
    COURT OF APPEALS.
    The Chenango Bridge Company, appellant agt. The Binghamton Bridge Company, respondent.
    The charter of " The Chenango Bridge Company” which is in perpetuity a toll-bridge, and without any reserved power to the legislature to alter or repeal it, contains this express provision: "That it shall not be lawful for any person or persons to erect any bridge or establish any ferry across the Chenango river within two miles either above or below the bridge erected by them.”
    
      Held that this provision was intended to operate as a mere restriction upon individuals, public officers and authorities, and other corporations, and was not intended to be or to constitute any restriction upon the sovereign authority of the state} and does not involve any surrender of the rights on the part of the legislature to grant, in its discretion, such other charters within the limits prescribed, as it may deem required by the public interests.
    Consequently, the grant, subsequently, by the legislature to " The Binghamton Bridge Company,” to erect their bridge not less than eighty rods above the Chenango bridge, does not come within the prohibition of the constitution of the United States, which declares that " no state shall pass any law impairing the obligation of contracts.”
    
      June Term, 1863.
    This very important case was argued in this court, in 1862, before the following judges, who composed the court during that year, to wit: Samuel L. Selden, Hiram Denio, Henry E. Davies, William B. Wright, Josiah Sutherland, George Gould, William F. Allen and E. Darwin Smith. Upon bringing the case to a decision, the court were equally divided—Judge Denio writing an opinion on one side, and Judge Smith writing an opinion on the other side. Consequently a reargument was ordered. And the reargument was had this year (1863) before the following judges, who composed the court: Hiram Denio, Henry E. Davies, William B. Wright, Henry R. Selden, James Emott, Enoch H. Rosecrans, Ransom Balcom and Richard P. Marvin ; when the judgment was affirmed, as it seems from the opinion of Judge Wright, by a decision of five to three judges.
    It is understood that Judge Denio stated, when the case was first argued in 1862, that it was the most important case that had come before the court that year. It is also understood that the case is to be taken to the supreme court of the United States. In publishing the opinion of the court, by Judge Wright, we precede it by the very able opinion of Judge Smith, written last year, on the same side ; and would be glad to publish the opinion of Judge Denio, if we knew how to procure it.
    The facts will sufficiently appear in the following opinion.
    
      E. Darwin Smith, J. It is perhaps to be regretted that legislative grants of franchises, immunities and special privileges have ever been held or adjudged to be contracts within the intent of section 10 of the first article of the constitution of the United States. Such rights- might safely have reposed for their protection upon the justice and sense of equity of the legislative bodies of this country, with a far more wise and true regard to public and private interests than is involved in the surrender of the sovereign right of the people to legislate freely and unrestrainedly upon all subjects whatever within the limits of the legislative power and discretion.
    But the doctrine is too well settled to be now discussed or questioned. “ All the cases,” said Judge Black, in the case of the Bank of Pennsylvania agt. The Commonwealth (7 Harris, 141), “ are saturated with this doctrine. It is sustained, not by a current, but by a torrent of authorities. No judge, who has a decent respect for the principle of state decisions-,—that great principle which is the sheet-anchor of our jurisprudence—can deny that it is immovably established.” (And vide Dartmouth College agt. Woodworth, 4 Wheaton, 418 ; and Fletcher agt. Seek, 6 Cranch, 87.)
    The plaintiffs have a charter from the legislature, authorizing them to construct and maintain in perpetuity a toll-bridge across the Chenango river at or near Chenango Point. This charter is a legislative contract, and within the protection of the constitution of the United States; and the question for our decision is, whether the charter granted to the defendants, also to construct and maintain a bridge across the said river, impairs the obligation of such contract. If it does, it is necessarily unconstitutional and void.
    I. The first question, therefore, for our decision is : What is the true construction of the plaintiffs’ charter ? The plaintiffs claim that by the terms of such charter they have the exclusive right to erect and maintain a bridge over the Chenango river at or near Chenango Point (now Binghamton), with a restriction against the erection of any other bridge “ within two miles either above or below the bridge so erected.”
    The charter of the plaintiffs is contained in an act of the legislature, passed April 6, 1805. The act is entitled “An act to-establish a turnpike corporation for improving and making a road from the village of Oxford, in the county of Chenango, to intersect the Newburgh and Cochecton turnpike road, and for other purposes.” After providing for' the organization of the Newburgh and Chenango turnpike company, and directing the manner of constructing the contemplated turnpike road and intersecting road, in twenty-two sections, it contains a recital, as in the beginning of a new act, as follows : “ Whereas, the foregoing incorporation cannot be sufficiently carried into effect, or the public convenience fully promoted, if durable and permanent bridges across the Susquehannah and Chenango rivers, and the east and west branches of the Delaware river at the several places of intersection of the said roads, are not at the same time erected and maintained; and whereas, it is suggested that it will be expedient, for the purpose aforesaid, to make two separate and distinct bridge incorporations, with powers adequate to the accomplishment thereof in the best and most suitable manner: therefore (section 23) be it enacted that Richard B. Clark and all others as should associate for the purpose of constructing a bridge over and across the east and west branches of the Delaware river,. &c., be a body corporate and politic, by the name of the President and Directors of the Delaware Bridge Company,” &c. The act then, in the fourteen following sections, provided for the organization and management of such corporation, and defined its powers and rights, and declared- its duties and obligations, &c. Section 31 declares “ that it shall not be lawful for any person or persons to erect any bridge or bridges, or establish any ferry, across the said east or west branches of the Delaware river within two miles either above or below the bridge to be erected and maintained in pursuance of this act.” Section 38 then, “ for the purpose of erecting and maintaining a good and sufficient toll-bridge on and across the Chenango river at or near Chenango Point,” provides for the organization of a corporation by the name of the “ Susquehannah Bridge Company,” which should have perpetual succession, and be and were thereby invested with “ all and singular the powers, rights, privileges, immunities and advantages, and be subject to all the duties, regulations, restraints and penalties which are contained in the foregoing incorporation of the Delaware Bridge Company.” And the section further declares,’ that “ all and singular the provisions, sections and clauses thereof, not inconsistent with the particular provisions herein contained, shall be and hereby are fully extended to the president and directors of this corporation.”
    The true construction, as I conceive, of these sections-is, that these two corporations shall possess the same identical rights, powers and privileges—the Delaware company to construct two bridges over the Delaware river, and the Susquehannah company one over the Chenango and one over the Susquehannah. This single fact constitutes the only distinction or inconsistency between them, except their names. Such I think the clear and manifest intention of the legislature.
    I cannot agree to the construction put upon this section by the learned judge who tried the cause at the special term, or the judges at general term, that the above mentioned 31st section is not part of the charter of the Susquehannah company as much as of the Delaware company. I cannot agree that the restriction of the said 31st section rests for its extension to or inclusion in the charter of the Susquehannah Bridge Company upon mere implication.
    
    The doctrine is undoubtedly sound, asserted in Stone-
      
      bridge Canal agt. Wheeley (2 Barn. & Adol. 792), that “ in contracts with the public, nothing is derived from the public by implication.” In Charles River Bridge Co. agt. Warren Bridge, Chief Justice Taney asserts the said rule ; and it is asserted in numerous other cases. (16 How. U. S. 427 ; 13 id. 7 ; 21 Penn. 22.)
    But this 31st section is part of the charter of the Susquehannah company, by the positive and express terms of the statute. The charter of this company is contained in and consists of the sections of the act aforesaid, including the preamble prefixed to the 23d section, from and inclusive of said 23d section to and inclusive of the 38th section. The sections apply alike, except the 38th, to both incorporations. The 31st section no more applies to the Delaware company than it does to the Susquehannah company. The legislature has expressly said, that “ all of said sections and clauses and provisions thereof shall be and are fully extended to the latter company; " and I cannot see upon what principle it can be contended that this 31st section is not part and parcel of the plaintiffs’ charter. It is in it and a part of it, and must have full effect.
    The fact that, as it reads, it nominally applies to the Delaware river and Delaware Company, and the bridges to be erected by said company, is the only inconsistency which renders this section inapplicable to the Susquehannah company. The inconsistency is obviated by the express provision of the 38th section, creating the Susquehannah company by a different name, to construct two bridges, one over the Chenango river, and one over the Susquehannah. Each company was to construct two bridges. There is no implication in the case. The statute is express and explicit. It gives to each company the same identical right by the same section.
    
    In the charter of the Susquehannah company the section means and should be read precisely as if the word Susquekannah were substituted for Delaware, leaving out the name, and the words, said east and west branches.
    
    This construction the express words of the statute demand ; and it is not, I conceive, possible to give full .force and effect to its language upon any other interpretation.
    The fact that the Susquehannah Company was to construct one of its bridges at or near Chenango Point does not, I think, affect the question. The bridge was not located in the act. If, on its location, the two miles could not apply to the Chenango river, it would doubtless apply to the extent which the river ran below the bridge, and to the distance of two miles above. This restriction must certainly apply to the bridge to be constructed by said company over the Susquehannah at Ouquago, and was therefore a proper provision, and having full force in favor of the Susquehannah company; and if it does not apply to the full extent of two miles, for any reason, to the bridge at Chenango Point, the greater would include the less, and it would apply as far as practicable within the limits specified.
    The act of 1808, I do not think, affects this question. The Susquehannah company was then organized, and was by this act continued, with all its rights, by the name and style of “ The Chenango Bridge Company ” and as such it was to have perpetual succession (in lieu of life for thirty years) “ under all the provisions, regulations, restrictions and clauses of the Susquehannah Bridge Company.”
    II. Assuming, then, that the, chartered rights of the plaintiff's are those conferred and defined in the said act of 1805, as modified by the act of 1808, and that section 31st of the act of 1805 applies in full force to plaintiffs’ company, and is part of their charter, the inquiry remains: What is the true force and effect of the provisions in said section ?
    The plaintiffs’ charter, therefore, must be construed and considered as containing the express provision “ that it shall not be lawful for any person or persons to erect any bridge or establish any ferry across the Chenango river within two miles either above or below the bridge erected by them.”
    The provision, I conceive, was intended to operate as a mere restriction upon individuals, public officers and authorities, and other corporations, and was not intended to be or to constitute any restriction upon the sovereign authority of the state, and does not involve any surrender of the rights on the part of the legislature to grant, in its discretion, such other charters as it may deem required by the public interests.
    The Chenango river is a fresh water stream, in which the tide does not ebb and flow, and is therefore a private river. The riparian proprietors own the bed and banks. As early as 1198 it was declared a public highway, but subject to the public easement for the purpose of navigation. The riparian owners might make such use of it as they pleased ; might bridge and dam it, except as prohibited by acts of the legislature, and might cross it with ferries, except as so forbidden.
    In 1797 an act was passed providing for the opening and constructing of highways and bridges, by superintendents and commissioners of highways ; and in the same year provision was made to authorize and regulate ferries within the state—forbidding the establishing and use of any ferry, for profit and hire, unless duly authorized, and conferring authority upon the courts of common pleas in each county of the state to grant licenses for keeping ferries, as many and to such persons as the court shall think proper.
    The provision of section 31st, in the plaintiffs’ charter, declaring that it should not be lawful for any person or persons to erect any bridge or establish any ferry within two miles of the bridge, &c., doubtless applied to all the superintendents and commissioners of highways, and to the courts of common pleas, and to all private persons. The legislature clearly considered that it had a right to impose such restriction upon public officers and private persons, and clearly intended so to do; for the said section 31st contains a proviso as follows: “Provided, nevertheless, that nothing herein contained shall be construed to prevent any person residing within two miles of the said bridges from crossing the said river to or from his or her house or land, with his or her own boat or craft, without being subject to the payment of any toll.”
    ■It will thus be seen that there were sufficient persons and officers and public authorities for the provision in the said section to apply to, so that it might have full effect without extending its operation to the state or the legislative authority. Without this provision, the superintendent of highways for the county, and the commissioners of highways of the town and towns contiguous to the Chenango river, might have laid out highways and constructed bridges across said river at such places as they deemed proper; and the court of common pleas might have allowed ferries to be established across the same, so as entirely to destroy the plaintiffs’ franchise.
    It is not necessary, therefore, to give full force and effect to the language of this section 31, to hold that it is or was intended to be a restraint upon the legislative power.
    In grants by the public to corporations, nothing, we have seen, passes by implication. (8 Peters, 289 and n.; id. 548.)
    Most especially should this rule be applied to grants which are claimed to deprive the legislative authority of its powers to promote the best interests of the public by appropriate and needful legislation. Judge Taney, in the Charles River Bridge case agt. Warren, says : “A state ought never to be presumed to surrender their power, because the whole community have an interest in preserving it undiminished. And where a corporation alleges that a state has surrendered its powers of improvement and public accommodation, the community have a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon it does not appear.”
    Judge Black, also, in the case of the Pennsylvania Railroad Co. agt. Canal Commissioners (9 Harris, 21 Penn. H. 22), states this rule with great explicitness. He says : “ When a state means to clothe a corporation with a portion of its own sovereignty, and to disarm herself to that extent of the power which belongs to her, it is so easy to say so, that we will never believe it to be meant where it is not said.” (See also Richmond R. R. Co. agt. Louisa R. R. Co. 13 Peters, 81.) In this state the same rule was asserted by Chancellor Walworth in The Mohawk Bridge Co. agt. The Utica R. R. Co. (5th Paige, 654.) In that case it appears that the Mohawk company claimed an exclusive right to carry passengers across the Mohawk river at Schenectady, and that that right extended one mile above and one mile below their bridge, and restricted also the right to erect ferries. The precise language of the act under which such claims were made, aside from the charter authorizing them to erect and maintain a toll bridge across said river, and receive and demand toll, etc., was as follows: “that after said bridge shall be built and completed it shall not be lawful for any person or persons to erect or to keep any ferry or bridge over the said river, at any place above said bridge, within one mile from said bridge, or below the said,” etc. (Sess. Laws of 1805, 586, 7.)
    The chancellor says of this charter: “The legislature has indeed protected the Mohawk Bridge Company in the enjoyment of an exclusive right to carry passengers across the river at Schenectady, to a certain extent, by prohibiting others from establishing a ferry within a certain distance from the toll bridge; but it has not deprived a future legislature of the right to authorize the erection of another bridge within the prescribed limits whenever the public good shall appear to require it.”
    
      In 1st Barb. Ch. R. 548, in case of the Oswego Falls Bridge Co. agt. Fisher, the chancellor again asserted the same doctrine, referring to the case of the Mohawk Bridge Company, and says he came to the conclusion in that case that the grant to a corporation to erect a toll bridge across a river, without a restriction of the power of the legislature to grant a similar privilege to others, would not deprive a future legislature of such power. The charter of the Oswego Bridge Company contained no express words of restriction, and these two therefore are not in point upon these facts, but are cited as an opinion of the learned chancellor on the point in controversy. The case of Thompson agt. The N. Y. & Harlem R. R. Co. (3 Sand. Ch. 628) is quite like this. The language of the act incorporating the defendants was the same as used in the thirty-first section of plaintiffs’ charter.
    It is as follows: “That it shall not be lawful for any person or persons whatsoever to erect, or cause to be erected, any other bridge on or across said Harlem river.”
    It was held by the learned vice-chancellor that this language did not restrict the authority of a subsequent legislature to establish or allow a toll bridge or ferry at the same place. ,
    In The Tuchaber Canal Co. agt. The Tuchaber & James River R. R. Co. (11 Leigh, 42,) it was held by the court of appeals of Virginia, that to give a monopoly to a corporation, there must be an express provision in the charter whereby the legislature restrains itself from granting charters for rival and, competing works.
    
    Such is the head note of the case.
    The plaintiff had a charter for the construction of a canal, and the legislature granted a subsequent charter to a railroad corporation to construct its road across the plaintiff’s canal and along the same route. It was claimed that this was an infringement of the plaintiff’s exclusive rights. The case was very elaborately discussed and carefully considered, and was decided upon the same ground, and upon the authority in part of the case of the Charles River Bridge agt. Warren.
    
    It is not in its facts precisely in point, but is in the doctrine and principles it asserts. The learned judge, who gave the opinion of the court, says: “Monopoly is not a matter of inference; it must rest its pretensions upon express grant; it is a restriction upon common rights, and upon the legislative power, and cannot be implied;" also, speaking of charter for canal and railroad, he says further, that by charters of this description the legislature is not deprived of the power of granting charters to other companies, even side by side with the former, and in the same line of travel, provided there is no express restriction upon their power in the first act of incorporation.
    The case of the Boston & Lowell R. R. Co. agt. The Salem & Lowell R. R. Co. and others (2 Gray, 1) is, I think, in principle, to the same effect.
    This was a bill in equity to protect the rights of the plaintiff for the construction of a second railroad in competition with their railroad, and for an injunction.
    The plaintiff’s road was constructed under a charter for an incorporation to construct a railroad from Boston to Lowell, granted by the legislature in 1830. The legislature subsequently granted charters for other railroads, which, by consolidation and agreements, had in effect constructed a road competing with the plaintiff’s road. In the plaintiff’s charter, section twelve, is the following provision: “ Be it further enacted, that no other railroad than the one hereby granted, shall, within thirty years from and after the passing of this act, be authorized to be made, leading from Boston, Charlestown, or Cambridge, to Lowell, or from Boston, Charlestown or Cambridge to any place within five miles of the northern termination of the railroad hereby authorized to be made;” .provided the state may authorize any company to enter with another railroad at any point of said Boston and Lowell railroad, paying for the right to use the same or any part thereof, such a rate of toll as the legislature may from time to time prescribe, etc.
    This is clearly an express restriction upon the legislative power to grant charters for other railroads to compete with the Boston and Lowell company, within the prescribed term of thirty years, except upon the term specified in the said act of incorporation. It was clearly a legislative contract to that effect within all the cases.
    Judge Shaw, in giving the opinion of the court, speaking of the provision in the abovementioned twelfth section of the plaintiff’s charter, says: “ It was certainly a stipulation on the part of the government, regulating its own conduct, and putting a restraint upon its own power to authorize any other railroad to be built with the right to levy a toll; but without any authority from the government no other company or persons could be authorized so to make a railroad and levy toll, and, of course, no other such road could lawfully be made. It was therefore equivalent to a covenant of quiet enjoyment against its own acts, and those of persons claiming under it.” This is, in fact, all the government could stipulate.
    The learned judge says further, that they “were of the opinion that under the form of the words used, ' that no other railroad should be authorized for thirty years,’ the government, so far as it has the power to do, intended to engage with the corporation that no other direct railroad between Boston and Lowell should be legally made.”
    The decision of this case was thus put upon the express language of the charter : “ that no other railroad should be authorized to, be made,” etc., etc.
    The rule asserted in these cases, that nothing in the shape of monopoly or special privilege shall be taken from the government, except by express grant, is eminently sound.
    The history of the legislation of this state and country, for the last fifty years, illustrates its importance and vindicates its wisdom.
    
      So numerous and various are the schemes and devices of the spirit of monopoly among our people, and so artful, insidious and successful the contrivances of speculators and jobbers to secure special grants and privileges from legislative bodies, that the public interests imperatively demand of the courts the firm and faithful assertion of the rule that nothing shall be taken from the sovereign authority by implication; that whoever claims that the legislature has relinquished its power to legislate for the public good upon any subject, should show a legislative grant for each surrender of power, in clear, express and explicit language; so clear and unequivocal that no one, however poorly informed, who may chance to reach the legislative hall, can mistake its meaning or assent to its passage upon any ground of error, mistake or misconception.
    Such should be, and such I think is, the rule for the construction of legislative grants; and no court, as I can conceive, in this country, will discharge its duty to the public which asserts or assents to any other. The plaintiffs’ charter contains no such stipulation on the part of the legislature of the state, relinquishing its power to grant other charters for bridges over the Chenango river as the public interests may require.
    The act granting the defendants authority to construct a bridge over said river was, therefore, entirely within the lawful power and discretion of the legislature. It follows that the plaintiffs’ complaint was properly dismissed,' and that the judgment of the court below, affirming such judgment, should be affirmed with costs.
    Henry R. Mygatt, for appellant.
    
    Daniel S. Dickinson, for respondent.
    
   Wright, J.

The constitution of the United States declares that “no state shall pass any law impairing the obligation of contracts.” (U. S. Con. art. 1, §10.) The provision interpreted by the light of history has been supposed by many only to have been intended to apply to executory contracts; but a more extended interpretation has been given to it by that court which possesses the ultimate right of passing upon the question, and whose decisions we are bound to respect and follow as the law of the land. Not only has it been settled that an executory contract, but also that a grant or executed contract, comes within the scope of the provision, and that a legislative grant of a franchise to a corporation to maintain a bridge or ferry, or turnpike route, is a contract, if the grant be accepted, within the meaning of the section, which no subsequent legislature can interfere with, even to promote the public good, if by such interference the private interests of the corporation are affected. (Fletcher agt. Peck, 6 Cranch, 87 ; Dartmouth College agt. Woodward, 4 Wheat. 518 ; Green agt. Biddle, 8. Wheat. 2; Gordon agt. The Appeal Tax Court, 3 How. 133; State Bank of Ohio agt. Knapp, 18 How. 369.) It may be doubted whether it was wise and legally sound to attribute to a legislative act granting to a corporation an exclusive light to maintain a bridge or ferry and exact compensation from the public for crossing a stream at a given point, the force of a contract within the constitutional provision; but such is clearly the doctrine and effect of the series of adjudications referred to. It is no longer to be questioned, that a private company to whom a state legislature has in express terms granted the exclusive right of maintaining a bridge and exacting tolls for crossing a stream at a designated locality, when the franchise has been accepted and acted under by the corporation, and no power is reserved to alter or repeal the law, is protected, even though the public interests may suffer, by the constitutional prohibition, against any subsequent legislation which is or permits a direct interference with the enjoyment of the franchise or diminishes its value. Any law of that character, it is held, impairs the obligation of the contract between the state and the corporators, and is within the purview and prohibition of the federal constitution. The right, however, alleged to have been impaired or invaded, must have been given or granted expressly, and will not be implied. Public grants are to be construed strictly, and neither individuals or corporators will be deemed to have acquired rights as against the state by implication. In the grant of privileges to a corporation nothing passes but what is granted in clear and explicit terms, and by words too plain to be mistaken. When a state, says Judge Black, in the case of The Pennsylvania R. R. Co. agt. The Canal Commissioners (21 Penn. R. 22), means to clothe a corporate body with a portion of her own sovereignty, and to disarm herself to that extent of the power that belongs to her, it is so easy to say so that we never will believe it to be meant when it is not said. In the construction of a charter, to be in doubt is to be resolved, and every resolution which springs from doubt is against the corporation. If the usefulness of the company would be increased by extending them (privileges), let the legislature see to it; but remember that nothing but plain English words will do it. The wisdom of such a rule of construction will not be questioned by any one who has at heart the safety and preservation of his state government. (Richmond R. R. Co. agt. Louisa R. R. Co. 13 How. 71.)

The plaintiffs were incorporated in 1808 by a single section of an act purporting to amend “ The Neversink Turnpike Road and Susquehannah Bridge Companies,” incorporated by a previous act in 1805. This last named act created five corporations, amongst which were two bridge companies, viz: The Delaware Bridge Company and The Susquehannah Bridge Company. The first to erect and maintain bridges across the east and west branches of the Delaware river, and the other to erect and maintain a bridge across the Susquehannah river at Ouquago, and another across the Chenango river at or near Chenango Point. The section referred to as incorporating the plaintiffs was without detail, except as to the amount of capital, simply providing that “ for the purpose of erecting and maintaining a toll bridge across the Chenango river at or near Chenango Point, the present stockholders of the Susquehannah Bridge Company, or such others as should associate for that purpose before the first day of January next, shall be and hereby are created a body corporate in fact and in name, by the name of ‘ The Chenango Bridge Company,’ and as such to have perpetual succession under all the provisions, regulations, restrictions, claims and provisions of the beforementióned Susquehannah Bridge Company; and their capital in stock shall consist of ten thousand dollars.” (Laws of 1808, ch. 119.) It will be observed, therefore, that there was no legislative grant in terms of the rights and privileges to be possessed and enjoyed by the corporation; but the intent is plain that they were to be the same as those granted to the Susquehannah Bridge Company, not only in its original charter, which provided for the erection and maintenance of both bridges, but also by the amendment of such charter in the incorporating the plaintiffs.

In pursuance of this act the plaintiffs’ corporation was organized and proceeded to erect a bridge across the Chenango river at the point designated, and about eighty rods from the southerly termination of such river. For more than half a century they have maintained the bridge, and have reaped therefrom, for the last thirty years, in the way of dividends on the capital stock, nearly seventeen per cent, per annum. In the meantime Chenango Point, now called Binghamton, the locality of the bridge, has from an inconsiderable settlement become a large and prosperous village, located on the east and west side oí the Chenango river, and having in 1851 nearly ten thousand inhabitants. Up to 1855 there was no way for that portion of the population residing on the west side of the Chenango to cross it except by the plaintiffs’ bridge. In 1855, to promote the public convenience, the legislature incorporated the defendants “with power to construct another bridge at a point not less than eighty rods above the plaintiffs’ bridge.” (Laws of 1855, ch. 164.) The construction and use of the defendants’ bridge has to some extent diminished the profits of the plaintiffs’ franchise; and it is therefore claimed by the latter that the law incorporating the defendants, and empowering them to erect and maintain their bridge, is unconstitutional and void.

It is not pretended, of course, that the plaintiffs’ right to maintain their bridge, and exact tolls from the public for crossing it, has been interfered with; but the ground taken is that" their grant gives them a monopoly of the waters of the Chenango for the distance of two miles above and below their bridge; that their charter contains in effect a stipulation on the part of the state, when perpetually surrendering into their hands a portion of its sovereignty, not to sanction competition, or to maintain or authorize to be maintained any other similar improvement within two miles each way from their bridge, that might diminish the amount of their income. Undoubtedly, if the charter of the plaintiffs gave them an exclusive privilege over the waters of the Chenango river, to the extent of four miles up and down the stream, for bridge or ferry purposes, and the legislature in the contract with them deliberately and intentionally surrendered for all time the power of the state to make improvements for the public accommodation within those limits, any subsequent law establishing or authorizing the establishment of another bridge or ferry would be Avithin the constitutional prohibition. On the contrary, if such exclusive privilege is not given in clear and explicit terms, and a reasonable construction of their charter, or of the act incorporating them, renders its oavh doubtful whether the state meant or intended to disarm herself to the extent claimed, of her sovereign authority, the exercise of such authority m 1855, when the public necessity required it, would be unobjectionable and valid, even though its tendency might be to lessen the value of the plaintiffs’ franchise. It is, therefore, a principal question in the case, whether the privilege asserted by the plaintiffs be or be not secured to them by the acts of 1805 and 1808.

The plaintiffs, as has been mentioned, were endowed with the corporate rights or functions of the Susquehannah Bridge Company. This latter corporation had been originally created for the purpose of erecting and maintaining a bridge across the Susquehannah river, on the line of one of the branches of the Neversink Turnpike Company, and also a bridge across the Chenango river at the starting point of such branch road. The act of 1808 limited its functions to the erection and maintenance of the first named bridge, and created the plaintiffs an independent corporate body to erect and maintain a bridge across the Chenango at or near Chenango Point. For the terms of the plaintiffs’ charter we are to look to that of the Susquehannah Bridge Company; and looking into the act of 1805 it is seen that the rights and privileges of the latter company are not defined; but it is provided in a single section that it is to have perpetual succession, and be “invested with all and singular the powers, rights, privileges, immunities and advantages, and be subject to all the duties, regulations, restraints and penalties which are contained in the foregoing incorporation of the Delaware Bridge Company;” and all and singular the provisions, sections and clauses thereof, not inconsistent with the particular provisions contained in the section incorporating the Susquehannah Bridge Company, were fully extended to such corporation. For the terms, therefore, of the charter of the Susquehannah Bridge Company, resort must be had to the prior sections of the act of 1805, incorporating the Delaware Bridge Company. Of course the intention by the general language was not to import into the Susquehannah Bridge Company’s charter the provisions in hcec verba of the sections of the act creating the Delaware Bridge Company; but I think the intention is plain to invest the former company with all the powers, rights and privileges pertaining to a bridge corporation, as such, and similar to those which had just been given and accorded to the latter, subjecting it to like duties, regulations and restraints. All the provisions of the act.in respect to the Delaware Bridge Company which related to its corporate powers; the manner of organization; the kind of bridge to be erected, and when to be completed; the right to erect gates at either end of the bridges, and demand and receive tolls; the neglect to repair or rebuild, which was to .work a forfeiture of the charter; the duties enjoined in respect to the care and superintendence of the bridges, and the penalties imposed and to be enforced, were made applicable to the Susquehannah Bridge Company, and the section incorporating it should read as though similar provisions were literally embodied in it. But it is insisted that if this were all, there could be no pretext that the alleged bargain between the state and the plaintiffs embraced any engagement from the state, that competing bridges or ferries should not be erected or allowed for the distance of two miles above and below their bridge. Hence it is sought to further import into the charter of the Susquehannah Bridge Company a provision of the act, limited in words, to the bridges to be erected by the Delaware Bridge Company across the east and west branches of the Delaware river. The thirty-first section of the act provides “that it shall not be lawful for any person or persons to erect any bridge or establish any ferry across the said west and east branches of the Delaware river, within two miles above or below the bridge, to be erected and maintained in pursuance of this act,” etc. It is assumed that this provision, although not in express terms, was tantamount to an engagement on the part of the state, which entered into and formed a part of the contract with the Delaware Bridge Company, that no competing bridge or ferry should be erected or allowed during the continuance of the corporation, for two miles above and below the bridges; that the exclusive privilege thus given was carried by force of the general words employed into the Susquehannah Bridge Company’s charter; and as the plaintiffs were endowed with the rights, privileges and capacities of the latter company, not the identical monopoly, but a similar one, this privilege over the waters of the Chenango river was secured to them.

I think this position not tenable, for reasons that will be stated:

1. The privilege, whatever may be its character, is not given in terms to the Chenango Bridge Company; nor does the provision relate to a monopoly of the waters of the Chenango river, but on the contrary the words of the act limit the prohibition to the west and east branches of the Delaware river. But it is claimed that the legislative intent is manifest, that the plaintiffs were to possess and enjoy the “rights, privileges and advantages” of the Delaware Bridge Company, and as one of those “advantages” consisted in a monopoly of the streams on which their bridges were to be erected, for two miles each way from the bridges, a like monopoly of the Chenango river was intended to be given to them. The acts of 1805 and 1808, however, afford no satisfactory evidence that the legislature intended to grant such a monopoly to the plaintiff. The leading purpose of the act of 1805 was to establish a corporation for making a road from Oxford, in the county of Chenango,, to intersect the Newburgh' and Cochecton turnpike at a point easterly of the east branch of the Delaware river, and as subsidiary thereto another corporation to open a communication by a turnpike road from Chenango Point to Kingston. The bridge incorporations were but secondary, and, as was afterwards expressed, were created to sufficiently carry into effect the road incorporation. The Chenango road was to cross the west and east branches of the Delaware river, and the west branch of the Kingston or Neversink road, starting from Chenango Point, the Susquehannah river, and, it might be, the Chenango river. The act first provided for the incorporation of the Newburgh and Chenango Turnpike Company, reserving the power to dissolve the corporation and vest its property in the state, when the income arising from the tolls had paid for making the road, together with an interest on the money expended of ten per cent, per annum. The Neversink Turnpike Road Company was next created, with the same provision as to a dissolution of the corporation and vesting its property in the people of the state. The act then sets forth, in the form of a preamble, the necessity, with the view of sufficiently carrying into effect the foregoing road incorporations, and fully promoting the public convenience, of erecting and maintaining durable and permanent bridges across the Susquehannah and Chenango rivers, and the east and west branches of the Delaware river, at the several places of intersection of the said roads; that from the size and rapidity of the streams, great expense would be necessarily incurred in erecting and maintaining such bridges, and, from the extraordinary freshets and frequent obstructions happening in those rivers, which would endanger the permanency and durability of the bridges, a frequent renewal of'the whole capital might be required for rebuilding them, and therefore require a power (not contained in the foregoing corporation) for calling from the stockholders, from time to time, such sums as should be required for upholding such bridges; that these circumstances forbade the policy incorporate# in the foreogoing road incorporations, that said property should revert to the state; and that it would be most expedient, for the purposes afir esaid, to make two separate and distinct bridge incorporations with powers adequate to the accomplishment thereof in the best possible manner. The act then proceeds to create a corporation by the name of “ The President and Directors of the Delaware Bridge Company,” for the purpose, as expressed, of erecting bridges across the east and west branches of the Delaware river, where the turnpike road to be laid out by virtue of the act should cross the same. Provisions for subscription to stock and for properly organizing the company, describing the kind of bridges to be built, and when to be completed; the power to demand and receive certain rates of toll at each of the bridges, and other regulations and restraints followed.

Amongst the provisions was one before stated, declaring “ it unlawful for any person or persons to erect any bridge or establish any ferry across the said west and east branches of the Delaware river within two miles above and below the bridges to be erected and maintained in pursuance of the act.” The corporation was to have continual succession for the full term of thirty years from the passage of the act, and at the expiration of such time the bridges, with their appurtenances, were to become the property of the state.

The next provision in order was the incorporation of the “ Susquehannah Bridge Company,” for the purpose of erecting and maintaining a toll-bridge over and across the Susquehannah river at or near Ouquago, in the county oí Tioga (a point of intersection of the turnpike roads), and also for the erecting and maintaining a toll-bridge on the Chenango river at or near Chenango Point (the starting point of the Neversink road). All such persons as should associate for that purpose, and their successors and assigns, were created a body corporate by the name of the Susquehannah Bridge Company, to have perpetual succession, and be invested with the powers, rights, privileges, immunities and advantages, and be subject to all the duties, regulalations, restraints and penalties which were contained in the foregoing incorporation of the Delaware Bridge Company ; and all the provisions, sections and clauses thereof, not inconsistent with the particular premises contained in the section creating the Susquehannah Bridge Company, were fully extended to the latter incorporation. As it was thus provided that this corporation was to have perpetual succession, it could hardly be inferred that it was the original intention that the provision limiting the existence of the Delaware Bridge Company to thirty years, and a reversion of its property to the state, should apply to it; but the act of 1808 settles any doubt that might have been entertained as to the effect of the general words of the section, by a repeal of the thirty years’ limitation, and making the existence of the Susquehannah Bridge Company perpetual, whilst it divided it into two companies.

The policy indicated, therefore, by the legislative action was not the same in respect to the two, and ultimately the three bridge incorporations. The duration of one of them (the Delaware Bridge Company) was limited to thirty years, when its bridges were to revert to the state ; and it might well have happened that those across the east and west branches of the Delaware river would become state property and free bridges before the turnpike road, of which they were a part, would revert. The others were to exist forever as private corporations, notwithstanding the turnpike road on which they were situated might become public property. It was evidently the purpose of the legislature to offer similar inducements to adventurers, and to place the second road and bridge companies on an equal footing. There is nothing to indicate that in the view of the legislature one of the contemplated bridge enterprises was of more importance than the other, or that it was necessary to hold out greater inducements in the one case than in the other. Certainly, a perpetual bridge franchise in that part of the state was to be regarded as more valuable without an engagement from the state not to sanction competition, than one to continue only for thirty years with such engagement written in it; and it ought not to be assumed, without the strongest evidence, that a legislative act, which cautiously refrained as to one bridge incorporation to bargain away the power of the state for all time to make improvements in a particular section for the public accommodation, intentionally bargained any such power to another corporation in no sense more meritorious.

Can it be said, then, that it was intended to confer larger privileges and advantages on one of the corporations than on the other ? I think not. It may have been meant that the Delaware Bridge Company, which was to endure for thirty years, should enjoy a monopoly of the waters of the two branches of the Delaware river; but it is not a reasonable inference that such a right was designed to be conferred on a corporation created for similar purposes, and in the same legislative scheme to which perpetual existence was given.

A provision forbidding competition by individuals was doubtless of importance at that early period, and it is at all times, to either bridge or ferry proprietors ; but it was of especial importance to a corporation that could only look thirty years ahead for a reimbursement of its outlays or for a realization of profits from its franchise. There would be no equality in advantages proffered to bridge companies of equal merit, in a scheme which designedly gave a like monopoly to one whose existence was made perpetual. No satisfactory reason can be assigned for the distinction as to the durability of the charter, unless it be that the legislature only contemplated conferring on the companies, to whom perpetual existence was given, the right to erect and maintain toll-bridges at the points named, without any monopoly of the streams.

Again : The provisions in the Delaware Bridge Company incorporation, declaring it to be unlawful for any one to set up competing bridges or ferries, cannot, by any just interpretation of the act or of legislative intention, be carried into the Susquehannah Bridge Company charter. Nothing is to be deemed carried into it by the general words used, than is consistent with the particular provisions of the section creating the last named corporation. A purpose of its creation was to construct a bridge across the Chenango river at or near Chenango Point. It was as well known then as now, both by the legislature and by the applicants for the charter, that the designated locality of this bridge was at the confluence of two rivers, and at a point where the Chenango terminated by emptying itself into the Susquehannah. It would have been an absurd provision to introduce into their charter, that no one should establish a competing bridge or ferry on the Chenango river for the distance of two miles below their bridge. It was a physical impossibility to give the same monopoly of the waters of the Chenango as was given, as is alleged, to .the Delaware Bridge Company on the waters of the Delaware river. It is not to be assumed that the legislature or the parties interested in the application contemplated any such absurdity.

I consider that the section of the act of 1805, making it illegal for any person or persons to erect any bridge or establish any ferry across the west and east branches of the Delaware river, within two miles above or below the bridges to be erected and maintained in pursuance of the act, was in substance a stipulation on the part of the state to the extent expressed, entering into the contracts with both bridge companies, that competition should be prevented. I cannot well see how it can be construed as a restriction upon the sovereign authority. In terms it is a restriction, if at all, upon persons, and as such was offered and accepted by the bridge companies. There was no guarantee written in the contract, that if the public exigencies or interest required, the state would not exercise its soverign power in the premises. Such a stipulation in a contract with the adventurers, it is urged, would have been worthless and illusory. Not at all; but on the contrary, it would have been indiscreet, not to say profligate, legislation, to have bargained away forever state authority over the subject. As a restriction upon individuals, public officers and local authorities, it was of great importance to the adventurers. The riparian proprietors of the streams might have bridged them or crossed with ferries, except as forbidden by acts of the legislature. There were then statutes providing for the opening and construction of highways and bridges by superintendents and commissioners of highways, and also for authorizing and regulating ferries within the state. The establishment and use of a ferry for profit was forbidden, unless duly authorized; and authority was conferred upon the court of common pleas in each county of the state, to grant licenses for keeping ferries to such persons as the courts should think proper. It was certainly of consequence to the corpora-tors that they should be protected against the otherwise lawful acts of these superintendents and commissioners of highways, courts of common pleas and private persons.

But it is said, that if it was not a restriction upon the sovereign power, the legislature might have rendered the franchises comparatively valueless, immediately upon the completion of the bridges and before the corporators could be reimbursed, by the state establishing free or other bridges within the prescribed limits. This argument supposes that a state will act in bad faith ; which supposition is not to be entertained. All experience attests the fact that the failure to realize any just expectations of remuneration from franchises of this character has never been attributable to broken public faith ; and these applicants for the franchises know and act accordingly. The object in introducing the provision, and the object it was intended to serve, seems to me plain. Without it, the riparian owners might have established a free bridge or ferry ; the superintendents and commissioners of highways might have laid out highways and constructed bridges across the river, and the court of common pleas have allowed ferries to be established across them, so as to have impaired if not wholly destroyed the franchises. There were sufficient parties and officers and public authorities for the provision to apply to, and so that it might have full effect without extending its operation to the state or the legislative authority. It is quite unncessary to hold that it is or was intended as a restraint upon the legislative power to give full force and effect to the language employed. Certainly the intention to surrender the sovereign authority to private corporations ought never to he implied ; nor should the language of a statute be so construed as to deprive the state of her power to provide for the best interests of the people by appropriate and useful legislation, if it be susceptible of a different and reasonable construction. There is great force in the remark of Chief Justice Taney, in the case of The Charles River Bridge agt. The Warren Bridge (11 Peters, 420), that “ a state ought never to be presumed to surrender this power, because the whole community have an interest in preserving it undiminished;” “ and when a corporation alleges that a state has surrendered its power of improvement and public accommodation, the community have a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose to abandon it does not appear.”

Upon the whole, I do not think the plaintiffs were entitled to sustain the action. The grant to them was the right to maintain a bridge across the Chenango river at or near Chenango Point, and take certain rates of toll for crossing it; and this was the whole grant. There was no monopoly over the waters of the Chenango river, above and below their bridge, given to them ; nor any undertaking by the state, in the act incorporating them, not to sanction competition, nor to make improvements that might diminish their income. In this respect they have no rights to be impaired, and consequently none which the courts are called upon to protect.

The judgment of the supreme court should be affirmed.

Davies and Rosekrans, JJ., concurred on both the grounds stated in the opinion. Selden and Marvin, JJ., were for affirmance on the ground that the legislature did not conclude itself; the prohibition of the act is not a restraint of the legislative power. 
      
       If this case goes to the supreme court of the United States, it would not be surprising, perhaps, under several decisions of that court, if it came to a different conclusion from this court—whether it would not consider the whole franchise to the Chonango Bridge Company an entire and indivisible contract, after its acceptance by that company; and the legislature having reserved in the franchise no right or power to alter, amend or repeal any portion of it, any 'subsequent interference by the legislature, to the detriment of the corporation, with any part of the executed contract, would not come within the prohibitory clause in the constitution. That is, whether the legislature had impliedly reserved their sovereign power as to one portion of the contract and not as to the other, so as to exercise it in that way at its election.—Rep.
     