Carroll v. Campbell

Decision Date06 June 1892
PartiesCarroll v. Campbell et al., Appellants
CourtMissouri Supreme Court

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 States, 5 Blatch. 198; United States v. The James Morrison, 1 Nemb. 241, 257; People v. Babcock, 11 Wend. 506; People v. T. R. Co., 19 Wend. 113; Bridge Co. v. Geisse, 38 N. J. L. 39, 580; Ferry Co. v. East St. Louis, 102 Ill. 560; Chilvers v. People, 11 Mich. 43; Jones v. Fanning, Morris (Iowa) 348; Waterbury v. Laredo, 68 Tex. 565; Marshall v. Grimes, 48 Miss. 27; St. Louis v. Turnpike Co., 14 Mo.App. 216; Madison v. Abbott, 118 Ind. 337; Ferry Co. v. Penn, 114 U.S. 196; Campbell v. Cramer, 96 Mo. 75. (6) The testimony produced at the trial showed an amount of damage from loss of trade alone largely in excess of that found by the jury; that the verdict of the jury was moderate and free from prejudice, and was for the right party. This court has repeatedly held that it would not disturb a verdict for the right party for erroneous instructions that worked no harm, or where the instructions asked for by appellant were faulty, or inaccurate in expression, or for harmless error. Keen v. Schnedler, 92 Mo. 516; Pritchard v. Hewitt, 91 Mo. 547; Fitzgerald v. Barker, 96 Mo. 661.

OPINION

In Banc.

Brace J.

By an act of the general assembly, approved March 29, 1872 (Sess. Acts, p. 328) "exclusive power and right" was granted to the city of Cape Girardeau by ordinance to "regulate, tax and license all ferries within the limits of the city."

In pursuance of such grant of power, the city, by an ordinance which went into effect on the first of May, 1882, prohibited all persons "from operating a ferry within the city limits without a license, under a penalty of not less than $ 5, nor more than $ 50 for every day such ferry may be kept without a license." On the fourteenth of September, 1885, ordinance number 411 was duly enacted by the mayor and council of said city as the same appears in State ex rel. Campbell v. Cramer, 96 Mo. 75, 8 S.W. 788. The following sections of which it is only necessary to set out for the proper understanding of this opinion.

"Sec. 1. That, except as hereinafter set out and specially reserved and excepted, an exclusive ferry franchise for the sole purpose of keeping, running and maintaining a steam ferry over and across the Mississippi river, within the jurisdictional limits of the city of Cape Girardeau, and a strip of land on the Illinois shore, opposite the said city, and not extending beyond the line of the limits of the city aforesaid, along the bank of the Mississippi river, be, and the same is hereby, granted to Richard Carroll, of the city of Cape Girardeau, and the state of Missouri, for the term of ten years from the fourteenth day of September, 1885, said grant being in all things subject to the requirements of this and existing ordinances."

"Sec. 3. That said Richard Carroll shall pay to the city of Cape Girardeau the sum of $ 50 for each period of six months, during the existence of said term of ten years, and a license shall be issued in due form signed by the mayor and countersigned by the city register, for each six months as aforesaid, but no such license shall issue until the bond required by ordinance number 369, being an ordinance entitled 'an ordinance regulating ferries,' approved April 29, 1882, shall have been approved by the mayor. And the acceptance of the first license herein by said Carroll shall be deemed an acceptance, and an agreement thereto, of all in this ordinance set out and required.

"Sec. 4. The franchise herein granted and authorized shall not be transferable without the consent of the mayor and council thereto."

In pursuance of said ordinance, on the same day, there was issued to the said Richard Carroll, the plaintiff in this action, the following license:

"Know All Men by These Presents: That I, George H. Cramer mayor of the city of Cape Girardeau, in the state of Missouri, by virtue and authority of an ordinance entitled 'An ordinance granting a ferry franchise to Richard Carroll,' approved September 24, 1885, do by these presents grant and confer upon Richard Carroll the exclusive right and franchise of keeping, running...

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