entered into by a preceding legislature. The doctrine is well settled, that legislatures may make grants of some kinds, which come properly within the denomination of contracts, and such contracts, when made, are as inviolable as the contracts of an individual."

"It is as essential that the public faith should be preserved inviolate as it is that individual grants and contracts should be maintained and enforced. But there is a material difference between the right of a legislature to grant lands, or corporate powers, or money, and a right to grant away the essential attributes of sovereignty, or rights of eminent domain. These do not seem to furnish the subject-matter of a contract." Brewster vs. Hough, 10 New Hampshire 139.

For criticisms on this opinion see American Law Magazine for 1846, Art. 4.

Among the other cases decided in the State Courts on questions of exemption from taxation by statute or charter, are the following: In Osborne vs. Humphrey, 7 Conn. 335, a law of 1802 had exempted parsonages, &c. from taxation, and the land had been leased for 999 years. The act was repealed 1821, and the repeal was held void. Atwater vs. Woodbridge, 6 Conn. 223, is a similar case. In 11 Conn. 251, is a case of ministry land exempted by statute from taxation, and the exemption was held good. Judge CHURCH, however, dissented, and delivered a very able opinion, reviewing all the cases, and especially commenting on the two cases in 6 Conn. 223, and 10 Conn. 490, in which cases he says this question of the power of the legislature was not raised. 1 Metcalf 538, was a question of exempting meeting houses, but seems to relate to the construction of the act. 4 Metcalf 564, seems also a question of construction. State vs. Branin, 3 Zabriskie 484, also relates to the construction of a statute. So in State vs. Tunis, 3 Zabriskie. In the case of Morris Railroad, 3 Zabriskie 529, the charter was repealable. In the case of the Easton Bank, 10 Barr (Pa.) Reports 442, a rate of tax had been prescribed in the charter, but no stipulation that there should be no further tax, and the court upheld the additional tax.

In 13 Vermont 225, ministry land had been exempted by statute, and afterwards leased, and the exemption was held good. In the cases in Ohio-Debolt vs. Ohio Life Insurance Company, 1 Ohio 564; Mechanics' Bank vs. Debolt, 1 Ohio 581; Toledo Bank vs. Boyd, 1 Ohio 622; and Piqua Branch of State Bank vs. Knoop, in same volume, the court deny the right of the legislature to grant perpetual exemptions, and sustain their opinion by long and able arguments. In Ohio vs. Commercial Bank of Cincinnati, 7 Ohio 125, the rate of tax was fixed in the charter, and the court seem to hold it a contract the legislature could not alter, but Judge CATRON (10 Howard 400), says this was merely a case of construction of a statute, and that the constitutional question was not raised. See also what Judge CAMPBELL says, 10 Howard 413.

It is to be observed, also, that in very few of these cases was the State a party, or concerned in the contest; and in some of them the doctrine of contract is tacitly assumed without arguAs see 17 Conn. 93.

ment.

In a recent case, Pennsylvania Canal Commissioners vs. Pennsylvania Railroad Co., decided June, 1857, Chief Justice LEWIS gives a thorough examination of the cases on this question and concludes that, in the absence of any constitutional authority, a State legislature has no power to sell, surrender, alienate, or abridge any of the rights of sovereignty, such as the right of taxation, so as to bind future legislatures, and any contract to that effect is void. Although the court refer as authorities to some of the Ohio cases, which had been reversed in the United States Supreme Court, yet the decision of the Pennsylvania court itself, and the reason they give for it, are entitled to no little weight, and show that the current of legal opinion is beginning to change upon this subject. See 5 Law Register 623. Redfield on Railways, § 229, page 531.

There was probably a reason why the courts formerly leaned strongly in favor of protecting corporations against the power of the legislatures. There were comparatively few corporations, and there was a strong popular prejudice against them, and they

needed the aid of the courts to preserve their existence. At the present time there is hardly an individual but is interested in some corporation, and it is rather the legislature which needs protection against the influence of combined corporations.

If a legislature can irrevocably exempt a corporation from taxation, they can do the same with a town. For services to the State they might exempt an individual, and his descendants, forever. For a sum paid down by way of commutation, they might exempt an individual, or a city, forever-or, they may exempt a part of the land in a town forever.

Have the people ever given them such a power?

In many cases the courts have sustained acts of legislatures, which divested rights of individuals. "It is clear, says Chief Justice TANEY, "that this court has no right to pronounce an act of the State Legislature void, as contrary to the Constitution of the United States, from the mere fact that it divests antecedent rested rights of property.. * Nor are we aware of any decision of this, or any Circuit Court, which has condemned such a law upon this ground, provided its effect be not to impair the obligation of a contract." Charles River Bridge Case, 11

Peters 540.

*

We have remarked that Judge STORY went so far as to consider a salary fixed by law, a contract the legislature could not alter, the courts have since decided to the contrary. See 8 Howard 163; 10 Howard 395; 6 Howard 548. So it has been decided, the legislature may release a penalty although the informer may have an interest in it: 10 Wheaton 248; 6 Peters 404. It is difficult to see the distinction between these cases and those where an exemption from taxation is claimed by virtue of a repealed tatute. The case of a charter, however, it would be contended

y some, did not stand upon the same ground.

The charter of the college was granted at a time when the eople of the State had, comparatively, little wealth, and when alaries were small, professors poor, and, even with the exemption rom tax, the professor's salary did not more than comfortably

VOL. 10.-47

support him.

Circumstances have changed, and professors are

now among our most wealthy men.

For several years the college had no professor, and for twenty years they had but one professor. The president's salary was a mere trifle.

Even if the charter is to be considered a contract, it would be full compliance with the spirit of the contract to exempt $0.000 worth of property from taxation; that being the amount usually held by professors in old times.

According to the letter of the charter an officer may hold any amount of property in trust for others. And the danger of secret trusts may be great hereafter. If the present officers are above suspicion, there is no harm in it, and it implies no disrespect to them, to guard against the future.

Some of the committee were of opinion that it would be better, as a mark of respect, and as the legislature do not wish even to appear to do anything to the injury of the college, to make the act conditional, and to request the consent of the corporation to it. If they refused, it would still be in the power of the legislature to repeal the exemption unconditionally. But the majority of the committee think best to report the bill unconditionally, having full confidence in the patriotism of the officers of the college, and not doubting but that they are willing, especially in a crisis like the present, to bear their just share of the burdens of the State.

The committee do not mean to say that the legal question is free from all difficulty, but they believe the courts will hesitate long before they deny the power of the legislature to interfere in the present case.

They respectfully report the following bill:

AN ACT to amend the charter of Brown University by repealing so much theref as exempts the estates, persons, and families of the president and professor thereof from taxation.

Whereas, in times of public danger all persons ought to bear their share of the public burdens in proportion to their ability, and this General Assembly have ful confidence in the patriotism of the said president and professors, and in their

willingness to bear their proper share of the taxation necessary for the preservation of our Union and Constitution, therefore

It is enacted by the General Assembly as follows:

So much of the act entitled "An act for the establishment of a college or university within this colony," passed at February session, a. D. 1764, as exempts the estates, persons and families of the President and Professors of said institution, now known as Brown University, from taxation, is hereby repealed.

NOTE. It will be seen that this bill does not affect at all the college property, but only that of the college officers. Even on the ground of contract it can be hardly supposed that the exemption of the officers was one of the essentials of the charter, without which the college would not have accepted it.

In the Supreme Court of Vermont-January Term for Chittenden County 1862.

JOHN W. TRACY vs. ALONZO ATHERTON et al.

A right of way cannot arise from mere necessity, independent of any grant or reservation, express, or implied as in the case of a former unity of ownership.

This was an action of trespass qu. cl. The defendants pleaded in justification a right of way of necessity from the close occupied by them, over the plaintiff's close, to the public highway; the plaintiff's close lying between theirs and said highway; averring that at none of the said several times when, &c., could the defendants have access to their said close from said highway, or egress from their said close, to said highway, or to any other highway or public place, except over and across the close of the plaintiff, without going a greater and more inconvenient and an unnecessary listance, and over and across the closes of other persons; and herefore, that the defendants had, at said several times, when, &c.,

necessary way for themselves, &c., and alleging the trespasses omplained of to be the passing and repassing of the defendants pon said necessary way, as they lawfully might, &c. There was o averment of any former unity of ownership or possession of aid closes, nor of any right by prescription. The plea was anwered by a general demurrer. The county court, pro forma, ad