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The Binghamton Bridge/Opinion of the Court

In a great Pennsylvania case, Black, C. J., says: 'When the State means to clothe a corporate body with a portion of her sovereignty, and to disarm herself to that extent of the power that belongs to her, it is so easy to say so, that we will never believe it to be meant when it is not said. In the construction of a charter, to be in doubt is to be resolved, and every resolution which springs from doubt is against the corporation. If the usefulness of the company would be increased by extending privileges, let the legislature see to it, but remember that nothing but plain English words will do it.'

Now, considering this question by the light of these general principles of government, or even by the general principles of the more restricted science of municipal law, has there been a perpetual exclusion of right, even as against individuals, to build?

The view taken by the Chenango Bridge Company is set out (supra, p. 57). It need not be here repeated. But we deny that the 'exclusive right,' whatever it may have been, in the Delaware charter, could have been extended to the Chenango bridge by any phraseology, such as the claim here rests on.

It will be observed (supra, pp. 52-3), that in incorporating the Delaware company, the act of 1805 sets forth the grant of the usual corporate powers specifically. These themselves-continual succession, suing, &c., are, we submit, 'powers, rights, privileges, immunities, and advantages.' But the act gives to the Delaware company not only these 'powers, rights, privileges, and immunities,' usually incident to corporations, but it gives, also, a right to purchase, hold, and convey real estate; not an incidental right to the creation of a corporation as such; and, over and above this, a power to the directors to increase the stock indefinitely, and to enforce payments for new stock by forfeiting old. When the Susquehanna company comes to be incorporated by a subsequent section, the act does not proceed again in extenso, and give to it all these things; but says that the new company is invested with the powers, privileges, immunities, and advantages, &c., of the former company. This, of itself, we presume, would be conceded to be insufficient to give the exclusive privilege of the two miles; for the expression can be fed by the already mentioned ordinary and extraordinary powers given to the Delaware company. The right set up must rest upon the fact that the 'provisions, sections, and clauses, not inconsistent,' &c., contained in the incorporation of the Delaware company in the act of 1805, are 'extended' to the second one, the Susquehanna company, of that same act. Still we submit that the intention was but to invest the Susquehanna company with the powers, rights, and privileges pertaining to a bridge corporation, as such, and similar to those which had just been given to the Delaware company; subjecting it to like duties, regulations, and restraints. All the provisions of the act in respect to the Delaware Bridge Company which related to its corporate powers; the manner of organization; the kind of bridge to be erected, and when to be completed; the right to erect gates at either end of the bridges, and demand and receive tolls; the neglect to repair or rebuild, which was to work a forfeiture of the charter; the duties enjoined in respect to the care and superintendence of the bridges, and the penalties imposed and to be enforced, were made applicable to the Susquehanna Bridge Company, and the section incorporating it should read as though these provisions were literally embodied in it also. The expression, too, 'are fully extended to it,' is peculiar. The provisions, clauses, &c., of the first company's charter are not declared to be made part of the second company's also (which it is here contended that by the expression used they were made); but are only 'extended' to it. Is it not plain that language was used in the act-drawn, we may assume with certainty, by the agents of the corporations-which did not express in a clear manner that that was granted which it is now pretended was granted?But this clause about the two miles, the prohibitory clause, in the Delaware charter, expressly includes the east and west branches of the Delaware; two branches, therefore. The Chenango River is but a single stream, and this clause, therefore, must be regarded as 'inconsistent and inapplicable' to it. This clause was inapplicable in another respect. The Chenango River extended but about one hundred rods below the point where the plaintiffs contemplated erecting, and where they did actually erect their bridge. The grant, therefore, as construed by the Chenango company, assumes that the river was of one kind, when it was in fact of another, bifurcated when it was single; and assumes, also, as a fact, that which was neither a fact nor a physical possibility, while the rivers ran together as nature made them do.

Conceding, however, that, under the act of 1805, the restrictive clause did apply for thirty years; we deny that it ever applied at all to the new Chenango Bridge Company, under the act of 1808. Under this last act, the former Susquehanna Bridge Company is divided into two companies; one, with the old name, to build a bridge across the Susquehanna; another, with the name of the Chenango Bridge Company, to build a bridge across the Chenango. Let us con-column the language of the old and new charters, as respects the Susquehanna company.

UNDER THE OLD CHARTER, 1805.

The Susquehanna Bridge Company is hereby invested 'with all and singular the powers, rights, privileges, immunities, and advantages,. . . which are contained in the foregoing incorporation of the Delaware Bridge Company; and all and singular the PROVISIONS, sections, and clauses thereof not inconsistent with the particular provisions herein contained, shall be and hereby are fully extended to the president and directors of this corporation.'

UNDER THE NEW CHARTER, 1808.

The incorporation of the Susquehanna Bridge Company shall hereafter be deemed and considered to exist for the sole purpose of erecting and maintaining a toll-bridge, under their said charter, across the Susquehanna River, at Oquaga, under all its present PROVISIONS, except the limitation of its duration of thirty years, which said limitation shall be and hereby is repealed.

Not a word in the new charter about either 'powers, rights, privileges, immunities, or advantages.' The new company exists under the old 'provisions' only. Even the terms 'sections and clauses' are omitted. In existing with this word 'provisions,' it exists with the same word which in the former charter was coupled with the words, 'powers, rights, privileges, immunities, and advantages;' as also with the words, 'sections and clauses;' and which in that former act, of course, were used to express something more and other than is expressed by the term 'provisions.' When we come to the section under which the Chenango Bridge Company is incorporated, it is worse for the complainants' cause even than this. Again let us con-column:

'The incorporation of the Susquehanna Bridge Company shall hereafter be deemed to exist for the sole purpose of erecting and maintaining a toll-bridge, under their said charter, across the Susquehanna River, at Oquaga, under all its present provisions, except the limitation of its duration of thirty years.'

CHENANGO BRIDGE COMPANY, 1808.

The present stockholders, &c., or such others, &c., 'are created a body corporate, by the name of the Chenango Bridge Company, and as such have perpetual succession, under all the provisions, regulations, restrictions, clauses, and provisions of the before mentioned Susquehanna Bridge Company.'

Everything like the valuable old 'powers, rights, privileges, immunities, and ADVANTAGES' gone! clean gone! 'Regulations,' restrictions, clauses (or restricting clauses?), and provisions have assumed their place; and the term 'provisions,' to which these restrictive expressions are added, remains the forlorn hope of a monopoly. Now, though the word 'provision' is sometimes used as synonymous with enactment, it is not philologically so used well. In its true meaning it expresses restriction. It comes from pro, before, and video, to see; and implies foresight; prudence with respect to futurity; a sense inconsistent with granting away forever the right of a whole people to cross a stream running through one of the best and most populous parts of a great State, and to the increase in population of which no limits could be fixed; a sense equally inconsistent with that of its consociated terms-'regulations, restrictions, clauses (or restricting clauses and provisions?),' its companions in phraseology; companions, by whom words as well as people are often best known.

We insist, too, that the Chenango company was modelled after the then existing Susquehanna company-the Susquehanna company of the act of 1805-and not after it as the bill pending proposed to make it. The 'regulations, restrictions,' & c., of the Susquehanna company, under which the Chenango company was incorporated, were thus the legal, existing regulations and restrictions upon the statute-book, including the thirty years' limitation. The expression, 'before mentioned Susquehanna company,' used in the act of 1808, and subject to whose provisions, regulations, &c., the new Chenango company was incorporated, does not mean the Susquehanna company as the proposed act designed to make it. That might be true, if there had never yet been any such company as the Susquehanna company; but it would be true only because the expression could not otherwise be satisfied. But here there was already existing a completely organized and well-known company of that name, subject to provisions, regulations, &c., in esse and defined. Thus construed, the act of 1808, as to these charters, would read as follows: 'The Chenango company shall be made as the Susquehanna company now is by law. The thirty years' limitation, now on the charter of the Susquehanna, is hereby repealed.'

If this is so, instead of having a monopoly, the Chenango bridge has for the last twenty years been the property of the people of New York; has for all that time been imposing its exactions upon travel by usurpation; and its corporators now, instead of seeking to prevent and destroy other facilities for transit, demanded by public convenience, and to levy contributions upon wayfarers through all time, should be answering a quo warranto, filed by the attorney-general, and refunding to the people the tolls its corporators have collected without right.

It must be remembered that the legislative provision which the Chenango company set up as a 'contract,' was originally placed in the Delaware charter, when its duration was limited, in a separate section, to thirty years; that the Susquehanna charter was borrowed from the Delaware charter, the thirty years' limitation included; that, as contended by the complainant in error, by a single stoke of subsequent legislation, the Chenango charter was spoken into its present existence; that both the Susquehanna and Chenango charters, in this same bill, gained separate and independent being; that they severally retained the exclusive right of the Delaware charter for 'two miles above and below' their bridges to be constructed respectively, &c., and that both and each escaped from the limitation together, and gained an eternity of existence and an endless contract!

Does any one believe that any such thing was understood by the legislature? Does not this importation and reimportation of legislative enactment, so strangely carried out to make a contract, have the aspect of contrivance to obtain a contract without the legislature being aware that one was given? Why are the plain words of the earlier act-'powers, rights, privileges, immunities and advantages'-departed from, and the whole attempted to be got in under the term 'provisions,' &c.? Has there been any want of clear and round dealing on the part of the Chenango company? If the contract set up has been made by what Rogers, J., in the Pennsylvania case of Lambertson v. Hogan, called 'the covert design of the draughtsman,' the observations of that judge in that case may be referred to for the weight that is due to the enactment. Certainly, at least, this legislative phraseology, called a contract, coming down to the Chenango charter under such circumstances-such a multiplicity of provisions, mixed up with near half a dozen corporations, some coming, some going-such a confusion of legislative tongues-such a jargon of tangled phrases present reasons why the language set up as a contract should, in its application to the Chenango charter, and in its meaning, if placed there, be read with more than ordinary care, and be construed according to the strictest rules relating to legislative contracts and perpetual monopolies.

Supposing, however, that the phrase, 'it shall not be lawful,' &c., does apply to the Chenango bridge, does it make a contract? Is it not mere legislative enactment, subject to repeal like any other statute? It has neither consideration, nor mutuality, nor form, nor substance, nor any other element of a contract. The words, indeed, are as common in legislation as the words 'be in enacted' and 'be it further enacted.' The phrase 'it shall be lawful,' or 'it shall and may be lawful,' and 'it shall not be lawful,' may be found upon almost every page of our statute and session laws, commencing with our colonial legislature and coming down to the last session. The former phrase runs through the entire act now under consideration. One is employed to grant liberty to any person or persons, and the other to restrain them. So these phrases are employed and understood. The State by the expression used but incorporates the petitioners with certain rights, and authorizes them to erect and maintain a bridge and collect tolls, and volunteers a provision that competition within two miles shall not be lawful. The corporators neither pay, nor agree to pay anything; they neither do nor agree to do anything in consideration of the charter. They may erect a bridge or not erect it; when erected they may maintain it or not maintain it; if destroyed by decay or casualty, they may re-erect or not re-erect as they choose; in short, the corporators are not bound to do anything. They were not bound to erect it originally, and may now abandon it any day, and at their own convenience or caprice, regardless of the public interests or wishes. Should it be carried away by flood or destroyed by fire or become wasted by decay and be suffered to remain, what adequate remedy would the people of the State have upon their side of the 'contract?' and what would be the form of action?

III. But conceding that it was 'not lawful for any person or persons,' of their own right or by authorization from the county boards or courts to erect a bridge over this stream within two miles of the complainants' bridge above or below that of the complainants', does the legislature bind and prohibit itself from erecting a bridge, both directly and by delegation through charter to others?

The Chenango, as is matter of common knowledge, is a fresh-water stream, where the tide does not ebb and flow,-not navigable except for arks and rafts in freshets, and was to all intents and purposes a private river, subject to the public easement as a highway. The riparian proprietors might establish bridges or ferries at such points as they pleased, unless restrained by legislation; and, the statutes of New York, as early as 1797, had authorized the construction of highways and bridges by superintendents and commissioners; had forbidden the use of ferries for hire, unless duly authorized, and had given courts of common pleas power to license them at such points as they might think proper. The provision of the 31st section, in the charter, declaring that it should not be lawful for any person or persons to erect any bridge or establish any ferry within two miles of the bridge, &c., applied to the superintendents and commissioners of highways, and to the courts of common pleas, and to private persons. And that this is so is shown by the proviso to the 31st section, excepting persons residing within two miles of the said bridges and crossing to or from their own land in their own boats. There were thus sufficient persons and officers and public authorities to satisfy fully the restriction clause in the section without extending its operation to the State or to the legislative authority. For without the provision, the superintendent of highways for the county, and the commissioners of highways of the town and towns contiguous to the Chenango River, might have laid out highways and constructed bridges across the river at such places as they deemed proper; and the court of common pleas might have allowed ferries to be established across the same, so as entirely to destroy the plaintiffs' franchise.

That such enactments as this one-there being no exclusion of the power of the legislature-operate to exclude individuals and corporations only,-that they do not prohibit the legislature from the exercise of its sovereign authority in granting further facilities when required by public necessities, and that the enactment may be repealed and modified at the pleasure of the legislature, has been adjudged in numerous cases in New York. We present one, Thompson v. New York and Harlem Railroad Co., decided by one of the best equity lawyers in New York. In that case the plaintiff's charter contained a clause like that of the Chenango bridge charter, declaring that 'it shall not be lawful for any person or persons whatsoever to erect or cause to be erected,' &c. The defendants erected a bridge under a subsequent act of the legislature within the prescribed limits, and upon bill filed for relief, Vice-Chancellor Sandford, upon a review of all the cases held, that the act of giving the plaintiffs charter 'did not declare that the legislature would not permit the erection of another bridge,' &c., and that it might lawfully grant the new charter. Other cases are to the same point.

Cases may, no doubt, be found in this and other States, where it has been held, that when the legislature had made a contract in terms excluding itself from authorizing a rival work within defined limits, that a law authorizing such rival work within prescribed limits would be unconstitutional, and that the privileged corporation could have relief against it in equity. Such was The Boston & Salem Railroad v. The Salem & Lowell Railroad. The legislature, as Shaw, C. J., declares, there put in plain terms a restraint on itself.

But not one case of respectable authority can be found, which holds that a legislative contract, disposing of a State's sovereignty, can be recognized by implication from a series of tangled phrases, doubtfully expressed, perhaps artfully contrived; or that mere every-day legislative phraseology constitutes a contract.

We have denied (supra, p. 59) that a contract to surrender the sovereignty of the State forever could, under any form, be enacted by legislation that will bind for future time the State's representatives. To that view we hold. If, however, courts will but adhere to their own salutary precedents, so often laid down and from the facility with which great franchises are now obtained from our legislators by designing men, becoming every day more salutary-not to spell out of language, suitable and intended for mere legislative enactments, contracts which sap the foundation of common rights, fetter the State, and make her the servant of her own creation-the evil done by anything that is actually enacted will probably by small.

The complainants have no doubt suffered loss. But it is not every loss suffered that gives a remedy. There is a very ancient head of the law known as damnum absque injuri a; and it is precisely that loss which these complainants have encountered.

Mr. Mygatt, contra.

Mr. Justice DAVIS delivered the opinion of the court.

The Constitution of the United States declares that no State shall pass any law impairing the obligation of contracts; and the 25th section of the Judiciary Act provides, that the final judgment or decree of the highest court of a State, in which a decision in a suit can be had, may be examined and reviewed in this court, if there was drawn in question in the suit the validity of a statute of the State, on the ground of its being repugnant to the Constitution of the United States, and the decision was in favor of its validity.

The plaintiffs in error brought a suit in equity in the Supreme Court in New York, alleging that they were created a corporation by the legislature of that State, on the first of April, 1808, to erect and maintain a bridge across the Chenango River, at Binghamton, with perpetual succession, the right to take tolls, and a covenant that no other bridge should be built within a distance of two miles either way from their bridge; which was a grant in the nature of a contract that cannot be impaired. The complaint of the bill is, that notwithstanding the Chenango Bridge Company have faithfully kept their contract with the State, and maintained for a period of nearly fifty years a safe and suitable bridge for the accommodation of the public, the legislature of New York, on the fifth of April, 1855, in plain violation of the contract of the State with them, authorized the defendants to build a bridge across the Chenango River within the prescribed limits, and that the bridge is built and open for travel.

The bill seeks to obtain a perpetual injunction against the Binghamton Bridge Company, from using or allowing to be used the bridge thus built, on the sole ground that the statute of the State, which authorizes it, is repugnant to that provision of the Constitution of the United States which says that no State shall pass any law impairing the obligation of contracts. Such proceedings were had in the inferior courts of New York, that the case finally reached and was heard in the Court of Appeals, which is the highest court of law or equity of the State in which a decision of the suit could he had. And that court held that the act, by virtue of which the Binghamton bridge was built, was a valid act, and rendered a final decree dismissing the bill. Everything, therefore, concurs to bring into exercise the appellate power of this court over cases decided in a State court, and to support the writ of error, which seeks to re-examine and correct the final judgment of the Court of Appeals in New York.

The questions presented by this record are of importance, and have received deliberate consideration.

It is said that the revising power of this court over State adjudications is viewed with jealousy. If so, we say, in the words of Chief Justice Marshall, 'that the course of the judicial department is marked out by law. As this court has never grasped at ungranted jurisdiction, so it never will, we trust, shrink from that which is conferred upon it.' The constitutional right of one legislature to grant corporate privileges and franchises, so as to bind and conclude a succeeding one, has been denied. We have supposed, if anything was settled by an unbroken course of decisions in the Federal and State courts, it was, that an act of incorporation was a contract between the State and the stockholders. All courts at this day are estopped from questioning the doctrine. The security of property rests upon it, and every successful enterprise is undertaken, in the unshaken belief that it will never be forsaken.

A departure from it now would involve dangers to society that cannot be foreseen, would shock the sense of justice of the country, unhinge its business interests, and weaken, if not destroy, that respect which has always been felt for the judicial department of the Government. An attempt even to reaffirm it, could only tend to lessen its force and obligation. It received its ablest exposition in the case of Dartmouth College v. Woodward, which case has ever since been considered a landmark by the profession, and no court has since disregarded the doctrine, that the charters of private corporations are contracts, protected from invasion by the Constitution of the United States. And it has since so often received the solemn sanction of this court, that it would unnecessarily lengthen this opinion to refer to the cases, or even enumerate them.

The principle is supported by reason as well as authority. It was well remarked by the Chief Justice, in the Dartmouth College case, 'that the objects for which a corporation is created are universally such as the Government wishes to promote. They are deemed beneficial to the country, and this benefit constitutes the consideration, and in most cases the sole consideration for the grant.' The purposes to be attained are generally beyond the ability of individual enterprise, and can only be accomplished through the aid of associated wealth. This will not be risked unless privileges are given and securities furnished in an act of incorporation. The wants of the public are often so imperative, that a duty is imposed on Government to provide for them; and as experience has proved that a State should not directly attempt to do this, it is necessary to confer on others the faculty of doing what the sovereign power is unwilling to undertake. The legislature, therefore, says to public-spirited citizens: 'If you will embark, with your time, money, and skill, in an enterprise which will accommodate the public necessities, we will grant to you, for a limited period, or in perpetuity, privileges that will justify the expenditure of your money, and the employment of your time and skill.' Such a grant is a contract, with mutual considerations, and justice and good policy alike require that the protection of the law should be assured to it.

It is argued, as a reason why courts should not be rigid in enforcing the contracts made by States, that legislative bodies are often overreached by designing men, and dispose of franchises with great recklessness.

If the knowledge that a contract made by a State with individuals is equally protected from invasion as a contract made between natural persons, does not awaken watchfulness and care on the part of law-makers, it is difficult to perceive what would. The corrective to improvident legislation is not in the courts, but is to be found elsewhere.

A great deal of the argument at the bar was devoted to the consideration of the proper rule of construction to be adopted in the interpretation of legislative contracts. In this there is no difficulty. All contracts are to be construed to accomplish the intention of the parties; and in determining their different provisions, a liberal and fair construction will be given to the words, either singly or in connection with the subject-matter. It is not the duty of a court, by legal subtlety, to overthrow a contract, but rather to uphold it any give it effect; and no strained or artificial rule of construction is to be applied to any part of it. If there is no ambiguity, and the meaning of the parties can be clearly ascertained, effect is to be given to the instrument used, whether it is a legislative grant or not. In the case of the Charles River bridge, the rules of construction known to the English common law were adopted and applied in the interpretation of legislative grants, and the principle was recognized, that charters are to be construed most favorably to the State, and that in grants by the public nothing passes by implication. This court has repeatedly since reasserted the same doctrine; and the decisions in the several States are nearly all the same way. The principle is this: that all rights which are asserted against the State must be clearly defined, and not raised by inference or presumption; and if the charter is silent about a power, it does not exist. If, on a fair reading of the instrument, reasonable doubts arise as to the proper interpretation to be given to it, those doubts are to be solved in favor of the State; and where it is susceptible of two meanings, the one restricting and the other extending the powers of the corporation, that construction is to be adopted which works the least harm to the State. Bur if there is no ambiguity in the charter, and the powers conferred are plainly marked, and their limits can be readily ascertained, then it is the duty of the court to sustain and uphold it, and to carry out the true meaning and intention of the parties to it. Any other rule of construction would defeat all legislative grants, and overthrow all other contracts. What, then, are the rights of the parties to this controversy?

In 1805 the State of New York passed an act, in forty-two sections, creating five different corporations. The main purpose of the act was, at that early day, to secure for the convenience of the public good turnpike roads; but the country was new; the undertaking hazardous; the roads crossed large and rapid streams, and the legislature, in its wisdom, thought proper to create two separate and distinct bridge incorporations, with larger powers than were conferred on the turnpike corporations.

The preamble to the 23d section declares the motives and purpose of the legislature. Heavy freshets and dangerous obstructions to which the streams were subject seemed likely to endanger the permanency of the bridges, and to require frequent renewals of the whole capital; and it was thought but just that the corporations for erecting the bridges should be relieved from the policy of reversion, which attached to the corporations for constructing the turnpike roads, and that full powers, adequate to the execution of the work in the best manner, should be assured to those citizens who would successfully accomplish the building of the bridges. It is impossible to read this recital, and escape the conclusion that the legislature thought the enterprise did not promise present remuneration, and that large powers and exclusive privileges must be given, to get the stock taken and the bridges built. It is evident that what was then considered a great scheme of internal improvement, was in the mind of the legislature. Such a scheme was, at that early period in the history of the State, not of easy solution. It required more energy and foresight, and involved greater hazard, in the commencement of this century, to build turnpike roads through an unbroken wilderness, and erect bridges over dangerous streams, than it would now to checker the surface of a State with railways. These considerations are great helps, in arriving at a correct knowledge of the intention of the legislature, and in giving a proper construction to the grants that were made. For it should never be lost sight of, that the main canon of interpretation of a contract, is to ascertain what the parties themselves meant and understood. In order to connect the turnpike roads, it was necessary to cross the east and west branches of the Delaware, the Susquehanna, and Chenango rivers. These streams were all in the same category. The work of improvement was incomplete until each was spanned with substantial bridges; and there is nothing to show that the dangers apprehended, and which formed the inducements to the grant of large powers, did not apply to all of them alike. Fifteen sections of the act are devoted to the creation of the Delaware Bridge Company, for the purpose of erecting bridges over the east and west branches of the Delaware River, with the usual faculties, powers, and incidents of a corporation, and subject to the usual duties, regulations, restraints, and penalties. The duration of the company was limited to thirty years, and competing bridges or ferries, within the prescribed limits of two miles above and below, were forbidden. These were important privileges, and justified by the peculiar circumstances of the country; and it is easy to see that without them prudent men would not have engaged in the enterprise. The Delaware Bridge Company having been constituted with great minuteness of detail, a few words and a single section sufficed to bring into existence the Susquehanna Bridge Company. The thirty-eighth section of the act created the latter corporation, to erect and maintain toll-bridges across the Susquehanna and Chenango rivers, at certain localities; and further, declared that the 'Susquehanna Bridge Company be, and hereby are, invested with all and singular the powers, rights, privileges, immunities, and advantages, and shall be subject to all the duties, regulations, restraints, and penalties which are contained in the foregoing incorporation of the Delaware Bridge Company; and all and singular the provisions, sections, and clauses thereof, not inconsistent with the particular provisions therein contained, shall be, and hereby are, fully extended to the president and directors of this corporation.'

No one can read the entire act through, and fail to perceive that the legislature intended to create two bridge incorporations, exactly similar in all material respects. Protection was alike necessary to both; the public wants required both; the scheme of improvement embraced both; the danger of present loss applied to both; and there were the same motives to give valuable franchises to both.

The inquiry, then, is, has the legislature used language that clearly conveys that intention? and on this point we entertain no doubt.

It is not questioned that the provision limiting the Delaware charter to thirty years was carried into the Susquehanna charter; but it is denied that the prohibition against competition was also imported.

The clause in the Delaware charter on that subject is in the following words: 'that it shall not be lawful for any person or persons to erect any bridge, or establish any ferry across the said west and east branches of the Delaware River, within two miles, either above or below the bridges, to be erected and maintained in pursuance of this act.' This was, undoubtedly, a covenant with the Delaware company that they should be free from competition within the prescribed limits. It is argued, because the east and west branches of the Delaware are named, that the prohibition was not intended to reach the Susquehanna company. But this construction is narrow and technical, and would defeat the very end the legislature had in view. It is true there were certain minor provisions in the Delaware charter which were peculiar to it, and of course it would be absurd to suppose that they were transferred, or intended to be transferred to the Susquehanna company; but, by the terms of the law, whatever provisions were applicable, were extended to the latter company. It is easy to see that the legislature never meant that the judges of Delaware County, who were to visit and inspect the Delaware bridges, should also visit and inspect the Susquehanna, because there were similar officers in Tioga County, where the Susquehanna bridges were located. But the privilege against competition was applicable to both corporations, and, in the unsettled state of the country, necessary to the existence of both, for the legislature well knew, that it would be madness for adventurers to build toll-bridges in a new country, where travel was limited and settlers few, if the right was retained to authorize other adventurers to build other bridges, so near as to divide even that limited travel. The form adopted in making the grants has weight, in arriving at the true legislative intention, and it is worthy of consideration, that it is not unusual in the legislation of this country to grant vast powers in a short act, by referring to and adopting the provisions of other corporations, of like purposes. In fact, some of the great enterprises of the day have sprung into existence and distributed their blessings by virtue of legislation similar to that which created the Susquehanna Bridge Company. The object is apparent, not to encumber the statute-book by useless repetition and unnecessary verbiage. The legislature of New York, at great length, and with commendable care and circumspection, incorporated the Delaware company, and then, to avoid repetition, gave to the Susquehanna company all the rights and advantages which, in the same act, were conferred on the Delaware corporation. This was enough; but in fear of cavil, and to avoid any misconstruction, and out of superabundant caution, it was declared that all the provisions, sections, and clauses in the Delaware charter, not inconsistent with the particular provisions of the Susquehanna charter, should be fully extended to the president and directors of the latter corporation. There were no inconsistencies between the two corporations, except such as would arise from difference in locality, and in every other respect the corporations were alike. Each was to bridge two streams, and each needed, and did receive the fostering care of the legislature. When it is conceded, as it must be, that a franchise which prohibits competition is an advantage, and that it was enjoyed by the Delaware company, and that there is nothing in the peculiar provisions of the Susquehanna charter which prevents that company from enjoying it, then it is conferred, and there is an end to controversy.

The history of the subsequent legislation of the State, on the subject of these bridges, is explanatory of the intention of the legislature of 1805, and confirmatory of the view already taken. In 1808, the Susquehanna and Chenango bridges were not built, and longer time and greater privileges were required to insure the success of that enterprise. The legislature, in fear that the scheme of internal improvement, which was not complete without the bridges, would fail, furnished still greater inducements to the parties proposing to erect them. The thirty years limitation was repealed, and the charter made perpetual, and the time limited for building the bridges was extended four years. And these provisions of the Susquehanna charter, which were thus altered, and treated by the legislature of 1808 as belonging to it, were, if part of it, imported from the Delaware charter. Can it be supposed, when the Susquehanna company was demanding higher privileges in order to live, that it was the intention of the legislature to deprive it of the right to shut out competition, with which the Delaware company was invested, and which was nearly as valuable as the right to take tolls?

The intention of the legislature was manifest to confer on the Susquehanna corporation all the advantages enjoyed by the Delaware company that were applicable to it, and consistent with the different locality it occupied; and the language used, in our opinion, gives effect to that intention; and the two-mile restriction is as much a part of the charter of the Susquehanna company, as if it had been directly inserted in it. It is argued that the restriction cannot apply to the Chenango bridge, because it is located less than two miles from the confluence of the Chenango River with the Susquehanna. But the restriction is for two miles, either above or below the bridges, and is applicable to a bridge built above and within the prohibitory limits, although a question might arise, whether it was extended to a bridge which was built below the junction of the streams. The Susquehanna company, by the original charter, was to erect bridges over both the Susquehanna and Chenango rivers; but, with the amendments which were made in 1808, it was declared to exist for the sole purpose of building and maintaining a bridge over the Susquehanna, while at the same time the privilege of bridging the Chenango was given to 'The Chenango Bridge Company,' a new corporation, created with the same faculties and franchises, and subject to the same duties and restrictions as the Susquehanna corporation.

The construction which has been given by us to the Susquehanna charter is necessarily a solution of all questions pertaining to the charter of the Chenango Bridge Company. The legislature, therefore, contracted with this company, if they would build and maintain a sefe and suitable bridge across the Chenango River, at Chenango Point, for the accommodation of the public, they should have, in consideration for it, a perpetual charter, the right to take certain specified tolls, and that it should not be lawful for any person or persons to erect any bridge, or establish any ferry, within a distance of two miles, on the Chenango River, either above or below their bridge.

Has the legislature of 1855 broken the contract, which the legislatures of 1805 and 1808 made with the plaintiffs?

The foregoing discussion affords an easy answer to this question. The legislature has the power to license ferries and bridges, and so to regulate them, that no rival ferries or bridges can be established within certain fixed distances. No individual without a license can build a bridge or establish a ferry for general travel, for 'it is a well-settled principle of common law that no man may set up a ferry for all passengers, without prescription time out of mind, or a charter from the king. He may make a ferry for his own use, or the use of his family, but not for the common use of all the king's subjects passing that way, because it doth in consequence tend to a common charge, and is become a thing of public interest and use; and every ferry ought to be under a public regulation.' As there was no necessity of laying a restraint on unauthorized persons, it is clear that such a restraint was not within the meaning of the legislature. The restraint was on the legislature itself. The plain reading of the provision, 'that it shall not be lawful for any person or persons to erect a bridge within a distance of two miles,' is, that the legislature will not make it lawful by licensing any person, or association of persons, to do it. And the obligation includes a free bridge as well as a toll bridge, for the security would be worthless to the corporation if the right by implication was reserved, to authorize the erection of a bridge which should be free to the public. The Binghamton Bridge Company was chartered to construct a bridge for general road travel, like the Chenango bridge, and near to it, and within the prohibited distance. This was a plain violation of the contract which the legislature made with the Chenango Bridge Company, and as such a contract is within the protection of the Constitution of the United States, it follows that the charter of the Binghamton Bridge Company is null and void.

DECREE of the Court of Appeals of New York reversed, and a mandate ordered to issue, with directions to enter a judgment for the plaintiff in error, the Chenango Bridge Company, in conformity with this opinion.


text: Talk:The Binghamton Bridge/Opinion of the Court

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
The Josephine

BY proclamation of President Lincoln, in April, 1861, a blockade was established along our whole Southern coast, then in possession of rebels against the authority of the Government. In the beginning of May, 1862, New Orleans and certain forts, Fort Jackson, Fort St. Philip, Fort Wood, Fort Pike, Fort Livingston, &c., passed, in consequence of the successes of Flag-Officer Farragut, into the possession of the Government, and from the 6th of May at latest, the possession of New Orleans became complete. On the 12th of May, 1862, the President issued his proclamation declaring that the blockade of the port of New Orleans should so far cease after the 1st of June, 1862, as that commercial intercourse with it might be carried on.

On the 28th July, 1862, nearly two months after the date last named, the Josephine was captured by the United States steamer Hatteras, on the high seas, and brought into Philadelphia, where she was libelled as prize. A certain Queyrouze intervened, claiming the cargo as the property of a French netural, one Laplante, resident in France. He gave this history of the vessel: That she was loaded in New Orleans in February, 1862, with intention to proceed to Havana 'as soon as the port of New Orleans should be captured and opened by the forces of the United States;' that Laplante intended to ship the cargo at Havana in another vessel for Bordeaux; that he had written from Bordeaux to Queyrouze, at New Orleans, instructing him to load a vessel and keep vessel and cargo there until the port was opened by the United States authorities; that it had been expected that an attack would be made on the city by the Government forces, and, anticipating its capture, Laplante had deemed it expedient to have a vessel loaded ready to leave immediately upon the opening of the port; that Queyrouze obeyed the instruction, and the vessel, having been loaded, remained at the wharf of New Orleans until the investment of the forts below the city, in April, 1862; that it then becoming evident the Federal forces would capture the city, the rebel commander issued a proclamation commanding the destruction of all vessels lying at New Orleans, with the cotton, &c., on board, or in store for shipment; to avoid which destruction the master of the Josephine caused her to be towed into Bayou Chen e, to a point in the interior, and distant from New Orleans, where she lay concealed for a long time; that the master meantime endeavored to communicate the true character of vessel and cargo and destined voyage to the Federal authorities, that he might be brought within their protection and licensed to proceed to Havana, but was unable to do so because the rebel governor had prohibited it by his proclamation; that about the 25th July, 1862, it having been reported that the rebel commander of the district where she lay concealed designed to destroy the vessel, the master managed to escape with his vessel and cargo to the Gulf by some of the secret passages from the body of the country to the Gulf with which that region abounds; that he then sailed towards the mouth of the Mississippi, expecting to fall in with some of the United States blockading squadron and obtain the license to proceed on the intended voyage, but that on the 28th of July, 1862, while hauling round Ship Shoal, in full view of the lighthouse, she was captured.

The master of the vessel, a resident of New Orleans, gave a different account; and swore in effect that the cargo belonged to other persons than Laplante, to wit: to certain Frenchmen, including one Six e, resident and doing business in New Orleans; that he signed three bills of lading; that the cargo was deliverable to one Cabuzac, of Havana, to whom he was to go for orders, if he arrived there; that there were no papers of the kind inquired of on board; that is, no contract, agreement, license, protection, passport, or sea-brief from any government or officer thereof, but that he had a mail, containing letters, on board at the time of sailing, which he was instructed by Mr. Six e to destroy in case of capture, and which he threw overboard in pursuance of his instructions, and that he gave up no papers to the captors, having none; that he sailed from New Orleans four days before the capture of that city by the United States forces, and took his vessel to Bayou Chene; that he got to sea on the 27th of July, 1862, and was bound to some port in Cuba or wherever he could get his vessel; and that he was captured on the 28th of July, 1862, off Ship Shoal light-house, bearing east-northeast, about ten miles from the light-house, sailing under the English flag, without having cleared at any custom-house.

The mate, also a resident of Louisiana, corroborated the master, so far as his knowledge extended; stating that they sailed from Bayou Botey, Louisiana, and were bound for Havana; that they sailed under the English flag, and that a little before the capture the captain threw overboard a bundle of papers. He presumed that the cause of the capture was the supposition that they had run the blockade.

Seacolor, a hand on board, said that the capture must have been because they had run the blockade.

The ship's papers found on board consisted only of some receipts for cotton, dated on the brig Josephine, from the 15th to the 19th of February, but without signature.

The map will show the peculiar character of the region in which the vessel was; a region which presents a reticulation of bayous interlacing with each other, in and through which it is possible to run from one portion of the country to another, in a manner rendering it almost impossible to follow a course, which may be made devious to almost any extent.

Cargo and vessel were both condemned (no claimant appearing for the latter); and the case was now here for review; the main question considered by the court being whether the vessel had violated the blockade; though the condemnation was justified, also, on the ground of enemy's property. A motion had been allowed, also, in this court, owing to certain special facts, to allow some further proofs.

Mr. Assistant Attorney-General Ashton, and Mr. Coffey, special counsel for the captors.

1. However, owned, the ship was clearly captured whilst violating the blockade of the Louisiana coast, and was, with her cargo, liable to condemnation on that ground.

She left New Orleans, according to the master, four days before its capture by the United States forces, and when she was captured she was proceeding on the voyage then commenced. The blockade of that port was not then raised or relaxed, and there can be no question that, when captured, she was in delicto for that offence.

But, after she left New Orleans, the vessel lay for some months in one of the bayous, which form the secure retreats of rebel blockade-runners in Southern Louisiana, where, by the admission of Queyrouze, she was within the rebel lines and control. She sailed out from those lines on the 27th of July, and was captured on the 28th, off the coast, under a false flag, on her way to Cuba. The master says, bound to some port in Cuba; and the mate says, 'bound to Havana.'

At that time, the coast of Louisiana and its ports were blockaded, all being in rebel possession and control, except the port of New Orleans. The limited and conditional cessation of the blockade of New Orleans, allowed by the President's proclamation of 12th May, 1862, did not and could not apply to any other port of Louisiana, or to any portion of the coast in rebel possession and control. This was decided in The Baigorry, a year only ago. That coast was, at the date of capture, in a state of actual and lawful blockade, and the Josephine was taken in the act of breaking that blockade.

No evidence is necessary to fasten on the Josephine knowledge of the blockade, since she was sailing from a blockaded port. In the 'Prize Cases,' Mr. Justice Grier observed, that it is a settled rule in the law of nations, that a vessel in a blockaded port is presumed to have notice of the blockade as soon as it commences. But the claimant of this cargo must be charged with an actual knowledge, for he asserts, that at the time of capture the master of the Josephine was shaping his course for the blockading squadron. The offence was, therefore, complete.

In addition to its proved falsehood, the story of Queyrouze, that, at the time of the capture, the Josephine was seeking the blockading squadron to get a license or permission to proceed on her intended voyage, is subject to the further infirmity, that, if it were true, it would not relieve her from the penalty of blockade-running. No officer of the blockading squadron had any power to give such license or permission, and the law never accepts such an excuse from a vessel caught in flagrante delicto. It is of the class of excuses animadverted on by Sir William Scott, in The Spes and The Irene, where vessels approached the mouth of a blockaded river, with pretence of making inquiry as to the blockade, if they fall in with blockading vessels, but with intent to slip into port if they escape such vessels.

But the absurdity of the pretence set up by the claimant, of seeking the blockading squadron for a license, is proved not only by the master's contradiction of it in the statement that he was bound to Cuba, but by the facts that he was sailing under a false flag, and just before capture destroyed his papers. These acts, by the well-settled rules of law, stamp the voyage as fraudulent, and sustain the allegation of the libel.

2. The evidence proves that the cargo was owned by residents of New Orleans doing business there, and enemies of the United States. Six e was one owner, and it having been by his instructions that the papers were destroyed, every presumption will be raised against him.

On both grounds, therefore, the decree condemning the cargo should be affirmed.

Mr. F. C. Brewster, of Philadelphia, contra, for the claimants of the cargo.

1. Was the cargo liable for attempted breach of the blockade? It is a self-evident proposition that, in order to justify a seizure and condemnation of property as prize of war for breach of a blockade, the blockade must in point of fact be existing at the time of the seizure. And where the blockade has ceased before the capture is made, the penalty for a breach of blockade is held to be remitted. Now, the proclamation of May 12 was a revocation of the notification of blockade of the port of New Orleans; and on the first day of June, 1862, the blockade of that port ceased. The Josephine was captured nearly two months afterwards. Inasmuch as the delictum is done away when the blockade ceases, and as this is the rule even where the blockade existed at the time the vessel sailed from the port, but ceased or was raised before the capture was made, how can the vessel and cargo in question be held liable to the penalty for breach of blockade?

But if there was a breach of blockade, was it an intentional breach on the part of the owner of the cargo? The neutral must be chargeable with knowledge, either actual or constructive, of the existence of the blockade, and with an intent, and with some attempt to break it before he is to suffer the penalty of a violation of it.

Though the cargo is always, prima facie, implicated in the guilt of the owner or master of the ship, its owner will, nevertheless, be permitted to give proof of the innocence of his intention. And, if this proof be satisfactory, the cargo will be adjudged to be free from the guilt in which the ship is involved, and be restored to its owner. In United States v. Guillem, Taney, C. J., says: 'Even in the case of a cargo shipped as a mercantile adventure, and found on board of a vessel liable to condemnation for a breach of blockade, although it is prim a facie involved in the offence of the vessel, yet, if the owner can show that he did not participate in the offence, his property is not liable to forfeiture.' And the late Chief Justice of this court did here but declare what had been previously said, in the case of The Exchange, by Sir William Scott: 'Where orders had been given for goods,' said the great English judge, 'prior to the existence of a blockade, and it appeared that there was not time for countermanding the shipment afterwards, the court has held the owner of the cargo not responsible for the act of the enemy's shipper, who might have an interest in sending off the goods in direct opposition to the interest of his principal. And the same indulgence has been exercised where there was no knowledge of the blockade till after the ship had sailed, and the master, after receiving the information, obstinately persisted in going on to the port of his original destination.'

In the present case, the owner of the cargo has established the innocence of his intention. The instructions given to Queyrouze by Laplante show that Laplante never designed any attempt to break the blockade. On the contrary, he directed Queyrouze to keep the vessel and cargo at New Orleans until the opening of that port by the United States. Queyrouze followed these instructions, and detained the vessel after she had received her cargo, in port, until the act of the enemy deprived him of further control over her. The affidavit of Queyrouze is explicit upon these points.

With the guilt of the vessel (if there be such guilt) we have nothing to do in this case. We ask the court to discriminate between the vessel and her cargo.

To hold the owner of the cargo responsible in the way in which the captors wish, would be to put him completely in the power of the master; and, no matter how pure he may be, to make him bear the burden and suffer the penal consequences of a violation of the law which it was not in his power to prevent, and of which he never suspected the master would be guilty.

As to the master's destruction of the mail containing letters. The act of the master, in this respect, cannot operate to the injury of the owner of the cargo. For, 1st, the carrying of a mere private mail-that is, one which does not contain despatches of the enemy-will not subject either the vessel or her cargo to seizure and confiscation. And, 2d, even where the vessel carries despatches, and is seized in consequence thereof, the cargo will not share her fate where its owner or owners have not participated in the offence. It cannot be pretended, in the present case, that either Laplante or Queyrouze was guilty of any such offence. These letters were the only papers which the master destroyed. He destroyed no papers concerning the ownership of the cargo, for he had none such with him.

2. Was the cargo enemy's property?

It was the property of Laplante, a French subject, who resided in his native country, and never had even a temporary residence in the South. The affidavit of Queyrouze establishes this fact. The presumptions of the master of the captured vessel upon this point, cannot stand against the positive testimony of Queyrouze.

Nor can a hostile character be fastened upon it on account of the residence of Mr. Queyrouze, Laplante's agent, in New Orleans, while that city was in the possession of the rebels. For the rule is, that a neutral merchant may trade, in the ordinary manner, to the country of a belligerent, by means of a stationed agent there, and yet not contract the character of a domiciled person.

The CHIEF JUSTICE delivered the opinion of the court.

title: The Josephine


text: Talk:The Josephine

title: Talk:The Josephine


text:
The Josephine/Opinion of the Court

It was held at the last term, by this court, that the blockade of the coast of Louisiana, having no direct connection with New Orleans by navigation, was not terminated by the discontinuance of the blockade of that port. In the cause now before us it is not very clearly shown by the evidence from what part of the coast the Josephine was coming when she was captured by the blockading steamer; but she must have been coming from some point west of Ship Shoal light, which is laid down on the Coast Survey charts as more than a hundred miles west of the mouths of the Mississippi. In this part, it seems, the coast may be reached from New Orleans, in some seasons at least, through the creeks and bayous which form a sort of network of water communication in Lower Louisiana, and allow more or less egress and ingress by small craft, to and from the Gulf. There does not appear to be any regular or usual communication with New Orleans from the Gulf by these ways. The Josephine succeeded in getting through, but the whole country through which she passed, and the coast where she came out, was in possession of the enemy; and she was captured by a blockader soon after she entered the Gulf.

It is impossible, under these circumstances, to hold that the blockade of that part of the coast was discontinued. That it was not discontinued in fact, is clearly shown by the evidence; and there was nothing in the occupation of the city, or in the proclamation revoking the blockade of the port of New Orleans which could work the legal termination of blockade of the coast which remained under hostile control.

We think that the blockade was in full force, and that the Josephine and her cargo were properly captured for violation of it. The appellant has filed an affidavit that the master of the Josephine was seeking the blockading fleet with the purpose of procuring a license to proceed on his voyage; but the statement of the master not only does not support the affidavit, but goes far to discredit it. Nor, indeed, could the alleged intent, if proved, avail the appellant; for it would not excuse the violation of the blockade.

This view makes it unnecessary to consider the questions made in the cause, respecting the ownership of the vessel and cargo, or the motion for further proof.

The decree of the District Court must be AFFIRMED.

[See infra, p. 231, The Cheshire, 2.-REP.]

title: The Josephine/Opinion of the Court


text: Talk:The Josephine/Opinion of the Court

title: Talk:The Josephine/Opinion of the Court


text:
Sheboygan Company v. Parker

THE constitution of Wisconsin ordains that 'all county officers shall be elected by the electors of the respective counties.' With this fundamental law in force, and with a county board of supervisors in existence, who, under the constitution and laws, were the ordinary administrators of its affairs, the legislature of the State, by 'an act to authorize the County of Sheboygan to aid in the construction of a railroad,' constituted Lewis Curtis, 'Billy Williams,' and three other persons less peculiarly entitled, a board of commissioners for aiding the project. The act directed a vote of the people of the county to be taken, as to whether or not they would have a subscription 'in pursuance of the act,' and then authorized these commissioners to borrow money on the credit of the county, and to issue its bonds therefor. The bonds were to be signed by the president and secretary of this board, and countersigned by the clerk of the regular county board of supervisors, or by the county treasurer; and it was declared that, when thus prepared and issued, they should, 'in the hands of any bon a fide holders, be of full and complete evidence to establish the indebtedness of the county according to their tenor and effect.'

A vote of the people having decided in favor of the railroad, the bonds were issued with interest warrants or coupons annexed. These were not in the exactly usual form of promises to pay, or of declarations that so much money was due the bearer, at the semi-annual dates; but were drafts by 'Lewis Curtis, President of the Board of the Sheboygan County Railroad Commissioners,' on 'the Treasurer of the County of Sheboygan,' in favor of the bearer for so much, and was signed by Williams as 'secretary.'

A number of the warrants being due and unpaid, in the possession of one Parker, a bon a fide holder, he sued the county, under its legal and corporate name of 'The County Board of Supervisors of Sheboygan County,' in the Circuit Court of Wisconsin, to enforce a payment of them.

On error from that court, where judgment was given against the county, the question was, whether the act constituting the new board was constitutional, and the county bound?Messrs. J. S. Brown, Buttrick, and Hill, for the County, plaintiff in error. No persons but county officers can govern the county and regulate its affairs. True in all cases, this is certainly not least true in so important a matter as borrowing money, and binding the county by bonds to pay it back. These five persons were not 'elected by the electors of the county,' as the constitution requires county officers to be.

What are they? They are a corporation created for the purpose of aiding in the construction of a railroad. But by the principles of every free government, and of the constitution of Wisconsin, it is not in the power of the legislature to authorize one corporation to create a debt for another without the consent, express or implied, of the party to be charged. The bonds were issued by the new, excrescent, or 'outside' board, on their own motion, and without the consent of the constituted authorities of the county. But a county cannot exercise its corporate powers in any other way than through its constitutional channels. If the legislature can confer such power as has been attempted to be exercised upon five men, they can confer it upon one, or upon the whole people. Reduced to its elements, the act in question authorizes A. to issue the bonds of B. to C. without B.'s consent.

Indeed, it is plain that this board has felt the truth of all this. Their interest warrants are in a peculiar form. They are not promises of any kind or to anybody; but are mere requests, unaccepted drafts from the board to the county treasurer to pay the bearer the amounts named in them. Now, the county treasurer has no power to pay money out on the order of any other person, corporation, or board, than the board of supervisors of the county. The coupons in this case are not such orders; they are not assumpsits of the county, and are incompetent, immaterial, and irrelevant to establish any demand against the county at all.

After argument by Mr. M. H. Carpenter, contra, for the bondholder,

Mr. Justice GRIER delivered the opinion of the court.

title: Sheboygan Company v. Parker


text: Talk:Sheboygan Company v. Parker

title: Talk:Sheboygan Company v. Parker


text:
Sheboygan Company v. Parker/Opinion of the Court

It is admitted that the bonds in question were issued in conformity with the statute of the Wisconsin legislature. By this statute, the bonds issued in pursuance of it are made 'full and complete evidence, both in law and equity, to establish the indebtedness of the county according to their tenor and effect.'

The objection is, that the act is unconstitutional and void. Is the objection well founded?

The commissioners or board of supervisors of a county, in the exercise of their general powers as such, have no authority to subscribe stock to railroads, and bind the people of the county to pay bonds issued for that purpose without special authority conferred upon them by the legislature. But when special authority is given to the people of a county to do these acts, and bind themselves by the issue of such bonds, the legislature may properly direct the mode in which it shall be effected. The persons specially appointed to act as agents for the people have a ministerial duty to perform in issuing the bonds, after the people, at an election held for the purpose, have assented that they shall be bound.

Such persons, in performance of their special duty, are in no proper sense, 'county officers.' They do not exercise any of the political functions of county officers, such as levying taxes, &c. They do not exercise 'continuously, and as a part of the regular and permanent administration of the government, any important public powers, trusts, or duties.'

An officer of the county is one by whom the county performs its usual political functions; its functions of government. Any other persons appointed by the legislature and the people of the county, would be as competent to execute the bonds of the corporation as the supervisors. They are the lawful agents of the people for this special purpose, and though nominated by the legislature, they cannot act without the assent of the citizens of the county, ascertained in the manner directed by law; and, having so acted, the county cannot now repudiate their acts.

JUDGMENT AFFIRMED, WITH COSTS.


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text: Talk:Sheboygan Company v. Parker/Opinion of the Court


text:
Sparrow v. Strong (70 U.S. 97)

SPARROW brought an action in the nature of an ejectment in the District Court for the first judicial district of Story County, Newada Territory, to recover an interest in a Mining Claim, a sort of interest very common in the argentiferous Territory just named.

The case was tried before a jury upon a considerable body of evidence, and a verdict having been given for the defendant, a judgment in the nature of a judgment in ejectment was regularly rendered by the court upon it.

Subsequently, a motion for new trial was made. A statement embodying all the evidence was drawn up and agreed to by counsel, and upon this statement and some affidavits tending to show surprise on the trial, and new evidence discovered after trial, the motion was argued before the District Court. It was overruled, and from the overruling order an appeal was taken, on the 15th November, 1862, to the Supreme Court of the Territory, under an act of the Territorial legislature authorizing such appeals.

On the 16th of March, 1863, the Supreme Court gave judgment in the cause as follows:

'On appeal from the District Court of the first judicial district in and for Story County.

'Now, on the day, this cause being called, and having been argued and submitted and taken under advisement by the court, and all and singular the law and the premises being by the court the seen and fully considered, the opinion of the court herein is delivered by Turner, C. J. (Mott, J., concurring), to the effect that the judgment below be affirmed.

title: Sparrow v. Strong (70 U.S. 97)


text: Talk:Sparrow v. Strong (70 U.S. 97)

title: Talk:Sparrow v. Strong (70 U.S. 97)


text:
Sparrow v. Strong (70 U.S. 97)/Opinion of the Court

'Wherefore it is now ordered, considered, and adjudged by the court here, that the judgment and decree of the District Court of the first judicial district in and for Story County, be and the same is affirmed with costs.'

From this judgment of the Supreme Court of Nevada a writ of error was taken here; the affidavit filed being the ordinary one, that 'the value of the property in dispute' exceeded $2000. The record did not show any bill of exceptions.

A rule of this court (the ninth), requires that when a writ of error shall be brought to it from any judgment or decree rendered thirty days before the commencement of the term-which this writ was-it shall be the duty of the plaintiff 'to docket the cause and file the record thereof with the clerk of this court, within the first six days of the term.' In the present case the writ of error was properly sued out, August 14, 1863, returnable to the next term of the court; and was regularly served. A citation was also served returnable to the same term. After the writ, citation, and record were filed and the cause docketed, a motion to dismiss the case was made and argued at the last term:

1. Because the record was not filed in time by the plaintiff in error.

2. Because the interest in controversy was not capable of a money valuation; and, therefore, not of the value, within the meaning of the statute, of one thousand dollars, the amount necessary to give jurisdiction to this court.

To understand the force or want of force of this second objection it is necessary to state, on the one hand, that the Territory of Nevada from which the case came, was formerly part of the province of Upper California, and belonged first to old Spain, afterwards to Mexico, and was acquired by the United States only in 1848, by treaty; and that our government, as yet, had made no grants of its public lands there or of any rights in them. Of course no one could hold anything by patent or other formal grant from this government, in which, subject to prior private rights, everything still remained vested. On the other hand, it is to be stated that in the treaty referred to it is admitted that previously to our acquisition of it, the ceded territory had been settled to some extent by the authority of pre-existing governments, and that all rights thus existing are made inviolable. In fact, immense estates in California-a part of the acquired territory-rest on the titles derived from the 'former governments.'

Congress had also established, in March, 1861, when Nevada, previously a part of Utah, was made a Territory by itself, a government for that Territory; having a legislature with the usual powers of these bodies in the Territories; and this legislature had acted on the development of the mines as a subject more or less within its competence.

Independently of this, however, a special kind of law-a sort of Common Law of the miners-the offspring of a nation's irrepressible march-lawless in some senses, yet clothed with dignity by a conception of the immense social results mingled with the fortunes of these bold investigators-had sprung up on our Pacific coast; and presented, in the value of a 'Mining Right,' a novel and peculiar question of jurisdiction for this court. at the last term and at this on the three several points as follows:

I. As to the time at which the record was filed and the cause docketed. The language of the ninth rule is imperative. It is a general rule and as obligatory while in force as a statute. The record, confessedly, was not filed within the first six days of December Term, 1863. It was therefore not filed as the rule exacts, and the writ should be dismissed on this ground.

II. As to the value of the subject in controversy. The affidavit, which is filed in the case, declares indeed that 'the property in dispute' is of the value of two thousand dollars; a sum sufficient, we admit, to give the jurisdiction. But the matter in dispute is a 'Mining Claim.' The land in which the mine exists belongs still to the General Government. It has never been surveyed nor brought into market. No pecuniary value can be attached to the possession by a claimant of anything of which the ownership is in another person. In this case the possession is one amounting in strict law to a trespass; at best, to a tenancy at will of the government. It may be terminated at any moment. Its value depends upon the course which the government may pursue in asserting or omitting to assert its right of ownership. Whatever the occupant may hope for or even expect; whatever the government may in the benignant course of its dealings see fit hereafter to do by such a person, it is plain that he has neither right, title, interest, claim, nor demand in or to the property in suit. Such an estate, or no-estate as it more truly is, cannot be estimated in the sense which the law requires to give jurisdiction. Is not Lownsdale v. Parish, in this court much in point? There the matter in dispute was a piece of real estate in Oregon Territory, which Territory then happened to be claimed by the United States and by Great Britain, at once; the subjects of the two governments, occupying the region only by virtue of a treaty between the two nations. How the title might ultimately be settled and to which government the land might finally pass, was, of course, a matter resting in speculation; dependent upon what the two governments might or might not do; just as here what the one government may or may not do. This court there held that the title to the subject of controversy was not capable of estimate in the sense required by law to give jurisdiction to this court.

III. On the last point-the point on which the case stands over-'Is the judgment a final one?' However the matter may be disguised, or the mind misled by the technical words, 'judgment,' 'decree,' &c., and the old-fashioned formula of 'seen,' 'fully considered,' &c., used in the record, it is obvious that the judgment, or decree which has been affirmed, is but the judgment and decree ordering a new trial; nothing else. In other words, that the terms 'judgment,' and 'decree,' are, in Nevada Territory, and under its peculiar system of law-which makes the granting or refusal of a new trial the subject of review in an appellate court applied to the affirmance of the order of the District Court overruling the motion for a new trial. It is not worth while to be so lost in the technique of the law-in the verbality of clerical 'entries'-as to forget 'that words are the daughters of earth and things the sons of heaven.'

It seems that there was no 'assignment of errors.' The judgment was probably affirmed for want of one. But as the record stands, this court rests in ignorance of the ground on which the judgment proceeded; and the case stands here simply as a writ of error to bring before this court for revision the decision of the Supreme Court of Nevada, upon a motion for a new trial. Need we say that this tribunal will not review decisions on points resting purely in the discretion of the court below? It was but at the last term that this court declared, with what seemed to be a special emphasis, and a warning not to bring such cases here, that 'its decision has always been that the granting or refusal of a new trial is a matter it cannot review.' Messrs. O'Connor and Billings, contra.

The CHIEF JUSTICE now delivered the opinion of the court, on all three of the points.

The first ground taken in favor of dismissing the writ of error, to wit, that the record was not filed in time by the plaintiff in error, is untenable. The writ was regularly sued out on the 14th of August, 1863, returnable at the next term of the court thereafter, and was duly served; a citation was also issued and served, returnable at the same term; and the writ and citation, with the record, were returned here and filed, and the cause docketed before the motion to dismiss. It has been repeatedly held that, in such a case, no motion to dismiss, under the ninth rule, can be entertained.

Nor do we think that the appeal should be dismissed for the second reason assigned by the defendant in error, namely, that the subject of controversy is not of the jurisdictional value. It is insisted that the matter in dispute is a mining claim; that the land where the mine exists has never been surveyed and brought into market; and that, consequently, there can be no mining right to such land in any person, capable of being estimated in money.

It is true, that in the case of Lownsdale v. Parrish, this court held, that an obstruction to the enjoyment of land claimed under a law or regulation of a convention in Oregon, held without the sanction of the United States, and during the joint occupation of that country by Great Britain and the United States, was not an injury capable of being so valued as to give jurisdiction to this court; nor, indeed, an injury of which the courts of the United States could take cognizance at all. But that decision was put distinctly on the ground that Congress, when it came to act on the organization of Oregon, expressly declared that all laws theretofore passed in that Territory, making grants of lands or otherwise affecting or encumbering the titles to lands, should be and were thereby declared 'null and void.'

The claim, which the court was asked to protect, was asserted under a law thus declared null and void by the highest legislative authority. It was for this reason that the court refused to take jurisdiction in Lownsdale v. Parrish and dismissed the appeal.

The writ of error now before us relates to a very different subject of controversy. The Territory, of which Nevada is part, was acquired by treaty. Rights and titles, acquired under ceding governments, remain unimpaired under our government. We cannot know judicially, therefore, that the right and title in controversy was not so acquired. If it was, it certainly may be capable of being valued in money.

But if this were otherwise, we do know that in the act organizing the Territory of Nevada there is no clause annulling grants or claims to land, while large legislative powers are conferred by the Territorial legislature, limited only, as to lands, by the prohibition of interference with the primary disposal of the soil by the United States, and of unequal taxation in certain cases. We know, also, that the Territorial legislature has recognized by statute the validity and binding force of the rules, regulations, and customs of the mining districts. And we cannot shut our eyes to the public history, which informs us that under this legislation, and not only without interference by the national government, but under its implied sanction, vast mining interests have grown up, employing many millions of capital, and contributing largely to the prosperity and improvement of the whole country.

We cannot dismiss this writ of error, therefore, on the ground that a controversy concerning the possessory right to a mining claim, existing under the express sanction of the Territorial legislature and the implied sanction of the national government, does not relate to a subject-matter capable of being valued in money.

As the questions, thus far considered, were argued at the last term, the motion would have been then disposed of had not doubts been excited by an inspection of the record, upon the point for the argument of which the motion was ordered to stand over.

It is insisted, on this point, that the judgment is merely an affirmance of the order of the District Court overruling the motion for new trial. If this be so, the judgment itself is, in substance and effect, nothing more; and it is settled that this court will not review such an order. The granting or refusing of new trials is a matter of discretion, with the exercise of which, by the court below, this court will not interfere. The circumstance that the discretion was exercised under a peculiar statute by an appellate court, and on appeal, cannot withdraw the case from the operation of the principles which control this court.

But the majority of the court does not feel at liberty to disregard the plain import of the terms of the judgment rendered by the Supreme Court of the Territory. It does not purport to be an order or judgment affirming an order overruling a motion for new trial, but a judgment affirming the judgment or decree of the District Court, and the only judgment or decree, which we find in the record, is the judgment for the defendants in the action of ejectment.

If this view be correct, the judgment of the Supreme Court is one to review which a writ of error may be prosecuted. And the record shows that the writ has been regularly sued out and returned. This court therefore has jurisdiction, and it has been repeatedly held in similar cases, that on a motion to dismiss, the court will look to the regularity of the writ and the fact of jurisdiction. Other questions must, in general, await final hearing.

MOTION TO DISMISS OVERRULED.


text: Talk:Sparrow v. Strong (70 U.S. 97)/Opinion of the Court


text: Lewis v. Campau

title: Lewis v. Campau


text: Talk:Lewis v. Campau

title: Talk:Lewis v. Campau


text:
Lewis v. Campau/Opinion of the Court

CAMPAU sued Lewis in the Supreme Court of Michigan, 'the highest court of law and equity' in that State; and on the hearing there, objection was made to the admissibility of a deed which was offered in evidence, on the ground that the United States revenue stamps attached to it were not sufficient in amount; that is to say, were not proportioned in amount to the value of the land conveyed; as the act of Congress relating to our internal revenue requires that they should be; and that the deed was therefore void. The court being satisfied that the value of the land was not sufficient to require stamps of greater amount than were actually attached admitted the deed; and final judgment having gone in favor of Lewis, the other party, Campau, brought the case here on error as being within the 25th section of the Judiciary Act of 1789; a section which enacts that a final judgment or decree in any suit in the highest court of law or equity in a State wherein is drawn in question the validity of a statute of the United States and the decision is against its validity; or where is drawn in question the construction of any clause of a statute of the United States and the decision is against the title, right, or privilege specially set up or claimed by either party-may be re-examined here

Mr. Walker now moved to dismiss the cause, on the ground of want of jurisdiction, Mr. Bishop opposing.

Neither the validity of the statute, nor its construction was in any way drawn in question. The only question the court had to pass upon, and this only incidentally as affecting the admissibility of evidence, was the value of the land.

This is not a question which can be brought into this court under the 25th section of the Judiciary Act.

WRIT OF ERROR DISMISSED.

title: Lewis v. Campau/Opinion of the Court


text: Talk:Lewis v. Campau/Opinion of the Court


text:
York Company v. Central Railroad

TROUT & SON shipped at Memphis, on the Mississippi, a large quantity of cotton, on board a steamer belonging to the Illinois Central Railroad Company, common carriers; which by the terms of the bill of lading was to be delivered at Boston, Massachusetts, the consignees paying $4.75 per bale, fire and the unavoidable dangers of the river only excepted.' The bill of lading which referred to the cotton as shipped by Trout & Son' was signed in four; two copies being given to Trout & Son, of which they retained one, forwarding the other to the York Company in New England, for whom the cotton was intended. In the course of the transit the cotton was destroyed by fire.

The company now sued the carriers in the Circuit Court of Illinois for damages. Trout was examined on a commission, and having stated that his firm were but agents of the York Company and that the shipment was made on its account as owner, proved the fact and contract of shipment (which last he stated was in the form of a bill of lading) and the value of the cotton. But he did not produce on his examination in chief any original or copy of the bill itself.

The carriers, who wished to rest their case on the fire clause in the bill, inquired of him on cross-interrogatories whether one or more of the bills had not been delivered to him, and directed him, if one had, to annex 'the same or a certified and proved copy to his deposition, and to let the same be properly identified by the commissioner in his return.' The witness answering that one of the bills had been delivered to him annexed 'a true copy of it from his books.' The fire clause appeared in it; though the witness stated that the cotton was shipped on the steamer before the bills were signed; that he had not examined the bills; that 'his attention was not called to the fire clause,' and that his firm had no authority to ship for their principals with that exemption.

On the trial, the plaintiff not having made objection during the execution of the commission nor by motion to suppress, objected to the reading of the answers to the cross-interrogatories which showed a copy of the bill; the ground of the objection being that the contract was shown to be in writing, and that no foundation had been laid for secondary evidence either by notice to produce the original bill or by evidence of its loss. But the court overruled the objection.

The defendant had judgment. On error four objections were made to it here.

1. Because it was doubtful whether as common carriers the defendants could exempt themselves from risks by fire.

2. Because if they could, still that Trout & Son, who were really but agents of the York Company, could not give their assent to such exemption.

3. Because if they had given such assent no consideration had been paid by the company, in a reduced rate of fare or otherwise, for this restriction of the carrier's common-law obligation.

4. Because the copy of the bill of lading, in the absence of notice to produce the original or of proof of its loss, was improperly allowed to be read.

Mr. Hitchcock, for the owners of the cotton: The law imposes upon the carrier a definite and absolute duty, and he ought to be under an incapacity to contract in derogation of that duty. Such contracts are usually an empty form of words, imposed by a party who has no right to propose them, upon another who has no power to repel them, and who rarely, in any sense, assents to them.

The reasoning of Judge Cowen, in the New York cases of Cole v. Goodwin and Gould v. Hill, and of Judge Nesbitt, in the Georgia case of Fish v. Chapman, is more satisfactory upon principle and authority than that of later cases, establishing a somewhat different rule. The late Mr. H. B. Wallace, the American annotator of Smith's Leading Cases, in the last edition of that work published before his death, in 1852, regarded the question whether a carrier, when charged upon his common-law responsibility, could discharge himself from it by showing a special contract, assented to by the owner, as one then still open. Some decisions since then tend perhaps to a different view; though many of the best judges and text-writers regret their tendency, and hold them to strict limits.

1. It is certainly settled that any kind of notice, though brought home to the shipper, will not exonerate the carrier from the liabilities which the law annexes to his employment; though it may perhaps be too late to assert confidently that if the owner expressly assents to such notice and agrees to be bound by it, and there is sufficient consideration for it, it shall still be without effect.

2. But it is shown that Trout & Son, though they had authority to ship, had no authority to agree to any restriction on the carriers' common liability. Their authority to forward was certainly, of itself, not an authority to make an unusual and special contract, restricting the liability in a most important feature. The contract, made without the assent of one party to it, differs in no respect, then, from a general notice brought home to the shipper, which, as we have said already, is universally held inefficacious.

3. Even, however, had Trout & Son been authorized thus to contract, the burden lies upon the carrier to prove a consideration for the special exemption from a common-law liability, and without such consideration the contract has no obligation. In all the cases in which effect has been given to these special contracts with carriers, by which their common-law liability was limited, this essential requisite of a contract has been found. Thus, in The New Jersey Steam Navigation Co. v. Merchants' Bank, in this court, a full consideration is expressed in the instrument, which is, moreover, signed by the parties and under seal. So in The Illinois Central Railroad Company v. Morrison, a full consideration in the reduction of the rate of freight was proven, and the contract was also signed and sealed. So in Kimball v. The Rutland Railway, a similar consideration was shown, and also the assent of the plaintiff in express terms.

4. The rule that notice to produce, or the loss of, the original, should be shown before parol evidence of the contents of a written instrument is admissible, will hardly, in its general force, be questioned. This case should present no exception. Will it be said that the copy was first objected to on the trial? This is true. But from the nature of the case, it could not have been properly objected to at any other time. The objection was a substantial and not a formal one; and such objections are always heard at the trial. There is no rule or practice of the court requiring any other than formal objections to be stated in writing before the cause is called for trial. If a motion to suppress had been urged before the trial, it would have been said, in reply, that the testimony might be made competent before it would be offered, by showing a notice to produce the original, or that it was unattainable, by destruction or otherwise. Could the court assume, for the purpose of suppressing a deposition, that the requisite proof would not be made to render it competent?

Mr. Tracy, contra.

Mr. Justice FIELD delivered the opinion of the court.

title: York Company v. Central Railroad


text: Talk:York Company v. Central Railroad

title: Talk:York Company v. Central Railroad


text:
York Company v. Central Railroad/Opinion of the Court

The right of a common carrier to limit his responsibility by special contract has long been the settled law in England. It was the subject of frequent adjudication in her courts, and had there ceased to be a controverted point before the passage of the Carrier's Act of 1830.

In this country, it was at one time a subject of much controversy whether any such limitation could be permitted. It was insisted that, exercising a public employment, the carrier owed duties at common law, from which public policy demanded that he should not be discharged even by express agreement with the owner of the goods delivered to him for transportation. This was the ground taken by Mr. Justice Cowen, of the Supreme Court of New York, in Cole v. Goodwin; and, although what that learned judge said on this point was mere obiter, as the question presented was not upon the effect of a special agreement, but of a general notice, it appears to have been adopted by a majority of the court in the subsequent case of Gould v. Hill. But from this doctrine that court has since receded; and, in a recent decision, the Court of Appeals of that State has affirmed the right of the carrier to stipulate for a limitation of his responsibility. The same rule prevails in Pennsylvania; it has been asserted in Ohio and in Illinois, and, it is believed, in a majority of the other States; and in The New Jersey Steam Navigation Co. v. The Merchants' Bank, it received the sanction of this court.

Nor do we perceive any good reason, on principle, why parties should not be permitted to contract for a limited responsibility. The transaction concerns them only; it involves simply rights of property; and the public can have no interest in requiring the responsibility of insurance to accompany the service of transportation in face of a special agreement for its relinquishment. By the special agreement the carrier becomes, with reference to the particular transaction, an ordinary bailee and private carrier for hire.

The law prescribes the duties and responsibilities of the common carrier. He exercises, in one sense, a public employment, and has duties to the public to perform. Though he may limit his services to the carriage of particular kinds of goods, and may prescribe regulations to protect himself against imposition and fraud, and fix a rate of charges proportionate to the magnitude of the risks he may have to encounter, he can make no discrimination between persons, or vary his charges from their condition or character. He is bound to accept all goods offered within the course of his employment, and is liable to an action in case of refusal. He is chargeable for all losses except such as may be occasioned by the act of God or the public enemy. He insures against all accidents which result from human agency, although occurring without any fault or neglect on his part; and he cannot, by any mere act of his own, avoid the responsibility which the law thus imposes. He cannot screen himself from liability by any general or special notice, nor can he coerce the owner to yield assent to a limitation of responsibility by making exorbitant charges when such assent is refused.

The owner of the goods may rely upon this responsibility imposed by the common law, which can only be restricted and qualified when he expressly stipulates for the restriction and qualification. But when such stipulation is made, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enforcement.

We do not understand that the counsel of the plaintiff in error questions that the law is as we have stated it to be. His positions are that the agents of the plaintiff at Memphis, who made the contract with the Illinois Central Railroad Company, were not authorized to stipulate for any limitation of responsibility on the part of that company; and that no consideration was given for the stipulation made.

The first of these positions is answered by the fact that it nowhere appears that the agents disclosed their agency when contracting for the transportation of the cotton. So far as the defendant could see, they were themselves the owners.

The second position is answered by the fact, that there is no evidence that a consideration was not given for the stipulation. The company, probably, had rates of charges proportioned to the risks they assumed from the nature of the goods carried, and the exception of losses by fire must necessarily have affected the compensation demanded. Be this as it may, the consideration expressed was sufficient to support the entire contract made.

The objection urged to the introduction of the copy of the bill of lading annexed to the deposition of the witness Trout, was properly overruled. The deposition was taken upon a commission, and in such cases the general rule is, that all objections of a formal character, and such as might have been obviated if urged on the examination of the witness, must be raised at such examination, or upon motion to suppress the deposition. The rule may be different in some State courts; but this rule is more likely than any other to prevent surprise and secure the ends of justice. There may be cases where the rule should be relaxed, as where the deposition is returned at so brief a period before the trial as to preclude a proper examination, and prevent a motion to suppress. In this case there was no occasion for any such relaxation of the rule, and had the objection been taken before the trial-either at the examination of the witness or on a motion to suppress-to the proof of the copy without producing the original or showing its loss, the opposite party would undoubtedly have secured the production of the original, if in existence, or, if it be lost or destroyed, been prepared to account for its absence.

JUDGMENT AFFIRMED.

[See infra, p. 175, Blackburn v. Crawfords, 4.-REP.]


text: Talk:York Company v. Central Railroad/Opinion of the Court


text: Cliquot's Champagne

title: Cliquot's Champagne


text: Talk:Cliquot's Champagne

title: Talk:Cliquot's Champagne