Argument for the Bridge Proprietors.

peril to life. The subject-matter of the contract was to prohibit any injurious competition by bridges within the prescribed limits. Beyond the limits they were not to be protected; and within the limits only against bridges, not against ferries, tunnels, balloons, or any other device. The object was, that all passengers and cattle, and produce and goods, carried in the vehicles on which they had a right to take toll, should have no other way of passing the river on any bridge within these limits but this. This would compel them to cross by plaintiffs' bridge or to go out of their way, or by an inconvenient and tedious ferry-boat. And the intent of the legislature was, by this covenant, to induce capitalists to expend their money in building bridges which would not at first remunerate them, but by a long monopoly would. The object would not have been effected by protecting them only against a bridge like their own, which, if erected, would only take away one-half their custom, and allowing a railroad bridge, which would take away nineteentwentieths of it. Had the act of 1790 contained in the contract against any other bridge, an exception of a railroad bridge, or plank road bridge, or any other bridge which might be used for any improved system of travel thereafter to be brought in use, the persons who built this bridge would never have undertaken it. A toll bridge, or a free bridge, or a bridge, which, like this, is used as part of a railroad line, charging no tolls eo nomine, but a fare for being carried over the whole route, in which compensation for the use of the bridge is included, all are within the object and intent of this prohibition. They all carry passengers, animals, and freight, that without them would pass over this bridge of the plaintiffs and pay tolls. The object and intent of the legislature coincide with the subject-matter of the act, and can only be carried out by prohibiting " any other bridge." It is idle to say that the plaintiffs cannot charge toll for locomotives, cars, elephants, &c., and are not bound to provide bridges for them, and, therefore, bridges can be built to accommodate them; and all passengers and carriages that should otherwise go over plaintiffs' bridge, be

Argument for the Bridge Proprietors.

carried on these new bridges. If the contract is clear, and the bridges both within the letter and object of it, the State must adhere to its contract although improvident.

In The Enfield Toll-Bridge Company v. The Hartford anc New Haven Railway Company,* the point now before this court was fully argued in a full bench. Williams, C. J., one of the ablest of the jurists of America, in delivering the opinion of the court speaks as follows. We cite his language as much for its cogency, as we do the judgment for its authority. Thus he speaks for the law. It is impossible that we can speak more potently for ourselves. Let his exposition. of law be our argument in the case. We adopt his language

as our own:

"What is a bridge? It is a structure of wood, iron, brick or stone, ordinarily erected over a river, brook, or lake, for the more convenient passage of persons or beasts, and the transportation of baggage; and whether it is a wide raft of logs floating upon the water, and bound with withes, or whether it rests on piles of wood, or stone abutments or arches, it is still a bridge. The particular manner in which the structure is built is not described; but it is said to be much in the manner common to railroad bridges, the bottom covered with plank and the sides secured by railing. It is a matter of notoriety that railroad bridges are built upon solid abutments of mason-work and resting on piers of stone between the abutments, thus giving strength and security to the frame above. It is not easy to see wherein such a structure differs from an ordinary bridge, except that, as it is to endure a greater burden, it is more solid and substantial. It is true the planks and rails upon it are laid in a manner most convenient for the cars which are to pass it, and not convenient for, perhaps not admitting, common vehicles, and not intended for, though admitting, the passage of foot-passengers.

"It would seem, therefore, as if this was what would be ordinarily called a bridge. But we agree that it is not the name which is sufficient to designate it. We must then consider the object: What was the intent of this structure? The safe and expeditious passage of persons, whether from greater or less

* 17 Connecticut, 56.

Argument for the Bridge Proprietors.

distances, over this stream, in the cars or carriages provided for that purpose, together with all baggage or freight intrusted to the care of the company. It may not, and it is not intended to accomplish all the objects of a common bridge, as it is not adapted to the common vehicles in use; but can that fact change its character as a bridge? A bridge adapted only to foot-passen. gers would be still a bridge; and it would hardly be claimed that such a bridge might be erected by the side of the plaintiffs' under the provisions of this act. We find then a structure of the form of a bridge, with the name of a bridge and of the character of a bridge. But go a step further, and see if it is not doing the business of a bridge? Certain facts are not specifically found, which we all know must exist, such as, that every passenger in the cars must cross this river upon this bridge, within the limits secured to the plaintiffs. It is constantly doing at least some, if not much, of the business which the plaintiffs bad a fair right to expect under their grant.

"We find then this structure with the form of a bridge, with the name of a bridge, with the character of a bridge, doing its work, and in this way doing the very injury to the plaintiffs which this proviso was designed to guard against. We cannot, then, but conclude that it is a bridge.

"It is said it is not the bridge contemplated in the act, or 'another bridge.' It cannot be claimed that by another bridge was intended a bridge exactly like this, or that a bridge of iron or stone would not be within the provisions, or even a bridge of boats; nor can it be claimed that a bridge much safer or stronger would be equally within the prohibitions. Nor is it the improvement in the structure of the bridge, nor the additional safety it affords to travellers, that will give the rights, or constitute it 'another bridge.'

"It is further claimed, that when the plaintiffs' charter was granted, railroads were unknown; therefore it cannot be supposed the legislature intended bridges connected with railroads. But whether the fact is so or not it can make no difference. Is a grant of this kind, which we here adjudged to be a contract, to be set aside, because an advantage not contemplated at the time may result from its violation? Is there any implied condition in such a grant, that, upon some new improvement being made, the grant should be void? How would such a claim be treated in other cases of great public improvement? Suppose

Opinion of the court.

the city of New York had leased Fulton Ferry for a term of years, when no boats were known but those which were moved by the hand and wind or tide; after the introduction of steamboats, could they have leased the ferry to the persons who would navigate it by steam? Or could the legislature do this, if they had granted the ferry? We know of no principle by which this case can be distinguished from that."

This opinion is an answer to all that has been said by the opposite side on the point which it treats of; an answer to which that side can find no reply.

The case cited by the other side, from North Carolina, does not decide anything contrary to this. The suit was one for a penalty in violating an act of Assembly, passed in 1756, to encourage B. Herron to build a bridge over the Cape Fear kiver. Among other enactments made by the Assembly was this one: "It shall not be lawful for any person whatever to keep any ferry, build any bridge, or set any person or persons, carriage or carriages, cattle, &c., over the said river for fee or reward, within six miles of the same, under a penalty of twenty shillings for each offence."

The defendants pleaded specially a charter of 1833 to themselves.

Pearson, J., in deciding the case, said that it was unreasonable on the part of Herron, in consideration of the services he was to perform, to exact a perpetual monopoly of setting persons and property over the river by means of his bridge, so that it should never thereafter be in the power of the Governor, Council, and Assembly, no matter what might be the change in the condition of things, either in reference to the increased necessity for transports across the river, or the improved modes of transportation, to authorize any other mode of crossing the river, &c. Suppose, for instance, two cities had grown up, one on either side of the river, so that the necessities of the public should call for a dozen such bridges, or the progress of science had called for a tunnel under the river, or a line of balloons over the river or a railroad rushing by steam from one extremity of the continent to the other, across the rivers, was it the meaning of the parties

66

Opinion of the court.

that the government tied its own hands, and disabled itself for all time to come from doing its duty?"

But the Judge declines to decide the case upon that ground, and says:

"We are not, however, under the necessity of putting the decision upon the mere question of construction, for the Decla ration of Rights at once puts an end to any such unreasonable pretension or claim to an hereditary and perpetual monopoly as that set up by the plaintiffs. Declaration of Rights, § 3, says 'that no set of men are entitled to exclusive or separate emoluments or privileges from the community but in consideration of public services;' § 22, 'that no hereditary emoluments, privi. leges, or honors ought to be granted or conferred in this State;" § 23, 'that perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.'"

And the case, proceeding entirely upon the peculiar Constitution of North Carolina, is evidently of no authority outside of that State.

The case cited from New York-even if it were in pointis more than answered by the reasoning of Williams, C. J., in the case of the Enfield Toll Bridge, which we have quoted at large a page or two back.

Mr. Justice MILLER delivered the opinion of the court: The first point arising in the case is that which relates to the jurisdiction of this court to review the decision of the State court of New Jersey. This is a question which this court has always looked into in this class of cases, whether the point be raised by counsel or not; but here it is much pressed, and we proceed to examine it.

It is asserted by the plaintiff's in error, that the validity of the act of the New Jersey legislature of 1860, is drawn in question as being contrary to that provision of the Constitution of the United States, which declares that no State shall pass any law impairing the obligation of a contract; and that the decision of the State court was in favor of its validity, and the case is therefore embraced by the 25th section of the Judiciary Act.