Sec 1064

We have already seen that the question whether engagements restricting trade are to be regarded as contracts depends upon public policy.2 The same distinctions are applicable to grants of exclusive privileges. It is true that it has been ruled by the supreme court of the United States that a condition in a bridge charter providing that it shall not be lawful to build another bridge within the range of two miles, is a contract the state cannot recall.3 But it may be replied that this decision rests on a petitio prineipii; since, if such an engagement is unduly restrictive of trade, it is not, on the reasoning above given,4 a contract, and hence is not within the scope of the limitation before us.5 On this distinction may be sustained the more recent rulings of the same court doubts as to the constitutionality of legislation annulling contracts for the buying up by middlemen of produce or other commodities.1 - It may be said that such legislation would be operative, if not as to antecedent, at least as to subsequent contracts. But this would not be true if the effect be materially to impair the liberty of contracting on the part of individuals. The question is one of police. If the bargain be to do an act in itself injurious to the health, or morals, or peace of the community, then it may be prohibited in harmony with the provision before us. But it cannot be prohibited merely because the state legislature, its object not being per se wrongful or prejudicial to the state, makes that object illegal.

Whether exclusive privileges are open to revision is a matter of public policy.

1 Supra, sec 666.

2 Supra, sec 430 et seq.

3 Binghamton Bridge in re, 3 Wall. 51; three judges dissenting.

4 Supra, sec 433.

5 See Beer Co. V. Mass., 97 U. S. 25; Central Corporation V. Lowell, 15 Gray, 106; English V. R. R., 32 Conn. 240; U. S. V. Great Falls Co., 21 Md. 119; Schurmeier V. R. R., 10 Minn. 82. - In Charles River Bridge V. Warren Bridge, 11 Pet. 420, it was held that a charter to a company for the building of a bridge over Charles River, giving it a right to take tolls for seventy years, did not give such a franchise as would make unconstitutional a subsequent charter to a new company to erect a bridge within a few rods of the Charles River Bridge, although this worked a great diminution of the income of the latter bridge. On this question the supreme court of Massachusetts was equally divided. S. C, 7 Pick. 344. See 3 Pars. on Cont. 536, citing as confirming the rule in 11 Pet. 420; West River Bridge V. Dix, 6 How. 532; White River Co. V. R. R., 21 Vt. 590; to the effect that it is within the power of a state legislature to prescribe restrictions, not in themselves unreasonable, on the charges of railroad corporations acting as common carriers under charters granted by the state.1 - Two extremes are to be noted on the question of legislative and judicial interference with contracts, whether contained in charters or in transactions between individual citizens. On the one side, a statute providing that all contracts shall be invalid, would unquestionably conflict with the constitution. On the other side, it could not be maintained that a statute providing that "contracts" (inaccurate as the term in such a case might be) to do an illegal act would be invalid, since a bargain to do an illegal act is not a contract,2 and hence not within the protection of the limitation. The same criticism may be made as to statutes providing that "contracts" by persons decreed to be insane or spendthrifts, shall not be valid; it would be a petitio principii to declare such bargains "contracts," since the question at issue is whether such persons are capable of contracting. - Between these extremes lie a series of intermediate cases, in which bargains have been declared inoperative as against the policy of the law.3 How far statutes and decisions which abrogate contracts in cases of this class are in conflict with the limitation of the constitution, is a question which must be determined on the distinctive merits of each particular case. There can be no doubt, for instance, that statutes making invalid contracts for the sale of intoxicating liquors are constitutional.4 On the other hand, there may be serious.

Mohawk Bridge V. R. R., 6 Paige, 554; Thompson V. R. R., 3 Sandf. Ch. 625; Tuckahoe Canal Co. V. Tuckahoe R. R., 11 Leigh, 42; Harrison V. Young, 9 Ga. 359. Though see distinction by-Curtis, J., in Richmond R. R. V. Louisa R. R., 13 How. 71.

1 Munn V. Illinois, 94 U. B. 113; Chicago, etc. R. R. V. Iowa, 94 U. S. 155; Peik V. R. R., 6 Biss. 177; 94 U. S. 164; Chicago, etc. R. R. V. Ackley, 94 U. S. 179; Winona, etc. R. R. V. Blake, 19 Minn. 434; 94 U. S. 180; Stone V. Wisconsin, 94 U. S. 181;.

Union Pacific R. R. V. U. S., 99 U. S. 700, 719. That in matters of police the promotion of the general welfare of the community justifies the modifying of a grant, see Phalen V. Virginia, 8 How. 163; Beer Company V. Massachusetts, 97 U. S. 25; Vanderbilt V. Adams, 7 Cow. 349; Hirn V. Ohio, 1 Oh. St. 15; Pierce on Railroads, 468-9.

2 Supra, sec 335 et seq.

3 Supra, sec 414, 430, 442 et seq.

4 Beer Company V. Massachusetts, 97 U. S. 25.