US SUPREME COURT DECISIONS

In 1650, the Legislature of Massachusetts granted to Harvard College the liberty and power to dispose of a ferry by lease or otherwise from Charlestown to Boston, passing over Charles River. The right to set up a ferry between these places had been given by the governor under the authority of the Court of Assistance, by an order dated November 9, 1636, to a particular individual, and was afterwards leased successively to others, they having the privilege of taking tolls regulated in the grant; and when, in 1650, the franchise of this ferry was granted to the college, the rights of the lessees in the same had expired. Under the grant, the college continued to hold the ferry by its lessees and receive the profits therefrom until 1785, when the Legislature of Massachusetts incorporated a company to build a bridge over Charles River where the ferry stood, granting them tolls, the company to pay to Harvard College two hundred pounds a year during the charter, for forty years, which was afterwards extended to seventy years, after which the bridge was to become the property of the Commonwealth. The bridge was built under this charter, and the corporation received the tolls allowed by the law, always keeping the bridge in order and performing all that was enjoined on them to do. In 1828, the Legislature of Massachusetts incorporated another company for the erection of another bridge, the Warren Bridge, over Charles River from Charlestown to Boston, allowing the company to take tolls, commencing in Charlestown, near where the Charles River Bridge commenced, and terminating in Boston about eight hundred feet from the termination of the Charles River Bridge. The bridge was to become free after a few years, and has actually become free. Travelers who formerly passed over the Charles River Bridge from Charlestown square now pass over the Warren Bridge, and thus the Charles River Bridge Company are deprived of the tolls they would have otherwise received. The value of the franchise granted by the Act of 1783 is now entirely destroyed. The proprietors of the Charles River Bridge filed a bill in the Supreme Judicial Court of Massachusetts against the proprietors of the Warren Bridge, first for an injunction to prevent the erection of the bridge and afterwards for general relief, stating that the act of the Legislature of Massachusetts authorizing the building of the Warren Bridge was an act impairing the obligations of a contract, and therefore repugnant to the Constitution of the United States. The Supreme Court of Massachusetts dismissed the bill of the complainants, and the case was brought by writ of error to the Supreme Court of the United States under the provisions of the 25th Section of the Judiciary Act of 1789. The judgment of the Supreme Judicial Court of Massachusetts dismissing the bill of the plaintiffs in error was affirmed.

The Court are fully sensible that it is their duty in exercising the high powers conferred on them by the Constitution of the United States to deal with these great and extensive interests (chartered property) with the utmost caution, guarding, chanrobles.com-red

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as far as they have power to do so the rights of property, at the same time carefully abstaining from any encroachment on the rights reserved to the States.

The plaintiffs in error insisted on two grounds for the reversal of the judgment or decree of the Supreme Court of Massachusetts. 1. That, by the grant of 1650, Harvard College was entitled, in perpetuity, to the right to keep a ferry between Charlestown and Boston; that the right was exclusive, and the legislature had no right to establish another ferry on the same line of travel, because it would infringe the rights of the college and those of the plaintiffs under the charter of 1785. 2. That the true construction of the acts of the Legislature of Massachusetts granting the privilege to build a bridge necessarily imported that the Legislature would not authorize another bridge, and especially a free one, by the side of the Charles River Bridge, so that the franchise which they held would be of no value, and that this grant of the franchise of the ferry to the college, and the grant of the right of pontage to the proprietors of the Charles River Bridge, is a contract which is impaired by the law authorizing the erection of the Warren Bridge. By the Court. It is very clear that, in the form in which this case comes before us, being a writ of error to a State court, the plaintiffs, in claiming under either of these rights, must place themselves on the ground of contract, and cannot support themselves upon the principles that the law divests vested rights. It is well settled by the decisions of this Court that a State law may be retrospective in its character, and may divest vested rights, and yet not violate the Constitution of the United States unless it also impairs the obligation of contract.

The case of Satterlee v. Matthewson, 2 Peters 413 413, cited.

The ferry right which was owned by Harvard College was extinguished by the building of the Charles River Bridge. The ferry, with all its privileges, was then at an end forever, and a compensation in money was given in lieu of it.

As the franchise of the ferry and that of the bridge are different in their nature, and were each established by separate grants which have no words to connect the privileges of the one with the privileges of the other, there is no rule of legal interpretation which could authorize the Court to associate these grants together and to infer that any privilege was intended to be given to the bridge company merely because it had been conferred on the other. The charter of the bridge is a written instrument, and must speak for itself and be interpreted by its own terms.

The grant to the bridge company is of certain franchises by the public to a private corporation, and in a matter where the public interest is concerned. There is nothing in the local situation of this country, or in the nature of our political institutions, which should lead this Court to depart from the rules of construction of statutes adopted under the system of jurisprudence which we have derived from English law. No good reason can be assigned for introducing a new and adverse rule of construction in favour of corporations while we adopt and adhere to the rules of construction known to the English common law in every other case without exception.

Public grants are to be construed strictly. In the case of The United States v. Arredondo, 6 Pet. 736, the leading case on this subject are collected together by the learned judge who delivered the opinion of the Court, and the principle recognized that, in grants by the public, nothing passes by implication. Jackson v. Lamphire, 3 Peters 289; Beatys v. The lessee of Knowles, 4 Peters 165; The Providence Bank v. Billings and Pittmen, 4 Peters 514, cited.

In the case of The Providence Bank v. Billings and Pittman, 4 Peters 514, Chief Justice Marshall, speaking of the taxing power, said,

"as the whole community is interested in retaining it undiminished, that community has a right to insist that

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its abandonment ought no to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear."

The case now before the Court is, in principle, precisely the same. It is a charter from a State. The act of incorporation is silent in relation to the contested power. The argument in favour of the proprietors of the Charles River Bridge is the same, almost, in words, with that used for the Providence Bank -- that is, that the power claimed by the State, if it exists, mist be so used as not to destroy the value of the franchise they have granted to the corporation. The argument must receive the same answer. And the fact that the power has been already exercised so as to destroy the value of the franchise cannot in any degree affect the principle. The existence of the power does not and cannot depend upon the circumstance of its having been exercised or not.

The object and the end of all Government is to promote the happiness and prosperity of the community by which it is established, and it can never be assumed that the Government intended to diminish its power of accomplishing the end for which it was created; and in a country like ours, free, active, and enterprising, continually advancing in numbers and wealth, new channels of communication are daily found necessary both for travel and trade, and are essential to the comfort, convenience, and prosperity of the people. A State ought never to be presumed to surrender this power because, like the taxing power, the whole community have an interest in preserving it undiminished, and, when a corporation alleges that a State has surrendered, for seventy years, its power of improvement and public accommodation in a great and important line of travel, along which a vast number of its citizens must daily pass, the community have a right to insist, in the language of this Court,"that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear." The continued existence of a Government would be of no great value if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to the hands of privileged corporations. The rule of construction announced by the Court was not confined to the taxing power, nor is it so limited in the opinion delivered. On the contrary, it was distinctly placed on the ground that the interests of the community were concerned in preserving, undiminished, the power then in question; and whenever any power of the State is said to be surrendered or diminished, whether it be the taxing power or any other affecting the public interest, the same principle applies, and the rule of construction must be the same. No one will question that the interests of the great body of the people of the State would, in this instance, be affected by the surrender of this great line of travel to a single corporation, with the right to exact toll and exclude competition for seventy years. While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and wellbeing of every citizen depends on their faithful preservation.

The act of incorporation of the proprietors of the Charles River Bridge is in the usual form, and the privileges such as are commonly given to corporations of that kind. It confers on them the ordinary faculties of a corporation for the purpose of building the bridge, and establishes certain rates of toll which the company is authorized to take. This is the whole grant. There is no exclusive privilege given to them over the waters of Charles River, above or below their bridge; no right to erect another bridge themselves, nor to prevent other persons from erecting one; no engagement from the State that another shall not be erected; and no undertaking not to sanction competition nor to make improvements that may chanrobles.com-red

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diminish the amount of its income. Upon all these subjects, the charter is silent, and nothing is said in it about a line of travel so much insisted on in the argument, in which they are to have exclusive privileges. No words are used from which an intention to grant any of these rights can be inferred. If the plaintiffs are entitled to them, it must be implied simply from the nature of the grant, and cannot be inferred from the words by which the grant is made.

Amid the multitude of cases which have occurred, and have been daily occurring for the last forty or fifty years, this is the first instance in which such an implied contract has been contended for, and this Court is called upon to infer it from an ordinary act of incorporation, containing nothing more than the usual stipulations and provisions to be found in every such law. The absence of any such controversy, where there must have been so many occasions to give rise to it, proves that neither States nor individuals nor corporations ever imagined that such a contract can be implied from such charters. It shows that the men who voted for these laws never imagined that they were forming such a contract, and if it is maintained that they have made it, it must be by a legal fiction, in opposition to the truth of the fact and the obvious intention of the party. The Court cannot deal thus with the rights reserved to the States, and, by legal intendments and mere technical reasoning, take away from them any portion of that power over their own internal police and improvement which is so necessary to their wellbeing and prosperity.

Let it once be understood that such charters carry with them these implied contracts, and give this unknown and undefined property in a line of traveling, and you will soon find the old turnpike corporations awakening from their sleep and calling upon this Court to put down the improvements which have taken their place. The millions of property which have been invested in railroads and canals upon lines of travel which had been before occupied by turnpike corporations will be put in jeopardy. We shall be thrown back to the improvements of the last century, and be obliged to stand still until the claims of the old turnpike corporations shall be satisfied and they shall consent to permit these States to avail themselves of the lights of modern science and to partake of the benefit of those improvements which are now adding to the wealth and prosperity and the convenience and comfort of every other part of the civilized world.

In error to the Supreme Judicial Court of Massachusetts. The plaintiffs in error were a corporation created by an act of the Legislature of the State of Massachusetts, passed on the 9th of March 1785, entitled

"an act for incorporating certain persons for the purpose of building a bridge over Charles River, between Boston and Charlestown, and supporting the same, during forty years."

The preamble of the act stated,

"whereas, the erecting a bridge over Charles River, in the place where the ferry between Boston and Charlestown is now kept, will be of great public utility, and Thomas Russell, Esq., and others, have petitioned this court for an act of incorporation, to empower them to build the same bridge,"

&c. The act authorizes taking certain tolls, prescribed the size of the chanrobles.com-red

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bridge, and fixed certain regulations by which it would not be permitted to impede the navigation of Charles River, and enjoined certain things to be done by which the bridge should be kept in good order and fitted for constant and convenient use. The fifth section of the act provided

"that after the said toll shall commence, the said proprietors or corporation shall annually pay to Harvard College or University the sum of two hundred pounds during the said term of forty years, and at the end of the said term, the said bridge shall revert to, and be the property of, the Commonwealth, saving to the said college or university, a reasonable and annual compensation for the annual income of the ferry which they might have received had not said bridge been erected."

The bridge was erected under the authority of this act, and afterwards, on the 9th of March 1792, in an act which authorized the making a bridge from the western part of Boston to Cambridge, after reciting that the erecting of Charles River bridge was a work of hazard and public utility, and another bridge in the place proposed for the West Boston bridge might diminish the emoluments of Charles River bridge; therefore, for the encouragement of enterprise, the eighth section of the act declared

"that the proprietors of the Charles River bridge shall continue to be a corporation and body politic for and during the term of seventy years, to be computed from the day the bridge was first opened for passengers."

The record contained exhibits relating to the establishment of the ferry from Charlestown to Boston at the place where the bridge was erected, and also the proceedings of the General Courts of Massachusetts by which the ferry there became the property of Harvard College. Some of these proceedings, verbatim, were as follows:

"A Court of Assistance, holden at Boston, Nov. 9th, 1830. Present, the Gov'nr, Dep'y Gov'r, Sir Richard Saltonstall, Mr. Ludlow, Capt. Endicott, Mr. Coddington, Mr. Pinchon, Mr. Bradstreet. It is further ordered, that whosoever shall first give in his name to Mr. Gov'nr, that hee will undertake to sett upp a ferry betwixt Boston and Charlton, and shall begin the same, at such tyme as Mr. Gov'r shall appoynt; shall have 1d. for every person, and 1d. for every one hundred weight of goods hee shall so transport. "

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"A court holden at Boston, November 5th, 1633. Present, the Governor, Mr. Ludlow, Mr. Nowell, Mr. Treasu'r, Mr. Coddington, S. Bradstreet. Mr. Rich. Brown is allowed by the court to keepe a fferry over Charles ryver, against his house, and is to have 2d. for every single person hee soe transports, and 1d. a piece, if there be two or more."

"Att the Gen'all Court, holden at Newe Towne, May 6th, 1635. Present, the Govnr, Deputy Gov'nr, Mr. Winthrop, Sen'r, Mr. Haynes, Mr. Humphrey, Mr. Endicott, Mr. Treasu'r, Mr. Pinchon, Mr. Nowell, Mr. Bradstreete and the deputies. It is ordered that there shall be a fferry sett upp on Boston syde, by the Wynd myll hill, to transport men to Charlton and Wenesemet, upon the same rates that the fferry-men att Charlton and Wenesemet transport men to Boston."

"A Generall Courte, held at Newtowne, the 2d day of the 9th mo. 1637. (Adjourned until the 15th, present.)"

"Present, the Governor, Deputy Gov'nr, Mr. John Endicott, Mr. Humfrey, Mr. Bellingham, Mr. Herlakenden, Mr. Stoughton, Mr. Bradstreete and Increase Nowell."

"The ferry betweene Boston and Charlestowne is referred to the Governor and Treasurer, to let at �40 pr. A., beginning the 1st of the 10th mo., and from thence for three years."

"At a General Court of elections, held at Boston, the 13th of the 3d mo., A. 1640. Present, the Governor, &c. Mr. Treasurer, Mr. Samuel Sheapard and Leift. Sprague, have power to lett the ferry between Boston and Charlestown, to whom they see cause, when the time of Edward Converse is expired, at their discretion."

"At a session beginning the 30th of the 8th mo. 1644. It is ordered, that the magistrates and deputies of ye. co'rte, their passage over the fferries, together with their necessary attendants, shall be free, not paying any thing for it, except at such ferries as are appropriated to any, or are rented out, and are out of the countries' hands, and there it is ordered that their passages shall be paid by ye. country."

Further extract from the colony records, filed by the plfs.

"At a General Court, &c. 7th day 8th mo. The ferry betweene Boston and Charlestown is granted to the Colledge."

"At a Generall Courte of elections, begunne the 6th of May

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1646. In answer to the petition of James Heyden, with his partners, ferrymen of Charlestown, and of the satisfaction of all other ferry-men, that there may be no mistake who are freed, or should be passage free, and how long: It is hereby declared, that our honored magistrates, and such as are, or from time to time, shall be chosen to serve as deputyes at the Generall Court, with both their necessary attendants, shall be passage free over all ferryes; and by necessary attendants, wee meane a man and a horse, at all times during the term of their being magistrates or deputyes, but never intended all the familyes of either at any time, and that ye order neither expresseth nor intendeth any such thing."

"Att a third session of the Generall Courte of elections, held at Boston, the 15th of October 1650. In answer to the petition of Henry Dunster, president of Harvard Colledge, respecting the hundred pounds due from the country to the college, and rectifying the fferry rent, which belongs to the college: It is ordered, that the treasurer shall pay the president of the college the some of one hundred pounds, with two years forbearance, as is desired; and forbearance till it be paid out of this next levy, that so the ends proposed may be accomplisht; and for the ferry of Charles Towne, when the lease is expired, it shall be in the liberty and power of the president, in behalfe and for the behoofe of the College, to dispose of the said ferry, by lease, or otherwise, making the best and most advantage thereof, to his own content, so as such he disposeth it unto performe the service and keep sufficient boates for the use thereof, as the order of the court requires."

The case of the plaintiffs in error is thus stated in the opinion of the court:

It appears from the record that, in the year 1650, the Legislature of Massachusetts granted to the president of Harvard College "the liberty and power" to dispose of the ferry from Charlestown to Boston, by lease or otherwise, in the behalf, and for the behoof of the college, and that, under that grant, the college continued to hold and keep the ferry, by its lessees or agents, and to receive the profits of it, until 1758. In that year, a petition was presented to the Legislature by Thomas Russell and others, stating the inconvenience of the transportation by ferries over Charles River and the public advantage that would result from a bridge and praying to be incorporated for the purpose of erecting a bridge in the place where the ferry between chanrobles.com-red

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Boston and Charlestown was then kept. Pursuant to the petition, the Legislature, on the 9th of March 1785, passed an act incorporating a company by the name of "The Proprietors of the Charles River Bridge" for the purposes mentioned in the petition. Under this charter, the company were authorized to erect a bridge "in the place where the ferry is now kept;" certain tolls were granted, and the charter was limited to forty years from the first opening of the bridge for passengers; and from the time the toll commenced until the expiration of the term, the company were to pay two hundred pounds, annually, to Harvard College; and at the expiration of the forty years, the bridge was to be the property of the Commonwealth,

"saving, as the law expresses it, to the said college or university, a reasonable annual compensation for the annual income of the ferry, which they might have received, had not the said bridge been erected."

The bridge was accordingly built, and was opened for passengers on the 17th June 1786. In 1792, the charter was extended to seventy years from the opening of the bridge, and, at the expiration of that time, it was to belong to the Commonwealth. The corporation have regularly paid to the college the annual sum of two hundred pounds, and have performed all the duties imposed on them by the terms of their charter.

In 1828, the Legislature of Massachusetts incorporated a company by the name of "The proprietors of the Warren Bridge," for the purpose of erecting another bridge over the Charles River. The bridge is only sixteen rods, at its commencement on the Charlestown side, from the commencement of the bridge of the plaintiffs, and they are about fifty rods apart at their termination on the Boston side. The travelers who pass over either bridge proceed from Charlestown square, which receives the travel of many great public roads leading from the country, and the passengers and travelers who go to and from Boston used to pass over the Charles River Bridge, from and through this square, before the erection of the Warren Bridge.

The Warren Bridge, by the terms of the charter, was to be surrendered to the State as soon as the expenses of the proprietors in building and supporting it should be reimbursed, but this period was not, in any event, to exceed six years from the time the company commenced receiving toll. When the original bill in this case was filed, the Warren Bridge had not been built, and the bill was filed, after the passage of the law, chanrobles.com-red

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in order to obtain an injunction to prevent its erection, and for general relief.

The bill, among other things, charged as a ground for relief that the act for the erection of the Warren Bridge impaired the obligation of the contract between the State of Massachusetts and the proprietors of the Charles River Bridge, and was therefore repugnant to the Constitution of the United States. Afterwards, a supplemental bill was filed stating that the bridge had been so far completed that it had been opened for travel, and that divers persons had passed over, and thus avoided the payment of the toll which would otherwise have been received by the plaintiffs. The answer to the supplemental bill admitted that the bridge had been so far completed that foot passengers could pass, but denied that any persons but the workmen and superintendents had passed over with their consent.

In this State of the pleadings, the cause came on for a hearing in the Supreme Judicial Court for the County of Suffolk, in the Commonwealth of Massachusetts, at November term 1829, and the court decided that the act incorporating the Warren Bridge did not impair the obligation of the contract with proprietors of the Charles River Bridge, and dismissed the complainant's bill. The complainants prosecuted this writ of error. chanrobles.com-red

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