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THE BELLONA COMPANY'S CASE. 449
consideration is, that, in all cases, 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 acquisition may be made by condemnation. The neces-
sary 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 consti-
tution of the United States, it is declared, that no state shall pass
any law impairing the obligation of contracts.
It is not my intention, upon this occasion, to enter upon an en-
quiry 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 restric-
tion may be enforced against the states by one of the branches of
the Federal government, according to the full extent of the juris-
diction assumed by the Supreme Court of the United States; and
it may be admitted, that an act of the Legislature of a state, grant-
ing 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 im-
pair the obligation of the contract between 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 plaintiffs nothing more than a license to purchase and hold
lands, and to do certain other acts as a body politic. The acquisi-
tion of property and the manufactories, which they were authorized
to make, and to carry on, were such acts as an individual might
lawfully have done. Hence the whole scope of the act of incor-
poration, or contract between the state and the plaintiffs was, that
the authority to do those acts as a corporation, should be secured
57 v.3
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