1. Where a statute of a state creates a contract, and a
subsequent statute is alleged to impair the obligation of that
contract, and the highest court of law or equity in the state
construes the
first statute in such a manner as
that the second statute does
not impair it, whereby the
second statute remains valid under the Constitution of the United
States, the validity of the second statute is "drawn in question"
and the decision is "in favor" of its validity within the meaning
of the 25th section of the Judiciary Act of 1789. This Court may
accordingly, under the said section, reexamine and reverse the
judgment or decree of the state court given as before said. The
case distinguished from
Commercial Bank v.
Buckingham's Executors, 5 How. 317, GRIER, J.,
dissenting.
2. A party relying on this Court for reexamination and reversal
of the decree or judgment of the highest state court under the 25th
section of the Judiciary Act of 1789 need not set forth specially
the clause of the Constitution of the United States on which he
relies. If the pleadings make a case which necessarily comes within
the provisions of the Constitution, it is enough.
3. The statute of the Legislature of New Jersey, passed A.D.
1790, by which that state gave power to certain commissioners to
contract with any persons for the building of a bridge over the
Hackensack River, and by the same statute enacted that the "said
contract should be valid on the parties contracting as well as on
the
State of New Jersey," and that it should not be
"lawful" for any person or persons whatsoever to erect "any other
bridge over or across the said river for
ninety-nine
years," is a contract whose obligation the state can pass no
law to impair.
Page 68 U. S. 117
4. A railway viaduct, if nothing but a structure made so as to
lay iron rails thereon, upon which engines and cars may be moved
and propelled by steam, not to be connected with the shore on
either side of said river except by a piece of timber under each
rail and in such a manner as near as may be so as to make it
impossible for man or beast to cross said river upon said structure
except in railway cars [the only roadway between said shores and
said structure being two or more iron rails two and a quarter
inches wide, four and a half inches high, laid and fastened upon
said timber four feet ten inches asunder], is not a "bridge" within
the meaning of the act of New Jersey, passed A.D. 1790, and just
mentioned, CATRON, J., dissenting. And the act of assembly of that
same state, passed A.D. 1860, authorizing a company to build a
railway, with the necessary viaduct, over the Hackensack does not
impair the obligation of the contract made by the aforesaid act of
1700.
The Judiciary Act (§ 25) provides that a final decree in
the highest court of equity in a state
"where
is drawn in question the validity of a statute of . .
. any state on the ground of its being repugnant to the
Constitution of the United States, and the decision is in favor of
such validity, may be reexamined and reversed"
in this Court. And the Constitution of the United States
provides that "No state shall pass any . . . law impairing the
obligation of contracts."
With these provisions in force, the State of New Jersey passed,
A.D. 1790, an act creating a turnpike company from Newark to Powles
Hook (near New York), and authorizing commissioners to fix suitable
sites for building bridges over the Rivers Passaic and Hackensack
and to cause to be erected a bridge over each river, with a right
to take toll from classes of persons and things enumerated in the
act, and which may be summed up shortly as persons on foot, animals
and
vehicles crossing the bridge. The statute enacted,
"That it should be lawful for the commissioners to contract with
persons who would undertake the same for such toll, or for so many
years, and upon such conditions, as in their discretion should
appear expedient,"
and further
"That the said
contract should be valid and binding
on the parties contracting as well as on the State of New
Jersey, and as effectual, to
all intents and purposes
whatever as if the same and
every part, covenant, and
condition therein contained had been particularly and expressly set
forth and enacted in this law."
It was further
Page 68 U. S. 118
enacted
"That it should not
be lawful for any person or persons
whatsoever to erect or cause to be erected [within certain limits
specified]
any other bridge or bridges over or across the
said river,
provided always that if the said commissioners
shall refuse or neglect for the space of four years to cause to be
erected the said bridges, in pursuance of this act, or when
erected, to maintain and support them,
then it shall and may be
lawful for the legislature of this state to repeal or alter
this act and to enact such other law or laws touching or concerning
the premises herein enacted, as to them, in their wisdom, shall
appear equitable and expedient."
In 1793, the commissioners contracted with one Ogden and others
his associates for the erection of the bridges authorized, and
demised them the said Ogden and his associates until November 24,
A.D. 1889, with a right to levy tolls as fixed in the contract. In
1797, the Legislature of New Jersey created the said Ogden and his
associates a corporation, which corporation the complainants below,
the present plaintiffs in error, now were.
In 1860, the Legislature of New Jersey, by statute, authorized
another company altogether, to-wit, the Hoboken Land &
Improvement Company, the defendants in this case, to construct a
railroad from the same town, Newark, to Hoboken (opposite New
York), and to build the necessary "viaducts" over these same
Passaic and Hackensack Rivers. And the statute enacted that if
unable to agree with the parties owning or claiming them, it should
be lawful for the company to
"
take and appropriate, use, and exercise, or cause to
be taken and appropriated and exercised, so much of all
rights,
privileges, franchises, property, and bridges or viaducts, or
such parts thereof as may be necessary to enable the said company
to construct said railroad and branches,
first making or
causing to be made compensation therefor as hereinafter provided.
Provided that nothing in this act shall authorize or empower
the said company to construct more than one
bridge over
each of the Rivers Hackensack or Passaic, and the
bridge
Page 68 U. S. 119
over the Hackensack to be twelve hundred feet, river measure,
from any other
bridge. [
Footnote 1]"
Under the authority of the act of 1860, the Hoboken Company now
began to erect their "structure" for carrying their railway across
the Hackensack River, and inside of those limits within which the
bridge proprietors considered that the act of 1790 gave them
exclusive privilege of bridges.
Page 68 U. S. 120
This was done without the consent of the bridge proprietors and
without condemning the value of their right of franchise.
The proprietors of the bridges over the rivers &c., hereupon
filed a bill in the Court of Chancery praying an injunction and
general relief. The bill set out the act of 1790, authorizing the
commissioners to lease out the privilege of building, and the
bridge when built, for a term of years, and that it enacted that no
person, during 99 years, should erect any other bridge over the
river within the limits in question; that the commissioners had
leased their privilege for 99 years to Ogden and his associates,
who had built the bridges, the incorporation &c. It then
proceeded to insist thus:
"That the said act and said lease, and all the stipulations and
provisions and enactments in them and either of them contained,
became a
contract between the state and said party of the
second part to said lease, who are now represented by your orators,
and by the same the state became
held and bound to and
contracted with said party of the second part, and are now, by
force
of such contract, held and bound to
your
orators, as provided in the act, that no persons whatever
should erect
any other bridge or bridges than that erected
by laid lessees and now belonging to your orators. And your orators
insist
that the state cannot by any law violate, void or impair
said contract, even upon providing and making compensation for the
damages sustained thereby."
It next set out several statutes which it charged recognized
these rights, and then the act of 1860, and alleged that thereby
the defendants were authorized to construct a railroad and to erect
viaducts or bridges over the Hackensack River and to take and
appropriate property, rights, franchises &c., necessary to
construct the railroad. It further set out the sections providing
compensation for the franchises taken (
see ante, p.
<|68 U.S. 119|>119, note), and that one section of the act,
the first,
recognized the complainants' right as still
existing. The bill set forth further that the defendants had
commenced to build a bridge within the prohibited limits and that
the complainants had not given their consent to
Page 68 U. S. 121
this; nor the defendants tendered any compensation for the
violation of their contract with the state.
It
insisted
"that there exists no such public necessity for building a
bridge within the prohibited limits as warrants or requires the
violation of the contract -- even had the state the power to pass a
law impairing the obligation of a contract; that there exists no
public necessity for the construction of the defendants' railroad
such as to authorize the taking of the property and franchises of
other persons or corporations."
It
submitted
"that there does not exist that kind of public necessity which
requires or justifies taking
private property for public
use or the abrogation of a contract."
As respected the
contract, the bill charged on the
defendants as follows:
"And they sometimes give out and pretend that the state is not
held and bound
by any contract to or with your orators
that no other bridge shall be erected within said limits,
whereas your orators charge the contrary to be true, and that
the state is held and firmly bound to your orators by their
contract that no bridge shall be erected within said limits
before the 24th day of November, 1889."
The bill prayed the defendants might be restrained from building
the bridge commenced, and for general relief and injunction.
The answer, admitting that "of course the obligation of no
contract can be impaired," declared "that the defendant
does
not pretend that any public necessity requires the violation
of any contract," and it set up several defenses.
1. That by the act of 1790, the state did "
not
contract," and therefore the defendant "denied" the allegation that
it had done so, adding an admission, "that the said
lease
was a contract by which the state was bound," and an allegation
that
"this defendant is advised and insists, that it is the only
contract between the state and the said lessees, or their alienees
(if any), and was by said law declared to be the contract by which
the state was to be bound. "
Page 68 U. S. 122
2. That the prohibitory language, "it shall not be lawful for
any persons to erect any other bridge," &c., in the act of
1790, was not in restraint of the legislature.
3. That any contract in the act of 1790 was discharged by a
nonperformance of the
conditions precedent contained in
the act.
4. That the structure of the defendant is not a
bridge
in the sense that the word "bridge" is used in the act of 1790;
that it would differ from a bridge in these particulars:
a. "It will not," the answer averred,
"be connected with the shore on either side of the river except
by a piece of timber under each rail, and must necessarily be made
so as to make it
impossible for man or beast to cross said
river upon the viaduct except in defendant's cars."
b. "The only
roadway," it was further
asserted,
"between said shores and said structure, will be two or more
iron rails, each of the width of two and one-quarter
inches, and of the height of about four and one-half inches, laid
and fastened upon timber, said rails
being at a distance of
four feet asunder."
c. "It will be
impossible," it was finally
said,
"
for any vehicle or animal which can cross the river upon
the bridge of complainants to cross the same upon the railroad of
defendant, and no foot passenger can cross the same with
safety; nor is it intended that any foot passenger shall, but on
the contrary, the said railroad across the said river shall and
will be so constructed, and this defendant intends to construct the
same in such manner that no vehicle can cross the said river on the
said road or viaduct of the defendant,
except locomotive
engines and railroad cars resting, and which must necessarily move,
upon iron rails, and cannot move upon any bridge which was known or
used in the year 1790 or up to the time of the incorporation of the
complainants and long after, and in such manner that no foot
passenger or animal can cross said river on the railroad viaduct of
the defendant."
5. The answer asserted, that any contract in the act of 1790 was
discharged by the nonperformance of
conditions
subsequent.
6. That the complainants had no assignment of the lease,
Page 68 U. S. 123
i.e., had not a particular evidence of the right to claim the
benefit of the act of 1790.
7. That the exclusive franchise conferred by the prohibition
contained in the act of 1790 had been destroyed by the
complainants' own acts, admitted in the bill, in consenting to
other bridges within the prohibited limits.
8. That a court of equity would not restrain by injunction the
making of a bridge like that which the Hoboken Company proposed to
make, and
on which railroad cars alone could pass, if the
complainants had an exclusive right and would not exercise it.
The case was argued below, as it was here also, on bill and
answer only.
The
opinion of the chancellor below, which, however,
was no part of the record nor strictly in evidence here, was given
at length. In stating what he considered the points before him to
be, he said,
"The material issues are:"
"1. Whether the complainants have,
by virtue of a
contract with the state, the exclusive franchise of
maintaining a bridge across the Hackensack River &c.?"
"2. Whether the structure which the defendants are engaged in
erecting is a
violation of the complainants'
franchise?"
After an argument on the first point, he concluded:
"I am of opinion, therefore, that the proprietors of the bridges
over the Rivers Passaic and Hackensack have,
by contract
with the state, the
exclusive franchise of maintaining
said bridges, and taking tolls thereon, and that such contract is
within the protection of that provision of the Constitution, which
declares that no law shall be passed impairing the obligation of
contracts."
And he adds:
"The remaining inquiry is whether the structure which the
defendants are erecting is a violation of the complainants'
right?"
After an argument on this, the second point, to show that a
viaduct such as the defendants proposed to construct was
Page 68 U. S. 124
not a "bridge" within the meaning of the act of 1790, he
concludes:
"Applying to this contract the ordinary rules of interpretation,
having regard to the subject matter of the contract itself,
considering that it related solely to the travel upon ordinary
highways by methods then known and used, and that the complainants'
franchise extended only to such travel,
the construction of a
railroad bridge for the sole accommodation of railroad travel
cannot be deemed an infringement of the complainants'
right."
In the Court of Errors and Appeals, where only one or two of the
judges spoke, the course of argument was much the same as with the
chancellor.
The
decree in the Court of Chancery was a simple
dismissal, thus: "The chancellor being of opinion that the
complainants are not entitled to restrain the defendants from
building the bridge
or structure complained of," therefore
it is ordered &c., that the bill be dismissed.
The
decree in the Court of Errors and Appeals was a
simple affirmance, the language being that
"The cause coming on to be heard, and the matter having been
debated &c., and the court having advised &c., it is hereby
ordered, adjudged, and decreed, that the decree of the chancellor
be in all things affirmed, with costs."
On appeal to this Court from the Court of Errors and Appeals of
New Jersey -- "the highest court of equity" in that "state," -- the
questions were:
I. Whether this Court had jurisdiction? -- that is to say
whether there had been drawn in question in the state courts of New
Jersey the validity of a statute of that state on the ground that
it violated the obligation of a contract, the decision being in
favor of the statute.
II. If the Court had jurisdiction, and so could reexamine and
reverse the decision below, whether there was any ground for the
reversal of the same, the points raised under the second being,
1. Whether there was ever meant to be any contract at all? If
so,
Page 68 U. S. 125
2. Whether it was a contract such as bound legislatures of this
day? If so,
3. Whether a "viaduct," such as was here proposed, was a
"bridge" within the meaning of that contract?
Page 68 U. S. 141
MR. JUSTICE MILLER delivered the opinion of the Court:
The first point arising in the case is that which relates to the
jurisdiction of this Court, to review the decision of the state
court of New Jersey. This is a question which this Court has always
looked into in this class of cases, whether the point be raised by
counsel or not, but here it is much pressed, and we proceed to
examine it.
It is asserted by the plaintiffs in error that the validity of
the act of the New Jersey Legislature of 1860 is drawn in question
as being contrary to that provision of the Constitution of the
United States which declares that no state shall pass any law
impairing the obligation of a contract and that the decision of the
state court was in favor of its validity, and the case is therefore
embraced by the 25th section of the Judiciary Act.
Page 68 U. S. 142
It is objected, however, by the defendants that the pleadings do
not in words say that the statute is void because it conflicts with
the Constitution of the United States and do not point out the
special clause of the Constitution supposed to render the act
invalid.
It would be a new rule of pleading, and one altogether
superfluous, to require a party to set out specially the provision
of the Constitution of the United States, on which he relies for
the action of the court in the protection of his rights. If the
courts of this country, and especially this Court, can be supposed
to take judicial notice of anything without pleading it specially,
it is the Constitution of the United States. And if the plaintiff
and defendant in their pleadings make a case which necessarily
comes within some of the provisions of that instrument, this Court
surely can recognize the fact without requiring the pleader to say
in words "This paragraph of the Constitution is the one involved in
this case."
Very few questions have been as often before this Court as those
which relate to the circumstances under which it will review the
decision of the state courts, and the very objection now raised by
defendants has more than once been considered and decided.
In the case of
Crowell v. Randell, [
Footnote 2] the motion to dismiss for want of
jurisdiction was argued at much length by Mr. Webster, Mr.
Sergeant, and Mr. Clayton, whose names are a sufficient guarantee
that the matter was well considered. The opinion was delivered by
Mr. Justice Story. He reviews all the cases reported up to that
time, and lays down these four propositions as necessary to bring a
case within the 25th section of the Judiciary Act.
"1st. That someone of the questions stated in that section did
arise in the state court. 2d. That the question was decided by the
state court, as required in the same section. 3d. That it is not
necessary that the question should appear on the record to have
been raised and the decision made in direct and positive terms,
ipsissimis verbis, but that it is sufficient
Page 68 U. S. 143
if it appears by clear and necessary intendment that the
question must have been raised and must have been decided in order
to have induced the judgment. 4th. That it is not sufficient to
show that the question might have arisen or been applicable to the
case unless it is further shown in the record that it did arise,
and was applied by the state court to the case."
In the case of
Armstrong v. Treasurer of Athens County,
[
Footnote 3] Judge Catron, in
delivering the opinion of the Court, said that the question of
jurisdiction under the 25th section of the act of 1789 had so often
arisen, and parties had been subject to so much unnecessary
expense, that the Court thought it a fit occasion to state the
principles on which it acted in such cases. Referring especially to
the manner in which the question on which the jurisdiction must
rest shall be made to appear, he lays down six different modes in
which that may be done. The first of these is "either by express
averment or by necessary intendment in the pleadings in the case."
The sixth is
"that it must appear from the record that the question was
necessarily involved in the decision, and that the state court
could not have given the judgment or decree which they passed,
without deciding it."
Now although there are other decisions in which it is said that
the point raised must appear on the record and that the particular
act of Congress, or part of the Constitution supposed to be
infringed by the state law ought to be pointed out, it has never
been held that this should be done in express words. But the true
and rational rule is that the Court must be able to see clearly,
from the whole record that a certain provision of the Constitution
or act of Congress was relied on by the party who brings the writ
of error and that the right thus claimed by him was denied.
Looking at the record before us and applying to it these
principles, we find no difficulty in the matter. The defendants
claim, under the act of 1860 of the New Jersey legislature, a right
to build their railroad bridge, or viaduct, over the Hackensack
Page 68 U. S. 144
River inside the limits prohibited by the act of 1790. The
plaintiffs say that to permit this is to violate the contract which
they have with the State of New Jersey, and therefore the act of
1860, so far as it confers such authority on the defendants, is
made void by the Constitution of the United States because it
impairs the obligation of a contract. The state court dismissed the
bill on these pleadings alone. In could not have done this without
holding the act of 1860 to be valid, as it was the only authority
on which defendants rested their right to build any structure
whatever over the Hackensack River. In holding that act to be valid
notwithstanding plaintiffs claim that it was void as impairing the
obligation of their contract with the State of New Jersey, a
decision was made within the very terms of the 25th section of the
act of Congress of 1789.
It is said, however, that it is not the validity of the act of
1860 which is complained of by plaintiffs, but the construction
placed upon that act by the state court. If this construction is
one which violates the plaintiffs' contract and is the one on which
the defendants are acting, it is clear that the plaintiffs have no
relief except in this Court, and that this Court will not be
discharging its duty to see that no state legislature shall pass a
law impairing the obligation of a contract unless it takes
jurisdiction of such cases.
The case of the
Commercial Bank v. Buckingham's
Executors [
Footnote 4]
does not conflict with this view, because that was a case in which
the prior and the subsequent statutes were both admitted to be
valid under any construction of them, and therefore no construction
placed by the state court on either of them could draw in question
its validity as being repugnant to the Constitution of the United
States or any act of Congress.
But there is a misconception as to what was construed in this
case by the state court. It is very obvious that the statute of
1860 was not construed. No doubt is entertained by this Court, none
could have been entertained by the state
Page 68 U. S. 145
court that it was intended by the framers of that act to
authorize the defendants to build the railroad bridge which they
were building, and which plaintiffs sought to enjoin. The act which
was really the subject of construction was the act of 1790, under
which plaintiffs claim. For if that act and the proceedings under
it amounted to a contract, and that contract prohibited the kind of
structure which the defendants were about to erect under the act of
1860, then the latter act must be void as impairing that contract.
If on the other hand the first act and the agreement under it was
not a contract, or if being a contract it did not prohibit the
erection of such a structure as that authorized by the act of 1860,
the latter act was valid, because it did not impair the obligation
of a contract. It was then the act of 1790 which required
construction, and not that of 1860, in order to determine whether
the latter was valid or invalid.
In the case of the
Jefferson Branch Bank v. Skelly,
[
Footnote 5] this Court
said:
"Of what use would the appellate power of this Court be to the
litigant who feels himself aggrieved by some particular state
legislation if this Court could not decide independently of all
adjudication by the supreme court of a state whether or not the
instrument in controversy was expressive of a contract and within
the protection of the Constitution of the United States and that
its obligation should be enforced notwithstanding a contrary
conclusion by the supreme court of a state? It never was intended,
and cannot be sustained by any course of reasoning, that this Court
should or could, with fidelity to the Constitution of the United
States, follow the supreme court of a state in such matters when it
entertains a different opinion."
We are therefore of opinion that the record before us presents a
case for the revisory power of this Court over the state courts
under the 25th section of the act of Congress of 1789.
Approaching the merits of the case, the first question that
presents itself for solution is whether the act of 1790, and the
agreement made under it by the commissioners with the
Page 68 U. S. 146
bridge builders, constitute a contract that no bridge shall be
built within the designated limits but the two which that statute
authorized. This we think to be so very clear as not to need
argument or illustration. The parties who built the bridges had the
positive enactment of the legislature, in the very statute which
authorized the contract with them, that no other bridge should be
built. They had a grant of tolls on their bridges for ninety-nine
years, and the prohibition against the erection of other bridges
was the necessary and only means of securing to them the monopoly
of those tolls. Without this they would not have invested their
money in building the bridges, which were then much needed and
which could not have been built without some such security for a
permanent and sufficient return for the capital so expended. On the
faith of this enactment they invested the money necessary to erect
the bridges. These acts and promises, on the one side and the
other, are wanting in no element necessary to constitute a
contract. Such legislative provisions of the states have so often
been held to be contracts that a reference to authorities is
superfluous.
We are next led, in the natural order of the investigation, to
inquire if the contract of the state forbid the erection of such a
structure as the defendants were authorized to erect and which they
proposed to erect under the act of 1860.
This question, upon the decision of which the whole case must
turn, we approach with some degree of hesitation. It is now over
seventy years since the contract was made. A period of time equal
to three generations of the human race has elapsed. During that
time, the progress of the world in arts and sciences has been
rapid. In no department of human enterprise have more radical
changes been made than in that which relates to the means of
transportation of persons and property from one point to another,
including the means of crossing watercourses, large and small. The
application of steam to these purposes, on water and on land, has
produced a total revolution in the modes in which men and property
are carried from one place to another. Perhaps the most remarkable
invention of modern times, in the influence
Page 68 U. S. 147
which it has had, and is yet to have, on the affairs of the
world, as well as in its total change of all the elements on which
land transportation formerly depended, is the railroad system. It
is not strange, then, that when we are called to construe a statute
relating to this class of subjects, passed before a steam engine or
a railroad was thought of, in its application to this modern
system, we should be met by difficulties of the gravest
character.
On the one hand, we are told that the structure about to be
erected by defendants is a bridge -- simply that and nothing more
or less; that such is the name by which it is now called, and that
it is therefore within the literal terms of the act, and that it
performs the functions of a bridge, and is therefore, within the
spirit of the act. On the other hand it is denied that the
structure is a bridge, even in the modern sense of that word, since
it is urged that the word is never applied to such a structure
without the use of the word "railroad," prefixed or implied, and
that it performs none of the functions of a real bridge as that
term was understood in the year 1790.
In all the departments of knowledge, it has been a constant
source of perplexity to those who have attempted to reduce
discoveries and inventions to scientific rules and classifications
that old terms with well defined meanings have been applied so
often to things totally new, either in their essence or in their
combination. It is to avoid the danger of being misled by the use
of a term well understood before, but which is a very poor
representative of the new idea desired to be conveyed that our
modern science is enriched with so many terms compounded of Greek
and Latin words or parts of words. It does not follow that when a
newly invented or discovered thing is called by some familiar word,
which comes nearest to expressing the new idea, that the thing so
styled is really the thing formerly meant by the familiar word.
Matters most intimately connected with the immediate subject of our
discussion may well illustrate this. The track on which the steam
cars now transport the traveler or his property is called a road,
sometimes, perhaps generally,
Page 68 U. S. 148
a railroad. The term "road" is applied to it, no doubt, because
in some sense it is used for the same purpose that roads had been
used. But until the thing was made and seen, no imagination, even
the most fertile, could have pictured it from any previous use of
the word road. So we call the enclosure in which passengers travel
on a railroad a "coach," but it is more like a house than a coach,
and is less like a coach than are several other vehicles which are
rarely if ever called coaches. It does not, therefore, follow, that
when a word was used in a statute or a contract seventy years
since, that it must be held to include everything to which the same
word is applied at the present day. For instance, if a Philadelphia
manufacturer had agreed with a company seventy years ago to furnish
all the coaches which might be necessary to transport passengers
between that city and Baltimore for a hundred years, would he now
be required by his contract to build railroad coaches? Or if a
company had then contracted with the government to build and keep
up good and sufficient roads to accommodate mails and passengers
between those points for the same time, would that company be bound
to build railroads under that contract? Yet the structure which the
defendants propose to build over the Hackensack is not more like a
bridge of the olden time than a railroad is like one of its roads
or a railroad coach is like one of its coaches. It is not, then, a
necessary inference that because the word "bridge" may now be
applied by common usage to the structure of the defendants that it
was therefore the thing intended by the act of 1790.
Let us see what kind of structure the defendants proposed to
build.
It is an extension of the iron rails, which compose the material
part of their road, over the Hackensack River, together with such
substructure as is necessary to keep them in place and enable them
to support the cars which cross on them. There is no planked
bottom, no roadway or path, nothing on which man, or beast or
vehicle can pass, save as it is carried over in the cars of the
defendants. Was this
Page 68 U. S. 149
kind of thing in the minds of the framers of the act of 1790 or
of the commissioners who let the contract? Or would the term
"bridge," as then used by them or by common usage, have included
such a thing? We have no hesitation in answering both these
questions in the negative. We are therefore quite clear that the
adoption of that word to express the modern invention does not
bring it within the terms of the act if it is not within the intent
of it. We will inquire, therefore, a moment if it is within the
spirit of the act and the accompanying contract with the
commissioners.
There is no doubt that it was the intention of those who framed
those two documents to confer on the persons now represented by the
plaintiffs some exclusive privilege for ninety-nine years. If we
can arrive at a clear and precise idea what that privilege is, we
shall perhaps be enabled to decide whether the erection proposed by
defendants will infringe it.
In the first place, it is not an exclusive right to transport
passengers and property over the Hackensack and Passaic Rivers
within the prescribed limits, for there is no prohibition of
ferries, nor is it pretended that they would violate the contract.
In the next place, it is not a monopoly of the right to build
bridges within the prescribed limits, because they were only
authorized to build one bridge over each river, and the statute
enacted expressly that it was unlawful to build any other bridge,
by any person or persons, without excepting them. Besides, the
building of a bridge was not the privilege, but the duty, of those
who had the contract -- a duty which constituted the consideration
for the privilege which was granted to them.
The right to collect toll of persons and things passing over
their bridges is the privilege or franchise which they have, and
that right is rendered valuable by the prohibition to build other
bridges within the limits designated. This prohibition of other
bridges is so far a part of the contract, and only so far, as it is
necessary to enable plaintiffs to reap the benefit of their right
to collect toll for the use of their bridges. The
Page 68 U. S. 150
extent to which tolls may be levied by the bridge owners and the
classes of persons and things on which they may be levied are
enumerated distinctly and fixed by the contract. They may be summed
up shortly as persons on foot, animals, and vehicles passing over
the bridges. If the proposed structure is essentially calculated to
interfere with or impair the right of plaintiffs to collect these
tolls, we are unable to see it. No animal can pass over it on foot.
No vehicle which can pass over the bridge of plaintiffs can by any
possibility pass over that of defendants. No class of persons or
things of which plaintiffs can exact toll can evade that toll by
using the structure of defendants.
It may be said that passengers and property now transported by
that railroad would be compelled to use the bridge of plaintiffs if
there were no such road and no such viaduct. This might be true to
a very limited extent if plaintiffs could annihilate all railroads
running in the direction of the road which passes over their
bridge. But this they cannot do. And as to the road of the
defendants, if they are not permitted to pass the Hackensack within
the limits claimed by plaintiffs, they can with more expense cross
it somewhere else. That being done, it is not believed that the
number of passengers or the amount of freight carried in wagons
which would cross on the bridges of plaintiffs in consequence of
this change in the location of the railroad viaduct is
appreciable.
As the plaintiffs have no right to build any more bridges, and
as the viaduct of defendants does not impair that which is really
their exclusive franchise, we do not perceive how the law which
authorizes such a structure can impair the obligation of the
contract made in 1790 by the state with the bridge owners.
These views are not without the support of adjudged cases,
which, if not in all respects precisely such as the one before us,
are sufficiently so to show that they were considered, and entered
largely into the reasoning upon which the judgments of the courts
were founded.
In the
Mohawk Bridge Company v. Utica &
Schenectady
Page 68 U. S. 151
Railroad Company, [
Footnote 6] the plaintiffs claimed an exclusive franchise,
similar to that held by plaintiffs in this case, which the
defendants, as they alleged, were about to violate by erecting a
structure for the use of the railroad, over the same stream within
the prescribed limits. The chancellor refused the injunction upon
the ground that the grant to plaintiffs was not exclusive, which
was at that time a very doubtful question in New York, and also
upon the ground that the exclusive right to the toll bridge would
not be infringed by the erection of a railroad bridge within the
limits over which the exclusive right extended.
In the case of
Thompson v. New York & Harlem Railroad
Company, [
Footnote 7]
where the contest was again between a bridge owner, claiming
exclusive rights, and a railroad company seeking to cross the
stream within the bounds of plaintiff's claim, the assistant
vice-chancellor refers to the case above mentioned, and says that
he refuses the relief on both the grounds therein mentioned.
The case of
McRee v. Wilmington & Raleigh Railroad
Company, [
Footnote 8] was
an action at law by the owner of a bridge who set up an exclusive
franchise against a railroad company whose track crossed the stream
within the limits of his franchise, for a penalty allowed by
statute for any violation of his right of toll. It is true that the
court rests its decision mainly on the ground that by the bill of
rights of the State of North Carolina, no such monopoly as that
claimed by plaintiff can exist. But they argue very forcibly that a
railroad bridge is no violation of a franchise for an ordinary toll
bridge, and intimate strongly that they would so hold if the case
required the decision of the point.
The case of
Enfield Toll Bridge Company v. Hartford &
New Haven Railroad Company [
Footnote 9] has been cited by counsel and much relied on
as deciding the principle in question the other way. And perhaps a
fair consideration of the case, and the line of argument of the
learned judge who delivered the opinion, justifies counsel in
claiming that
Page 68 U. S. 152
it is in conflict with the views we have here expressed. In that
case, however, it was found by special verdict, as one of the facts
on which the action of the court was asked, that the defendants'
road and bridge would to a certain extent diminish the tolls of
plaintiff, a fact which is not found in the case before us and
which, as we have already shown, we cannot infer from its record.
What influence this fact may have had in the minds of that court we
cannot say. We are, however, satisfied that sound principle and the
weight of authority are to be found on the side of the judgment
rendered by the New Jersey Court of Errors and Appeals in this case
and accordingly that
Judgment is affirmed.
[
Footnote 1]
As respected "compensation" for rights &c., used, a matter
relied on in the dissenting opinion of one member of the Court,
GRIER, J., in this case, the statute provided that in case the
Hoboken Company could not agree with the corporation owning the
right &c., application should be made by the company to the
Chief Justice of New Jersey for the appointment of commissioners in
the matter. Notice of the intended application for them of not less
than ten days was to be given to the parties interested. A
particular time was to be assigned for the appointment, and the
appointment made only after the Chief Justice had satisfactory
evidence of the service or publication of the notice. The statute
then proceeded to say that the Chief Justice should appoint three
disinterested freeholders commissioners, and they, having first
taken oath impartially to examine the matter and to make a true
report, should meet at a time and place to be appointed by said
judge and proceed to examine the matter and the route of the
railroad, so far as the same should be located, and report in
writing what rights &c., were necessary to be taken and
appropriated for the purposes of the act, and should make a just
appraisement of the value of the said rights &c., and an
assessment of such damages as should be paid by the company for
them, which report, it was enacted -- or in case of appeal, the
verdict of the jury and judgment of the supreme court thereon --
shall (the damages being first paid to, or if they refuse the same,
or are unknown,
"or labor under any disability, then deposited for the owner or
owners in the supreme court) at all times be considered as plenary
evidence of the right of the said company to take, have, hold, use,
occupy, possess, exercise, appropriate, and enjoy so much and such
parts of said rights &c., so necessary to be taken,
appropriated &c."
It was further enacted in substance that in case either the
company or the claimants of the said rights &c. should be
dissatisfied with the report, either might appeal to the supreme
court of the state by petition, the filing of which should give the
court power to direct an issue, and to order a jury and a view of
the road, and that the jury should assess the value of the rights.
There was an enactment giving a right to collect by execution the
amount awarded, with a proviso that the appeal from the
commissioners to the supreme court
"shall not prevent the company from taking and appropriating,
exercising, using, and enjoying the said rights, privileges,
franchises, and property, or so much thereof as said commissioners
shall assess and appraise, upon the filing of the aforesaid report,
and paying the assessment and appraisement aforesaid, or making
tender thereof, and depositing the same in the said supreme court
for the owner or owners thereof."
[
Footnote 2]
35 U. S. 10 Pet.
368.
[
Footnote 3]
41 U. S. 16 Pet.
281.
[
Footnote 4]
46 U. S. 5 How.
317.
[
Footnote 5]
66 U. S. 1 Black
436.
[
Footnote 6]
6 Paige 564.
[
Footnote 7]
3 Sanford 625.
[
Footnote 8]
2 Jones Law 186.
[
Footnote 9]
17 Conn. 56.
MR. JUSTICE CATRON, after stating the case:
1st. I think this Court has jurisdiction. In the court below the
question was whether the monopoly granted to the turnpike company
bound the state not to allow another bridge to be built within
certain limits. Such is the claim of the bill. The state court held
that the contract claimed to have secured the monopoly was not
violated. The contract was construed, and the correctness of that
construction we are called on to examine.
2d. The state contracted with the turnpike company not to grant
to others the privilege of erecting another bridge within the
limits covered by the monopoly, and the contract was violated if
the railroad bridge would be a structure within the meaning of the
charter of the turnpike company. The main question presented is
whether the Legislature of New Jersey has the power to convey by
contract, binding their successors (for ninety-nine years, or
forever) not to exercise the sovereign right of improving the state
by additional roads and bridges. If so, then the left bank of the
Delaware and the right bank of the Hudson could be granted by an
irrevocable contract whose obligation was beyond the reach of
future legislation.
3d. That the bridge being erected by the railroad company is
within the meaning of the grant to the turnpike
Page 68 U. S. 153
company, and violates it, is to my mind free from doubt. The
object was to confer a monopoly of crossing the river by the
turnpike bridge only, and that this railroad bridge can and
probably will engross the carrying of passengers and freight, to
the injury and probable ruin of the value of the turnpike bridge,
is evident. The legislature, in the railroad charter, has made
careful provision that just compensation shall be made for private
property taken for the purposes of the road, and as the bridge and
abutments are part of the road, it is assumed by the railroad
company that the contract set up by the bill can be compensated in
money. If the turnpike bridge had been taken by the railroad
company, then it is conceded that a right to compensate existed.
But the difficulty of dealing with a sovereign right as private
property, which is claimed by the old corporation, presents the
difficulty lying at the foundation of this controversy. Here are
the proprietors of the land on each side of the river, whose right
to just compensation is not open to controversy if their lands are
taken; their claim is for private property, and the land is taken
by the sovereign right claimed by the turnpike company. It can only
come in to be compensated for public property, which the eminent
domain clearly is. For the private property taken on either bank of
the river, underlying the eminent domain, the new company has
already paid. But for this public sovereign right no second
compensation is provided by any constitution; it is only in cases
of "private property taken for public use" that just compensation
is secured to the owner.
If, however, I am in error in this assumption, then there is a
provision, plain and simple, in the railroad charter, securing
compensation, which obviates all objection to the erection of the
railroad bridge, and on this ground I think it very clear that the
bill was properly dismissed.
MR. JUSTICE GRIER, dissenting:
I do not concur in the opinion just read by my brother MILLER,
not that I question the correctness of the judgment of the Court of
Appeals of New Jersey; but this Court, by
Page 68 U. S. 154
affirming their judgment as to the true construction of the act
of 1790, have demonstrated that they have no jurisdiction of the
case.
The act of 1860, it is clear, is not repugnant to the
Constitution or laws of the United States. The proposition that one
legislature can restrain the power of future legislatures from
erecting a bridge for ninety (and if ninety, a thousand) years, for
a distance of ten miles (and if ten, a hundred) will hardly be
asserted by anyone.
That a state may, in its exercise of eminent domain, condemn a
franchise as it might lands cannot now be disputed.
Now the act of 1860 protects carefully all the rights of the
defendants under the act of 1790, and requires compensation to be
made them if they are injured. [
Footnote 2/1]
The complaint is not that the legislature have passed any act
impairing the obligation of the contract, but that the courts of
New Jersey have misconstrued the act of 1790, which gives them
their franchise. Now it cannot be pretended that the validity of
this act is drawn in question on the ground of repugnancy to the
Constitution. Their own courts have decided that a railroad viaduct
is not a "bridge," and the aim of the plaintiffs in error, by this
writ of error, is to have this Court to give a different
construction to their charter. If, besides the plain words and
intention of the act of Congress conferring jurisdiction on this
Court under the 25th section, a decision of this point were
necessary to demonstrate the unwarranted assumption of jurisdiction
in this case, it will be found in the unanimous opinion of this
Court in
Commercial Bank of Cincinnati v. Buckingham.
[
Footnote 2/2] That case was
decided after very full argument by able counsel. It was the
unanimous judgment of this Court. It is precisely in point, and it
may be said in this case as in that,
"If this Court were to assume jurisdiction of this case, it is
evident that the question submitted for our decision would be not
whether the statute of Ohio is repugnant to the Constitution of the
United States, but whether the supreme
Page 68 U. S. 155
court of that state has erred in its construction of it. It is
the peculiar province and privilege of the state courts to construe
their own statutes, and it is no part of the functions of this
Court to review their decisions or assume jurisdiction over them on
the pretense that their judgments have impaired the obligation of
contracts."
I therefore protest against this decision of the Court as
usurpation of jurisdiction not given to us by the Constitution or
the acts of Congress. It disregards the plain words of the statute
and the unanimous ruling of this Court. If it be received as a
precedent, it will draw to the examination of this Court the
construction of every act of incorporation or grant of a franchise
by a state legislature. The clause of the Constitution which
forbids a state to pass any act impairing the obligation of
contracts will have to be construed as a general power given to the
courts of the United States to restrain the courts of a state from
making mistakes in the construction of their own statutes.
The opinion of may brethren of the majority, in order to sustain
this assumption of jurisdiction, takes it for granted that as a
franchise is a contract, a state, in the exercise of its right of
eminent domain, cannot condemn a franchise by paying its value as
well as the land of an individual. This is directly contrary to
frequent decisions of this Court. Yet such is the act of 1860. As I
have said, it carefully saves the rights of plaintiffs, and directs
compensation to be made in case of any injury to the same. I cannot
give my assent to a decision founded on such an assumption or which
may hereafter be quoted to establish such a doctrine.
[
Footnote 2/1]
See ante, p. <|68 U.S. 119|>119 note -- REP.
[
Footnote 2/2]
46 U. S. 5 How.
342.
