Hartford Bridge Co. v. Town of East-Hartford

Church, J. Some of the questions involved in this case are of unusual importance, and have presented difficulties in their solution; and they have received our careful and deliberate attention. A majority of us, for the reasons which we shall suggest, are of opinion, that the facts appearing upon the report of the committee, are sufficient to sustain the plaintiffs’ bill. We are not called upon now to enquire into the condition of ferries, as they have been treated here, from the origin of our colonial government—whether they were considered as burthens upon towns, and which the towns were under legal obligations to support, as they do highways and bridges, or whether they were supported as valuable privileges or franchises conferred by grants. It seems, at any rate, that the ferry in dispute, from a very early period, has been considered, by the legislature, in all its dealings with it, as a franchise, and especially by the act or resolve of 1783, dividing the ancient town of Hartford. — 171 — As early as 1702, and probably before that time, the General Court exercised a jurisdiction over ferries. Rates of toll were regulated by law, and the management of ferries prescribed. Whether such a jurisdiction, so long exercised and universally submitted to, affords a legal presumption that ferry franchises were granted and received, subject to an implied power reserved over them, so that they might be essentially modified, or entirely suppressed, at the pleasure of the legislature, we do not suppose it necessary now to determine. The plaintiffs do not claim here as owners of the ferry, or, as having, by reason of their lease from the town of Hartford, any right, in such capacity, to participate in its tolls. We do not enquire, therefore, what rights the town of Hartford has had, or still has, to the ferry; or what rights the Bridge Company acquired under that lease. The town of Hartford makes no claim now; and the town of East-Hartford makes no claim under it. The question is only, what are the rights of the Bridge Company, as against East-Hartford? If the plaintiffs, as against that town, have the exclusive right, by virtue of the amended or additional charter of 1818, to receive the tolls from persons crossing Connecticut river at this place, and are essentially disturbed by the defendants, in the enjoyment of the right they assert, they are entitled to the remedy they ask. Croton Turnpike Co. v. Ryder, 1 Johns. Ch. R. 615. Livingston v. Ogden, 4 Johns. Ch. R. 48. Ogden v. Gibbons, Id. 150. Newburgh Turnpike Co. v. Miller, 5 Johns. Ch. R. 101. 2 Story's Eq. 206. In opposition to this, the town of East-Hartford insists, that the privilege of keeping one half of the ferry in this place, belongs to that town, not only by reason of the franchise belonging to the ancient town of Hartford, but also by force of the act of 1783, dividing that town. It is conceded all around, that this ferry was a franchise belonging to the old town, before its division, and was probably subject to legislative supervision and controul, as all other ferries in the state, to some extent, were. By the act dividing the ancient town, and constituting the town of East-Hartford a new and distinct corporation, the legislature granted to the new town the privilege of keeping one half of the ferry, during the pleasure of the General Assembly. If it be conceded, that the legislature did not, by reason of — 172 — ancient prerogative, possess the power of general controul over this ferry; yet, upon the division of the town of Hartfort, no part of the franchise would have passed to the new town, only by virtue of a legal provision to that effect. We suppose it to be well settled, that, when a part of the inhabitants and territory of an older town are erected into a new corporation, the old town retains all the property, rights and privileges formerly belonging to it, and is subject to all its former duties and liabilities, at least, as it regards property which has no fixed location in the new town, as lands, buildings, &c. Inhabitants of Windham v. Inhabitants of Portland, 4 Mass. R. 384. Hampshire v. Franklin, 16 Mass. R. 76. North-Hempstead v. Hempstead, 2 Wend. 109. This franchise was corporate property, strictly: it did not belong to the individuals residing within the ancient limits of Hartford, as private persons. And, we believe, upon the division of towns in this state, the legislature has always divided the corporate property and corporate burthens, according to its sense of justice, and its pleasure, without being suspected, in so doing, of interfering with vested rights. Therefore, the town of East-Hartford, upon its separation from the parent town, received only such share of the corporate property and franchises, and under such conditions and qualifications, as the legislature thought proper to prescribe, especially, “the privilege of keeping one half of the ferry across Connecticut river, at the place or places where the same had been usually kept in said town of Hartford, during the pleasure of the Assembly.” East-Hartford accepted its town charter, with this provision; and cannot, by virtue of it, now, claim greater rights than it conferred. Another enquiry is thus made necessary. Has the General Assembly declared its pleasure, by revoking the privilege conferred upon the town of East-Hartford? The resolve of 1818 provides, in the first place, that, whenever the Bridge Company shall have repaired the bridge, and raised the causeway, to the acceptance of the commissioners originally appointed for that purpose, the ferries established by law between the towns, should be discontinued. It proceeds to direct in what manner the bridge should be constructed, and the causeway raised; and that they should be approved and accepted, by the commissioners, and that, unless they should — 173 — be thus re-built and repaired, it should be lawful for the towns to revive and improve the ferry again. We think it quite clear, from this provision of the resolve, that the commissioners were to be the sole judges in this matter; and that, whether the ferries should be discontinued or not, should depend upon the action of the commissioners in this respect. The language employed in the first part of the resolve, is unequivocal: “Whenever said bridge company shall have repaired said bridge without a draw, and shall have raised and repaired said causeway, to the acceptance of the commissioners, &c., the ferries by law established between the towns of Hartford and East-Hartford shall be discontinued,” &c. The commissioners, in fact, superintended and directed the work during its progress; and they approved and accepted it, when completed, for the reasons which they give in their certificate; and these reasons, the committee, in their report, declare to be sufficient. Thus, by force of this resolve, the ferries were by law discontinued. From the time when the bridge was completed, in 1818, until the year 1836, say the committee, said ferry was not used as a public ferry, and no boats were kept thereat, to convey passengers, &c. Here was a non-user for eighteen years,—a period long enough to create a legal presumption of an abandonment. Corning v. Gould, 16 Wend. 531. Wright v. Freeman, 5 Carr. & Johns. 467. Lawrence v. Obee, 3 Campb. 514. But in addition to this, the legislature again declared its pleasure, by revoking the ferry franchise, by the resolution of 1841. Although there have been some other questions suggested, in this discussion, yet, we think, the only remaining one, and indeed, the question chiefly important in the case, is, whether the legislature had the constitutional power to revive the ferry, after it was suppressed, by the resolutions of 1818 and 1841, in the absence of any neglect or forfeiture, on the part of the Bridge Company? Or, whether an attempt to do this, was not in conflict with the chartered rights of the company, as guarantied by the resolve of 1818? That resolve was an additional or amended charter, granted to the Bridge Company, and thus a contract between the state and the company, which the legislature had no power to — 174 — impair, without the assent of the corporation, unless by virtue of an authority for that purpose, reserved in the charter itself. This is conceded; and it is claimed by the defendants, that such authority was reserved; and whether it was or not, depends upon a sound, common sense construction of the charter. The amended charter of 1818 refers to the original one of 1808; and therefore, it is necessary to consider them in connexion. These charters, like all other acts of legislation, ought to be so construed, as to carry out the great objects intended by them. These were here; first, to make a great and necessary public improvement, at great expense, by erecting a bridge over Connecticut river; secondly, to reimburse those who should venture their money in the undertaking. This charter of the Bridge Company is more clearly a contract between the public and the corporation, than most others, which have been adjudged to be contracts inviolable. Ordinary charters only grant privileges, and are executed contracts; but this imposes burthens, and requires the performance of continuing duties, of an expensive character. It does not merely grant the power of erecting a bridge, with the privilege of collecting tolls, in such way, and at such expense, as the company shall please; but it directs the manner in which the bridge and causeway shall be constructed, regardless of the cost; and it withholds from the company any power of reimbursement, until its requirements are fulfilled. Having prescribed the duties and fixed the obligations of the corporation, justice demanded that the charter should confer the corresponding privilege of entire compensation; and this having been done, it constituted a mutual and reciprocal contract, with known parties, consideration and obligations. To confer upon the bridge Company the power and privilege of perfect reimbursement for the risks and expenses of the proposed undertaking, the public granted certain tolls, by the original charter, and declared, “that whenever said tolls shall reimburse to said company the sums advanced by them in building said bridge and causeway, with an interest of 12 per cent. per annum on the same, the said bridge and causeway, and the rate of toll, shall be subject to such regulations and orders as the General Assembly shall think proper to make.” This charter, with this stipulation, was offered to the compa — 175 — ny; and upon the faith of this, it was accepted, and the expense incurred, the work completed, and the bridge and causeway accepted by the commissioners. The rights and duties of both parties were now fixed and vested; and each had a right to demand performance of the other; the state, to require the company to keep the bridge in repair, and to comply with all prescribed regulations in regard to its supervision and management, so long as it received tolls, at least, and to subject it to indictment or prosecution for neglect; (Susquehannah & Bath Turnpike Co. v. The People, 15 Wend. 267.) and the company, to require of the public a fulfilment of its pledge of the given tolls, until it was reimbursed its expenses, and the stipulated interest. The import of the language used in this part of the charter, cannot be mistaken. It constitutes a public pledge, that, until the company shall be reimbursed, the General Assembly will not make any regulations or orders materially affecting the prescribed revenues of the Bridge Company. For why should a power to make regulations and orders, after reimbursement, he reserved, if full power existed to make them as well before as afterwards? To construe this stipulation in the charter otherwise, would do violence to its language, as well as to the intention of the legislature. For, we think, that the purpose of the General Assembly to preserve the granted privileges of the company inviolate, until after it should be fully compensated for its disbursements, is as prominent and obvious, as that it intended the bridge and causeway should be constructed upon the stipulated plan. If the General Assembly intended a reservation of greater powers, it was bound to speak plainly, and not use deceptive or equivocal language—language,which the Bridge Company would probably, and might reasonably, understand in a different sense. The legislature, having declared its purpose so very clearly, in this part of the original charter, it is not to be presumed it would be retracted in a subsequent provision of the same section. There must be a manifest repugnance even between distinct statutes, much more between different parts of the same statute, to warrant a court in declaring that there has been a repeal, by implication. The repugnancy must be irreconcilable. Dwarris on Stat. 673. McCarter v. Orphan Asylum, 9 Cowen, 437. Commonwealth v. Kimball, 21 Pick. — 176 — 373. Bowen v. Lease, 5 Hill, 221, And yet, here it is claimed, notwithstanding, that, a little further on, in the same section of this charter, a full power is reserved, by the General Assembly, at all times, to alter, amend or repeal it—at any rate, power sufficient to justify the legislature in essentially diminishing the tolls of the company, before it has been reimbursed its outlays in the erection of the bridge and causeway. The language of the charter, supposed to reserve such a power, is this: “And also provided, &c., that the grant may receive such alterations, from time to time, by the General Assembly, as experience shall evince to be necessary or expedient.” If it was here intended, by the legislature, to reserve an unlimited controul over this charter, in all its provisions, and at all times, the language used is unusual and inadequate for this purpose. Why was not the ordinary language used, which is employed in all our charters where such a power is reserved—“This act may, at any time, be altered, amended or repealed, by the General Assembly?" Instead of this, the grant may only receive alterations, from time to time, and then only as experience shall evince to be necessary or expedient—not an intimation, as in the former provision, of a reserved power over its tolls or revenues. How ought we, in view of the real condition of things, when this charter was granted, to understand this provision? Certainly, not as repealing or abrogating the former one, which secured reimbursement; but as being consistent with and preserving it. An untried experiment was to be made. It could not then be known, whether the form or mode of construction which was prescribed by the charter, would prove to be the best, either for the public accommodation, the safety of the bridge or the interest of the company. Experience alone could determine this. And therefore it was, to alterations in the structure of the bridge and causeway, and perhaps in the mode of supervision and management, to which the legislature had reference; and not a power over the tolls or income of the company, which are expressly secured in the former part of the charter. A power to alter, is not ordinarily to he intended as a power of repeal, or a power to destroy. A majority of us, therefore, believe, that these different charter stipulations, which we have been considering, do not conflict with each other, but refer to distinct subjects. The — 177 — former one secures to the Bridge Company its tolls and revenues free from legislative controul until after has been made; and the latter reserves to the General Assembly a power to direct necessary or convenient alterations in the construction of the works, &c. as experience shall suggest their propriety. These are our views of the original charter. In connexion with this, it becomes our duty to consider the charter or resolve of 1818, which, it is supposed, reserves the power to the General Assembly, claimed by the defendants; because this, as will be seen, refers to the former for the measure of the powers reserved. The bridge, which was erected under the first charter, was carried away, by a flood, in the Winter of 1818; and experience had demonstrated, that essential alterations in the construction of the bridge and causeway were necessary, to avoid in future the inconveniences and disasters to which both the public and the company had been subjected. The very case had occurred, which had been anticipated, and which induced the legislature to reserve the power to make alterations from time to time. And thereupon the General Assembly, by the resolve of May, 1818, directed suitable and necessary alterations to be made; which alterations the committee find were such, when made, as to supersede the necessity of the ferry. And to carry out the fair terms of the original contract between the public and the company, and to provide an indemnity for, and reimbursement of, the increased expenditures imposed by the prescribed alterations, it was here provided, that the ferry should be discontinued; and that the towns of Hartford and East-Hartford should never thereafter be permitted to transport passengers across the river, unless upon the happening of certain contingencies. In this way, it was provided, that a portion at least of the tolls collected at the ferry, should be received by the Bridge Company, and become a substantial part of its revenues; as much so, as the tolls specifically provided by the amended charter. This, now, became one of the stipulations of the contract, equally obligatory upon the state, as any of the stipulations regarding tolls, and which could not be constitutionally impaired, without the consent of the Bridge Company, unless under some authority reserved for that purpose. And the — 178 — great question, after all, is, whether the General Assembly, by the resolve of May, 1818, intended to reserve a power to take this revenue, thus granted to the Bridge Company, away from it, by reviving the ferry, or otherwise, before the company had been reimbursed its expenses and interest, according to the provision of the charter of 1808? The defendants suppose such a power is reserved, by the proviso of the charter of 1818. Thus it reads: “Provided, that this act may, at any time hereafter, be altered, amended or repealed, by the General Assembly, in the same manner as the original act incorporating said Bridge Company.” A general power of alteration, amendment and repeal, is certainly not here reserved, but a qualified one only; otherwise, the above language in italics is entirely surplusage,—it means nothing. But, we think, this language of the proviso is very significant, and was used for the purpose of carrying into effect one of the great purposes of the original charter; which, as we have before said, was, to reimburse those who should venture their money in erecting the bridge, &c. The power of alteration and repeal is here expressly confined to the extent of the same power as defined in the original charter. And why should it not be? Additional expenses were made necessary, by the alterations prescribed by this resolve; and a fund, in addition to the tolls before receivable, was provided for their reimbursement. Why then should not this new provision for compensation, as well as the former one, be guarded from legislative invasion? If to effect this was not the purpose of the legislature, in using the peculiar language of this proviso, we know not what that language means. We have said, that the power of repeal in the original charter, was dependent upon a previous reimbursement of the company the amount of their expenses, with an annual interest of twelve per cent. No greater power of repeal is reserved, by the proviso of the resolve of 1818. But the General Assembly, by its resolution of 1842, has attempted to revive the ferry, without reference to the reimbursement of the company, and before it has been made. This was in direct opposition to the positive pledge of the legislature, in the resolve of 1818. Thus, the franchise granted to the company, has been invaded, and the obligation of the contract impaired, as we think, without constitutional au — 179 — thority. And we must advise the superior court, that the prayer of the plaintiffs’ bill ought to be granted. In this opinion Waite and Storrs, Js., concurred.