Backus v. Lebanon

ParKeh, 0. J. It is admitted that the charter, under which the Fourth New-Hampshire Turnpike corporation has been organized, and has constructed its road, is a contract, and within the protection of the clause of the constitution of the United States, prohibiting the several states from passing any laws impairing the obligation of contracts. But what is the contract ? It is a grant, to the individuals, of a right to organize and form a corporation, with power to construct and keep in repair a road in a certain place ; to erect gates, take tolls, and prevent persons from passing without payment. That grant has taken full effect. The organization has been made ; the road has been constructed ; and the corporation has been in the full exercise of all its powers. But we look in vain for any stipulation, that the [property acquired by the corporation under that contract, whether that property be corporeal or incorporeal, shall be exonerated from contributing, like other property, to the public burdens, or be exempted from any liability to which property is usually subjected in the hands of any citizen of the state. There is nothing in the terms of the grant, nor in the nature of the case, to show a contract, express or implied, that the property of the corporation should not be taken for the public use, if it holds any of such a nature that the public exigencies may require it for that purpose. No clause of the charter has been cited which has the most remote tendency to show any express stipulation of that character. Nor can — 23 — such a stipulation be inferred from the grant of a right to organize as a corporation; or from the grant of a right to acquire property for a particular use, and to take a compensation, in the shape of tolls, for the use of it. Nor can it be inferred from the nature of the property. The fact that the corporation does not own the fee of the land over which the road is constructed, does not imply any such stipulation, nor the fact that a part of the property is a franchise. We are not aware of any principle by which the power of eminent domain is to be restrained from operating upon property of either description. It may be as necessary to take the property of an individual, for public use, where he owns only an incorporeal hereditament, as where he owns the fee simple. And the property of a corporation possesses no greater immunity. It does not impair the obligation of a contract, therefore, to take any of the property of this corporation for the public use, because there is by the charter no contract of that character, express or implied. And if the taking of the property may, incidentally, even put an end to the exercise of the corporate powers, because there is nothing left for their exercise, that will not prove that the property may not be taken. There is no contract that the corporation may not be dissolved, or its operations be suspended, by a subsequent exercise of the power of eminent domain, if their property, franchise included, is of such a nature that that power may operate upon it. The first and second exceptions must, therefore, be overruled. 7 N. H. Rep. 35, Piscataqua Bridge vs. N. H. Bridge; 8 N. H. Rep. 398, Barber vs. Andover; Peirce vs. Somersworth, 10 N. H. Rep. 369. The corporation, like the individual, is guarded from a despotic exercise of power. Whatever is taken must be paid for. And it may be true that the power does not extend to the desti’uction of rights, whether individual or corporate, merely because an opinion exists that it may be beneficial to the public that they should be extinguished. It may be — 24 — that the power does not extend to cases where no public use can be had of what is taken, even if a provision for compensation is made. It is not necessary to settle that here. But it is argued that the state, having made provision for a way here, which may be used by the public, cannot make further provision for the same object, and take the franchise of the corporation for that purpose; and, furthermore, that as the charter contains a provision by which the state may acquire the property, on certain terms, the right of eminent domain is thereby provided for, and that it cannot be exercised in any other mode. Had the charter contained an express stipulation that the property of the corporation should never be taken in the exercise of the power of eminent domain, the question would at once have arisen, whether it was competent for any legislature to make a contract of that character—whether any legislature has authority, by contract, to lay restrictions upon this power. We have already had occasion to indicate a pretty strong impression upon that subject; and it is only necessary, at this time, to say, that we have as yet seen no reason to change the views heretofore suggested. 7 N. H. Rep. 69; (10 N. H. Rep. 138, Brewster vs. Hough.) The fact that the public may now have a use of the road constructed by the turnpike corporation, does not show that the public interest may not require that a public highway be laid over the same ground. The right at present enjoyed, although a public use, is of a limited character, subject to the payment of a toll; and there may be a necessity for an open public highway, which all the citizens may use free from charge. The use which already exists is of the same nature with that which will exist if an open public highway is laid out; but the right to use is1 not the same. The public are entitled to have not merely a way, but a free passage, such as is enjoyed in other parts of the state, whenever the public exigencies shall require such a right of way; and there is nothing in the nature of the corporation, or of the property — 25 — it holds, to prevent the existence and exercise of this right. It is not admitted that the legislature, having granted a fee to an individual, may not take that fee for public use, paying a compensation, if it can be shown that the public necessities require that the whole fee be taken. This would not annul, or abrogate, or impair, the contract by which the grantee acquired the property, but would be in effect a repurchase, through the power and right of eminent domain ; and that purchase may be in invitiirn, if the owner does not consent to part with the property. Nor does the provision of the charter by which the legislature reserved the right to purchase the property, with the consent of the corporation, (given through their acceptance of the charter,) prove, by any means, that the right of eminent domain was thereby surrendered; even if the legisla-, ture might be supposed to possess the power to make such a surrender. That provides a mode by which the government might, after a certain period, come into possession of all the property of the corporation ; and a mode which would not have existed, but for the provision in the charter itself. But this reservation does not seem to us to imply, in any manner, a relinquishment of any right by which the property of the corporation, or a part of it, might be taken for public use. If the legislature should grant land, to an individual, in fee, with a reservation of a right, at the expiration of a term of years, to resume the property granted, upon the repayment of the purchase money with interest, that could not be construed as implying that a public highway should not be laid through it, in the ordinary exercise of the power of eminent domain. And the principle would be the same, if the tract was, of such a shape and character, that the whole of it was afterwards required by the public exigencies. It is further contended, that the power to take by eminent domain cannot be transferred to any subordinate agent, but must be exercised by the state itself. The argument seems to be, that each individual exercise of the power must be by — 26 — a legislative act. No authority is cited in support of this proposition ; and it is certainly in conflict with the practice of this government from its first institution, and it is believed with that of all others of the United States. As early as 1639, the colony of Massachusetts Bay made provision for laying out highways through the action of the court of the county, and the appointment, by such court, of individuals for that purpose. Charters and Colony Lems 126. In 1641 and J642, the inhabitants of the settlements, then existing in New-Hampshire, united themselves to the Massachusetts colony. On the separation, in 1680, and the organization of a provincial government here, it was enacted by the assembly, that the laws they had formerly been governed by should be the rule in judicial proceedings, so far as they would suit our constitution, and not be repugnant to the laws of England, until others were legally published. And in 1719 an act was passed by which the court of quarter sessions were empowered to appoint committees to lay out highways. Prov. Laws 153. Similar provisions, authorizing the courts of the counties to exercise a jurisdiction for this purpose, have been enacted, and acted upon, without any question respecting their constitutionality, up to the present time. It would require very strong reasons to authorize us to break in upon, and condemn, this continued practice of two centuries ; but none have been suggested, and none present themselves to us. If the power of eminent domain is exercised through the action of general laws, and judicial tribunals, there is probably quite as little danger to be apprehended from its abuse as in any mode which can be devised. To the last exception, the answer of the counsel for the petitioners is conclusive. This case is within the express exception of the clause in the constitution which provides, that “ In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised, the parties have a right to a trial by jury,” &c. By the long course — 27 — of legislation, to which reference has just been made, the damages occasioned by the laying out of highways were to be assessed by the court, or by a committee ; and no provision is found for the intervention of a jury, in cases of that character. It had, therefore, been “ otherwise used and prac-tised,” for nearly a century and a half before the adoption of the constitution ; and a similar use and practice has prevailed from that period up to the present time. The case is not only within the express language of the exception, but there is, from these circumstances, abundant evidence that it must have been within the view of the framers of that instrument. It can make no difference that the power or right to take property for a public highway, is applied to property of a different character from that to which it had been applied before the adoption of the constitution. The principle is, that there is an express exception to the constitutional provision providing for a right to a trial by jury, of those cases in which it had been “ otherwise used and practised” ; and it had been otherwise used and practised in all cases where property was taken for public use, by the laying out of a highway. The case, therefore, falls within the principle, although the character of the property taken may in some respects be different. For these reasons, the exceptions must be overruled, and the case remitted to the common pleas, with directions to accept the report of the committee, and establish the highway.