Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1846-05-21
Supreme Court of the United States.
DECEMBER Term, 1915.
WEST RIVER BRIDGE CO,
DIX EFT AL.

VS.
DIX EFT AL.
!. This is, proiessedIy, proceeding under the
exercise Of the eminent domain power inherent
in soyereig nty-the taking Of private property for
public use. The first question which presents it.
self in imiHe is the broad question whether pure
franchise, not growing out Of, or necessarily con-
nected with real visible property is such property
can be taken for public use
This is question coaterally discussed, and
suggestions made in relation thereto in some Of the
State tribunals, but 1t has yet been decided
by this court. Here matter incorporeal, ly-
ing exclusively in grant, and not in livery created
by, and having existence but an contract, and whose
existence could cease only by impairing, vacatng,
or destroying the contract constituting its exist
ence. Whatever may be the character Of this
ereign power-the eminent domain-t must at
least have in our several States the express ma-
ton provided in the constitution that is, they
pass no Lap impairing the obligation Of contracts
The present is attempt not merely TO impair
but wholly to DESTROY, the obligation Of the con.
tract creating this franchise The original idea of
the eminent domain was, that national sOUereigRfg
or resduum, which remained in the sovereign or
lord paramount over the lands in the kingdom al.
ter all had been granted in fee, or to feudatores
1t was, therefore, confined to the realty. In the
progress Of arts aud commerce, when personal
property became worthy Of legal consideration, it
is true, the writer's on national law extended the
eminent domain over personal property and they
assert, that the right TO take priUate property for
public use, extends TO taking chooses in action
debts But even if this be true, it must still be
here taken, subject to the constitutional limitation
already mentioned If State take and appropriate
to its use and necessities the claim, contract, or
debt which one man has against another, still it is
kept in force against the debtor This may be,
but coerciye buying of debt but the State
government, even in where its legislature
believe the public service requires 1t, and even by
making compensation, impair, nay, absolutely de-
stroy the obligation Of the contract. contrary to
the express prOriSion Of the constitution Yet
such is the true character Of this 1t has been
/ too often and too fully decided, that no difference
exists between the contract OF an individual and
that of a State now to require argument. Here
the State made with the plaintiffs contract for 100
years, granting them the exclusive right TO sustain
bridge for public use, and receive certain tolls as
a compensation. This contract the plaintiffs ac-
copied, and have thus far sustained the bridge
When it had become valuable the State then pass
law, not to buy out the contract, and keep it on
foot and in force, but to make a pretended CON-
compensation Of its present market U0tue, and utter
y 10 impair, destroy, and dnnihiiate its obligation.
1t has been said by every writer, and by almost
every court who have treated of this subject that il
when public uses require the assumption of private
property" q Kent Com. 34O)
Now, if this power extends 10 matters lying il
grant, and eristHg in the contract Of The same g0c
ernn,ent and lift may be exercised by making com
pensaton, by paying what commissioners appointed
by the government shall determine of its present
value, and hereupon actually exlingushing the
contract and its obligation, it is difficult TO see
what security that provision of the constitution a
al
" as TO contracts and debts of the STATES. The
Legislature of Mississippi has but to declare tina
the public service requires that the debts bonds
&c, OF that State, should be taken for public use
and appoint commissioners to fix their present mark
ct value, (which would now be very low,) and, up
on that being paid, declare the same forever extin
guished Would this be a legitimate exercise o
the power Of eminent domain 1t not, then VIII
is the present case within that power Here th'
State contracted that the plaintiffs should have thi
right for one hundred years. and receive IL pc
cent. per annum interest for their outlay. But be
; cause it had become regarded as burdensome, com
missioners are appointed TO assess the presen
, market value, and that is ordered to be paid am
the contract ertinguished
ii. This court is never called on TO decide
D State statute unconstitutional in the abstract,
, must have case before il ; and the question is,
il unconstitutional as construed and applied in thi
case IL 49, therefore, Always Tue inquiry WHethe
the law is constitutional, as applied by the Stat
4 Court and therefore must be taken, as 10 thi
question: as the State courts have construed and ar
!. piled it, Unless this be 50, there never can be
c question carried up. The State courts have but I
e take laws, good on their face, and construe them
: include purposes, however gross and uncons,tu
i tional, and there could be no redress II migt
only be said the law is good, but the decision
e bad, and but perversion Of the law; yet that
Il not within the jurisdiction Of this court, aud no n
n dress could be had This will not do. The onl
o way is to consider the law the State courts hay
I construed and applied it in the case, and then
y consider whether for such purpose, il is const
i tutonal Should State have statute declaTin
n it highly penal for any one but the sheriff OF ii
d county, 10 serve any legal process this is not NJ
: constitutional in the abstract. Now, if Oh indie
y ment before the State court. under this law, the
a. States marshall were TO be convicted for serving
circuit court process, and the State court were
hold this statute as constitutional and including b
e. case, is he without redress 2 Can Il be said, Il
In difficulty is not that the law is bad, but the Sta