State ex rel. Campbell v. Cramer

• Decision Date: 18 June 1888
• Parties: The State ex rel. Campbell et al., Appellants, v. Cramer, Mayor, et al
• Court: Missouri Supreme Court

8 S.W. 788

96 Mo. 75

The State ex rel. Campbell et al., Appellants, v. Cramer, Mayor, et al

Supreme Court of Missouri

June 18, 1888

Appeal from Cape Girardeau Circuit Court. -- Hon. J. D. Foster Judge.

Affirmed.

R. B Oliver for appellants.

(1) The respondents, as city officers, had the exclusive power to grant appellants a license to operate a ferry. Laws 1872, p 334, sec. 39. (2) Where the power of granting a license is conferred upon particular officers, and they refuse to grant the same, the writ of mandamus will go. High's Extra. Leg. Rem. [2 Ed.] *70, 71; People v. Perry, 13 Barb. 206. (3) While it is true, as a rule, that courts will not interfere by mandamus to compel the granting of a license where the officers are vested with a discretion; but where a license has been refused under a mistaken construction of the law governing the case, or where they are mistaken as to the law, and refuse a license therefor, the writ has been allowed and ought to go. Thomas v. Armstrong, 7 Cal. 286; Zanone v. City, 103 Ill. 552. (4) Here the respondents plead as the cause of their refusal to grant the license, that Carroll had entered into a contract with them for the exclusive privilege of ferrying. The city has the exclusive power to license, but not the power to grant an exclusive license, and the courts will not permit such important public trust to be frittered away or parcelled out to favored individuals. Milhan v. Sharp, 17 Barb. 435; s. c. 28 Barb. 228; Davis v. Mayor, 14 N.Y. 506; State v. Mayor, 3 Duer, 119; State v. Groves, 19 Md. 351; Coats v. Mayor, 7 Cow. 606; Cooley's Const. Lim. [4 Ed.] 251; Ferry Co. v. Davis, 30 Am. Rep. 390; Harrison v. State, 9 Mo. 515. (5) The ordinance pleaded by respondents violates section fifteen, article eleven, constitution of Missouri, in that it attempts to grant an irrevocable special privilege to Carroll. Const. of Mo. art. 2, sec. 15; St. Charles v. Nalle, 51 Mo. 122. (6) The power claimed by the city is ultra vires -- is a monopoly, and violates the spirit and letter of our constitution, and is therefore null and void. Const. of Mo. art. 12, sec. 1; Gas Co. v. Gas Co., 16 Mo.App. 52; Rendering Co. v. Behr, 77 Mo. 91; St. Charles v. Nalle, 51 Mo. 122.

Wilson Cramer and S. M. Green for respondents.

(1) The granting of licenses and regulating ferries is purely a matter of state and not of federal legislation. 3 Wait's Actions & Def. 353; St. Louis v. Ferry Co., 14 Mo.App. 216, 219; Carroll v. Campbell, 25 Mo.App. 630. (2) The legislature may delegate its authority over the subject to a municipal corporation and confer upon it an exclusive right to license and regulate ferries. 3 Wait's Act. & Def. 346; Harrison v. State, 9 Mo. 530; State v. Sherman, 50 Mo. 265; State v. Harper, 58 Mo. 530; Ferry Co. v. Davis, 30 Am. Rep. 390. (3) The amendatory act of incorporation, approved March 29, 1872, by conferring on the city of Cape Girardeau "the exclusive power and right to regulate, tax and license all ferries within the limits of the city," suspends within the jurisdictional limits of the city the operation of the general statutes relative to ferries, which have remained practically unchanged since the revision of 1865. G. S. 1865, p. 302; Sess. Acts 1872, p. 334, sec. 39. (4) The right to keep a ferry is not absolute, but is a privilege granted by the state or municipality, subject to certain regulations. No one is entitled to a license as a matter of right. Under the statute the county court, before issuing a license, must believe "such ferry necessary for the accommodation of the public, and that the petitioner is a suitable person to keep the same." The city, exercising the delegated power, is of course, to be governed by the same considerations. R. S. sec. 5673; Stark v. Miller, 3 Mo. 470; Ragan v. McCoy, 29 Mo. 356. Respondents set forth in their return "that the public necessity does not require the establishment of another ferry within the jurisdictional limits of the city." (5) "A right to license implies the right to prohibit," and the granting or refusing of licenses rests in the sound discretion of the city authorities to be determined by the requirements of the public good. Ferry Co. v. Davis, 30 Am. Rep. 390. (6) Waiving the question whether the city of Cape Girardeau could or could not legally grant an exclusive ferry privilege, as it did to Carroll, or whether, in view of its arrangement with him, it was precluded from issuing a license to another -- the action of the mayor and council in refusing to license respondents, being discretionary, is final and not subject to review on proceeding for mandamus. 2 Dill. Mun. Corp. [2 Ed.] sec. 669; High's Extr. Legal Rem. secs. 325, 326, 327, 328. (7) Even in the exercise of judicial functions involving discretion, mandamus will not lie. State v. Gregory, 83 Mo. 123; State v. Hudson, 13 Mo.App. 61; Strahan v. County Court, 65 Mo. 644. Under our system of government there is no power to compel the legislature to make laws. Schools v. Pullen, 62 Mo. 448. A city council is a miniature general assembly. State v. Foster, 52 Mo. 513. The judicial writ of mandamus will go no further than to set the machinery of the court in motion, but will not direct the performance of any particular judicial act. State ex rel. v. Court, 87 Mo. 376. It follows, then, that the judicial writ of mandamus would be ineffectual to compel any act of a coordinate branch of government whose distributive share of power is legislative. Const. of Mo., art. 3.

Norton, C. J. Ray, J., absent.

OPINION

Norton, C. J.

Relators Campbell and Houck, having been refused a ferry license by the mayor and city council of the city of Cape Girardeau, have instituted this proceeding by mandamus to compel them to grant them license.

Defendants, in their return to the alternative writ, set up among other things the following: "That the city of Cape Girardeau was a municipal corporation; that by the charter the mayor and council were authorized to legislate upon all matters within the city set out in the charter; that among the subjects of legislation by the mayor and council of the city of Cape Girardeau, the respondents herein, and upon which they may legislate by ordinance, are the following subjects, more fully set out in article three of said charter, entitled 'legislative power': The improvement of the navigation of the Mississippi river within the corporate limits of the city; to erect, repair and regulate docks and wharves, and to fix the rate of wharfage thereat; to regulate the stationing, mooring and anchoring of vessels within the city limits; and to create the office of port warden, and define the duties thereof; and to have the exclusive power and right to regulate, tax and license all ferries within the limits of the city; that the exercise of the corporate powers and duties vested in the mayor and board of council by the charter of the city in that behalf is wholly and solely legislative; and all ordinances passed by the mayor and council of said city, when thereunto lawfully assembled, concerning said subjects and matters aforesaid, are within the legislative discretion of said mayor and council and not otherwise.

"And defendants making further return say that on the day of 1885, one Richard Carroll, a citizen of the city and county of Cape Girardeau, and state of Missouri, appeared in person and by counsel, before the mayor and council of said city of Cape Girardeau, duly assembled as a legislative body, and for the transaction of business, and presented a petition to said mayor and council asking for a ferry license within the jurisdictional limits of the city, across the Mississippi river, between the city of Cape Girardeau in the state of Missouri, and East Cape Girardeau in the state of Illinois. And in his said petition proposed to put in a new steam ferry-boat of the following dimensions, that is to say, ninety-eight (98) feet long, twenty-six and one-half (26 1/2) feet beam, thirty-four (34) feet out to out, and a capacity of twelve wagons; whereupon, in due course of legislation, the mayor and council of said city, being assembled according to law, passed an ordinance granting to said Richard Carroll an exclusive license; said ordinance being entitled, 'An ordinance granting a ferry franchise to Richard Carroll,' being ordinance numbered four hundred and eleven, in words and figures as follows:

"'Whereas Richard Carroll, of the city of Cape Girardeau, in the state of Missouri, has proposed that if the city of Cape Girardeau, in said state, will grant him a ferry license across the Mississippi river from Cape Girardeau to the opposite shore in Illinois for the term of ten years, he will put in a new steam ferry-boat to run between the aforesaid city of Cape Girardeau, in the state of Missouri, and East Cape Girardeau, in Illinois, of the following dimensions: Ninety-eight (98) feet long, twenty-six and one-half (26 1/2) feet out to out, and of a capacity of twelve (12) wagons; and has further agreed to pay said city the sum of fifty dollars every six months for a license therefor, and to enter into a good and sufficient bond in the sum of one thousand dollars to said city, conditioned for the faithful performance of the...