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Dissenting Opinion

United States Supreme Court

70 U.S. 51

The Binghamton Bridge

THE legislature of New York was desirous in early times to have turnpike communications from the Chenango River, in the interior of the States as the river approaches the Pennsylvania line, to the Hudson River at and below Newburgh, on that stream. Roads from the one river to the other by the routes contemplated had to cross the east branch of the Susquehanna, the east and west branches of the Delaware, and it was proposed also to make a bridge westward across the Chenango River itself. Accordingly, on the 6th of April, 1805, the legislature passed an act to establish a 'turnpike corporation,' as it was called, for these purposes. The act was a very long one-forty-two sections-and for the purpose of a subdivision of labor, created in fact some four or five corporations. Among them a company for the purpose of building, by subscription of capital, bridges over the west and east branches of the Delaware River, was incorporated by the name of 'The President and Directors of the Delaware Bridge Company.' The sections of the act relating to this company, fifteen in number, besides incorporating company in form, with the usual incidents, 'continual succession,' 'suing,' &c., gave it the right of purchasing, holding, and conveying any estate, real and personal, necessary to fulfil the end and intent of the corporation. They prescribed the mode of organizing the company, the kind of bridge to be built, the places where toll-gates should be put, the amount of tolls to be taken after the judges of Delaware County should declare that the bridge was finished, the duty of care and superintendence of the bridge, and the penalty (forfeiture of charter) of neglect to repair or rebuild it if out of order or carried away; the punishment to be inflicted on any one who wilfully injured it, &c., &c.

Power was given to the directors to increase the stock of the company from time to time, after the original capital had been expended, as the exigency should in their judgment require, by assessments on the old shares, and to collect it, with a right of forfeiture of the old shares, if not paid, and shares in the corporation were made personal property.

The 31st section enacted:

'It shall not be lawful for any person or persons to erect any bridge, or establish any ferry across the said west and east branches of Delaware River, within two miles either above or below the bridges to be erected and maintained in pursuance of this act.' . . . 'Provided, nevertheless,' the act went on to say, 'that nothing herein contained shall be construed to prevent any person, residing within two miles of the said bridges, from crossing the said river to or from his or her own house or land with his or her own boat or craft, without being subject to the payment of any toll.'

An additional-the 36th-section provided that, at the expiration of thirty years, the bridge should become the property of the people of this State.

So far as regards the Delaware Bridge Company.

A subsequent part of the same act-its 38th section incorporated another company-a single company-'The Susquehanna Bridge Company,' for the purpose of erecting a bridge across the Susquehanna, at what was then called Oquaga, and since Windsor; and also for erecting a bridge at Chenango Point, the now village of Binghamton.

This section enacts, among other things, that the persons named, their successors and assigns,

'Shall be and are hereby created a body politic, and by the name of 'The Susquehanna Bridge Company,' their successors and assigns shall be and hereby are invested with all and singular the powers, rights, privileges, immunities, and advantages, and shall be subject to all the duties, regulations, restraints, and penalties which are contained in the foregoing incorporation of the Delaware Bridge Company; and all and singular the provisions, sections, and clauses thereof, not inconsistent with the particular provisions herein contained, shall be and hereby are fully extended to the president and directors of this incorporation.'

The charters of these bridge companies-inserted, as already mentioned, in the body of the act incorporating the road-were prefaced by this preamble.

'Whereas, the foregoing road incorporation cannot be sufficiently carried into effect, or the public convenience fully promoted, if durable and permanent bridges across the Susquehanna and Chenango rivers, and the east and west branches of Delaware River, at the several places of intersection of the said roads, are not at the same time erected and maintained. And whereas, by reason of the great expense necessarily to be incurred in erecting and maintaining such bridges, on account of the size and rapidity of those streams, and the extraordinary freshets and frequent obstructions happening in those rivers, to which such bridges will be exposed, and which will endanger their permanency and durability, and may call forth a frequent renewal of the whole capital required for rebuilding such bridges, and therefore require a power (not contained in the foregoing incorporations) of calling from the stockholders, from time to time, such sums as shall be required for upholding such bridges, and which equally forbid the policy incorporated in the foregoing incorporations, that said property shall revert to the State; and whereas it is suggested that it will be most expedient for the purposes aforesaid to make two separate and distinct bridge incorporations, with powers adequate to the accomplishment thereof in the best possible manner. Therefore,

'Section 23. Be it enacted,' &c.

On the 1st April, 1808, the Susquehanna and Chenango bridges not being yet built, another act was passed amendatory of the old one. It ran in substance thus:'Section 3. Be it enacted, That the incorporation of the Susquehanna Bridge Company shall hereafter be deemed and considered to exist for the sole purpose of erecting and maintaining a toll-bridge, under their said charter, across the Susquehanna River at Oquaga, under all its present provisions, except the limitation of its duration of thirty years, which said limitation shall be and hereby is repealed; and that the time within which it shall be built shall be and hereby is extended to four years from the passing of this act.

'Section 4. And be it further enacted, That for the purpose of erecting and maintaining a toll-bridge across the Chenango River, at or near Chenango Point, the present stockholders of the Susquehanna Bridge Company, or such others as shall associate for that purpose, shall be and hereby are created a body corporate, in fact and in name, by the name and style of 'The Chenango Bridge Company,' and as such to have perpetual succession, under all the provisions, regulations, restrictions, clauses, and provisions [1] of the before-mentioned Susquehanna Bridge Company.'

Under this last section, several persons consociated themselves, in 1808, under the name of the Chenango Bridge Company, and built a toll-bridge at Chenango Point, about one hundred rods above the point at which that stream merges itself and is lost in the lorger and more important Susquehanna.

In 1805, when the first act was passed, Chenango Point had but two or three houses, was a small place every way; hard, comparatively, of access; and with a surrounding region sparsely populated. Matters were not much different in 1808 when the second one was passed. In the course of fifty years, the condition of things had changed. Population had increased. The New York and Erie and other railways ran near the place. Villages had sprung up around. In 1854, several persons, 'inhabitants of the village of Binghamton and its vicinity,' presented a petition to the legislature of New York, praying for the passage of an act authorizing an additional bridge. Their petition set forth:

'That the said village, situated at the confluence of the Susquehanna and Chenango Rivers, has a population of about ten thousand persons. That it covers the point between the rivers, and extends to the opposite side of both. That since the construction of the New York and Erie Railroad, which crosses the Chenango River about one mile from the mouth, the village has rapidly extended up said river, on both sides, and has largely increased, particularly upon the westerly side.

'They represent that the depots of all the railroads are on the easterly side of the Chenango, above where it is proposed to place the new bridge; that the said railroad depots occasion much travel to and from them, to and from the westerly side of the Chenango River, and that those who would cross in the vicinity of said depots are compelled to go nearly one-half mile down the Chenango River, and up it again on the other side, to and from the depots, thus losing nearly one mile of travel upon every such occasion. That a large volume of travel constantly passes over said old Chenango bridge, so great that it is frequently blocked up, by waiting for some to pay toll and otherwise, to the hindrance of travellers and citizens, and especially upon public days and funeral occasions. That all the churches, except the Catholic, are situated, and the principal business streets are upon the easterly side of the Chenango, and that the new, and hereafter to be principal public cemetery is situated upon the westerly side of the Chenango, about one mile above the old bridge. That the river is subject to high freshets and ice floods, and that in case the present bridge across the Chenango should be carried away there would be no means but a railroad bridge, where travel is not permitted, of reaching said churches, nor the business street from the westerly side of the Chenango, or the cemetery from the easterly side, nor could numerous citizens who reside upon the westerly side of the Chenango reach their places of business. That by reason of the great amount of travel over the present bridge and other causes it is frequently out of repair, so that only one side of it can be used, and at such times it is passed only with great delay and difficulty.'The legislature of New York accordingly, by 'An act to incorporate the Binghamton Bridge Company,' passed April 5, 1855, granted a charter to another bridge company, who built a bridge a few rods above the old one. This greatly diminished and seemed likely to destroy its tolls, which had been for a long time profitable.

The old bridge company now accordingly filed a bill in the Supreme Court of New York to enjoin the new rival.

The bill-resting itself, of course, on the postulate that the rights given by the act of 1805 to the Delaware Bridge Company were imported by the 38th section of it into that of the Susquehanna Company of that act; that these again, thus imported, were translated (with the thirty-years restriction only thrown off) into the third section of the act of 1808, and that these last were carried finally into the fourth section of this new act insisted that these various enactments made an 'absolute, unconditional, and unlimited contract' with them that no bridge should ever be built over the Chenango River within two miles of theirs, either above or below it.

The answer denied the contract set up.

The Supreme Court of New York dismissed the bill. On appeal, the Court of Appeals, the highest court of the State of law or equity in which a decision of the matter could be had, affirmed the decree. The case was now brought here for review; the matter coming here, of course, under the 25th section of the Judiciary Act of 1789, which provides that a final judgment or decree in the highest court of law or equity in a State, 'where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution of the United States, and the decision is in favor of such validity, may be examined and reviewed in this court;' and the allegation being that the act of April 5, 1855, incorporating the new bridge company, was contrary to that clause of the Constitution of the United States which ordanis that 'no State shall pass any law impairing the obligation of contracts.'

The certificate from the Court of Appeals declared that the question raised by the Chenango Bridge Company, appellants in the case was:

'That the said act of April 5, 1855, was repugnant to the Constitution of the United States; and the question decided by this court, in order to induce the judgment of this court, was, that the said act of April 5, 1855, was not repugnant to the Constitution of the United States, and that said act of April 5, 1855, is held valid and binding by this court, notwithstanding said act was drawn in question in this cause, and the question clearly raised therein that said act was void as aforesaid.'

It was then 'ordered that the record and proceedings be remitted to the Supreme Court,' here to be proceeded upon according to law.

Three questions were made here:

1st. A preliminary one, not very much pressed, whether the certificate gave this court jurisdiction under the 25th section of the Judiciary Act?

2d. Did the acts of 1805 and 1808 give the complainants an exclusive and perpetual privilege against anybody; either individuals or legislature?

3d. Supposing that under the expression 'it shall not be lawful for any person or persons to erect any bridge' it gave them such privilege as against individuals, did it give them such right as against the legislature also?

[To understand fully the argument on this third point, it must be stated, that it was assumed in the argument by the Chenango company's counsel, and was stated as a fact in some of the opinions below, that in 1797 an act was passed providing for the opening and construction of highways and bridges, by superintendents and commissioners of highways; and that in the same year provision was made to authorize and regulate ferries within the State-forbidding the establishing and use of any ferry, for profit and hire, unless duly authorized, and conferring authority upon the courts of common pleas in each county of the State to grant licenses for keeping ferries, as many and to such persons as the court shall think proper.]

Mr. D. S. Dickenson, for the Binghamton Bridge Company, and against the jurisdiction and exclusive privileges.

I. Whatever the certificate may state, it is obvious that the real question below was whether the acts of 1805 and 1808 made a contract exclusive as against the State. Supposing such a contract, there could be no doubt that the act of 1855 impaired it. The decision below was that they did not make it. The decision then was an adjudication of a State court upon a statute of the State; and construing it. Such a case is not one within the 25th section. It may be said, however, that this point has been otherwise adjudicated in Bridge Proprietors v. Hoboken Company. [2] If that is so, there remain other grounds for dismissing the case.

The certificate states that 'in order to induce the judgment of this' (the Supreme Court of the United States), the question decided below, was thus and so. Can cases thus be decided in a particular manner, for the purpose of bringing them here, under the 25th section, and then be certified into jurisdiction? The purpose of the act was not to have anything brought here which was not decided for the purposes of justice in the case; cases decided merely to get a review by this tribunal, however decided, are not proper matters for its jurisdiction. Jurisdiction cannot be 'manufactured,' and authority thus given, even to this court, to review the legislation and judicial proceedings of a State, which ordinarily belong to the State courts alone, and should rest there.

II. We concede that the legislature may, by a clear manifestation of its intention to do so, make dispositions of matters which are proper subjects of its disposition. It may sell all which is the subject of bargain. But its sovereignty cannot be vended in perpetuo. One legislature cannot place the sovereignty of the State or any portion of it beyond the reach of all succeeding ones.

A disposition of that in which the supremacy of government rests, is an assumption of power not legislative in its nature and is void. The legislature here has disposed of the right of passing a great river for four miles. If it can dispose of it for four miles, it can do so for a hundred, and when the principle is admitted, what is to curb it but the slender rein of legislative discretion? The Chenango, from its source to its mouth, is nearly a hundred miles in length. If the legislature had extended the restriction over the whole, the question in all its legal relations would have been the same. This shows to what point the doctrine leads. A State is the guardian, not the broker of its people's rights; the protector, not the auctioneer of their property. It is invested with great and awful powers, and must necessarily be so; but among them all there is no power to oppress. [3]

The Dartmouth College case may perhaps be invoked against these views and in support of the pretensions of the other side. If it sustain such pretensions-grants of the State sovereignty from the control of successive legislatures forever-we deny its authority in this day.

But in truth there is no relation whatsoever between it and the case at bar. In the college case a royal charter had been granted to a number of persons, incorporating them as a religious and literary institution. Large donations were made to it. It had the power to fill vacancies in the board of its trustees, to manage its funds, &c. The legislature largely increased the number of trustees, and provided a different mode for the appointment of persons to have charge of the trust funds, &c. The court found no difficulty in holding that a contract had been made and its obligations violated. But suppose that the charter had said 'it shall not be lawful to erect any other college in New Hampshire,' would such an enactment-in injury of education and of public right forever-have been held binding?

If the provident principles of government which we have asserted be questioned, the principle of law will not be questioned, that all statutes which seek to abridge the power of legislation, to prohibit the exercise of common-law right and oppress the people, which confer monopolies or impose restraints or penalties, are to be construed strictly against those asserting the exclusive right and favorably for the public. The rule is one that has been imbedded from early days in the English law. [4] It has been declared with force, by Sir William Scott [5] and by Lord Tenterden, [6] as existing equally in these.

Now 'it would present,' as Taney, C. J., said, in a wellknown case, [7] 'a singular spectacle, if while the courts of England are restraining within the strictest limits the spirit of monopoly, and exclusive privileges in the nature of monopolies, and confining corporations to privileges plainly given them in their charter, the courts in this country should be found enlarging these privileges by implication, and construing a statute more unfavorably to the public and to the rights of the community than would be done in an English court of justice.' There, after premising that those who accept charters have full opportunity to examine and consider the provisions before they invest their money, he adds: 'And if individuals choose to accept a charter in which the words are susceptible of different meanings; or might have been considered by the representatives of the State as words of legislation only, and subject to future revision and repeal, and not as words of contract; the parties who accept it have no just right to call upon this court to exercise its high power over a State upon doubtful or ambiguous words, nor upon any supposed equitable construction or inferences based upon other provisions in its acts of incorporation.'

In Dartmouth College v. Woodward, [8] Marshall, C. J., says: 'On more than one occasion this court has declared, that in no doubtful case would it pronounce a legislative act contrary to the Constitution.'


^1  This act of 1808, as given in the printed copies of the record before the court, read as given above with the word 'provisions' inserted twice. In one of the opinions given below and submitted in the argument here, the act was cited as reading, 'under all the provisions, regulations, restricting clauses, and provisions.'

^2  1 Wallace, 116.

^3  See this matter strongly put by counsel, arguendo, in Bridge Proprietors v. Hoboken Co., 1 Wallace, 131.-REP.

^4  See authorities cited by counsel arguendo, in Bridge Proprietors v. Hoboken Co., 1 Wallace, 134.

^5  Ib.

^6  Stourbridge Canal Co. v. Wheeley, 2 Barnewall & Adolphus, 793.

^7  The Charles River Bridge v. The Warren Bridge, 11 Peters, 544.

^8  4 Wheaton, 625.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).