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often decided by the Supreme Court of the United States, though not without remonstrance on the part of State courts,1 that an agreement by a State, for a consideration received or supposed to be received, that certain property, rights, or franchises shall

be exempt from taxation, or be taxed only at a certain [* 281]* agreed rate, is a contract protected by the Constitution, that the question can no longer be considered an open one.2 In any case, however, there must be a consideration, so that the State can be supposed to have received a beneficial equivalent; for it is conceded on all sides that, if the exemption is made as a privilege only, it may be revoked at any time.

1 Mechanics' and Traders' Bank v. Debolt, 1 Ohio, N. s. 591; Toledo Bank v. Bond, 1 Ohio, N. s. 622; Knoop v. Piqua Bank, 1 Ohio, N. s. 603; Milan and R. Plank Road Co. v. Husted, 3 Ohio, N. s. 578; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 69; Brewster v. Hough, 10 N. H. 143; Backus v. Lebanon, 11 N. H. 24; Thorpe v. R. & B. R. R. Co., 27 Vt. 140; Brainard v. Colchester, 31 Conn. 410; Mott v. Pennsylvania R. R. Co., 30 Penn. St. 9; East Saginaw Salt Manuf. Co. v. East Saginaw, 19 Mich. 259; West Wis. R. Co. v. Supervisor of Trempeleau Co., 35 Wis. 257, 265; Attorney-General v. Chicago, &c. R. R. Co., 35 Wis. 425, 572. See also the dissenting opinion of Mr. Justice Miller, in Washington University v. Rouse, 8 Wall. 441, in which the Chief Justice and Justice Field concurred. Also, Raleigh, &c. R. R. Co. v. Reid, 64 N. C. 155.

2 New Jersey v. Wilson, 7 Cranch, 164; Gordon v. Appeal Tax Court, 3 How. 133; Piqua Bank v. Knoop, 16 How. 369; Ohio Life and Trust Co. v. Debolt, 16 How. 416; Dodge v. Woolsey, 18 How. 331; Mechanics' and Traders' Bank v. Debolt, 18 How. 380; Mechanics' and Traders' Bank v. Thomas, 18 How. 384; McGee v. Mathis, 4 Wall. 143; Home of the Friendless v. Rouse, 8 Wall. 430; Washington University v. Rouse, 8 Wall. 431; Wilmington R. R. Co. v.

And

Reid, 13 Wall. 264; Raleigh and Gaston R. R. Co. v. Reid, 13 Wall. 269; Humphrey v. Peques, 16 Wall. 244; Pacific R. R. Co. v. Maguire, 20 Wall. 36. See also Atwater v. Woodbridge, 6 Conn. 223; Osborne v. Humphrey, 7 Conn. 335; Parker v. Redfield, 10 Conn. 495; Landon v. Litchfield, 11 Conn. 251; Herrick v. Randolph, 13 Vt. 525; Armington v. Barnet, 15 Vt. 751; O'Donnell v. Bailey, 24 Miss. 386; St. Paul, &c. R. R. Co. v. Parcher, 14 Minn. 297; Grand Gulf R. R. Co. v. Buck, 53 Miss. 246; Central R. R. Co. v. State, 54 Geo. 401; St. Louis, &c. R. R. Co. v. Loften, 30 Ark. 693.

8 Christ's Church v. Philadelphia, 24 How. 300; Brainard v. Colchester, 31 Conn. 410. See also Commonwealth v. Bird, 12 Mass. 442; Dole v. The Governor, 3 Stew. 387. If an exemption from taxation exists in any case, it must be the result of a deliberate intention to relinquish this prerogative of sovereignty, distinctly manifested. Easton Bank v. Commonwealth, 10 Penn. St. 450; Providence Bank v. Billings, 4 Pet. 561; Christ Church v. Philadelphia, 24 How. 302; Gilman v. Sheboygan, 2 Black, 513; Herrick v. Randolph, 13 Vt. 531; East Saginaw Salt Manuf. Co. v. East Saginaw, 19 Mich. 259; s. c. 13 Wall. 373; People v. Roper, 25 N. Y. 629; People v. Commissioners of Taxes, 47 N. Y. 501; Lord

it is but reasonable that the exemption be construed with strictness.1

The power of the legislature to preclude itself in any case from exercising the power of eminent domain is not so plainly decided. It must be conceded, under the authorities, that the State may grant exclusive franchises, like the right to construct the only railroad which shall be built between certain termini; or the only bridge which shall be permitted over a river between specified limits; or to own the only ferry which shall be allowed at a certain point, but the grant of an exclusive privilege will not prevent the legislature from exercising the power of eminent domain in respect thereto. Franchises, like every other thing of value, and in the nature of property, within the State, are subject to this power; and any of their incidents may be taken away, or themselves altogether annihilated, by means of its exercise. And it is believed that an express agreement in the charter, that the power of eminent domain should not be so exercised as to impair or affect the franchise granted, if not void as an agreement beyond the power of the legislature to make, must be considered as only a valuable portion of the privilege secured by the grant, and as such liable to be appropriated under the power of eminent domain. The exclusiveness of the grant, and [* 282] the agreement against interference with it, if valid, con

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stitute elements in its value to be taken into account in assessing compensation; but appropriating the franchise in such a case no more violates the obligation of the contract than does the appropriation of land which the State has granted under an express or implied agreement for quiet enjoyment by the grantee, but which

v. Litchfield, 36 Conn. 116; s. c. 4 Am. Rep. 41; Erie Railway Co. v. Commonwealth, 66 Penn. St. 84; s. c. 5 Am. Rep. 351; Bradley v. McAtee, 7 Bush, 667; s. c. 3 Am. Rep. 309; North Missouri R. R. Co. v. Maguire, 49 Mo. 490; s. c. 8 Am. Rep. 141; Illinois Cent. R. R. Co. v. Irvin, 72 Ill. 452.

1 See Cooley on Taxation, 146, and cases cited.

* West River Bridge Co. v. Dix, 16 Vt. 446, and 6 How. 507; Binghamton Bridge Case, 3 Wall. 51;

Shorter v. Smith, 9 Geo. 529; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35; Boston Water Power Co. v. Boston and Worcester R. R. Co., 23 Pick. 360; Boston and Lowell R. R. v. Salem and Lowell R. R., 2 Gray, 9; Costar v. Brush, 25 Wend. 628; California Telegraph Co. v. Alta Telegraph Co., 22 Cal. 398.

& Matter of Kerr, 42 Barb. 119; Enfield Toll Bridge Co. v. Hartford and N. H. R. R. Co., 17 Conn. 40, 454; West River Bridge Co. v. Dix, 16 Vt. 446, and 6 How. 507.

nevertheless may be taken when the public need requires.1 All grants are subject to this implied condition; and it may well be worthy of inquiry, whether the agreement that a franchise granted shall not afterwards be appropriated can have any other or greater force than words which would make it an exclusive franchise, but which, notwithstanding, would not preclude a subsequent grant on making compensation.2 The words of the grant are as much in the way of the grant of a conflicting franchise in the one case as in the other.

1 Alabama, &c. R. R. Co. v. Kenney, 39 Ala. 307; Baltimore, &c. Turnpike Co. v. Union R. R. Co., 35 Md. 224; Eastern R. R. Co. v. Boston, &c. R. R. Co., 111 Mass. 125; s. c. 15 Am. Rep. 13. That property has been acquired by a corporation under the right of eminent domain is no reason against a further appropriation. Chicago, &c. R. R. Co. v. Lake, 71 Ill. 333; Peoria, &c. R. R. Co. v. Peoria, &c. Co., 66 Ill. 174; N. Y. Central, &c. R. R. Co. v. Gas Light Co., 63 N. Y. 326; Eastern R. R. Co. v. Boston, &c. R. R. Co., 111 Mass. 125.

2 Mr. Greenleaf, in a note to his edition of Cruise on Real Property, Vol. II. p. 67, says upon this subject: "In regard to the position that the grant of the franchise of a ferry, bridge, turnpike, or railroad, is in its nature exclusive, so that the State cannot interfere with it by the creation of another similar franchise, tending materially to impair its value, it is with great deference submitted that an important distinction should be observed between those powers of government which are essential attributes of sovereignty, indispensable to be always preserved in full vigor, such as the power to create revenues for the public purposes, to provide for the common defence, to provide safe and convenient ways for the public necessity and convenience, and to take private property for public uses, and the like, and those powers which are not thus essential, such as the power to alienate the lands and other prop

erty of the State, and to make contracts of service, and of purchase and sale, or the like. Powers of the former class are essential to the constitution of society, as without them no political community can well exist; and necessity requires that they should continue unimpaired. They are intrusted to the legislature to be exercised, not to be bartered away; and it is indispensable that each legislature should assemble with the same measure of sovereign power which was held by its predecessors. Any act of the legislature disabling itself from the future exercise of powers intrusted to it for the public good must be void, being in effect a covenant to desert its paramount duty to the whole people. It is therefore deemed not competent for a legislature to covenant that it will not, under any circumstances, open another avenue for the public travel within certain limits, or in a certain term of time; such covenant being an alienation of sovereign pow ers, and a violation of public duty." See also Redfield on Railways (3d ed.), Vol. I. p. 258. That the inten tion to relinquish the right of eminent domain is not to be presumed in any legislative grant, see People v. Mayor, &c. of New York, 32 Barb. 113; Illinois and Michigan Canal v. Chicago and Rock Island Railroad Co., 14 Ill. 321; Eastern R. R. Co. v. Boston, &c. R. R. Co., 111 Mass. 125; s. c. 15 Am. Rep. 13; Turnpike Co. v. Union R. R. Co., 35 Md. 324.

It has also been intimated in a very able opinion that the police power of the State could not be alienated [* 283] even by express grant.1 And this opinion is supported

by those cases where it has been held that licenses to make use of property in certain modes may be revoked by the State, notwithstanding they may be connected with grants and based upon a consideration.2 But this subject we shall recur to hereafter. It would seem, therefore, to be the prevailing opinion, and one

1 "We think the power of the legislature to control existing railways in this respect may be found in the general control over the police of the country, which resides in the lawmaking power in all free States, and which is, by the fifth article of the Bill of Rights in this State, expressly declared to reside perpetually and inalienably in the legislature, which is, perhaps, no more than the enunciation of a general principle applicable to all free States; and which cannot therefore be violated so as to deprive the legislature of the power, even by express grant, to any mere public or private corporation. And when the regulation of the police of a city or town, by general ordinances, is given to such cities or towns, and the regulation of their own internal police is given to railroads, to be carried into effect by their by-laws and other regulations, it is, of course, always, in all such cases, subject to the superior control of the legislature. That is a responsibility which legislatures cannot divest themselves of, if they would." Thorpe v. R. & B. R. R. Co., 27 Vt. 149, per Redfield, Ch. J. See also Indianapolis, &c. R. R. Co. . Kercheval, 16 Ind. 84; Ohio, &c. R. R. Co. v. M'Clelland, 25 Ill. 140. See State v. Noyes, 47 Me. 189, on the same subject. In Bradley v. McAtee, 7 Bush, 367; s. c. 3 Am. Rep. 309, it was decided that a provision in a city charter that, after the first improvement of a street, repairs should be made at the expense of the city, was not a contract; and on its repeal

a lot owner, who had paid for the improvement, might have his lot assessed for the repairs. Compare Hammett v. Philadelphia, 65 Penn. St. 146; s. c. 3 Am. Rep. 615.

2 See, upon this subject, Brick Presbyterian Church v. Mayor, &c. of New York, 5 Cow. 538; Vanderbilt v. Adams, 7 Cow. 349; State v. Sterling, 8 Mo. 697; Hirn v. State, 1 Ohio, N. s. 15; Calder v. Kurby, 5 Gray, 597; Brimmer v. Boston, 102 Mass. 19. Whether a State, after granting licenses to sell liquors, for which a fee is received, can revoke them by a general law forbidding sales, is in dispute upon the authorities. See Freleigh v. State, 8 Mo. 606; State v. Sterling, 8 Mo. 697; Calder v. Kurby, 5 Gray, 597; Metropolitan Board of Excise v. Barrie, 34 N. Y. 657; Baltimore v. Clunet, 23 Md. 449; Fell v. State, 42 Md. 71; s. c. 20 Am. Rep. 83; and Commonwealth v. Brennan, 103 Mass. 70, which hold that it may : and State v. Phalen, 3 Harr. 441; Adams v. Hackett, 7 Fost. 294; and Boyd v. State, 36 Ala. 329, which are contra. See also State v. Hawthorn, 9 Mo. 389. If it has the power, it would seem an act of bad faith to exercise it, without refunding the money received for the license. Hirn v. State, 1 Ohio, N. s. 21. That the State cannot irrevocably hamper itself in the exercise of the police power, see Toledo, &c. R. R. Co. v. Jacksonville, 67 Ill. 37. As to the general power of the legislature to take away licenses, see People v. Commissioners, 59 N. Y. 92.

based upon sound reason, that the State cannot barter away, or in any manner abridge or weaken, any of those essential powers which are inherent in all governments, and the existence of which in full vigor is important to the well-being of organized society; and that any contracts to that end, being without validity, cannot be enforced because of any supposed conflict with the provision of the national Constitution now under consideration. If the tax cases are to be regarded as an exception to this statement, the exception is perhaps to be considered a nominal rather than a real one, since taxation is for the purpose of providing the State a revenue, and the State laws which have been enforced as contracts in these cases have been supposed to be based [*284] upon consideration, by which the State receives the

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benefit which would have accrued from an exercise of

the relinquished power in the ordinary mode.

Exclusive Privileges. Under the rulings of the federal Supreme Court, the grant of any exclusive privilege by a State, if lawfully made, is a contract, and not subject to be recalled.1 As every exclusive privilege is in the nature of a monopoly, it may at some time become a question of interest, whether there are any, and if so what, limits to the power of the State to grant them. In former times, such grants were a favorite resort in England, not only to raise money for the personal uses of the monarch, but to reward favorites; and the abuse grew to such enormous magnitude that Parliament in the time of Elizabeth, and again in the time of James I., interfered and prohibited them. What is more important to us is, that in 1602 they were judicially declared to be illegal. These, however, were monopolies in the ordinary occupations of life; and the decision upon them would not affect the special privileges most commonly granted. Where the grant is of a franchise which would not otherwise exist, no question can be made of the right of the State to make it exclusive, unless the constitution of the State forbids it; because, in contemplation law, no one is wronged when he is only excluded from that to which he never had any right. An exclusive right to build and maintain a toll bridge, or to set up a ferry, may therefore be granted; and the State may doubtless limit, by the requirement of a license, the number of persons who shall be allowed to 1 Ante, p. *281, and cases cited; Slaughter-House Cases, 16 Wall. 36, 74. 2 Darcy v. Allain, 11 Rep. 84.

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