintiffs in error contend that the ferry rights of the college have been transferred to the proprietors of the bridge? ' If they have been thus transferred, it must be by some mode-of transfer known to the law; and the evidence relied on to prove if, can be pointed out in the record. How was it transferred?' It is. not suggested that there ever was, in point of fact, a deed of eonveyance executed by the college'to the Bridge company. Is there any evidence in the record from which such a conveyance may, upon legal principle, be presumed?

The testimony before the Court, so far from laying the foundation for such a.presumption, repels it in the most positive terms. The petition to the legislature, in 1785, on which the charter was granted, does not suggest an assignment, nor any agreement or consent on the part of the college; and the petitioners do not appear to have regarded the wishes of that institution, as by any means necessary to ensure their success.

They place their application entirely on considerations of public interest and public convenience, and the superior advantages of a communication across Charles river by a bridge, instead of a ferry. The legislature, in granting the charter, show, by the language of the law, that they acted on the principles assumed by the petitioners. The

preamble recites that the bridge “ will be of great public utility;” and that is the only reason they assign, for passing the law which incorporates this company.

The validity of the charter is "not made to depend on the consent of the college, nor of any assignment or surrender on their part; and the legislature deal with the subject, as if it weré one exclusively within their own power, and as if the ferry right were not to be transferred to the Bridge company, but to be extinguished and they appear to have acted on the principle, that the state by virtue of its sovereign powers and eminent domain, had a right to take away the franchise of the ferry; bécause, in their judgment, thé public, interest and conveniénce would' be better promoted- by ,a bridge in the same place; and upon that principle they proceed to make a pecuniary compensation to the college, for the franchise thus taken away: and ás there is an -express reservation of a continuing pecuniary compensation to the college, when the bridge shall become the property of the state, and no provision whatever for the restoration of the ferry right, it is.evident that no such right was intended to be reserved or continued.

The ferry, with all its privileges was' intended'to be forever at an end, and a compensation in money was given in lieu of it. The college acquiesced in this, arrangement, and there is proof, in the record, that it was all done with their consent. Can a deed of assignment to the Bridge company which would keep alive the ferry rights in their hands, be presumed under such circumstances?

Bo not the petition, the law of incorporation, and the Consent of the college to the pecuniary provision made, for it in perpetuity, all repel the notion of an assignment of-its rights to the Bridge company, and prove that, every party to this proceeding, intended that its franchises, whatever they were, should be resumed by the state, and be no longer held by any individual, or corporation? With such evidence before us, there can be no ground for presuming a conveyance to the plaintiffs. There was no reason for such a conveyance.

There was every reason against it; and the arrangements proposed 'by the charter to the bridge, could not have been carried into full effect, unless the rights of the ferry were entirely extinguished. It is however said, that the payment of the two hundred pounds a year to the college, as provided for in the law, gives to the proprietors of the bridge an equitable claim to be treated as the assignees of their interest; and by substitution, upon chancery principles, to-be-clothed with all their rights. The answer to this argument is obvious.

This annual sum was intended to be paid out of the proceeds of the tolls, which the company were authorized to collect. The amount of the tolls,- it must be presumed, was graduated with a view to this incumbrance, as well as- to every other expenditure to which the company might be subjécted, under the provisions of - their charter. The tolls were to-be collected from the public, and it was intended that the expense of the annuity to Harvard college should be borne by the public; and it is manifest that it was so borne, from the amount which it is admitted they received, until the Warren Bridge was erected.

Their agreement,’.therefore, to pay-that sum, can give them no equitable right to be regarded as the assignees of the college, and certainly can furnish no foundation for presuming a conveyance; and as the proprietors of the bridge are-neither the legal nor equitable assignees-of the college, it is ¿oí easy to perceive how the ferry franchise cart be invoked in aid of their claims, if it were even still a subsisting privilege; and had. not been resumed by the state, for the purpose of building-a bridge.in its place., .

Neither can the extertt of the pre-existing ferry right, whatever it may have been, have any influence upon the construction of. the written charter for„the bridge. -It .does not', by any means, follow, that, because the legislative-power in Massachusetts, in 1650, may have granted to a justly favoured seminary of learning, the exclusive right of' ferry between Boston and Charlestown, they would, in 1785, give the same extensive privilege to another corporation, who were about to erect a bridge in the same place.

The fact that such a tight was granted to the college, cannot by any sound rule of construction, be used to extend the privileges of-the Bridge company beyond what the words of ffhe charter naturally and légally import.

Increased population longer experienced in legislation, the different character of the corporations, which owned the ferry from that which owned the bridge,.might well have induced a change in the policy of the state in this respect; and as the franchise of the ferry, and that of the bridge, are different in their nature, and were each established by separate grants, which have no words to connect the privileges of the, one with th*e privileges of the other; there is no rule óf legal

interpretation, which would authorize the' Court to associate these grants together, and to infer that any privilege was intended to be given to the Bridge company, merely because it had been conferred, on the ferry. The charter to the bridge is a written instrument which must speak for itself, and be interpreted by its own terms.

This brings us to the act of the legislature of Massachusetts, of 1785, by which the plaintiffs were incorporated by the name of “ The Proprietors of the Charles River Bridge;” and it is here, and in the law of 1792, prolonging their charter, that we must look for the extent and nature of the franchise conferred, upon the plaintiffs. Much has been said in the argument of the principles of construction by which this law is to be expounded, and what undertakings, on the part of the- state, may be implied. The Court think there can be no serious difficulty on that head.

It is the grant of certain franchises by the public to a private corporation, and in .a matter where the public interest is concerned. The rule of construction in such cases is well settled,.both in England, and by the decisions of our own tribunals. In 2 Barn. & Adol. 798; in the case of the Proprietors of the Stourbridge. Canal against Wheely and others, the court’say, “ the canal having been made under

an act of parliament, the rights of the plaintiffs are derived entirely from that act; This, like many other cases, is’a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases,-is now fully established to be this; that any ambiguity in the terms of the contract, must operate against the adventurers, and in favour of the- public, and" the plaintiffs can claim nothing that,is not clearly, given them by the-act.”- And the doctrine thus laid down is abundantly sustained by the authorities referred to in this decision.

The case itself wás as strong, a one, as could well be imagined, for giving to the canal company, by implication, a right to the tolls they .demanded. Their canal had been used by the defendants, to a very considerable extent, in transporting large quantities of coal. The rights of all persons to navigate the canal, were expressly secured by the act of parliament; so that the company could not prevent them from using it, and the toll demanded was admitted to be reasonable.

Yet, as they- only used one of the levels of the canal, and did not pass through the locks; and the statute, in giving the right to exact toll, had given it for articles which passed “ through any one or more of the locks,” and had said nothing as to toll for navigating one of the levels; the court held that the right to demand toll, in the latter case, could not be implied, and that the company were not entitled to recover it.

This was a fair case for an equitable construction of the act 'of incorporation, and for an implied grant; if such a rule of construction could ever be permitted in a law of that description. For the canal had been made at the expense of the company; the defendants had availed themselves of the fruits of their labours, and used the canal freely and extensively for their own profit. Still the right to exact toll could not be implied, because such a privilege was not found in the charter.

Borrowing, as we have done, our system, of jurisprudence from the English law;' and-having adopted, in every other case, civil and criminal,-its rulés for the construction of statutes; is there any thing in our local situation, or in the nature of our political institutions, which should lead us to depart, from -the principle where corporations are concerned? Are we to apply, to acts of incorporation, a rule of construction differing from that of the English law, and, by implication, make the terms of a charter in one of the states, morunfavourable to the. public, than upon

an act of parliament, framed in the same words, would be sanctioned in an English court? Can any good reason-be'assigned -for excepting this particular class of cases from the operation of the general principle; and for introducing a new and adverse rule of construction in favour of corporations, while we adopt and adhere to the rules of construction known to the English common law, in every other case, without exception?

We think cot;- and it would present -a singular spectacle, if, while the courts in England are réstraining, within the strictest limits, the spirit of monopoly, and exclusive privileges in nature of monopolies, and confining corporations to the privileges plainly given to them in their charter; the courts of this country should be found enlarging these privileges by implication; and construing a statute more unfavourably to the public, and. to the rights of the community, than would he done in a like case in an English court of justice.

But we are not now left to.determine, for the first time, the rules by which public grants are to be construed in this country. The subject has already been considered in this Court; and the rule of construction, above stated, fully established. In the case of the United States v. Arredondo, 8 Pet. 738, the leading cases upon this subject are collected together by the learned judge who delivered the opinion of the Court; and the principié recognised, that in grants bythe public, nothing passes by implication. The rule is still more clearly and plainly stated in the case of Jackson v. Lamphire, in 3 Pet. 289.

That was a grant of land by the state; and in speaking of this doctririe of implied covenants in grants by the state, the Court use the following language, which is strikingly applicable to the case at bar: — “ The only contract made by the state, is the grant to John Cornelius, his heirs and assigns, of the land in question. The patent contains no covenant to do, or not to do any further act in relation to the land; and we do not feel ourselves at liberty, in this case, to create one by implication.

The state has not, by this act, impaired the force of the grant; it does not profess or attempt to take the land from the assigns of Cornelius, and giye it to one not claiming under Rim; neither does the award produce that effect; the grant remains in full force; the property conveyed is held by his grantee, and the state asserts no claim to it.?’ The sáme rule of construction is also stated in the case of Beatty v. The Lessee of Knowles, 4 Pet. 168; decided in this Court in 1830.

In delivering their opinion in that case, the Court, say: — “ That a corporation is strictly limited to the exercise of those powers which are specifically conferred on it, will not be denied. The exercise of the corporate franchise being restrictive of individual-rights, cannot be extended beyond the letter and spirit of the act of incorporation.” But the case most analogous to this, and in which the -question .came more directly before the Court, is the case of the. Providence Bank v. Billings & Pittmann, 4 Pet. 514; and which was decided, in 1830.

In that case, it appeared that the legislature of Rhode Island had chartered the bank, in the usual form of such acts of incorporation. The. charter contained no stipulation on the part of the state, that it would not. impose a tax on the bank, nor any reservation of the right to do so. It was silent on this point.

Afterwards; a law was passed, imposing a tax on all banks in the state; and the right to impose this tax was resisted by the Providence Bank, upon the ground, that if the state could impose a tax, it might tax so heavily as to render the franchise of no value, and destroy the institution; that the charter was a contract, and that a power which may in effect destroy the charter is inconsistent with it, and is impliedly renounced by granting it.

But the Court said that the taxing power was of vital importance, and essential to the existence of government; and that the relinquishment of such a power is never to be assumed. And in delivering the opinion of the Court, the late Chief Justice states the principle, in the following clear and emphatic-language.

Speaking of >the taxing power, he says, “ as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the state to abandon it does not appear.” The case now before the Court, is, in principle, precisely the-same. It is a charter from a state. The act of incorporation is silent in relation to the contested power.

The argument in favour of the proprietors of the Charles River Bridge, is the same, almost in words, with that used by the Providence bank; that is, that the power claimed by the state, if it exists, may be so used as to destroy the value of the franchise they have granted to the corporation. The argument must receive the same answer; and the fact that the power has been already exercised' so as to destroy the Value of the franchise, cannot, in any degree affect the principle. The existence of the power does not, and cannot depend upon the circumstance of its having beén exercised or not.

It may, perhaps, be said, that in the case of the Providence Bank, this Court were speaking of the taxing power; which is of vital importance to the very existence of every government. But the object and end of all government is to promote the happiness and prosperity of the community by which it is established; ard it can never be assumed, that the government intended to diminish its power of accomplishing the end for which it was created.

And in a country like ours, free, active, and enterprising, continually advancing in numbers and wealth; new channels of communication are daily found necessary, both for travel and trade; and are essential to the comfort, convenience, and prosperity of the people, A state ought never to be presumed to surrender this power; because, like the taxing power, the whole community have an interest in preserving it undiminished.

And when a corporation alleges, that a state has surrendered for seventy'years, its power-of improvement and public accommodation, in a great and important line; of travel-, along which a vast number of its citizens must daily-pass; the community have, a right to insist, in' the. language of this Court above quoted, “that its abandonment ought not to be presumed, in a case, in which the deliberate purpose of the state to abandon it does not appear.” The continued existence of a government would be of no great value, if by implications and presumptions, it was disarmed of the powers neóessary to accomplish the ends of its creation; and the functions it was designed to perform, transferred to the hands of privileged corporations.

The rule of construction announced by the Court, was not confined to the taxing power; nor is it so limited in the opinion delivered. On the .contrary, it was distinctly placed on the ground that the interests of the community were concerned in preserving, undiminished, the power then in question; and whenever any power of the state is said to be surrendered or diminished, whether it be the’taxing power or any other affecting the public interest, the same principle applies, and the rule of construction must be'the same.

No one Will' question that the interests of the great body of the people of the state, would, in this instance, be affected by the surrender of this great line of travel to a single corporation, with' the right to exact toll, and exclude competition for seventy years. While the rights of private property are sacredly guarded, we must not forget that the community also have fights, and that the happiness and well being of every citizen depends on their faithful preservation.

Adopting the rule of construction above stated as the settled one, we proceed to apply it to the charter of 1785, to the proprietors of the Charles River Bridge. This act of incorporation is in the usual form, and the privileges such as are commonly given to corporation^ of that kind. It confers on them the ordinary faculties of a corporation, for the purpose of building the bridge; and establishes certain rates of toll, which the company are authorized to take. This is the whole grant. There is no exclusive privilege given to them over the waters of Charles river, above or below their bridge.

No right to erect another bridge themselves, nor to prevent other persons from erecting one. No engagement from the state, that another shall not be erécted; and no undertaking not to sanctioii competition, nor to make improvements that may diminish the amount of its income. Upon all these subjects the charter is silent; and nothing is said in it about a line of travel, so much insisted on in the argument, in which they are to have exclusive privileges. No words are used, from which an intention to grant any of these rights can be inferred.

If the plaintiff is entitled to them, it must be implied, simply, from the nature of the grant; and canfiot be inferred from the words by which the grant is made. The relative position of the Warren Bridge has already been described. It does, not interrupt the passage over the Charles.River Bridge, nor make- the way to it or from it less convenient. None of the faculties or franchises granted to that corporation, have been revoked by the legislature; and it's right to take the tolls granted by the charter remains unaltered.

In short, all the franchises and rights of property enumerated in the charter, and there mentioned to have been granted to it, remain unimpaired. But its income is destroyed by the Warren Bridge; which, being free, draws off the passengers and property which would have gone over it, and renders their franchise of no value: This is the gist of the complaint. For it. is not pretended, that the erection of the Warren Bridge would have done them any injury, or in any degree affected their right of property;, if it had not diminished the amount of their tolls.

In order then to entitle themselves to relief, it'is necessary to show, that the legislature contracted not to do the act of which they complain; and that they impaired, or in' other words, violated that contract by the erection of the Warren Bridge. The inquiry then is, does the charter contain such a contract on the part of the state? Is there any such stipulation to be found in that-instrument?

It must be admitted on all hands, that there is none— no words that even relate to another bridge, or to the diminution of their tolls, or to the line of travel. - If a contract on that subject can be gathered from the charter, it must be by implication; and cannot be found in the words used. Can such an agreement be implied ? The rule of construction before stated is an answer to the question. In charters of- this description, no rights are taken from the public, or given to the corporation, beyond those which the words of the charter, by their natural and proper construction, purport to convey.

There are no words which import such a contract as the plaintiffs in error contend for, and none can be implied; and the same answer must be given to them that was given by this Court to the Providence Bank.

The whole community are interested in this inquiry, and they have a right to require that the power of promoting their comfort and convenience, and of advancing the public prosperity, by providing safe, convenient, and cheap ways for the transportation of produce, and the purposes of travel, shall not be construed to have been surrendered or diminished by the state; unless it shall appear by plain words, that it was intended .to be done. But the case before the Court is even still stronger against any such implied contract, as the plaintiffs in error contend for. The Charles River Bridge was, completed in 1786.

The time limited for the duration of the corporation by their original charter, expired in 1826. When, therefore, the law passed authorizing the erection of the Warren Bridge, the proprietors of Charles River Bridge held their corporate existence under the law of 1792, which extended their charter for thirty years; and the rights, privileges, and franchises of the company, must depend upon the construction of the last 'mentioned law, taken in connection wdth the act of 1785.

The act of 1792. which extends the charter of this bridge, incorporates another company to build a bridge over Charles river; furnishing another communication with Boston, and distant only between one and two miles from the old bridge. The first six sections of this- act incorporate the proprietors of the West Boston Bridge, and define the privileges, and describe the duties of that corporation. In the seventh

section there is the following recital: “And whereas the eredtion of Charles River Bridge was a work of hazard-and public utility, and another bridge in the place of West Boston bridge may diminish the emoluments of Charles River Bridge; therefore, for the encouragement of enterprise,” they proceed to extend the charter of the Charles River Bridge, and to continue it for the term of seventy years from-"the day the bridge was completed; subject to the conditions prescribed in the original act, and to be entitled to the same tolls.

It appears, then, that by the same act that extended this charter, the legislature established another bridge, which they knew would lessen its profits; and this, too, before the expiration of the first charter, and only seven years after it was granted; thereby showing, that the state did not suppose that, by the terms it had used in the' first law, it had deprived itself of the power of making such public improvements as might impair the profit's of the Charles River Bridge; and from the language used in the clauses of the law by which the charter is extended, it would seem, that the legislature were especially carefuk to exclude any inference that the extension was made upon the ground of compromise with the Bridge Company, or as a compensation for rights impaired.

On the contrary, words are cautiously employed to exclude that conclusion; and the-extension is declared to be granted as a reward for the hazard they had run, and “ for the encouragement of enterprise.’^ The extension was given because the company had undertaken and executed a work of doubtful success; and the improvements which the legislature then contemplated, might diminish the emoluments they had expected to receive from it.

It results from this statement, that the legislature in the very law extending the charter, asserts its rights to authorize improvements over Charles river which would take off a portion of the travel from this bridge and diminish its profits; and the Bridge Company accept the renewal thus given, and thus carefully connected with this assertion of. the right on the part of the state.

Can they, when holding their corporate existence under this law, and deriving their franchises altogether from it; add to tire privileges expressed in their charter an implied agreement, which is in direct conflict with a portion of the law from which they derive their corporate existence? Can the legislature be presumed to have taken upon themselves an implied obligation, contrary to its own acts and declarations contained in the' same law?

It would be difficult to find a case justifying such an implication, even between individuals; still less will it be found where sovereign rights are concerned, and where the interests of a whole community would be deeply affected by such an implication.

It would, indeed, be a strong exertion of judicial power, acting upon' its own views of what justice required, and the parties ought to have done; to raise, by a sort of judicial coercion, an implied contract, and infer it from the nature of the very instrument in which the legislature appear to have taken pains to use words which .disavow and repudiate any intention, on the part of the state, to make such a contract.

Indeed, the practice and usage of almost every state in the Union, old enough to have commenced the work of internal improvement, is opposed to the doctrine contended for on the part of the plaintiffs in error. Turnpike roads have been made in succession, on the same line of travel; the later ones interfering materially with the profits of the first. These corporations have, in some instances, been utterly ruined by the introduction of newer and better modes of transportation, and travelling.

In some cases, rail roads have rendered the turnpike roads on the same line of travel so entirely useless, that the franchise of the turnpike corporation is not worth preserving. Yet in none of these cases have the corporations supposed that their privileges were invaded, or any contract violated on the part of the state.

Amid the multitude of cases which have occurred, and have been daily occurring for the last forty or fifty years, this is the first instance in which such an implied contract has been contended for, and this Court called upon to infer it from an ordinary act of incorporation, containing nothing more than. the usual stipulations and provisions to be found in every such law. The absence of any such controversy, when there must have been so many occasions to give rise to it, proves that neither states, nor individuals, nor corporations, ever imagined that such a contract could be implied from such charters.

It shows, that the men who voted for these laws, never imagined that they were forming such a contract; and if we maintain that they have made it, we must create it by a legal fiction, in opposition to the truth of the fact, and the obvious intention of the party. We cannot deal thus with the rights reserved to the states; and by legal intendments and mere technical reasoning, take away from them any portion of that power over their own internal police and improvement, which is so necessary to their well being and prosperity.

And what would be the fruits of this doctrine of implied contracts on the part of the states, and of property in a line of travel by a corporation;, if it should now be sanctioned by this Court?' To what results would it lead us? If it is to be found in the charter to this bridge, the same process of reasoning must discover it, in the various acts which have been passed, within the last forty years, for turnpike companies." And what is to be the extent of the privileges of exclusion on the different sides of the road?

The counsel who have so ably argued this case, have not attempted to .define it by any certain boundaries. How far- must the new improvement be distant from the old one? How near may you approach without .invading its rights in the privileged line? If this Court should establish the principles now contended for, what is to become of the numerous rail roads established on the same line of travel with turnpike companies; and which have rendered the franchises of the turnpike corporations of no value?

Net it once be understood that such charters carry with them these implied contracts, and give this unknown and undefined property in ¿fine of travelling; and you will soon find the old turnpike corporations awakening from their sleep, and calling upon this Court to put down the improvements which have taken their place. The millions of property which have been invested in rail roads and canals, upon lines of travel which had been before occupied .by turnpike corporations, will be put in jeopardy.

We shall be thrown back to the improvements of the last century, and obliged to stand still, until the claims of the old turnpike corporations shall be satisfied; and they shall consent to permit these states to avtil themselves of the lights of modern science, and to partake of the benefit of those improvements which are now adding to the wealth and prosperity, and the convenience and comfort, Of every other port of the civilized world. Nor is this all.

This Court wrill find itself compelled to fix, by some arbitrary rule, the width of this new kind of property in a line of travel; for if such a right of property exists, we have no lights to guide us in marking out its. extent, unless, indeed, we resort to the old feudal grants, and to the exclusive rights of ferries, by prescription, between towns; and are prepared to decide that when a turnpike road from one town to another, had been made, no rail road or canal, between these two points, could after-wards be established. This Court are not prepared to sanction principles which must lead to such results.

Many other questions, of the deepest importance, have been raised and elaborately discussed in the argument. It is not necessary, for the decision of this case, to express our opinion upon them; and the Court deem it proper to avoid volunteering an opinion on any question, involving the construction of the constitution, where, the case itself does not bring the question directly before them, and make it their duty to decide upon it. Some questions, also, of a purely technical character, have been made and argued, as to the form of proceeding and the right-to relief.

But enough appears on the record to bring out the great question in contest; and it is the interest of all parties concerned, that the real controversy should be settled without further delay: and as the opinion of the Court is pronounced on the main question in dispute here, and disposes of the whole case, it is altogether unnecessary to enter upon the examination of the forms of proceeding, in which the párties have brought it before the Court. The judgment of the supreme judicial court of the commonwealth of Massachusetts, dismissing the plaintiffs’ bill, must, therefore,, be affirmed, with costs. Mr.

Justice M'Lean. This suit in chancery was commenced in the supreme court of Massachusetts, where the bill'was dismissed by a decree,- pro forma, the members of that court being equally divided in opinion; and a writ of error was taken to this Court, on the ground, .that the right asserted by the complainants, and which has been violated under the charter of the respondents, is protected by a special provision in the federal constitution. The complainants’ right is founded on

an act of the legislature .of Massachusetts, passed March 9th, 17S5; which incorporáted certain individuals, and authorized them to erect a bridge over Charles river, a navigable stream between Boston and Charlestown, and an amendatorjr act, passed in 1791, extending the charter thirty years. As explanatory of this right, if not the ground on which it in part jests, a reference is made to an ancient ferry, over the same river, which was held by Harvard college; and the right of which was transferred, it is contended, in equity, if not in law, to the Bridge Company.

The wrong complained of, consists in the construction of a new bridge, over the same river; under a recent act of- the legislature, within a few rods of the old one, and which takes away the entire profits of the old bridge. The act to' establish the Charles River Bridge required it to be constructed within a limited time, of certain dimensions, to be-kept in repair, and to afford certain specified accommodations, to the public. The company were authorized to charge certain rates of .toll; and they were required to pay, annually, two hundred pounds to Harvard college.

The first charter was granted for forty years. The' facts proved in the case show that a bridge of the description required by the act of 1785, was constructed within the time limited; that the annual pevment, has been made to the college; and that, in every other respect, the corporation has faithfully performed thé conditions and duties enjoined on it.

It is contended that the charter granted to the respondents, violates the obligation of that which had been previously granted to the complainants; and that, consequently, it is in conflict with that provision of the constitution which declares, that no “ state shall pass any law impairing the obligation of Contracts.” In the investigation of this case, the first inquiry which seems naturally to arise is as to the nature and extent of the right asserted by the complainants. As early as the year 1631', a ferry was established across Charles river by the colonial government of Massachusetts Bay.

In 1640, the general court say, “ that .the ferry is granted to the college.” From this time the profits of the ferry were received by the. college, and it was required by various statutes, under certain penalties, to keep certain boats, &c., for the accommodation of the public. This duty was performed by the college; and it continued to occupy the ferry until the Charles River Bridge was constructed.

From the above act of the general court, and others which have been shown, and the uhmolestéd use of the ferry for more than one hundred and forty years, by the college, it w;ould seem, that its right to this use had received all the sanctions necessary to constitute a valid title. If the right was not foundéd strictly on precription, it rested on a basis’ equally unquestionable. At the time this ferry was established, it was the only public-communication between Boston and Charlestown.

These places, and especially the latter, were then small; and no greater accommodation was required than was afforded by the ferry. Its franchise was not limited, it is contended, to the ferry ways; but extended to the whole line of travel between the two tSwns. lit cannot be very. material to inquire whether this ferry was originally public or private property; or whether the landing places were vested in the college, or their use only, and -the profits of the ferry.

The beneficial interest in the ferry was held by the college, and-it received the tolls. -The regulation of the ferry, it being a matter of public concern, belonged to the government. It prescribed the number of boats to be kept, ánd the attendance necessary to be given; and on a failure to comply with these requisitions, the college would have been subjected to the forfeiture of the franchise, and the other penalties provided by statute. Was this right of ferry, with all its immunities, transferred to the Charles River Bridge Company?

It is not.contended that there is any express assignment of this right by deed or otherwise; but the complainants claim that the evidence of the transfer is found in the’facts of the case. Before the charter was granted, the college was. consulted on the subject; so soon'as the bridge was constructed, the use of the ferry ceased; and the college has regularly received from the complainants the annuity of two hundred pounds.

This acquiescence, it is contended, taken in eoilnection'with the other facts in the case, goes to establish the relinquishment of the right to the ferry for the annual compensation required to be paid under the charter. That there was a substitution of the bridge for the ferry, with the consent of the college, is evident; but there seems to have, been no assignment of the rights of the ferry.

The original bridge charter was granted for forty years; at the expiration of which period, the property of the bridge was to revert to the commonwealth, “saving to' the college a reasonable and ’ annual compensation for the annual income of the: ferry, which they might have received, had not said bridge been erected.” Had. the bridge been destroyed by fire or otherwise, there was no investiture of right to the ferry in the complainants,' that would have enabled them to keep up the ferry, and realize the profits of it.

On the destruction of the bridge, the college, it is presumed, might have resumed all the rights and responsibilities attached to the ferry. At least, it.is very clear, that these rights and responsibilities would not have devolved on the complainants. They stipulated to afford a different accommodation to the public. If thén these rights could not have been claimed and exercised by the complainants, under such circumstance's; how can they bq considered as enlarging, or in any. way materially affecting the franchise under the charter of 1785? ,.

That the franchise of a ferry at common law, and in the state of Massachusetts, extends beyond the landing places, is very clear from authority. 10 Petersdorf, 53; 13 Vin. 513; Willes’ Rep. 512, note; 12 East, 330; 6 Barn. & Cres. 703; Year Book, Hen. 6, 22; Rolles’ Ab. 140; Fitz. 428. n; Com. Digest, Market, C. 2; Piscary, B. Action on the Case, A; 3 Blk. 219; Nott & M'Cord, 387; 2 Saund. 172; 6 Mod. 229; 2 Vent. 344; 3 Levinz. 220; Com. Dig. Patent, F. 4, 5, 6, 7; 2 Saund. 72, n. 4; 2 Inst. 406 ; Chit. Pre. 12 chap. 3; 10 chap. 2; 3 Salk. 198; Willes, 512; 4 Term, 666; Saund. 114; Croke, E. 710.

The annuity given to the college was a compensation for the profits of the ferry; and Shows a willingness by the college to suspend its rights to the ferry, during the time specified in the act. And if indeed jit might be construed into an abandonment of the ferry, still it. was an abandonment to the publie, on the terms specified, for a better accommodation.

The bridge was designed not only to answer all the purposes of the ferry, but to enlarge the public convenience. - The profits contemplated by the corporators, were not only those which had been realized from the ferry, but such as would arise from the increased facilities to the public. If there was no assignment of the ferry franchise to the complainants, its extent cannot be a matter of importance in this investigation: nor is it necessary to inquire into the effect of an assignment, under the circumstances of the case, if iffiad been made.

There is no provision in the act of incorporation vésting the company with the privileges of the ferry. A reference is made to it merely with the view of fixing the site of the bridge. The right and obligations of the complainants must be ascertained by the construction of the act of 1785. This act. must be considered in the light of a contract, and tifie law of contracts applies to it; In one sense it is a law, having passed through all the forms of legislation, and received the necessary sanctions; but it is essentially á contract', as to the obligations, imposed bjr it, and the privileges it confers.

Much discussion has been had at the bar, as to the rule of construing a charter or grant, and many authorities have been referred to on this point. In ordinary cases, a grant is construed favourable to the grantee, ánd against the grantor. But it is. contended, that in governmental grants, nothing is taken by implication. The broad rule, thus laid down, cannot be sustained by authority. If an office fie granted by name, all the immunities of that office are taken, by implication. Whatever is essential to the enjoyment of the thing granted, must be taken by implication.

And this rule holds good, whether the grant emanate from the royal prerogative of the king in England, or under

an act of legislation in this country. The general, rule is, that í£ a grant of the king, at the suit of the grantee, is tó be construed' most beneficiálly for the king, and most strictly against the grantee;” but grants obtained as a matter of special favour of the king, or on a consideration, are more liberally construed: Grants of limited political powers are construed strictly. Com. Dig. tit. Grant, E. 5; 2 Dane’s Ab. 683; 1 Nott & M'Cord, Stark v.

M'Gowan; Pop. 79; Moore, 474; 8 Coke, 92; 6 Barn. & Cres, 703; 5 Ib. 875; 3 M. & S. 247; Hargrave, 18 to 23; Angel on Tide Water, 106, 7; 4 Burr. 2161; 4 Durn. & East. 439; 2 Bos. & Pul. 472; 1 Term, 669; 1 Con. Rep. 382; 17 Johns. 195; 8 M. & S. 247; 6 Mass. 437; 1 Mass. 231; 17 Mass. 289; Angel, 108; 4 Mass. 140, 522; Bac. Pre. T. 2; Plow. 336, 7; 9 Coke, 30; 1 Vent. 409; Croke. J. 179; Dyer, 30; Saville, 132; 10 Coke, 112; Com. Dig. Giant, 9, 12; Bac. tit. Prerog. 2; 5 Barn. & Cres. 875; 1 Mass. 356.

Where the legislature, with a view of advancing the public interest by the construction of. a bridge, a turnpike road, or any other work ..of public futility, grants a charter, no reason is perceived why such a charter should not be construed by the same rule that governs contracts between 'individuals. • The public, through their agent, enter into the contract with the company; and a valuable consideration is received in the construction of the contemplated improvement..

This consideration is paid by the company, and sound policy requires, that its rights should be ascertained and protected, by-the same rules as. aré applied to private contracts. In the argument, great reliance was placed on the case of the Stourbridge Canal v. Wheeley and others; 2 Barn. & Ald. 792. Tne question in this case was, whether the plaintiffs had a right to charge toll in certain cases; and lord Tenterden said, “the canal having been made under the provisions of.

an act of parliament, the rights of the plaintiff are derived entirely from that act. This, like many other tases, is a bargain betweén a company of adventurers, and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases, is now fully established to be- this — that any ambiguity in the terms of the contract must operate against the adventurers, and in favour of the public; and the plaintiffs can claim nothing, which is not clearly given to them by the act.” This is relied on to show, that nothing is taken, under such a grant, by implication or inference.

His lordship says, the right must be clearly giyen — he does not say expressly given, which would preclude-all inference. In another part of the same opinion, his lordship says, “ Now it is quite certain that the company have no right; expressly given, to receive any compensation, excépt the tonnage paid for goods carried through some of the locks on the canal, or the collateral cuts; and it is therefore -incumbent upon them to show that they have a right, clearly given by inference, ivoixi some of the other clauses.” May this right be shown by inference; and is not this implication? .

The doctrine laid down in this case, is simply this;’ that the right to charge the toll, must be given expressly, or it must be clearly made out by inference. • Does not this case establish the doctriné of implication, as applied to the construction of grants? Is not the right to pass by-laws incident to a corporation? A right cannot be claimed by a corporation, under ambiguous terms. It must clearly appear to have been granted, either in express terms, of by inference, as stated by lord Tenterden. A corporate power to impose a tax on the land of the company, as considered in the case of Beatty v.

The Lessee of KnoWlfes, 4 Peters, 168, must, in its nature, be strictly construed; and so in all cases where corporate powers, in the nature of legislation, are exercised. In that case, the directors were authorized to impose a tax under certain circumstances; and the .Court held that they had no power to impose the tax under,other eircúmstances. Charles river being a navigable stream, any obstructions to its navigation, by,the erection of a bridge, or any other work, would have been punishable, Unless authorized by law.

By the act of 1785, the complainants were authorized to build the bridge, elect their officers, &c. and charge certain rates of .toll. The power to tax 'passengers, was the consideration on which the expense of building the bridge, lighting it, &c. .and keeping it in repair, was incurred. The grant then of tolls, was the essential part of the franchise. That course of reasoning which Would show the consideration to consist in any thing short of this power to tax, and the profit arising therefrom, is too refined for practical purposes.

The builders of the bridge had no doubt á desire to increase the public aceommodatiqp: but they looked chiefly to a profitable investment of their, funds; and that part of the charter which secured this object, formed the consideration on which the work was performed. But it is said, there was no exclusive right given; and that consequently the legislature might well cause another bridge to be built, whenever, in their opinion, the public convenience required it.

On the other hand, it is insisted that the franchise of the bridge was as extensive as that of the ferry; and that the grant of this franchise having been made by the legislature, it had no power to grant a part of it to the new bridge. That this part of the case presents considerations of great importance, and of-much difficulty, cannot be denied. To inquire into the validity of a solemn act of legislation is at all times a task of much delicacy; but it is peculiarly so, whén such inquiry is made by a federal tribunal, .and relates to the act of a state legislature.

There are cases, however, in the investigation of which such an inquiry becomes a duty; and then no court can shrink, nor desire' to shrink from its performance Under such circumstances, this duty will always be performed with the high respect due to a branch of the government, which, more than any other, is clotned with discretionary powers, and influenced by the popular will. The right granted to the Charles River Bridge Company, is, in its naturej to a certain extent, exclusive; but to measure this extent, .presents the chief difficulty.

If the boundaries of this right could be clearly established, it would scarcely be contended by any one, that the legislature could, without compensation, grant to another company the whole or any part of it. . As well might it undertake to grant a tract of land, although an operative grant had been previously made for the same land. In such a case the second grant would be void, on the ground that the legislature had' parted with the entire interest in the premises. As agent of the public it had passed the title to. the first grantee; and having done so, it could convey no right’by its second grant.

The principle is the same in regard to the question under consideration. If the franchise granted to the complainants extended beyond the new bridge; it was as much above the power of the legislature to make the second grant, as'it would be to grant a part of a tract of land for which a patent had been previously and regularly issued.. The franchise, though incorporeal in legal contemplation, has body and extension; and having been granted, is not less scrupulously guarded by the.principles.-of law than an interest in the soil.

It is a substantive right in law, and can no more be resumed by the legislature, when once granted, than any other right.- But would it not be unsafe, it. is suggested, for the judicial authority to interpóse and limit- this exercise of legislative discretion?

The charter of the Warren Bridge, it is said, was- not hastily granted; that all the circumstances of the case, year after year, were, duly examined by the legislature; and at last the act of incorporation was passed, because, in the judgment of the'legislature, the public accommodation required it; and it is insisted that the grant to the complainants was necessarily subject to the exercise of this discretion..

It' is undoubtedly the province of the legislature to provide for. the public exigencies, and the utmost respect is always due to their acts; and the validity of those acts can only be questioned judicially, where they infringe upon private rights. At- the time the Charles River Bridge was built, the population of Boston and Charlestown was small in comparison with their present numbers; and it is' probable that the increase has greatly exceeded any calculation made at the time.

The bridge was sufficient to accommodate the public; and it was, perhaps, believed that it would be sufficient, during the time limited in the charter. If, however, the increased population and intercourse between these towns and the surrounding country, required greater accommodation, than was afforded by the bridge, there can be no doubt that the legislature could make provision fot it.

On the part of the complainants’ counsel it is contended, if increased' facilities of intercourse between these places were required by the public, the legislature was bound in good faith to give the option to the Charles River Bridge Company, either to enlarge their bridge, or construct a new one, as might be required. And this-argument rests upon the ground that the complainants’ franchise included the whole line of travel between the two places.

Under this view of their rights, the company proposed to the legislature, before the new charter was granted to the respondents, to do any thing which should be deemed requisite for the public accommodation. In support of the complainants’ right, in this respect, a case is referred to in 7 Barn. and Cres. 40; where it is laid down, that the lord of an ancient market may, by law, have a right to prevent other persons from selling goods in their private houses, situated within the limits of his franchise: and also to 5 Barn. and Cressw. 363.

These cases show, that the grant to the lord of the market is exclusive; yet, if the place designated for the market is made too small by the act of the owner, any person -may sell in the vicinity of the market, without" incurring any responsibility to the lord of the market. Suppose the legislature had passed a law requiring the complainánts to enlarge their bridge; or constract a new one, would they have been bound by it ?

Might they have not replied to the legislature, we have constructed our bridge of the dimensions required by the charter; we have, therefore, provided for the public all the accommodation which we are bound to give. And if the legislature could not require this of the complainants, is it not clear that they cannot assert an exclusive claim to the advantages of an enlarged accommodation. In common with other citizens, they .submitted propositions to the- legislature, but -they could urge no exclusive right to afford any accommodation beyond what was given by . their bridge.

When the Charles River Bridge was built, it was considered a work of great magnitude. It was, perhaps, the first experiment made to throw a bridge of such length over an arm of the sea; and in the construction- of i.t great risk and expense were incurred. The unrestricted profits contemplated, were necessary to induce or justify the undertaking. Suppose within two or three years after the Charles River Bridge had been erected, the legislature had authorized another bridge to be built alongside of it, which could only accommodate the same line of travel.

Whether the profits of such a bridge were realised by a company or by the state, would not the act of thé legislature have been deemed so gross a violation of the rights of the complainants, as to be condemned by the.common sense and common justice of mankind? The plea, that the timbers or stone of the new bridge did not interfere with the old one, could not, in such a case, have availed.

The value of the bridge is not estimated by the quantity of timber and stone it may contain, but by the travel over it And if one-half or two-thirds of this travel, all of which might conveniently have passed-over. the old bridge, be drawn to the new one', the injury is milch greater than would have been the destruction of the old bridge. A reconstruction of the bridge, if destroyed, would secure to the company the ordinary profits; but the division or destruction of the profits, by the new bridge, runs to the end of the charter of the old one.

And shall it be said, that the greater injury, the diversion of the profits, may be inflicted on the company with impunity; while for the less injury, the destruction of the bridge, the law would give an adequate remedy? I am not here about to apply the principles which have been long established in England, for the protection of ancient ferries, markets, fans, mills, &c. In my opinion, this doctrine, in its full extent, is not adapted to the condition of our country.

And it is one of the most valuable traits in the common law, that it forms a rule of right, only in cases and under circumstances adapted to its principles. In this country there are few rights founded on prescription. The settlement of our country is comparatively recent; and its rapid growth in population and advance in improvements have prevented, in a great degree, interests from being acquired by immemorial usage. Such evidence of right is found in countries where society has become more fixed, and improvements are in a great degree stationary.

But without the aid of the principles of the common law, we should be at a loss how to constru the charter of the complainants, and ascertain their rights. Although the complainants cannot fix their franchise by showing the extent of the ferry rights; yet, under the principles of the common law, which have been too long settled in Massachusetts, in my opinion, to be now shaken; they may claim their franchise beyond the timbers of their bridge.

If .they may go beyond these, it is contended that no exact limit can be prescribed. -^And because it my be difficult, and perhaps impracticable, to designate with precision the exact limit; does it follow that the complainants’ franchise is as narrow as their bridge. Is it more difficult to define, with reasonable certainty, the extent of this right, than it is, in many other cases, to determine the character of an offence against the laws, from established facts. What shall constitute a public or private nuisance? What measure of individual wrong shall be sufficient to convict a person of the latter?.

And what amount of inconvenience to the public shall constitute the former? Would it be more difficult to define the complainants’ franchise, than to answer these questions? And yet public ana private nuisances are of daily cognizance in courts of justice. How have ferry rights, depending upon the same principles, been protected for centuries in England? The principles of the common law are not applied with that mathematical precision, of which the principles of the civil law are susceptible. But if the complainants’ franchise cannot be measured by feet and inches, it does not follow that they have no rights.

In determining upon facts which establish rights or wrongs, pub-lie as well as private, an exercise of judgment is indispensable; the facts and circumstances of each case are considered, and a sound and legal conclusion is drawn from them. The bridge of the complainants was substituted tor the ferry; and it was designed to accommodate the course of travel between Boston and Charlestown. This was the view of the legislature in granting the charter,, and of the complainants in accepting it.

And if it be admitted that the great increase of population has required the erection of other bridges than that which is complained of in this suit, over this arm of the sea, that can afford no protection to the defendants. If the interests of the complainants have been remotely injured by the construction of other bridges, does that give a license, to the defendants to inflict on. them a more direct and greater injury? By an extension of the complainants’ charter, thirty years, an indemnity .was given and accepted by them "for the construction of the West Boston bridge.

The franchise of the complainants must extend a reasonable distance above and below the. timbers of their bridge. This distance must not be so great.as to subject the public to serious inconvenience, nor so limited as to authorize a ruinous competition. It may not be necessary to say, that for a remote injury the law would afford a remedy; but where the injury is ruinous, no doubt can exist on the subject. The new bridge, while tolls were charged, lessened the profits of the .old one about .one-half, or two-thirds; and now that it is a free bridge by law, the tolls received by the complainants are merely nominal.

On what principle of law can such

an act.be sustained? Are rights acquired under a solemn contract with the legislature, held' by a more uncertain tenure than other rights? Is the legislative power so omnipotent in such cases, as to resume what it has granted without compensation? It will scarcely be contended, that if the legislature may do this, indirectly, it may not do it directly. If it may do it through the instrumentality of the Warren Bridge Company, it may dispense with that'instrumentality. But it is said that any check to the exercise of this discretion by the legislature, will operate against the advance of improvements..

Will not a different effect be produced? If fevery bridge or turnpike company were liable to have their property wrested from them, under

an act of the legislature,,without compensation; could much value be attached to such property? Would prudent men expend their funds in making such improvements? Can it be considered as an injurious check to legislation, that private property shall not be taken for public purposes, without compensation? This restriction is imposed by the federal constitution, and by the constitutions of the respective states. But it has been urged that the property, of the complainants has not been taken, as the- tolls in anticipation cannot be denominated property.

The entire value of the bridge consists in the right of exacting toll. Is not this right property, and cannot its value be measured? Do not past receipts and increased intercourse, afford a rule by which future receipts may be estimated? And if the whole of these tolls are taken under

an act of the legislature, is not the property of the complainants taken? The charter of the complainants has been compared to .a bank charter, which implies no obligation on the legislature not to establish another bank in the same place. This is often done; and--it is contended, that fbr the consequential injury done the old bank by lessening its profits, no one supposes that an action would lie,' nor that the second charter is unconstitutional. ' This case bears little or no analogy to the one under consideration.

A bank may wind up its business, or refuse its discounts, at the pleasure of its stockholders and directors. They are under no obligation to carry on the operations of the institution,’or afford any amount' of accommodation to the public. Not so with the'complainants. Under heavy penalties they are obliged to keep their bridge in repair, have it lighted, the gates kept open, and to pay two hundred pounds annually to the college. This the complainants are bound to do, although the tolls received should scarcely pay for the oil consumed in the lamps of the bridge.

The sovereign power of the state has taken the tolls of the complainants, but it has left them in possession of their bridge. Its stones and timbers are untouched, and the roads that lead to it, remain unobstructed. One of the - counsel in the defence; with emphasis,, declared, that the legislature can no more repeal a charter, than it can lead a citizen to the block. The legislature" cannot bring a citizen to the block; may it open his arteries? It cannot cut off his head; may it bleed him to death?

Suppose the legislature had authorized the construction of an impassable wall, which encircled the ends of the bridge, so as to prevent passengers from crossing on it. The wall may be as distant from the abutments of the bridge as the Warren Bridge. Would this- be an infringement of the plaintiffs’ franchise? On the principles, contended for, how could it be so considered? If the plaintiffs’ franchise is limited to their bridge, then they are • not injured by the, construction of this wall; or, at least, they are without remedy. This wall would be no more injurious to the plaintiffs than the free bridge.

And the plaintiffs might be told, as alleged in this case, the wall does not touch your bridge. You are left in the full exercise of your corporate faculties. You have the same right to charge toll as you ever had. The legislature had the same right to destroy the plaintiffs’ bridge by authorizing the construction of the wall, as they had by authorizing the construction of. a free bridge. In deciding this question we are not to consider what may be the law on this subject in Pennsylvania, Maryland, Virginia or Ohio; but what it is in Massachusetts.

And ip that state, the doctrine has been sanctioned that associations of men to accomplish enterprises of importance to the public, and who have vested their funds on the public faith, are entitled to protection. That their rights do not become the sport of popular excitement, no more than the rights of other citizens.' The case under consideration forms, it is believed, a solitary exception to this rule; whether we look to the action of the legislature, .or the opinions of the distinguished jurists of the state, on the bench, and at the bar.

The expense of keeping up the bridge, and paying-the annuity to. the college, is all that is left by the state to the .complainants. Had this been, proposed, or any thing which might lead to such a result - soon after the construction of the complainants’ bridge, it is not probable, that it would have. been sanctioned; and ygt it might as well have been done ¡hen as now. A free bridge then^ couldJbave.been no more injurious to the plaintiffs than it is now. No reflection is intended on the commonwealth of Massachusetts, which is so renowned in our'history for its intelligence, virtue and patriotism.

She will not withhold justice, when the rights of the complainants shall be established. Much reliance is placed on the argument, in the case reported in 4 Peters, 560, in which it was decided, that a law of the state of Rhode Island, imposir g a tax upon banks, is constitutional. As these banks were chartered by the state, it was contended that there was no implied obligation on the legislature not to tax them. That if this power could be exercised, it might be carried so far as to destroy the banks. But this Court sustained the right of the state to tax. The analogy between the two cases is not perceived.

Does it fpllow, because the complainants’ bridge is not exempt from taxation, that it may be destroyed, or its yalue greatly impaired by any other mejns? The power to tax extends to every description of property held within the state, which is not specially exempted; and there is no reason or justice in withholding from the operation of this power, property held directly under the grant of the state. The complainants’ charter has been called a monopoly; but in no j

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