I concur in the opinion which hast just been announced by Judge Harrington. I concur in the reasoning, as well as in the conclusion to which it has conducted him, as to the several points embraced in that opinion. I have no doubt of the power of the legislature to authorize the obstruction and diversion of the navigation and flow of the White Clay creek, without providing for the assessment of damages to the owners of lands adjacent to it, who may be incidentally injured by such obstruction or diversion. It is conceded that the navigable parts of this stream lie entirely within the limits of the State of Delaware, and I consider that the power of the legislature to authorize the obstruction of such a water course, is settled by the decision of the Supreme Court of the U. S., *Page 409 in the case of Wilson vs. The Blackbird Creek Marsh Company,(2 Pet.Rep. 251.) The legislature having the power to authorize the obstruction of the navigation and flow of this creek without awarding damages to the owners of lands lying upon its borders, for consequential injuries resulting from it, and having authorized this company to obstruct the same in the mode prescribed by its charter and the supplement thereto, passed in 1837, without providing compensation for injuries of this nature, the company, in my opinion, has violated no private right, and was not liable to be sued for any such injury, provided it has erected and maintained the obstruction pursuant to the authority conferred upon it by the legislature. A consequential injury resulting from such a legal and authorized obstruction, is in the language of the books damnum absque injuria, which implies not only a loss without a remedy, but imports, in contemplation of law, a fictitious damage, which constitutes no cause of action whatever. If then the bridge was constructed and repaired by the company, in conformity with the provisions of its charter as originally granted and amended, the plaintiff in judgment of law, had no cause to complain of the obstruction, and had no right of action for any consequential injury resulting from it. This principle I conceive to be well established upon the authority and reasoning of Lansingvs. Smith and others, (8 Cowen 146,) and Hollistervs. The Union Company, (9 Conn. Rep. 436.)
But the counsel for the plaintiff has contended, that inasmuch as the legislature provided in the act incorporating the defendants, that the road should be constructed with the least possible injury to private property, they have transcended their authority and violated the terms of their charter, in erecting the bridge over White Clay creek, transversely across the current of the stream, and in constructing the embankments on either side of it, without culverts to vent the water from above in the event of an inundation. But without stopping to determine the probable meaning of this general and indefinite provision, whether it includes remote and consequential injuries, or refers only to such as should be direct and immediate, it is sufficient to remark, that when the legislature comes to provide in a subsequent section of the charter, for the erection of bridges over this and other streams necessary to be crossed in the line of the projected improvement, it imposes no such restrictions upon the company. On the contrary, when it proceeds to define with more certainty and precision, its meaning as to the mode of erecting the bridge over the White Clay creek, it simply requires in the first instance, *Page 410 that it should be built with a draw, without prescribing at what angle it should cross the stream, or how the embankments should be constructed. This view is also confirmed by the law of 1837, which authorized the conversion of this drawbridge into a permanent bridge; for in this act the legislature seems to have recognized that the bridge was originally constructed in conformity with the charter of the company, since it requires, in case of its destruction, that it shall be rebuilt at the same place, of the same dimensions, and of the same width between the piers as the bridge first erected. Were this then the only point in the case, I should be clearly of opinion, that the act of 1845 infringes the rights and powers conferred upon the defendants, and would consequently be null and void. The legislature having the power, as I have already shown, to authorize the erection of this bridge over the White Clay creek, without providing compensation for consequential injuries resulting from it, and having seen proper to confer that authority upon the defendants without any such restrictions and conditions, it could not by a subsequent act make the company liable against its consent, for any such injury, without impairing the obligation of the contract implied in the charter between the State and the corporators. It is admitted by the counsel for the plaintiff, that a legislative grant, or charter, is a contract within the meaning of the tenth section of the first article of the Constitution of the United States, and the point is too well settled at this day to be successfully controverted. It is equally settled, that the imposing of new conditions and restrictions, inconsistent with the terms of the original grant or charter, without the consent of the grantee, impairs the obligation of the contract. This the legislature cannot do without violating one of the wisest and most salutary prohibitions contained in the Federal Constitution. So far then as the act of 1845 purports to give redress to Samuel Bailey and others, for consequential injuries resulting from the legal and authorized acts of the company, I am of opinion it is unconstitutional and void, and not binding upon the defendants, as they have never assented to or accepted it.
But it is admitted in the case stated, that the bridge which was partially destroyed, and rebuilt in 1839, was not rebuilt in exact conformity with the act of 1837. It is conceded that the piers of the bridge, as they now stand, and have stood since that time, occupy four feet more of the stream than they occupied in 1837, and when the bridge was originally constructed. This contraction of the space between the piers in 1839, was an act unauthorized by the legislature; *Page 411 for, whatever may have been the original power of the company over this matter, they saw lit in 1837, to accept a supplement to their charter, prescribing the precise place and manner in which the bridge should be rebuilt, in the event of its destruction; and in accepting that supplement, they must be held to have assented to all the restrictions and limitations which it imposes upon them. One of these restrictions is, that in case the bridge shall be destroyed, it shall be rebuilt with the same width between the piers, as the bridge first erected. This restriction, it seems, was directly violated by the defendants in repairing the bridge in 1839, and if Samuel Bailey has sustained any consequential injury, peculiar and personal to himself, by reason of this contraction in the space between the piers, in my opinion, it was competent for the legislature in 1845, to provide a remedy for such an existing injury, or for any future injury of the same description resulting from this unauthorized and illegal obstruction. The injury, however, must be peculiar and personal to himself, and not such as has been sustained by him, in common with other citizens of the State, whose privilege of using and navigating the creek, has been abridged or impaired by reason of this contraction. Such an invasion of a general right, or common privilege, without authority of law, would constitute a public wrong, and not a personal injury; and would be punishable only by indictment, and not by a private action at the suit of any individual. So far, therefore, as the act of 1845 was intended to embrace, or may be legally construed to embrace, any peculiar injury which has heretofore resulted, or may hereafter result to the plaintiff personally, from this unauthorized obstruction of the stream, I think it is constitutional and binding upon the company; and that we are bound to give it such a construction. For such an injury, if any such has happened to the plaintiff, he had a complete and subsisting right of action from the moment the injury occurred, and whether the cause of action was barred or not at the time the act of 1845 was passed, I apprehend is not material, as, viewed in this aspect; it is an act operating upon the remedy only, and not upon the right of the plaintiff. It is not in the power of the legislature to create a cause of action by retrospective legislation; that is to say, it is not in its power to make that which was lawful when done, unlawful after it is done. But where the act was originally unlawful, and the cause of action has accrued, the legislature may, I apprehend, control the remedy, and extend as well as limit the time for prosecuting the suit. Contemplated in this light, the act of 1845 does affect or impair the obligation of any contract *Page 412 between the State and the defendants; or seek to deprive them of any right vested in them, or to supply the plaintiff with a right of action where none before existed. It is upon the ground that they act merely upon the remedy, and not upon the obligation of the contract, that the constitutionality of acts of limitation has been vindicated and established. I am no apologist for retro-active legislation; and I admire the provision, to be found in some of the State constitutions, which prohibits the passage of retrospective laws generally. As a legislator, I should be exceedingly reluctant to exercise the power in any instance, except where it had for its object the quieting of just and equitable titles, and terminating law suits, instead of opening a door to increased litigation. But when called upon in my present capacity, to decide upon the authority of the legislature to pass such a law operating upon the remedy merely, I am not at liberty to consult the policy of the act; and as I can find nothing either in the Federal or State constitution which prohibits it, I am bound to hold, that the legislature possesses that power. The legislature of this State, as well as of every other State in the Union, I believe, has passed laws for quieting titles, and confirming defective sales and conveyances, which certainly go much further towards divesting vested rights, than any thing to be found in the act now under consideration; and the power of the legislature to pass such retrospective laws, has been adjudged upon argument to be constitutional, on the ground that they affect and relate to, the remedy only. In Kent's Com. 155, the law on this point, is very clearly, and, I apprehend, correctly stated. The learned commentator remarks, that "a retrospective statute, affecting and changing vested rights, is very generally considered in this country, as founded on unconstitutional principles, and consequently inoperative and void. But this doctrine is not understood to apply to remedial statutes, which may be of a retrospective, nature, provided they do not impair contracts, or disturb absolute vested rights, and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects, and adding to the means of enforcing existing obligations." I have already shown that with this construction given to the law in question, which confines it in its operation to peculiar and special injuries, resulting from the unauthorized contraction of the space between the piers of the bridge in 1839, it impairs no contract between the State and the corporators; and it is equally certain, it disturbs no vested right of the company; since it can claim exemption from liability for such injuries, only upon the plea of the statute *Page 413 of limitation, which is purely remedial in its nature, and may be repealed at the will of the legislature. No person can ever acquire a vested right through a wrongful act, and by means of the statute of limitation, which will put it beyond the reach and control of the law-making power to change or alter it.
If then the act of 1845 be susceptible of such a construction as will reconcile it, either in whole or in part with the constitution, are we not bound to give it such a construction? I think we are upon the principle of magis valeat quant pereat, which applies in the construction of all statutes, as well as upon the authority of all the adjudged cases, which are numerous upon this point. A proper respect for the dignity of the legislature also requires that we should incline in favor of the validity of the act, unless it be clearly and unequivocally void. On this point we have in addition to the numerous authorities which have been cited on the part of the plaintiff, a decision of our own court to guide and direct us. In Jones vs. Wootten, (1 Harr. 77,) the court held, that where a statute is susceptible of two constructions, one of which will bring it in conflict, and the other harmonize it with the constitution, we are bound to give it the latter construction. But while I cordially subscribe to this doctrine, I have no doubt whatever of the power and authority of the court to declare an act of the legislature to be inoperative and void, where it clearly conflicts with the principles and provisions of our State constitution in any article, clause, or section of. it. Ours is a government of limited powers, with co-ordinate departments, neither of which can be called supreme when compared with the others. The judicial department is just as supreme in the exercise of its legitimate authority, as the legislative department. Each has its appropriate duties assigned it by the constitution; and, both must act in subordination to all of its provisions, and are sworn to support and maintain it, when entering upon the discharge of their respective functions. It is the business of the legislature to make law; it is the province of the court to expound and administer it; and in administering the law, it is as much bound to observe its oath to support the constitution as the legislature is in making it; a breach of the constitution by the one, would not justify or excuse a breach of the constitution by the other; for they must both act upon their own judgment and upon their own responsibility, independently of each other. In expounding the laws of the State, the court is as much bound to expound them with reference to the constitution, as with reference to each other; for the constitution is a part of the law of *Page 414 the State; and, as it is the supreme law, and the parent and arbiter of all the rest, the court must, of course, acknowledge its supremacy, and declare every act void, so far as it clearly conflicts with any one of its provisions. By the 1st sec. of the 6th art. of the amended constitution, it is provided that "the judicial power of this State shall be vested" in the several courts therein enumerated and provided for. Now what is the judicial power of this State? Certainly in it must be included the right and authority of the judges, to determine and decide every question of law, necessarily arising in the progress of a trial, of which the court has jurisdiction from the nature of the cause of action; for this is strictly and peculiarly a "judicial power." Every question of law, thus arising, is to be decided by the court, for that is the purpose for which it is created; while questions of fact are usually to be referred to a jury. Whenever, therefore, in the progress of a trial, a question arises as to the constitutionality of an act of the legislature, applying to the subject matter of the suit, it is a question of law, to be decided by the court, having jurisdiction of the case; for the whole judicial power of the State over the suit, is by the express words of the constitution, delegated to the court having the jurisdiction of it. The object of a written constitution, is in the first place, to establish a government; and, in the next place, to define and circumscribe its powers, so as to preserve the harmony of its parts, and to prevent encroachments upon the rights reserved to the people. No one will contend, I presume, that if the legislature should pass an unconstitutional act, the people of the State would be bound to obey it; and yet, if the power does not reside in the courts to pronounce it void, as it would be, it is difficult to conceive how the people could resist the wrong and re-assert the majesty of the constitution, without a resort to physical force, in case the legislature should refuse to repeal it. A convention would not necessarily cure the evil, since the defect would not be in the constitution, but in a power professing to act in obedience to it. Such a construction and assumption would subject the whole fabric of the government, constitution and all, to the authority and control of the legislature; and would leave the people without any immediate and legal redress against its usurpations of power. Did the men who framed, and the people who have assented to the constitution, intend this? And did they not, by vesting the judicial power of the State in the courts established under it, which are the rightful interpreters of the constitution as well as the laws, mean to erect a peaceful and ever open tribunal for the redress of such abuses *Page 415 whenever they may occur? Courts of justice are established to ad-minister the laws; and I have already shown that whenever a dispute arises as to the constitutionality of a law in the administration of it, it is a judicial question, to be decided by the court; and yet, if the court has not the power as is contended, to pass upon this question, let us see into what an awkward position, not to say, absurdity, it would lead us. By the 17th section of the second article of the constitution of this State, it is provided, that "no act of incorporation, except for the renewal of existing corporations, shall be hereafter enacted without the concurrence of two-thirds of each branch of the legislature," c. Suppose, for the sake of argument, the legislature were to pass an act of incorporation by less than a concurrence of two-thirds of each branch, say by a bare majority of both houses; and this fact should appear upon the journals. Suppose they were to order this act to be engrossed; to be signed by the speakers; and the same should be published as an authoritative act of the legislature. Suppose further, the persons obtaining this act were to proceed to organize a company under it; and should afterwards come into one of the courts of the State by their corporate name, to enforce the pretended rights conferred upon it; would any lawyer, or any man, contend that the court would be bound to recognize it as a lawful body politic, and thus lend its sanction to a flagrant and palpable violation of the constitution? Suppose the only fact put in Issue by the pleadings in such a suit, should be the legal existence of the corporation. This would be a question of law, to be determined by the court on an inspection of the journals, and by referring the matter to the constitution. Would the court be bound in a such a case, to shut its eyes to both, out of a feeling of blind and insane deference for an imaginary superiority of the legislative department, and overrule a plea sustained by the supreme and fundamental law of the State, and the formal record of the legislature? Such a question scarcely requires to be answered; for it is perfectly evident that no court which had a particle of respect for the constitution, or a single sentiment of regard for its own character, could ever consent to prostitute its powers, to give force and effect to such an absolute nullity of the legislature. To do this, the court and not the legislature, would have to make it a law. No law can execute itself; and as it came void from the hands of the legislature, it is manifest that the court would have to give it all the legal vitality which it possessed, by executing and enforcing it; and this would make it, in effect, rather the creature of the court, than of the legislature. *Page 416 But it is unnecessary to argue this question; for, independent of the reason and necessity of the principle, it is too well settled by the whole weight and current of authorities in its favor, to be seriously disputed.
I. do not consider the act in question objectionable on the ground relied upon in the argument, that it is an act of incorporation enacted by less than a concurrence of two-thirds of both branches of the legislature. What constitutes an act of incorporation within the meaning of this clause in the constitution, has long been a quere among gentlemen of the legal profession; but certainly it is not every amendment or supplement to the charter of a company, which will amount to an act of incorporation. Unless the act confers additional rights and franchises of a corporate nature; or confirms rights already existing in the company, there seems to be no reason for calling it an act of incorporation. What will constitute an act of incorporation, must depend, I apprehend, in every instance, upon the nature and quality of the act in question. But be this as it may, it is certain that the mere title of a law, can never make it an act of incorporation, for the simple reason, that the title is no part of the act, and has nothing to do with the interpretation or construction of it. Now strip the law of 1845 of its title, and who would ever think of calling it an act of incorporation? It has none of the qualities or characteristic features of such a law. It does not pretend to incorporate those whom it enables to sue; and so far as it relates to the defendants, it is in the broad construction contended for by the plaintiff, rather an act to unmake than to make a corporation.
Nor do I consider the act objectionable on the ground that it is partial in its application, and affords a, remedy, and mode of trial, unwarranted by the constitution, and the genius and spirit of our municipal regulations. It is not necessary that a law should be general, in order to be constitutional. Many of the laws which are passed at every session of the legislature, must from the very necessity of the case, be local and partial in their nature; and, to deny the legislature the right to pass such laws, would be to deprive it of one of its most useful powers of legislation at the present day. Besides, it is difficult to perceive how the defendants can contend for such a restriction, without invalidating their own charter; since an act to authorize them to erect a bridge over the White Clay creek, and to maintain suits for trespasses against it, is just as partial in its character, as an act to authorize those who live upon the banks of the stream, and have been aggrieved by the improper construction of *Page 417 the work, to maintain suits for injuries resulting from it. As to the last mentioned objection I have only to add, that the nature of the remedy, and the mode of trial, though somewhat novel in its application in the present instance, is not unknown to the laws and constitution of this State. The writ in the nature of a writ of ad quod damnum, has existed and been in use among us from an early period in our colonial government down to the present time. It has always been a remedy of special legislative grant, and seems to have been a favorite process with the legislature when about to authorize adverse proceedings against the property or possession of others. The legislature was in the habit of conferring it anterior to the adoption of the original and amended constitutions; and, as there is no restriction to be found in either instrument against it, we are bound to presume that the provision that "trial by jury shall be as heretofore," approves and justifies it. It was conferred upon the defendants by a provision of their charter, and upon the constitutional validity of it, depends their title to all the lands which they have found it necessary to condemn for the use of the company in this State.
Such are the conclusions to which I have arrived in relation to the several points of law which have been presented, and ably discussed, in the argument of this case. I think the law of 1845, in the broad sense contended for by the counsel for the plaintiff, is unconstitutional; in the limited construction and application which I have given it, I think it is not. If the plaintiff has sustained any peculiar and special injury in consequence of the contraction of the space between the piers of the bridge in 1839, I am of opinion that was a proper ground for the assessment of damages by the jury; but whether he has or has not, does not appear to the court. Neither the inquisition, nor the testimony taken upon it, shows this fact. Besides, it appears from the evidence accompanying the return, that the damages awarded to the plaintiff, were chiefly, if not solely, allowed for losses of which the plaintiff could not constitutionally complain; and, for these reasons, I am of opinion that the writ and the proceedings upon it should be set aside.