Chesapeake & Ohio Canal Co. v. Baltimore & Ohio Rail Road , 4 G. & J. 1 ( 1832 )

Buchanan, Ch. J.,

delivered the opinion of the court.

The charter of the Potomac Company, was created by the mutual and concurrent legislative acts of Maryland and Virginia, in the year 1784, to which there are many supplements.

The act for incorporating the Chesapeake and Ohio Canal Company, was passed by the legislature of Virginia on the 27th of January, 1824. The 1st section of which has this provision, “that so soon as the legislatures of Maryland and Pennsylvania, and the Congress of the United States, shall assent to the provisions of this act, and the Potomac Company shall have signified their assent to the same, by their corporate act, a copy whereof shall be delivered to the executives of the several States aforesaid, and to the Secretary of the Treasury of the United States, there shall be appointed by the said executives, and President of the United States,, three commissioners on the part of each State, and the government of the United States,” for the purpose among other things, of causing books to be opened under the management of “persons to be by them appointed for receiving subscriptions to the capital stock of the company,” &c. And by the 22d section it is enacted, “that this act or so much thereof as respects the canal and works designed to be constructed in the District of Columbia, and ' the states of Virginia and Maryland, shall take effect, with such necessary modification in the construction thereof, as shall fit it for such limited application or use, upon the assent of the Congress of the United States, and the legislature of Maryland being given thereto; and upon its receiving the further assent of the legislature of Pennsylvania, the whole and every section, and part thereof, shall be valid and in full force and operation.”

In an act of the legislature of the state of Maryland, passed on the 31st day of January, 1825, at the December session, 1824, entitled, “an act to confirm an act of the general assembly of the state of Virginia,” entitled, “an act incorporating the Chesapeake and Ohio Canal Company,” after reciting that act, the assent of the legislature is given to it in these words, “that the said act of the general assembly of Virginia be, and the same is hereby accepted, assented to, and confirmed.”

In an act of the Congress of the United States, passed on the 3d of March, 1825, entitled, “an act confirming an act of the legislature of Virginia,” entitled, “an act incorporating the Chesapeake and Ohio Canal Company,’’¿and an act of the State of Maryland confirming the same, the assent of Congress is given in these words, “that the act of the legislature of the State of Virginia, entitled, ‘an act incorporating the Chesapeake and Ohio Canal Company,’ be, and the same is hereby ratified and confirmed, so far as may be necessary for the purpose of enabling any company, that may hereafter be formed by the authority of the said act of incorporation, to carry into effect the provisions thereof, in the District of Columbia, within the exclusive jurisdiction of the United States, and no further.” And on 16th of May, 1825, the full and unqualified assent of the Potomac Company was declared and signified by a corporate act, in the manner required; with authority to the president and directors of that company, to surrender its charter, and convey all the property, rights and privileges, owned, possessed, and enjoyed under it, to the Chesapeake and Ohio Canal Company, agreeably to the provisions of the 13th section of the act incorporating the latter company; which surrender and transfer, the same section empowers the Chesapeake and Ohio Canal Company to accept. So that on the 16th of May, 1825, the act incorporating the Chesapeake and Ohio Canal Company, or so much thereof, as respects the canal and works designed to be constructed in the District of Columbia, and the States of Virginia and Maryland, in the language of the 22d section of that act “took effect,” the assent of the Congress of the United States, and of the legislature of Maryland having been before given to it; and the assent of the legislature of Pennsylvania being by the same section dispensed with, so far as respects those portions of the contemplated canal, and only required in relation to the part proposed to be made in that State. Still the assent of- the legislature of. Pennsylvania, on certain conditions not material in. the examination of this case,.which relate only to a portion of'the canal designed to be constructed in this State, was. given . by .an act of the 7th of February, 1826—and commissioners were appointed as authorised by the charter, by the President of the United States, and the executives of Virginia and Maryland, fox-receiving subscriptions to the capital stock of the company, &.c.

On the 3d of December, 1823, the President of the United States, adverting in his message to Congress, to the proceedings of a convention, called the Chesapeake and Ohio Canal Convention, (which had sat at the city of Washington in the preceding month of November,) in relatioix to the scheme of the Chesapeake and Ohio Canal, recommended the authorising by an adequate appropriation, the employment of a suitable number of the officers of the corps of engineers, to examine the ground, and report their opinion thereon. On the 30th of April, 1824, an act of Congress was passed in pursuance thereof, appropriating $30,000 for the purpose of procuring the neeessai-y surveys, plans and estimates, upon the subject of roads and canals. In the month of May, 1824, the President appointed a board of internal improvement, who were, on the 31st of the same month, instructed to “proceed to make an immediate reconnoisance of the country between the tide waters of the river Potomac, and the head of steam boat navigation of the Ohio, &c.” “for the purpose of ascertaining the practicability of a communication between those points, of designating the most suitable route for the same, and of forming plans and estimates in detail, of the expense of execution, and to use every possible exertion to have their report prepared in time, to. he submitted to Congress at their next session. On the 2d of February, 1825, the board of engineers for internal improvement, made a report of their proceedings, accompanied by surveys, maps and profiles, but without any estimate of the probable cost of the projected work, which was communicated to Congress by the President, on the 14th of the same month. At this time, neither the assent of Congress, nor of the Potomac Company, had been given to the act of incorporation. That report which was immediately printed and published, by order of Congress, asserts the entire practicability of a communication between the tide waters of the river Potomac, and the head of steam boat navigation of the Ohio, by a continuous canal, which, in the report, surveys and maps, is called the Chesapeake and Ohio Canal; and that portion of it extending from the tide waters of the Potomac, to the mouth of Savage river, on the north branch of the Potomac, is designated as the eastern section, which, in the report is described in these words; “this section ascends the valley of the Potomac, as-the several ridges which that river traverses and breaks through, oblige to follow its course without any deviation, the side on which it should ascend along the river, is the only choice left to the engineer.”

The route of that section throughout its whole course, as surveyed and laid down by the board of engineers for internal improvement, is in the valley of the Potomac, along the shores of the river; particular places being marked, as suitable points for crossing the river from shore to shore, should it be found necessary, but a preference being given to the north or left side. Thus, they say in one part of the report, “ this short analysis is sufficient to show, that the northern side of the valley offers the best ground for receiving the bed of the canal. ” And after describing the Valley, they say, “ such are the local features of the valley through which this section of the canal, east of the Alleghany must be-directed.”

On the, 6th March, 1826, the'legislature - of Maryland passed a law for the promotion of internal improvement, incorporating a company to be called, “ The Maryland Canal Company,” to nialce a canal “ from some convenient point on the Potomac River, intersecting or continuing The Chesapeake and Ohio Canal to the city of Baltimore;” authorising a subscription by the treasurer, for the stock of the Chesapeake and Ohio Canal Company, to the whole amount of the stock of the Potomac Company owned by the State, and of the debt due to the State by that company; and also authorising the treasurer to subscribe for 5000 shares of the stock of the Chesapeake and Ohio Canal Company, on condition among other things, that the Congress of the United States should by law, authorise a subscription for not less than ten thousand shares of the capital stock of the eastern section of that canal, with a proviso, that the executive of the State, “ shall previously be satisfied, that the residue of the sum of money estimated by the United States, board of engineers, to be adequate to the completion of the • eastern section of the Chesapeake and Ohio Canal, after deducting the amount of the subscriptions of the State of Maryland and of the United States, therein provided to be made, hath been actually subscribed by bona fide and competent subscribers.” Thus recognizing the board of engineers for internal improvement, and sanctioning the survey and location, they had made of the route of the eastern section of the Chesapeake and Ohio Canal, through the valley and along the shore of the river Potomac, which was the basis of the estimate to be made by them of the amount necessary to the completion of the canal. On the 8th March, 1826, permission was given to the State of Pennsylvania, by an act of the legislature of Maryland, to make any canal or rail way, “ to connect with the Chesapeake and Ohio Canal.”

On the 23d October, 1826, the board of engineers for internal improvement made a report exhibiting a plan, and estimate of the cost of constructing the canal; which report was communicated to Congress on the 7th December, 1826, and printed and published by order of Congress. The estimated cost of the eastern section from Cumberland to Georgetown, 186 miles, is $8,177,081 05, which estimate is made upon the basis of the survey, before made and reported by them on the 2d February, 1825, confining the route of that section to the valley of the Potomac; and upon the construction of the canal, upon, and along the 'Maryland shore throughout. The engineers in their report, say, “ after due investigations upon this subject, we remain convinced, that it is more expedient, less expensive, and liable to less accidents, to keep without deviation, on the same side of the valley ; and the Maryland side has received the preference, for the following reasons, &c.” Their estimate of the cost of the whole canal to the Ohio is $22,375,427 69.

These estimates not being satisfactory, and differing essentially from estimates made by the Chesapeake and Ohio Canal Convention, and no aid being given by Congress during that session, to the Chesapeake and Ohio Canal Company; on the 3d March, 1827, a number of the members of Congress, requested of the President, that they might be submitted during the recess, to the revision of practical civil engineers, and James Geddes and Nathan S. Roberts were appointed to re-examine the route of the canal, as it had been surveyed and laid down by the board of engineers for internal improvement, and to report on the expense of constructing it.

On the 5th February, 1827, at the December session, 1826, the legislature of Maryland passed a law to amend the “act incorporating the Chesapeake and Ohio Canal Company the first section of which in terms requires, “ that it shall receive the assent of the necessary parties thereto,” and the last section provides, “ that it shall commence and be in force, as soon as if shall have received the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company.” This act authorises the termination of “ the eastern section of the canal, at or near the town of Cumberland, on the river Potomac,” and the substitution of inclined planes and rail ways in crossing the ridge, which separates the eastern from the western waters ; and provides “that the company shall háve the power to extend a branch of the canal to the coal banks, at or above the mouth of Savage,” in the event, that, the western section shall leave the valley of the Potomac river, at any point below the coal banks.” This act received the assent of the legislature of Virginia on the 26th February; 1827, of the Congress of the United States on the 23'd May, 1828, and of the Potomac Company on the 10th 'July, 1828.

At the December session, 1826, on the 10th March, 1827 the legislature of Maryland passed a supplement to the act for the promotion of internal improvement, repealing certain provisos in the act to' which it is a supplement, upon which, a subscription for five thousand shares of the stock of the Chesapeake and Ohio Canal Company was made to depend; and also repealing, so much of the act to incorporate the Susquehanna and Patapsco Canal Company, as should be found to be inconsistent with the provisions of the act, to incorporate the Pennsylvania and Maryland Canal Company.

On the 20th August, 1827, due notice was given by the commissioners, that books would be opened on the 1st October following, for receiving subscriptions to the stock of the company; the books were opened accordingly, and on the 14th November, 1827, the amount of stock subscribed for unconditionally, exceeded $1,500,000, exclusive of subscriptions payable in the stock and debts of the Potomac Company.

At the December session, 1827, on the 2d January, 1828, the legislature of Maryland passed an act further to amend the act incorporating the Chesapeake and Ohio Canal Company; by which the stock is declared to be personal property, and aliens are authorised to subscribe for, and hold it; to commence and be in force, as soon as it should receive the assent of Congress, the legislature of Virginia, the Potomac Company, and the stockholders of the Chesapeake and Ohio Canal Company. To which, the legislature of Virginia assented on the 26th February, 1828, the Congress of the United States on the 23d May, 1828, The Chesapeake and Ohio Canal, Company on the 3d July, 1828, and the Potomac Company on the 10th July, 1828.

At the same session, on the 3d March, 1828, the legislature of Maryland passed a further supplement to the act for the promotion of internal improvement, reciting one of the conditions,’’upon which the treasurer of the State, had, by a former act been authorised to subscribe for five thousand shares of the stock of the Chesapeake and Ohio Canal Company; and the importance it was of, to the State, that the grant already made by her to that company, should be made dependent upon such other conditions and restrictions, as would effectually secure the completion of the work, if ever commenced, &c.; and authorising the treasurer to subscribe for the said five thousand shares, on the condition of stock to the amount of $2,500,000 being subscribed for, by bona fide purchasers, with sufficient security to ensure a faithful compliance on the part of such subscribers ; with other conditions requiring the agreement thereto of the president and directors of the company, and repealing any act or acts, repugnant to, or inconsistent therewith, the conditions of which act, were assented to by the company on the 23d June, 1828.

On the 5th March, 1828, the commissioners for receiving subscriptions to the stock, called a meeting of the stockholders on the 7th April following, for the purpose of electing a president and directors.

On the 10th March, 1828, the Secretary of War, transmitted to Congress, in obedience to a resolution of the house of representatives of the 26th of the preceding month, the report of James Geddes and Nathan S. Roberts, (the civil engineers appointed for that purpose,) of the survey and location made by them of the route of the eastern section of the Chesapeake and Ohio Canal, from a little below Cumberland, through the valley of the Potomac to the tide water at Georgetown, and along the Maryland shore of the river; accompanied by estimates of the cost of construction, amounting for a sixty feet canal, to $4,479,346 93.

On the 4th of April, 1828, the meeting of the stockholders which had been called on the 5th of March preceding, was deferred, for the reasons assigned by the commissioners in their publication of the postponement, that the government of the United States, and the State of Maryland, might participate in the organization of the company, when Congress should have definitively acted on the memorials of the district corporations, and of the central committee of the Chesapeake and Ohio convention, and the commissioners; which were for a subscription to the stock of the company, and for which a bill was then depending in Congress.

The act of Congress of the 23d of May, 1828, among other things recognizes the assent given by the United States, to the charter of the Chesapeake and Ohio Canal Company, by the act of 3d of March, 1825. By an act of Congress of the 24th of May, 1828, the Secretary of the Treasury is authorised to subscribe for ten thousand shares of the stock of the Chesapeake and Ohio Canal Company, the report, survey and estimate, of Geddes and Roberts, having then been received and acted upon. And by another act of the same day, authority was given to the corporations of Washington, Georgetown, and Alexandria, to subscribe for stock, and the subscriptions before made by them, were declared to be valid and binding.

On the 26th of May, 1828, Congress-having then authorised a subscription for ten thousand shares of stock, and declared the subscriptions before made by the district corporations, to be valid and binding, a meeting of the stockholders on the 20th of June, 1828, was regularly called by the commissioners, where president and directors were elected, and the company duly organized.

On the 26th of June, 1828, the route and site surveyed by the United States' board of engineers, for internal improvement, and by Messrs. Geddes and Roberts, and communicated to Congress, were adopted (so far as they corresponded,) by the president and directors, as the line of the Chesapeake and Ohio Canal below Cumberland.

On the 10th of July, 1828, the Potomac Company assented to all the acts of Congress, and of the legislatures of Virginia and Maryland, affecting the charter of the Chesapeake and Ohio Canal Company, so far as such assent might be deemed necessary to their validity.

On the 4th of August, 1828, the Potomac Company instructed the president and directors, forthwith to surrender their charter, and convey all their rights and interests to the Chesapeake and Ohio Canal Company. On the 15th of the same month, the surrender and conveyance were made, and on the 17th of September following, accepted by the Chesapeake and Ohio Canal Company.

Whilst these legislative and other proceedings were in progress, meetings were held in Baltimore, by a number of citizens of that place, on the 12th and 19th February, 1827, in whose printed proceedings, the advantages likely to accrue to Baltimore, from connecting her trade with the western states, by intersecting the contemplated Chesapeake and Ohio Canal within the District of Columbia, according to the route surveyed and reported by the board of engineers for internal improvement, and by a direct rail road from Baltimore to some eligible point on the Ohio river, are contrasted, and the saving of distance by such a direct road, stated to be 140 miles ; which proceedings formed the basis of an application (or memorial) which was preferred to the legislature, for an act to incorporate the Baltimore and Ohio Rail Road Company, by a committee appointed for that purpose. And on the 28th of the same month, February, 1827, the charter was passed. On the 8th of March, 1827, a law was passed by the legislature of Virginia, giving permission to the Rail Road Company, to extend their road through that State, but prohibiting its striking the Ohio, at a point lower than the mouth of the Little Kenawha, on the Ohio; and on the 2d day of March, 1831, permission was given them by an act of Congress, to extend a lateral road into, and within the District of Columbia.

On the 31st of March, 1827, the whole of the rail road stock was subscribed; and on the 23d of April, 1827, the company was organized by the election of its officers.

On the 20th of June, 1827, a reconnoissance of the country between Baltimore and the Ohio river, was commenced by engineers in the service of the Rail Road Company, with a view to the location of the road.

On the 28th of February, 1828, the legislature of Pennsylvania passed a law, authorising the Rail Road Company, to extend their road through that State, to the Ohio river.

On the 3d of March, 1828, the legislature of Maryland, in a supplement to the act for the promotion of internal improvement, authorised a subscription for five thousand shares of the stock of the Rail Road Company, on condition that the company should agree to locate it, so as that it should go to, or strike the Potomac river at some point between the mouth of the Monocacy river, and the town of Cumberland, and that it should go into Frederick, Washington, and Alleghany counties.

On the 5th of April, 1828, the engineers who had commenced their reconnoissances on the 20th of June, 1827, made a report recommending a route for the road from Baltimore by the Point of Rocks, and up the valley of the Potomac. Being the very route by the Point of Rocks, which had before been surveyed with a view to the location of the canal, by the United States’ board of engineers for internal improvement; and again by Messrs. Geddes and Roberts, civil engineers, appointed by the general government for that purpose, whose report and estimates of the 7th of February, 1828, had then been made public.

The board of engineers in the service of the Rail Road Company, after examining the ground on horse-back, and without instruments, approved the report of the engineers of the 5th April, 1828, and their decision in favor of a route for the rail road by the Point of Rocks, and through the valley oí the Potomac to Williamsport, in a report of the 5th May, 1828; upon which report, the route by the Point of Rocks, and the valley of the Potomac was adopted by the company. Up to that time, no survey had been made in the valley of the Potomac, above and from the Point of Rocks, at the instance, or for the use of the Rail Road Company; and a bill was then depending in Congress for an appropriation to the Chesapeake and Ohio Canal, by a subscription to the stock of the company.

On the 12th of May, 1828, engineers were deputed by the president and directors of the Rail Road Company, lo pass along the route thus adopted from the Point of Rocks to Cumberland; and wherever the character of the ground was such, as to leave but little choice as to the location of the road, or to present but one passage, to make an actual location of the same at once over such ground ; in order that the actual locations so made, might serve as regulating points, for its subsequent locations over the intermediate sections, and secure the passage of the road. And at the same time, agents were deputed to take all necessary steps to procure title to, or a right of way over, the lands upon which such actual locations should be made. In pursuance of which instructions, the engineers proceeded to make surveys for the site of the road, at the places indicated, and as actual, partial, locations of it, from the Point of Rocks along the Maryland shore of the Potomac to Cumberland. And the agents employed for that purpose, entered into contracts with some of the proprietors, for the title to, or right of way over, their lands so surveyed, and commenced process of condemnation of other parcels of land, actually surveyed for the site of the road, with the owners of which, they were unable to make contracts for the title to, or right of way over.

In this state of things, the Chesapeake and Ohio Canal Company claiming to be then duly incorporated, and the Potomac Company (not having at that time surrendered its charter and transferred its interest to the Canal Company,) filed a bill on the equity side of the Washington County Court, on the 10th June, 1828, against the Baltimore and Ohio Rail Road Company, denying the right of that company to construct its road on the route it had adopted, and just caused to be partially surveyed, and laid down in the valley of the Potomac from the Point of Rocks to Cumberland, upon the Maryland shore; and asserting a prior and paramount right to the choice of a route for the canal, in and along the valley of the Potomac—and obtained an injunction, granted by one of the associate judges of that court, prohibiting and enjoining the Rail Road Company, its agents and attorneys, and all persons acting by its authority, from making any contracts or agreements with, or receiving any deed or conveyance from any person or persons whatsoever, for any lands or tenements lying within the bounds already so marked out, and surveyed for the said road ; and also the justices of the peace, and sheriffs of the cpunties of Frederick, • Washington, and Alleghany, from issuing or executing any warrants, for the condemnation of any such lands, until a reasonable time should have been allowed the Canal Company, for completing the actual surveys and definitive locations of the canal, and the further order of the' court.

That hill was not answered, but on the 28d June, 1828, the Rail Road Company filed a bill in chancery, against the Canal and Potomac Companies, referring to it, and praying an injunction, prohibiting those companies and each of them, and all persons acting under their authority, or the authority of either of them, from making any contract or agreement with, or receiving any deed, or conveyance, from any of the parties to the contracts before made with the agent of the Rail Road Company, for any lands, or any interest in any lands, owned, by them, or either of them, and lying within the limits of the actual location of the rail road, as surveyed and marked out by the engineers in the service of that company; and also prohibiting the justices of the peace, and sheriffs of Frederick, Washington, and Alleghany counties, from issuing or executing any warrant or warrants for the condemnation of any such land, for the use of the Canal and Potomac Companies, until the claim of those companies to a priority and right of election as set forth in their bill, filed in the Washington County Court, should have been finally heard and determined upon, or until the further order of the Court of Chancery.

On the 24th June, 1828, a second bill was filed by the Rail Road Company, for an injunction to protect rights, that it was supposed to have acquired under the proceedings that had been instituted by its agents, for the condemnation of such portions of the land surveyed for the site of the road, as they had been unable to make contracts with the owners for; and on the 25th of the same month, a third bill was filed by the same company, for an injunction to protect rights claimed to have been acquired to lands, by actual locations for the site of the rail road, but in relation to which, no contracts had been made, or proceedings for eondemation instituted—upon each of which bills an injunction . was issued, according to the prayer of it.

The complainant in neither of those bills of complaint, sets up any paramount right of election or pre-emption for the route or site of the road; but founds its claim to a right to construct the road in the valley of the Potomac, along the Maryland shore, from the Point of Rocks to Cumberland, upon the actual surveys it had caused to be made on that route, as partial locations of the road; upon the contracts made by its agents, with the owners of portions of the land so surveyed, for the title to, or right of way over them, and upon the proceedings instituted by its agents for the condemnation of other portions, in relation to which, they were unable to make any contracts with the owners. The three bills were afterwards consolidated, and on the 8th of May, 1829, the Canal Company having then received from the Potomac Company a surrender of its charter, and a transfer of all its rights and interests, put in its answer re-asserting a prior and paramount right to the choice of a route and site for the canal, in the valley of the Potomac, as claimed in the bill filed in the Washington County Court, to which there was a general replication-At the September term, 1825, after a previous argument, on a motion to dissolve the injunction, the injunction was continued by order of the chancellor, until final hearing; and on the final hearing at the September term, 1831, it was, by a decree of the chancellor, made perpetual. From which decree the case was brought by appeal to this court.

It appears that there are, between the Point of Rocks and Cumberland, in the valley of the Potomac, on the Maryland shore, between forty and fifty miles of narrow, difficult passes, along which the canal, if made independently, and without reference to a rail road, will, from the character of the difficulties presented, have to be supported by embankments, constructed in the bed of the river, many feet beyond the usual low water mark; that should the Rail Road Company prevail in establishing a choice of location on that route, if it would not be impossible to construct the canal along those passes, after the most eligible ground had been occupied by the rail road, it could only be done with such difficulty, and at such an expense, as that no practical engineer would recommend it, and that the expense of constructing the canal, if taken out of the valley of the Potomac, would be so enormous, as in the language of one of the engineers, to render such an untertaking, “a canal impracticability.”

The question then presented for the consideration of this court is, whether the Chesapeake and Ohio Canal Company, has a priority of right, in the choice or selection of ground for the route and site of the canal in the valley of the Potomac. The decision of which question is approached, with a due sense of the extent, diversity, and magnitude of the interests involved, (reaching far beyond the confines of this State,) and the possible consequences both to the immediate parties and the community at large. Should the decision of this cause, have the effect to arrest the progress of the groat work, commenced by the party against whose claim it is pronounced, it will be a matter of regret. But it is the business of a judge to endeavor in every case that is brought before him, to arrive at a correct conclusion: and that done, to the conviction at least of his own mind, his duty, though sometimes an unpleasant, is a very plain one, and admits of no hesitating in the discharge of it. ,

Pi'oceeding then to the discharge of an obvious duty, as this case mainly depends upon the construction proper to be given to the several charters, under which, the rights asserted by the respective parties are claimed; and as the Canal Company claims to be entitled to all the rights and privileges originally granted to, and vested in the Potomac Company, it is necessary to inquire into the character and object of the charter of that company, and to ascertain what the rights and privileges granted were, (so far as concerns this controversy,) and how, and for what cause to be divested, and that charter being also the first in order in point cf date, it will be first examined; a correct understanding of which, will essentially aid in the construction of the charter of the Canal Company. One construction given to the charter of the Potomac Company, by the counsel for the Rail Road Company, and insisted on in argument, is, that the Potomac Company was not authorised to make a continuous canal, but was restricted to the improvement of the navigation of the bed of the river, with no power to make canals, except at the Great and Little Falls; and for that construction, the phraseology of the title, and of the 9th, 10th, and 17th sections, is principally relied upon. But that construction, it is believed cannot prevail, if the whole of the charter is examined together, and one part construed by another, (as every statute should be,) with a view to give effect and operation to the whole, if it can be done. In pursuance of which principle of construction, it is proposed to collate the title, with the preamble and the different provisions of the charter, having any relation to this point.

The charter itself is, “an act for establishing a company for opening and extending the navigation of the river Potomac,” and the preamble states, “that the extension of the navigation of the Potomac river, from tide water to the highest place practicable on the north branch, will be of great public utility;” and that “it may be necessary to cut canals, and erect locks, and other works, on both sides of the river.”

The 4th section authorises the president and directors “to agree with any person or persons, on behalf of the company, to cut such canals, and erect such locks, and perform such other works as they shall judge necessary for opening, improving and extending the navigation of the said river above tide water, to the highest part of the north branch to which navigation can be extended, and carrying on the same, from place to place, and from time to time, and upon such terms, and in such manner, as they shall think jit.”

The 9th section provides, that “in consideration of the expenses the said proprietors will be at, not only in cutting the said canals, erecting locks, and other works for opening the different falls of the said river, and in improving and extending the navigation thereof, but in maintaining and keeping the same in repair,” &c., the president and directors shall have a right, uat all times forever,” to demand and receive tolls at the nearest convenient place below the mouth of the south branch, and at or near Payne’s falls, and at or above the Great Falls of the river, &c.

The 10th section declares, “that the river and the works to be erected thereon, when completed, shall forever thereafter be esteemed and taken to be navigable, as a public highway.”

The 17th section is in these words, “that the tolls herein before allowed to be demanded and received at the nearest convenient place below the mouth of the south branch, are granted, and shall be paid on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the place on the north branch, &n., to and through the place which may be fixed on below the mouth of the south branch, for receipt of the tolls aforesaid; but if the said river is only made navigable as aforesaid, from Fort Cumberland, to and through the said place below the mouth of the south branch, then only two-thirds of the said tolls shall he there received; that the toils herein before allowed to be demanded, and received at or near Payne’s falls, are granted, and shall be payable, on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the said place of collection near the mouth of the south branch, to and through Payne’s falls aforesaid; that the tolls herein before allowed to be demanded and received at the Great Falls, are granted, and shall be payable on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, from Payne’s falls to the Great Falls, by vessels drawing one foot; water, and from the Great Falls to tide water; and shall, at or near the Great Falls, make or cut a canal, twenty-five feet wide, and four feet deep, with sufficient locks if necessary, each of eighty feet in length, sixteen feet in breadth, and capable of conveying vessels or rafts, drawing four feet water at the least; and shall make, at or near the Little Falls, such canal, and locks if necessary, as will be sufficient and proper, to let vessels and rafts aforesaid into tide water, or render the said river navigable in the natural course.”

And by the 18th section it is enacted, “that, in case the said company shall not begin the said work within one year after the company shall be formed, or if the navigation shall not be made and improved between the Great Falls and Cumberland, in the manner herein before mentioned, within three years after the said company shall be formed, then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation through and from the Great Falls to tide water as aforesaid, within ten years after the company shall be formed, then shall all the interest of the said company, and all preference in their favor; as to the navigation and tolls, through and from the Great Falls to tide water, be forfeited and cease.”

It is very certain, that there is nothing in this charter* requiring of the company to make a continuous canal, nor is it insisted upon here, that any such duty was imposed. All that is contended for, is, that no specific mode of improvement was designed by the legislatures from which the charter emanated, and that, the sphere of the operations of the company was not restricted to the bed of the river, and to the canals required at the Great and Little Falls; but that, authority to effect the proposed extension of the navigation, either by means of a continuous canal, or by 'improvements in the bed of the river, with such occasional canals, and at such places, as might be deemed proper, and necessary to the accomplishment of the end contemplated.

The right to improve the navigation in the bed of the river, was clearly comprehended in the powers delegated to the corporation; and that seems to have been considered as the mode of improvement, which would probably be pursued. Upon which hypothesis, it may be inferred, the obligation (to be found in the 17th section,) to make canals at the Great and Little Falls was imposed, where it was believed, that no safe and adequate improvements could be made in the bed of the river. But the question is not, what it was supposed, would be the mode of improvement resorted to, but whether the operations of the corporation were limited to the bed of the river, or whether it had a right, in the practical exertion of its powers, to adopt any other plan, as it became instructed by experience, and aided by the light of science.

It is laid down in some of the books,' that in construing a statute, the title (being no part of it,) is not to be regarded, but we have high authority in this country for a different rule of construction—the opinions of the judges of the Supreme Court, as expressed in the United States vs. Fisher, 2d Cranch, 358. It is no where pretended, that the title can control the express words of the enacting clauses. Without stopping, therefore, to inquire how far the title of a statute may be regarded in the construction of it, but yielding to the title in this case, all the influence that can be claimed for it, it will be found not sufficient to sustain the construction of the charter contended for by the counsel for the Rail Road Company.

It is described in the title, to be an act “for opening and extending the navigation of the river Potomac,” and whatever might be the ordinary understanding of the terms, “the navigation of the river Potomac,” if considered independently and alone, the preamble which more fully discloses the object contemplated, and which is deemed to occupy so important an office in a statute, as to be called a key to its construction, explains the sense in which these terms were intended to be used, by the recital “that it may be necessary to cut canals, and erect locks and other works on both sides of the river,” and clearly shows, that the navigation proposed to be opened and extended was not intended to be restricted to the channel or bed of the river; but that by “the navigation of the river Potomac,” was meant a communication by the waters of the river, whether in the natural course, or by means of occasional canals, or both, as it might be found necessary—since the canals spoken of on both sides of the river, could only be necessary for the purposes of navigation out of the bed of the river; and are specified as works, that might become necessary, not for the purposes of canal navigation, as distinguished from the navigation of the river, but as necessary for opening and extending the navigation of the river itself.

It was no doubt expected, that improvements in the bed of the river, would be resorted to; but it was also apprehended, if not foreseen, that the object could not be effected throughout, in that way; and canals were suggested, as means that might become necessary, to the accomplishment of the scheme of opening and extending the navigation of the river.

If then the construction of the charter rested upon the title and preamble alone, with no other guide to the intention of the makers, there would be no difficulty in ascertaining what that intention was, if there were ambiguous expressions in the enacting clauses, requiring the aid of the preamble to explain them. Mot only, however, does the preamble sufficiently explain the sense, in which the words “the navigation of the river Potomac,” were intended to be used; but the 4th section conferred the express and unlimited power, “to cut such canals, and erect such locks, and perform such other works,” as should be judged necessary by the corporation, “for opening, improving, and extending the navigation of the river,” from tide water to the highest practicable point on the north branch, and “carrying on the same, from place to place, and from time to time, and upon such terms, and in such manner, as they should think fit.” Here then was distinctly granted the power to make canals, &c., for the purpose of “opening, improving, and extending the navigation of the river”—with no restriction, either as to the number, or kind of canals, locks, or other works, authorised to be made and performed, but such as might be prescribed by the judgment of the corporation, and the places, times, and manner of conducting the improvement were committed to its will, “for carrying; on the same, from place to place, and from time to time, in such manner as they shall think fit.” Thus manifestly showing, that to make the water of the river navigable by means of a canal, or canals, would be to malte the river navigable, in the sense in which the words were used—and showing alsoj that the manner of effecting that object, was referred to the judgment and discretion of the corporation.

The makers of the charter very well knew, that there were various modes of improving the navigation of a river, and that canalling was one ; but not being possessed of the means of determining which of the different modes was best adapted to the situation and character of the Potomac, prudently forbore to describe any specific mode, but committed the whole subject to the judgment of the corporation, regardless of the mode, provided the object was accomplished.

Under the authority thus conferred, looking to the 4th section alone, or in connexion with the preamble, can it be doubted, that the corporation might have adopted any plan of improvement, which in its judgment, was best adapted to the end proposed ? The language of that section is as broad as it could well have been ; without a word to restrict the operations of the corporation to the bed of the river, or to confine it to any particular mode of improvement. It might have resorted to improvements of the navigation in the bed of the river by sluices ; or to dams and locks. Both of which kinds of improvements, are comprehended in the terms “such other works.” Or it might have adopted the plan of opening the bed of the river, with occasional canals, under the authority to “cut canals, &c.” and having the power to “cut such canals as it might judge necessary” for improving the navigation of the river, and to carry on the improvement “from place to place, and from time to time, and is such manner as it should think fit,” why might not a continuous canal have been made? If at one time, it had made a canal to a particular point, and afterwards had “ thought fit” to make another, from that point to another point, joining the two together, in other words, elongating the first; and so on, from time to time, and from place to place, as it had “judged necessary” or “thought fit,” throughout the whole geographical extent of the charter, it would have been a continuous canal.

■ And could such a work have been deemed to be unwarranted by the charter ? It would have been an improvement within the letter of it: sueh as the corporation “judged necessary,” and “carried on from place to place, and from time to time,” in the “manner it thought fit.” Or suppose the corporation, “judging it necessary, and thinking fit” to do so, had made a number of canals at different places, between the two termini of the proposed extension of the navigation ; and afterwards from experience, “judging it necessary” to make other canals in the intermediate spaces, have “ thought fit ” to do so, and to unite them with those that were before made, it would have been a continuous canal, and what would there have been opposed to the legality of it. The corporation had an unlimited discretion as to the number of canals, and the time, places and manner of making them; no number was specified, no time was limited', no place or places designated, nor manner directed,, and having the right to make as many as it should “judge necessary,” and at such places as it should “ think fit,” the having made some at some places, did not prevent its making others, at other places, and- at other times; one place being as much within its discretion as another, and the making them from one to another of those that had been before made, being, the making of them “from place to place: ” and the joining them together being within the authority to make them in “ such manner as it should think fit;” there being notone word denying the right to do so ; and surely, there can be no difference in principle between the right to make a continuous canal, by constructing one piece at one time, and another at another time,, and in different places, as the necessity for it is discovered, and in such a manner, as ultimately to unite all the different parts, and to adopt at once, the plan of a continuous canal. They are in effect the same, each being refei'red to, and made dependent upon the judgment and will of the corporation,, by the unlimited terms in which its powers are expressed.

It is not enough to say, that the state of knowledge on the subject of canals, was not such at the date of the charter, as to justify the supposition that a continuous canal was thought of. at the time, and therefore as has been suggested, that the respective legislatures could not háve intended to confer the power to make such a canal. The state of knowledge certainly, was not then, what it is now; experience and the advance of science have shed much additional light upon the subject. But continuous canals were not unknown ; they were in practical operation elsewhere, and had been long before, though the extent of their superiority over other modes of improving the navigation of rivers, was not probably well understood; which was perhaps the very reason why such a canal was not expressly designated ; and may account for the unlimited discretion given by the charter; the makers and procurers of it, being unwilling for want of better information than was then generally possessed, to confine the corporation to any specific mode of improvement. Nor can any inference against a grant of power to make a continuous canal, be drawn from the limited amount of the capital, provided by the second section, as is supposed, since the sixteenth section authorises an indefinite extension of it, at the discretion of the corporation.

The 9th section contains nothing, adverse to the power to make a continuous canal. The right to demand and receive tolls was given, in consideration of the expenses the corporation would be at, “in cutting the said canals, &e.” What said canals? Not at the Great or Little Falls, or any other particular falls, but the canals before authorised by the 4th section, without reference to any falls; such as the corporation “should judge necessary for opening and improving the navigation of the river,” to be made and “carried on from place to place, and from time to time, and in such manner as it should think fit.” That is one of the enumerated probable subjects of expense, in consideration of which the tolls were allowed ; and the “erecting locks and other works, for opening the different falls of the river,” are others. Showing indeed that it was supposed, that different modes of improvement might be resorted to; but precluding neither, and excluding the idea, that the improvements were to be confined to the bed of the river ; and entitling the corporation to tolls, on the accomplishment of the object, the extension and completion of the navigation of the river, in either of the known modes, or by a combination of any of them.

The 10th section, in making “the river, and the works to he erected thereon, when completed, a public highway,” proceeds upon the same idea, that the navigation of the river, might be opened by a resort to different modes of improvement, and provides for the event of its being done in the bed, and by occasional works out of the river, by declaring both the river and such works, to be a public highway, which would equally cover the ease, of its being done in either of the different modes. If it had been effected by improvements confined to the bed of the river, the river, under that provision, would have become a public highway, though there were no works on the out side of it; and so, if it had been accomplished by a canal, altogether out of the river, with no improvements in the bed, that canal would have been a public highway. It could not have been intended, that to constitute the proposed channel of communication a public highway, there should be improvements both in the bed of the river, and upon the margin; and if either exclusively, would have been sufficient, so would the other. It was the channel of communication when completed, that was to be a public highway, no matter by which of the different modes.

But it is supposed, there is something in the 17th section, indicating the intention to have been, to restrict the corporation in its improvements, to the bed of the river, with the exception only of the points at the Great and Little Falls. There is no such express restriction to be found in that section. The most that could be gathered from it, is by a remote inference from general and ambiguous words construed alone; which would be a departure from the acknowledged rule, that in construing a statute, all the parts should be taken together.

The woi’ds of the 17th section which are relied upon, as proving the intention to have been to confine the improvements to the bed of the river, are, “that the tolls, &c. are granted, and shall be paid on condition only, that the saidf Potomac Company shall make the river well capable o being navigated in dry seasons, by vessels drawing one foot water, “from Cumberland, to and through a place below the mouth of the south branch, from thence to and through Payne’s Falls, from thence to the Great Falls, and from the Great Falls to tide water; the expressions, “shall make the river well capable of being navigated,” being considered as meaning, according to the ordinary acceptation of the terms, that the river should be made navigable in its bed or natural course. But would that be the ordinary acceptation of the terms ?

When we speak of navigating a river, without reference to the state or condition of it, ordinarily the navigating it, in its natural course is meant. But when the making a river navigable, (which was not so before,) is spoken of in general terms, without a designation of any particular mode of doing it, no particular mode is understood to be intended ; the making it navigable in its natural course, no more than the making it navigable in any other way, there being various modes of making a river navigable; and indeed, to say that such a river is made navigable, or may be made navigable by means of a canal, is a common mode of expression. It is therefore by no means clear, that the words of the 17th section, if standing alone, with nothing to explain the sense, in which they were used, should be understood, as requiring the river to be made navigable in its bed or natural course; but when taken in connexion with the whole context, it seems to be very plain, that they were used in no such restricted sense; and that by requiring the river to be made navigable, was meant the makingil navigable, in any of the known modes, in which the navigation of a river may be improved, and not exclusively in its bed or natural channel. It is stated in the preamble, that “it may be necessary to cut canals, and erect locks, and other works,” for extending the navigation of Potomac river; which shows the understanding of the respective legislatures to have been, that the extension of the navigation might be effected by making canals.

By the 4th section, the corporation was invested with power “to cut such canals, and erect such lochs, fyc.” as it should judge necessary, for opening,, improving, and extending the navigation of the river, “from place to place, and in such manner as it should think fit; ” and by the 11th section, authority was given to purchase or condemn lands, for the purpose of making such canals, &c. Here then is an express authority to open, improve, and extend the navigation of the river, by means of canals, locks, and other works; embracing the variety of modes, in which rivers are capable of being made navigable, and exclusively confined to neither.

With this explicit legislative exposition of the sense, in which the terms opening, improving, and extending, the-navigation of the river, were used, fixing the meaning imparted to that language, by the makers of the charter, to have been, that to make a navigable camal fed by the waters of the Potomac, would be to make the rives' navigable; how can it be said, that the 17th section in requiring the river “to be made capable of being navigated,” meant exclusively that the bed of the river should be made navigable ? Besides, under the 4th section, the corporation had an unlimited discretion, eo-extensive with the geographical limits of the charter, to make canals, “from place to place,” for opening, improving, and extending the navigation of the riverthere was not a spot from one terminus to the other, to which the exercise of that discretion was confined, nor from which it was excluded. But it had an express right to make canals, wherever it should think fit, and “from place to place,” along the whole route; which,is utterly at war with the construction claimed to be put upon the I7th section," and both cannot stand. For it will be observed, that the terms of the 17th section, cover the entire space between Cumberland and tide water; and if the construction contended for, of that section, could be sustained, if by requiring that “the river should be made capable of being navigated,” was meant that the bed of the river alone should be made navigable, to the exclusion of every other mode of improvement, except at the Great and Little Falls, where canals are required to be made, there would not be a spot left to the corporation throughout that whole distance, for the exercise of its discretionary power, to make such canals, &c. as it might judge necessary for opening, extending, and improving the navigation of the river,” and “from place to place, as it should think fit”—which would be a virtual repeal of so much of the 4th section. It would be to alter and narrow down the positive and express enumeration of powers contained in that section, by mere implication from ambiguous expressions to be found in the 17th. But when the two sections are examined together, and the language of the 17th, taken in the sense in which the 4th shows it to have been used, construing one by the other, as must be done, the intention is plainly seen to have been, that the river should be made capable of being navigated in any of the modes authorised by the 4th section. By which construction both will stand, and full effect and operation be given to every word of each. But without the aid of the 4th section, the conclusion of the 17th clearly explains the sense in which the preceding expressions were used. The words are these, “and shall make at or near the Little Falls, such canal, and locks, if necessary, as will be sufficient and proper to let vessels and rafts aforesaid into tide water, or render the said river navigable in the natural course,” one or the other. Thus presenting the alternative of making the river navigable by a canal, or of making it navigable in its natural course—and distinctly indicating, that to make navigable canals fed by the water of the river, would be, to make the river navigable, in the sense of the charter. And the language of the 18th section is, that “in case the said company shall not complete the navigation, through and from the Great Falls to tide water as aforesaid, then, &c.” What was here intended? Was it, that the river should be made navigable in its natural course, through, and over the Great Fallsl Certainly not; but that the navigation of the river should be completed by means of a canal, at or near the Great Falls,” as directed by the’17th section—otherwise the 18th section would have had the effect to abrogate so much of the 17th, as provides for the improvement of the navigation of the river at the Great Falls, by a canal out of the natural course. The same may be said of expressions contained in some of the supplements, which have been called in aid of a different construction; such, for instance, as the proviso in the 6th section of the act of this State of 1790 ch 85, relative to the application of the tolls, &c. to the improvement of the navigation of the branches of the river; “that no such application shall be made, until the main river from tide water, is cleared to Fort Cumberland.” The main river, how cleared? certainly not exclusively in its bed or natural course; because the 17th section of the original charter, expressly provides for the clearing or improving of the navigation, by canals at the Great and Little Falls—and the 4th section as explicitly authorises the doing so, from place to place throughout the whole distance from one terminus to the other. But cleared, in the sense of the original charter, that is, in either of the modes therein recognized, for the improvement and extension of the navigation ; and in reference to which, those expressions must be understood as having been used. And so of similar expressions contained in other supplements, all of which must be construed with reference to the original act. Nor can any adverse argument be drawn from the preamble to the act of 1802, ch. 84, reciting, that the object of the^charter had been accomplished; notwithstanding it appears, that no continuous canal had, at that time, been made. It does not profess to state, that the corporation was restricted to any specific mode of accomplishing it, or in what way it had been done; and whether effected by means of a canal or canals, or by improvements in the bed of the river, the object would equally have been accomplished.

But the act of November session 1811, ch, 208, which, gave to the corporation utke same power” to make canals on the branches of the river, that was given by the 4th section of the original act, to make canals on the river itself, plainly shows the understanding of the legislature of this State to have been, not that the corporation was confined in its improvements to the bed of the river, or that its power to make canals was limited to the points of the Great and Little Falls, as has been supposed in argument, but that it had a right to make them wherever it “should think fit,” without restriction. Otherwise the grant of power, to make canals on the branches of the river, was perfectly nugatory; since if the power given by the 4th section of the original act, was limited to the making canals at the Great and Little Falls, which are points of difficulty in the main river, “the same power”, could not be exercised on the branches.

So that the legislature, in giving to the corporation by the act of 1811, “the same power” to make canals in relation to the branches, that was given by the 4th section of the original act, in relation to the river itself, must have intended the same power “as expressed in that section that is, the power to make canals, wherever it should be deemed necessary. Considering the power there expressed, to he the power given, according to the unrestricted sense of the language used; and not altered or diminished by the 17th section, so as to reduce it to the power of making canals at the Great and Little Falls only.

Taking the charter then altogether, and construing one part by another, if there had been a canal or canals made along the shore of the Potomac, fed by the waters of the river, and capable of being navigated in dry seasons, by vessels drawing one foot water, the river would have been made navigable for vessels of that description, in the obvious sense, in which the language adopted by the respective legislatures was used; although not a drop of water was left to flow in the natural channel, not being required to be kept there.- The great object in view was, the extension of a water communication from the tide water of the river Potomac, up to the highest practicable point on the north branch ; and the means, such as might be considered by the corporation, necessary, and proper for the accomplishment of that object, whether by sluices, by dams and locks, or by canal navigation, which is apparent in the preamble, and is carried out into the enacting clauses. There is nothing in the charter, to restrict the operations of the. corporation to the bed of the river, and thus to alter or narrow the powers, expressly enumerated and granted in the 4th section; but the whole matter was committed to its judgment; and so that the end was accomplished, it was immaterial, by which of the means that were subject to its discretion. If this is the true construction of the charter, the Valley of the Potomac, from tide water to the highest practicable point of navigation in the north branch, was specifically appropriated, to the object contemplated,—and at the time the company was formed, or became incorporated, it acquired a vested right, (not the actual legal title to the land,) but a vested right to acquire land by purchase or condemnation, along the shores of the river, to be exerted wheresoever .and whensoever it should be thought necessary and proper for the purposes of the charter. The object being an extension of the navigation of the river, by such means as should be found best suited to the purpose, corresponding powers were given to the corporation. .

It is apparent throughout the charter, that it was supposedthe bed of the river would, or might be occasionally adhered to; and it was as clearly intended, that any canal or canals, that it might be thought necessary and proper to resort to, should be made along the shore or shores of the river—thus plainly designating the Valley of the Potomac, for the route of the contemplated improvement, and dedi- ‘ eating the river and its shores, to that object. This is manifested by the preamble reciting that, “ the extension of the navigation of the Potomac river will be of great public utility,” and that “it may be necessary to cut canals, <y-c. on both sides of the river,” which could only be done in connexion with the river, by making the canals in the valley; by the 4th section, giving the power to make canals and any other improvements (in, or out of the bed of the river,) wherever it should be thought necessary and proper, for opening and extending the navigation, from tide water to the highest practicable point on the north branch. Thus by confining each end of the proposed extension of the navigation, to a point upon the river, one at tide water, and the other on the north branch, requiring, that in whatever way effected, it should begin and terminate upon the river; and pointing to the valley of the river, from one extremity to the other of the intended improvement, for the location of the canals authorised to be made; as the river itself, if any where resorted to for the purpose of being navigated in its natural course, could not in the nature of things, be used in connexion with any canal or canals, not constructed upon its borders, or within the valley.

By the 9th section, which in consideration of the expense of cutting canals, erecting locks, and other works “ for “opening the different falls of the river,” and of improving and extending the navigation thereof, vests such canals and works in the proprietors of stock and their heirs, and entitles the corporation “to demand and receive tolls at the nearest convenient place below the mouth of the south branch, and at or near Paynes’ Falls, and at or above the great falls of the river Potomac for all commodities transported through either of these places ; ” thereby plainly in ■ dicating the valley of the river, for the construction of the canals and others .works—works for opening the falls of the river, being evidently works to be erected in the valley of the river; and the places designated for the demand and receipt of tolls upon commodities passing through them,, being points upon the river.

By the 10th section, declaring “that the said river, and the works to be erected thereon, when completed, shall forever thereafter, be esteemed, and taken to be navigable as a public highway.” The works to be erected upon the river, and on the supposition, that the bed of the river would be occasionally used, the river and the works to be one continual highway; which could not be, unless the works were to be - constructed in the valley, so as to admit of a connected navigation with the river.

By the 12th section, giving authority to the corporation to acquire land by purchase or condemnation, at the different places before designated on the river, for the demand and receipt of tolls, for the purpose of erecting toll houses; the very purpose and object of which, would require them to be built on the line of the projected extension of the navigation ; and the authorising them to be built at certain points upon the river, indicating the valley as the route of - that line, whether accomplished by improvements in the bed of the river, or by canals, &c. along the river, or by both; and by the 17th and 18th sections, the former requiring as a condition precedent to the right, to demand and receive tolls, that the river should be made navigable from the upper terminus, to and through a place below the mouth of the south branch, thence to and through Payne’s Falls, thence to the Great Falls, (the several places on the river before designated for the receipt of tolls, and the erection of toll houses,) and from the Great Falls to tide water, the other terminus; and requiring a canal to be made at the Great Falls, and also a canal at the Little Falls, or the river to be rendered navigable in the natural course; and the latter providing that, if not done within the respective periods therein prescribed, in the manner, and from and to the places specified in the 17th section, the corporation ‘‘should not be entitled to any benefit, privilege or advantage under the charier, and that “all its interests, &c.” should “be forfeited and cease;” Thus, by requiring the proposed improvement, (by whatevei means accomplished,) to be made throughout its whole course, from one point upon the fiver to another, and requiring also canals to be made at Specified points upon the river, (the Great ami Little Palls,) distinctly confining it to the valley of the Potomac, and designating and appropriating that region, as its route. The 13th and lfith sections might also (if necessary,) be resorted to, for the purpose of showing the intention, that any cañal or canals, which it might be thought necessary to make, should be constructed along the river, and of course in the valley. And the supplemental act of this State, passed at the November session, 1785, speaking of the canals to be made at the Great and Little Falls, “supplied by the current of the river,” and “communicating again with the river by locks, if necessary,” and the further supplementary act, passed at the November session, 1811, giving to the corporation, the same powers to acquire and condemn lands, for the purpose of making canals, upon the branches of the river Potomac, as those conferred by the 4th, 11th, and 13th sections of the original act, for “making canals on that river,” explicitly show, what was the understanding of the legislature of Maryland, in relation to the location of the contemplated works.

The valley of the Potomac being thus marked out for the Sphere of the operations of the Potomac Company, without restriction to any particular mode of improvement, the corporation had a right to select in the first instance, either of the various modes of improving the navigation of the river, and if that tailed, or proved insufficient, to resort to another, and so on, until the object of its incorporation was effected. It Avas not not put to an election between the different modes of improvement; nor concluded by any selection it might make, from having recourse to another, if that should fail. Such a construction of the charter would be too narrow for the great object in view. It cannot be believed, that the respective legislatures intended to limit the powers of the corporation, to any experiment it might make, in the prosecution of a Avork of such great and acknoAvledged public utility, the means of accomplishing which, were then but little understood in this country; and to deny to it, the right of completing it in any other way, if such experiment should fail; and thus to defeat the whole project, after heavy expenses had been incurred, in an honest, but unsuccessful effort to accomplish it, and at a time too, when a knowledge of the best and most effectual mode of doing it, could only, have been acquired from lessons of experience; ^he scheme itself being but an experiment, and that a hazardous one to the undertakers.

It is believed, that no company could have been found, with such an understanding of the charter, and that there is nothing to be found in it, to sustain such a construction. But on the contrary, that the whole subject was committed to the judgment, discretion, and experience of the corporation; with power to execute the work, in such of the various modes, as might in its progress be found to be most expedient; and that this is fully proved by the express provisions of the 4th section, authorising the corporation to “cut such canals, and erect such locks, and perform such other works, as it should judge necessary for opening, improving, and extending the navigation,” “from place to place, and from time to time,” “and in such manner as it should think fit.” Thereby embracing all the different modes of improvement, and empowering the corporation, not merely to elect one particular mode, but to resort to any of the various modes, at such places, and at such times, as from experience, aided by the advance of science, as should be found necessary in the prosecution of the work, though begun on a different plan.

More than forty years having elapsed from the date of the charter of the Potomac Company, to the time of its surrender to the Chesapeake and Ohio Canal Company, it has been suggested, but not seriously pressed in argument,-(as it could not well have been) that, if the Potomac Company had originally the right to make a continuous canal, and to procure the condemnation of lands for that purpose, that right, as well as any other right to condemn lands, and make canals, which was never exercised, had become lost and forfeited by non-user for so long a period. A corporation may forfeit its charter by non-user or mis-user of its franchises; but it is well known, that such forfeiture can only be enforced by judicial proceedings instituted for that purpose, at the instance of the government, and that no cause of forfeiture can be taken advantage of, collaterally or incidentally ; and the same principle applies, as well to a question of forfeiture of a particular franchise, as of the whole. Nor is it every non-user, that will furnish a sufficient ground for a judgment of forfeiture. Here, there is no pretence for the assertion of such a cause. The right to improve and extend the navigation of the river, was a franchise granted; the manner of doing it, a mode of exercising that franchise. And there being various alternative modes authorised by the charier, subject, each of them, to be changed at the will of the corporation, no experimental trial of one of those modes, could work a forfeiture of the right to resort to either of the others, during the continuance of the charter. So long as the charter remained in force, there could be no forfeiture of the right to exert the franchise, in either of the authorised modes, which still remained to be tried; but all the rights and powers it conferred, continued in like manner, and so far from there being any ground for a forfeiture of the charier, by non-user, the very employment of some of the authorised modes of improvement, was a practical exereise of the franchise. But considering the right to make a canal or canals, and to condemn lands for that purpose, as a particular franchise, and not a means only of executing the general power to improve the navigation of the river ; the not having resorted to that mode of improvement, did not amount to a cause of forfeiture on the ground of non-user, the power given to the corporation by the 4th section of the charter, to make canals,” from place to place, and from time to time, and in such manner as it should think fit,71 being altogether indefinite both as to place, and time, and leaving it expressly and entirely in the discretion of the corporation, to make such canal or canals as it should judge necessary, wheresoever and whensoever it should think proper. And the fact, that other expedients were in the first instance resorted to, and for a long time persevered in, cannot be tortured into an abandonment, or any thing equivalent to a surrender of the right to, make a canal or canals, whenever such expedients should be found inadequate to the purpose intended, and a canal or canals should be thought necessary to the accomplishment of the object.

If then, the powers originally imparted to the Potomac Company by the 4th section of the charter remained unimpaired, that corporation, under the authority “to make such canals as it should judge necessary from place to place, and from time to time,” had a right, at any time it should think proper, during the continuance of its charter, to make a ca-' nal or canals along any, or all of the difficult passes upon the river, which form the subject of this litigation; or at any other place or places in the valley, and to purchase or condemn lands for that purpose. And its charter, according to the decision of the Supreme Court in the case of the Trustees of Dartmouth College vs. Woodward, 4th Wheaton 518, being a contract between the states of Maryland, Virginia,and. the Potomac Company, the obligation of which" could not, without the assent of the corporation, be impair-, ed ,by any act of the legislature of either of the States, nor the concurrent acts of both, consistently with the constitution of the United States, declaring that, no State shall pass any “law impairing the obligation of contracts;” the charter of the Rail Road Company, could not, without impairing the obligation of that contract, abolish, take away, or diminish the prior and paramount right of the Potomac Company, tq select and appropriate by purchase or condemnation, any lands in the valley of the Potomac, for the route and site of a canal or canals, wherever it should think proper, along the borders of the river, either in terms, or by any construction of it, that would have authorised the Rail Road Company, without the assent of the Potomac Company, to occupy any of the difficult passes, or other places along the river, for the route and site of the road, in such a manner, as either to exclude that company from a priority in the choice of a site or sites for the construction of the works authorised by its charter, or in any manner to restrict and circumscribe it, in the exercise of its prior right of election. But such an occupation by the Rail Road Company of the valley of the Potomac, would have been a violation of the vested corporate rights and privileges of the Potomac Company, and the charter of the Rail Road Company, in so far as it purports to bo, or may be construed in derogation of those rights and privileges, is repugnant to the constitution of the United States, and void; there / being no difference in principle, between a law, that in terms impairs the obligation of a contract, and one that produces the same effect, in the construction and practical execution of it. And the Canal Company, as the assignee of the Potomac Company, stands in its place, and is invested with the same prior and paramount right, that was originally granted, and vested in the Potomac Company; the 13th section of the charter of the Canal Company, authorising a surrender by the Potomac Company of its charter, and a transfer to the Cuñal Company of all its property, rights, and privileges, &c. expressly providing, that “thereupon (that is upon such surrender and transfer, and acceptance by the Canal Company,) the charier of the Potomac Company shall be, and the same is hereby vacated and annulled, and all the rights and powers thereby granted, to the Potomac Company shall be vested in the company hereby incorporated,” of which it can no more be divested by any operation or construction of the rail road charter, than could the Potomac Company have been at the time of the surrender and transfer ; but it took them, and holds them, in all their integrity and force, as they were held by the Potomac Company, unimpaired by the rail road charier, Which upon the hypothesis, that the rights and powers specified in the 4th section of the charter of the Potomac Company, had not been altered or restricted, nor lost by that company, is not understood as being denied.

But it is contended, that if the Potomac Company did originally possess the power to construct a continuous canal, it had lost that power, and had no right to make any canal or canals, or to acquire any lands for that purpose, by purchase, agreement, or condemnation, at the time of the surrender of its charter, by the deed to the Canal Company of the 15th August, 1828, or at the date of the rail road charter ; and therefore, that the Rail Road Company, either as concerns the Potomac Company, or the Canal Company, in its character of assignee of the Potomac Company, has a right according to the true construction of its charter, to occupy the ground in controversy for the route of the road. Which is asserted upon the assumption, either that the whole of the work authorised to be done, must be taken to have been accomplished, within the times limited by the 18th section of the charter, and extended by the several supplementary laws of Maryland to the 1st January, 1813, and of Virginia, to the 1st January, 1820, and the power to have been thereby fully executed and at an end; or that, if it was not accomplished within the times limited, the franchise of the Potomac Company to make canals, and to acquire lands by condemnation for that purpose was forfeited, or had expired by lapse of time—and being gone from the Potomac Company, could not, upon the surrender of its charter, vest in the Canal Company, which is very plausible, and would be a full answer to the claim of the Canal Company, in the character of assignee of the Potomac Company, if the whole of the work authorised to be done, was in fact accomplished: for then, it must be conceded, the power would have been fully executed and at an end, or if the Potomac Company was, by lapse of time alone, and without the intervention of judicial proceedings, divested of the power to malee canals, and to condemn lands for that purpose.

But was there, or could there have been such a divestiture consistently with the principles applicable to questions relating to vested corporate rights ? Or was the whole of the work in fact completed, that was authorised to be done, and the entire object of the charter accompished ?

The provisions relied upon in the 18th section, are, that “if the navigation shall not be made and improved between the Great Falls and Fort Cumberland, in the manner herein before mentioned, (that is for vessels drawing one foot water in dry seasons, as specified in the 17th section,) within three years after the said company shall be formed, then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the navigation through, and from the great falls, to tide water as aforesaid, within ten years after the said company shall be formed, then shall all the interest of the said company, and all preference in their favor, as to the navigation and tolls, at, through, and from the great falls, to tide water, be forfeited and cease.”

And it is supposed, that the object of the charter was limited to the improvement of the navigation of the river, (whether by canals or otherwise,) only so far as to render it capable of being navigated in dry seasons, by vessels drawing one foot water ; that the powers of the company were restricted to that degree of improvement, and that, whenever that object should be accomplished, the powers of the company would be spent—which is a proposition that must be maintained on the part of the Rail Road Company, to support the argument, that the powers of the Potomac Company had been exhausted, by a compliance with the condition contained in the 18th section, by reference to the 17th section, which is, “that the river shall be made well capable of being navigated in dry seasons, by vessels draw-one foot water,” within the times specified—otherwise supposing that object to haye been effected, or condition complied with, within the time limited, there still remained in that company under the 4th section, a discretionary power to extend the improvement of the navigation by a canal or canals.

But is that the true construction of the charter ? The extension of the navigation of the river Potomac, is asserted in the preamble, to be a work of great public utility, and the legislatures of Virginia and Maryland, are declared to be impressed with the importance of the object, and to be desirous of encouraging so useful an undertaking. The grand object, was a connexion between the Atlantic States, and the country west of the Allegany mountains, to be effected in part, by an extension of the navigation of the PotO‘ mac river; a work not merely of local, but of great national importance, and one which, from its character, and supposed magnitude, drew into exertion the combined action of the states of Maryland and Virginia. With such an object in view, is it to be supposed, that the legislatures of those states, intended to restrict the powers of the company they were incorporating, to the making the river, navigable for Vessels drawing one foot water only, an improvement so entirely inadequate to the end contemplated ? Was that the encouragement proposed to be given to so useful an undertaking? It cannot be believed, and it is but to propound the question, to find the answer. There was no motive, no imaginable necessity for such a restriction, and if intended to be imposed, those legislatures must have been but slightly impressed with the importance of the object. Construing the 18th section alone, without regard to any other part of the charter, and construing it most rigidly, it might possibly be tortured into such a meaning. But though the Potomac Company was a private corporation, the charter was a public act, granted professedly pro bono publico, and should be construed in such a manner, as to attain, as far as possible, the end proposed. Pierce vs. Hopper, Strange, 253, 258. New River Company vs. Graves, 2 Vern. 431. It would not be doing justice to the makers of the charter, in searching for their intentions, to look to the 18th section alone, for the narrowest possible construction of it; but that section must be construed together with the 4th, by which the general power of improvement was given, in order to arrive at the intention of the makers, and that both may stand, if consistently they can.

Looking then to the unqualified terms of the 4th section, that the president and directors shall have power, &c. “ to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary, for opening, improving, and extending the navigation, and carrying on the same from place to place, and from time to time, and in such manner, as they shall think fit,” it is clearly seen, that the right was expressly given to the corporation, by that section standing alone, to improve the navigation by any means, and to any extent in its power, that the river and the region through which it passes would admit of, without limitation either as to manner, extent or time. With that unrestricted power, it might have contented itself, with making the river navigable in its natural course, or by means of a canal, or canals, for vessels drawing one foot water; or if from experience, that was found to be inadequate to the demands of an increasing commerce, it might have deepened the bed of the river, or any canal or canals that had been made; or if none were originally made, it might have extended the improvement, by a resort to canals, from place to place, and from time to time, as in its judgment, occasion should require, which would seem to have been the very object of the power, to make canals “from place to place, and from time to time;” or it might in the first instance, have resorted to the temporary expedient of making the river navigable in its natural course, for the immediate public accommodation, by vessels of small draft, and at the same time, have adopted the more extended plan of improvement, by a canal or canals; all which it is believed must be conceded, looking to the 4th section alone—and it is not perceived, that there is any thing in the provisions of the 18th section, declaring, that if the river was not made navigable within the respective periods therein mentioned, for vessels drawing one foot water, between the Great Falls and Fort Cumberland, and from the Great Falls to tide water, the corporation should not be entitled to any benefit, privilege, or advantage under the act, and that all the interest, Sfc. of the corporation should be forfeited and cease, which so abridged the general power specified in the 4th section, to make such canals as the corporation should judge necessary, and at such places and times as it should think fit, as to reduce and limit it to the mere power to make the river navigable for vessels drawing one foot water, and to terminate whenever that should be effected, without any express words of restriction; instead of the more extended power to make such canals, as might be found better suited to the purposes of useful and efficient navigation; and at such times, as the progressive improvement of the country, and consequent increase of internal commerce and intercourse between the two great sections of the United States, which it was the object of the charter to bind more closely together in interest and affection, might indicate a necessity for further improvements, and aid in supplying the means of carrying them on. If that was the effect of the 18th section, it took away by implication, the whole of the discretionary and more beneficial power given by the 4th, and virtually annulled that section. Such a construction and effect, could only be given to the 18th section, by rejecting the 4th from consideration, in violation of the rule, that every statute should be so construed, that no clause, sentence or word, shall be superfluous, void, or insignificant, if it can be prevented; which is loo well known and established, to render any reference to authorities in support of it, necessary.

Nor is there any necessity for such a rejection of the 4th section, in order to give effect to the 18th section, but both máy well stand. The requiring that to be done, which the corporation had before the undoubted right and power to do, the making the river navigable for vessels drawing one foot water, was by no means inconsistent with, or repugnant to the power to make further and more important improvements. It was only saying, that, that at least should be done, leaving the corporation in possession of the power given it by the 4th section, to do as much more as it pleased, but not less : and accommodating the navigation afterwards, to vessels of greater draft, (by whatever means effected,) would not have rendered it less “capable of being navigated by vessels drawing one toot water.” If it could have done so by deepening the bed of the river, or canals already made, (which cannot be doubted,) it might also have done it by making additional canals, where none had been made, there being no restriction perceived in the law itself, of one mode more than the other, but the general power, extending equally and without distinction to all; and for us to make such a distinction, would be to legislate, and not to expound the law as it is given to us. The idea advanced, that to draw off the water from the river, after it was made navigable for vessels drawing one foot water, into a canal of greater depth, would have been a violation of the charter, rests upon the supposition, that the operations of the corporation, except at the Great and Little Falls, were restricted to the bed of the river, and that it was hound, to entitle it to tolls, to make and keep the river navigable in its natural course alone: which we have already endeavored to show, is not consistent with the proper construction of the charter, but that the corporation had a right to make the river navigable, by means of a canal or canals, and to demand and receive tolls, although no water should be left to flow in the natural course.

Taking then the 4th and 18th sections together, it appears to be very plain, that the intention was not, by the provisions of the 18th section, to abridge the general power, explicitly given in the 4th, to improve the navigation to thp utmost extent within the means of the corporation, and in any mode, and at any time, and to limit it to the right only to make the river navigable for vessels drawing one foot water; but merely to enjoin as a positive duty, under pain of forfeiture, and to insure an early use of the river, though upon a limited scale, that it should at least be made navigable to the extent therein required, within the respective times specified; leaving the general discretionary power of further improvement unimpaired, in regard both to extent and mode, and to be executed at any time ; or in the language of the 4th section, “from time to time, as the corporation should think fit; ” aided by the tolls permitted to be received, and by the 4th section expressly authorised to be applied to that purpose, in these words, “and out of the money arising from the subscriptions, and the tolls, &c., to pay for the same, and to repair and keep in order the said canals, locks, and other works necessary thereto, and to defray all incidental charges.” Which of itself, abundantly shows the intention that the canals, locks, and other works so authorised, might be made and carried on, after the river should be rendered navigable from Cumberland to tide water, for vessels drawing one foot water; since that was, by the 17th section, expressly made a condition precedent, to the right to demand or receive any tolls; the canals, locks, and other works, and incidental charges, that were intended “ to be paid for, and defrayed,” in part, “ out of the money arising from the tolls,” could only have been such, as should be made, and occur after tolls were authorised to be charged, which was not until after the river had been made navigable for vessels drawing one foot water. To say it was intended, that the whole of the work authorised should be first completed, and afterwards paid for, with all the incidental charges, out of such tolls as might possibly be received, without a word in the law to that effect, would be a most strained construction. It could not have been known that a sufficient amount of tolls with the subscriptions, would ever be received to discharge the principal and interest of the sum expended upon the work, or that the corporation would be able to borrow money for carrying it on, about which, nothing is said in the charier. It is not there-, fore to be supposed, that any such speculation was indulged in; but the evident intention was, that the corporation might carry on the canals and other works from tíme to time, as it should be deemed necessary, and as its pecuniary means, arising from the subscriptions, and the receipt of the tolls, should enable it to do so.

The great and general ultimate object was the improvement of the navigation of the river, to the utmost extent commensurate with the means of the corporation, as they should accrue, and to which it should at any time choose to push it; with no motive for limiting the degree of improvement, which could not have been too extensive for the purposes contemplated. The special, and more immediate object, was a partial improvement, not committed to the discretion of the corporation ; but required under pain of forfeiture, to be completed as a positive duty within the times specified, upon the execution of which alone, without doing any thing more, the corporation was to be entitled to demand and receive tolls, and to all the benefits, privileges and advantages, proffered by the charter. If the river was not made navigable for vessels drawing one foot water, the corporation was to have no “benefit, privilege or advantage, under the charter;” in other words, the charter was to be forfeited; but if that was done within the time limited, then the whole of the charter was to remain in full foree; none of the franchises were to be forfeited, and the corporation was to have the benefit of demanding and receiving tolls; and the privilege, if it chose to exercise it, of making any further improvements in its power, according to any mode, and at any time it should think proper.

In this view of the subject, there was no inconsistency, or repugnancy, between the 4th and 18th section; no clause, sentence or word of either, was superfluous, void, or insignificant, but each section had its full effect and operation. Under the 18th section, the corporation was bound to make the river navigable from Cumberland to tide water, for vessels drawing one foot water at least, within the times limited, and it might have contented itself, with the discharge of that duty; and under the 4th section, it was not bound, but had authority to make any further improvements, in any mode or plan, and at any time, it might have executed that authority. But according to the interpretation of the charter on the part of the Rail Road Company, the 4th section, in regard to all discretionary power of improvement, whether in relation to, extent, mode, or time, was abrogated by the 18th section, when both might well have stood together, which is not sanctioned by any acknowleged rule of construction.

It is said to be “inconceivable, that the legislature could have intended to give to the company the power, after the navigation was completed in one way according to the requisitions of the charter, to complete it in another.” That might have been unnecessary legislation, if the charter is to he so understood, though not for that reason void. But it was not the meaning of the charter, thatthe navigation would then be complete, when the river should be made navigable for vessels drawing one foot water only, as it clearly would not. The intention of the makers was, to secure to the public the benefit of a partial use of the river in a reasonable time, by requiring under pain of forfeiture, an improvement to that limited extent at least, within the prescribed periods; leaving it to the corporation, and clothing it with sufficient power and authority for that purpose, to make at any time, what further improvements it could; the more extensive and complete the better; but not exacting as a duty, to entitle it to tolls, what it might be unable to accomplish, and what subsequent events have proved, it was not able to effect.— Nor is there any thing very astonishing, or calculated to excite surprise in this. It was exactly what a wise and prudent legislature would have done, not to restrict the powers of the corporation, to the smallest possible improvement suited to any useful purpose, which would have been inconsistent with the great end in view; nor to jeopard the whole enterprize, by requiring the work to be completed under pain of forfeiture, on the most approved,plan, and to the utmost extent, within a period that might prove too limited, for the means and capacity of the corporation;, nor to leave too much in the discretion of the corporation,, by omitting to require any thing to be done within a time limited; which discretion might have been abused by the corporation to the prejudice of the public. And, borrowed as it would seem, from that charter, the same policy of securing to the public, the benefit of a limited use of the river for the purposes of navigation, during the progress of a more extended plan of improvement, has been carried into the charter of the Chesapeake and Ohio Canal Company; the 13th section of which has this provision, “and it shall be the duty of the said last mentioned company, (the Canal Company) until every section of the contemplated canal shall be completed, so as to be used and enjoyed for the purposes of navigation, to keep the corresponding part of the river, in a proper state for navigation, and in good order as the same now is; and in default thereof, they shall be in all things responsible, in the same manner, as the Potomac Company is now responsible.’’

The different supplementary acts of this State and Virginia, to the charter of the Potomac Company, giving further time to that company, could only have been intended, (and cannot be otherwise construed,) to extend the time for completing that, which by the 18th section of the original act, was required to be done within the respective times therein limited. And that was, the making “the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from Cumberland to tide water,” and nothing more. There was no limitation of time for the exertion of the powers given by the charter, except that prescribed by the 18th section ; of necessity therefore, the supplements extending the time, had reference to that section, and to the particular work expressly required by it, to be done within the times limited.

The preamble of the act of this State, of 1802, ch. 84, reciting “that the object contemplated by the act of assembly for establishing a company for opening and extending the navigation of- the river Potomac, has been accomplished,n has been much relied on, to show the understanding of the legislature of Maryland to have been, that the object for which the Potomac Company was originally incorporated, was the making the river navigable in its natural course, for vessels drawing one foot water, except where canals were expressly required; no continuous canal having then been made. But, however that preamble might have been understood, taken alone, it is perfectly clear, when construed with the enacting clause, that, that was not the meaning of the legislature. The language of the enacting clause, immediately following the preamble is, “that the proprietors of shares in the said Potomac Company, their heirs and assigns, shall, and may demand, take, and receive tolls, at the several and respective places heretofore fixed by law, for the payment, and receipt thereof;” thus manifestly showing, that by the object stated in the preamble to have been accomplished, was merely meant, the performance of the condition imposed by the 17th section of the original act, precedent to the right to demand and receive tolls; that is, the making the river navigable for vessels drawing one foot water. And the particular object, required by the 18th section to be accomplished within the times specified, on pain of forfeiture of all “benejit, privilege and advantage under the actwith no reference whatever, to the general authority to make canals, &c. given by the 4th section, without any liznitation of time. And the conclusion of the same enacting clause of the act of 1802, ch. 84, is in these words, “and that all and every of the rights, interests, privileges and immunities heretofore granted to, or vested in, the said proprietors and Potomac Company, are hereby confirmed and established to them, their heirs, &c.” including the right and privilege to make a canal or canals, at any tizne; thus asserting and confirming the existence of that right, upon the assumption that the river had been made navigable for vessels draioing one foot, water.

The charter was not limited in its duration, but expressly made perpetual by its terms, defeasible only, on failure by the corporation, to accomplish within the time limited, what was required to be done by the 18th section. Which was a condition subsequent engrafted upon it, in defeasance of a vested franchise, on breach of which, if in point of fact, there was any act of forfeiture committed by the corporation, it might have been avoided, or forfeited, by scirefacias, or a quo warranto, if the states that granted it, had chosen to take advantage of the non-performance of the condition. But not having done so, the franchise endured, notwithstanding the breach of the condition. And it is like the grant of an estate in land, defeasible on the non-performance of a condition subsequent, strictly speaking, as if an estate be granted expressly upon condition to be void on the happening of a certain event. In such case, it is perfectly clear, that the estate is not defeated by the mere happening of the event, but that the law permits it to continue, beyond the time- when such contingency happens, unless the grantor or his heirs, take advantage of the breach of the condition by entry, &e. which cannot be done by a stranger. The proceeding by the government (the grantor,) for the breach of a condition subsequent, contained in a charter of incorporation, is by scirefacias, or quo warranto ; by an individual grantor (or his heirs,) of land, by entx-y.

A private corporation aggregate may be dissolved, by the death of all its members, or by the loss of an integral part, whereby it is rendered unable to do any corporate act, or to restore itself by a new election; or a corpox-ation may be dissolved by a surrender to the government of its franchise, or by an act of the legislature repealing the act of incorporation, with the assent of the corporation; or it may be dissolved by a foi'feiture of its charter, through abuse or neglect of its franchises, as for condition broken; there being a tacit condition in every such grant, that the corporation shall act up to the end of its institution. But such forfeiture must be judicially ascertained and declared, upon direct proceedings against the corporation for that purpose, in order that it might not be condemned unheard, for an imputed delinquency. Where there is no corporate body in existence, as where it has been dissolved by the loss of an integral part, or by surrender, &c. it would be not only useless, but absurd, to go into a court of law, to obtain a judgment of dissolution. But where there is an existing corporation capable of acting, but which has been guilty of an abuse, or negleet of its franchises, or the powers committed to its trust, amounting to a cause of forfeiture, such cause of forfeiture can only be enforced by scire facias, or a quo warranto, issued at the instance of the government creating the corporation, and cannot be taken advantage of incidentally, or in any other way, or by any individual; since the government, with which alone the contract arising out of the charter is made, may waive the breach of any condition of that contract, and cannot be made to enforce the forfeiture, whether it will or no, and when it may have sufficient reason for not choosing to do so. Until it does, and that by judicial action, and not by legislation, no individual or other corporation, can treat it as a forfeited franchise. This is the doctrine taught by the authorities—among which are, The King vs. Amery, 2 Term. Rep. 515. The King vs. Pasmore, 3 Term. Rep. 199. Terret vs. Taylor, 9 Cranch, 43. Dartmouth College vs. Woodward, Wheat. Rep. 518. Slee vs. Bloom, 5 John. Ch. Rep. 366. Same vs. Same, 19 John. Rep. 456. The Trustees of Vernon Society vs. Hill, 6 Cowans Rep. 23. McLaren vs. Pennington, 1 Paige's Rep. 102, and Angell and Ames on Corporations.

The opinion of that distinguished jurist Judge Marshall, which was used in argument, would be entitled to, and would receive thé highest consideration, if the question upon which it was given, arose in this cause. The substance of it is, that as the 11th section of the charter only authorised the condemnation of land, through which a canal was intended to pass, the condemnation must of course be before the canal was made; and therefore, that if after the canal had actually been made, and the making of it no longer rested in intention, there could be no condemnation of land on the sides of it; upon the principle asserted, that every law, which is to wrest from an individual his property without his consent, must bo strictly construed. The utmost extent to which that opinion could be used, would be to show, that wherever the power of the company to make a canal, had been exerted, it was expended and gone, and could not again be exercised by a further condemnation of land, at the same place. But the question presented here, is not whether the power of the Potomac Company to make canals, had, by being exerted, been executed, and was at an end; but whether that corporation retained the power to condemn land, and make canals, where none had before been made.

The penalty annexed to the breach of the condition in the first clause of the 18th section, was, that “the company should not be entitled to any benefit, privilege, or advantage under the act;” and in the last, that “all the interest, &c. of the company should be forfeited and cease.” Now, to lose all benefit, privilege, and advantage; or for all interest to be forfeited and cease, would be to lose the charter itself. To take away every thing a charter gives, is to take away the charter— and to have taken away all benefit, privilege, advantage, and interest, would have been, to take away every thing that this charter gave. A forfeiture therefore of the entire charter, together with the particular franchise to condemn lands and make canals, was the penalty prescribed.

The analogy between this, and the case cited of Agnew vs. The Bank of Gettysburg, 2 Harr, and Gill 478, is not pereeived. That was the case of a bank charter, of limited duration, which had expired by its own limitation, and with it, the corporation ipso facto dissolved; it wholly ceased to exist for any purpose; no corporate powers remained, no originally vested franchise to be divested, for none were given beyond the term of duration; and no act was necessary to be done, in order to avoid the charter, or dissolve the corporation. But this was a corporation in full life, with vested franchises, unlimited in their duration, and liable only to be divested, through failure to exert them to a limited extent, within a specified time—and although by matter in pais, it might perhaps strioti juris, have had no right to exert them; yet none could have questioned the right, but the States that granted the franchises, and with which the contract was made, and which alone could have resumed them, for breach of the condition, on a judgment of seizure—until which was done, the corporation continuing to exist, the power to exert the franchises granted, remained.

Suppose for any cause, the rail road, or canal, should not be completed within the time prescribed by its charter; would it be contended that the charter was ipso facto forfeited, and the corporation dissolved without any judicial proceedings being instituted for that purpose, and that the State could thereupon grant the same franchises to another company? It is however conceded, that at the date of the surrender and transfer to the Canal Company, this was a subsisting corporation, with corporate rights, and the power to exercise them; and it is said, it must now be taken, that the river had then been made navigable for vessels drawing one foot water. If so, every benefit, privilege, and advantage, under the act, remained; and among them, the privilege of condemning land, and making a canal or canals, at any time; which the corporation was free to exert, where - and when, and how it “should think fit,” within the desig-■ nated region. The expressions, benefit, privilege, advantage and interest, used in the 18th section, applied as well to the' right to demand and receive tolls, and to make the river navigable in the natural course, as to the right to condemn lands for a canal or canals. The terms equally embraced all the rights and powers of the corporation; if one was to be forfeited, all were to be forfeited; if a term was prescribed for the duration of one, the same term was prescribed for the duration of each. There was no distinction, no exception of one, more than another from the operation of that section. And evidence of their understanding of the 18th section, is furnished by the acts of the legislatures that granted the charter; which show, that they did not consider the franchise as one that was to expire by its own limitation, but viewed and treated it, as a question of forfeiture altogether. Not as a grant of the right or franchise for a limited time, to condemn lands and make canals, but as a grant of the franchise for an indefinite time, subject to a defeasance, and that the object of the different acts passed for the extension of the time limited by the 18th section, was to guard the corporation against the liability to a forfeiture for a breach of the condition.

The 2d section of the act of Virginia, passed in November, 1793, for extending the time limited by the 18th section of the charter, has this provision, “and that no privilege or advantage granted by law, shall be forfeited or lost, in, ease the navigation aforesaid shall be finished within the time hereby limited.” The 3d section of the act of this State, passed at the November session, 1794, ch. 29, for the like purpose, has the same provision, and the provision of the 4th section of the act of this State, passed at the November session, 1797, ch. 93, is in the same words.

The act of 1814 of this State, ch. 75, giving to the company the power to acquire land, by purchase, compromise, or exchange only, which is relied on to show, that the power before granted to acquire land for constructing canals, was considered by the legislature as gone, and extinguished, does not seem to have been correctly attended to. It declares that the company “shall be, and they are hereby, authorised and empowered, to use and dispose of the land and water rights, now held by the said company, or which they may hereafter acquire in this State, in the erection of mills,” &c., “and shall be authorised and empowered to acquire lands and other property, contiguous to the land, canals, and locks on said river, by purchase, compromise, or exchange, &c. No authority had before been given to the corporation to acquire land in any way, except for the purpose of constructing canals and building toll houses; and the authority given by this last act to acquire land, was not for the purpose either of constructing canals, or building toll houses ; but it was an authority to acquire lands contiguous to the canals and locks on the river, for the purposes, as it would seem, of the mills, or other water works, which the same act authorised the corporation to erect. It was therefore an entirely new power, not given, because the power before imparted had departed from the corporation; but for a purpose, foreign from that, for which the power to condemn land had before been given. It was therefore a necessary power, for the purpose for which it was conferred, though the former power to acquire land by purchase or condemation remained in full force; since under that former power, no lands could have been condemned contiguous to canals already made, for the purposes of mills or other water works; and it affords no inference that the former power, was considered as having ceased. But as it speaks of water rights thereafter to be acquired, it would seem to imply, that the right to make canals still existed, which was a means of acquiring water rights, and that, after the expiration of the time last limited by the acts of this State.

On the 29th of January, 1821, the legislature of Virginia passed an act authorising the appointment of commissioners, to ascertain among other things, whether the terms and conditions of the charter had been complied with; and if not, to advise and consult with commissioners to be appointed on the part of this State, as to the measures best to be recommended to, and conjointly adopted by the two States, either for giving aid to the company in the further prosecution of the work, or for the institution of a prosecution against it, for the purpose of annulling and vacating the charter—and in the course of the same session, the legislature of Maryland passed a resolution for the appointment of commissioners to make the same joint inquiry ; substituting only, for the measure of instituting a prosecution, the alternative of adopting measures for the more effectual improvement of the navigation by some other means. Thus we have the sense of the States that granted the charter, clearly expressed by the concurrent acts of their respective legislatures, after the expiration of the last extension of the time limited by the 18th section, that if the condition (calling it and treating it as a condition, and not a limitation,) had not been complied with, not that the franchises had therefore expired, and that the corporation was dissolved, but that it continued to exist, in the possession of the corporate powers originally given to it, and that until it was dissolved by judicial action, it might, with sufficient pecuniary aid, go on to do the work originally authorised; with the opinion cf the legislature of Virginia plainly indicated, that the breach of the condition could only be taken advantage of by direct proceedings at law, instituted for that purpose, and the unwillingness of Maryland to adopt so harsh a measure.

And finally, the two States upon whose pleasure alone, the continuance of the corporation, and of its franchises depended, (both of them interested as stockholders, and Maryland largely as a creditor,) and which had a right to waive the breach, by any non-feasance or mal-feasance of any implied or expressed condition contained in the charter, having virtually waived the breach of the condition by the corporation in failing to exert its franchises, by the act to incorporate the Canal Company conclusively remitted to the Potomac Company any abuse, or neglect of its franchises, or any of them; and recognized and treated it as a subsisting corporation, in the full possession of all its original powers, in requiring its assent to the charter of the Canal Company, in order to give it validity; and by declaring in the 13th section of that charter, that upon the surrender and transfer by the Potomac Company to the Canal Company of its charter, all the rights and powers thereby granted to the Potomac Company, should be vested in the Canal Company, which included the right and power to condemn land for canals. Not the rights and powers, then held by the Potomac Company, but all that had been granted, and which must have been considered as then subsisting, otherwise they could not so pass and vest. Which shows the intention and meaning of the 18th section; and it is not denied, (as it cannot be,) that in construing a statute, a subsequent law upon the same subject, may be resorted to, for the purpose of ascertaining the intention, which when discovered, must prevail; all statutes in pari materia being construed as one law. But whether this view of the subject is correct or not, and independent of any corporate rights and privileges derived from the Potomac Company, a priority of right in the choice of a route for the canal in the valley of the Potomac, is claimed on the part of the Canal Company, by the force and effect of its own charter, viewed as a compact between the States of Virginia and Maryland, and the Congress of the United States, and between those sovereign parties and the Potomac Company. Which leads to an inquiry into the. character and effect of that instrument.

A State may contract with an individual; and it is equally certain, that two or more of the States, may enter into a compact or agreement inter se; and the only question upon that subject is, whether that has been done in this case— which involves the further question, (if a question it can be at this day,) whether a State can contract by an act of its legislature. That it can so contract with an individual, is settled beyond all controversy by the decisions of the Supreme Court, in Fletcher vs. Peck, 6 Cranch. 87. The State of New Jersey vs. Wilson, 7 Cranch. 164. Terrett, vs. Taylor, 9 Cranch. 43. The Town of Pawlet vs. Clark and others, 9 Cranch. 292; and Dartmouth College vs. Woodward, 4 Wheat. 518; and that two or more of the States may contract in that form inter se, is settled by the same court in Green vs. Biddle, 8 Wheat. 1, which was the case of a law of Virginia, relating to the separation of the district of Kentucky from Virginia, and the erecting that district into a separate State, containing this clause, “ that all private rights, and interests of lands within the said district, (Kentucky) derived from the laws of Virginia prior to such a separation, shall remain valid and secure under the laws of the proposed State, and shall be determined by the laws now existing in this State.” Which being afterwards ratified by a convention of the people of Kentucky, and made an article of the constitution of that State, it was held to be a compact between those States, the obligation of which, Kentucky could pass no law to impair. How then does this case stand ? Virginia, impressed with the importance of that subject, but knowing that the object could not be accomplished by any act of its own legislature alone, nor by its sole authority, passed the act for the incorporation of the Canal Company, in January, 1824, requiring in terms, the assent of the legislature of Maryland, of the Congress of the United States, and of the Potomac Company, to its provisions, to give it effeet and validity so far as concerns the eastern section of it, to which only, this suit relates. Maryland, treating it as a proposal offered for acceptance, assent, and confirmation, by an act of its legislature, passed on the 31st January, 1825, declared it to be “ accepted, assented to, and confirmed.” The Congress of the United States, by the act of the 3d March, 1825, declared it to be “ ratified and confirmed,” and on the 16th May, 1825, the Potomac Company, by a corporate act, signified and declared its “ assent” to it, and to all its provisions.

There are no technical words necessary to constitute a compact, or contract, which are convertible terms; and neither need be used, and seldom is, in the instrument creating it. It is a mutual consent of the minds of the parties concerned, respecting some property or right, that is the object of the stipulation, or something that is to be done or forborne; “a transaction between two or more persons, in which each party comes under an obligation to the other, and each reciprocally acquires a right to whatever is promised or stipulated by the other,” and any words manifesting that congregatio mentium, are sufficient to constitute a contract. Here we have the very language of contract, in the terms “accept,” and “assent to.” It is the language used by the parties to a compact of the most solemn and imposing character. , The 7th article of the constitution of the United States, provides, that “ the ratification of the conventions of nine States, shall be sufficient for the establishment of the constitution between the States so ratifying the same; and the language used by the conventions in their acts of ratification, is, “ assent to and ratify,” “ assent to, ratify, and adopt,” “ agree to, ratify, and confirm,” “ approve, assent to, ratify and confirm,” and the amendments proposed by Congress in 1789, were ratified by acts of the legislatures of the respective States, using the language, “ratify,” “assent to, and ratify,” “ confirm and ratify,” “ assent to, ratify, and confirm,” &c.

■ The constitution to which validity and effect, to which vitality was imparted, by those expressions of assent, became not a mere confederacy, or league, but a compact, in the language of the constitution, “between the States so ratifying the same," as soon as it was so ratified by the number required by the 7th article ; by which, they were reciprocally bound, that there should be such a government of the Union for the benefit of the whole, with the assent of the people, and proceeding from them, as that, provided by the constitution. And when the federal government was organized and brought into existence, which is a creature of the constitution, possessed of the rights and powers it confers, and subject to the duties it prescribes and enjoins, it became also a compact between the parties to it, and the federal government.

In this case, there were mutual interests in the subject matter of the reciprocal acts of the two States and of Congress, with an acknowledged authority to contract; and the legislature of neither of the States, could have performed by any separate act of legislation, what was proposed to be accomplished by the concurrent acts of all. One terminus of the canal is proposed to be in the District of Columbia, and the other in the State of Maryland; and Virginia could not of its own authority, by any separate act, authorise a canal to be made through Maryland, nor could Maryland authorise a canal to be made through Virginia, without its consent, nor could either or both of them, authorise one to be made in the District of Columbia, without the consent of Congres; Maryland and Virginia were interested in the Potomac Company; both, as stockholders, and Maryland largely as creditor, and both of them, and also the United States were interested in the river, and the works erected by the Potomac Company, as a public highway. Neither of the States therefore, without the consent of the other, nor both of them without the consent of Congress, could have repealed the charter of that company, nor have received, or authorised the surrender of it, and of the works, to another company. Neither State could have authorised the condemnation of land, nor the imposition and collection of tolls within the territory of the other, without the consent of that other ; nor could either or both of them, have authorised either to be done within the District of Columbia without the consent of Congress. The 14th section, declares “ that the said canal, and the works to be erected thereon in virtue of this act, when completed, shall forever thereafter be esteemed and taken to be navigable as a public highway.” Not, that the part in Virginia, shall be a highway there, nor the part in Maryland, a highway in Maryland; but the entire canal shall be one continued connected highway, through the respective territories of the three sovereigns; and neither of the two States could have made a public highway through the territory of the other, without the consent of the other; nor neither or both of them, through the District of Columbia, without the consent of Congress. Yet all this, wearing the features of a conventional arrangement, has been done by the reciprocal and concurrent acts of the three sovereigns ; with other stipulations and reservations of rights, impressing upon those acts the qualities of a compact.

The 9th section declares, that the canal and other works “ shall be forever exempt from the payment of any tax, imposition, or assessment whatsoever.” Now ordinarily, Congress and each State has a right to impose taxes within its own jurisdiction, and neither has the power to deny it to the other. What then, is that renunciation of the right to impose taxes, but a stipulation or agreement between them, that neither will exercise that right ? And the 14th section provides, that no other toll or tax for the use of the canal and works, except those authorised by that act, “ shall at any time be imposed, but by consent of the said States, and of the United States.” Is not that an agreement or stipulation, that neither will authorise the imposition of any further toll or tax, even within its own territory for the use of the canal, without the consent of the others ? There is a stipulation in the first section, that Congress and each of the States shall appoint commissioners for taking subscriptions to the stock, and' carrying the act into operation. Not to act separately, as if it were a separate law of Congress, and of each of the States; but to act conjointly for carrying it into effect, as the united act of «all—and the stipulation for the appointment of commissioners, could only have been an agreement between themselves, as the corporation was not then in existence, and was only to be brought into existence by the agency of their joint commissioners, as a creature of their joint creation. In the 20th section, there is a provision for reserving to each State, the right to charter another company, in case the western section of the canal, should not be completed within the time limited. And in the 21st section, there is a reservation to eaeh of the States, of the right to make lateral canals, to be fed by the waters of the Potomac; and to the government of the United States, to extend the principal canal through the District of Columbia, with a provision that before the act should take effect, Congress should authorise the two States, or either of them, to take and continue a canal from any point of the principal canal, through the District of Columbia, &c. (which was done by Congress in the act of March, 1825, and the unnecessary explanatory section of the act of 23d May, 1828.) There is also in the 21st section the further provision, “that in taking or extending such lateral canal or canals through the District of Columbia, by either of the States, no impediment or injury be done to the navigation of the Chesapeake and Ohio Canal.” And are not those reservations and provisions, mutual stipulations or agreements, that each shall have and enjoy the rights and powers reserved and conceded, and that neither of the States, shall make any lateral canal or canals to the prejudice of the navigation of the principal canal? We have moreover the understanding of the parties themselves, of the character of this act of incorporation.

The 1st section of the act of December session, 1826, which is an act for the amendment of the act of incorporation, after reciting, that it had received the assent of Maryland, Congress, and the Potomac Company, declares that it shall be amended, See. “on condition that this act receive in like manner, the assent of the necessary parties thereto.” And the 4th section, “that this act shall commence and be in force, as soon as it shall have received the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company,” showing them to be the parties alluded to as the necessary parties. It did receive their assent, and became a part of the charter. It does not in terms call that act, or the original act, a contract, but it uses equivalent expressions, “receive in like manner, the assent of the necessary parties;” parties to .what? not to that act, as a separate, and independent act-of the legislature of Maryland: that could not be; neither of them could be a party to it, as a mere law of Maryland. It was only in the character of a compact, that they could become parties to it; and being parties to the original charter, which that act proposed to amend, they were necessary parties to that act, and the assent to that act, by all the parties named, was a recognition of the necessity for their concurrence as parties to it; in order to give it the effect to alter, or in any manner modify the original act—and the same may be said of the act of the December session, 1827.

There were mutual interests, advantages, and rights, reciprocally conceded and compensated, by the concurrent acts of Virginia, Maryland, and Congress, constituting the original charter, which by any fair test that can be applied, is believed to be a compact between the two States and Congress, a reciprocal pledge of public faith, that there should be a corporation, the creature of that compact; created, not merely for its own benefit and advantage, but to effect a great national object, in which all were concerned, for the common benefit and advantage of all, and for the public good; and that whenever the corporation should be brought into existence, it should be invested with all the privileges, rights and powers, provided by the charter, for the accomplishment of the end contemplated, without any diminution or alteration of the franchises as therein expressed. There is no acknowledged necessity, for any stronger, or more technical terms, to constitute a compact between two or more states, than between a state and an individual; and the terms here used, would be quite sufficient to constitute a contract between a state and an individual. Indeed this very charter being a grant, is an implied contract with the corporation, not to re-assert the rights it has granted.

It has been intimated, rather than seriously argued, that under the provision of the constitution, “that no state shall, without the consent of Congress, enter into any agreement or compact with any other state,” this charter is inoperative as a compact between the two states, for want of the constitutional assent of Congress.

The assent of Congress to the provisions of the charter, is required by tbe 23d section, to be given “as the legislature of the District of Columbia.” The consent of Congress could not have been given as the legislature of the District of Columbia. It has no capacity to act as the local legislature of that, or any other particular district, and can only act in the capacity of the legislature of the Union, (in which capacity its assent was given to this charter,) and no state, after having entered into a solemn agreement with another, is competent to renounce the constitutional assent of Congress to it, as the legislature of the Union.

There is no particular form, in which the assent of Congress is required to be given, and it is not material in what form it is given, provided it is done. Here is an act, proposing to create a corporation, with all the necessary rights and faculties for making a canal, to terminate in the District of Columbia, to which the assent of Congress, a party in interest is required to give it validity, and Congress ratifies and confirms it, so far as may be necessary, for enabling any company formed by the authority of that act of incorporation, to carry into effect its provisions, in the District of Columbia; and is not an assent to the provisions of the act being carried into effect in the District of Columbia, by a company to be formed under the authority of the act, an acknowledgment of its authority, an assent to the act itself, and to the creation of a company, with all the powers proposed to be given to that company, for executing its provisions? The act does not provide for the making a separate canal in the District of Columbia, nor did Congress intend so to restrict the company; but to authorise an extension into the district of the canal indicated by the provisions of the act, and by the means the act prescribes; and the assent to the extension of the canal into the district, was a recognition of, and an assent to the whole scheme of the canal itself, and of the provisions for making it. And thus Congress, by the very act of becoming a party to the whole scheme of the canal, in acceding to it, to the extent of its territorial interest, gave to the compact or agreement, such an assent as was sufficient to gratify the constitution. But it is unnecessary to dwell longer on this part of the case. In Green vs. Biddle it was decided, that no particular form, for the assent of Congress to a compact between states, was required, and it was held that the consent of Congress in terms, “to the erecting the district of Kentucky into a separate and independent state, and its reception into the Union,” upon a certain day, was a sufficient consent under the constitution, to the compact in detail between Virginia and Kentucky, for that purpose; though no part of the compact, except that which related to the erection of Kentucky into a separate state, was adverted to in the act giving the consent of Congress', and the act of Congress of 23d May, 1828, assenting to the acts of this State, for changing the route of canal above Cumberland, and substituting rail ways, &c. for a canal through the Alleghany mountains, declares “that the assent already given by the United States to the . charter of-the Chesapeake and Ohio Canal Company, shall not be impaired by any such change, &c.” which plainly - shows that Congress understood the assent before given, to extend to the whole charter a compact, and all its provisions—otherwise, the provision that a change in the route of the canal above Cumberland, should not impair that assent, would have been unnecessary, as no change of the route above Cumberland, could in any way affect that assent, unless it extended to that part of the route. Besides, it speaks of the assent before given to the charter, in terms . which embraces all its provisions.

The Potomac Company, which was also the creature of . a compact between this State and the State of Virginia, was, at the time the original act was passed for incorporating the : Canal Company, a subsisting corporation, and its charter , could not have been repealed or annulled, nor any of its-corporate rights .diminished, or infringed, without its con-.currence. Its assent therefore, to the scheme of a new corporation in its place being necessary, it was expressly made a condition precedent to the consummation of the canal charter, and to the vesting of any rights under it; to be signified by its corporate act registered among the archives of the two States, and of the United States, which was regularly done.

Upon its assent so given in consideration of a stipulated equivalent, the canal charter was to take effect, and not otherwise. It was not to be evidenced, as has been supposed, by a surrender of its charter, and transfer of its property and rights to the Canal Company; which was only authorised to be done by the 13th section, after its assent had been declared, as required by the 1st section, and after the Canal Company had been formed; and could not have been done before the company was formed, and in a condition to receive such surrender—and it was only after the assent that the company could be formed, as without it, there would have been no authority for its formation, no act of incorporation.

What the Potomac Company was required to yield, was its charter, with all its rights and property held under it— and the proposed equivalent, was the benefit to that company, of the privilege of stock in another company, possessed of all the rights and advantages proposed to be granted to the Canal Company, being paid for in the debts of the Potomac Company, and in certificates of its stock at the par or nominal value.

It was plainly a proposal made to the Potomac Company, for its acceptance, in the form of legislative enactments, to this effect; if you will consent to the provisions of this act, for incorporating the Chesapeake and Ohio Canal Company in your place, you shall, on the formation of that company, be authorised to surrender and transfer to it, your charter, with all your corporate rights and privileges ; as an equivalent for which, and in consideration of your assent, the Chesapeake and Ohio Canal Company shall be invested with all the rights and privileges that the provisions of the act impart, and subscriptions for stock in that company shall be payable in .claims against you, and in certificates of your stock at par; such a transaction between individuals, in relation to any matter about which they were competent to contract, would clearly be a contract, the obligation of which the State could pass no law to impair. And it is conceded that, that legislative proposal, agreed to by the solemn corporate act of the Potomac Company, amounted to a contract between the two States and Congress on one side, and the Potomac Company on the other, to the same extent, and of the same obligatory force and efiect, as the compact of Congress and the two States interse. Not awaiting the formation of the Canal Company, nor the surrender and transfer to it by the Potomac Company, of its charter and property; but eo instanti that the assent of the Potomac Company was given, it became a compact, and by virtue and force of that very compact, a law; the concurrence of the parties to the compact being a condition preeedent to its becoming a law, which compact and law, it was not competent to the Potomac Company afterwards to defeat or annul, nór by any act to rescind its assent.

And it is a mistake to suppose, that its becoming a compact, depended upon the coming into existence of the Canal Company, and its acceptance of the offered terms as a necessary party. The coming into -existence of the Canal Company, depended upon the prior formation of the compact, of which it was'to be the creature, and without which it could have had no existence. When the' Canal Company did come into existence, and accept the charter, in the only way it could, by the very act of coming into existence, the subscriptoins to the stock, the charter became a grant, from which, there then resulted a contract between the two States and Congress, and the Canal Company; but distinct from the compacts of the two States and Congress inter se, and between them and the Potomac Company. They were contracts, that there should be such a corporation, with all the rights and privileges provided by the charter. The contract of the two States and Congress with the Canal Company is, that they will not re-assert the rights they have granted.

Upon the faith of the canal charter, the Potomac Company surrendered and transferred its charter, and all the rights and property it enjoyed and held under it, in consideration of a stipulated equivalent; the value of which depends upon the inviolate conservation of the chartered rights of the Canal Company. For of what value would the privilege of paying for stock of the Canal Company, in the debts, and certificates of stock of the Potomac Company be, if the stock of the Canal Company should be made worthless by an act of the legislature? and would not the faith of the States be violated by impairing that equivalent in any way, without the consent of the Potomac Company?

But if there is any ambiguity in the original act for incorporating the Canal Company, or doubt arising upon that act alone, as to the intention of the respective legislatures, the understanding of Congress, and of the two States, that it was a compact, to which they and the Potomac Company were parties, and could not therefore be in any manner altered or modified, without the consent of that company as a necessary party to such alteration; and that they acted upon that understanding, is demonstrated by the act of this State, of the December session, 1826, assented to by Virginia and by Congress, for amending the charter; which requires as a condition precedent to its becoming a law, that it shall receive the assent of Virginia, Congress, and the Potomac Company, as necessary parties thereto, in like manner as they had assented to the original act—and also by the act of the December session, 1827, for further aménding the charter, which required and received the same assent. And these acts are particularly worthy of notice, as showing the presence of a contract to which the Potomac Company was a party in interest; since, if it had no interest in the conservation of the canal charter, and of the rights and privileges it professes to confer, there was no necessity for requiring its assent to any change in the route of the canal. But the recital in the preamble, that “it is represented to this general assembly, that the Potomac Company are willing and desirous that a charter shall be granted to a new company, upon the terms and conditions hereinafter expressed, and that the charter of the present company shall cease and determine,” furnishes evidence of a conventional arrangement with that company, and would seem to be conclusive of the question of contract.

As to the sphere of the operations of the proposed corporation, looking to the various documents accompanying the answer, there would be no difficulty in ascertaining through what region it was intended the canal should pass; but it is unnecessary to resort to those documents generally, or to inquire how far recourse may be had to them for that, or any other purpose; the charter itself sufficiently and clearly designates the valley of the Potomac for the intended route of the canal.

The preamble states the object to be the construction of “a navigable canal from the tide water of the fiver Potomac, in the District of Columbia, to the mouth of Savage Creek,” &c. “to be fed through its course on the east side of the mountain, by the river Potomac and the streams which empty therein.” Here then, is a canal to begin, and end upon the river, and to be fed throughout its course, by the waters of the river, from one terminus to the other. Could there have been a clearer manifestation of the intention of the makers, that the canal should pursue the course of the river ? The right to make a canal, necessarily drawing to it, (if there was nothing more to indicate the valley as the intended route,) the right to make it where it could be supplied with the water, the vital stream by which it was intended to be fed.

The two termini being thus fixed, the laws of nature point to the course of the river, as the route of the canal.The recital too in the preamble, that the Potomac Company were willing and desirous that a charter should be granted to a new company, upon the terms and conditions thereafter expressed, shows it was intended as a substitution of the Canal Company for the Potomac Company, and to take its place in all things, and it has been seen, that the operations of the Potomac Company were confined to the valley of the Potomac.

The enacting clauses are in perfect accordance with the preamble, and provide for carrying it into effect. The 4th section authorises and empowers the corporation to cut canals, erect dams, open feeders, construct locks, and perform such other works, as it shall judge necessary or expedient for completing the canal before mentioned and described; that is, the canal described in the preamble, to be made from tide water to the mouth of Savage Creek, and fed by the Potomac.

The 15th section, after reciting that, “it is necessary for the making of the said canal, &c. that a provision should be made for condemning a quantity of land for the purpose,” authorises the acquisition by condemnation, of any land through which the said canal is intended to pass, (still referring to the canal described in the preamble,) and declares, that on the payment of the valuation of the land so condemned, the title shall vest in the corporation; and the 19th section authorises the corporation, during the pendency of any proceedings, to subject any land, to the purposes of the act, to enter upon the land and go on with the work. The 20th section declares, “that the eastern section of the canal shall begin at the District of Columbia on tide water, and terminate at or near the bank of Savage river or creek, which enters into the north branch of the Potomac, at the base of the Alleghany mountains,” and the 13th provides, for the establishing a rale of tolls, on the different parts of the canal, as they shall be finished, “until the eastern section shall be finished, up to the mouth of Savage river or creek.” The 11th directs the appropriation of the surplus tolls, “to the accommodation of the inhabitants of the shores of the river Potomac, by affording to them, in the best practicable mode, a safe and easy access to the canal, from the surface of the main river.” Now, how are the inhabitants of the shores of the river to be accommodated with a safe and easy access to the canal from the surface of the river, unless the canal is constructed upon the shore, or in the Valley of the river ? The 13th section makes it the duty of the corporation, when any part of the canal shall not be finished, “to keep the corresponding part of the river in a proper state for navigation.” What corresponding part of the river can there be, if the canal is not made along the river ? And the same section annuls the charter of the Potomac Company, upon its surrender and transfer to the Canal Company, and grants to the Canal Company all the rights and powers, that had been granted to the Potomac Company; which included the original power of the Potomac Company to make canals along the borders of the river. The 2d section of the act of December session, 1826, for amending the charter, assented to by Congress, Virginia, and the Potomac Company, authorises the termination of the eastern section of the canal, “at or near the town of Cumberland on the river Potomac,'1'’ (which is situated on the Maryland side of the river,) instead of the mouth of Savage creek and the commencement of the western section at that point, and has also this provision, “and in the event, that the western section of the Chesapeake and Ohio Canal shall leave the valley of the Potomac river, at any point below the coal banks, at or near the mouth of Savage, &c.” showing the intention of all the parties, that the route of the eastern section of the canal should be in the valley of the Potomac, and designating the town of Cumberland as a point in the valley of the Potomac, on the left or Maryland shore of the river to which it should go. The board of engineers for internal improvement, acting under the authority, of the general government, in their report, made before either Congress or the Potomac Company hád assented to the act of incorporation, explicitly state, that the eastern section of the canal must pass through the valley of the Potomac, and follow the course of the river without any deviation, and that the side on which it should go, is the only choice left, but giving a-preference to the left or Maryland side—and they base their estimate of the cost upon a construction of it on the Maryland shore—which survey and report were recognized and adopted, as designating the route of the canal, by the legislature of Maryland, in the act of the 6th March, 1826, for the promotion of internal improvement, in the proviso to the subscription to the stock of the Canal Company, that the executive should be satisfied that the residue of the sum estimated by the United States’ board of engineers to be adequate to the completion of the eastern section of the canal, had been subscribed by bona fide and competent subscribers; which act also provides for a canal to be made by the Maryland Canal Company, “from some convenient point on the Potomac river, continuing the Chesapeake and Ohio Canal to the city of Baltimore”—and the assent of Congress and of the Potomac Company having been given to the original charter, after that survey and report were made, they may be considered as having received their sanction also—and, the survey and estimate of the cost of the same route, by the civil engineers,. Geddes and Roberts, may likewise be considered as the basis of the subscription by Congress, of a million of dollars (which was made afterwards,) to the stock of the Canal Company.

With all this before us, is it not perfectly manifest, can it for a moment be doubted, that the valley of the Potomac was intended, and specifically designated for the route of the contemplated canal ? If indeed the sanction given by this State to the proceedings of the board of engineers for internal improvement, by making their survey the basis of a subscription of half a million of dollars, to the stock of the Canal Company; and the assent of Congress, and of the Potomac Company to the original act, after that survey had been made ; and the subscription by Congress of a million of dollars, consequent upon the survey, and estimate of cost of the same route by the civil engineers, Geddes and Roberts appointed for that purpose, may not be taken as an actual appropriation of the land surveyed for the route and site of the canal. If the Canal Company had come into existence immediately, and before the rail road charter was granted, it would have taken a vested right to choose a route for the site of the canal, in the valley of the Potomac, along either bank of the river, except at the upper terminus, which, whether at the mouth of Savage creek according to the original charter, or at Cumberland according to the amendatory act of the December session, 1826, is confined to the Maryland shore, both of those places being on that shore, and specifically designated for the upper termination of the eastern section of the canal, a right created by the charter, and existing independent of any survey, or act of location or of condemnation, which would be but an exertion of that right. And if the Rail Road Company had afterwards been chartered and organized, before any exercise of that vested right by the Canal Company, it could not, by any act of location or appropriation, have defeated or overreached it. The prior grant that gave, would have preserved the prior right. It would have been a corporate right, a vested franchise, to select the most suitable ground for the construction of the canal within the assigned sphere of action, which neither of the sovereign grantors alone, nor all together, could by any direct legislative act, have taken away or repealed; and much less could it be taken away, or disturbed by the act of any other corporation. This franchise, this corporate right, to select and acquire land for the authorised purposes of a corporation, is property ; it is an incorporeal hereditament, not a legal title to the land itself, not a mere capacity or faculty to acquire and hold land, such as every individual possesses; but in addition to such capacity, it is a right or privilege, a portion of the eminent domain vested in the corporation, to acquire the legal'title to land subjected by the grant to its will, and thus to convert the incorporeal into a corporeal hereditament, and after the franchise to choose and condemn land for any particular public purpose, that portion of the eminent domain granted and subsisting in one corporation, cannot be bestowed upon another, to the prejudice of the former grant; nor can any other legally acquire, any such right of way or title to the land over which the franchise extends, as will hinder the former corporation in the exercise and enjoyment of its franchise. And although the Canal Company was not actually incorporated, and had not accepted the charter, before the Rail Road Company was chartered and organized, yet it is entitled to all the rights, benefits, and liberties, with which it would have been invested, if it had been organized before any antagonist corporation came into existence. It is not like the common case of an act of incorporation, passed by an individual State, which ordinarily, the State may repeal or modify at pleasure, at any time before it is accepted, and when no rights are acquired under it, and if it is accepted after any alterations are made, the corporation takes it subject to such modification ; because, until accepted, it is not a grant, and there is no contract between the State and the corporation, no pledge of public faith, to be violated by any alteration of the charter. And is it not on the ground of an original contract with the Canal Company, by Congress and the two States, at the date of this charter, that on this point of the case, the corporation is considered as having taken the charter, and holding it according to the then state of things with all its provisions inviolate ; for it is admitted, that the three sovereign grantors, with the consent of the Potomac Company, might have repealed, or modified the charter, (as they did in more instances than one,) or have granted the same franchises to any other company, at any time before acceptance by the Canal Company, or any act done, or right acquired under it; as until then, it had not assumed the character of a contract with that company, and therefore might have been altered or annulled by the united action of the parties, from whose concurrence it derived its existence. Though neither, acting alone and independently of the others, had the ability to do it, according to their own understanding of its charter and obligations; as is conclusively shown by the several amendatory acts of this State, of the December sessions 1826 and 1827, expressly requiring, and receiving the concurrence of all, in order to give them validity; and the former in terms styling them necessary parties. JBut it is on the ground of the compact and agreement of Congress and the two States inter se, and between them and the Potomac Company, arising from the reciprocal and, concurrent acts of the three former, and the assent of the latter; the consummation of which, was on the 16th May, 1825, the day on which the assent of the Potomac Company was given, anterior to the date of the rail road charter; and under the protection of the constitution of the United States, cannot be impaired or aifected by any thing contained in that charter.

It' is conclusively settled by the Supreme Court of the United States, in Fletcher vs. Peck, Terrett vs. Taylor, The Town of Pawlett vs. Clark, Dartmouth College vs. Woodward, and. in Green vs. Biddle, that contracts between States and individuals, and also contracts, between two or more States, are within the protection of the provision of the constitution, “ that no State shall pass any law impair- • ing the Obligation' of contracts,” and that no State can constitutionally pass any law, impairing the obligation of its own contract, whether with an individual, or with another State. The contract here was, that there should be a corporation, which, whenever it should be organized, should, by virtue of the charter, have the right to make a canal from the tide water of the river Potomac, in the District of Columbia, through the valley, and pursuing the course of the river, to the mouth of Savage creek, (a point on the left or Maryland side of the Potomac,) with permission after-wards given, to stop at the town of Cumberland, upon the river, (also a point designated on the Maryland side,) with power to acquire by purchase or condemnation, any land that should be found necessary for that purpose; which of necessity included the right to choose the route of the canal within the designated region, as the mere right to condemn land would have been of no value, and the canal could never have been made, without the additional right to select such land for condemnation, as should be thought best suited to the purpose; no specific part of the valley being appropriated. That right of choice then, in addition to the rightto condemn, which is dependent upon the exereiseof the right to choose, is a franchise, a portion of the eminent domain, which the sovereign grantors contracted should vest in the Canal Company, whenever it should be formed. It was a right residing in those sovereigns respectively, distinct from the exercise of it, which they had the power to exercise themselves, or to contract for the exercise of, by a company to come into future existence, and that, they did; not that the company should, on being incorporated, have the legal title to any lands held by individuals, but the franchise only to choose the route of the canal, and to acquire by purchase or condemnation, the legal title to the land selected for its site. It was to have also, all the rights and privileges that had been granted to the Potomac Company. That contract has not been rescinded; was in full force at the time the rail road charter was granted, and has been censtantly recognized, by all the contracting parties, and the charter treated as subsisting in all its integrity, capable only of being altered, by the consent of all the parties, even for the purpose of enlarging the authority of the company. By Maryland, in its various acts, both before and after the date of the rail road charter, relative to large subscriptions to the stock, and authorising the intersection of it by other similar works, according to its provisions; by Congress, in subscribing to its stock; and by all the parties in the amendatory acts of 1826, and 1827, the 3d section of the first of which, (passed at the same session that the rail road charter was passed,) provides, that nothing in that act shall discharge the company from a compliance with each and every of the conditions of the original act, except as therein altered. The contract is, that the canal company shall take and hold the charter, with all its provisions, all the rights and privileges it professes to impart. The right to make the canal in the valley of the Potomac, is not more distinctly stipulated, than the right to choose or select the route of the canal within that valley: and one stipulation can no more be violated, than the other. To exclude the canal from the valley of the Potomac altogether, would be no more a violation of the contract, than to obstruct or restrict the exercise of the right, to choose the most eligible ground for the construction of it. The right to choose the route, is not restricted by the contract, to either side of the river, except at the points designated for the termination of the eastern section; but is submitted to the judgment of the company, as it should have been. It is, by the contract, to have a choice between the two shores; authorise another company to occupy one of the shores, and that choice, that alternative is gone; it must take the other or none; and the contract, that it should have the right of choice, is violated. Besides, if Maryland has a right to authorise the occupation of the shore on the Maryland side of the river by another company, Virginia has the same right, and between them, though only two of the contracting parties, the power to make the canal at all, might be destroyed, and the charter virtually annulled. Let it be pronounced that the Rail Road Company has the right to take possession of the M.aryland side of the river, and what is there to prevent it from the taking like possession of the Virginia shore, wherever it may be found convenient? In which event the charter of the Canal Company would become as blank paper; for if it would have the right to go out of the valley with the canal, it would want the physical power, the proof being in the language of one of the witnesses, (an engineer,) that to make it out of the valley, would be a canal impracticability—and the further proof is, that if the claim of the Rail Road Company should be established, the canal could only be made on the Maryland shore, with such difficulty, and at such an expense, that no practical engineer would recommend it. In which case, the canal, if it went on at all, would have to cross the river, where it might be met by the same, or another company; for if to infringe the right of choice in this State, would not be to impair the obligation of the contract by the sovereign contractors inter se, neither would a similar infringement in Virginia, impair the obligation of the contract between the grantors and the Canal Company. The same law equally applies to both contracts. But if it were otherwise, the fact that both companies have chosen the same shore, and the same route, is sufficient to show that, that is the best route; and the occupation of it by the Rail Road Company, even if there should be another, would equally impair the obligation of the contract, since it would obstruct the exercise of the right of choice; and the nature or degree of the hindrance, the extent to which the obligation of a contract is impaired, be it great or small, is not material in the view of the constitution. If therefore, under the proper construction of the rail road charter, or the practical application of it, that company would be enabled so to locate and construct the road, as to interfere with, and restrict the action of the Canal Company in the choice of the route of the canal in the valley of the Potomac, or in the exercise of any of the rights and privileges granted to the Potomac Company, in so far, it is contrary to the constitution of the United States and void; and no rights to land, or of way, acquired by the Rail Road Company, can be set up against the paramount rights and privileges of the Canal Company, which stand as if the rail road charter had not been granted. The analogy insisted on in argument between this, and the case of two general or common land warrants, is not admitted; as between the holders of general warrants, there is no priority of right to locate. The warrant is in truth, nothing more than a mere authority to the surveyor or proper officer, to make the survey, and the certificate is the inception of title, to which the.patent when issued, relates. The State may issue as many general land warrants as it pleases; the issuing of one, does not preclude its issuing another or more; and he who can get his warrant first executed, though the junior warrant secures the land, notwithstanding all may be laid upon the same land, because the warrant confers no right, and it is from the act of location alone, that the right arises, and the title to the land remaining in the Statej may, until the warrant is located, be granted to any other. But not so with an act of incorporation, which when accepted, amounts to a grant, and thé right conferred, a vested franchise, existing independent of any act of location or survey, which the State cannot re-assert, nor grant to any other; it is therefore a prior right, to which all subsequent grants must yield. Here there was a consummated contract or pledge of public faith, anterior- to the rail road charter, against the effect and operation of which, it is protected by the constitution of the United States, and to the prior right of choice so secured by that contract or pledge, the rail road charter must give place. If there is any analogy, it is to a special land warrant, arising from the peculiar and special designation of the valley of the Potomac, for the route of the canal.

If there was any thing unwise, in not having limited a time for the formation of the Canal Company under the charter, that was a question for the sovereign grantors themselves, and cannot affect the rights of those claiming under it. But there is no want of wisdom perceived: it was a subject of great difficulty, and some doubt as to the practicability of the scheme; one company had already been in operation more than forty years, without being able to effect the desired object, and it could not well have been supposed, that others would embark their funds in such an enterprise, very, hastily, and without having first taken proper measures to ascertain the probable cost of accomplishing it, if upon examination it was found to be practicable—and if there had been any unreasonable delay in forming the company, (as there was not,) they who made the charter could easily have revoked it, before any rights were acquired; and if, after being formed, it had lain by, and suffered the rail road to be made, without interposing any claim to the route on which the road was constructed, such acquiescence would have amounted to a waiver of its rights, which it would not afterwards be permitted to resume, to the destruction of the road. No argument therefore can be drawn ab inconvenieñti, against the right claimed by the Canal Company.

To the objection rather suggested than urged, that the Canal Company was not a party to the contract between the two States and Congress, it is enough to say, that it is the creature of that compact; was brought into existence by it, and claims, and holds all its rights under it; as well those which had been granted to the Potomac Company, (in place of which it is substituted,) as others more extended; the whole of which depend upon the inviolate conservation of that compact or pledge of public faith. In Green vs. Biddle, 8 Wheat. 1, the suit was not between parties to the compact. The compact was between the States of Virginia and Kentucky ; and the suit was between individuals, one party claiming under a law of Kentucky, and the other setting up the compact, to show the law to be unconstitutional and void, and succeeded in doing so. But if the canal charter could be treated as the separate and independent act of Maryland alone, and which the legislature had therefore the power to repeal at any time before it was accepted, or any rights acquired under it; should the rail road charter be so construed, as to deny to the Canal Company the prior right to choose a route for the canal in the valley of the Potomac, and to give to the Rail Road Company the right asserted in the bill, to construct the road in the same valley, before the Canal Company shall have selected the route of the canal?

Statutes should be construed with a view to the original intent and meaning of the makers, and such construction should be put upon them, as best to answer that intention, which may be collected from the cause or necessity of making the act, or from foreign circumstances; and when discovered, ought to be followed, although such construction may seem to be contrary to the letter of the statute.— Plow. 205, 232. 11th Coke Rep. 73. 19th Vin. Abr. 519. 6th Bac. Abr. 384. That, therefore, which is within the letter of a statute, is sometimes not within the statute, not being Avithin the intention of the makers. “If laws and statutes seem contrary to one another, yet if by interpretation they may stand together, they shall stand;” and where two laws only so far disagree, or differ, as that by any other construction they may both stand together, the rule that Leges posteriores, priores contrarias abrogant, does not apply, and the latter is no repeal of the former. Roll. Rep. 90, 91. 2d Co. Rep. 5, 6. 11th Coke Rep. 63, 64. 19th Vin. Abr. 519, 525. It is laid down as an established rule, in 19 Vin. Abr. 525 Pl. 132, that “repeals by implication are things disfavored by law, and never allowed of, but when the inconsistency and repugnancy are plain and unavoidable ; for these repeals carry along with them, a tacit reflection upon the legislators, that they should ignorantly, and without knowing it, make one act repugnant to and inconsistent with another; and such repeals have ever been interpreted, so as to repeal as little of the preceding law as is possible;” and in 67th Bac. Abr. 385, 385, that “where it is manifestly the intention of the legislature, that a subsequent act of parliament shall not control the provisions of a former act, the subsequent act shall not have such operation, even though the words of it taken strictly and grammatically, would repeal the former act.” These principles have been recognized and adopted by courts, from the time of Roll, Plowden, and Coke, to the present day. In Williams vs. Pritchard, 4th Term Rep. 2, where the question was, whether a house built on land recovered from the river Thames, which by the Statute 7th, Geo. 3, was exempted “from all taxes and assessments whatever,” was liable to be assessed to the general land tax, imposed by the 27 Geo. 3. Lord Kenyon in delivering the opinion of the court of King’s Bench, said it could not be contended, that a subsequent act of parliament would not control the provisions of a prior statute, if it were intended to have that operation. But decided in that case, that though the words of the general land tax act of the 27th Geo. 3, were sufficiently large to subject the land to the payment of the tax in question, yet that the statute of 7th Geo. 3, exempting it from taxes, was not thereby repealed, on the ground, that it was not considered to have been the intention of the legislature to repeal it.

In Preston vs. Browden, 1 Wheat. 115. The Supreme Court of the United States, in construing an act of assembly of North Carolina, had recourse to the history and situation of the State, and treaties made by that State with the Indians, in order to ascertain the intention of the legislature, and thereby to arrive at the meaning of the act, and decided, that it did not embrace the land in question, though the words of it were sufficiently broad and extensive; on the ground, that it did not appear to have been the intention of the legislature; and in McCartee vs. the Orphan Asylum Society, 9th Cowen, 437, it was decided, that although the word purchase comprehends the acquisition of an estate, as well by devise, as by the party's own act, yet that the act of the legislature of New York, incorporating the Orphans' Asylum Society, which enacts that, that institution, “shall be capable in law of purchasing, holding and conveying any estate, real or personal, for the use of the said corporation,” did not so far operate as a repeal of the statute of wills, of that State, which prohibits a devise of real estate to bodies politic and corporate. Thus limiting and restricting by construction, the acknowledged legal import of the term purchase, and confining it to such other modes of acquiring real estates, as do not include a devise, on the ground, that it was only the intention of the legislature, to grant to that corporation the right to purchase, subject to other existing statutes, and not to confer a right to purchase without restraint, and therefore, that the term purchase, ought not to be construed in its most comprehensive sense, since by doing so, it would have the effect to repeal the express words of a prior statute; but in a more restricted sense, so as to leave the former act unimpaired, and that both might stand together. Keeping in view the principles before stated, and upon which the decisions referred to were made, with many others quite as strong that might be mentioned, let us for a moment examine, whether it was the intention of the legislature of Maryland, when granting the rail road charter, in any manner to limit or restrict the provisions of the act to incorporate the Canal Company, or to alter or abridge any of the rights or powers originally intended to be given by that act, or to repeal any part of it; and if not, whether the rail road charter must be so construed as to operate that effect. It has been seen, that the valley of the Potomac is specially and clearly designated by the charter, for the route of the canal from one terminus to the other, the upper terminus being required to be at a point on the Maryland shore of the river; and that it was considered as a work of great national, as well as local importance. And it is undeniable, that independent of any interference by the rail road charter, the Canal Company would be entitled to select a route for the canal, in that designated region. On the other hand, the rail road charter is general and affirmative in its terms, with no route prescribed, no particular region or district of country designated for the location of the road, nor any thing relative in its character, requiring it to be constructed, (as in the case of the canal,) in the valley of the Potomac. A general power only being given to the company to enter upon, use, and excavate, and to acquire by purchase or condemnation, any land which may be wanted for the site and construction of the road. There is no reference to the canal charter, (which is not mentioned) nor to any of its provisions, or the particular region within which the canal is required to pass, and must he made, if at all; but upon the face of it, it is perfectly compatible with the canal charter, and it is only by the practical application of it, under the construction contended for, that any interference is produced.

On the 16lh of May, 1825, the day on which the Potomac Company gave its assent to it, the act to incorporate the Canal Company became a public law of the State, though not at that time operating as a grant, not being then accepted. The act of the 6th March, 1826, ch. 180, for the promotion of internal improvement, in which a company called The Maryland Canal Company is incorporated, to make a canal “from some convenient point on the Potomac river, intersecting or continuing the Chesapeake and Ohio Canal to the city of Baltimore,” gives authority to the treasurer, to subscribe for the stock of the Chesapeake and Ohio Canal Company, to the whole amount of the stock of the Potomac Company held by the State, and of the debt due to the State by that company, and of half a million of dollars besides.

Thus recognizing the act to incorporate that company as a subsisting law in all its integrity, vesting her capital to a large amount in its stock, and treating it as part of a more extended scheme of internal improvement—and by the provision for a canal to be made by the Maryland Canal Company, “from some convenient point on the Potomac river, intersecting, or continuing the Chesapeake and Ohio Canal to the city of Baltimore,” plainly indicating the understanding and intention, that the Chesapeake and Ohio Canal should be made on the Maryland side of the river : otherwise it could not be intersected or continued to Baltimore, by the Maryland canal. The act of the 8th of March, 1826, ch. 200, giving permission to the State of Pennsylvania, to connect a canal or rail way with the Chesapeake and Ohio Canal, again recognizes it, as a subsisting law. The act of the 5th of February, 1827, ch. 78, to amend the act, to incorporate the Canal Company, requiring by the 4th section, in order to give it validity, that it should receive the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company, styling them in the first section necessary parties: and declaring in the 3d section, that nothing in that act, shall be held to discharge the company from a compliance with each and every of the conditions of the original act, except so far as they are expressly altered by the provisions of that act, which only relates to a part of the canal above Cumberland, not only treats it as a law in full force, but as a favorite measure of the State, and exacts from the company whenever it should come into existence, a rigid compliance with all its provisions; and on the 28th of February, 1827, the rail road charter was passed. Now is it to be believed, that on the 28th of February, 1827, the legislature intended by the rail road charter, to repeal any part of the canal law, which had been up to that time, so recognized and fostered by the State, and to the stock of which, considerably more than half a million of the State’s capital funds had been authorised to be subscribed; or in any manner to abrogate, alter, limit, or restrict, or to authorise any interference with any of its provisions ? On the contrary, is it not manifest, that the legislature had no such intention ? Can it be, not only that the legislature, but the same body of individuals, who, on the 5th of February, 1827, had, in the act to amend the canal law, declared that it could not be done without the assent of the legislature of Virginia, of the Congress of the United States, and of the Potomac Company, as necessary parties, even for the purpose of enlarging the powers of the contemplated company, and had also required a strict and full compliance with all the provisions of the law except as therein altered, intended on the 28th of the same month, only twenty-three days afterwards, and at the same session, by its own separate and independent act, proprio jure, to repeal any part of that law, or to limit or restrict any of its provisions, or authorise any obstruction to the exercise of any of the rights or powers originally intended to be conferred by it, whereby the canal might either be arrested altogether in its progress, or driven from the State: which, so far as Maryland is concerned, would amount to a virtual repeal of the law; and that too, in favor of an institution, the relative value of which, was not then well understood ? If the question could now be put to the members of the legislature who passed the rail road charter, whether they had, or not, any such intention, it cannot be doubted what the answer would be ; and that, is not an unapt test of the intention. It was certainly not the interest of the State, to do any thing to obstruct the canal in its progress, or to force it from the State; nor does it appear that any interference with it, was in the contemplation at the time, of the projectors of the rail road. But there are other subsequent legislative acts upon the subject, showing the understanding and intention of the legislature.

On the 10th March, 1827, at the same session, and only ten days after the rail road charter was passed, the canal law, with all its provisions, was again recognized by the legislature, in the supplement to the act for the promotion of internal improvement, chap. 211, modifying, by the first section of it, the condition on which half a million of dollars had before been authorised to be subscribed to its stock, and continuing the authority to subscribe that amount; which would hardly have been done, if the legislature had understood that only ten days before, they had by the rail road charter, authorised such an interference with the location of the canal, as might have the effect to force it from the State of Maryland, or destroy it altogether. The act of the 2d January, 1828, further to amend the canal law, requiring the assent of Congress, of the legislature of Virginia, &e. was not only a further recognition and affirmance of all its provisions, except as thereby intended to be altered; but by requiring the concurrence of Virginia, Congress, &c. whenever it was intended directly to alter the law in any particular, furnishes strong evidence, that they did not intend when passing the rail road charter, indirectly to alter or repeal any part of the canal law. On the 3d March, 1828, by a supplement to the act for the promotion of internal improvement, ch. 104, authority was given to the treasurer, to subscribe for five thousand shares of stock in the Baltimore and Ohio Rail Road Company; and on the same day, and immediately following, authority was given to the treasurer, by a further supplement to the same act, chap. 105, to subscribe, for the same number of shares of the stock of the Canal Company, reciting the importance it was of to the State, effectually to secure the completion of the work, if ever commenced. What work? Surely the canal, as provided for by the terms of the law. Thus, two supplements passed on the same day, treating the two contemplated works, as branches of the same general system for the promotion of internal imnprovement, and giving a preference to neither; but extending the same aid to each, by subscribing equally, to the stock of both. Those various, precedent, concomitant, and subsequent acts, demonstrate the intention of the legislature to have been, not that the rail road charter should repeal the canal law, or any part of it, or that the rail road should displace the canal; but that the law to incorporate the Canal Company, and all its provisions should remain in full force. With this manifest intention of the legislature, in the absence of any express, or necessarily implied repeal of the express provisions of a prior law, and with no plain and unavoidable repugnancy between the two laws, the rail road charter ought to be so construed if it can be done, as that both may stand, and the intention of the legislature be gratified—and not so, as by the practical application of it, to defeat the intention of the legislature, if by a reasonable construction it can be avoided. A construction of the rail road charter, that would have the effect to obstruct the route of the canal along the valley of the Potomac, on the Maryland side of the river, would be a virtual repeal of the Maryland law; since if it cannot be enforced here, it can be enforced nowhere—which was clearly not intended by the legislature, but would be the effect of con-

struing the words cmy land, used in the rail road charter, according to their most comprehensive and extended sense, as contended for on the part of the Rail Road Company; as any land, would embrace any land in the State, whether in the valley of the Potomac or elsewhere, and under any circumstances. But if construed in a more limited sense, and so as to entitle the Rail Road, Company to occupy with the road, any land not required for the practical operation of the prior law, both may stand according to the intention of the legislature, made evident by the general and uninterrupted course of legislation, in relation to them, at every session from the date of the canal charter, to the time of the institution of this suit; and especially, in their avoiding to make any amendment of the canal charter, without the assent of Congress, the legislature of Virginia, &c. (and much less therefore, would they have intentionally repealed it,) and in authorising subscriptions for an equal amount of stock in both, and constituting them independent branches of a great system of internal improvement. And that construction should be given to the rail road charter, the construction of the road in the valley of the Potomac, not appearing to be necessary, to the full execution of the charter; and the road not being required by the charter to be made in that region—whereas the canal is not only required to be made in the valley of the Potomac, but according to the proof in the cause, can be made nowhere else, and if not made on the Maryland side of the valley, cannot be made at all under the Maryland law, viewed as a mere separate and independent charter of this State, without reference to the law of Virginia: which as such, could not authorise the construction of it, any where but in Maryland. And as the validity of the Virginia law, is made by its terms to depend upon the concurrence of Maryland, if the canal charter, as a law of Maryland, was repealed by the rail road charter, and the assent of the State to the Virginia law thus withdrawn, the whole charter thereby became inoperative and void. But by construing the words of the rail road charter, in the sense suggested, full effect wilj be given to both charters, and the faith of the State preserved unimpaired, which it was never the intention of the legislature to violate ; and if no other construction could be put upon the words of the rail- road charter, than that contended for on the part of that company, the use of those terms, would clearly have been a mistake on the part of the legislature.

It would be doing injustice to the legislature, to suppose that they intended to start those two great companies on a face, for the, ground best suited to their respective purposes, with a stake of half a million of dollars on each, by which the State might lose a large amount; in the event of one, being obstructed in its progress by the other, with no prospect of gain, instead of sending them forth, each to pursue its own independent course, without any interference or conflict with the other. It has been urged in argument, that the proviso in the supplement to the act for the promotion of internal improvement, to the subscription authorised to be made to the stock of the Rail Road Company, that the company “shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of the Monocacy river, and the town of Cumberland, and that it shall go into Frederick, Washington, and Alleghany counties,” shows the intention of the legislature to to have been, to authorise the Rail Road Company to make the road in the valley of the Potomac, notwithstanding the provisions of the canal charter, if they could first appropriate ground in that region for the route of the road. But it will be remarked, that, that proviso is no part of the charter of the Rail Road Company, and was only a condition, upon which the stock of that company was authorised to be subscribed for, on behalf of the State, and whatever might have been the object of the legislature, in annexing that condition, it cannot have the effect to show, what was the original intention of the legislature at the time of passing the rail road charter, and to overthrow all the legislative evidence, that is exhibited, of a different intention. Nor ought a mere condition, on which the legislature thought fit to subscribe for stock of the Rail Road Company, with nothing more, to have the effect to repeal the canal charter. And the requiring as a part of the condition, that the road should “go into Frederick, Washington, and Alleghany counties,” was not to require that it should pursue the course of the river: since it might go into all those counties, without pursuing the course of the river, even after going to it; and with mere advantage to those counties, (which it would seem to have been the intention of the legislature to benefit by the condition,) as a road passing through their interior, would necessarily diffuse more general benefit and convenience, than one, merely running along their borders. It is possible, that the legislature did entertain doubts whether the canal would ever be commenced; no company having then been formed; and that under the influence of such doubts, they annexed to the subscription to the stock of the Rail Road Company, the condition that the road should go to the river; not for the benefit of that company, but in order to diffuse as widely as might be, the advantages to the community of that institution. But with no intention to prevent either the commencement, or completion of the canal, by requiring the road to be constructed along the borders of the river, to the exclusion of the canal. And that is not the meaning of the condition, as is sufficiently shown, by the recital in the immediately following supplement to the same act, of the importance to the State, of “effectually securing the completion of the canal, if ever commencedwhich conclusively evinces the determination of the legislature, that the canal, if ever commenced, should be completed according to the provisions of the charter, without hinderanee by any other institution. Moreover, exclusive of subscriptions, payable in the stock and debts of the Potomac Company, there had been on the 14th November, 1827, more than a million and a half of dollars subscribed to the stock of the Canal Company, by individuals and the district corporations, and the amount required by the charter, paid on each share at the time of subscription, whereby extensive interests and incipient titles had been acquired, and the public faith pledged, that each subscriber should hold and enjoy his stock upon the terms and conditions expressed in the charter, and on which he had subscribed and paid his money,—after which, it was too late, consistently with good faith, to alter the terms and conditions of subscription; or in any manner to lessen the value of the stock, or vary the condition or interest of the subscribers, without their knowledge or consent. Under such circumstances, with the subscription books still open, and an invitation held out to all the world, under the authority of the State, and by the charter, to come in and subscribe for stock according to its provisions as they then stood; and there being also, then pending in Congress, a bill for a subscription to the amount of a million of dollars to the canal stock, it is not, and cannot be believed, that the legislature intended on the 3d March, 1828, by the proviso annexed to the subscription to the rail road stock, to authorise and require that company, so to locate, and construct the road to the Potomac river, and along the valley, as either to arrest altogether the progress of the canal, or force it out of this State into Virginia; or in any way to limit and restrict the provisions of the canal charter ; or do more, than to provide as far as it could be done, for the event of the failure of the canal scheme, which might have been apprehended ; but which, the same legislature, immediately afterwards on the same day, and by a further supplement to the same act, which together, are to be taken and construed as one law, manifested a determination to prevent, by authorising a subscription of half a million of dollars to the canal stock, on such conditions, (in their own language,) “as would effectually secure the completion of the work, if ever commenced,” which is wholly at war with any intention to repeal the canal charter, or to abrogate or restrict any of its provisions; or to require or authorise the Rail Road Company to obstruct or displace the canal, by being the first to acquire title, by purchase or condemnation, &c. to any land in the valley of the Potomac, deemed necessary for its route and construction.

The acts of the legislature of Maryland, passed on the 22d Feb. 1831, and of Congress, on the 2d March of the same year, have been pressed in the argument on the part of the Rail Road Company, but do not seem to have any bearing upon the question involved. The former being “an act to promote internal improvement, by the construction of a rail road from Baltimore to the city of Washington,” and only authorising the construction by the Baltimore and Ohio Rail Road Company, of a rail road from some convenient point on that part of the Baltimore and Ohio Rail Road, which had then been constructed, and was in use, not exceeding eight miles from the city of Baltimore, to the line of the State, adjoining the District of Columbia, in a direction towards the city of Washington. With no relation whatever, to a location of the Baltimore and Ohio Rail Road in the valley of the Potomac, which is in a different direction, and far beyond the point on that road, from which the proposed road from Baltimore to the city of Washington, is authorised to be constructed, and not in the remotest manner tending to sanction such a location of the Baltimore and Ohio Rail Road, or to show the original intention of the legislature to have been, to repeal any part of the canal charter, or to authorise the Rail Road Company so to locate that road, as to obstruct, or in any manner interfere with the passage of the canal, along the valley of the Potomac, upon the Maryland side of the river. The making the contemplated road from Baltimore to the city of Washington, not being dependent upon, and having nothing to do with the question, whether the Rail Road Company has or not, a right to construct the Baltimore and Ohio Rail Road in the valley of the Potomac, but may be made whether that right exists or not, and without any reference to it; and even, although the rail road never should be completed to the valley of the Potomac. Just as well may any law, which may hereafter be passed, for making branches from any part of the rail road that is completed, be said to show the intention of the legislature to have been, to confer upon the Rail Road Company by its charter, the right to exclude the canal from the valley of the Potomac, by first occupying the ground, as can the act of this State, of the 22d February, 1831. And the act of Congress, of the 2d March, 1831, does no more than merely to authorise an extension “ into and within ” the District of Columbia, of the road proposed to be made by that act; without any reference whatever, to the chartered rights of either the Rail Road or Canal Company, in relation to the occupation of the valley of the Potomac, or to any sanction, express or implied, of the claim set up by the Rail Road Company.

There were several minor questions discussed at the bar, which in the view that has been taken of the subject, it is not deemed necessary to examine. It may however, here be proper to remark, that had our minds been in a state of equipoise, the decree of the Chancellor, whose argument we regret not having seen, would have been affirmed; there being no appeal from a decree of reversal. But not entertaining that degree of doubt, which would alone justify a decree of affirmance, we should be unworthy of the trust reposed in us, if we were to shrink from the faithful discharge of our duty, only to commit the decision of the the cause to another tribunal. These observations are elicited, by our having been reminded in the course of the argument, that in the event of a decision against the claim of the Rail Road Company, there could be no appeal; which we regret, but cannot honestly avoid the consequence.

The decree of the Chancellor is reversed, and the bill dismissed with costs.

Earle, and Stephen, J. concurred.