charged with a trust in favor of an individual, private corporation, cipal and political corporations on the other. They were acting, too, in relation to a public object, being virtually a highway across the river, over another highway up and down the river. From this standing and relation of these parties, and from the subject-matter of their action, we think that the doings of the legislature as to this ferry must be considered rather as public laws than as contracts. They related to public interests. They changed as those interests demanded. The grantees, likewise, the towns being mere organizations for public purposes, were liable to have their public powers, rights, and duties modified or abolished at any moment by the legislature. They are incorporated for public, and not private objects. They are allowed to hold privileges or property only for public purposes. The members are not shareholders nor joint partners in any corporate estate, which they can sell or devise to others, or which can be attached and levied on for their debts. Hence, generally, the doings between them and the legislature are in the nature of legislation rather than compact, and subject to all the legislative conditions just named, and therefore to be considered not violated by subsequent legislative changes. It is hardly possible to conceive the grounds on which a different result could be vindicated, without destroying all legislative sovereignty, and checking most legislative improvements, as well as supervision over its subordinate public bodies." A different doctrine was advanced by Mr. Justice Barculo, in Benson v. Mayor, &c. of New York, 10 Barb. 234, who cites in support of his opinion, that ferry grants to the city of New York could not be taken away by the legislature, what is said by Chancellor Kent (2 Kent's Com. 275), that "public corporations. may be empowered to take and hold private property for municipal uses; and such property is invested with the security of other private rights. So corporate franchises, attached to public corporations, are legal estates, coupled with an interest, and are protected as private property." This is true in a general sense, and it is also true that, in respect to such property and franchises, the same rules of responsibility are to be applied as in the case of individuals. Bailey v. Mayor, &c. of New York, 3 Hill, 531. But it does not follow that the legislature, under its power to administer the government, of which these agencies are a part, and for the purposes of which the grant has been made, may not at any time modify the municipal powers and privileges, by transferring the grant to some other agency, or revoking it when it seems to have become unimportant. In People v. Power, 25 Ill. 190, Breese, J., in speaking of a law which provided that three fourths of the taxes collected in the county of Sangamon, with certain deductions, should be paid over to the city of Springfield, which is situated therein, says: "While private corporations are regarded as contracts, which the legislature cannot constitutionally impair, as the trustee of the public interests it has the exclusive and unrestrained control over public corporations; and as it may create, so it may modify or destroy, as public exigency requires or the public interests demand. Coles v. Madison County, Breese, 115. Their whole capacities, powers, and duties are derived from the legislature, and subordinate to that power. If, then, the legislature can destroy a county, they can destroy any of its parts, and take from it any one of its powThe revenues of a county are not the property of the county, in the sense in which revenue of a private person or corporation is regarded. The whole State

ers.

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or charity, the interest which the cestui que trust has under the grant will sustain it against legislative revocation.1

Those charters of incorporation, however, which are granted, not as a part of the machinery of the government, but for the private benefit or purposes of the corporators, are held to be contracts between the legislature and the corporators, based, for their consideration, on the liabilities and duties which the corporators assume by accepting them; and the grant of the franchise can no more be resumed by the legislature, or its benefits diminished or impaired without the consent of the grantees, than any other grant of property or valuable thing, unless the right to do so is reserved in the charter itself.2

has an interest in the revenue of a county, and for the public good the legislature must have the power to direct its application. The power conferred upon a county to raise a revenue by taxation is a political power, and its application when collected must necessarily be within the control of the legislature for political purposes. The act of the legislature nowhere proposes to take from the county of Sangamon, and give to the city of Springfield, any property belonging to the county, or revenues collected for the use of the county. But if it did, it would not be objectionable. But, on the contrary, it proposes alone to appropriate the revenue which may be collected by the county, by taxes levied on property both in the city and county, in certain proportions ratably to the city and county." And see Bush v. Shipman, 4 Scam. 190; Richland County v. Lawrence County, 12 Ill. 1; Borough of Dunmore's Appeal, 52 Penn. St. 374; Guilford v. Supervisors of Chenango, 18 Barb. 615, and 13 N. Y. 143.

1 See Town of Pawlet v. Clark, 9 Cranch, 292, and Terrett v. Taylor, 9 Cranch, 43. The municipal corporation holding property or rights in trust might even be abolished without affecting the grant; but the Court of Chancery might be empowered to appoint a new trustee to take charge of the property and to execute the trust. Montpelier v. East Montpelier, 29 Vt. 12.

"Dartmouth College v. Woodward, 4 Wheat. 519; Trustees of Vincennes University v. Indiana, 14 How. 268; Planters' Bank v. Sharp, 6 How. 301; Piqua Bank v. Knoop, 16 How. 369; Binghamton Bridge Case, 3 Wal. 51; Norris v. Trustees of Abingdon Academy, 7 G. & J. 7; Grammar School v. Burt, 11 Vt. 632; Brown v. Hummel, 6 Penn. St. 86; State v. Heyward, 3 Rich. 389; People v. Manhattan Co., 9 Wend. 351; Commonwealth v. Cullen, 13 Penn. St. 133; Commercial Bank of Natchez v. State, 14 Miss. 599; Backus v. Lebanon, 11 N. H. 19; Michigan State Bank v. Hastings, 1 Doug. Mich. 225; Bridge Co. v. Hoboken Co., 2 Beas. 81; Miners' Bank v. United States, 1 Greene (Iowa), 553; Edwards v. Jagers, 19 Ind. 407; State v. Noyes, 47 Me. 189; Bruffett v. G. W. R. R. Co., 25 Ill. 353; People v. Jackson and Michigan Plank Road Co., 9 Mich. 285; Bank of the State v. Bank of Cape Fear, 13 Ired. 75; Mills v. Williams, 11 Ired. 558; Hawthorne v. Calef, 2 Wal. 10; Wales v. Stetson, 2 Mass. 146; Nichols v. Bertram, 3 Pick. 342; King v. Dedham Bank, 15 Mass. 447; State v. Tombeckbee In Mills v. Williams, 11 Ired. 561, Pearson, J. states the dif

Bank, 2 Stew. 30.

Perhaps the most interesting question which arises in this discussion is, whether it is competent for the legislature to so bind up its own hands by a grant as to preclude it from exercising for the future any of the essential attributes of sovereignty in regard to any of the subjects within its jurisdiction; whether, for instance, it can agree that it will not exercise the power of taxation, or the police power of the State, or the right of eminent domain, as to certain specified property or persons; and whether, if it shall undertake to do so, the agreement is not void on the general principle that the legislature cannot diminish the power of its successors by irrepealable legislation, and that any other rule might cripple and eventually destroy the government itself. If the legislature has power to do this, it is certainly a very dangerous power, exceedingly liable to abuse, and may possibly come in time to make the constitutional provision in question as prolific of evil as it ever has been, or is likely to be, of good.

So far as the power of taxation is concerned, it has been so 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 ference between the acts of incorporation of public and private corporations as follows: "The substantial distinction is this. Some corporations are created by the mere will of the legislature, there being no other party interested or concerned. To this party a portion of the power of the legislature is delegated, to be exercised for the general good, and subject at all times to be modified, changed, or annulled. Other corporations are the result of contract. The legislature is not the only party interested; for, although it has a public purpose to be accomplished, it chooses to do it by the instrumentality of a second party. These two parties make a contract. The legislature, for and in consideration of certain labor and outlay of money, confers upon the party of the second part the privilege of being a corporation, with certain power and capacities. The expectation of benefit to the public is the moving consideration on one side, that of expected remuneration for the outlay is the consideration on the other. It is a contract, and therefore cannot be modified, changed, or annulled, without the consent of both parties." An incorporated academy, whose endowment comes exclusively from the public, is a public corporation. Dart v. Houston, 22 Geo. 506.

1 Mechanics & Traders' Bank v. Debolt, 1 Ohio, N. S. 591; Toledo Bank v. Bond, Ibid. 622; Knoop v. Piqua Bank, Ibid. 603; Milan & 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.

agreed rate, is a contract protected by the Constitution, that the question can no longer be considered an open one.1 In any case, however, there must be a consideration, so that the State can be supposed to have received a beneficial equivalent; and if the exemption is made as a privilege only, it may be revoked at any time.2

The power of the legislature to preclude itself in any case from exercising the power of eminent domain is not so clear. 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 permitted at a certain point,3 -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 privileges secured by the grant, and as such liable to be appropriated under the power of eminent domain. The exclusive

New Jersey v. Wilson, 7 Cranch, 164; Gordon v. Appeal Tax Court, 3 How. 133; Piqua Bank v. Knoop, 16 How. 369; Ohio Life & Trust Co. v. Debolt, Ibid. 416; Dodge v. Woolsey, 18 How. 331; Mechanics & Traders' Bank v. Debolt, 18 How. 380; Mechanics & Traders' Bank v. Thomas, Ibid. 384; McGee v. Mathis, 4 Wal. 143. 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.

Christ's Church v. Philadelphia, 24 How. 300; Brainard v. Colchester, 31 Conn. 410.

* West River Bridge Co. v. Dix, 16 Vt. 446, and 6 How. 507; Binghampton Bridge case, 3 Wal. 51; Shorter v. Smith, 9 Geo. 529; Piscataqua Bridge v. N. H. Bridge, 7 N. H. 35; Boston Water Power Co. v. Boston & Worcester R. R. Co., 23 Pick. 360; Boston & Lowell R. R. v. Salem & Lowell R. R., 2 Gray, 9. * Matter of Kerr, 42 Barb. 119; Endfield Toll Bridge Co. v. Hartford & N. H. R. R. Co., 17 Conn. 40, 454; West River Bridge Co. v. Dix, 16 Vt. 446, and 6 How. 507.

ness of the grant, and the agreement against interference with it, if valid, constitute 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 may nevertheless be taken when the public need requires. 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.1 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.

It has also been intimated in a very able opinion that the

1 Mr. Greenleaf, in a note to his edition of Cruise on Real Property, vol. 2, 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 property 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 powers, and a violation of public duty." See also Redfield on Railways (3d ed.), vol. 1, p. 258. That the intention to relinquish the right of eminent domain is not to be presumed in any legislative grant, see People v. Mayor, &c. of N. Y., 32 Barb. 113; Illinois & Michigan Canal v. Chicago & R. I. Railroad Co., 14 Ill. 321.