Citizens' Water Co. v. Bridgeport Hydraulic Co. Orleans Gas Co. v. Louisiana Light Co., 115 U. S. R., 650 ; New Orleans Water Works v. Rivers, id., 674; Louisville Gas Co. v. Citizens Gas Co., id., 683. See also Enfield Toll Bridge Co. v. Hartford & N. Haven R. R. Co., 17 Conn., 58; Cone v. City of Hartford, 28 id., 363; Elliot v. Fair Haven & Westville R. R. Co., 32 id., 579; Olmstead v. Camp, 33 id., 532; Harding v. Stamford Water Co., 41 id., 91; State v. Milwaukee Gas Light Co., 29 Wisc., 454; Atlantic City Water Works Co. v. Atlantic City, 39 N. Jer. Eq., 367; Pierce v. Drew, 136 Mass., 81; Mills on Eminent Domain, § 55; Angell on Highways, § 91; 2 Morawetz Private Corp., §§ 1057, 1129. The power of the legislature may be exercised as irrevocably by approving a contract already made by a corporation without authority as by authorizing the corpor ation to make such a contract. 2 Dillon Mun. Corp., § 79; Davidson v. Bridgeport, 8 Conn., 472; Bridgeport v. Housatonic R. R. Co., 15 id., 475; Saugatuck Bridge Co. v. Westport, 39 id., 337. The rights under any such contract are vested rights and upon general principles of legislation cannot be disturbed. 2 Morawetz Private Corp., §§ 1101, 1102. And it does not affect the case that the legislature granting the charter giving the rights, or authorizing the contract giving them, contains a reservation of power on the part of the legislature to alter or repeal the charter at its pleasure. Von Hoffman v. Quincy, 4 Wall., 535; Holyoke Co. v. Lyman, 15 id., 500; New Jersey v. Yard, 95 U. S. R., 104; Railroad Co. v. Maine, 96 id., 499, 508; University v. The People, 99 id., 309; Sinking Fund Cases, id., 721, 731; Nelson v. St. Martin's Parish, 111 id., 716; Virginia Coupon Cases, 114 id., 269; Fisk v. Jefferson Police Jury, 116 id., 131; Com. v. Essex Company, 13 Gray, 239; Commissioners v. Holyoke Water Power Co., 104 Mass., 446. 2. With stronger reason the constitutional inhibition applies in favor of the Bridgeport Hydraulic Company, the present defendant. This company by the express terms of its charter possesses all the rights that were given to the Bridgeport Water Company; but it has certain rights beyond those of that company. It is found that the corporators were the Citizens' Water Co. v. Bridgeport Hydraulic Co. holders of bonds of the Bridgeport Water Company. These bonds were authorized by the charter of that company and made a charge upon its property. The obligation of a creditor's contract with his debtor is impaired by any legislation impairing the remedy which the creditor enjoyed at the time of the creation of the debt. Planters' Bank v. Sharp, 6 How., 327; 2 Morawetz Priv. Corp., § 1102. Besides this the charter of the company again specially recognizes the contract between the city and Green. 3. The record shows that the estate sought to be condemned by the plaintiff is already held for the same public use for which its condemnation is asked. The taking sought, therefore, is not a taking for public use within the constitutions of this state and the United States, and the answer should, for this reason, have been held sufficient. It is not a case where one public use is made to yield to a different and more urgent public use, but the new use is the same as the old, and it becomes a mere attempt to change the ownership of the property, which the legislature has no power to do. N. York, Hous. & Northern R. R. Co., v. Bost., Hartford & Erie R. R. Co., 36 Conn., 196; Bridgeport v. N. York &N. Haven R. R. Co., id., 255; Harding v. Stamford Water Co., 41 id., 91; Evergreen Cemetery v. City of New Haven, 43 id., 234; Central City Horse R'y Co. v. Ft. Clark Horse R'y Co., 81 Ill., 523; Lake Shore &c. R. R. Co. v. Chicago &c. R. R. Co., 97 id., 506; West River Bridge Co. v. Dix, 6 How., 507, 520, 537, 547. J. S. Beach and D. F. Hollister, for the appellee. The issues raised upon the pleadings are few and simple. The plaintiff was incorporated in 1886 "for the purpose of supplying pure water for public, domestic and manufacturing purposes to the town and city of Bridgeport, and the borough of West Stratford and town of Fairfield." It entered upon the discharge of its corporate obligations, and to that end has made large expenditures, exceeding three It now hundred thousand dollars, in permanent structures. encounters an obstacle which, if it cannot be removed, threat Citizens'. Water Co. v Bridgeport Hydraulic Co. ens to be fatal to the enterprise. The obstacle is this:There are certain lands in the town of Fairfield of such trifling intrinsic value that for years no one has claimed to own them, but which the plaintiff needs for its reservoir. It finds that the title to the land, though miles away from the defendant's works, now stands in the name of the Bridgeport Hydraulic Company, which recently became its pur chaser with full knowledge of the plaintiff's then pending petition for its charter. This application is made by the plaintiff to condemn these lands under the delegated authority of the state of its right of eminent domain. The defendant pleads that the state had no power, as against it, to delegate this authority to the plaintiff. This is our issue. The defendant in support of its side of the issue says that in 1853 one Nathaniel Green made a proposition to the city of Bridgeport to supply that city with water, upon certain terms and conditions therein set forth, under one of which terms and conditions Green was to have the exclusive right to lay down water pipes in the city of Bridgeport and that the city by a vote of its common council accepted that proposition. The plaintiff by its demurrer admits these allegations, but avers "in limine" in support of its demurrer that this action of the city in attempting to confer this exclusive right upon Green was ultra vires, and that no valid contract was thereby created. This law is too well settled to be denied by the defendant. Minturn v. Larue, 23 How., 435; Norwich Gas Light Co. v. Norwich City Gas Co., 25 Conn., 19. But, by way of confession and avoidance, the defendant says-true it is that this attempted contract between Green and the city was ultra vires and never existed under Green's proposition and the city's acceptance, but when the defendant was incorporated in 1857 a reference was made to the proposition of Green to be found in the following section of its charter: "SEC. 17. If said company shall fail to comply with, and in all respects to perform, the terms, conditions, stipulations and provisions contained in the proposition of Nathaniel Green, relative to supplying said city with water, on Citizens' Water Co. v. Bridgeport Hydraulic Co. file in the office of the city clerk of said city, reference thereunto being had, then all the rights, powers and privileges conferred by this act shall cease and determine." This is the only reference made in its charter to the Green proposition, but the defendant claims that by virtue of this section validity was (in 1857) imparted to the void action (in 1853) of the common council of the city. The plaintiff on the other hand insists that under the plain, true construction of this section, it was not an expansion of the defendant's immunities under its charter, but was a limitation and restriction, prescribing conditions for failure to comply with which the rights, powers and privileges conferred by its preceding sections should cease and determine. "The rule of construction in this class of cases is that it shall be most strongly against the corporation. Every reasonable doubt is to be resolved adversely. Nothing is to be taken as conceded but what is given in unmistakable terms, or by an implication equally clear. Silence is negation; and doubt is fatal to the claim. This doctrine is vital to the public welfare. It is axiomatic in the jurisdiction of this court." Fertilizing Co. v. Hyde Park, 97 U. S. R., 666. "A grant of an exclusive privilege or monopoly can in no case be implied." 1 Morawetz Private Corp., § 431. The plaintiff submits with confidence that its construction of this section is the right one, and that, so far from its being a grant of an exclusive immunity, it makes those already granted conditional; but even if wrong in this, the plaintiff insists that whatever may be the immunities and privileges granted by the defendant's charter, the duration of each and all of them is by the express terms of its charter made subject to the future action of the General Assembly. Section sixteen of the defendant's charter provides that "this act shall be subject to be altered, amended or repealed at the pleasure of the General Assembly." If the charter of the defendant company had contained in totidem` verbis the conditions, stipulations and provisions of the Green proposition as a constituent of its chartered privileges and immunities, it must be conceded that the legisla Citizens' Water Co. v. Bridgeport Hydraulic Co. ture could lawfully exercise its reserved power to alter and amend or take away any of these privileges and immunities. "The reservation affects the entire relation between the state and the corporation, and places under legislative control all the rights, privileges and immunities derived by its charter directly from the state." Tomlinson v. Jessup, 15 Wall., 458. "Where such a provision is incorporated in the charter it is clear that it qualifies the grant, and that the subsequent exercise of that reserved power cannot be regarded as an act within the prohibition of the constitution." Miller v. The State, 15 Wall., 495; Pennsylvania College Cases, 13 Wall., 213. Such a reservation formed part of the charter of a gas company which was granted in 1867, and which in terms conferred upon the company the exclusive right of supplying the city of Louisville with gas, but the court say-"The right of the legislature by a subsequent act passed in 1872 to incorporate another gas company to manufacture and distribute gas in Louisville, * so far from impairing the defendant's contract with the state, was authorized by its reserved power of amendment and repeal." Louisville Gas Co. v. Citizen's Gas Co., 115 U. S. R., 696. This is the law of the land as announced by the Supreme Court of the United States. In Trustees of Bishop's Fund v, Rider, 13 Conn., 93, the Supreme Court of Connecticut says:-"This court has adopted and firmly upheld the sound doctrine that the decisions of the Supreme Court of the United States upon all questions arising upon the construction and powers of the constitution, must control the state courts and be absolutely binding on all tribunals of the Union." But it is suggested that the rights and privileges claimed by the defendants under the Green proposition are not incorporated in the defendant's charter, but the Green proposition is simply referred to as being "on file in the office of the city clerk of Bridgeport," and that the Green proposition thereby acquired a potency it would not have had if incorporated in the charter, and that this added potency of reference makes the state impotent to do what it could law |