Summary
IN EURO it.
Pursuant to the advice of this court, in the caso of The Hartford Bridge Company v. The Town of East-1 lar ford, 1⅝⅜16 Conn. R. 151-179. the superior court, at an adjourned term in April, 1845, passed a decree, restraining the defendants, under a penalty of 10,000 dollars, from ever using the ferry between the towns of Hartford and East-IIartfurd, and from transporting passengers across Connecticut river between said towns, and receiving toll therefor, unless on the happening of the contingency mentioned in the resolve of 1818, and from doing any act or acts in relation thereto, which would divert the travel from said bridge, to the injury of the plaintiffs. The defendants thereupon filed their motion that the record be transmitted to the supreme court of errors next to be holden in the county of Hartford, for a revision of the questions arising thereon, alleging, that the superior court erred and mistook the law, in proceeding to and rendering said final judgment; that the decree was erroneous, and that the injunction ought not to be granted. This motion being allowed, the defendants, now plaintiffs in error, made a more particular assignment of errors, in substance as follows : 1. Tit at said franchise of the ferries is admitted and alleged, by The Hartford Bridge Company, in their bill, as a vested right in the towns of Hartford and East-Harford, by elder grant; but the superior court has, by its decree, suppressed such franchise, and enjoined against its use ; and said decree is contrary to the constitution of the United States.
2. That said franchise is found, by the committee and by the court, to have been vested in said towns, by elder grant; and said decree, suppressing the same, is contrary to the provisions of the constitution of the United Stales.
3. That that part of said act of the legislature of Connecticut, passed in the year 1818, which purports to suspend, discontinue and suppress said franchise, and the prior grant thereof to the towns of Hartford and East-Hartford, and prohibiting the use thereof to either of said towns, is repug-tiaht to the constitution of the United States, and in violation thereof; and said decree upholds said unconstitutional provision, in derogation of said elder grant.
4. That said act of the legislature of Connecticut, passed in the year 1836, rescinding said unconstitutional prohibition contained in said act of 1818, is a renewed grant, recognition and confirmation of said elder title of said franchise, and is protected by the provisions of said constitution; but said decree abrogates and suppresses said renewed grant, whereas said court ought, by its decree, to have upheld the same.
5. That said act of the legislature of Connecticut, passed in the year 1842, recognizing and restoring said elder grant of said franchise, is a valid and constitutional grant to said original grantees and owners thereof; and said decree suppressing the same, is contrary" to the constitution of the United States.
6. That said act of the legislature of Connecticut, passed in the year 1841, purporting to repeal said act of 1836, was repugnant to the constitution of the United States, and void; but said superior court adjudged the same to be valid.
7. That said act of 1818 was intended, by said legislature, to prohibit the use of said franchise, by cither of said towns of Hartford and East-Hartford, except under certain circumstances, when such use was to be continued by said towns; and it was not intended to transfer the title from one of said towns to the other, and, whether void or not void, it cannot have that effect; and said court ought so to have decreed, and to have held, that said franchise continued to be vested equally in both of those towns.
8. That said act of the legislature of Connecticut, passed in the year 1836, with the consent and by the procurement of said towns of Hartford and East-Hartford, and said act passed in the year 1842, restoring said former act, were valid and declaratory laws, and enacted and declared, with the assent of said towns, that the one half of said franchise was vested in said town of Hartford⅜ and the other half in said town of East-llar ford; but said superior court adjudged said acts to be inoperative and void, and that said franchise was vested wholly in said town of Hartford.
9. That it was not material whether said ferry franchise was vested in one or both of said towns, as such prohibition and suppression thereof, by said act of 1818, would, in either ease, be equally repugnant to the constitution of the United Stales, and void, and destroy any title of The Hartford Bridge Company; and the superior court ought soto hare adjudged.
10. That The Hartford Bridge Company, in their bill, admit and allege a vested title to said franchise, by elder grant, in said towns of Hartford and East-liar ford, and allege a transfer of a moiety of said title from said Hartford to said East-liar ford, by said act of 1818, and aver a title in themselves, under said town of Harford, by said lease, as ferry owners ; which supposed title is the foundation of their bill, and is void ; and The. Hartford Bridge Company were, and are, incapable of taking or holding such title; and said superior court ought so to have decreed.
11. That the superior court, upon the facts alleged in the bill and found in the cause, ought not to have decreed said injunction, but should have dismissed the bill.
In the report of the former case, as it was then presented and discussed, it was deemed sufficient to state the facts found, with an abridgment of, or reference to, the documents. It now becomes necessary to state the principal allegations in the bill.
The plaintiffs, in their bill, stated, That from a very early period after the settlement of the town of Harforál, viz., anterior to 1080, a ferry existed and was supported, by said town, across Connecticut river, between the present towns of Harford and East-Harford, which ferry has, from its earliest history to the present time, been recognized, by the General Assembly of this state, as a ferry, which the town of Hartford was bound to support, and the emoluments of which it was entitled to receive ; that said ferry was, by said state, originally granted to said town of Harford, and was used and enjoyed by them, as their franchise, until 1783 ; that in that year, the town of Harford, comprising what are now the towns of Harford, East-IIarford and Manchester, was divided, and the two last-named towns set off as a new town, by the name of East-Harford; that in the charter of said new town, provision was made for the division of the town poor, and also of the property of said town ; that m such division, and as a mode of equalizing the property of the town, it was provided, that the privilege of keeping one half of said ferry should belong to the town of East-Hart ford, during the pleasure of the General Assembly ; the other half of said ferry, together with all the interest therein, subject to said privilege, being and remaining the property of said town of Hartford.
The bill then stated, that the plaintiffs were incorporated, by siid General Assembly, in 1808, among other things, for the purpose and with power to erect abridge across said river, at said Harford, and to build a causeway from the East end of said bridge through or across the meadows in said East-il ar ford, and on the completion thereof, to the acceptance of a committee appointed for that purpose, to demand and receive certain rates of toll, established by said General Assembly, for passing the same ; that the plaintiffs proceeded to erect, and did construct, a bridge and causeway, under and by virtue of said grant, to the acceptance of said committee, and received tolls, as they were authorized to do, until March, 1818, when said bridge was so far damaged, by a flood, that it became impassable, and had to be re-built; that in the construction of said bridge and causeway, the plaintiffs expended a sum exceeding 98,000 dollars, and up to the period of said injury, had received but a small percentage on their investment.
The bill further stated, that by said charter, it is provided, that whenever the tolls shall reimburse to the company the expenses of building and repairing said bridge and causeway, and the expenses of lighting, &c., with an interest of twelve per cent, per annum, then said bridge, and causeway, and rates of toll, shall be subject to the regulations and orders of the General Assembly.
The bill then set forth the provisions of the resolve of 1818, and averred, that the contingency therein mentioned as an exception to the discontinuance of the ferries, had never happened ; that said bridge was thereafter repaired by the plaintiffs, the piers raised, a draw constructed and the causeway raised and repaired, in conformity with said resolve, and to the acceptance of the commissioners, at an expense of 30,000 dollars ; that from that time to this, injuries have accrued to said bridge and causeway, by means of floods and ice, by which further and heavy expenditures have become necessary, and have been made by the plaintiffs; and that ^ave not received six per cent, per annum upon their capital invested ; that the plaintiffs have, from the passing of gajj regojve jn jgjg t0 (jate of this bill, taken tolls at said bridge, and at the rates prescribed by the General Assembly, and have, at all times, conformed to the provisions of said resolve, and to all other regulations of said Assembly ; that said bridge is, and always has been, very commodious, and abundantly adequate to all public travel; and that subsequently to said resolve of 1818, the town of Hartford released to the plaintiffs all their interest in the ferries between said towns, which interest now remains in and belongs to them.
The bill then averred, that notwithstanding the prohibition so made by the General Assembly, and the pledge by the state so given to the plaintiffs, that they should enjoy and have right to all the travel, for the support and maintenance of said bridge, and the fulfillment of the contract on the part of the plaintiffs, and that said Assembly did, in 1818, express their pleasure that the privilege of keeping one half of said ferry by the town of East-Hartford should thereafter forever cease, and did thereby revest the entire interest in said ferry in the town of Hartford; yet, that the town of East-Hartford has, at sundry times, and during several successive seasons, to wit, from September 1836, to June 1841, occupied said ferry, and constantly, during said period, transported passengers across said river, at the places where said ferries had been previously by law established ; that said town of East-Hartford, claiming, as the plaintiffs are informed and believe, that the resolve of 1818 is unconstitutional, have again, within a few weeks past, commenced the transportation of passengers and property, by a horse-boat, across said river, and are receiving tolls therefor, and intend, as the plaintiffs believe, to run said boat until restrained by law; that the town of East-Hartford, since they commenced running said boat, have received more than 11,000 dollars, as tolls, from persons and merchandise transported across said river, all of which have been taken from the plaintiffs, who, relying on the faith of the state, have expended more than 128,000 dollars on their works, and to whom there is now due more than 200,000 dollars, to make their dividends equal to what was guarantied to them by the state, before the leg* islature would do anything to diminish their receipts, and who are liable, every spring, to have their entire bridge swept - from them, in a moment.
The bill was dated and served, July 4th, 1842.
It should be borne in mind, that the facts found in the cause, as stated 16 Conn. R. 152 — 163. including the acts or resolves of the General Assembly, passed in October, 1783, October, 1808, May, 1818, 1836, 1841, and 1842, and other documents, are now, as then, part of the record. One of the documents appended to the report of the committee, and which is a part of the case, but was not mentioned in the statement of the reported case, because nothing was then claimed from it, ought now to be stated. It is a copy of certain votes of the town of Hartford, passed on the first Monday of December, 1835, in the following- words:
“Voted, that the increasing population and business of the town, require every reasonable facility of communication with it, and, that all. unnecessary obstructions or burdens on the intercourse with the city, are detrimental to its growth and prosperity.
“ Voted, that the act of the legislature in 1818, discontinuing the ferry, obtained by the exertions of the Bridge Company, in direct opposition to a vote of this town, was unreasonable and unjust, and injurious to the interests of Hartford., inasmuch as it deprived the inhabitants of this town and East-Harford of their interests in tire ferry, without compensation, subjected - our citizens to double the toll they had been accustomed to pay on crossing the river, and conferred on a private company, the enormous and dangerous monopoly of the entire intercourse with this city from the country East of the Connecticut river.
“ Voted, that the representatives from (his town in the next General Assembly, be, and they are hereby requested to use their exertions to procure the repeal of the aforesaid act, and the restoration of the ferry.”
contended, 1. That the legislature cannot divest itself of the right or power of eminent domain, nor restrain itself, or its successors, in the exercise of it. In the first place, it is a portion of the sovereignty of the state, vested in the legislature, by the constitution, subject to one restriction only, that of compensation ; and it is necessarily, and at all times, the same identical power. It can neither be diminished nor enlarged, by the legislative body; since that would be an alteration of the constitution. For the same reason also, for which it is granted to the depositary, it must be preserved entire, to answer equally at all times the ends of government. Secondly, this power, though it may not be restricted, may be exercised ; and in the exercise of it, a grant may be made of an exclusive right, which of itself becomes property; is subject to the same sovereign right of eminent domain, by a necessary exception implied in every grant; and it may be taken, in whole or in part, upon the condition of compensation. Piscataqua Bridge v. Aew-Hampsltire Bridge, 7 N. Hamp. R, 35. Thirdly, a covenant, contract or enactment, restrictive of the right of eminent domain, would be inoperative against future legislation. Should land be granted with a covenant that it should never be taken for a fortification, a road or any public use, the restriction would be inoperative. A covenant that no road, bank, bridge or ferry, should hereafter be granted in the state, when public convenience and necessity should require it, would be void, as against a futme grant. Fourthly, the distinction is between a grant, which confers property, and is subject to the right of eminent domain, and a covenant or contract which cannot be violated, either with or without compensation. If a covenant that there should be no road, no bridge, no ferry, hereafter granted, be valid, then none can be granted, whatever the necessity, because compensation does not authorize the breach of a contract,
2. That the act of 1818, so far as it inhibited the ferry* was a mere restrictive enactment, which could not deprive a future legislature of the power of establishing it, whenever, in their judgment, the public convenience and necessity should require it. In the first place, it was not the grant of a bridge within exclusive limits, including the ferry. The plaintiffs below had no exclusive grant of a bridge beyond the abutments. The legislature might cover the river with bridges, on both sides, at pleasure. Secondly, it was not the grant of an exclusive ferry right, within certain limits, including the former ferry. The legislature could, at any time,. grant to individuals or incorporated companies as many ferries as they should please, on either or both sides of the , bridge. Thirdly, it was not a grant of the tolls collected at the ferry, or any portion of them ; because if they are not the propei'ty of the former grantees, the legislature can, at any time, grant them to a new ferry company, or bridge company, or to individuals. Fourthly, it was not the grant of the franchise of a ferry, or the franchise of a bridge. The company did not ask either. They had already the franchise of a bridge, and were bound to build and repair, in the mode required. The obligation was already upon them. They were authorized to change their tariff of tolls, which they might do or not do, at pleasure. The object of the act was, to abolish the property of Hartford and East-liar ford, as their petition to the General Assembly and the act itself will fully show. Fifthly, an enactment that A or B shall never have a ferry, or receive the grant of a ferry, which the legislature may grant to any body else, is not a grant. It does not confer a franchise. It does not create property. It confers nothing. It is nothing but a partial and arbitrary restriction of the power of eminent domain, in reference to its future grantees or its future agents.
3. That the bill is insufficient to sustain an injunction, by the plaintiffs below, as ferry owners. In the first place, they have no capacity. Secondly, they have no possession. 7 Conn. R. 50, 51. 53, 54. Thirdly, they have not been disturbed in the use of such franchise. Fourthly, the supreme court say they could not claim as ferry owners. 16 Conn. R. 171.
4. That the bill is insufficient to sustain an injunction, by the plaintiffs below, as bridge owners ; because it admits the prior ferry title, as a vested right, in language as explicit as can be used. In the first place, it admits the date of the title to be anterior to 1680. Secondly, that its origin was a grant, by the state, to the town of Harford. Thirdly, that the right was protected by user, ab origine. Fourthly, that it was divided between the towns. Fifthly, that it was held as property afterwards, at all times. Sixthly, that it was always recognized as such, by the General Assembly. Seventhly, the supreme court, on this bill, held it corporate property strictly. 16 Co,mi. R. 172. Eighthly, the court held the tolls collected at the ferry, to be property. Ninthly, that the act of 1818, transferred a portion of them to the Bridge Company. Tenthly, that thus transferred, they are protected, as property, by the constitution of the United States. It is impossible, therefore, upon this bill, to make any question whether the franchise of a ferry was private property absolutely vested in the grantees.
5. That if the franchise be a vested right, it is impossible to say, that the act of 1818 suppressing it, is not void. In the first place, it is in violation of a contract in resuming a grant. Secondly, it takes private property for supposed public use, without compensation. Thirdly, it takes the property of one corporation, and gives it to another. Fourthly, the supreme court held the taking away of the same tolls, as constructively granted, to be unconstitutional, in this very case.
8. '|'hat the plaintiffs below have no title. The title is out of them, both upon the bill, and upon the facts in the case; and either objection is fatal. They must recover, by the strength of their own title, not by the weakness of the defendants. If the act of 1818 terminated the right of East-liar tf or d, it vested the whole right in Hartford; and whether the whole right be in one or both, it is equally fatal to the title of the Bridge Company. If the right exists in either or both, it necessarily excludes the adverse right. If the right exists, there can be no right that it shall not exist. It is not, therefore, necessary to enquire whether, upon the partition of the ferry property in 1783, the tenure could be altered ; nor whether it be, or be not, against the express words, the avowed object and the plain intent of the act of 1818, to suppose it transferred the whole title to Hartford; because, be the result either way, the effect is precisely the same — to exclude any title in the plaintiffs.
7. That the case goes much further. The original title is revived or disembarrassed, by force of the acts of 1833 and 1842 ; which are constitutional and valid laws. In tiie first place, if the franchise of the ferry was a vested right, as admitted on the bill, the acts restoring it are free from all objection. Secondly, if the restriction of the act of 1818 was inoperative against future legislation, as already shown, then these acts were valid.
8. That if these acts were within the proviso of the act of 1818 reserving the legislative powers, then they are valid, notwithstanding the clause in the act of 1808, providing after reimbursement, with 12 per cent, interest, the bridge, the causeway and rale of toll, shall be subject to the orders of the General Assembly, except in a certain contingency. In the first place, this clause did not secure the Bridge Company against a diversion of tolls, by means of a ferry or a bridge. It did not so qualify the proviso, or the act of 1808. Notwithstanding the act, the legislature might divert the tolls, by as many bridges or ferries as they should see fit to grant. The right of the legislature to divert the tolls by bridges or ferries, remained complete, perfect and unlimited. This was settled in the case of the Charles River Bridge v. The Warren Bridge, 11 Peters 420. Secondly, the supreme court held, that it did not secure the bridge, or causeway from legislative interference, though expressly named. Thirdly, the utmost effect that could be given to the inference derived from the language of this clause, is, to secure the rate of tolls from alteration. Fourthly, a mere inference must yield to an express enactment. Fifthly, it is the office of a proviso to qualify the body of an act; and so the court held in reference to the bridge and causeway. Sixthly, the proviso reserving legislative power, is to be construed liberally in favour of the reservation. Seventhly, a reference in the proviso of 1818 to the act of 1808, could not annex to the proviso a restriction which is not in the act referred to. Eighthly, expressly reserved legislative power, cannot be taken away, by inference. Charles River Bridge v. Warren Bridge, 11 Peters, 420.
9. That these acts effectually declared the ferry right tobe in East-Hartford, or restored it, by a valid enactment. In the first place, the act of 1836 is essentially a declaratory law; and in effect declared the title not to have been transferred to Hartford-, and enacts, that the title is vested in both towns. The repeal of the suppression leaves the title in its former state, and proceeds on the ground of its continuance, notwithstanding the former act. Secondly, if the act of 1818 is to be regarded as transferring the title from East-Hartford to Hartford, the act of 1836 restored it, with the consent of Hartford, expressed in the vote and instructions directing her agents to procure it to be done. Vide the vote of the town of Hartford, passed on the 1st Monday of I)e-cember, 1835. Thirdly, The Bridge Company could not object that the act of 1836 transferred the title from Harford to East-Harford, They had no interest in the question, whether the title was in one or both. It did not concern them. Fourthly, even if the only party interested, the town of Harford, had objected, instead of consenting and procuring the act to be passed, the legislature had the undoubted power to pass a declaratory or retrospective law to the effect that the title of East-Harford was not terminated or transferred, but suspended only, and now revived again.
contended, in answer to the first and second errors assigned, 1. That it was not alleged in the bill, nor found by the committee or court, that the town of East-Hartford, ever had any interest in the ferry, except at the pleasure of the General Assembly ; and that town had. in fact, no other interest. 16 Conn. 11. 172. Windham v. Portland., 4 Mass. R. 384. Hampshire v, Franklin, 16 Mass. R. 76. Union Baptist Society v. Candía, 2 N. ITamp. R, 20. New-Chester v. Bristol, 3 N. Hamp. R. 71.
2. That, as to the 3rd, 6th and 9th errors assigned, the acts of 1818 and 1841 were both, in respect to the town of East-Hartford, valid, and not opposed to the constitution of the United Slate's. Bank of Hamilton v. Dudley, 2 Pet. 526. Clark v. Ellis, 2 Blacl.f. 8. Sinclair v. Jackson, 8 Coit'cn, 543. Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Pel. 257. 16 Conn. R. 171.
3. That as to the 7th error assigned, the act of 1818 was intended, in respect to East-Hartfoi <7, to abolish the right to continue the ferry, except upon the contingency therein mentioned, and had that effect. See the cases cited under the last head.
4. That as to the 4th, 5th and 8th errors assigned, the acts of 1836 and 1842 neither constituted any new grant or confirmation of any older title, nor was either of them a declaratory law, in form or effect. Both of them were, in respect to the Harford Bridge Company and the town of East-Harford, repugnant to the constitution of the United States, and void. Dartmouth College v. Woodward, 4 Wheat. 518. Mien v. McKeen, 1 Sumn. 216.
5. That as to the 10th error assigned, it is to be observed, in the first place, that the plaintiffs below set up no vested title in the town of East-Hartford. Secondly, they alleged, and the committee and the court have found, a good title in them, as against the town of East-Hartford, independently of any title derived from the town of Hartford. And thirdly, they alleged, and the committee and the court have found, a good title in them, as against the town of East-Hartford, derived from the town of Hartford : and if the acts of 1836 and 1841 were, in respect to Hartford, unconstitutional, East-Hartford could take no advantage of it. See the cases cited under the second head.
6. That the 11th error assigned, is equally groundless. In the first place, the decree is in precise conformity to the decision of the supreme court. 16 Conn. R. 151-179. Will the same court now reverse that decision? But secondly, the assignment is too general, and cannot be regarded by the court. Reg. Gen. 9 Conn. Ii. 452.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
