Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1846-05-21

and applied by the State court, aud the question
heu 30 be considered is was the law, as so coastra
od, constitutional
Such has been the course in this court. law
may be unconstitutional to particular cases, yet
not as to others.-Golden vs. Prince, Wash. G.
G. r., 3l3
The statute of Maryland, leyying tax on any
bank put in operation in this State without con-
sent Of the legislature, not decided uncons,itu-
tional in the abstract nor its application TO
the branch bank holden to be an extension Of 1t to
an improper case not incudcd but such appca-
ton when made by the authority Of Maryland. was
holden as an unconstitutional lax. --McCullock vs..
Maryland, Wheaton, 235.
The acts Of New York, granting the exclusive
navigation Of its waters by steam holden I'M
constitutional as applied 10 rtssek coming from
icithom The iState.-Gibbons vs. Ogden, 0 Wheaton,
300, 2l0.
In the present case, the plaintiffs are possessed
of franchise worth in fact $l0,000--tsee page
56)-being a toll bridge, which they hold under
the contract with the State. The State pass stat
ute (reuised statute Of Vermont, p. 553J by which
the court (which has the general power Of laying
highways shall have the same power, in laying
hghpays to take any easement or franchise
Of any turnpike or other corporation" provided
they take the whole franchise,) " that they have
to take the land of private persons in laying high.
WAYS"
Under this law, and according 10 the ordinary
form Of laying out or altering highways petition
is presented to the court setting up that the stage
road leading this bridge, aud through the
neighboring towns needs alteration and, TO
this bridge, 1t represents that IT " is, and for long
time past has been, grieDdrce both to the
traveller and the inhabitants Of the town in the Vi
cini,y, who have to pass and repass' and how
ever the legislature, in the infancy Of the State,
may have exercised a sound discretion in granting
said toll bridge yet, in the present improved and
thriving condition of the inhabitants your petition
unable to discover why said grievance should
longer be endured, or why the wealthy town Of
Braiieboro' should not, as well as other towns less
able, sustain free bridge West river" Aud
praying survey Of a road and also take the real
estate easement, aud franchise Of West River
Bridge Company for the purpose Of making free
road and bridge across said rlyer,"-(See page
14)
The court, as usual, appoint commissioners, who
survey and report some alterations IN the road but
none within miles of the bridge (see pages IL
and 81 y and make their report to the court and
in that report, in relation to this bridge they say
(page l5) Also examined the toll bridge across
West river, in Brattleboro, and have been taken
into consideration the propriety Of laying free
road said bridge at the expense Of said town
of BrattleborO as contemplated by said petition ;
and the said commissioners were unanimously OF
the opinion that the puplc good required that the
real estate easement franchise ofthe West River
Bridge Corporation should be taken, and compen-
saton made therefor, that the said toll bridge might
thereafter be free bridge. The said commission
ers have therefore assessed the said corporation
four thousand dollars to be paid out olthe treasury
OF Brattleboro in full compensation. -(Case,
pages 10 and l6) This was accepted aud confirm
ed by the court and the bridge decreed free on pay
ment OF the 81 900.
The plaintiffs insist, that the State law is, for
such purpose and as applied in this case, uncon-
stitutonal and void. When the statute Is conslru-
ed and applied TO extinguish franchise, when no
new road was needed, or in fact laid out but only
10 extnguish the toll il becomes expressly and ex-
cusively law mpairing and destroying the obliga.
ton ofthe contract by which the plaintiffs held their
franchise
Let us make the statute, in terms, what it is made
by the practical construction Of the court in this
case
Whenever the paying Of tolls on any turnpike or
toll bridge heretofore granted by the State, becomes
incOapeHint in the estimation Of the inhabitants in
the pieinity, they may apply by petition TO the court
and the court shall appoint commissioners and If,
in their opinion, the public good requires free road
or bridge then the proprietOrs shall take such sum
as the commissioners shall estimate, and the fran.
chise shall cease, though the time for whieh il paS
granted has not elapsed.
This is in substance and effect the same il
the State Legislature should say Hereafter no
toll shall be paid for crossing West river bridge the
same being hereby abolished and the corporation
shall receive, for compensation, such gross sum as
commissioners, by the State appointed, shall de-
eide"
Is not this imparing and destroying the contract
by which the franchise is holden II is difficult to
conceive of any greater impairing the obligation OF
a contract, than entirely to end and destroy IT,