Carroll v. Campbell

• Citation: 17 S.W. 884,108 Mo. 550
• Parties: Carroll, Appellant, v. Campbell et al
• Decision Date: 07 December 1891
• Court: United States State Supreme Court of Missouri

17 S.W. 884

108 Mo. 550

Carroll, Appellant, v. Campbell et al

Supreme Court of Missouri

December 7, 1891

Appeal from Madison Circuit Court. -- Hon. J. D. Fox, Judge.

Reversed and remanded.

J. B Dennis for appellant.

(1) The state of Missouri by an act, approved March 29, 1872, article 3, sections 39 and 45, delegated to the city of Cape Girardeau, Missouri, "the exclusive power and right to regulate, tax and license all ferries within the limits of the city," and to "exercise complete and perfect control over * * * the trade, commerce, etc., as the city may deem expedient." Acts, 1872, p. 328. This suit is bottomed upon the decision of this court in Challis v Davis, 56 Mo. 25. And the granting of exclusive ferry franchises has long been the settled policy of this state. Harrison v. State, 9 Mo. 526; Ferry Co. v Wisch, 73 Mo. 655; R. S. 1855, sec. 21, p. 784; R. S. 1865, sec. 21, p. 302; R. S. 1879, sec. 5692; City v. Ferry Co., 14 Mo.App. 216. When the crown or legislature aliens to a municipal corporation its whole power to establish and regulate ferries within its limits, the municipal body in respect to this legislation or public trust represents the sovereign power, and may make grants of ferry rights in as ample a manner as the sovereign. In Challis v. Davis, it is said, the legislature may grant an exclusive ferry franchise. Minturn v. Larue, 23 How. (U.S.) 335. In Conway v. Taylor's Ex'rs, 1 Black. (66 U.S.) 603, it was declared that the value of a ferry franchise is its exclusiveness. 6 American Jurist, p. 87; Gould on Waters, sec. 146; Tiedeman's Limitation of Police Power, p. 316, et seq. (2) It is not pretended that appellant is claiming any right by, through or under any act of the legislature which was passed subsequent to the adoption of the present constitution of Missouri. It appears from the record, and is conceded, that the charter of the city of Cape Girardeau was granted to it March 29, A. D. 1872, and whatever rights were conferred by that charter have not been repealed in express terms by the constitution of 1875, and are still in force. Van Brown v. Sheppard, 74 Mo. 310; City of Kansas v. Payne, 71 Mo. 159; State ex rel. v. Van Every, 75 Mo. 530; City v. Ferry Co., 14 Mo.App. 216. (3) But, whether appellant has an exclusive ferry franchise, by reason of the words of exclusion used in his license, or not, it is exclusive as long as the city refuses to grant a ferry franchise to defendants or other persons. And the city may and has lawfully refused to grant a ferry franchise to defendants. Campbell v. Cramer, 96 Mo. 75, which is the suit commenced by these defendants to compel the city to grant them a ferry franchise. Defendants would be liable, notwithstanding they may have applied for a ferry franchise. State v. Meyers, 63 Mo. 324. (4) "Interruptions in the enjoyment of a ferry franchise are a nuisance which may be abated by injunction by one having the legal franchise." Newport v. Taylor, 16 B. Mon. (Ky.) 779; Collins v. Ewing, 51 Ala. 101; Turnpike Co. v. Miller, 7 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 Kan. 198.

Frank E. Burroughs and G. D. Reynolds for respondents.

(1) The granting, refusing or dissolving a temporary injunction lies in the discretion of the court, and cannot be reviewed on appeal. Tanner v. Irwin, 1 Mo. 65; Johnson v. Board, 65 Mo. 47; Verden v. Coleman, 18 Howard, 86; Witthaus v. Bank, 18 Mo.App. 181; Buffington v. Harvey, 95 U.S. 99; Stores v. Franklin, 14 Wall. 15; High on Injunctions, sec. 891, ch. 20, p. 533; High on Injunctions [2 Ed.] ch. 33; Hoyt v. Gelston, 13 Johns. (N. Y.) 139. The only subject of review is the decree dismissing the bill. (2) The grant of an exclusive power to license does not confer the power to grant an exclusive license. Fanning v. Gregoire, 16 How. 524; Chicago v. Rumpff, 45 Ill. 99; Logan & Son v. Pyne, 43 Iowa 524. (3) 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. State v. Harper, 58 Mo. 530; State v. Sherman, 50 Mo. 265; Harrison v. State, 9 Mo. 526. (4) The power cannot be derived from the words, "regulate and tax." Those words cannot be construed to mean suppression or prohibition. They imply necessarily the continued existence of the thing regulated and taxed. State v. Clark, 54 Mo. 17, 33, 34. (5) In all cases where the legislature gave the city power to prohibit, suppress or restrain, that power is given in his verbis. Charter, art. 3, secs. 7, 8, 9, 10, 17, 19, 20, 22, 23; Acts, 1872, pp. 332-3. (6) The power to license, regulate and tax a vehicle, conveying goods and passengers into, and out of, a city cannot be given by the legislature. St. Charles v. Nolle, 51 Mo. 122. (7) The power claimed by the city is ultra vires, is a monopoly, is against the constitution of Missouri and public policy; and is, therefore, null and void. Const. of Mo., art. 6, sec. 35. That constitution is retroactive, as the city can have no vested right in a mere power, uncoupled with an interest; and plaintiff's right if any never attached until after the adoption of that constitution. Waller v. Everett, 52 Mo. 57; State ex rel. v. Straat, 41 Mo. 58. (8) The Mississippi river is a national, navigable stream, in which every American citizen has a right of way, and is under control of congress. U. S. Const., art. 1, sec. 8, clause 3; U. S. Const., art. 1, sec. 9, clause 6. (9) The power claimed by the city is against the letter and spirit of the federal constitution in that it attempts to regulate inter-state commerce. Gloucester Ferry Case, construing that constitution, is decisive of this cause. U. S. Const., art. 1, sec. 8, clause 3; Ferry Co. v. Pennsylvania, 114 U.S. 196. See, also, the opinion of the supreme court of the United States in case of Sabine Robins v. Taxing District, 120 U.S. 489. (10) An exclusive ferry franchise is an incorporeal hereditament and, hence, property. Where did the city get the power to create property? The words, "tax, regulate and license," cannot be distorted to mean create.

OPINION

IN BANC.

Gantt P. J.

Richard Carroll, in May, 1886, presented to the judge of the circuit court of Cape Girardeau county, at chambers and in vacation, a petition in which he alleged that he had been granted, by ordinance of the city council of Cape Girardeau, Missouri, an exclusive right to run and operate ferry boats 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 from September 14, 1885, for the purpose of transporting persons and property across the Mississippi river, upon condition that he pay the city a semi-annual tax of $ 50 from said date; that the ordinance required him to furnish a specified kind of boat; to put on other boats if business required it; to give bond for faithful performance of the duties of a ferryman, etc.; that he also holds a ferry license from the county board of Alexander county, Illinois, to use and operate a ferry boat from and within certain limits in east Cape Girardeau, in said county in Illinois, across the Mississippi river to the city of Cape Girardeau, Missouri, for a like term of ten years; that he had provided the boat, and was engaged in the business of ferrying persons and property across the river at and between the points designated; that he now has, and will continue to have for ten years from the date aforesaid, the sole and exclusive right to all tolls, etc., to be derived from doing a ferrying business within and for the jurisdictional limits of the city of Cape Girardeau, Missouri; that Campbell & Houck are partners in a kind of ferrying business, to be hereafter designated.

That, after license had been granted to Carroll, Campbell & Houck had applied to the mayor and council of Cape Girardeau for a ferrying license, and had been refused; that, after being refused a license, Campbell & Houck "had placed a little ten-horse-power steam ferry boat, of the capacity of three or four wagons, within the jurisdictional limits of said city, and within the space to which Carroll has the sole and exclusive right as ferryman," and have continued and are doing and threaten to continue to do ferrying business, crossing and ferrying a great many passengers and much freight from the jurisdictional limits of the city of Cape Girardeau, Missouri, across the Mississippi river to the state of Illinois; that the tolls, receipts, etc., at ordinary rates, amount to nearly or quite $ 1,000 per annum; that said acts of Campbell & Houck are unlawful, and are done without any sanction of Carroll; that they have by competition reduced tolls so much that Carroll for two months has been running at a daily loss of from $ 5 to $ 7; that damages to him are irreparable, unless Campbell & Houck are restrained, etc. Wherefore he prays an injunction restraining Campbell & Houck from doing a ferrying business, or transporting persons or freight, either or both, from the jurisdictional limits of the city of Cape Girardeau, Missouri, across the Mississippi river to Illinois.

The petition was heard ex parte at chambers, and a temporary injunction issued as prayed, plaintiff giving bond. At the return term, on motion and petition of defendants Campbell & Houck, the venue of the case was changed to Madison county, in the adjoining circuit. At the September term of the Madison circuit court the defendants answered. The answer, denying the claim of Carroll to an exclusive right, avers that Campbell & Houck are operating a ferry for conveying...