Derby Turnpike Co. v. Parks , 10 Conn. 522 ( 1835 )

Williams, Ch. J.

The questions to be decided, are, had the plaintiffs a right to take increased tolls under the act of 1829 ? And if so, is that act repealed or annulled, by the resolve of 1832 ?

It has been claimed, that the act of 1829, is of no force or efficacy ; that it was obtained under such circumstances as to constitute moral fraud ; that it was an attack upon the rights of the defendant, without any notice to him, and by suppression of the truth and suggestion of falsehood. Whether the facts upon which the defendant relies in proof of this claim, are so placed before the Court, as that we should be bound to regard them, is not now a matter of enquiry. It is only alluded to, to show, that that point is not either admitted or denied. As the case has been argued upon the supposition, that the facts found by the General Assembly are proved here, we will examine whether they are sufficient for us to say, that the act of 1829 was obtained by fraud.

No notice was given to this defendant of the intended application for an alteration of tolls. We have a general statute regarding notice to be given, in all cases, to the adverse party, before trial. Now, if Parks stood in the relation of an adverse party, then a grant made by the General Assembly, upon a petition, when he was not cited, would be, against him at least, null and void. That he was in this situation has not been contended. So long as he chose to carry the mail upon this road in a stage coach, he had an interest in having the tolls low : and so had every person who might in future carry a mail, in the same way. But it is not shewn even that he was bound to carry the mail on the road, though it might be more convenient for him to do so. In carrying it there, he consulted his own convenience, and not any stipulation he had entered into.

If, then, the law did not require notice to be given him, certainly would be too much for this Court to say, that an application to the Assembly for a franchise was fraudulent, because the petitioner had not given such notice. As was said in a case somewhat analogous, “ the injury is to be ascribed to the law, not to the individual who has complied with its requition.” 7 Crancli 50. We do not say but that notice, in such cases, ought always to be required, that all may be heard, who feel any interest in the subject. The modern practice has been not to act in such cases until notice in a public newspaper has been given, that such a case is pending. But, it is believed, the first time that it has been urged, that unless it was given, the grant was void. Such a decision would destroy many of the ancient grants in this state; and is warranted by no authority whatever.

It is said, that there was a false suggestion, which ought to make void this grant. The petition states, that there was a mistake in recording the former bill, or in some other way, whereas it is now found, that there was no mistake, but it was designed to encourage mail-carriers. Is this such a fraud as shall set aside a grant ? It has been held, that the facts stated in a bill in chancery are not evidence against the party filing it, in another case between the same parties, of the facts charged in it. Doe d. Bowerman v. Sybourn, 2 Esp. Rep. 496. 498. S. C. 7 Term Rep. 2.

But what are the facts charged in that petition 1 That a mistake was evidently made in recording the bill in form, or in some other manner ; the toll being but 6⅛ cents, while other stage and pleasure carriages with four wheels, are subject to four times that amount of toll. From the manner in which this allegation is made, it seems, that the mistake charged was claimed to be proved, by the accompanying facts, viz the disproportion in the toll to that upon other similar vehicles. It is said to be evidently made ; and the proof offered is, that like carriages are charged four times as much. It is but the allegation of the draftsman, supported, as he claims, by the facts. This inference may have been erroneous ; but it does not therefore follow, that it was fraudulent. If this was all that was intended, the General Assembly could draw their own inference as well ag the petitioners. If they considered this sufficient proof of fact, the inference certainly could not have been deemed unfounded. If there was other proof of the fact, that proof was either true or false. If false, the defendant ought to show it, before he can claim this was obtained on false suggestion ; and if true, we surely cannot say the suggestion in the petition was fraudulent, when there was proof to support it.

It was also claimed, that the petitioners suppressed the truth. They knew, it was said, that the defendant had made the contract with the post-master-general to carry the mail; and that a mail had long been, and then was, transported on said road. Now, it does not appear, that the defendant was bound, by his contract, to transport the mail upon this road ; though it does appear, he was obliged to transport it from New-Haven to Norfolk and back. Of course, it does not appear, that the petitioners knew that fact, or that it existed. There was, then, no fraud, in not stating that fact. But they did know, that the defendant, in executing his contract, did in fact run his mail carriage upon this road, and had done so for years.

Nor ivas this fact one of that kind, which it was fraudulent to conceal. It is difficult to conceive of a fact more notorious, than that a mail stage has, for a numbers of years, been running every day in the week, except Sunday, upon a great public road ; and it is hardly possible to suppose, that a fact of such notoriety could have been concealed from a body of men, composed, like our legislature, of members from every town in the state. At all events, it would be too much to say, that because that fact was not made known to the Assembly, it w os fraudulently suppressed. Fraud is not to be presumed; and when this court are called upon, in this collateral manner, to declare void an act of the General Assembly, upon the ground that it was fraudulently obtained, this fact should be clearly proved. In the opinion of the court, no such inference can be drawn from any one of these facts, or from all of them combined.

It is unfortunate that notice had not been required, by the General Assembly, but as they, in the exercise of a discretion which they had a light to exercise, have not done this, the court cannot say that their act is void. On the other hand, there is no doubt that this resolve gave a perfect right to these plaintiffs to collect tolls under it, while it remained in force.

This brings us to inquire, in the next place, whether that resolve has been annulled, by the one of 1832. ; J

There can be no doubt of this, provided the legislature had the constitutional right, under the circumstances disclosed, to annul that act. By a most valuable provision of the constitution of the United States, no state can pass any law impairing the obligation of contracts. Such laws may sometimes be passed hastily, and without noticing what is to be their operation; or they maybe passed upon occasions of great distress, under an idea that private interests must yield to public good, as was the case with the tender laws during the revolution. Under this provision of the constitution, it has been decided, that a grant is a contract, and, of course, cannot thus be impaired. This has been solemnly adjudged, by the supreme court of the United States, whose peculiar duty it is, to settle constitutional questions. Fletcher v. Peck, 6 Cranch, 136, 7. Dartmouth College v. Woodward, 4 Wheat. 518. The former was a grant of land, the latter of a franchise; and both were held inviolable. Indeed, that a legislature can no more revoke its grants than the donor his gift, when delivered, is now to be considered as a principle perfectly well settled. Several years before the case of Fletcher v. Peck, it was said, by one of our most eminent jurists, that rights legally vested in any corporation, cannot be controuled or destroyed, b}r any subsequent statute, unless a power for that purpose be reserved to the legislature in the act of incorporation.” Wales v. Stetson, 2 Mass. Rep. 146. The same principle was fully recognized, by this court, in the case of the Enfield Toll Bridge Company v. The Connecticut River Company, 7 Conn. Rep. 44. and by the supreme court of New- York, in the case of The People v. Platt, 17 Johns. Rep. 215. Such a grant, it is said, vests an indefeasible, irrevocable title. Indeed-, this general principle has not yet been denied.

But it is said, that it does not apply to this case, because here was no consideration. The first answer to this is, that no case has been shewn to prove, that a consideration is necessary. If that rule was to prevail, why is it necessary there should be any act of revocation at all ? If a consideration was necessary, it would seem, that the grant was void for want of it; and, of course, needed no revocation. If good before the revocation, then it is not easy to see how the grantor could avoid it. If good, it must be because the right had passed from the grantor to the grantee; and if it had once passed and a right vested, gurej coll}(-] not kg d¡vest.ecl, at the pleasure of the gran- . *or‘

In the case of a gift by an individual, saying he gave an article, without delivery, it would be revocable; or, to speak more correctly, it never was given. But if the article is once delivered, it can no more be recalled than if he had received as a consideration the full value. This point was much considered and elaborately discussed, by Story, J. in the Dartmouth College case. He says : “ Where a contract has once passed bona fide into grant, neither the king, nor any private person, who may be the grantor, can recall the grant of the property, although the conveyance may have been purely voluntary. A gift completely executed is irrevocable. The property conveyed by it, becomes, as against the donor, the absolute property of the donee ; and no subsequent change of intention of the donor can change the rights of the donee.” 4 Wheat. 683. Again, this enlightened jurist says : “ The government has no power to revoke a grant even of its own funds, when given to a private person or corporation for special uses. It cannot recall its own endowments, granted to any hospital, or college, or city, or town, for the use of such corporations.” 4 Wheat. 698.

It is said, this question was not necessary to a decision in that case. It was a question argued at the bar, and which, therefore, fairly arose in the case ; and an opinion therefore upon it, if not absolutely necessary to the result, was not an obiter opinion. Those who would question this opinion, should be able to produce some authority against it. Until that can be done, this court have no hesitation in adopting it.

A case was cited from Com. Dig. that loll thorough, that is, toll on the king’s highway, cannot be claimed simply, without any consideration. If that doctrine is to be recognized here, and applies to a grant of toll not on a public highway, properly so called, but on a road where toll is now demandable, then it proves, that this toll could never have been legally taken under the act of 1829. But the question in England was rather as to the extent of the prerogative of the king ; and it was held, that “ the common law had so admeasured his prerogatives, that they shall not take away nor prejudice the inheritance of any.” Plowd. Com. 236. And in the case of Davy v. Allen, Noy, 176. it is said, by counsel, to be agreed, that “the king cannot grant toll to be taken in the highway, which is free ; because it is to deprive the subject of his common right and beritance.” 2 Wils. 299.

The legislative power in this country is not limited by the same rules as the prerogative of the king in England. It is rather to be compared with that of the parliament, except as it is limited by the constitution. This authority, therefore, is not applicable to a legislative grant.

But if it was, what is this grant 1 Is it to be considered as an original grant to a company, and a charge on the public without consideration ? Or is it merely a modification of the original grant ?

The turnpike company have granted to them a charter with a certain toll. This toll is found inadequate to the support of the road and a reasonable compensation to the proprietors. Can it be said, that an additional toll is without consideration ? In this case, the company claimed it as a part of the grant originally intended to be made ; and under this impression, doubtless, the General Assembly granted it. So it is claimed by the defendant, in another part of the case ; and wre do not see why this act (without reference to subsequent proceedings) may not be fairly considered as an explanation of the original act, and treated as a part of it. And in that point of view, there can be no foundation for the argument, that this is to be considered merely as a license. Whether it is considered as an explanation of the original grant, or an addition founded upon the idea that the tolls received did not form a reasonable compensation for the expences, it is equally valid. It has been compared to cases of laws giving a bounty for the destruction of birds or beasts of prey, or providing a compensation to millers. General laws of this kind, for whole classes of men, have not been considered as in the nature of franchises or private grants. If, therefore, they are revocable, it wall not apply to cases of this kind.

Whether any of these questions, as to the act of 1829, can be made, or whether the validity of that grant can be tried, except upon a process adapted specially to that purpose, are questions, which, in the view taken of the case, need not be discussed; as we are not disposed to question a legislative act any further than the exigencies of the case demand. But when it is claimed, that an act interferes with constitutional rights, the enquiry cannot be avoided, without a gross dereliction of -duty. The result of that enquiry has been, that the act of ,1832 can have no effect whatever upon the rights of the plaintiffs, under the resolve of 1829. The court are thus imperatively bound to declare, that the act of 1829 remains unaffected and unimpaired ; and that the plaintiffs have a right to collect the toll granted thereby.

We advise the superior court to render judgment for the plaintiffs.

The other Judges concurred in this opinion.

Judgment for plaintiffs.