State v. Cramer

• Decision Date: 18 June 1888
• Citation: 8 S.W. 788,96 Mo. 75
• Parties: STATE ex rel. CAMPBELL et al. v. CRAMER, Mayor, et al.
• Court: Missouri Supreme Court

8 S.W. 788

96 Mo. 75

STATE ex rel. CAMPBELL et al. v. CRAMER, Mayor, et al.

Supreme Court of Missouri.

June 18, 1888.

MANDAMUS — TO MUNICIPAL BOARDS — FERRY.

In proceedings to obtain mandamus to compel a city to grant a ferry license, the return stated that, under the legislative power delegated to it "to regulate, tax, and license all ferries within the limits of the city," defendant had granted exclusive license to another, that public necessity did not require a second ferry, and that once before the city, acting in its discretion, had refused to grant plaintiffs a license. Held, on demurrer to the return, that the discretion of the municipal corporation could not be controlled in such case by mandamus.

Appeal from circuit court, Cape Girardeau county; JOHN D. FOSTER, Judge.

Proceedings for mandamus by the state, ex rel. James T. Campbell and Louis Houck, against George H. Cramer, mayor of the city of Cape Girardeau, and William Regenhardt and others, members of the city council of said city. The demurrer to defendants' return to the alternative writ was overruled, and plaintiffs appeal.

R. B. Oliver, for appellants. Wilson Cramer and Sam M. Green, for respondents.

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 3 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: 98 feet long, 26½ feet beam, 34 feet out to out, and a capacity of 12 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 No 411, 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 (26½) feet beam, thirty-four (34) 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 agreements herein, and the requirements of...