West River Bridge Company v. Dix/Separate Woodbury

Mr. Justice WOODBURY.

In the decisions of this court on constitutional questions it has happened frequently, that, though its members were united in the judgment, great differences existed among them in the reasons for it, or in the limitations on some of the principles involved. Hence it has been customary in such cases to express their views separately. I conform to that usage in this case the more readily, as it is one of the first impression before this tribunal, very important in its consequences, as a great landmark for the States as well as the general government, and, from shades of difference and even conflicts in opinion, will be open to some misconstruction.

I take the liberty to say, then, as to the cardinal principle involved in this case, that, in my opinion, all the property in a State is derived from, or protected by, its government, and hence is held subject to its wants in taxation, and to certain important public uses, both in war and peace. Vattel, B. 1, ch. 20, § 244; 2 Kent, Comm. 270; 37 Am. Jurist, 121; 1 Bl. Comm. 139; 3 Wils. 303; 3 Story on Const. 661; 3 Dallas, 95. Some ground this public right on sovereignty. 2 Kent, Comm. 339; Grotius, B. 1, ch. 1, § 6. Some, on necessity. 2 Johns. Ch. 162; 11 Wend. 51; 14 Wend. 51; 1 Rice, 383; Vanhorne's Lessee v. Dorrance, 2 Dallas, 310; Dyer v. Tuscaloosa Bridge, 2 Porter, 303; Harding v. Goodlett, 3 Yerger, 53. Some, on implied compact. Raleigh & Gaston Railroad Co. v. Davis, 2 Dev. & Bat. 456; 2 Bay, 36, in S.C.ar.; 3 Yerger, 53. Where a charter is granted after laws exist to condemn property when needed for public purposes, others might well rest such a right on the hypothesis, that such laws are virtually a part and condition of the grant itself, as much as if inscribed in it, totidem verbis. Towne v. Smith, 1 Woodbury & Minot, 134; 2 Howard, 608, 617; 1 Howard, 311; 3 Story on Const. §§ 1377, 1378, quaere.

But, however derived, this eminent domain exists in all governments, and distinguished from the public domain, as that consists of public lands, buildings, &c., owned in trust exclusively and entirely by the government (3 Kent, Comm. 339; Memphis v. Overton, 3 Yerger, 389), while this consists only in the right to use the property of others, when needed, for certain public purposes. Without now going further into the reasons or extent of it, and under whatever name it is most appropriately described, I concur in the views of the court, that it still remains in each State of the Union in a case like the present, having never been granted to the general government so far as respects the public highways of a State, and that it extends to the taking for public use for a road any property in the State, suitable and necessary for it. Tuckahoe Canal case, 11 Leigh, 75; 11 Peters, 560; 20 Johns. 724; 3 Paige, Ch. 45; 7 Pick. 459. But whether it could be taken without compensation, where no provision exists like that in the fifth amendment of the Constitution of the United States, or that in the Vermont constitution, somewhat similar, is a more difficult question, and on which some have doubted. 4 D. & E. 794; 1 Rice, 383; 3 Leigh, 337. I do not mean to express any opinion on this, as it is not called for by the facts of this case. But compensation from the public in such cases prevails generally in modern times, and certainly seems to equalize better the burden. 2 Dallas, 310; Pisc. Bridge v. Old Bridge, 7 N. Hamp. 63; 4 D. & E. 794; 1 Nott & McCord, 387; ''Stokes et al. v. Sup. Ass. Co.,'' 3 Leigh, 337; 11 Leigh, 76; Hartford Bridge, 17 Conn. 91; Vattel, B. 1, ch. 20, § 244; 3 Paige, Ch. 45; 2 Dev. & Bat. 451; 2 Kent, Comm. 339, note; Lex. & Oh. Railroad case, 8 Dana, 289.

Nor shall I stop to discuss whether it is on this principle of the eminent domain alone, that private property has always been taken for highways in England, on making compensation, so as to be a precedent for us. This was done there formerly, not as here, but by a writ ad quod damnum, and it was for ages issued before the grant of any new franchise by the king, whether a road, ferry, or market; and the inquiry related to the damage by it, whether to the public or individuals. Fitz. N. B. 221; 3 Bac. Abr., Highways, A.

Nor were alterations in roads, or even the widening or discontinuing of them, allowed without it. Thomas v. Sorrel, Vaughan, 314, 348, 349; Cooke, ch. 267; 6 Barn. & Ald. 566.

But in modern times Parliament, by various laws, have authorized all these, after inquiry and compensation awarded by certain magistrates. 1 Burr. 263; Camp. 648; Cro. Car. 266, 267; 5 Taunt. 634; Domat, B. 1, t. 8, § 2; 7 Adol. & Ellis, 124.

And thus, notwithstanding the theoretical omnipotence of Parliament, private rights and contracts have been in these particulars, about compensation and necessity for public use, as much respected in England as here.

So as to railroad companies, as well as turnpikes, under public trustees, and as to common highways; the former are often authorized there to erect bridges, and carry their roads over turnpikes and other highways; but it is on certain conditions, keeping them passable in that place or near, and on making compensation. Kemp v. L. & B. Railway Co., 1 Railway Cases, 505, and Attorney-General v. The L. & S. Railroad, 1 ib. 302, 224; 2 ib. 711; 1 Gale & D. 324; 2 ib. 1; 4 Jurist, 966; 5 ib. 652; 9 Dowling, P. C. 563; 7 Adol. & Ellis, 124; 3 Maule & Selw. 526; 11 Leigh, 42.

But I freely confess, that no case has been found there by me exactly in point for this, such as the taking of the road or bridge of one corporation for another, or of taking for the public a franchise of individuals connected with them. Though, at the same time, I have discovered no prohibition of it, either on principle or precedent, if making compensation and following the mode prescribed by statute.

The peculiarity in the present case consists in the facts, that a part of the property taken belonged to a corporation of the State, and not to an individual, and a part was the franchise itself of the act of incorporation.

I concur in the views, that a corporation created to build a bridge like that of the plaintiffs in error is itself, in one sense, a franchise. 2 Bl. Comm. 37; Bank of Augusta v. Earle, 13 Peters, 596; 4 Wheat. 657; 7 Pick. 394; 11 Peters, 474, 454, 472, 490, 641, 645; 11 Leigh, 76; 3 Kent, Comm. 459. And, in another sense, that it possesses franchises incident to its existence and objects, such as powers to erect the bridge and to take tolls. See same cases.

I concur in the views, also, that such a franchise as the incorporation is a species of property. 7 N. Hamp. 66; ''Tuckahoe Canal Co. v. Tuckahoe & Camb. Railroad Co.,'' 11 Leigh, 76. It is a legal estate vested in the corporation. 4 Wheat. 700; 11 Peters, 560. But it is often property distinct and independent of the other property in land, timber, goods, or choses in action, which a corporation, like a body not artificial, may own. 3 Bland, 449; 11 Leigh, 76.

It is also property subject to be sold, sometimes even on execution (Semb., 4 Mass. 495; 11 Peters, 434), and may be devised or inherited. 17 Conn. 60. And while I accede to the principle urged by the counsel for the bridge, that the act of incorporation in this case was a contract, or in the nature of one between the State and its members (1 Mylne & Craig, 162; 4 Peters, 514, 560; Lee v. Nailer, 2 You. & Coll. 618; King v. Pasmoor, 3 D. & E. 246; Woodward v. Dartmouth College, 4 Wheat. 628; 7 Cranch, 164; Terrett v. Tayler, 9 Cranch, 43, 52; 9 Wend. 351; 11 Peters, 257; Canal Co. v. Railroad, 4 Gill & Johns. 146; 3 Kent, Comm. 459; Enfield Toll-Bridge case, 17 Conn. 40; 1 Greenleaf, 79; 8 Wheat. 464; 10 Conn. 522; Peck, 269; 1 Alabama, 23; 2 Stewart, 30), I concur in the views of the court, that this or other property of corporations may be taken for the purpose of a highway, under the right of eminent domain, and that the laws of Vermont authorizing it are not in that respect and to that extent violations of the obligation of any contract made by it with the corporation. Bradshaw v. Rodgers, 20 Johns. 103, 742; ''The Trust. of Belf. Ac. v. Salmond,'' 2 Fairf. 113; Enfield Bridge case, 17 Conn. 40, 45, 61; 3 Paige, Ch. 45; Charles River Bridge v. Warren Bridge, 7 Pick. 394, 399; S.C.., 11 Peters, 474; 1 Bland, 449; Bellona Co. case, 3 Bland, 449.

Because there was no covenant or condition in the charter or contract, that the property owned by it should not be liable to be taken, like all other property in the State, for public uses in highways. 7 N. Hamp. 69; 4 Wheat. 196; Jackson v. Lamphire, 3 Peters, 289.

Because, without such covenant, all their property, as property, must be liable to proper public uses, either by necessity, or the sovereignty of the State over it, or by implied agreement.

And because, on a like principle, taxes may be imposed on such property, as well as all other property, though coming by grant from the State, and may be done without violating the obligation of the contract, when there is no bonus paid or stipulation made in the charter not to tax it. This is well settled. 5 Barn. & Ald. 157; 2 Railway Cases, 17 arg. 23; 7 Cranch, 164; New Jersey v. Wilson, 4 Peters, 511; Providence Bank v. Billings, 11 Peters, 567, Shaw, C. J., in Charles River Bridge v. Warren Bridge; Gordon v. Appeal Tax Court, 3 Howard, 146; 12 Mass. 252; 4 Wheaton, 699; 4 Gill & Johns. 132, 153; Williams v. Pritchard, 4 D. & E. 2. The grantees are presumed to know all these legal incidents or liabilities, and they being implied in the grant or contract, their happening is no violation of it. 8 Peters, 281, 287; 11 Peters, 641, 644; 3 Paige, 72.

Vattel says,-'The property of certain things is given up to the individuals only with this reserve.' B. 1, ch. 20, § 244.

In England anciently, when titles of land became granted with immunities from numerous ancient services, it was still considered that such lands were subject by implication, under a certain trinoda necessitas, to the expenses of repair of bridges as well as forts, and of repelling invasion. Tomlins, Dict., Trinoda Necess tas; 3 Bac. Abr., Highways, A.

Even the right to a private way is sometimes implied in a grant, from necessity. Cro. Jac. 189; 8 D. & E. 50; 4 Maule & Selw. 387; 1 Saund. 322, note.

It is laid down, also, by Justice Story, that 'a grant of a franchise is not in point of principle distinguishable from a grant of any other property.' Dartmouth College v. Woodward, 4 Wheat. 699, 701.

I concur, therefore, in the further views, that the corporation as a franchise, and all its powers as franchises, both being property, may for these and like reasons, in proper cases, be taken for public use for a highway. Pierce v. Somersworth, 10 N. Hamp. 370; 11 N. Hamp. 20; ''Piscat. Bridge v. N. Hamp. Bridge,'' 7 N. Hamp. 35, 66; 8 N. Hamp. 398, 143; 11 Peters, 645; Story J., in Warren Bridge v. Charles River Bridge; 2 Kent, Comm. 340, note; 2 Peters, 658; 5 Paige, Ch. 146; 1 Rice, 383; 2 Porter, 296; 7 Adol. & Ellis, 124; 3 Yerger, 41; 2 Fairf. 222; 23 Pick. 360; J. Bonaparte v. C. Railroad, Baldw. C. C. 205; Tuckahoe Canal Co. v. The T. & J. River Railroad Co., 11 Leigh, 42; Enfield Bridge Co. v. Hartford & New Haven Railroad, 17 Conn. 40; Armington v. Barnet, 15 Vermont, 745, and 16 Vermont, 446, this case; 3 Cowen, 733, 754; 11 Wendell, 590; Lex. & Oh. Railroad case, 8 Dana, 289; 18 Wend. 14.

It must be confessed, that some surprise has been felt to find this doctrine so widely sustained, and in so many of the States, and yet no exact precedent existing in England.

But in relation to it here, I am constrained, in some respects, to differ from others, and, as at present advised, agree to the last proposition, concerning the taking of the franchise itself of a corporation, only when the further exercise of the franchise as a corporation is inconsistent or incompatible with the highway to be laid out.

It is only under this limitation as to the franchise itself, that there seems to be any of the necessity to take it which, it will be seen in the positions heretofore and hereafter explained, should exist. Nor do I agree to it with that limitation, without another,-that it must be in cases where a clear intent is manifested in the laws, that one corporation and its uses shall yield to another, or another public use, under the supposed superiority of the latter and the necessity of the case. 4 Gill & Johns. 108, 150; Barbour v. Andover, 8 N. Hamp. 398.

Within these limitations, however, the acts of incorporation and all corporate franchises appear to me to possess no more immunity from reasonable public demands for roads and taxes, than the soil and freehold of individuals.

The land may come by grant or patent from the State, as well as the corporation, and both the grant and corporation may be contracts. But they are contracts giving rights of property, held, and of course understood to be held, subject to those necessary burdens and services and easements to which all other property is liable. And it is neither inconsistent with the grant of them, nor a violation of the contract contained in them, to impose those burdens and easements, unless an express agreement has been made to the contrary by the State in the act of incorporation or grant, as is sometimes done in respect to taxation. But where the corporation, as a franchise, or its powers as franchises, can still be exercised usefully or profitably, and the highway be laid out as authorized, I see no reasons why these franchises should then be condemned or taken. The property owned by a banking or manufacturing corporation may, for instance, be condemned for highways, necessarily, where situated on a great line of travel; but why should their franchises be, if their continued existence and use may be feasible and profitable, and one not inconsistent with the taking and employment of their other property for a public highway?

In this instance, however, as a fact, the franchise was established and seems to be useful only in one locality. The continuance of it elsewhere than at this spot would be of no benefit to individual members or the public. If the bridge itself and land of the corporation at that place were taken, it was better for the latter that the franchise should be taken with them, if enhancing the damages any, because, unlike a bank or manufacturing company, the corporation could not do business to advantage elsewhere, even within the limited four miles, as there was no road elsewhere within their grant. The law of Vermont, too, was clear, that the toll-bridge might be made to give way for a free highway. It is, therefore, only under the particular circumstances and nature of this case, that, in my apprehension, the taking of the franchise itself was not a violation of the contract. For, under different circumstances, if a franchise be taken and condemned for a highway, when not connected locally with other property wanted, when it can be exercised on ordinary principles elsewhere, when not in some respects incident to, or tied up with, the particular property and place needed, I am not now prepared to uphold it. I am even disposed to go further, and say, that if any property of any kind is not so situated as to be either in the direct path for a public highway, or be really needed to build it, the inclination of my mind is, that it cannot be taken against the consent of the owner. Because, though the right of eminent domain exists in some cases, it does not exist in all, nor as to all property, but probably as to such property only as, from its locality and fitness, is necessary to the public use. Semb., 4 Mylne & Craig, 116; ''Webb v. Manch. & Leeds Railway Co.,'' 1 Railway Cases, 576.

It may be such, not only for the bed of the road, but perhaps for materials in gravel, stone, and timber, to build it with. Yet even then it must be necessary and appropriate as incidents. 2 Dev. & Bat. 462; 13 East, 200.

And also, for aught I now see, circumstances must, from its locality and the public wants, raise an urgent necessity for it. 'The public necessities' are spoken of usually as the fit occasion to exercise the power, if it be not derived from them in a great degree, and the reason of the case is confined to them. (See cases before.)

The ancient trinoda necessitas extended to nothing beyond such necessity.

Indeed, without further examination, I fear that even these limitations may not be found sufficient in some kinds of public highways,-such as railroads, for instance. And I must hear more in support of this last position before acquiescing in their right to take, in invitum, all the materials necessary to build such roads, as the timbers on which their rails are laid, or the iron for the rails themselves.

Nor do I agree that, in all cases of a public use, property which is suitable or appropriate can be condemned. The public use here is for a road, and the reasoning and cases are confined chiefly to bridges and roads, and the incident to war. But the doctrine, that this right of eminent domain exists for every kind of public use, or for such a use when merely convenient, though not necessary, does not seem to me by any means clearly maintainable. It is too broad, too open to abuse. Where the public use is one general and pressing, like that often in war for sites of batteries, or for provisions, little doubt would exist as to the right. Salus populi suprema est lex. So as to a road, if really demanded in particular forms and places to accommodate a growing and changing community, and to keep up with the wants and improvements of the age,-such as its pressing demands for easier social intercourse, quicker political communication, or better internal trade,-and advancing with the public necessities from blazed trees to bridle-paths, and thence to wheel-roads, turnpikes, and railroads.

But when we go to other public uses, not so urgent, not connected with precise localities, not difficult to be provided for without this power of eminent domain, and in places where it would be only convenient, but not necessary, I entertain strong doubts of its applicability. Who ever heard of laws to condemn private property for public use, for a marine hospital or state prison?

So a custom-house is a public use for the general government, and a court-house or jail for a State. But it would be difficult to find precedent or argument to justify taking private property, without consent, to erect them on, though appropriate for the purpose. No necessity seems to exist, which is sufficient to justify so strong a measure. A particular locality as to a few rods in respect to their site is usually of no consequence.; while as to a light-house, or fort, or wharf, or highway between certain termini, it may be very important and imperative. I am aware of no precedents, also, for such seizures of private property abroad, for objects like the former, though some such doctrines appear to have been advanced in this country. 3 Paige, 45. Again, many things belonging to bridges, turnpikes, and railroads, where public corporations for some purposes, are not, like the land on which they rest, local and peculiar and public, in the necessity to obtain them by the power of the eminent domain. Such seem to be cars, engines, &c., if not the timber for rails, and the rails themselves. Gordon v. C. & J. Railway Co., 2 Railway Cases, 809.

Such things do not seem to come within the public exigency connected with the roads which justifies the application of the principle of the eminent domain. Nor does even the path for the road, the easement itself, if the use of it be not public, but merely for particular individuals, and merely in some degree beneficial to the public. On the contrary, the user must be for the people at large,-for travellers,-for all,-must also be compulsory by them, and not optional with the owners,-must be a right by the people, not a favor,-must be under public regulations as to tolls, or owned, or subject to be owned, by the State, in order to make the corporation and object public, for a purpose like this. 3 Kent, Comm. 270; Railroad Co. v. Chappell, 1 Rice, 383; Memphis v. Overton, 3 Yerger, 53; King v. Russell, 6 Barn. & Cres. 566; King v. Ward, 4 Adol. & Ellis, 384.

It is not enough that there is an act of incorporation for a bridge, or turnpike, or railroad, to make them public, so as to be able to take private property constitutionally, without the owner's consent; but their uses, and object, or interests, must be what has just been indicated,-must in their essence, and character, and liabilities, be public within the meaning of the term 'public use.' There may be a private bridge, as well as private road, or private railroad, and this with or without an act of incorporation.

In the present instance, however, the use was to be for the whole community, and not a corporation of any kind. The property was taken to make a free road for the people of the State to use, and was thus eminently for a public use, and where there had before been tolls imposed for private profit and by a private corporation so far as regards the interest in its tolls and property.

And the only ground on which that corporation, private in interest, was entitled in any view originally to condemn land or collect tolls was, that the use of its bridge was public,-was open to all and at rates of fare fixed by the legislature and not by itself, and subject to the revision and reduction of the public authorities.

It may be, and truly is, that individuals and the public are often extensively benefited by private roads, as they are by mills, and manufactories, and private bridges. But such a benefit is not technically nor substantially a public use, unless the public has rights. 1 Rice, 388. And in point of law it seems very questionable as to the power to call such a corporation a public one, and arm it with authority to seize on private property without the consent of its owners.

I exclude, therefore, all conclusions as to my opinions here being otherwise than in conformity to these suggestions; though when, as in the present case, a free public use in a highway and bridge is substituted for a toll-bridge, and on a long or great and increasing line of public travel, and thus vests both a new benefit and use, and a more enlarged one, in the public, and not in any few stockholders, I have no doubt that these entitle that public for such a use to condemn private property, whether owned by an individual or a corporation. Boston W. P. Co. v. B. & W. Railroad Corp., 23 Pick. 360. And it is manifest that unless such a course can be pursued, the means of social and commercial intercourse might be petrified, and remain for ages, like the fossil remains in sandstone, unaltered, and the government, the organ of a progressive community, be paralyzed in every important public improvement. 2 Dev. & Bat. 456; 1 Rice, 395; 8 Dana, 309.

I exclude, also, any inference, that, in assenting to the doctrine, that an act of incorporation for a toll-bridge is a contract, giving private interests and rights as well as public ones, and thereby not allowing a State to take the private ones or alter them, unless for some legitimate public use, or by consent, as laid down in 4 Wheat. 628, I can or do assent to the doctrine of some of the judges there in respect to public offices being such contracts as not to be changed or abolished by a State on public considerations, without incurring a violation of the contract.

I should be very reluctant to hold, till further advised, that public offices are not, like public towns, counties, &c., mere political establishments, to be abolished or changed for political considerations connected with the public welfare. 9 Cranch, 43. The salaries, duration; and existence of the offices themselves seem to be exclusively public matters, open to any modification which the representatives of the public may decide to be necessary, whenever no express restriction on the subject has been imposed in the constitution or laws. Quaere. Hoke v. Henderson, 4 Dev. 1.

This would seem the implied condition of the office or contract, as much as that it may be taxed by the government under which it is held, though not by other governments so as to impair or obstruct it. See, as to the last, McCulloch v. Maryland, 4 Wheat. 316; Weston v. The C. C. of Charleston, 2 Peters, 449; ''Dobbins v. Comm. of Erie City,'' 16 Peters, 435.

Finally, I do not agree that even this franchise, as property, can be taken from this corporation without violating the contract with it, unless the measure was honest, bon a fide, and really required for what it professed to be, beside being, as before remarked, proper, on account of the locality and nature of this property, to be condemned for this purpose.

And though I agree, that, for most cases and purposes, the public authorities in a State are the suitable judges as to this point, and that the judiciary only decide if their laws are constitutional (2 Kent, Comm. 340; 1 Rice, 383); that the legislature generally acts for the public in this (2 Porter, 303; 3 Bl. Comm. 139, note; 4 D. & E. 794, 797); that road agents are their agents, under this limitation (1 Rice, 383); yet I am not prepared to agree, that if, on the face of the whole proceedings, the law, the report of commissioners, and the doings of the courts,-it is manifest that the object was not legitimate, or that illegal intentions were covered up in forms, or the whole proceedings a mere 'pretext,' our duty would require us to uphold them. Ibid.; Rice, 391. In England, though this power exists, yet if used maliciously or wantonly, it is held to be void. Boyfield v. Porter et al., 13 East, 200.

In this case, however, while the fairness of it is impeached by the plaintiffs in error, yet on the record the object avowed is legal. It was to make travel free where it was before taxed, and the bridge, though remote from the changes desired in the old road, was still situated on the great line of travel over it, and not merely by color and finesse connected, and, from increases in population and business, seemed proper to be made free at the expense of the town or county.

Nor on the face of the record do the proceedings seem void, because the assessment may have been without a jury, when it was made by the legal officers, appointed for that purpose. 3 Peters, 280; 2 Dev. & Bat. 451, 460; ''Beekman v. Sar. Railroad,'' 3 Paige, Ch. 45. Nor void as made by the commissioners without notice, when the return states notice, and when there was a full hearing enjoyed by all before the court on the report.

Nor void because the compensation was too small to the corporation,-as it was assessed in conformity to law,-or too burdensome to the town alone to discharge, though the last might well have been flung on a larger number, like a county. 10 N. Hamp. 370; Tomlins, Dict., Ways, 2; 1 Rice, 392. Nor because the commissioners take a fee instead of an easement, when the legislature provide for a fee as more expedient. 2 Dev. & Bat. 451, 467. Nor because some of the property condemned was personal, when it was mixed with the real, and when real or personal, if needed and appropriate, may at times be liable. 1 Rice, 383.

With these explanations, I would express my concurrence in the judgment of the court.