Peter Vivian Daniel

“ It is true, that the shares in a corporation are property, but the franchise is not. It cannot be taken to respond to any liabilities of the corporation, and can only be extinguished by forfeiture. It is entirely unlike a grant of land, to which the State court compare it, in this,-this is a grant of royal prerogative, or branch of sovereignty; whereas, when land is granted, all the powers of sovereignty, to enforce the laws, levy taxes, and in all other respects, remain still in the State over the granted territory. ”

“ A correct view of this matter must demonstrate, moreover, that the right of eminent domain in government in no wise interferes with the inviolability of contracts; that the most sanctimonious regard for the one is perfectly consistent with the possession and exercise of the other.
Under every established government, the tenure of property is derived mediately or immediately from the sovereign power of the political body, organized in such mode or exerted in such way as the community or State may have thought proper to ordain. It can rest on no other foundation, can have no other guarantee. ”

“ The franchise is extinguished but is extinguished by purchase; and if any injustice is done, it must consist rather in the arbitrary and unnecessary exercise of an acknowledged power, than in any denial or impeachment of the validity of the grant, or the rights derived from it. The proceeding, instead of questioning or impairing the obligation of the contract, recognizes and affirms it, and gives a compensation upon the simple and only ground, that the rights and property of the plaintiffs derived from the grant are not to be questioned. ”

“ II. All the powers of the States, as sovereign States, must always be subject to the limitations expressed in the United States Constitution, nor can they any more be permitted to overstep such limitations of power by the exercise of one branch of sovereignty than another. ”

“ So, where a grant of a franchise comes in collision with a previous grant of a similar kind, it has been objected, that it was not competent for the legislature to take the property of one person for the use and benefit of another; yet such a proceeding has been sustained, where it is for public use, and the increased benefit to the public requires the sacrifice. ”

“ The original idea of the eminent domain was the right of sovereignty, or residuum of power over the land which remained in the sovereign or lord paramount after the fee granted to the feudatory, and was therefore confined to the realty. In the progress of arts and commerce, when personal property became worthy of legal consideration, this power of sovereignty was extended over that, and even included debts. But this grant to the plaintiffs can fall within no such category of property. It is a franchise, a pure franchise. ”

“ In our country, it is believed that the power was never, or, at any rate, rarely, questioned, until the opinion seems to have obtained, that the right of property in a chartered corporation was more sacred and intangible than the same right could possibly be in the person of the citizen ”

“ For, as a question of the power to appropriate to public uses the property of private persons, resting upon the ordinary foundations of private right, there would seem to be room neither for doubt nor difficulty. A distinction has been attempted, in argument, between the power of a government to appropriate for public uses property which is corporeal, or may be said to be in being, and the like power in the government to resume or extinguish a franchise. ”

“ Even if it were true, as has been holden, that property which the corporation create or acquire, and the taking of which would not destroy the grant, might be taken in the proper exercise of this power of eminent domain, yet the grant itself, the franchise, is no property. A franchise is defined to be 'a royal privilege or branch of the king's prerogative, subsisting in the hand of a subject.'
The State alone possessed the power to erect and sustain toll-bridges across large streams in the public highway. This prerogative was duly granted to the plaintiffs as to a certain stream ”

“ The general power of the State to reclaim, for public use, lands which have been granted to individuals, will not be questioned; but the question has been agitated elsewhere, and may be started here, whether a franchise granted to private persons for their private emolument, and yet for a public use, is not beyond the reach of that power. ”

“ New roads are substituted for old ones for convenience alone. Canals and railroads are not indispensable; the country may subsist, as it has done, without them; yet they are so intimately connected with the great interests of the country, and have such important bearing upon its prosperity and welfare, that the propriety and legality of the exercise of this right of eminent domain for their establishment have never been doubted. ”

“ But being now recognized in court, our only security is to be found in this tribunal, to keep it within some safe and well-defined limits, or our State governments will be but unlimited despotisms over the private citizens. They will soon resolve themselves into the existing will of the existing majority, as to what shall be taken, and what shall be left to any obnoxious natural or artificial person. ”

“ In conformity with the provisions of the statute, the whole property of the plaintiffs, both realty and franchise, was appraised, and due provision made for compensation to the plaintiffs to the full value of the same.
By a statute of that State, then and still in force (passed November, 1839) , the Supreme and County Courts have the same power to take any real estate, easement, or franchise, of any turnpike or other corporation, when, in their judgment, the public good requires a public highway, which they have by law to lay out highways over individual or private property. ”

“ The distinction attempted to be drawn from the supposition, that the citizen takes his grant of land knowing and expecting that it may be resumed for public use, but receives his grant of a franchise with different expectations, is evidently a distinction without a difference, as it is based upon an assumption in every point of view erroneous. ”

“ But into all contracts, whether made between States and individuals or between individuals only, there enter conditions which arise not out of the literal terms of the contract itself; they are superinduced by the pre existing and higher authority of the laws of nature, of nations, or of the community to which the parties belong; they are always presumed, and must be presumed, to be known and recognized by all, are binding upon all, and need never, therefore, be carried into express stipulation, for this could add nothing to their force. ”

“ The objection urged in the State court, that no new highway is laid out, is founded upon an erroneous assumption. The public and free highway is, in a legal sense, a different thing from a bridge, or way, which is private property, and which the citizens may use only for a toll, to be paid in each instance of using.
The highway was public only in a limited sense. That it was competent for the legislature or the courts, under the statute, to enlarge the public use, is, I think, clear. ”

“ If the power exist in the State governments, the power of judging of the reasonableness of its exercise in a given case, and of the degree of necessity generally which justifies the appropriation of private property to public use, must exist there also. ”

“ Whenever any toll-bridge heretofore granted becomes of any value to the proprietors, and thereby obnoxious to the inhabitants of the vicinity, they may present a petition to their County Court, and therein falsely pretend that a new highway is there needed, and the court shall appoint commissioners, of their own selecting, who may pretend to lay out a new highway, but really only follow the old one across the bridge, and appraise the damage to the proprietors of the bridge ”

“ Upon any other hypothesis, the law of property would be simply the law of force. Now it is undeniable, that the investment of property in the citizen by the government, whether made for a pecuniary consideration or founded on conditions of civil or political duty, is a contract between the State, or the government acting as its agent, and the grantee ”

“ We are aware of nothing peculiar to a franchise which can class it higher, or render it more sacred, than other property. A franchise is property, and nothing more; it is incorporeal property, and is so defined by Justice Blackstone, when treating, in his second volume, chap. ”

“ By the proceedings and judgment just mentioned, compensation was assessed and awarded to the plaintiffs for this appropriation of their property, and for the consequent extinguishment of their franchise. The judgment of the County Court, having been carried by certiorari before the Supreme Court of the State, was by the latter tribunal affirmed. ”

“ In May, 1843, the commissioners reported that they had examined the premises, and were unanimously of opinion that a new road ought to be laid out over a considerable portion of the distance between the termini mentioned in the petition, which road, they said, they had caused to be surveyed and laid out. ”

“ Because the acceptance of said report would render the maintenance of two roads necessary through a large part of the town, while the natural difficulties are so great, that, with only one, the burdens of said town, when compared with its means, are unusually onerous.
'3. That said surveyed route, or Nurse Swamp route, so called, is a longer, more wet, and more expensive route, between the termini in question. ”