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.2 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 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 nevertheless may be taken when the public need requires. All grants are subject to this implied condition; and it may well be worthy of 1 West River Bridge Co. v. Dix, 16 Vt. 446, and 6 How. 507; Binghamton Bridge case, 3 Wall. 51; Shorter v. Smith, 9 Ga. 517; 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, 1; Costar v. Brush, 25 Wend. 628; California Telegraph Co. v. Alta Telegraph Co., 22 Cal. 398. 2 Matter of Kerr, 42 Barb. 119; Enfield 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; Philadelphia & Gray's Ferry Co's Appeal, 102 Pa. St. 123. 3 Alabama, &c. R. R. Co. v. Kenney, 89 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. A way may be condemned through a cemetery in spite of a contract to the contrary. In re Twenty-Second St., 15 Phila. 409; 102 Pa. St. 108. The use of land held by the State under contract to redeliver possession may be condemned. Tait's Exec. v. Central Lunatic Asylum, 84 Va. 27. That property has been acquired by a corporation under the right of eminent domain does not prevent further appropriation of it under the same right. Chicago, &c. R. R. Co. v. Lake, 71 Ill. 333; Peoria, &c. R. R. Co. v. Peoria, &c. Co., 66 Ill. 174; Eastern R. R. Co. v Boston, &c. R. R. Co., 111 Mass. 125. See post, pp. 647, note 1, 685, note 1, and cases referred to. 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. 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 police power of the State could not be alienated even by express grant.2 And this opinion is supported by those cases where it 1 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 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, or 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. I. 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 New York, 32 Barb. 102; Illinois & Michigan Canal v. Chicago & Rock Island Railroad Co., 14 Ill. 314; 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. 224. 2 "We think the power of the legisla ture to control existing railways in this respect may be found in the general control over the police of the country, which resides in the law-making power in all free States, and which is, by the fifth article of the Bill of Rights of 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 towns and cities, 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 responsibil ity which legislatures cannot divest themselves of, if they would." Thorpe v. R. & B. R. R. Co., 27 Vt. 140, 149, per Redfield, Ch. J. The legislature cannot make an irrepealable contract as to that which affects public morals or public health, so 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. this subject we shall recur to hereafter. But It would seem, therefore, to be the prevailing opinion, and one 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 are void upon general principles, and cannot be saved from invalidity by the provision of the national Constitution now under consideration. If the tax as to limit the exercise of the police power over the subject-matter. Butcher's Union Co. v. Crescent City Co., 111 U. S. 746. See also Indianapolis, &c. R. R. Co. v. 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, 667; 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 Pa. St. 146; s. c. 3 Am. Rep. 615. 1 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 St. 15; Calder v. Kurby, 5 Gray, 597; Brimmer v. Boston, 102 Mass. 19. The power of the State, after granting licenses for the sale of liquors and receiving fees therefor, to revoke the licenses by a general law forbidding sales, has been denied in some cases. See State v. Phalen, 3 Harr. 441; Adams v. Hachett, 27 N. H. 289; Boyd v. State, 36 Ala. 329. But there is no doubt this is entirely competent. Freleigh v. State, 8 Mo. 606; State r. Sterling, 8 Mo. 697; Calder v. Kurby, 5 Gray, 597; Met. Board of Excise ". Barrie, 34 N. Y. 657; Baltimore v. Clunet, 23 Md. 449; Fell r. State, 42 Md. 71; 8. c. 20 Am. Rep. 83; Commonwealth. Brennan, 103 Mass. 70; McKinney v. Salem, 77 Ind. 213; Moore v. Indianapolis, 22 N. E. Rep. 424 (Ind.); La Croix v. Co. Com'rs, 50 Conn. 321; Brown v. State, 7 S. E. Rep. 915 (Ga.); Beer Company v. Massachusetts, 97 U. S. 25. Compare State v. Cooke, 24 Minn. 247; Pleuler v. State, 11 Neb. 547. An additional license may be required within the period covered by a former one. Rowland v. State, 12 Tex. App. 418. A merchant's license may be revoked by a police regulation inconsistent with it. State v. Burgoyne, 7 Lea, 173. But a municipality cannot add to the statutory grounds for revocation. Lantz v. Hightstown, 46 N. J. L. 102. Grants of the right to establish lotteries are mere privileges, and as such are revocable. Bass v. Nashville, Meigs, 421; s. c. 33 Am. Dec. 154; State v. Morris, 77 N. C. 512; Stone v. Mississippi, 101 U. S. 814; Justice ». Com., 81 Va. 209; State v. Woodward, 89 Ind. 110. But if they are authorized by the constitution, they cannot be abolished by the legislature. New Orleans v. Houston, 119 U. S. 265. In short, the State can- ers. 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 upon consideration, by which the State receives the 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. 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 of 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 engage in employments the entering upon which is not a matter of common right, and which, because of their liability to abuse, may require special and extraordinary police supervision. The business of selling intoxicating drinks and of setting up a lottery are illustrations of such employments. But the grant of a monopoly in one of the ordinary and necessary occupations of life must be as clearly illegal in this country as in England; and it would be impossible to defend and sustain it, except upon the broad ground that the legislature may control and regulate the ordinary employments, even to the extent of fixing the prices of labor and of commodities. As no one pretends that the legislature pos 1 Ante, p. 338, and cases cited; Slaugh- 2 Darcy v. Allain, 11 Rep. 84. ter-House Cases, 16 Wall. 36, 74. sesses such a power, and as its existence would be wholly inconsistent with regulated liberty, it must follow that lawful grants of special privileges must be confined to cases where they will take from citizens generally nothing which before pertained to them as of common right.1 Changes in the General Laws. We have said in another place that citizens have no vested right in the existing general laws of the State which can preclude their amendment or repeal, and that there is no implied promise on the part of the State to protect its citizens against incidental injury occasioned by changes in the law. Nevertheless there may be laws which amount to propositions on the part of the State, which, if accepted by individuals, will become binding contracts. Of this class are perhaps to be considered bounty laws, by which the State promises the payment of a gratuity to any one who will do any particular act supposed to be for the State interest. Unquestionably the State may repeal such a law at any time; 2 but when the proposition has been accepted by the performance of the act before the law is repealed, the contract would seem to be complete, and the promised gratuity becomes a legal debt. And where a State was owner of the stock of a bank, and by the law its bills and notes were to be received in payment of all debts due to the State, it was properly held that this law constituted a contract with those who should receive the bills before its repeal, and that a repeal of the law could not deprive these holders of the right which it assured. Such a law, with the acceptance of the bills under it, "comes within the definition of a contract. It is contract founded upon a good and valuable consideration, a consideration beneficial to the State; as its profits are increased by sustaining the credit, 1 The grant of an exclusive privilege in slaughtering cattle in the vicinity or New Orleans was upheld as an exercise of the police power, in the SlaughterHouse Cases, 16 Wall. 36. But the legislature could not by a grant of this kind make an irrepealable contract. In regard to public health and public morals a legislature cannot by any contract limit the exercise of the police power to the preju dice of the general welfare. Butcher's Union Co. v. Crescent City Co., 111 U. S. 746. An irrepealable contract giving exclusive privileges with reference to lighting a city, may be made. New Orleans Gaslight Co. v. Louisiana Light Co., 115 U. S. 650; Louisville Gas Co. v. Citizens' Gas Co., 115 U. S. 683. So as to the privilege of furnishing water. New Or leans Water Works v. Rivers, 115 U. S. 674; St. Tammany Water Works v. New Orleans Water Works, 120 U. S. 64; Citizens' Water Co. v. Bridgeport, &c. Co., 55 Conn. 1. 2 Christ Church v. Philadelphia, 24 How. 300; East Saginaw Salt Manuf. Co. v. East Saginaw, 19 Mich. 259; s. c. 2 Am. Rep. 82, and 13 Wall. 373. So as to pension to a policeman: Pennie v. Reis, 80 Cal. 266; or an exemption from taxation to persons planting forest trees. Shiner v. Jacobs, 62 Iowa, 392. 8 People v. Auditor-General, 9 Mich. 327. See Montgomery v. Kasson, 16 Cal. 189; Adams v. Palmer, 51 Me. 480. |