19 S.W. 809 (Mo. 1892), Carroll v. Campbell

Citation:19 S.W. 809, 110 Mo. 557
Opinion Judge:Brace, J.
Party Name:Carroll v. Campbell et al., Appellants
Attorney:G. D. Reynolds for appellants. J. B. Dennis for respondent.
Case Date:June 06, 1892
Court:Supreme Court of Missouri
 
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Page 809

19 S.W. 809 (Mo. 1892)

110 Mo. 557

Carroll

v.

Campbell et al., Appellants

Supreme Court of Missouri

June 6, 1892

Appeal from Cape Girardeau Court of Common Pleas. Hon. Maurice Cramer, Judge.

Reversed and remanded.

G. D. Reynolds for appellants.

(1) Section 1 of chapter 369 of the ordinance of the city of Cape Girardeau makes the running of a ferry without a license a misdemeanor, and punishes the party who violates it by a fine. This is an exclusive remedy. Respondent's only remedy at law is under the ordinance, which here takes the place of a statute, and is the statute. (2) Instructions 1 and 2 given for respondent stated the measure of damages incorrectly. Respondent has no right to make appellants liable for tolls on freight and passengers carried from the Illinois side. (3) Instruction, numbered 1, asked by appellants, to the effect that the grant to respondent of an exclusive license to ferry across the Mississippi river from the Missouri to the Illinois shore was a violation of section 8, article 1, of the constitution of the United States, should have been given, and the testimony offered by appellants that their boat was a duly licensed vessel of the United States, employed and engaged in doing a carrying trade over the Mississippi river between two states should not have been rejected, as, if proven, it gave to the appellants a right under the constitution and laws of the United States which no court or municipal body can divest them of. (4) The ordinance in question violates clauses 3 and 18, of section 8, of article 1, and clause 5, section 9, of article 1, of the United States constitution. Ferry Co. v. Pennsylvania, 114 U.S. 196. (5) It has been decided by this court that the ordinance in question, in so far as it attempts to give an exclusive license, is void. Carroll v. Campbell, 108 Mo. 550. Therefore, instructions, numbered 2, 3, 4, asked by appellants, should have been given. (6) The court should have allowed the amendment to the answer, rendered necessary by the discovery at the trial, that during the whole period sued for respondent Carroll did not own the boat alone, but that he and one Brown were equal partners in conducting the ferry business; such an amendment was in favor of justice. Even without the amendment, the above facts appear, by appellants' own evidence, unobjected to, and instructions, numbered 5, 9 and 10, should have been given. (7) It was error for the court not to have checked counsel for respondent in his remarks about one of the appellants. (8) The jury had no competent evidence before them on which to base any finding or calculation of damages. (9) The motions for a new trial and in arrest should have been sustained.

J. B. Dennis for respondent.

(1) Appellants contend that, inasmuch as the state of Missouri has delegated to the city of Cape Girardeau "the exclusive right to regulate, tax and license ferries," etc., plaintiff's only remedy for a trespass on his ferry franchise is to proceed under the city ordinances, and cites section 1, ordinance 369, of said city as the only remedy provided by it for the injuries complained of. If the city council had the exclusive right to provide a remedy for damages in such cases, it has not done so, and it is evident that section 1, ordinance 369, was only intended to prescribe the penalty to be inflicted on those operating a ferry without a license to be recovered in the recorder's court for the benefit of the city; but the failure of the city to provide a remedy ought not defeat plaintiff's right to recover in some other action. Rule of Dwarris' Maxims (Potter's Dwarris, p. 123) says: "When statutes are made, there are some things which are exempted and fore-prized out of the provisions thereof by the law of reason, though not expressly mentioned; thus, things for necessity's sake, or to prevent a failure of justice, are excepted out of statutes." (2) At common law, the owner of a ferry has a right of action, for an invasion of his ferry franchise. 3 Wait's Actions & Defenses, p. 354, sec. 12; p. 347, sec. 4; Vol. 2, p. 108. (3) Plaintiff was entitled to recover all the damages sustained by him from the wrongful and malicious acts of defendants. First. Because the tort was a transitory cause of action, which might be recovered in the state where all the parties resided. Second. Because this court has held that in civil actions the jurisdiction of the state of Missouri extends over the entire Mississippi river so far as it forms a boundary between it and the state of Illinois. Sanders v. Anchor Line Co., 77 Mo. 26; Gould on Waters [2 Ed.] sec. 35. (4) The instructions asked for by appellants seem to be so manifestly improper, irregular and inapplicable as not to merit comment. Mere abstract principles of law would be improperly given as instructions, and, though this court has decided that the city of Cape Girardeau could not grant an exclusive ferry franchise, it has also decided that Carroll had a ferry franchise, and that he could maintain an injunction on it against one who had none, and that for a violation of that ferry franchise Carroll was entitled to recover damages. Carroll v. Campbell, 108 Mo. 550. (5) "The power to establish and regulate ferries is subject to the control of the states, and not the general government; and in case of boundary rivers, like the Mississippi, a ferry franchise conferred by a single state is valid without the concurrent sanction either of congress or of the state upon the opposite side of the river, or the right of landing beyond the limits of the state, by which the grant is made." Gould on Waters [2 Ed.] sec. 35, p. 87, citing in addition to the above authorities: Hall v. DeCuir, 95 U.S. 485, 488; Ferry Co. v. United...

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