McRoberts v. Washburne

• Decision Date: 01 January 1865
• Citation: McRoberts v. Washburne, 10 Minn. 8 (Minn. 1865)
• Parties: THOMAS McROBERTS vs. W. D. WASHBURNE et al.
• Court: Minnesota Supreme Court

Page 8

10 Minn. 8

THOMAS McROBERTSvs.W. D. WASHBURNE et al.

Supreme Court of Minnesota.

Appeal from order of district court, Houston County.

The appeal was from an order allowing a temporary injunction to restrain the defendants from maintaining a ferry claimed by plaintiff to be an infringement of a prior exclusive right granted to him by the legislature.

H. R. Bigelow, for appellants.

Hugh Cameron, for respondent.

BERRY, J.

By an act of the territorial legislature, approved February 7, 1857, it is provided "that Thomas McRoberts his heirs, executors, administrators, or assigns, shall have the exclusive right and privilege of keeping and maintaining a ferry across the Mississippi River, at a point near the Mississippi avenue in the village of La Crescent, for the period of fifteen years, and no ferry shall be established within one mile and a half below or above said point."Laws 1857, p. 268-9.Sections 2, 3,4,5,6, are not here important.Section 7 read in this wise: "Nothing herein contained shall be construed to contravene the provisions of any other act, except that the said Thomas McRoberts shall have the exclusive right of ferriage within the distance of one mile and a half above and below the centre of the said Mississippi avenue.Provided, The right hereby granted shall not extend beyond the land now owned by said McRoberts and his associates.And provided further, That nothing contained in this act shall be construed as to affect the rights and privileges granted to the Winona and La Crosse Railroad Company, approved February 25, 1856."By an act of the statelegislature, approved July 23, 1858, (seeLaws 1858, p. 303) the territorial limits within which McRoberts was authorized to exercise his ferriage rights, were considerably enlarged, and it was provided that no ferry should be established within one mile and a half above or below the enlarged limits.McRoberts alleges in his complaint that in 1857, he established a ferry as he was authorized to do by law, and has ever since maintained the same in accordance with the provisions of the original act of 1857, and the amendatory act of 1858; that in so doing he has incurred large expense, etc.; and that Washburne and his co-defendants have infringed upon his exclusive right of ferriage, by establishing and running a rival ferry within the territory added by the act of 1858 to his original limits as defined in the act of 1857.The complaint also contains a statement of the damages resulting from this alleged invasion of his rights.And here the appellants' counsel interpose the objection that the act of 1858 is in conflict with section 2 of article 10 of the constitution, by which it is declared that "no corporation shall be formed under special acts except for municipal purposes."Now, without stopping to consider whether any or how extensive an enlargement of the franchises of a corporation already in existence is prohibited by this provision of the constitution, it would evidently be necessary in order to bring the act of 1858 within the letter or spirit of the prohibition, to show that Thomas McRoberts was endowed with corporate powers.There is not a word in either of the acts referred to, conferring upon him a single distinctive attribute of a corporation.SeeAngell & AmesCorp. §§ 1-10 inclusive;1 Bla. Com. 475.Section 1, art. 10 of the constitution itself settles the question as follows: "The term `corporation' as used in this article, shall be construed to include all associations and joint stock companies having any of the powers and privileges not possessed by individuals or partnerships, except such as embrace banking privileges," etc.It can hardly be contended that Thomas McRoberts answers to this definition.The act of 1857 simply granted a franchise to "Thomas McRoberts, his heirs, executors, administrators, or assigns," and no more constituted him a corporation, than would the county commissioners, had they endowed him with similar privileges by granting him a ferry license.Nor does the fact that the franchise came directly from the state make the person upon whom it is conferred a corporation, any more than a conveyance of school land by the state, makes the grantee a corporation.The counsel for the appellants further contend, that by the terms of section seven, of the act of 1857, it was expressly enacted "that the right hereby granted shall not extend beyond the lands now owned by said McRoberts and his associates," and that for this reason the complaint is defective in not stating that the ferry of the appellants is established and run upon or within a mile and a half above or below any lands owned by McRoberts and his associates, and mentioned in the acts of 1857 and 1858.If it be true that McRoberts is confined in the exercise of his right of ferriage to lands owned as above, this objection might appear to be well taken.On the other hand it is claimed by the respondent that he was exonerated from this condition by section 2, of the act of 1858.By the first section of that acthe is endowed with the exclusive and unrestricted privilege of establishing and maintaining a ferry within certain limits therein designated, and section 2 provides, "That section seven (which we have quoted at length) in said act (referring to the act of 1857) be and is hereby amended so as to contravene and repeal all acts conflicting with section one in this amendatory act, except so much of section seven as relates to the rights of the Winona and La Crosse Railroad Company."There can be no doubt that a restriction by which an otherwise unrestricted grant is made less is in conflict with that grant.And we have no hesitation in saying that section 2 of the act of 1858 operated as a repeal of that part of the act of 1857, which confined McRoberts in the exercise of his ferry franchise to the lands owned by himself and his associates.We think a very forcible argument in favor of this construction might be drawn from the circumstance that in the same section 2, the legislature has excepted the rights of the Winona and La Crosse Railroad Company from the repeal.As, by the act of 1857, these rights were excepted by a proviso immediately following the proviso limiting McRoberts' ferry franchise to the land of himself and associates, and in the same section there would seem to be no doubt that it was the intention of the legislature to repeal all other restrictions and limitations as to the territory in which the franchise could be exercised.No reason can be given why one proviso should be excepted from the repeal and not the other, unless it was the intention to repeal the latter and leave the former in operation.

No question is made upon the right of a state in the exercise of its police powers, to grant the franchise of a ferry upon the Mississippi River, according to the doctrines enunciated in Conway v. Taylor's Executors,1 Black. 634.But the appellants insist "that the riparian owner at any point on the river has a right to and from his own shore and bank to operate a ferry or any other boat upon the river, and that the legislature of Minnesota cannot take away that right," and that therefore the complaint is insufficient because it fails to state "that the ferry boat of the appellants is operated to and from land not their own."No authorities are cited in support of this position.All the books speak and treat of the right to run a ferry boat for public accommodation and to charge tolls as a franchise.In Mills v. St. ClairCo. 8 How. U. S. 581, the court say that they deem the general principle not open to controversy "that the establishment and regulation of ferries is a subject within the control of the government and not matter of private right, and that the government may exercise its powers by contracting with individuals."(2 Bla. Com. 38;id. 236;15 Pick. 249.)Kent defines franchises to be certain privileges conferred by grant from government and vested in individuals.(2...