Attorney General v. Manistee River Improvement Co.
| Decision Date | 11 February 1880 |
| Citation | 4 N.W. 483,42 Mich. 628 |
| Court | Michigan Supreme Court |
| Parties | ATTORNEY GENERAL ex rel. BENJAMIN v. THE MANISTEE RIVER IMPROVEMENT COMPANY. |
Chapter 85, Comp.Laws, authorizing the formation of corporations for the purpose of improving the navigation of rivers is not in conflict with the constitution, or the ordinance of 1787 declaring navigable streams common highways and forever free and the state may properly authorize the formation of corporations to improve navigable streams, and to collect tolls for the use of the improvements. It cannot be said that, as a matter of law, cutting through an obstruction is not a deepening of the channel of a navigable stream, or that confining the water within the channel will not have the same effect. The fixing and establishment by the board of control of tolls to be collected for the use of improvements in a navigable stream is not a judicial act, and such board may obtain its information upon which it acts by personal observation of its members, or otherwise, as it deems proper. The statute authorizing such board to fix and establish such tolls is valid, and their administrative acts cannot be reviewed.
Quo warranto.
Hughes, O'Brien & Smiley, for relator.
B.M Cutcheon and Benton Hanchett, for respondent.
The purpose of the information in this case is to test the right of the respondent to exercise the franchise of taking tolls from persons using certain portions of the Manistee water in running, rafting or floating logs or timber down said river. The information is general, and charges usurpation of the franchise in question. The respondent filed a plea setting up the following facts:
That the respondent is a corporation, organized under and in pursuance of an act of the legislature of the state, entitled "An act to authorize the formation of corporations for the purpose of improving the navigation of rivers," approved April 5, 1869, (Comp.Laws, c. 85,) the incorporation having been perfected April 4, 1870, by proceedings which are set forth at length.
That after its organization respondent prepared a map of the section of the Manistee river, the navigation of which respondent proposed to improve, and a plan for the improvement of the same, which showed and set forth the several points in said stream where improvements were proposed to be made by respondent, and presented the same to the then governor and attorney general of the state, and said improvement was in writing assented to by them.
That afterwards, on July 6, 1870, respondent submitted the map and plan to the board of control of the St Mary's ship canal, at a meeting of said board then held whereupon said board examined the map and plan, and were then and there of opinion that the construction of the proposed improvement would be a public benefit, and that respondent was a proper company to make such improvement, and did approve of said map and plan, and did assent to the construction of said proposed improvement, and indorsed upon the map and plan their approval thereof and their assent to the proposed improvement, and then and there fixed the time within which the improvement should be completed to be on or before December 31, 1874.
That said proposed improvement consisted in deepening the channel of the Manistee river by removing obstructions from the river by cutting channels through twenty-two several places in said river, designated as jams, and numbered consecutively on said plan from one to twenty-two, both inclusive, by confining the waters of the river within the channel at the points designated on the plan and in constructing two dams upon said river at places designated.
That afterward the board of control, on good cause shown, from time to time extended the time for the completion of said improvement to the thirty-first day of December, 1882, the first extension of the time being made September 16, 1873.
That the board of control afterwards consented to the alteration of the plan so as to dispense with one of the proposed dams.
That in the years 1870 to 1876, inclusive, the respondent completed the improvement with the exception of the construction of the dam, beginning at the point lowest down the river and advancing up stream, and completing the work as it went forward.
That a portion of the work was completed to the satisfaction of the board of control in the year 1871, and was in the opinion of said board useful, and the said board was of opinion that tolls should be paid for the use of such portion, and thereupon on February 26, 1872, the board fixed and determined the tolls to be paid for the use thereof upon the logs which should be put into and run upon such portion of said stream.
Other portions of said work were also completed in like manner subsequently and from year to year, until the entire of said improvement except the dam had been completed, and the portion of said work so completed from time to time was completed to the satisfaction of the board, and was in the opinion of the board useful, and in their opinion tolls ought to be paid for the use thereof, and tolls were from year to year, and in each of the years from 1872 to 1878, fixed by said board of control for said years for that portion of the work completed to such times respectively upon the logs put in and run upon such portion, and such tolls have been accordingly and in pursuance of such action of said board collected by respondent. And said improvement completed as aforesaid was, on the twenty-sixth day of February, 1879, adjudged and determined by said board to be completed, and the same was by said board accepted; and the said board also then determined that in the opinion of the board such improvement is useful, and that tolls should be paid for the use thereof, and afterwards and on April 11, 1879, the said board fixed the tolls which should be paid for the use of such improvement for the ensuing year upon logs put into and run upon that portion of said river which was improved as aforesaid, whereby said respondent has the right to collect such tolls.
To this plea a general demurrer was interposed, and in support of this it is insisted--First, that the statute under which the respondent claims to be incorporated is invalid; and, second, that, if valid, the plea shows no such compliance with its provisions by the respondent as authorizes the imposition of tolls.
1. The first objection to the statute is that it is in conflict with that article of compact in the ordinance of 1787 which provides that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other states that may be admitted into the confederacy, without any tax, duty, or impost therefor." These articles were expressly declared to be perpetual, and the constitution of the state recognizes the right secured in the provision that Const. art. 18, � 4.
It is conceded that a legislative act in violation of the true intent of the constitutional provision would be invalid. It is also conceded that the article copied from the ordinance of 1787 was intended to give permanent and individual rights, and that whether superseded by the constitution of the state or left according to the terms of the ordinance as a "perpetual compact," is not matter of importance in this case, since either by the ordinance or by the constitution the use of the navigable streams of the state is free to all the people. The important question is what is meant by free navigation, and whether the taking of tolls for the use of improvements is a violation of the compact or of the constitution in the true intent and meaning of either.
It cannot be seriously contended that the interest of the ordinance of 1787 was that the navigable streams of the North-west territory should remain forever unimproved, in order that they might be freely navigated in their natural condition and not otherwise. Such a construction would make the compact a curse rather than a blessing, and while preserving the natural highways would perpetuate a state of things which must eventuate at length in their use being superseded by improved conveniences; but, as the compact was made for the perpetual advantage of the people, we must suppose that there was no purpose to limit this advantage to a minimum, or to preclude either the territorial legislature or the new states which should come into the Union from increasing the benefits of the compact by improving the highways the ordinance secured, so as to make them accomplish their purposes as avenues of trade and commerce for all time.
In other words, the...
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