6 How. 507-550

Notes on U. S. Reports.

672

lay out a street through land held for railroad purposes; People v. Walsh, 96 Ill. 252, 36 Am. Rep. 140, the legislature may transfer the control of streets to commissioners, to be improved for boulevard purposes, not inconsistent with their use for ordinary travel; City of Terre Haute v. E. & T. H. R. R. Co., 149 Ind. 180, 46 N. E. 78, 37 L. R. A. 192, 193, a municipal corporation may condemn right of way for streets through grounds of railway company; Balt. & Havre-de-Grace Turnpike Co. v. U. Ry. Co., 35 Md. 231, 6 Am. Rep. 401, legislature can authorize and empower a railroad corporation to cross another railroad or turnpike; Turnpike Road v. Railroad Co., 81 Md. 256, 31 Atl. 855, legislature had power to authorize an electric railway to operate upon the road of a turnpike company; Central Bridge Corporation v. City of Lowell, 4 Gray, 481, an act of legislature authorizing city to take a toll bridge for a highway, upon payment of damages, is constitutional; Swan v. Williams, 2 Mich. 431, 440, territorial legislature could lawfully authorize a railroad company to take private property for purpose of constructing roads; East Saginaw Mfg. Co. v. City of East Saginaw, 19 Mich. 282, 2 Am. Rep. 91, a bounty law for the encouragement of manufacturing may be repealed at any time; Matter of Opening of First Street, 66 Mich. 53, 33, N. W. 20, contract made by city, by which it agreed not to extend a street, is void; Opinion of The Justices, 66 N. H. 645, 33 Atl. 1085, railroad may be taken for public use on payment of its value to the owners; Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 117, 130, provision in act incorporating bridge company, prohibiting the erection of a bridge within certain distance, not a contract authorizing power to authorize such bridge at future time; In re N. Y., etc., R. R. Co. v. M. G. L. Co., 63 N. Y. 334, lands of gas company not exempt from condemnation; Sixth Ave. R. R. Co. v. Kerr, 72 N. Y. 333, law permitting railroad company to make use of tracks of another company, upon making compensation, constitutional; N. C. R. R. Co. v. Carolina Central, 83 N. C. 496, unnecessary land of railroad company liable to be taken for use of another railroad company; Toledo Bank v. Bond, 1 Ohio St. 677, 685, act providing for the taxation of banks and bank stock the same as other property, is constitutional; Plank-Road Co. v. Husted, 3 Ohio St. 583, in conferring special privileges on a corporation, the legislature could not relinquish or abridge its power of taxation; Lake Shore, etc., Ry. Co. v. C., S. & C. Ry. Co., 30 Ohio St. 616, legislative act prescribing certain duties on the part of railroad corporations, in order to prevent collisions, a valid exercise of power; McKeen v. D. D. Canal Co., 49 Pa. St. 436, injury to property through construction of canal, authorized by law, followed as a mere consequence of the lawful exercise of the right of eminent domain; Tait's Exrs. v. Central Lunatic Asylum, 84 Va. 277, 4 S. E. 700, State might acquire, under right of eminent domain, land leased by it, for an insane asylum; B. & O. R. R. Co. v. P. W. & Ky. R. R. Co., 17 W. Va. 853, railroad property not in

actual use, necessary to the proper exercise of franchise, may be taken for the purposes of another railroad.

Cited, arguendo, in Planters' Bank v. Sharp, 6 How. 331, 12 L. 460, as instance where contract might be lawfully impaired; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 673, 29 L. 525, 6 S. Ct. 264, franchises may be forfeited under power of eminent domain; Matter of Meador, 1 Abb. (U. S.) 327, F. C. 9,375, discussing power of taxation; Minot v. Phila., etc., R. R. Co., 2 Abb. (U. S.) 336, F. C. 9,645, a franchise is subject to taxation; Ex parte Tate, 39 Ala. 265, acts of Confederate Congress, repealing previous exemptions from military service, are valid; Shollenberger v. Brinton, 52 Pa. St. 93, Congress has power to issue treasury notes, and to make them lawful money and a legal tender; Commonwealth v. Pa. Canal Co., 66 Pa. St. 57, 5 Am. Rep. 334, adopting opinion of lower court reported in 66 Pa. St. 45, 5 Am. Rep. 335, owners of canals and dams in river could not be required to make sluices in dams for passage of fish; State v. S. P. R. R. Co., 24 Tex. 127, in suit to forfeit charter; Laurel Fork, etc., R. R. Co. v. W. Va. Trans. Co., 25 W. Va. 356, legislature has a right to establish, by a general act, a maximum rate of charges for transportation of freight and passengers. Cited in State Bank v. Knoop, 16 How. 400, 14 L. 990, arguendo, in dissenting opinion, per Catron, J., majority holding tax rate as fixed in bank charter by legislature, cannot subsequently be changed; Dodge v. Woolsey, 18 How. 379, 15 L. 421, per Campbell, J., majority holding as in State Bank v. Knoop, supra. Cited in Franklin v. Kelley, 2 Neb. 110, but without particular application. See the following valuable notes: 22 Am. Dec. 696, 28 Am. Dec. 423, 31 Am. Dec. 373, 33 Am. Dec. 515, 42 Am. Dec. 729, 9 Am. St. Rep. 137; also note, 3 Ind. 26, collecting authorities.

Distinguished in United States v. Chicago, 7 How. 195, 12 L. 665, holding a city has no right to open streets through property belonging to the United States; Boston, etc., R. R. Corp. v. Salem, etc., R. R. Co., 2 Gray, 35, where a railroad company had been granted the exclusive right to operate between certain cities, lesser grants to other corporations did not warrant them in uniting and forming a competing line to the detriment of such exclusive right; Cary Library v. Bliss, 151 Mass. 380, 25 N. E. 96, 7 L. R. A. 771, and n., where property was merely transferred from one party to another and not appropriated to the public use; Ashuelot R. R. Co. v. Elliot, 58 N. H. 456, holding foreclosure of mortgage not an exercise of legislative power; In Matter of Highway, 22 N. J. L. 302, where road and bridges are owned as private property, a public highway cannot be laid over them by surveyors so as to take the improvements for the public use; Matter of Boston, etc., R. R. Co., 53 N. Y. 579, power given by general railroad act, did not give authority to take lands held by municipal corporation as a public park; Matheny v. Golden, 5 Ohio St. 375, a lease under act incorVOL. IV - 43

6 How. 507-550

Notes on U. S. Reports.

674

porating a university, providing land should be exempt from taxation, constitutes contract between State and lessees.

A charter of incorporation is a contract, which the State, under the inhibition of the Constitution, could not impair, p. 531.

Cited and relied upon in Planters' Bank v. Sharp, 6 How. 320, 12 L. 455, holding bank charter a contract authorizing the transfer of bills by indorsement; New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 664, 29 L. 521, 6 S. Ct. 259, a subsequent franchise encroaching upon an exclusive privilege cannot be granted; Ball v. Rutland R. R. Co., 93 Fed. 515, provision in railroad giving right to fix rate of fare is a contract; State v. Noyes, 47 Me. 207, State cannot impose new duties and obligations upon railroad contrary to privi leges granted by charter; Black v. D. & R. Canal Co., 24 N. J. Eq. 471, lease of property and franchises to another corporation, in accordance with legislative enactment, impairs contract between dissenting shareholders and the State; State v. R. & D. R. R. Co., 73 N. C. 543, indictment under act changing gauge of railroads cannot be sustained, as it impairs contract between State and railroad; Pingree v. Michigan Cent. R. R. Co., 76 N. W. 636 (Mich.), act of legislature authorizing corporation to fix tolls within certain limits, confers a contract right which a succeeding legislature cannot violate; State v. S. P. R. R. Co., 24 Tex. 125, where suit was brought to forfeit charter. Cited, arguendo, Debolt v. Ohio Life Ins. Co., 1 Ohio St. 586, act providing for the taxation of banks and bank stock, the same as other property, is constitutional; AttorneyGeneral v. Railroad Companies, 35 Wis. 569, law limiting tolls chargeable by railroads upon transportation wholly within State is valid. Cited in note, 27 Am. Dec. 707.

Distinguished in Rockland Water Co. v. C. & R. Water Co., 80 Me. 568, 15 Atl. 790, 1 L. R. A. 396, where State conferred no exclusive privileges, it impairs no contract by incorporating a second company with similar powers and privileges.

Right of eminent domain is paramount to all private rights vested under the government which, by necessary implication, are held in subordination to this power, and must yield in every instance to its proper exercise, p. 532.

Cited approvingly and relied upon in Hollingsworth v. Parish of Tensas, 4 Woods, 286, 287, 17 Fed. 113, holding land cannot be appropriated to the public use without compensation, and under the single principle of eminent domain; Camblos v. P. & R. R. Co., 4 Fed. Cas. 1102, monopoly of railroad company could not be taken away without compensation; New York, etc., R. R. Co. v. Boston, etc.. R. R. Co., 36 Conn. 199, a railroad may be authorized to take land already appropriated, under equal authority, by another railroad; Walker v. Gatlin, 12 Fla. 16, warranty in bill of sale that negro ■hould be a slave for life not broken by subsequent act of govern

ment abolishing slavery; Savannah, etc., R. R. Co. v. The Mayor, 45 Ga. 608, State has right of eminent domain over streets and squares of Savannah; Hyde Park v. Cemetery Assn., 119 III. 149, 7 N. E. 630, a legislative grant in restraint of the right of eminent domain is not binding on the State; Grand Rapids, etc., R. R. Co. v. G. R. & I. R. R. Co., 35 Mich. 273, 24 Am. Rep. 551, and Calhoun v. Calhoun, 2 S. C. 303, it is no breach of warranty contained in bill of sale of slaves that they were afterwards liberated by the government; State v. Delesdenier, 7 Tex. 99, State may reserve any portion of public domain from location; Jenkins v. Charleston, 5 S. C. 396, 22 Am. Rep. 18, a city may lawfully tax its own stock.

Eminent domain. The Constitution of the United States does not take away this right from the States, p. 532.

Cited in Jacoway v. Denton, 25 Ark. 666, arguendo, in dissenting opinion, majority holding State cannot impair obligation of contract for sale of slaves.

Contracts.- Into all contracts there enter conditions which do not arise out of its literal terms; they must be presumed to be known and recognized by all, and are binding upon all, and need never be carried into express stipulation, p. 532.

Cited in Yunker v. Nichols, 1 Colo. 555, holding right to convey water over land of another for purpose of irrigation may be acquired under statute and grant from owner is unnecessary; De Graffenried v. Savage, 9 Colo. App. 136, 47 Pac. 904, to the same point: Matheny v. Golden, 5 Ohio St. 422, 427, argunedo, in dissenting opinion.

Franchises.- Property held by an incorporated company stands upon the same footing with that held by an individual, and a franchise cannot be distinguished from other property, p. 534.

Cited and principle followed in United States v. American Bell Telephone Co., 29 Fed. 43, holding franchise right of patent-holding corporation in no way serves to establish fact that corporation is carrying on its business, and is to be found wherever its patent is issued; Spring Valley W. W. v. Schottler, 62 Cal. 111, franchises are subject to taxation; Porter v. R. R. I. & St. L. R. R. Co., 76 Ill. 574, to the same effect; Turnpike Co. v. Parks, 50 Ohio St. 576, 35 N. E. 305, 28 L. R. A. 771, statutes authorizing Probate Court to declare toll road abandoned and vacated without intervention of a jury, are unconstitutional; Thorpe v. R., etc., Co., 27 Vt. 151, 62 Am. Dec. 633, it is within the police power of a State to require cattle-guards at farm crossings; Whiting v. S. & F. R. R. Co., 25 Wis. 204, 3 Am. Rep. 45, a tax for the purpose of donating money to a railroad corporation is invalid.

Cited and approved in State v. B. & O. R. R. Co., 48 Md. 82, in partially dissenting opinion, concurring with majority holding fran

6 How. 507-550

Notes on U. S. Reports.

676

chises property within protection against unequal or excessive taxation; McLeod v. S. S. & G. R. R. Co., 25 Ga. 726, in dissenting opinion, majority refusing compensation where a railroad was permitted to construct a bridge within limits reserved to toll bridge. Approved, arguendo, Board of Liquidation v. City of New Orleans, 32 La. Ann. 918, law requiring all property to be turned over to board, applies to franchises but not to the power to grant them; Delaware, etc., R. R. Co. v. Camden, etc., R. R. Co., 16 N. J. Eq. 366, grant of exclusive privilege to transport passengers and merchandise between certain cities, does not extend to intermediate business; State v. Matthews, 3 Jones (N. C.), 458, legislature had power to prohibit bank from issuing bills of a certain denomination and to make it an indictable offense to pass the same. Cited in Thomas v. Cincinnati, N. O. & T. P. R. R., 93 Fed. 591, in construction of railroad lease.

Denied in Toledo Bank v. Bond, 1 Ohio St. 663, holding and providing for the taxation of banks and bank stock, constitutional.

Constitutional law. It is not within the jurisdiction of the Federal courts to inquire into the conformity between the modes prescribed by the statutes of a State, and the proceedings actually adopted in their execution, p. 535.

Cited in Withers v. Buckley, 20 How. 89, 91, 15 L. 818, 819, holding under judiciary act of 1879, the Supreme Court has no jurisdiction of question whether State law is in opposition to law of that State; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 688, 41 L. 1166, 17 S. Ct. 719, decision of State court conclusive on mere matter of procedure, or of conflict of statute authorizing condemnation or proceedings thereunder, and the State Constitution; Merchants' Bank v. Pennsylvania, 167 U. S. 462, 42 L. 237, 17 S. Ct. 830, decision of State court holding statute not in conflict with State Constitution, conclusive upon the Supreme Court.

The power of eminent domain acts on the property and not on the contract, per McLean, J., p. 536.

Cited and approved, Osborn v. Nicholson, 13 Wall. 660, 20 L. 695, holding right to sue on note given in payment for slave, not taken away by the thirteenth amendment, subsequently passed; Rutland R. R. Co. v. C. V. R. R. Co., 63 Vt. 22, 21 Atl. 266, 10 L. R. A. 565, law levying tax upon gross receipts of railroad company and requiring a lessor to detract the same from rents is constitutional,

Eminent domain. The public purpose for which this power is exerted must be real, not pretended, per McLean, J., p. 537.

Cited in Coster v. Tide Water Co., 18 N. J. Eq. 68, holding legislature had no power to authorize a commission to drain overflow lands without consent of the owners; Or., etc., Co. v. Oregon Real Estate Co., 10 Or. 446, a title that may be freed from public use,