McNeely v. Mayor and Board of Aldermen

• Decision Date: 31 March 1925
• Docket Number: No. 4485.,4485.
• Citation: 4 F.2d 899
• Parties: McNEELY v. MAYOR AND BOARD OF ALDERMEN OF CITY OF NATCHEZ.
• Court: U.S. Court of Appeals — Fifth Circuit

4 F.2d 899 (1925)

McNEELY v. MAYOR AND BOARD OF ALDERMEN OF CITY OF NATCHEZ.

No. 4485.

Circuit Court of Appeals, Fifth Circuit.

March 31, 1925.

L. T. Kennedy, of Natchez, Miss., and Hugh Tullis, of Vidalia, La., for appellant.

Luther A. Whittington and Wilmer Shields, both of Natchez, Miss., and J. B. Brunini, of Vicksburg, Miss., for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Appellant, S. B. McNeely, filed his bill, seeking interlocutory and final injunctions to prevent interference by the mayor and board of aldermen of the city of Natchez with his operation of a ferry on the Mississippi river between Natchez, Miss., and Vidalia, La. The case was heard on the application for the interlocutory injunction, and from an adverse ruling this appeal is prosecuted.

There is no dispute as to the material facts, which are these: McNeely is the owner of three ferryboats, and for something over 20 years has been operating a ferry between Natchez and Vidalia, for which privilege he paid a license fee to each town. He also owns real property suitable for ferry landings on the river front, both at Vidalia and Natchez, and the necessary floating landing stages. His contract with Natchez has expired, and there is some question as to whether his license from Vidalia has been forfeited; but that is immaterial, as the same argument applies to both towns.

In June, 1924, the city of Natchez adopted an ordinance providing for public ferries between the said two towns. The ordinance is rather lengthy, but may be thus epitomized: It prohibits the operation of a ferry from any other landing than that fixed in the ordinance, prescribes rates to be charged, schedules to be maintained, the size and character of boats to be employed, contemplates the granting of an exclusive privilege to operate the ferry for the term of 10 years, on payment of an annual fee of $2,000, and imposes a penalty of $30 a day on any one else operating a public ferry from the city of Natchez without a franchise from the mayor and the board of aldermen.

Appellant alleges that his property, used in the operation of his ferry, is worth over $100,000, and it is admitted that it is worth $60,000. It is also admitted that his annual revenue exceeds $5,000, and that he will be totally deprived of it if the ordinance is made effective. It is the contention of appellant that it is beyond the power of the city of Natchez to exact a license fee for the operation of a ferry, as it would be a direct and unreasonable burden upon interstate commerce, and, furthermore, that the ordinance, if made effective, would deprive him of his property without due process of law. Appellees concede that the operation of a ferry across the boundary stream between two states is interstate commerce, but...