Page:The Green Bag (1889–1914), Volume 22.pdf/175

 Roger Brooke Taney

159

thislcourt to put down the improvements

another bridge which might be erected so, contiguous as to lessen the tolls. Webster

which have taken their place.

appeared for the plaintiff, while Professor

The decision was of far-reaching effect,

Greenleaf represented the defendant. Webster in concluding his argument said :—

and Webster for the ﬁrst time had met defeat in the argument of a constitu

The plaintiﬁs have placed their reliance upon the precedents and authority estab lished by this honorable Court in the course of the last thirty years in support of that Constitution which secured individual property against legislative assumption, and they now ask the enlightened conscience of this tribunal if they have not succeeded in sustaining their complaint, upon legal and constitutional grounds.

The opinion by the Chief Justice very plainly demonstrates that the diversion of travel was not an impairment of the

obligation of contracts prohibited by the Constitution, as there having been no express contract of an exclusive privilege, no implied contract was to be inferred, and the act therefore did not

conﬂict with the federal Constitution :—— We cannot deal thus with the rights re served to the states, or by legal intendment and mere technical reasoning take away from them any portion of. that power over their own internal policy, and improvement which is necessary to their well being and pros perity.

Then with the forecast of the statesman,

he proceeds with a line of reasoning alike applicable to the conditions of that day

and to our own time of parallel rail roads, railways, and telegraph and tele phone systems :— If this court should establish the prin ciple now contended for, what is to become of the numerous railroads established on the same line of travel with turnpike companies; and which have rendered the franchises of the turnpike corporations of no value? Let it once be understood that such charters carry with them these implied contracts, and you will soon ﬁnd the old turnpike corporations awakening from their sleep, and calling upon

tional question. It is more than a tradition that Chief

Justice Marshall when the case had ﬁrst been argued was of a different opinion,

and was inclined to hold that the state had no power to grant the charter to the

Warren Bridge.

In support of this view

and as he openly stated, in conformity with the position of Marshall, Mr. Justice Story dissented in an elaborate opinion,

in which Mr. Justice Thompson con curred, and not only Story and Webster felt that the end of federal supremacy had come, but Chancellor Kent in a

letter to Story wrote, “I have lost my conﬁdence and hopes in the constitu tional guardianship and protection of the Supreme Court.”7

Time, however,

the enlightener as well as consoler, has

furnished the true perspective, and in 1891 Mr. Carson, in his history of the Supreme Court of the United States,

justly and succinctly sets forth the soundness and effect of the decision in these words :— It has enabled the states to push forward great improvements by which the surface of the earth had been subjected to the domain of man. The principle of the Dartmouth College case was limited in its application, before it had been carried to the extreme which would have left the state governments in possession of little more than a shell of legislative power. All the essential elements of state sovereignty would have been parcelled out, without the possibility of reclamation, through

recklessness,

or

something worse,

among a crowd of applicants for monopolistic privileges.

There were other numerous and note

worthy decisions where may be found the roots of doctrines which by the 7 See 3 Kent's Com., 14th ed.. 459.