Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1846-06-11
SUPREME COURT OF THE UNITED
STATES.
DECEMBER Term, 1916.

UeT hioer bridge Company, FfmHuDs IN Error,
Joseph Dir and Others, Defendants in Error
BRIEF OF THE ARGUMENT FOR THE DEFENDANTS.
In the year 1895, the plaintiffs in error were
made corporation, by act Of the Legislature Of
the State Of Vermont and, by said act, had grant,
ed to them the exclusive privilege Of erecting and
maintaining a bridge over West River, within four
miles Of its mouth with the right OF taking certain
tolls for passing the same. This franchise was to
continue for the term Of one hundred years, and
has not yet expired. The company proceeded to
erect their bridge and have maintained it until the
institution of the proceeding in question. And
have, during all that time, been in the enjoyment
OF the franchise granted In 1912, proceeding
was instituted in the county court, for the county
OF Windham, within which said bridge was situat.
ed, under general law Of the State OF Vermont
for the laying out and opening highways, by which
proceeding the bridge was made public and free
highway, and the right to take tolls extnguished.
This was effected by the Judicial determination Of
a court Of competent jurisdiction In conformity
with the provisions Of the statute, the whole proper
ty of the plaintiffs realty and franchise, was ap.
praised, and due provision made for compensation
TO the full value of the same.
BY statute OF that State then and still in force,
(passed November, 1897 the supreme and coun-
ty courts have the same power to take any real es'
tate, easement franchise, Of any turnpike or 9TH
er corporation, when, in their judgment. the pub
lie good requires public highway, which they
have by law 10 lay out highways over individual or
private property.
The plaintiffs in error now seek to reverse the
proceedings and judgment Of the State court, upon
the ground that the above mentioned statute, far
il Processes TO authorize the extinguishment OF
their franchise, is unconstitutional and void.
The Constitution OF the United States, and that
of the State of Vermont, both recognize the right
to take private property for public use. The latter
declares
THAT private property ought to be subserient
"o public uses when necessity requires it (; never
theless, whenever any persons property is taken
" for the use of the public the owner ought to re.
" ceive an equivalent in money"
This provision, as well as the similar one in the
Constitution of the United States, does not confer
the power, but merely limits its exercise.
The power itself is an essential and indispensa.
Bile attribute of sovereignty, which can be neither
alenated nor abridged by ordinary legislation.
Without the limitation imposed by the Constitu'
ton, it might be exercised without compensation
Gov, &c, Of Cast Plate Manufg Co., VS.. Meredith
I. r., 794; Stark ads. Nc Gowan, Mott e.
McCord, S. Car. Repts., 1877.
Full compensation to the plaintiffs having been
provided in this case, the proceeding does not con
hict with the constitution Of Vermont.
Nor with that of the United States, as the pro
vision in that instrument is not restrictive of the
States, but of the General Government only.
The proceeding, then, being regular and legt
innate exercise Of power warranted by the consttu
ton ofthe State the question arises does it conflict
with that provision in the Constitution of the Uni
ted States which prohibits State from passing
law impairing the obligation Of contractsl And Thu
question resolves itself into another, viz Does THU
provision Of the constitution override annul alb
rogate the right Of eminent domain, it would 9th
erwise exist in the sovereignty Of the respectiv,
Slatesl
For if this power is still supposed 10 exist notwth
standing this clause Of the constitution, then its lie
gitmate exercise cannot conflict with that proyis
| ion.
All real estate is held, or supposed to be held, b,
grant from the State iii cannot be taken 70
| public use in proper case, aud in proper way
under the restriction Of the State constitution the
it cannot be taken at ALL and the right of emnen
domain is gone.
That this right still remains in the several State
is not now to be questioned. Rogers VS.. Brad
shaw, 90 John, 742 Beekman VS.. Sar. and Schen
r. r. Co., 3 Pages C. Repts., As Boston w ate
| Power Co. VS. Bos and Wor. r. Road Co., q
Pickering, 800; Is Yer, r.. Ches. River Bridg
vs. Warren Bridge, Pick, 459, S. c.. | Peters
SAG.
But there is no need Of authorities on this point
The entire practice and universal opinion Of III
country, Judicial and extra Judicial from the ador
ton of the Constitution to this day, have settled tn
matter