# Fertilizing Company v. Hyde Park

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## Concurring Opinion

    Miller

## Dissenting Opinion

    Strong
United States Supreme Court
97 U.S. 659
Fertilizing Company v. Hyde Park
ERROR to the Supreme Court of the State of Illinois.
The Northwestern Fertilizing Company, a corporation created by an act of the legislature of Illinois, approved March 8, 1867, filed its bill in equity to restrain the village of Hyde Park, in Cook County, Illinois, from enforcing the provisions of an ordinance of that village, which the company claims impairs the obligation of its charter. The bill also prayed for general relief. The Supreme Court of that State affirmed the decree of the Circuit Court of Cook County dismissing the bill; whereupon the company sued out this writ of error.
The charter of the company and the ordinance complained of are, with the facts which gave rise to the suit, set forth in the opinion of the court.
The case was argued by Mr. Leonard Swett for the plaintiff in error.
1. The charter confers upon the officers and agents of the company immunity from public prosecution for acts thereby authorized. Trustees v. Utica, 6 Barb. (N. Y.) 313; Harris v. Thompson, 9 id. 3; People v. Law, 34 id. 514; Stoughton v. State, 5 Wis. 297; Niederhouse v. State, 28 Ind. 258; 1 Hilliard, Torts, 550. The acts for the commission of which the railway employees were fined were, by the express terms of the charter, authorized. The company engaged them to transport the animal matter from its receiving depots in Chicago to the chemical works, which it had erected at a point confessedly within the limits designated. No other railroad touches at those works, and the company thus used the only means for promptly conveying from the city such matter to its rightful destination.
2. The charter, having been accepted by the company, is a contract with the State which the latter has no power to repeal, impair, or alter. Dartmouth College v. Woodward, 4 Wheat. 518; Armstadt et al. v. Illinois Central Railroad, 31 Ill. 484; Buffett et al. v. The Great Western Railroad, id. 355; State Bank of Ohio v. Knoop, 16 How. 369, Jefferson Branch Bank v. Skelly, 1 Black, 436; Bridge Proprietors v. Hoboken Company, 1 Wall. 116; The Binghamton Bridge, 3 id. 51; Home of the Friendless v. Rouse, 8 id. 430; Washington University v. Rouse, id. 439.
3. Charters which suspend the exercise of the recognized sovereign powers of a State have, as contracts, been repeatedly sustained. Thus she may, for a consideration, bind herself not to tax a corporation; and a clause to that effect in a charter is a part of the contract, though it curtails, to that extent, her taxing power. The provision that no State shall pass a law impairing the obligation of contracts imposes a limitation not only upon that power, but upon all her legislation. New Jersey v. Wilson, 7 Cranch, 164; State Bank of Ohio v. Knoop, supra; Home of the Friendless v. Rouse, supra; Washington University v. Rouse, supra; Atwater v. Woodbridge, 6 Conn. 223; Herrick v. Randolph, 13 Vt. 525; State Bank v. People, 4 Scam. (Ill.) 303; Illinois Central Railroad Co. v. McLean, 17 Ill. 291; The Binghamton Bridge, supra; Bridge Proprietors v. Hoboken Company, supra; Conway et al. v. Taylor's Ex'rs, 1 Black, 603; Costar v. Brush, 25 Wend. (N. Y.) 630; M'Roberts v. Washburn, 10 Minn. 23; Murray v. Charleston, 96 U.S. 432.
4. The police power of the State was regarded by the court below as justifying the acts complained of, upon the hypothesis that all her grants are subject to an implied reservation of that power. There is no room here for such an implication. It is a contradiction in terms to say that an authority to carry on a particular business within designated limits for a specific period, which has been expressly granted by a binding contract, may be taken away at her pleasure, in the exercise of that power. Police regulations cannot be constitutionally enforced, if they conflict with the charter, or impair any of the essential rights which it confers. Cooley, Const. Lim. 557; Washington Bridge Co. v. State, 18 Conn. 53; Pingrey v. Washburn, 1 Aik. (Vt.) 264; Miller v. New York & Erie Railway Co., 21 Barb. (N. Y.) 513; People v. Jackson & Michigan Railroad Co., 9 Mich. 307; People v. Platt, 17 Johns. (N. Y.) 195; Bailey v. Railroad Company, 4 Harr. (Del.) 389; Conway v. Taylor's Ex'rs, supra; State v. Neves, 47 Me. 189; State v. Jersey City, 5 Dutch. (N. J.) 170.
A railroad which, without legislative authority, crosses a common highway, is a nuisance. Dillon, Mun. Corp., sect. 561. But when a charter conferring the right to construct such a road over a along a public highway is accepted, the company, if it operates its road with a due regard to the public safety and convenience, cannot be subjected by the State, in the pretended exercise of her police power, to penalties and forfeitures. A nuisance can be legalized; for the State may, for a limited time, surrender her police, as well as any other power. In this case she has done so for a valuable consideration, to secure a result of vital importance.
It was urged below that the charter is not violated by the ordinances, because the company may establish its works at some other point within the territory prescribed. To this there are two obvious answers. 1. The erection of the works is a compliance with the requirements of the charter, and entitles the company to exercise its franchise at the selected site. 2. It is gratuitously assumed that there are other suitable points to which means of rapid transit exist; but suppose there be, it may be safely predicted that, long before the expiration of the charter, the police power, if the decision below be now sustained, will be invoked, so as to render it impracticable for the company to carry on its business at any point, notwithstanding it may have invested capital in making preparation therefor.
5. If the public necessities demand that the franchise of the company shall be appropriated by the State, a proceeding condemning it in the exercise of the right of eminent domain, whereby an adequate compensation will be paid therefor, is the proper and only constitutional remedy. Cooley, Const. Lim. 556, and cases there cited; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Central Bridge Corporation v. Lowell, 4 Gray (Mass), 474; West River Bridge v. Dix et al., 6 How 507; Annington v. Barnett, 15 Vt. 745; Boston Water-Power Co. v. Boston & Worcester Railroad, 23 Pick. (Mass.) 360; Boston & Lowell Railroad Co. v. Salem & Lowell Railroad Co., 2 Gray (Mass.), 1.
6. The right to equitable relief follows from the preceding propositions. Boston & Lowell Railroad Co. v. Salem & Lowell Railroad Co., supra; Craton Turnpike v. Kider, 1 Johns. (N.Y.) Ch. 611; Livingston v. Van Dusen, 9 Johns. (N. Y.) 507; High, Injunctions, sect. 318, and cases cited.
Mr. Charles Hitchcock, contra.
MR. JUSTICE SWAYNE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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