442 THE BELLONA GO'S CASE.—3 BLAND.

or is used in place of the word and, found in this section; so as,
in effect, to declare, that where the acquisition could not be made
because of the refusal of the owner, or because of his absence, or
because of his inability to contract, that then the body politic
might condemn, &c.; and such a turn of expression, it may be
admitted, does much more perspicuously express, what is obvi-
ously the intention of the Legislature, by all such enactments,
than in this instance. But the expressions used in this Act do,
with sufficient clearness, convey the same intention. The fair
sense of the section under * consideration is, that, in all
449 eases, where the assent of the owner cannot be had, as in
the case of his withholding it; and of his not being present to
give it; and also of his not having a mental capacity to contract,
the body politic may condemn; that is, in each one, and in all
those cases he may condemn; but in the other similar enactments,
where the disjunctive turn of expression is used, it is in substance
declared, that in either, or in any one of those cases the acquisi-
tion may be made by condemnation. The necessary and obvious
meaning of both forms of expression is, however, entirely the
same; hence there is no foundation for this objection.

The plaintiffs in the next place rest their equity to have the de-
fendants enjoined, upon the ground, that their property is held, as
a part of their franchise, under a contract with the State, which
the General Assembly can by no subsequent enactment impair.
Among the other restrictions imposed upon the powers of the
State governments, by the tenth section of the first Article of the
Constitution of the United States, it is declared, that no State
shall pass anj law impairing the obligation of contracts.

It is not my intention, upon this occasion, to enter upon an
enquiry as to what was the cause of this restriction, or to express
any opinion as to its true sense and bearing. But, taking it for
granted, as it seems to have been in the argument, that this re-
striction may be enforced against the States by one of the branches
of the Federal Government, according to the full extent of the
jurisdiction assumed by the Supreme Court of the United States;
and it may be admitted, that an Act of the Legislature of a State,
granting permission to individuals to take upon themselves the
franchise of a body politic, when accepted by them, is a contract,
within the meaning of this restriction; yet after all this shall have
been granted in its fullest latitude, the question returns; does the
taking of the plaintiffs' land, in the manner proposed, in the
smallest degree impair the obligation of the contract betweeu
them and the State ?

The legislative department of this State Government, by its Act
of incorporation, or contract, if it must be so considered, gave to
the plaintiff's nothing more than a license to purchase and hold
lands, and to do certain other acts as a body politic. The acquisi-