Johnson v. Crow et al.
| Decision Date | 27 May 1878 |
| Citation | 87 Pa. 184 |
| Court | Pennsylvania Supreme Court |
| Parties | Johnson <I>versus</I> Crow <I>et al.</I> |
Before AGNEW, C. J., MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ. SHARSWOOD, J., absent
Appeal from the Court of Common Pleas of Dauphin county: Of May Term 1878, No. 187. In Equity.
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J. W. Simonton and A. J. Herr, for appellant.—A grant of a ferry franchise, if exclusive in terms, is a contract on the part of the legislature making the grant, if accepted and acted upon, the obligation of which cannot be impaired by a subsequent grant to another person which would interfere with the original grant: Charles River Bridge v. Warren Bridge, 11 Pet. 420. The Acts of 1866 and 1867 are to be construed together, and are, as a whole, to be taken as the grant and contract in this case, the obligation of which it was not in the power of the legislature to impair by the Act of 1872, because of the clause in the Constitution of the United States prohibiting the passage of any law impairing the obligation of contracts: The Binghampton Bridge, 3 Wall. 51; Cooley's Const. Law 281, and cases there cited; The Easton Bank v. Commonwealth, 10 Barr 442; Humphreys v. Peques, 16 Wall. 244; Tomlinson v. Jessup, 15 Id. 454; Home of the Friendless v. Rouse, 8 Id. 430; Washington University v. Rouse, 8 Id. 439; Dartmouth College v. Woodward, 4 Wheat. 699. The legislature having granted to the appellant the right to the use of the river, within certain defined bounds, for a ferry, cannot grant, and have not title to grant, any right or use of the same river for the same purpose within the same defined limits. Not on the ground that there is any implied contract that the first grantee of the franchise shall have exclusive right within such limits as might affect the amount of tolls which he might receive, but on the principle that all the right and title which was in the state passed by the first grant: Fletcher v. Peck, 6 Cranch 87.
Eugene Snyder and W. A. Sponsler, for appellees.—The legislature could not grant to Kreamer the right to land on another man's property. Such a grant would be the taking of private property for private use: Chambers v. Furry, 1 Yeates 170; Cooper et al. v. Smith, 9 S. & R. 32; Chess v. Manown, 3 Watts 219; Conway v. Taylor's Executors, 1 Black 629. Two or more ferries may be granted between certain points on the same waters; Gates v. Anderson, 13 Ills. 413; Bush v. Peru Bridge Co., 3 Ind. 21; Fay et al., Petitioners, 15 Pick. 243; Fanning v. Gregoire, 16 How 524; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Turnpike Co. v. State, 3 Wall. 216; East Hartford v. Hartford Bridge Co., 16 How. 524.
Grants of exclusive privileges by the state are not favored, and can only be sustained on good considerations. The exclusive grant in the Act of 1867 was a mere gratuity, and had no consideration to support it. It was not a contract, therefore, and within the protection of the 10th section of the 1st article of the Constitution of the United States: Dartmouth College v. Woodward, supra; Rector of Christ Church v. Philadelphia, 24 How. 302; Tricker v. Ferguson, 22 Wall. 524; West Wisconsin Railroad v. Supervisors of Trempeleau County, 3 Otto 595; Providence Bank v. Billings, 4 Pet. 561; Easton Bank v. Commonwealth, supra.
The judgment of the Supreme Court was entered May 27th 1878, PER CURIAM.
The opinion of the learned judge of the Common Pleas sufficiently vindicates his conclusion. The great rivers of the Commonwealth are held as the common property of all the citizens of the state for public use. No presumption will arise that the legislature intends to part with any portion of the public domain, unless upon the most clear and express terms. A privilege to a private person to use the public right for his private gain, will not be deemed exclusive unless the intent of the legislature is perfectly clear. All these great rights are held in trust for the general good, and the representatives of the people must be deemed to be not guilty of a breach of this trust, or a dereliction of duty. Hence nothing less than a plain contract between the state and the individual for an adequate consideration...
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