Beall vs. Drane, et al., ex'ors.

There is to be raised," an education fund for the purpose of educating poor orphan children." &c.

What is meant by "educating?" 1st, as to the branches to be taught; 2d, as to the extent to which, the branches are to be pursued; 3d, as to the time during which, each child is to enjoy the benefit; 4th, as to the school to which each child is to be sent, whether a school got up for the special purpose, out of the fund, or some, and what, school of the county? 5th, as to the great question of maintenance during the period while the "educating" is going on? The poor have to be fed, and clothed, and lodged, or they cannot be educated.

It seems to me, that there is no certainty as to what the testator had in his mind, in these respects. There is nothing by which, we can at all determine what his scheme was.

When this is so, ought the testamentary disposition to be held good? Executing such a disposition must be all blind guess work, so far as the intention of the testator is concerned.

No case sanctioning a disposition so uncertain as this was cited. The Girard will case comes the nearest to doing so, but in that case, the disposition uncertain as it was, was certainty itself, as compared with the disposition in this case, See sections, 3, 4, 5, 6, 7, 9, of the XXI item of Girard's will 2 How. 131.

I think, then, that these two items in the will, are void for being uncertain in the respects above indicated.

The items, are, I think, obnoxious to other objections, but I content myself with mentioning this one.

MCDONALD, J. dissenting.

McLeod, et al. vs. The Savannah, Albany and Gulf R. R. Co.

RICHARD H. MCLEOD et al., plaintiffs in error, vs. THE SAVANNAH, ALBANY AND GULF RAILROAD COMPANY, defendants in error.

The Legislature, in 1806, authorized Joseph Hill to erect a toll bridge across the Great Ogechee, at a particular place; and the Act provides that it shall not be lawful for any one to erect any other bridge within five miles above or below. The toll bridge was built, and has been kept up ever since. In 1847 and 1851, the Legislature authorized the construction of a railway across the same river, between Savannah and Albany, which would necessarily cross near the first bridge, and which was actually carried across, within a mile and a half below the same. Held, That the franchise granted to the Railroad Company was not the same as that conferred on the first grantee, nor so similar as to be deemed an infringement upon the prior charter, in the sense in which a new bridge or ferry interferes with one previously established at the same point; and that no injunction will be granted, nor compensation decreed, by way of damages in such case.

In Equity, from Chatham county. Decided by Judge FLEMING, January Term, 1857.

Richard H. McLeod and William F. Law, trustees of Sarah E. King, and William King, the husband of the said Sarah E. King, and others, filed their bill of complaint against the Savannah, Albany and Gulf Railroad Company.

To this bill of complaint the defendants filed a general demurrer.

After argument, the Court below gave the following decision, in which will be found a statement of the facts of the

case:

In 1806 the Legislature of Georgia granted to Joseph Hill, his heirs and assigns, the right to build a toll bridge across the Great Ogechee at a designated place. The fifth section of this act provides "that it shall not be lawful for any person or persons, at any time or times, to build any bridge or keep any ferry on the river Great Ogechee, within five miles either above or below the said bridge, which is hereby exclusively vested in the said Joseph Hill, his heirs and assigns." The above fifth section contains the obligation of the public entered into through the Legislature, to Joseph Hill, his heirs and assigns. The consideration of this ob

McLeod et al. vs. The Savannah, Albany and Gulf R. R. Co. ligation is, "that the said Joseph Hill, his heirs or assigns, shall erect the said bridge in a complete and substantial manner, at least sixteen feet in width, and capable of sustaining and passing over all carriages in common use, within three years from the date of the Act, and rebuild the same when necessary, and keep the said bridge in good and sufficient repair forever." They fix the tolls he is to receive by saying, that they shall be the same as are provided for in the Act of 1790 to Wade Hampton and James Green. In that Act the tolls are particularly specified for "loaded wagons and other four wheeled carriages, for empty carts and days, for a man and horse, for foot passengers, for black cattle, for hogs sheep and goats, for rolling hogsheads drawn by hoses." From this it necessarily follows that the bridge to be erected by Hill was to be capable of sustaining and passing over, not only all carriages in common use, but also horses, foot passengers, black cattle, hogs, sheep, goats and rolling hogsheads. The above, then, is the obligation of Hill to the public, the consideration of which is the exclusive privilege granted to him. The bill alleges and the demurrer admits, that Hill and his assigns have fulfilled their part of this contract, they are therefore entitled to all the rights, privileges and emoluments granted in the charter. The only question is, whether the bridge constructed by the defendant infringes upon those rights and privileges, and thereby takes away, or destroys, or depreciates the value of those emoluments. I say thereby, because although subsequent legislation may impair or destroy the value of a franchise, previously granted, yet if the subsequent legislation does not violate the exclusive privilege previously granted, the party has no right to complain. For the party to have a right to redress, the subsequent legislation must have been prohibited by the first. This I understand to be now the settled doctrine of this country, and I also understand that this is admitted by the counsel for complainants.

McLeod et al. vs. The Savannah, Albany and Gulf R. R. Co.

But to return: The question for my decision is, whether the bridge constructed by defendant is a violation of the exclusive privilege of the complainants. I enter upon the consideration of this question with great diffidence, not only because of its intrinsic difficulty, but because the few decisions to which I have been referred in the argument, are inconsistent with each other. Acknowledging my indebtedness to the very able argument of counsel on both sides, I proceed to the consideration of the question before me.

In the case of McLeod and others vs. Burroughs, the Supreme Court of Georgia say: "The Act of 1806 is a contract between the grantee, Hill, and the Legislature; both parties are bound by its stipulations; what its meaning is, is for the Courts to determine. The grantee proceeds to invest under it according to his understanding of its provisions. He does so at the peril of a different construction by the Courts; they can only act when a case is made." The case is now made, and the duty is upon me to construe this contract between Hill and the Legislature.

One principle and an important principle in the construction of this contract between Hill and the public, is stated by the Supreme Court in the case from which the above quotation is made, and in which case this very charter to Hill was before the Court. They say: The exclusive privilege (meaning the exclusive privilege to Hill) "is in derogation of a common right, and the act which confers it must be strictly construed." By strict construction I understand that nothing is to be considered as granted which is not expressly granted; in other words, nothing is to be considered as granted by implication. What then is expressly granted to Hill in this charter? The exclusive privilege is expressly granted him of erecting and keeping a bridge across the Great Ogechee, for the passing over of all carriages in common use, for the passing over of horses, foot passengers, cattle, hogs, sheep, goats and rolling hogsheads. Now a railroad bridge constructed for the purpose and the exclusive purpose of sus

McLeod et al. vs. The Savannah, Albany and Gulf R. R. Co. taining and passing railroad cars, is not a bridge capable of sustaining and passing carriages in common use, or any other article or thing for which Hill is entitled under his charter to charge toll, with the single exception of foot passengers. [Passengers in carriages are not liable to pay toll, they only pay for the carriages in which they pass.] Railroad bridges are incapable, not because they want strength, but because they are not so constructed as to permit the passing of anything but railroad cars. Foot passengers may get over, though not very safely, and the railroad is bound to prevent it or respond in damages. The question of damages from this cause, however, is not before me, the bill having made no charges or allegation as to this matter. To construe the exclusive privilege of Hill as extending to a railroad bridge, constructed for the exclusive purpose of passing their cars, you must resort to implication; you cannot find it expressed in the words of the grant. The moment you extend it to such a bridge, you violate the principle of strict construction, which the Supreme Court say, "is the rule for construing this charter-it being in derogation of a common right."

so.

Again: This charter is a contract between Hill and the public. The obligation of the one is the consideration for the obligation of the other. Precisely, then, where the obligation of the one stops, the obligation of the other stops alThe obligation of each is a safe and just rule for measuring the obligation of the other. Now I ask, is Hill under his charter bound to furnish a bridge capable of sustaining and passing railroad cars? [Let it be remembered that five miles is not the exclusive privilege, but the limits within which the exclusive privilege is to be exercised.] If the Legislature in granting to the defendant the authority to build this bridge, violated the exclusive privilege of Hill, it must be because Hill's charter granted to him the exclusive privilege of building it. The privilege and the obligation of Hill are coextensive-they go hand in hand, and where his privilege stops, his obligation stops, and where his obligation