The

grant to others of a similar franchise. commissioners, in awarding compensation for its franchise, separately, and as distinct from the cost or value of lands and construction, have ruled that it had no such immunity; and the objection goes to the principle of this appraisal.

The claim of the appellant is that the commissioners should have appraised the value to it of the franchise, as though it were inviolable, not only by direct action, but by such an impairment as would be caused through granting to others a like franchise to supply water. Of course, it is plain that a franchise of the nature claimed might be of Immense value, relatively to the cost, or to the moneys actually put into the enterprise by the promoters, and that in this case, if such were the franchise, its value should have been stated at far higher figures.

The Dartmouth College Case, 4 Wheat. 518, while establishing the doctrine that a charter is a contract, cannot help out the general claim of the appellant here. In that case the legislature attempted to alter the charter of the institution in essential respects, which concerned the number and mode of appointment of the trustees, and the creation of a board of overseers with power of control over the trustees. The charter was held to be a contract with the crown, to the obligations of which the state of New Hampshire had succeeded, and the legislation was held to be a violation of the clause in the federal constitution forbidding a state from passing any law impairing the obligation of contracts. The principle enunciated has been steadily adhered to, despite criticisms, and is not questioned here; but to say that the legislature of a state, in the absence of a reserved right, cannot pass a law which repeals, or which alters, the charter of a corporation by the annexation of some new terms or conditions, does not require us to say, further, as a necessary or logical corollary to the proposition, that a state may not grant a franchise of a similar nature to others, which, in its exercise, may impair the value of the former grant: provided, that by the terms of the former grant the state had not concluded itself from so doing. The distinction in principle is material between legislative action which impairs directly the obligations of the contract by alteration or otherwise, and legislative action which, because authorizing a competitive or a rival scheme, may impair the value to its incorporators of the former corporate project. Any other view would tend to support a right to interfere with, or to control, the power of the state, through its legislature, to exercise its discretion in grants of franchises. We think it is clear upon authority that, the statute under which the appellant was incorporated being couched in general terms, a charter secured by compliance with its terms does not grant to the company an exclusive privilege or franchise to supply water to the town or village, nor preclude the grant of another charter for a similar franchise. The grantee

of the charter takes nothing by implication, and the state is not further bound nor restricted than can be read in the act. This is in accord with principle and with the authorities. It was said in the case of Canal Co. v. Wheeley, 2 Barn. & Adol. 792, with respect to the plaintiff's rights, that they were derived from the act of parliament which authorized the canal, and they could "claim nothing that is not clearly given them by the act." Chancellor Kent argued for the view that such grants or franchises might be so extended by implication as to give them due effect "by excluding all contiguous competition which could be injurious," through the creation of a rival franchise or otherwise. 3 Kent, Comm. 459. He had reasoned for it in previous decisions. Ogden v. Gibbons, 4 Johns. Ch. *150, *160; Road Co. v. Miller, 5 Johns. Ch. 101. But this doctrine did not prevail. It was distinctly overruled in the Charles River Bridge Case, 11 Pet. 548; the doctrine of which latter case this court has repeatedly followed in its decisions, notably in the cases of Road Co. v. Douglass, 9 N. Y. 444; Chenango Bridge Co. v. Binghampton Bridge Co., 27 N. Y. 87; Power v. Village of Athens, 99 N. Y. 592, 2 N. E. 609; and Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167, 22 N. E. 381. The same doctrine was reiterated by the United States supreme court as late as in Stein v. Supply Co., 141 U. S. 67, 11 Sup. Ct. 892.

In the case of Charles River Bridge v. Warren Bridge, 11 Pet. 548, it appeared that the legislature of Massachusetts had passed an act incorporating the plaintiff for a term of years, with power to erect a bridge and to collect tolls, etc.; and that subsequently it incorporated the defendant, with power to erect another bridge, practically alongside of the plaintiff's bridge, and which, after the expenses of its construction had been reimbursed, should be surrendered to the state. The plaintiff charged that the act incorporating the defendant impaired the obligation of the contract between the state and the plaintiff, and was therefore repugnant to the constitution of the United States. It was claimed, in its behalf, that it had acquired an exclusive right in that line of travel, and that the prior legislative acts necessarily implied that the legislature would not authorize another and a free bridge by the side of the plaintiff's, thus rendering its bridge of no value. The case presented the question in a different form to the court, which the Dartmouth College Case did not cover, inasmuch as there had been no alteration of the charter of the corporation. The opinion of Chief Justice Taney elaborately discussed the question whether there was such a contract on the part of the state as implied the agreement on its part not to authorize another bridge which, from being free and contiguous, rendered the plaintiff's franchise of no value. It was held that such an agreement could not be implied, by reason of the settled rule of construction that in charters no rights are taken from the

public, or given to the corporation, beyond those which the words of the charter, by their natural and proper construction, purport to convey. As there were no words which imported such a contract, none could be implied. Mr. Justice Story dissented from the conclusions reached by the court, in a learned and vigorous opinion, in which he contended, upon the authority of "the old law," for such a liberal construction of legislative grants as would secure by implication to the grantee the enjoyment of what is granted, and insisted that the grant to the plaintiff carried with it an exclusive franchise to such a reasonable distance upon the river as that travel would not be diverted by any new bridge. He cited the decision in the Dartmouth College Case as apposite in its application to the case before him. But the argument of that great jurist upon the law and upon the injustice of the other view was without avail to convince a majority of his associates that the legislative grant should be extended by implication. The cases of Stein v. Supply Co., 141 U. S. 67, 11 Sup. Ct. 892, and of Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167, 22 N. E. 381, are recent expositions of the doctrine which requires a strict construction of public grants of franchises, and denies to the grantee anything by implication. Without pursuing further the discussion of the nature of the appellant's franchise, under its charter, it is our judgment that, viewed as a contract to which the state was a party, there was no grant of a right to supply water to the town which was exclusive in its nature, or which entitled It to such immunity as would preclude another or other incorporations for a similar object. The conclusion follows both from the nature of the general act and from the absence of proper words precluding a grant of a similar charter to other applicants.

We then come to the consideration of the proceedings had with the town of New Lots and the contract made subsequently to appellant's incorporation. The proposition is that the method of incorporation under the statute resulted in a common-law contract between the company and the town, protected for its entire term by constitutional law, by which all the public and proprietary right to furnish the authorities and inhabitants with water was conferred, and in the undivided and unimpaired exercise of which, during the term of the contract, the company must remain. So far as the proposition involves the construction of the statute, we need not repeat what we have said; and we need only consider what was the obligation assumed by the town of New Lots, by virtue of the part taken by it in the proceedings for incorporation. A design of the statute, as before suggested, in prescribing an application by the promoters to the town or village authorities, was to furnish some protection to the community with respect to the establishment of water-works companies. It not only is inter

ested in knowing the facts about the proposed corporation which is to become empowered to construct water works and to lay pipes in the public streets and places, but it is vitally concerned in knowing the sources from which it is proposed to distribute water to the inhabitants. The provision for its consent to the application, as a precautionary and politic measure, in the interests of the health of the community, is of undeniable wisdom. But how and why shall we infer that the requirements of the statute to the effect that the promoters of the water company shall make a detailed application, and that the application shall be granted by the authorities, to be followed up by incorporation by certificate, result in constituting a contract between the parties which obligates the town authorities not thereafter to contract with other parties for another supply of water, which, for some adequate reason in the circumstances, might be required? On its face, the proposition seems to repel. We may concede that the proceedings result in a contract, binding the parties to the observance of all its propositions, and entitled to the protection enjoyed by ordinary contracts between individuals; but we cannot spell out from such a contract, and we are unable to infer from it, regarded in the light of the proceedings in which it was made, an agreement that no like contract should ever be made with other persons or incorporations. Such an agreement would not be within the delegation of any express powers to the municipality, nor would it be warranted by the letter or the spirit of the proceedings; and the dictates of a sound public policy would forbid its inference. Public policy would discountenance such an agreement, as militating against the public interests, and as discounting unwarrantably the public needs and emergencies of the community in the future. The dealings with the town authorities amounted to a proposition to form a company for the purpose of supplying water to the inhabitants from certain sources, upon which the authorities acted by voting in acceptance thereof. Under the statute, that warranted the formation of a company, and authorized it to proceed with its works and the laying of pipes in the streets. The subsequent formal contract regulated the relations of the contracting parties, fixed the number of miles which the company should pipe, limited the prices to be charged, and in other ways arranged for the working of the contract; but we look in vain for an agreement binding the town authorities not to make a like grant or contract to or with others, if the public needs demand it. The contract is silent on all subjects except what the company may or must do. The moral view of the injustice of another similar contract during the life of the existing contract presupposes political and social conditions rendering a further contract unnecessary.

In

question of the value of the franchise whether it was founded upon the contract with the municipality, or in legislative grant. either case, as no exclusive franchise was granted in terms, none could be inferred.

The appellant further urges that by force of the provisions of the annexation act of 1886 (chapter 335, Laws 1886) its exclusive right to furnish water was affirmed and established. To this view of the act we cannot assent. That act was not intended to and did not operate upon the charter of the appellant. It bore upon the powers of the city of Brooklyn, upon annexation with the new territory, and its purpose was to conditionally protect the company's franchise in that event. We have defined its effect in the Ziegler Case, 126 N. Y. 342, 27 N. E. 471; when Judge Finch, speaking for the court, said: "The plan formulated by the annexation act thus accomplished two things; it protected the city, if it chose to purchase, by giving it the power to condemn the company's franchise as well as its tangible property, which, under the previous acts, it could not have done (In re Rochester Water Com'rs, 66 N. Y. 418); and, if the city chose not to buy, the act protected the company by excluding during its charter life the municipal competition." It was, at the most, a protective measure, induced by a regard of the possible consequences to the water company, if the municipality of Brooklyn should be disposed to take advantage of the situation upon annexation. It did not grant, and appellant's counsel do not claim that it granted, any franchise to the company; nor did it enlarge the one possessed. It was simply incidental, as the same counsel say, to the terms and conditions attached to the plan of annexation. But if the act did not affect the franchise, its provisions were incompetent to make it more extensive, and if it constituted no agreement with the company, which is not and cannot be pretended, then it was not beyond the power of the legislature subsequently to repeal the provision, and to leave the city free to compete.

In the last place, we will briefly consider the proposition that the condemnation act of 1892, which authorized this proceeding, is unconstitutional and void. The important point in the argument upon this proposition is that the principle which forbids the taking of a citizen's property, except for a necessary public use, requires, for the validity of the legislative act, that the particular public use be designated, whereby the property becomes impressed with a trust for the benefit of the public; and that not only this act is defective in that respect, but it gave no opportunity for a judicial determination of the question In our judgment, however, while it may have been better legislation to have fixed and limited the particular use for which the city of Brooklyn was authorized to acquire and hold the appellant's property, the act is valid. Throughout it declares the ac

of the use.

quisition to be in the public interest and for the public use. Its scheme suggests that the legislature deemed the matter of the water supply of too great public importance to be left to private enterprise, and it should become a part of the great municipal system. The legislature must be presumed to be the best judge of the necessity of public works and improvements, of how they shall be instituted, and of how long they shall be carried on, so as best to subserve public ends. Of the necessity for the exercise of the right of eminent domain, the legislature is the judge; but whether the use for which the property is to be taken is a public use, which justifies its appropriation, is a judicial question upon which the courts are free to decide. The opportunity for the presentation of that question, and for obtaining a judicial determination upon it, was distinctly provided for in this act. The act, in the first section, declared that the "public interest requires the acquisition by the city of Brooklyn, for the public use," of the properties of the water company; and in the next section it provided for the presentation of a petition by the city at a special term of the supreme court, which, after setting forth a description of the properties and franchises, and the names of the owners, or of parties having claims or interests therein, should pray "that the said city may be authorized to take and hold said property and franchises forever, for the pub lic use, free of all liens and incumbrances. upon making just compensation therefor," Service of notice of the presentation of this petition was then next provided for; and in the fifth section, after directing the court, upon the petition being presented, to make an order authorizing the city to take and hold the property for the public use, it is further provided that "any person or corporation having, or claiming any interest whatever in the said property and franchises, shall have a right to be heard in person, or by attorney, upon the said application," etc. The application referred to plainly means that of the city, upon the presentation of the petition. It can mean nothing else; for that is the only application in question. There was thus afforded the opportunity to raise any objections affecting the right of the city to proceed under the act in the condemnation of the appellant's property, and to have them judicially heard and determined.

etc.

The appellant's other point as to the unconstitutionality of the act is that it authorized the condemnation of property which is already devoted to a public use, without designating any different or larger public use to which it is to be applied. We do not think that there is force in this objection. While the purpose of the water-works company was public in its nature, it cannot be said to be strictly identical win the municipal purpose. A municipal corporation is a public and governmental agency. It holds property for the general benefit, with a larger scope of

use.

When acquired by the municipality of the city of Brooklyn, the appellant's property would become a part of a general system, under a single management, and conducted essentially as a public work. If, in order the better to subserve the public use, the appropriation of private property is necessary, even though it be already devoted to a similar use, the right to make it is incident to the legislative power, and it is necessary for the general good that the right be conceded. All property within the state is subject to the right of the legislature to appropriate it for a necessary and reasonable public use, upon a just compensation being provided to be made therefor, and there can be no distinction in favor of corporations whose franchises and operations impart to them a quasi public character. We think it very apparent that the public use to which the appellant's property is to be devoted by the provisions of the act does differ, and that it is of a higher and wider scope.

None of the other questions, we think, call for a further expression of opinion, and our judgment is that the decision of the general term was correct, and that its order should be affirmed, with costs. All concur. Judgment affirmed.

1. Laws 1880, c. 542, § 3, exempted from taxation "manufacturing corporations carrying on manufacture within this state." Laws 1889, c. 193, amended such section by inserting the words "wholly engaged in" before the word "carrying." Held, that the words "wholly engaged in" apply to manufacturing corporations.

2. A manufacturing corporation, having a capital of about $3,000,000, organized under the general law for the manufacture and sale of gold and silverware, employed about $300,000 in the purchase and sale of goods of the same general character as, but of cheaper grade than, those manufactured by it, which it could not advantageously manufacture. Held, that the purchase and sale of such goods was not within the chartered powers of such corporation.

3. Under Laws 1880, c. 542, § 3, as amended by Laws 1889, c. 193. exempting from taxation corporations "wholly engaged" in carrying on manufacturing within the state, where a manufacturing corporation employs a portion of its capital in a business not within its chartered powers, such portion, and such portion only, is liable to taxation.

Appeal from supreme court, general term, Third department.

Certiorari by Tiffany & Co. against Frank Campbell, late comptroller of the state of New York, and James A. Roberts, comptroller of the state of New York, to review an as

sessment. From an order of the general term (30 N. Y. Supp. 70) quashing the writ, relator appeals. Affirmed.

Charles E. Miller, for appellant. John W. Hogan, for respondents.

ANDREWS, C. J. This appeal is from an order of the general term dismissing a writ of certiorari to review a decision of the state comptroller subjecting to taxation a portion of the relator's capital employed in this state in the years 1889, 1890, and 1891. The relator is a manufacturing corporation in this state, organized under the general law for the incorporation of manufacturing companies, for the manufacture and sale of gold and silverware and other articles of ornament and use. Its capital, stated in the certificate, is $2,400,000, which by accretion now exceeds $3,000,000. It has a store for the sale of its products in the city of New York. It employs from six to eight hundred men in its manufacturing business in this state, and about 80 per cent. of its capital. All of this capital, except a portion varying in different years from 12 to 15 per cent., is invested in its manufacturing business. The portion not employed in that way, amounting on the average to about $300,000 a year, is employed in the purchase and sale of goods, principally of foreign manufac ture, of the same general character as the goods manufactured by the relator, but of a cheaper description, which it cannot itself advantageously manufacture, but which are necessary in order to make its stock complete. and to meet the wants of customers. The portion of the relator's capital not employed in this state, being about 20 per cent. thereof, is invested permanently in London and Paris, and a small part in New York.

The question presented relates to the rule of taxation as applied to the relator, and the basis upon which the tax is to be computed, assuming that to any extent the capital of the relator is taxable. The relator insists that, being a manufacturing corporation, it was exempted from taxation by section 3 of chapter 542 of the Laws of 1880, which exempted "manufacturing corporations carrying on manufacture within this state"; and the further claim is made in behalf of the relator that the amendment of that section by chapter 193 of the Laws of 1889, which inserted the words "wholly engaged in" before the words "carrying on manufacture," contained in the act of 1880, was not intended to and did not affect or qualify the exemption given by the prior act, and that by that act a manufacturing corporation was absolutely exempt from taxation in whatever other business it might be engaged. The comptroller, in settling the tax while expressing a doubt whether the relator's business within this state was not wholly that of manufacture within the fair meaning of the act of 1889, nevertheless concluded that it was taxable on the portion of its capital employed in this state in the purchase or sale of goods