The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1885-03-04


effect. Mr.. Morrison represented that the
act was essential to the people numbering
on the tributaries Of the Elk. At the
time the. bill was under considers
ton doubts were expressed whether the
Governor would sign the bill, for 1t was
suggested that It impaired the obligation
OF contract. These doubts were enter
tanned by some who voted for the bill,
feeling that II the people desired the legis-
lation and the State could grant It the
amendment ought to be passed. Yester.
day the Governor vetoed the bill and
filed the following paper:
4, THE VETO.
/ STATE OF WEsr VIRGINIA.,
Executive DEpARRTNRNr
WHEELING, March 5, 1856.
To he Hon. Randolph Sainaker, Jr., Secre-
tarycf State: -r.}
On the 9th day Of February the Com
mittee on Enrolled Bills presented to me
for my approval an act entitled "An act
to amend and re-enact Section 10 OF chap
ter "a Of the acts Of the Legislature in
cooperating the Elk River Improvement,
Manufacturing and Booming Company,
passed February 9th, 1907. Not being
able to give my assent to said act becoming
law, return tho same to your office to
be fled with my objections thereto, as
provided in Section IA, Article Of the
Constitution.
Elk river is public highway, and Is SO
recognized by the act incorporating this
company. The proyiso in the third Sec
ton OF said act being "that said booms be
so constructed as to admit the safe passage
Of RATS and boats and not to prevent the
navigation OF said river or tributaries." !"
Being a navigable stream "the title to the
bed, the shores and banks 10 ordinary high
water mark Is now in the State OF West
Virginia for the use OF the public. This
conclusion is absolutely necessary to
properly preserve for the people the free
navigation OF the highway. And
the FREQ navigation OF the same carries
with it the right to do all that Is necessary
for the proper and profitable navigation
thereof" (liavenswood VS.. Fleming; 90
w. Va, page 8S,l
The Legislature may therefore regulate
the manner in which the navigation OF
the stream maybe carried on, the shores,
bed and banks being held by. the State in
trust forthe public" I'D page 69). Thus
the State may grant to city the exclusive
right TO build wharves, &c. The exclusive
rightto ferry, (Masonvs Bridge Company,
ii w. Va, 30G). The State may also
grant TO individuals or TO private corpora
tons exclusive rights in its public domain
OF nayigable streams. See Crenshaw vs..
Slate River 'Company-G Rand. 2I5).
The Elk River being q nayigable stream
held in trust for the public, ID was within
the power of the Begisla latnre TO enact the
act incorporating this company and to
confer upon II the exclusive privileges
conferred upon the company in said act.
A charter containing such exclusive
grant confers rights which are private
property and cannot be taken away or
damaged without compensation.
(Crenshaw VS.. Slate River Company, 9
Rand. 2i5; Mason vs.. Bridge Company,
IL w. Va, 39B; Boston & Lowell Railroad
Companyys. Salem, 9 Gray, l; Bingham
ton Bridge case, 8 Wallace, 6l.)
In the Boston and Lowell railroad vs..
Salem, Chief Justice Shaw held, "In
constituting this act of incorporation we
are to bear in mind the time and circum-
stances under which 1t was made, but
more especially 10 take into consideration
every part and clause OF the act and de-
Iduce from 1t the true meaning and intent
loffthe parties. The act, like every act and
charter Of the same kind, is a contract
between the government on the one hand
and the undertakers accepting the act Of
incorporation on the other; and therefore
what they both intended by the terms
used II we can ascertain 1t, forms the true
construction OF such contract" To the
same purpose are many cases to be found
in the books. 5t1
j ATTEMPT TolANSuL A CONTRACT.
The charter to the Elk River Booming
Company constituted contract upon the
part of the State with said Company,
granting to It exclusive privileges in
booming said river within certain points,
which contract was accepted by theincor-
porators, and ever since they have enjoy
ed the franchise guaranteed by said act. 1t
is now attempted TO alter and amend the
act by theact under consideration, grant
ing 10 other persons rights and privileges
upon said river within the points covered
by the, grant of the Elk River Company
for booming purposes. 1tisclaimed that
the Legislature may do this under the res
ervation contained in the 10th Section OF
the Act OF 1869, which Is as follows:
HThe Legislature reservestheright to al
ter or amend this act at any time, in such
manner, however, that no injustice may
be done to the corporators OF. their credi-
tors Does this reservation confer upon
the Legislature the power TO change the
contract so as to abridge the rights and
privileges Of the corporators? am Of the
opinion II this reservationwas unqualified
Ii would not give the Legislature the right
to impair the object Of the grant or the
rights vested under 1t. Chief Justice
Waite, in delivering the opinion OF the
Court in the Sinking Fund cases 100 .. S.
page 720) in interpreting an Act OF Con-
gress with the reservation, "that Congress
may at any time alter, amend and repeal
this act,h held THAT Congress not
only retains but has given special
notice Of Its intention 10
retain full and complete power to make
such alterations and amendments OF the
charter as come within the Just scope OF
the legislative power; that this power
has q limit no one can doubt. all agree
that It cannot be used To take away prop
[efty already acquired under the operation
Eof the charter, or to deprive the corpora
ton Of the fruits actually reduced TO pos
session by contracts lawfully made but as
was said by this court through Mr.. Justice
Clifford, in Miller vs.. the State 10 Wall,
1881 1t may safely be affirmed that there
served power may be exercised, and toal-
moRt any extent, to carry into effect the
original purpose Of the the grant, or to SO.
cure the due administration Of its affairs,
so as 10 protect the rights Of stockholders
and Of creditors, and for the proper dis.
position OF It's assets"
Mr. Justice swayne, In shieldsys. Ohio,
saysby wayoi Limitation; .sThe sttesta-
tons must be reasonable; they must be
made In good faith and be consistent with
the object and scope OF the act Of ineor-
pumtion, Sheer oppression and wrong
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