Samuel Freeman Miller

“ If one power of legislation may be parted with or placed under the veto of a private corporation, not to be resumed, so may every power successively be and by degrees, and future legislatures may be such in name only. The government controlled by corporations would not be the republican government guaranteed by the Constitution.
This company can have no property or grant of property in the river, except in the length occupied by their own bridge. ”

“ But, if the legislature had directly contracted with the bridge proprietors, that for ninety-nine years no other bridge within these limits should be authorized or built, would such law be valid to bind future legislatures as a contract? The power to make roads and build bridges is a governmental power. It is always a part of the sovereign or legislative power, and the duty to provide them is correlative. In New Jersey, now, as in 1790, all legislative power is in the Senate and Assembly, elected periodically by the people. ”

“ If the turnpike bridge had been taken by the railroad company, then it is conceded that a right to compensate existed. But the difficulty of dealing with a sovereign right as private property, which is claimed by the old corporation, presents the difficulty lying at the foundation of this controversy. Here are the proprietors of the land on each side of the river, whose right to just compensation is not open to controversy, if their lands are taken; their claim is for private property, and the land is taken by the sovereign right claimed by the turnpike company. ”

“ The wise policy of our law, which interprets grants of the crown in this respect, by other rules than those which are applied in the construction of grants of individuals, must be taken in conjunction with the universal presumption. Against an individual, it is presumed he meant to convey a benefit, with the utmost liberality his words will allow. It is indifferent to the public in which person an interest remains, whether in the grantor or grantee. With regard to the grant of the sovereign it is far otherwise. ”

“ It is true, that the court rests its decision mainly on the ground, that by the bill of rights of the State of North Carolina, no such monopoly as that claimed by plaintiff can exist. But they argue very forcibly, that a railroad bridge is no violation of a franchise for an ordinary toll-bridge, and intimate strongly that they would so hold if the case required the decision of the point. ”

“ If we can arrive at a clear and precise idea what that privilege is, we shall perhaps be enabled to decide whether the erection proposed by defendants will infringe it.
In the first place it is not an exclusive right to transport passengers and property over the Hackensack and Passaic Rivers, within the prescribed limits, for there is no prohibition of ferries, nor is it pretended that they would violate the contract. ”

“ 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. ”

“ 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 had a fair right to expect under their grant. ”

“ In all the departments of knowledge, it has been a constant source of perplexity to those who have attempted to reduce discoveries and inventions to scientific rules and classifications, that old terms, with well-defined meanings, have been applied so often to things totally new, either in their essence or in their combination. ”

“ The right to collect toll of persons and things passing over their bridges, is the privilege or franchise which they have, and that right is rendered valuable by the prohibition to build other bridges within the limits designated. This prohibition of other bridges is so far a part of the contract, and only so far, as it is necessary to enable plaintiffs to reap the benefit of their right to collect toll for the use of their bridges. ”

“ No animal can pass over it on foot. No vehicle which can pass over the bridge of plaintiffs can by any possibility pass over that of defendants. No class of persons, or things, of which plaintiffs can exact toll, can evade that toll by using the structure of defendants.
It may be said, that passengers and property now transported by that railroad, would be compelled to use the bridge of plaintiffs, if there were no such road and no such viaduct. ”

“ In no department of human enterprise have more radical changes been made, than in that which relates to the means of transportation of persons and property from one point to another, including the means of crossing water-courses, large and small. ”

“ It is to avoid the danger of being misled by the use of a term well understood before, but which is a very poor representative of the new idea desired to be conveyed, that our modern science is enriched with so many terms, compounded of Greek and Latin words, or parts of words. ”

“ 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 and New Haven Railway Company [26] 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. ”

“ 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 special character of the structure, and its want of resemblance to a bridge, is set forth in the defendants' answer. [22] Neither man nor beast can cross on it, save in the defendants' cars. The viaduct is for a kind of vehicle which no bridge known in 1790 can carry. It is wholly open. The only roadway is two or more iron rails, separated by a distance of four feet asunder. It is in fact no more a bridge than a sieve is a bucket. ”

“ It can only come in to be compensated for public property, which the eminent domain clearly is. For the private property taken on either bank of the river, underlying the eminent domain, the new company has already paid. ”

“ The bill sets forth, that in the year 1790, the legislature of New Jersey passed an act appointing commissioners, with powers to contract for the building of one bridge over each of the rivers Passaic and Hackensack, authorizing said commissioners to fix the maximum rate of toll to be taken by the builders, and granting them this right of toll for ninety-nine years. ”

“ The case of McRee v. The Wilmington and Raleigh Railroad Company, [33] was an action at law, by the owner of a bridge, who set up an exclusive franchise, against a railroad company whose track crossed the stream within the limits of his franchise, for a penalty allowed by statute for any violation of his right of toll. ”

“ We are not however, under the necessity of putting the decision upon the mere question of construction, for the Declaration of Rights at once puts an end to any such unreasonable pretention 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, privileges, or honors ought to be granted or conferred in this State ”

“ VII. Nor will the court take jurisdiction, when the court below decided the cause on a question of practice. [12]
The last defence against the relief prayed, is that a rule of practice in equity will prevent an injunction; and that rule is, that where the owner of a franchise (as of a ferry) , neglects to exercise it (provide proper boats, &c.) , the court will not interfere by injunction to protect the franchise from invasion. ”