persons using his property as he may elect. If certain rates of toll are fixed by the charter of a corporation, a subsequent act, inflicting penalties on the corporation for exceeding the charter rates, is not a violation of the contract of the charter, and is valid. The right to impose toll, conferred upon a company, in consideration of its undertaking an enterprise for the public benefit, is not lost by reason of the fact that the work does not prove beneficial, or that the improvements mentioned in the statute are not in all respects completed,* when such condition is not prescribed by its charter; and the neglect or inability of a corporation to perform the duties required by its charter, although sufficient to produce a forfeiture, or to make it liable to indictment,5 is a matter between the State and the corporation, which cannot be taken advantage of collaterally until it is judicially determined,"

1 Perrine v. Chesapeake Canal Co., 9 How. 172.

5 Lumbard

で、 Stearns, 4 Cush.

62; Commonwealth v. Newburyport

2 Camden Railroad Co. v. Briggs, Bridge, 9 Pick. 142. If a penalty is 22 N. J. L. 623.

3 Bennett's Branch Improvement Co.'s Appeal, 65 Penn. St. 242, 251; Susquehanna Boom Co. v. Dubois, 58 Penn. St. 182. See Commonwealth v. Allegheny Bridge Co., 20 Penn. St. 185; Carman v. Clarion River Navigation Co., 81 Penn. St. (Pt. 2) 412. See Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 43; Kellogg v. Union Co., 12 Conn. 18; Commonwealth v. Breed, 4 Pick. 460. Proprietors are liable for losses occasioned by want of ordinary care and the incapacity of their piers and booms to secure logs. Weld v. Androscoggin Side Booms, 6 Maine, 93. But they are entitled to toll on logs actually stopped, although other logs of the same owner are lost in consequence of the same defects. Side Booms v. Weld, 6 Maine, 105; Penobscot Boom Co. v. Baker, 16 Maine, 233; Penobscot Boom Co. v. Wadleigh, Ibid. 235.

Tamar Navigation Co. v. Wagstaffe, 4 B. & S. 288; Quincy Canal v. Newcomb, 7 Met. 276; Carmen v. Clarion River Navigation Co., 33 Leg. Int. 239; 2 W. N. C. 720.

imposed by the statute incorporating
a bridge company for unreasonably
delaying or neglecting to raise the
draw of the bridge, such delay or ne-
glect does not operate as a forfeiture
of the franchise. Commonwealth v.
Breed, 4 Pick. 460.
If the company
builds its bridge and takes toll, it may
be indicted before the expiration of
the time specified for completing the
bridge, for a failure to comply with
the requirements of its charter. Com-
monwealth v. Newburyport Bridge, 9
Pick. 142. An indictment for neglect
to provide a pier at the draw of the
bridge should directly aver that a
bridge has been built. Ibid. If a
navigation company fails to improve
the navigation of a stream as required
by its charter, it will not be restrained
by a court of equity from collecting
the tolls allowed by the charter. The
proper proceeding is by quo warranto
at suit of the Commonwealth. Pixley
v. Roanoke Navigation Co., 75 Va.
320.

6 Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 46; Kellogg . Union Co., 12 Conn. 20; Hart

when the charter contains no reservation or condition with a view to the particular interests of individuals.1 A corporation which is authorized by its charter to improve the navigation of a river, is not liable for injuries sustained by those who navigate the river, if it has not completed the improvement or charged toll,2 or if the charter merely gives permission and does not create an obligation to make the improvement.3 And if real estate acquired by the corporation is necessary for the uses in which the public is concerned, it cannot be sold or taken on execution, apart from the incidents and burdens of the franchise, so as to give the purchaser a title divested of the obligations of the company. In general, if no provision is made in the charter, the franchise itself, when granted for the purpose of constructing works of public utility, and collecting tolls, is a personal trust and not assignable by voluntary conveyance or forced sale; but a legislative grant to a particular person, his associates and assigns, gives him the right to select the persons to be associated with him in the enterprise.

ford Bridge Co. v. East Hartford, 16 Conn. 173; Pearce v. Olney, 20 Conn. 557; Hamilton v. Annapolis Railroad Co., 1 Md. 553; 1 Md. Ch. 107; Commissioners v. State, 9 Gill, 397; New Central Coal Co. v. Georges Creek Coal Co., 37 Md. 537; Commonwealth v. Breed, 4 Pick. 460; Shand v. Gage, 9 S. C. 187; Young v. Harrison, 6 Ga. 130; Buncombe Turnpike Co. v. MeCarson, 1 Dev. & Bat. (N. C.) 306; People v. Reclamation District, 53 Cal. 346; Sterrett v. Houston, 14 Texas, 153; State v. Orleans Navigation Co., 7 La. Ann. 679.

1 Proprietors v. Hahn, 28 Maine, 300; Riddle v. Locks & Canals, 7 Mass. 169.

If a private corporation

How. 257; Gooch v. McGee, 83 N. C. 59, restricting State v. Rivers, 5 Ired. 297, and Arthur v. Bank, 9 S. & M. 394; Ammand v. Turnpike Co., 13 Serg. & R. 210; Railroad Co. v. Colwell, 39 Penn. St. 337; Foster v. Fowler, 60 Penn. St. 27; Youngman v. Railroad Co., 65 Penn. St. 278; Morris Canal Co. v. Central Railroad Co., 1 C. E. Green, 419; Coe v. Railroad Co., 10 Ohio, 372. See Attorney General v. Roanoke Navigation Co., 84 N. C. 705. An execution sale of the booms and piers of a boom company passes no right to the leasehold of shores and flats used by the company. Rollins v. Clay, 33 Maine, 132. 5 Ibid.; Lord v. Oconto, 47 Wis.

2 James River Co. v. Early, 13 386; People v. Duncan, 41 Cal. 507; Gratt. 541.

3 Goodrich v. Chicago, 20 Ill. 445; Chicago v. McGraw, 75 Ill. 566; Mills v. Brooklyn, 32 N. Y. 489; Daniels v. Denver, 2 Col. 669.

4 Gue v. Tide Water Canal, 24

O. R. Co. v. O. B. Co. 45 Cal. 365;
Tippets v. Walker, 4 Mass. 595; East
Boston Freight Railroad Co. v. Hub
bard, 10 Allen, 459, note.

6 Powell v. Maguire, 43 Cal. 11.

holds an entire franchise for the improvement of the navigation of a river between certain points, with power to lease a portion of the works, a lessee of such portion holds subject to the liability to forfeiture of the entire franchise in case the lessor makes default in duly improving any other portion of the stream.1

§ 145. Statutes imposing toll, being in derogation of common right, are strictly construed.2 An act which authorizes the erection of a toll-bridge, and the purchase of flats adjoining, does not, as incident to the business of maintaining the bridge, give power to build and rent wharves; and a company which is empowered to boom lumber, and to receive toll therefor, is not entitled to demand toll for driving lumber. The business of improving the navigability of a river for the purpose of aiding the running of logs and timber therein, has a natural and legitimate connection with the business of running logs and timber in the river when improved; and it has accordingly been held that an act creating an improvement company, which was afterwards amended so as to include the running of logs and timber, and the collection of tolls on logs, was not obnoxious to a constitutional provision that statutes shall not contain more than one subject.5 When a corporation is created for the purpose of making an impassable stream navigable, and no particular mode of accomplishing that result is indicated by the charter, it may be done by any of the known methods;6 but the manner of doing the work pointed out by the charter, if at all, must be pursued.

If a grant from the State of

which the bridge and buildings are erected. Sparks v. Hess, 15 Cal. 186. 4 Bangor Booming Co. v. Whiting, 29 Maine, 123.

5 Yellow River Improvement Co. v. Arnold, 46 Wis. 214.

Canal Co. r. Railroad Co., 4 Gill & J. 1.

7 Farnum v. Blackstone Canal Co., 1 Sumner, 47. Injuries by a dam erected for the improvement of the navigation of a river are to be compensated in the manner provided by

the right to erect a toll-bridge or wharf, or to maintain a ferry across a river does not in terms restrict the right of the legislature to make similar grants to others, a subsequent charter authorizing another similar structure upon the same river does not violate any vested rights of those to whom the privilege is first granted, or require any provision for compensation to them, although the effect may be to, lessen their tolls and profits by the diversion of tolls and travel.1

§ 146. If such a legislative grant gives, for an adequate consideration, privileges which are clearly exclusive, it amounts to a public pledge, and, being accepted by the grantee, has the force of a contract which the legislature has no constitutional power to impair.1 Where, for instance, a company was authorized by its charter to construct and maintain a toll-bridge within certain defined limits, it was held that the franchise thus created could not be taken away by a statute which authorized another bridge within the same limits unless provision was made for compensation to the first grantee, as in other cases where private property is taken or vested rights are invaded under the right of eminent domain. So, where the legislature granted the right to collect toll for a limited time, in consideration of the capital and labor to be expended in opening a canal through a slough which was not navigable, it was held that the grant could not be revoked without remunerating the grantee, and that he was entitled to collect toll after the expiration of the term. So, also, if the proprietor of a wharf in a harbor is authorized by the State to extend the same into the channel to a harbor line, and before the extension is made, a railroad company is incorporated with power to construct its road over the flats between the end of the wharf and the harbor

1 Power granted by a special act to a corporation to improve the navigation of a river is not repealed by a general law authorizing the incorporation of companies with similar powers. Black River Improvement Co. v. La Crosse Booming Co., N. W. Rep., Feb. 18, 1882; 8 So. L. Rev. 14. A statute which grants to one person the privilege of erecting a weir in certain tide waters is not repealed or modified by a subsequent general act which gives to all others the same right under certain conditions precedent. Cleland, 68 Maine, 258.

State v.

2 Ibid.; Piscataqua Bridge . New Hampshire Bridge Co., 7 N. H. 35; Crosby v. Hanover, 36 N. H. 404; Backus r. Lebanon, 11 N. H. 19; Johnson e. Crow, 87 Penn. St. 184; Hart

ford Bridge Co. v. East Hartford, 10 How. 511; 16 Conn. 149; 17 Conn. 79, 93; Enfield Toll Bridge Co. v. Hartford Railroad Co., 17 Conn. 40; The Binghampton Bridge, 3 Wall. 51; 27 N. Y. 87; Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Commonwealth v. New Bedford Bridge, 2 Gray, 339; Newburgh Turnpike Road v. Miller, 5 Johns. Ch. 101; Aiken v. Western Railroad Co., 20 N. Y. 370; Cayuga Bridge Co. r. Stout, 6 Wend. 85; Chenango Bridge Co. v. Lewis, 63 Barb. 111; Proprietors of Bridges v. Hoboken Land Co., 14 N. J. Eq. 81, 503; 1 Wall. 116; McRoberts v. Washburne, 10 Minn. 23; Norris v. Farmers' Co., 6 Cal. 590.

3 Grant . Leach, 20 La. Ann. 239.