Supreme Court of United States.
*520 The cause was argued by Mr. Chapman and Mr. Toucey, for the plaintiff in error, and by Mr. Parsons and Mr. Baldwin, for the defendant in error.
*532 Mr. Justice WOODBURY delivered the opinion of the court.
This is a writ of error, under the twenty-fifth section of the Judiciary Act, brought to reverse a judgment rendered by the Supreme Court of the State of Connecticut.
It is claimed by the plaintiff, that the clause in the Constitution of the United States against impairing the obligation of contracts was set up there in defence to certain proceedings which had been instituted against that corporation by virtue of rights derived from legislative acts of that State, which acts the plaintiff insisted had impaired the obligation of a contract existing in behalf of East Hartford.
It being manifest from the record that such a defence was set up, and that the court overruled the objection, so that jurisdiction exists here to revise the case, we proceed to examine whether, on the facts of the case, any such contract appears to have existed, and to have been violated by the State legislation, which was drawn in question.
It will be seen that the point before us is one of naked constitutional law, depending on no equities between the parties, but on the broad principle in our jurisprudence, whether power existed in the legislature of Connecticut to pass the acts in 1818 and 1841, which are complained of in this writ of error.
The supposed contract claimed to have been impaired related to certain rights in a ferry, which were alleged to have been granted by the State, across the Connecticut River. This grant is believed to have been made to Hartford as early as the year 1680, and half of it transferred to East Hartford in 1783. But no copy of the first grant being produced, nor any original *533 referred to or found, it is difficult to fix the terms or character of it, except from the nature of the subject and the subsequent conduct of the parties, including the various acts of the legislature afterwards passed regulating this matter.
From these it is manifest, that two leading considerations arise in deciding, in the first place, whether by this grant a contract like that contemplated in the Constitution can be deemed to exist. They are, first, the nature of the subject-matter of the grant, and next, the character of the parties to it.
As to the former, it is certain that Connecticut passed laws regulating ferries in 1695; and Massachusetts began to grant ferries as early as 1644 (Col. Charter, p. 110, and to exercise jurisdiction over some even in 1630 (Charles River Bridge v. Warren Bridge, 11 Peters, 430). In 1691 she provided that no one should keep a ferry without license from the Quarter Sessions, and under bonds to comply with the duties and regulations imposed (p. 280).
In the rest of New England, it is probable that a similar course was pursued by the legislatures, making, as a general rule, the tolls and exercise of the franchise entirely dependent on their discretion. But in some instances the owners of the lands on the banks of small rivers opened ferries upon them, and claimed private interests therein. And in still other cases of public grants to private corporations or individuals, a similar interest has been claimed.
It is highly probable, too, that in some instances public corporations, like the plaintiff in this case, may have set up a like interest, claiming that the subject-matter granted was one proper for a contract, or incident to some other rights, like private interests owned on the bank of a river.
Supposing, then, that a ferry may in some cases be private property, and be held by individuals or corporations under grants in the nature of contracts, it is still insisted here, that the ferry across a large navigable river, and whose use and control were entirely within the regulation of the colonial legislature, and came from it, would be a mere public privilege or public license, and a grant of it not within the protection of the Constitution of the United States as a matter of contract.
But it is not found necessary for us to decide finally on this first and more doubtful question, as our opinion is clearly in favor of the defendant in error on the other question; viz. that the parties to this grant did not by their charter stand in the attitude towards each other of making a contract by it, such as is contemplated in the Constitution, and as could not be modified by subsequent legislation. The legislature was acting *534 here on the one part, and public municipal and political corporations on the other. They were acting, too, in relation to a public object, being virtually a highway across the river, over another highway up and down the river. From this standing and relation of these parties, and from the subject-matter of their action, we think that the doings of the legislature as to this ferry must be considered rather as public laws than as contracts. They related to public interests. They changed as those interests demanded. The grantees likewise, the towns being mere organizations for public purposes, were liable to have their public powers, rights, and duties modified or abolished at any moment by the legislature.
They are incorporated for public, and not private objects. They are allowed to hold privileges or property only for public purposes. The members are not shareholders, nor joint partners in any corporate estate, which they can sell or devise to others, or which can be attached and levied on for their debts.
Hence, generally, the doings between them and the legislature are in the nature of legislation rather than compact, and subject to all the legislative conditions just named, and therefore to be considered as not violated by subsequent legislative changes.
It is hardly possible to conceive the grounds on which a different result could be vindicated, without destroying all legislative sovereignty, and checking most legislative improvements and amendments, as well as supervision over its subordinate public bodies.
Thus, to go a little into details, one of the highest attributes and duties of a legislature is to regulate public matters with all public bodies, no less than the community, from time to time, in the manner which the public welfare may appear to demand.
It can neither devolve these duties permanently on other public bodies, nor permanently suspend or abandon them itself, without being usually regarded as unfaithful, and, indeed, attempting what is wholly beyond its constitutional competency.
It is bound, also, to continue to regulate such public matters and bodies, as much as to organize them at first. Where not restrained by some constitutional provision, this power is inherent in its nature, design, and attitude; and the community possess as deep and permanent an interest in such power remaining in and being exercised by the legislature, when the public progress and welfare demand it, as individuals or corporations can, in any instance, possess in restraining it. (See Taney, C.J., in 11 Peters, 547, 548.)
*535 In Goszler v. The Corporation of Georgetown, 6 Wheaton, 596-598, it was held that a city with some legislative power as to by-laws, streets, &c., could, after establishing a graduation for its streets, and after individuals had built in conformity to it, change materially its height. This case appears to settle the principle that a legislative body cannot part with its powers by any proceeding, so as not to be able to continue the exercise of them. It can and should exercise them, again and again, as often as the public interests require. And though private interests may intervene, and then should not be injured except on terms allowed by the Constitution; yet public interests in one place or corporation may be affected injuriously by laws, without any redress, as legislation on public matters looks to the whole and not a part, and may, for the benefit of the whole to the injury of a part, change what is held under it by public bodies for public purposes. The legislature, therefore, could not properly divest itself of such control, nor devolve it on towns or counties, nor cease from any cause to exercise it on all suitable occasions. (Clark v. Corporation of Washington, 12 Wheat. 54.)
Its members are made by the people agents or trustees for them on this subject, and can possess no authority to sell or grant their power over the trust to others. Presbyterian Church v. City of New York, 5 Cowen, 542; Fairtitle v. Gilbert, 2 D. & E. 169.
Nor can the public be estopped by such attempts, since the acts of their agents are to be for the public, and for its benefit, and not for themselves individually, and are under a limited authority or jurisdiction, so as to be void if exceeding it.
Looking to the subject, when, as here, the grantees as well as the grantors are public bodies, and created solely for municipal and political objects, the continued right of the legislature to make regulations and changes is still clearer. Perhaps a stronger illustration of this principle than any yet cited exists in another of our own decisions.
In the State of Maryland v. Baltimore and Ohio Railroad, 3 Howard, 551, this court held, that a grant by the legislature to a county of a sum forfeited could be dispensed with by the legislature afterwards, as it was made for public, not private purposes, and to a public body.
There is no private interest or property affected by this course, but only public corporations and public privileges. It may be otherwise in case of private bodies, or individuals, or of private property granted or acquired. The legislature might not be justified to revoke, transfer, or abolish them on account of the private character of the party or the subject. *536 (Pawlet v. Clark, 9 Cranch, 292; Terrett v. Taylor, Ib. 48-50.) But every thing here is public.
While maintaining the exemption of private corporations from legislative interference, Justice Washington, in 4 Wheat. 659, in the Dartmouth College case, still admits that corporations for "public government," such as a "town or city," are under the control of legislation; whereas private corporations are governed by the statutes of their founders, or by their charters (pp. 660, 661). He remarks further, that the members of such a public corporation "accepted the charter for the public benefit alone, and there would seem to be no reason why the government, under proper limitations, should not alter or modify such a grant at pleasure" (pp. 661, 663). And Justice Story concurs with him by saying: "It may also be admitted, that corporations for mere public government, such as towns, cities, and counties, may, in many respects, be subject to legislative contract." 4 Wheat. 694.
When they are wished to be in some respects not so subject, but to act exclusively, it should be so expressed in the constitutions of their States. What is exclusive in them would there appear expressly, and when it is not, a legislative provision, if made for the purpose of rendering it exclusive, is, for the reasons before stated, doubtful in its validity.
The public character of all the parties to this grant, no less than its subject-matter, seems, therefore, to show, that nothing in the nature of a contract, with terms to be fulfilled or impaired like private stipulations, existed in this case so as to prevent subsequent interference with the matter by the legislature, as the public interests should appear to require.
But in order to justify the plaintiff in what it set up below, there must not only have been a contract, or quasi contract, but a violation of its obligation. It will therefore be useful to follow out farther the nature and conditions of this supposed contract, in order to throw more light on both the questions whether this grant was such a contract as the Constitution contemplates, and whether it has been at all impaired. The authority of a legislature may probably supersede such a ferry as is public, and across a great public highway of a navigable river, by allowing a bridge over the same place, as has before been virtually held by this court (11 Peters, 422; 6 Howard, 507). It could also alter or abolish wholly the public political corporation to which the grant was made, as this is yearly done in dividing towns and counties, and discontinuing old ones. It is therefore clear, that, whatever in the nature of a contract could be considered to exist in such a case, by a grant to a town of some public privilege, there must be implied in it *537 a condition, that the power still remained or was reserved in the legislature to modify or discontinue the privilege in future, as the public interests might from time to time appear to require. Charles River Bridge v. Warren Bridge, 11 Peters, 421; West River Bridge v. Dix et al., 6 Howard, 507.
Accordingly, it is admitted in this case, that the legislature, as early as 1695, in fact regulated the tolls of this ferry, and continued to do it until 1783, when it granted to East Hartford one half of the privilege, and that only "during the pleasure of the Assembly." All concerned in the privilege, therefore, became thus estopped to deny that this ferry was to be used by the town as a mere public license, and to be used in conformity with the views of the legislature as to what in future might be deemed most useful to the community at large.
Because the old town of Hartford acquiesced in this regulation of tolls, and in this transfer of half to East Hartford in this limited or conditional manner, and the latter acquiesced in the acceptance of it on the terms expressed, to hold it during "the pleasure of the Assembly."
Such being, then, the public character of the subject and parties of the grant, and such the terms and conditions of it, rather than being one of private property, for private purposes, to private corporations or individuals, and absolutely rather than conditionally, in what respect has it been violated by the legislature?
No pretence is made that it has been, unless by the discontinuance of the ferry in 1818 and in 1841. The former act of the legislature was passed under the following circumstances: a bridge had been authorized over the river near the ferry as early as 1808, and no provision was then made as to the ferry, probably from a belief that it would, after the bridge was finished, fall into disuse, and be of no importance to any body.
No objection was made or could be sustained to the constitutionality of this incorporation in this way (11 Peters, 420; 4 Pick. 463). But when the bridge became damaged greatly in 1818, and the company was subjected to large expenses in rebuilding, the legislature deemed it proper to provide, in its behalf, that the ferry should not be kept up afterwards, except when the bridge became impassable.
The words were, that, "after the company shall have repaired the bridge, &c., the ferries by law established between the towns of Hartford and East Hartford shall be discontinued, and said towns shall never thereafter be permitted to transport passengers across said river," &c.
This bridge corporation, being the present defendant in error, proceeded therefore to rebuild and keep up their bridge in *538 a more costly manner, and beneficially and safely to the community. They were a private, pecuniary body, and were aided much by the suspension or discontinuance of the ferry in their additional charter.
The legislature, in making the discontinuance, did only what it supposed was advantageous to the public, by securing a better, quicker, and surer method of passing the river on the bridge; and it thus appears to have violated no condition or terms of any contract or quasi contract, if it had made any with the plaintiff. 11 Peters, 542.
On the contrary, as before suggested, the legislature merely acted within its reserved rights, and only passed a new law on a public subject, and affecting only a public body. But beside the implied powers continuing in the legislature, as heretofore explained, and which warrant all it did in 1818, and the exercise of which cannot be regarded as impairing any contract, we have seen that there was an express provision in the grant to East Hartford, limiting the half of the ferry transferred to it "during the pleasure of the Assembly."
The legislative pleasure expressed in 1818, that the ferry should cease, came then directly within this condition; and the permission to exercise that pleasure in this way was not only acquiesced in from 1818 to 1836, but was treated as the deliberate understanding on both sides from 1783 to 1836.
The statute-books of Connecticut are full of acts regulating ferries, including this, and modifying their tolls from 1783 downwards, and in many instances imposing new and onerous duties. See 1 Stat. of Conn. 314 to 327.
And to show how closely the power of the legislature was exercised to regulate this matter, without being regarded as impairing in that way any contract or obligation, it appears that when Hartford was incorporated into a city, about 1820 (Rev. Stat. 110), it was expressly provided: "But said city shall have no power to regulate or affect the fisheries in, or the ferry upon, said river" (Connecticut).
Well, too, might East Hartford, in 1783, be not unwilling to take her charter and half the ferry, subject to this suspension; as her own existence at all, then and thereafter, depended on legislative pleasure; and as all the property or privileges of the old town would remain with the old one, when a new was carved out of it, unless otherwise expressly provided. 4 Mass. 384; 2 N. Hamp. 20.
Our inquiries would terminate here, as this legislation, in 1818, is the supposed violation of a contract that was chiefly relied on below, had there not been several other acts of legislation as to this ferry in 1836, 1841, and 1842, some of which *539 are claimed to have impaired contracts made with the plaintiff, either then or in 1783.
But the act of 1836, about which much has been said in the argument here, and much was very properly urged in the court below, simply repealed that part of the act of 1818 discontinuing the ferry. It thus affected the bridge company deeply and injuriously, but did not impair any supposed contract with East Hartford, was not hostile to its rights, and is not, therefore, complained of by that town, nor open to be considered as a ground for revising the judgment below under this writ of error.
On this see Satterlee v. Matthewson, 2 Peters, 413; Jackson v. Lamphire, 3 Peters, 289; 7 Peters, 243; 11 Peters, 540; Strader v. Graham, ante, 82.
The State court, however, pronounced it unconstitutional, and had jurisdiction to do it, and if they had not arrived at such a result, they could not have sustained some of their other conclusions.
This decision of theirs being founded on their own constitution and statutes, must be respected by us, and in this inquiry must be considered primâ facie final. Luther v. Borden, 7 Howard, 1, and cases there collected.
We shall, therefore, not revise the legal correctness of that decision, but refer only to a few of the facts connected with the repeal of 1836, and with the decision on it below, so far as is necessary to explain the legislation subsequent to it, and which is yet to be examined.
The legislature does not appear to have proceeded at that time on any allegation of wrong or neglect on the part of the bridge company; nor did they make any compensation to the latter for thus taking from it the benefits of a discontinuance of the ferry, and attempting to revive half the privileges again in East Hartford. The State court appears to have considered such a repeal, under all the circumstances, as contrary at least to the vested rights of the bridge company, and to certain provisions in the State constitution. See, also, The Enfield Bridge v. The Hartford and New Haven Railroad Co., 17 Conn. 464.
But, without going farther into the history of this proceeding in 1836, and the decision on it by the State court, it is manifest that the dissatisfaction and complaints growing out of it, or some other important reason, induced the legislature in 1841 to repeal the repealing act of 1836, and thus to leave the bridge company once more in the full enjoyment of its former privileges after the ferry had been discontinued in 1818.
*540 To this conduct of the legislature the plaintiff in error objected, and under this writ asks our decision, whether it does not impair contracts which had before been made with it by the legislature. In reply, it need only be stated that we think it does not, and this for the reasons already assigned why it was competent for the legislature to pass the discontinuing part of the act of 1818, if it thought proper, and in this did not violate the Constitution of the United States, as to contracts.
But matters were not permitted to remain long in this position. In 1842 the legislature proceeded to repeal the act of 1841, and thus sought virtually to restore the ferry to Hartford and East Hartford, as it stood before 1818. It appears to have done this on the complaint of East Hartford, that half of the ferry had been taken away from her without making "any compensation."
It is unnecessary, in relation to this last repeal, to say more than that, like the repeal of 1836, and for like reasons, the State court pronounced it void; and, on the ground before explained, we are not called on by this writ to reconsider or reverse that decision.
It follows, then, finally, that East Hartford, in proceeding to exercise the ferry privilege again since 1842, and to the special injury of the bridge company, has done it without legal authority, and should therefore be restrained by injunction from exercising it longer.
The judgment below must be affirmed.
This cause came on to be heard on the transcript of the record from the Supreme Court of Errors within and for the State of Connecticut, and was argued by counsel; on consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Supreme Court of Errors in this cause be, and the same is hereby, affirmed, with costs.
