Carroll v. Campbell

• Decision Date: 03 May 1887
• Parties: RICHARD CARROLL, Appellant, v. JAMES T. CAMPBELL ET AL., Respondents.
• Court: Missouri Court of Appeals

25 Mo.App. 630

RICHARD CARROLL, Appellant, v. JAMES T. CAMPBELL ET AL., Respondents.

Court of Appeals of Missouri, St. Louis.

May 3, 1887

APPEAL from the Madison County Circuit Court, JAMES D. FOX, Judge.

Reversed and a decree entered.

J. B DENNIS, with whom are DYER, LEE & ELLIS, for the appellant The General Assembly of Missouri may grant an exclusive ferry franchise. Challiss v. Davis, 56 Mo. 25; Alexandria Ferry Co. v. Wisch, 73 Mo. 655; Harrison v. The State, 9 Mo. 530. And this power may be conferred upon, and exercised by, municipal corporations. Minturn v. Larue, 23 How. (U. S.) 335. " The power of the legislature to grant the right to maintain a ferry across the Mississippi river is not affected by the ordinance of 1787, or the power of congress to regulate navigation." Fanning v. Gregoire, 16 How. (U S.) 534; Ciapella v. Brown, 14 La. 189 (amended) ; Marshall v. Grimes, 41 Miss. 27. Interruptions in the enjoyment of a ferry franchise are a nuisance, which may be abated by injunction, by one having the legal franchise. Collins v. Ewing, 51 Ala. 101; Newburg Turnpike Co. v. Miller, 5 Johns. Ch. 107; Midland, etc. v. Wilson, 28 N.J.Eq. 537; McRoberts v. Washburn, 10 Minn. 23; East Hartford v. Hartford, etc., 16 Conn. 171; Long v. Beard, 3 Murph. (N. C.) 57; Walker v. Armstrong, 2 Kans. 198, 219. The right to grant a license implies the power to refuse it. St. Louis v. Waterloo-Carondelet Co., 14 Mo.App. 220.

FRANK E. BURROUGH, for the respondents: The court of appeals has no jurisdiction of this cause. Const., art. 6, sect. 12. The grant of an exclusive power to license does not confer the power to grant an exclusive license. Fanning v. Gregoire, 16 Howard, 524; Chicago v. Rumpff, 45 Ill. 90; Logan & Sons v. Pyne, 43 Iowa 524; Burlington & Henderson Ferry Co. v. Davis, 30 Am. Rep. (48 Iowa 133) 390. The word " exclusive" operates to exclude or shut out the power of the state and county over the same subject. That is its only force. The State v. Harper, 58 Mo. 530; The State v. Sherman, 50 Mo. 265; Harrison v. The State, 9 Mo. 526. The power can not be derived from the words " regulate and tax." Those words can not be construed to mean suppression or prohibition. They imply, necessarily, the continued existence of the thing regulated and taxed. The State v. Clark, 54 Mo. 17, 33, 34. The fact that the defendants have no license does not entitle the plaintiff to injunctive relief, unless the plaintiff has an exclusive license. 3 Wait's Actions and Defences, 726; Conway v. Taylor's Executors, 1 Black (U. S.) 634; Butt v. Colbert, 24 Tex. 355; McEwen v. Taylor, 4 Greene (Iowa) 532.

GEO. D. REYNOLDS, for the respondents: This court has no jurisdiction of this cause. Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196. An appeal does not lie from an order dissolving a temporary injunction. Tanner v. Irwin, 1 Mo. 65; Johnson v. Board of Education, 65 Mo. 47; Witthaus v. Bank, 18 Mo.App. 181; see, also, Verden v. Coleman, 18 How. 86.

OPINION

LEWIS P. J.

The petition shows that the city of Cape Girardeau is a municipal corporation, duly incorporated under an amendatory act of the General Assembly, approved March 29, 1872, which gives to the said city " exclusive power and right to regulate, tax, and license all ferries within its limits" ; that, on or about September 14, 1885, the mayor and council granted to the plaintiff an exclusive ferry franchise and license " for the sole purpose of keeping, running, and operating a steam ferry boat over and across the Mississippi river, within the jurisdictional limits of the city of Cape Girardeau, Missouri, and a strip of land on the Illinois shore, opposite said city," for a term of ten years; that the ordinance granting said exclusive franchise contained certain conditions, all of which were fully complied with and performed by the plaintiff; that a license issued by the mayor, under said ordinance, was renewed on March 15, 1886, and is now in force; that the plaintiff was, and is, allowed thereby to charge, and receive as toll, certain rates for transporting persons and freight across the river, but his said privilege is rendered useless and void by the wrongs and injuries of which he complains. Similar averments are made with regard to a license and franchise granted to the plaintiff for like purposes, by the proper authorities in the state of Illinois, opposite to the city of Cape Girardeau; that, after the plaintiff had become so invested with the rights and privileges mentioned, the defendants made application to the mayor and council for a ferrying license, but their application was denied; that, notwithstanding said denial, and the exclusive rights of the plaintiff, the defendants have established a steam ferry within the jurisdictional limits of said city, and within the space to which the plaintiff has the sole and exclusive right, as ferryman, and have been doing, are still doing, and threaten to continue to do, a ferrying business, at the said locality, to the plaintiff's great and irreparable damage. The plaintiff prays for a temporary injunction, restraining the defendants from further operating their said ferry, and that, upon a final hearing, the injunction be made perpetual. A temporary injunction was granted, and there was a change of venue from Cape Girardeau to Madison county.

The answer denies that the plaintiff has the exclusive ferry privilege claimed, or that the city of Cape Girardeau had any power to grant the same; admits that the defendants have been doing a ferry business, as charged, and avers that they had a right so to do, under the law and constitutions of the United States and the state of Missouri. It is further averred that the ordinance relied on by the plaintiff is null and void because it attempts to operate a monopoly and an exclusive franchise, and so violates the constitution of Missouri, and that it violates the constitution of the United States, in that it...