Summary
This case was brought up'by writ pf. error, under the 25th section of the Judiciary .Act, from the Court of Appeals for the Western Shore of Maryland.
The facts were these:—
On tire 4th of June, 1836, (Laws of Maryland, l835j chap. 395,) the legislature of Maryland passed an act entitled “An act for the promotion of internal improvement,” by which , subscriptions were directed^ to. be made, on certain terms, to the capital stock of the Chesapeake and Ohio Canal Company, and Baltimore and Ohio Railroad Company, to the amount of $>3,000,000 to each company. The conduct pf the- canal company having, no bearing upon the question involved in the present suit, it is not riecéssary to notice, any further tire parts of the law which related to it.
A part of the 5th section of the act was as follows';
, “And the said treasurer shall not make any payment-aforesaid.' for subscription to the stock of the Baltimore, and Ohio Railroad Company, until after a majority of the directors appointed therein . on behalf of this state shall have certified to the treasurer in .writing, supported by the oath or affirmation of a majority of said directors,, that they sincerely jbeliéve in their certificate and statement, that, with the subscription by this act authorized to be made to said com* pany’s stock, and with the subscription which the city, of'Baltimore may have made by virtue of an act, passed at ¿December session of the yeár eighteen hundred and thirty-five of this Assembly, or that independently of any subscription by any other public authority than the. city of Baltimore, as aforesaid, and of the cities of Pittsburg and Wheeling, and exclusive of any. loan, secured to it, exclusive of all future profits and debts' due by the company on interest, the said railroad company in their opinion have funds sufficient to complete the said railroad from the Ohio river, by way of and through Cumberland, Hagerstown, and Boonsborough, to its present track near to Harper’s Ferry; and it is hereby declared to be and made the duty of the said company to, and they shall, so locate and .construct the said road as to pass through each of said places; which certificate of said directors' shall be accompanied by an estimate or estimates of one or more skilful and competent engineers, made out after a particular and minute survey, of the route of said road by him ■or them, and verified by his or their affidavit, showing that the whole cost of .said work will not he greater than the amount of' funds'the said directors shall certify to have been received by said company, and applicable to the construction of the-saidroad': 'Provided, That if the said Baltimore and Ohio Railróad Company, shall not-locate the said road in.the manner provided for in this act, then, and in that case they-shall1 forfeit one million of dollars to the state of Maryland for the use of Washington county.”
This act was accepted by the railroad company, .in a general meeting of stockholders, and information thereof communicated to ■ the governor, on the 26th of July; 1836. ■
On the 24th' of September, 1836, the treasurer made his subscription of. $3,000,000 to the capital stock of the company.
On the 1st of October, 1838, a majority of. directors,on behalf of the state gave the .certificate and statement required by the act.
. The railroad company having finally located, and being' in the act of constructing their road, without the limits :of Washington county, within'which Hagerstown and Boonsborough are situated, a suit was brought in. Frederick county, Maryland, in February, 1841, in the name of the state of Maryland, for the use of Washington county against the railroad company in ah action of debt to recover $1,000,000.'
In March, 1841, the legislature of Maryland passed an act in which they say, “ that so much of the 5th section,of the act of 1835 as makes it the duty of the Baltimore and Ohio Railroad Company to construct the said road so as to- pass through Hagerstown'and Boonsborough, be and the same is hereby repealed; and that' the for- . feiture of one million of dollars reserved to the state of Marylánd as a penalty, in case the said Baltimore and Ohio Railroad' Company shall not locate the said road' in the manner provided for in that act, be and the same .is hereby remitted and released,- and any suit instituted to recover the same sum of one million of dollars, or any part thereof, be and’the same is hereby declared.to be discontinued and of no effect.” .
. In October, 1841, the defendant pleaded the general issue, and set forth the above act.
’ In February, 1842, the case came on for trial, upon the following agreed statement of facts:
It is admitted in. this case, that the commissioners of Washington . county, the parties at whose instance this action was instituted for the use .of Washington county, were at the time of institution of this suit, and still are a body corporate,'duly elected and organized, ■under and by-virtue of the act pf Assembly of Maryland of 1829, chap. 21, and its supplementary acts. .It is also.admitted that the defendants are, and'were at the institution of this suit,'a-body corporate, duly- existing under and by virtue of the act of Assembly of Maryland of 1826, chap. 123, and its supplementary aets. It is also'admitted that this suit is brought at the instance of said commissioners of Washington county to recover,, for the use of said county, the $1,000,000 which they allege to be forfeited to .the said. state, for the use of said county, under the provisions of the 5th section of the act of 1835, chaps 395; and it is admitted that the said defendants have not, and had not at the institution of-this suit, constructed or located -their .road from the Ohio river, by way of and through Hagerstown and Boonsborough, to the track of said road at-Harper’s Ferry, as the same existed at the time of the passage of the said .act of 1835, chap-. 395; but, on the contrary, had at the institution of this suit finally located, and ■ are, were then, and are now constructing their said road' by a different route, ánd -without the limits of Washington county, within which the said Hagerstown and Boonsborough are situated. It is admitted that the' said Baltimore and Ohio Railroad Company, in general meeting of the said corporation, did accept, assent, and agree'to the several provisions of die said act of 1835, chap. 395, and did duly communicate their said approval, assent,, and agreement, under their corporate seal and the signature of their president, to, the governor of this state, in the manner and within the time prescribed by the said act; which approval, assent, and agreement, together with the report of the engineer of the said railroad company, which was required by the said act t •
5. That to take away-this ■ right from Washington county would be inequitable, unju.st, and contrary to the first principles of the social compact; and therefore the act ought to be so construed, if possible, as to avoid that result; and it may be so construed by confining its operation, to whatever right the state had, if any. The state might release her own power over the matter, leaving in Torce the right of the. county.
6. If otherwise construed, it is repugnant to the state constitution, and void.
7. In the same view, it is repugnant to the constitution of the United States,' and void.
And then said—
This suit is brought in the name of the state of Maryland, to recover $1,000,000, which is claimed by the county, under the provisions of the 5th section of the. act of the legislature of (Maryland, at the session of 1835, chap: 395, which are substantially set forth in the declaration.
It is maintained, to support, the claim of the plaintiff, that the whole act constituted a contract between the state and company; and the 5rh section a part of-said contract, in which the county is a. party beneficially interested.
The provisions of the 1st section of the act are in the very terms of contráct, and embrace the 5th section as well as the rest of the law: “ If the railroad company shall approve, assent, and agree to the several provisions-of this act so far as they are applicable to said corporation,” &c. The approval, assent, and agreement of the company were given as provided for by the act, and that agreement gave vitality to the whole law.- The state offered, and the company accepted the oiler, on mutual considerations. It was the congre-galio mentium, which is of the very essence of contract.
. The case stated shows that at the time of commencing this suit, the road-had been located out of the limits of Washington county, and that, under’ the .law, the company was liable to pay the money.
But the defence- relies on the act of 1840, chap.' 260, which undertakes to repeal the provision of the. act of 1835, chap. 395, under which the claim is asserted; and the question is, whether that act.of 1840 violatés the 10th section of the Constitution of the United States.
The first aspect in which the question is to be examined, is, whether the 5th section is part of a contract at all, or only criminal penalty, which it is maintained to be by the defendant. We maintain that it is not only contract, but that it could, have no operation as criminal penalty.
What is a contract? Chitty on Contracts, 1, &c.; Canal Company v. Railroad Company, 4 Gill & Johns. 128,&c.
The Court 'óf Appeals say, we must look to concurrent legislation, to find the meaning of-the. 5th section;, and refer to the actof-1840, chap. 260,. which uses the term “penalty.” But could, the act of 1840, after the suit was brought, alter the character of the thing ? If it was contract when the suit was brought, the act of 1840 could not make it criminal, penalty.. • The legislature could not stretch the shoe or contract it, and make the previous law'mean one thing or another, as they might chor se to .call it, and when they had a manifest motive in endeavouring to'.alter'its' character.
Concurrent legislation, prior to the act of 1840, proves that the legislature understood it as contract, and nothing, else. The act of 1826, chap.-123, sect. .14, which was the original charter, authorized the compány to '«iter upon any lands for a location* Afterwards, by the act .of 1827, chap. 104, sect. 3, the legislature thought proper to restrict the company to a location within Frederick anebWash-ington counties, but did they do it by a criminal enactment? No, They knew they could not do that, and they entered -into a distinct contract for'the purpose! Stress is laid hy the other side on the fact that the terms of contract are used in the same section of the' act of 1827, which makes' the restriction; and the inference is deduced that if the 5th section" of the act of 1835 were intended, to be contract, the terms of contract would have been used in that section' also. But the important fact is entirely, overlooked, that' the words ' of contract, in the first section of the act of 1835, embrace the whole .act; whereas; in the act of 1827, there were no such general words of assent and agreement' to the whole act, but they applied only to the respective sections.
The Court of Appeals refer to the 9th section of the act of 1835, and-say . that, inasmuch, as'1 a special contract was required to be made by that section,’therefore the legislature could not have intended' to make the 5th section contract. This construction cannot be justified. It would involve the construction that many of the most ■essential stipulations of the company are not. its contract, because the particular ..sections in which they occur do not require other special contracts with reference to the same. The 9th section required a -distinct contract, in order that if the state' should' ever have occasion to sue on it,'the suit should not be embarrassed by all the Various matter embraced by the law. It was an arrangement of convenience. When the company agreed to the law, and accepted the same, it was under contract to fulfil the 9th section by an additional contract. That section was a contract, to be performed by entering into another contract; and'it was as much a contract as the subse- ■ quent contract would be such, after it should be entered into.
■ There are thousands of instances of this, where contracts are in part, ;or the whole; to be performed by entering into other contracts.
. The right to choose a location was a vested franchise of the company, its property, which the .legislature of Maryland had no right to interfere with by a criminal enactment. . Canal Company,n. Railroad Company, 4 Gill. & John?.- R. 144. The obligation to go through Frederick and Washington counties,, under the act of 1827, was released by the act of 1831, chap. 251;. and the company stood un-trammelled, without any power.of control by the legislature. Their , contract or agreement was absolutely essential to .bind them down to any particular Ideation. The 5th section, in any other sense but contract, is á dead lettér.
It has been asked, suppose the act had said' that the company should be liable to Washington county in damages, would that be .contract? And again, that if the,road should leave the prescribed, points it should be á misdemeanor, would that be contract? It is submitted, that it would be, iii both eases. The courts have said, . in die authorities I have read, that the right to choose a location is the property of the company, and it could be liable neither for da- . mages nor a misdemeanor, for using properly its own property. . It might contract to use its property’in-a certain way, and if nothing be' said about damages for the breach, a liability for.such damages’ is implied in every contract. To declare-, in express terms, what is implied in every contract, certainly would not vitiate it. private - individuals,could not contract that the act of one should be ¿ .misdemeanor, buC a misdemeanor is an offence, against the state,, and surely a party who has an absolute right'to do a thing, independent of legislative control, may contract with the . state that he 'will not do ' it,' and if he does, it shall be a misdemeanor. , A state may do many things,'in the way of contract, that an individual cannot do,- for there is 'no public policy to restrain her, nothing but the written Constitution.
There is another kind-of penalty which is the penalty of a contract. ' This is not such a case, but ft is the actual contract, of the party to pay the million, in the event which has happened.. 2 Pothier on Obligations, 86, &c.; 93, 94, 95, 96; 7 Wheat. 18.
Washington county had. a good subsisting intérest-in.the contract. If any consideration were necessary to sustain, the úse, it amply exists in the moral obligation which the state owes to the people to protect their interest an.d nourish their prosperity.. The Court of Appeals say,, that, “as a county, she stands to the state .in the'relation of a child to a párent;’-’ and this would furnish consideration - enough. Green v. Biddle, 8 Wheat. 151; Lloyd v. Spillét, 2 Atk. 149. _ - ' .
_ But no question of consideration can arise here, as the acceptance and contract of the company is under the solemnities of a seal, which implies a. consideration.
No consideration is necessary. Dartmouth Coílege case, 4 Wheat.. 698; 3 Story on the Const. 257,258; Camigan u. Morrison, 2 Met-calf, 396; Willis on Trustees, 216; Cooker v '. Child, 2 Levinz, 74; 4 Kent’s Com. 307, and cases there referred, to.
The sovereigfity of a state is above the restrictions of the common law and' the statutory law. They must all yield to the -sovereign will; and what would be necessary to the contract .or grant of an' individual would by no means be necessary to the" same things of a state.
Even though Washington county had been ignorant of the provision in the law, made for her benefit at the time of its passage, she could have availed herself of it; and she did affirm it when she-instituted the suit, if not before. 4 ^Kent’s Com. 307, &c.
The use declared in the-act of 1835 ought to be as sacred as any other right of ^property. It is property to the county. It is vested under the law of the state. It vests undér the same sanction which secures to a citizen his estate. It is an interest in a contract, vested under the sacred sanction of the law, and is inviolate under the Constitution. . .
. The county enjoyed -great advantages before the construction of this road-. One of the greatest thoroughfares in -the country, (the • great national road)' passed for fifty'-miles through her territory. Twenty four-horse stage-coaches, filled with passengers,.daily passed over the road, and it was constantly, lined with immense wagon-'teams, travelling to and from the greát west. All these people and horses had to be fed. '. It made a'most profitable market for our farmers. Houses were built all along the road, to accommodate the cus--tom. ■ It is now all gone. The farmers lose the profits of their provender and marketing; • the whole country feels the depression; and the house's which were a few years ago comfortable inns, and profitable'to their proprietors, are going to decay, a dead loss. The mil- . lion we seek to recover can never indemnify the county for the injury ', she has sustained.
Maryland was about to apply large sums to the construction of this great workj (the Baltimore and. Ohio Railroad;) the means were to be obtained in part from Washington county; and could any more cruel injustice be conceived than for the state to appropriate the .money of the. people, and pledge the. property of Washington county, for the construction of a work which would take from the county all-the benefits it enjoyed? Surely every principle of justice-and moral cluty required'that the state should protect the county;', and the stipulations'of the 5th séction were no doubt intended for that.
The state was a mere trustee after the contract was made, and could not deny to the county the right' to use her name in bringing , the suit.. Payne v. Rogers, 1 Dpug. 407; Carter & Moore v. Insurance Company, 1 Johns. Ch. R. 463 ; Green v. Biddle, 8 Wheat. 89; Kiersteád v. The; State, 1 Gill & Johns. 246.
It has been argued, by the • other side, that the state has entire control over the corporation of Washington county, and can destroy it at her pleasure. We admit that the legislature has absolute control-of the politicalpowers of a -political corporation, to amend, or modify,, or repeal them. But as long as the corporate organization continues, the county is as capable of taking .as a natural person, and its contracts are equally protected. The act of 1829, chap. 21, sect. 3, incorporates the commissioners of Washington county, and enables- them, to hold all kinds of estate. The Constitution made no distinction in the classes of contracts whose obligation was forbidden to be ■ impaired, but. protects those made by corporations equally with' those .made-, by individuals. Green v. Biddle, 5 Pet. Cond. Rep. 390.
The right of a legislature -over charters does not imply-a right to •the property held under those charters. 9.Cranch, 335; 16 Mass. Rep. 84,-85, 86 ; 2 Kent’s Com. 275, 3d ed.
’ Nelson, attorney-general, for defendants in error, referred- to and commented on the various laws of Maryland respecting the railroad company, and said, that the only question in the case was, whether the act of 1840 was.valid and legitimate. Upon this point three propositions could be-stated—
1. The proviso in the-preceding act, which declares a forfeiture, .imposes it as a penalty.
' 2. If it be a penalty, the legislature had a right to remit it, and did remit it. ,
3. If the stipulation in the 5th section of: the act of 1835 be a contract in its natvire, thg legislature was competent to release it, and did so. '
1. Is the proviso a contract or mere penalty ? This must be answered by a reference to the terms of the act, to the circumstances under which it was passed, and to acts in pari materia. Let us examine each. The 5th section prescribes, a duty to be performed by the railroad company. It says, “ It shall be the duty of the company,” and -the pérformance of it is sanctioned by a forfeiture. The .language is not that they shall pay if they fail to comply, but that they shall forfeit $1,000,000. What is a forfeiture ? It is a penally. ' imposed by a superior power for an omission to perform a duly; The terms of the act, therefore, mean a penalty by denouncing forfeiture as a punishment. .The act-of 1837* 4th section; contained an offer to -the company,, which was not accepted ; but -its' language-is, that it -shall-." not be construed to repeal the forfeiture to Washington county.” The-act of 1840 contains the same idea; it remits a forfeiture. .Tn the act of 1.835, different expressions are used in the 7th and 9th sections, where it is declared that “the company shall bind ■ itself by an instrument to. pay,” &c.- •; and in the 14th section, where the duty of providing transportation Is imposed upon the -company, they are made liable, to: an. action by any party aggrieved. In the ,5th' section, it is not the less a penalty because the amount is ascertained. If the legislature meant the obligation in the 5th section to rest on contract, can it- be accounted for that they did not use the appropriate terms, when they did so in the 7th and 9th sections? It has.'been said, that the railroad company assented to the act, and that it thus became a contract. But the assent ■was given to the áct ás it stood, with thé penalty in it. Assent to it did not change a penalty into a contract. The'act of Virginia contained penalties for wronging persons, but by' accepting this 'the company left- it optional with the proper authorities of Virginia ■whether to enforce the penalties.or not.
. 2. If it be a penalty, has the legislature the power to.release it? Whether injustice was or was not done -to-Washington county, was a question for thé legislature-to decide, but not for this courtj which, must Jus dicere, and not jus dare." In England, the king cannot re- , mit a penalty where private rights are involved^ but parliament can. 2 Black.' Com. 437, 446; 1 Wm. Black. Rep. 451.
■ Where a forfeiture is imposed by act of. Congress, arid the law expires, the forfeiture cannot be enforced, although there was a judgment below. ' 1 Cranchj"l04; 5 Cránch, 281 ; 6 Cranch, 203, 329.
Decisions in the different' states are'- uniform on this • poipt. 2 McCord,- 1; 2 Bailey-, 584; 1 Missouri, 169'; Breeze, 115; 1 Murphy: 465; 1 Stew. -Ala. Rep’. 346; Allen, N. H. 61; 4 Yeates, 392.
It is clear, therefore, that if this provision is in the nature of-a penalty, the law of 1840 is valid. ,.
3. Suppose, however, that the stipulation is in .the nature of a contract, had the legislature power to release it ?" • The act of 1840 professes to release it, whether it be contract or penalty. It is not denied that a state may make a contract, and if,,she does, that she cannot break it. The Constitution intended to protect private property, whether of corporations or individuals. Is Washington county such a'person ? - We say, that she can have-no'interest se--paraté froiri the state. She is a compofient part of Maryland, and is' separate only for the purpose of. executing the sovereign'will of •the state. The distinction between public and private corporations must exist in such “a case, if it exists at all; In 1804 the Levy Court was incorporated, the, justices of which were appointed by the state, but they had no. power to levy taxes, nor any other power, except that which was conferred upon, them bylaw. In 1839, commissioners were authorized by law to' supersede the Levy Court, with the same powers. They cannot be the cestui-.que use of the state, for they had no authority to accept such a use, and could not appro-Ííriate the money, if it were given to them, The state could pass a aw, directing the puipose for which it should be expended, and even order it to be paid over to the railroad company. Maryland can abolish Washington county. Suppose, that on the day after the forfeiture the county were to be. annihilated or broken up, and partitioned amongst the adjacent counties, what would be done with the funds- on hand ? It would be for the state"to prescribe their direction.. . 9 Cranch, 43, 52, 292.
If the distinction between public and private corporations be that interests are protected, all are protected, because there can'be no .litigation without interests. 4 Wheat. 629, 630, 659, 660,693, 694; 13 Wend. 325, 334,. 337.
Was a right of action such, a property as,is protected? The penalty was' never reduced into possession, and the state had a right to defeat die remedy when it was sought by a suit in its own name. All the points in mis case are covered by 1 Missouri Rep. 169. Counties are public corporations, and can be .changed or modified at the pleasure of the state. Breese, (Illinois Rep.) 115.
In the case of the town of.Pawlet private interests were involved; it was.not intended to throw the shield of protection over public property. The public may do what they please with their own. A legislature cannot repeal a charter, and take the property of individuals but if you refuse to it the power .to control- public funds, you strip it of a useful and legal authority.
Jt;Jphnson-argued upon the same side, but of his argument the Reporter has no notes.
in conclusion, stated thé tacts in the case, referred to the acts of Assembly, and then argued that the proviso in the act of, 1835 was not a;penalty. 'There was añ alterna-? tive, an option' given to the railroad company, either to make the road as directed* or to.pav the money. The nature of the proviso was perfectly understood by the legislature. The previous part of the law enacted, that the company should pass.through three towns. Had the- law stopped there, the obligation would have been complete, under the penalty, as it is said by the other side, of forfeiting their charter. But the proviso makes a difference. If the company choose to pay the money, théy may decline to obey the enacting clause. The difference between a law and an. agreement is, that the one is binding absolutely, and the other not without an assent. But here the company were required to signify their assent to the law, which shows that the legislature thought they were making a contract. When a state becomes a contracting party, she acts with no higher power than an individual, except that sometimes persons are made able to contract who would be unable, without the assistance of legislation. A confusion arises in some cases from the same power making laws and contracts; and the different mode of action must.be steadily kept in view. A treaty is binding, and yet there is no exercise of a legislative power. In the'case before us, the company were not bound to adopt any certain route. All that the legislature said was, that if they did not agree to pass through the three towns, they should hot have the subscription of $3,000,000. It makes no difference, in a legal point' of view-, whether it,was or. was not difficult to construct the road along that route. This circumstance did not alter the contract. If they had -agreed to pay the $1,000,000, the legislature could not haVe compelled them to pass through the towns.
•The act of 1840 does not declare what that of 1835 was, but professes to annihilate it. • But the legislature cannot do this. They cannot even construe the. law, which'is the peculiar próVince of a court. There is nothing in this disability derogatory to the dignity of Maryland, because it is common to all the states. Courts may look at acts which are in pari materia, but the' examination is only to guide their judgment, and not because the .legislature has a right to construe a contract already-made. When the Constitution of the United States protects ' contracts, it means that they shall, be defined and construed according to received and settled principles; there is no exception of implied contracts or those made by states or corporations, public or private. Public, corporations have a right to m'ake contracts and to sue, and there-is no exception of a penalty by contract, such, for example, as a bond. This court has always acted up to the letter and spirit of the Constitution,' and it is a subject of -rejoicing that its opinions have found their way into the hearts of the people, and become guides of action. ■, In a convention of the people of Pennsylvania,'which met not long.since,' an argument addressed to that body,, founded on the decisions of this court, settled a question which had been miich-debated. It isa principle that contracts must be interpreted by the judiciary, and this is equally true of contracts made by individuals or states. All . the incidents of contracts are protected also, and' ho equivocation or subterfuge will be. allowed. The only distinction which can be made amongst penalties, is regarding'crimes and contracts. No one can contract-to commit a crime; it would be void. If the act of 1840 impairs the obligation of a contract, it ismugatory. Between individuals, this would be considered a'-case of- contract, and there is in the law no exercise of the legislative power, which would have been'the case if Washington county, by it, had been empowered to make a contract. • But this was not necessary. The state could contract, undoubtedly, and • so could the railroad company, and a third party is introduced with the consent of both. A charter is a contract; but. provisions are sometimes introduced into it which are not matters of contract. 4 Wheaton,' 235. In the present case, the acceptance completed, the contract. If you strike out of the law the words, “ for the use of Washington county,” there is nothing to show what was' to be done with the money. But when these were inserted, it prevented' the state, from claiming it for herself'; if she had done so, me railroad company would have been justified.in refusing- to pay. Here then were two parties, each capable of contracting; and as to the capacity of Washington county so.to do, it was held, in the.-case of Terrett and Taylor, .that .the reedgnition of a power to contract is equivalent to a fresh' grant of power.-- A bond between A. and B., for the use of C., admits C.’s interest, and suit must be brought in the name of the obligee. When a bond is assigned, there .is an implied engagement that the assignor will do nothing to impair the interest of the other party, A cestui que tnist has, in equity i á control of the fund. Black v. Zacharie, decided at this term.
The act of 1835 is, in fact, a stipulation for a license to depart from a prescribed route. It has. been said, by the other side, that it is a penalty, that the legislature can reléase it, and that if it is a contract, the legislature can annul it. If it is a penalty, and the state has released it, the question cannot come up here. We have no desire to say any thing as to the power of a state over criminal-penalties, such as that in 10 Wheaton. It is said that Washington county was not a party to the contract. ' But it seems to be conceded that if' it were not for the act of 1840, there would be no opposition to the claim. There was* a time then, when .Washington county had an interest, and this remained at.the institution of the suit. If the staté of Maryland were to receive the money as the plaintiff in the cause, perhaps we could not legally coerce her to pay it to Washington county. But she would be morally bound to do so. ' The moment that the railroad company determined not to pass through the-three towns,-Washington county, acquired a right. The trustee and the party bound have concurred to destroy the contract,- and it -is only m consequence of this, that Washington county does not stand as it did at first. It has been said that the legislature could take away the remedy by which the contract was tp. bé enforced. But the decisions of this court are uniform, that a legislature cannot take away a1 right, under pretence' of affecting the. remedy. The last case upon this point is Bronson v. Kenzié, 1 Howard, 311.
If the law impairs a remedy, or varies a contract- a hair’s breadth, it is void; and it malees no difference whether it is a general. or a special law. In the case before us, the plaintiffs are put in a worse situation than they were before, and the same thing is intended to be accomplished as if 'alawhad been passed forbidding'them to bring a suit.
It is said that Washington county is.a public municipal corporation, artd therefore within the control of the legislature. But in the act.of 1835,-.there was no reservation of power Upon this ground. ' It may be tW the votes of some few persons were required to pass the vlaw, who would not have voted for it if any such reservation had been made. Men cannot be such general philanthropists as to' give Up the interests of their own immediate neighbourhood. Suppose Washington county to have said, if. you take away the road from us, you must make compensation. In such case,, the law would not have been passed with a reservation in it like the one just spoken of. And if it be a contract, it is violated for the benefit of the railroad company. The argument on the other side goes to 'the extent that- every contract, made by a public, municipal corporation, is . beyond the pale of the Constitution. There is .no decision of this court that such a charter and property, can be taken away. One of the complaints in the Declaration of Independence is, that charters were taken away; and this practice, in part; produced a revolution in England. By tl-Is argument', they may all be swept off; and such corporations may, moreover, be asked what they are going to do with their property. • It has been'said,' that supposing it to be a contract, it cannot inure to the benefit of Washington county." But an implication cannot be made contrary to what is expressed, or what is just and right. . What Washington CQunty is going to dp' with the money is of no concern "to the railroad company, the true defendant in this case. It may feducate .the poor with it; it may pay-debts,.'.or it may erect a monument to that glorious clause in the Constitution which enables it to assert its rights in this court.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
