Sturgeon Bay & L. M. Ship Canal & Harbor Co. v. Leathem

• Decision Date: 09 November 1896
• Citation: 164 Ill. 239,45 N.E. 422
• Court: Illinois Supreme Court
• Parties: STURGEON BAY & L. M. SHIP CANAL & HARBOR CO. v. LEATHEM et al.

164 Ill. 239

45 N.E. 422

STURGEON BAY & L. M. SHIP CANAL & HARBOR CO.

v.LEATHEM et al.

Supreme Court of Illinois.

Nov. 9, 1896.

Appeal from appellate court, First district.

Action by the Sturgeon Bay & Lake Michigan Ship Canal & Harbor Company against John Leathem and others. From a judgment of the appellate court affirming the judgment for plaintiff, it appeals. Affirmed.

Schuyler & Kremer and Herrick, Allen & Boyeson, for appellant.

E. A. Sherburne, for appellees.

MAGRUDER, C. J.

This is an action of assumpsit, begun by the appellant, the Sturgeon Bay & Lake Michigan Ship Canal & Harbor Company, against the appellees, to recover a certain amount claimed to be due to appellant for tolls charged to the appellees for the use of said canal in the running over and passing through its waters of certain propellers, schooners, barges, and tugs owned by the appellees. The declaration originally contained only the common counts, but it was subsequently amended by the addition of three special counts. The pleas were general issue, nul tiel corporation, and the statute of limitations, to the latter of which replications were filed. A jury was waived, and the cause was submitted by agreement for trial before the court without a jury. The amount claimed by the appellant to be due to it from appellees for tolls charged to them for the use of the canal by their vessels and tugs was $3,460.63. Of this amount $3,044.67 represented toll charges for the use of the canal by tugs operated by the appellees for the purpose of towing vessels, and $415.96 represented toll charges against vessels belonging to appellees engaged in the business of carrying freight or passengers, and not operated merely for towing purposes. The trial court disallowed the sum of $3,044.67, and rendered judgment in favor of appellant for only $415.96, holding that under its charter the appellant was not authorized to charge tolls for the use of the canal by the tugs belonging to the appellees. From this judgment, as being too small, the appellant took an appeal to the appellate court, where the judgment of the circuit court was affirmed, and appellant prosecutes its further appeal to this court from such judgment of affirmance.

The only question which we deem it necessary to consider is whether the appellant company had the power, under its charter, to charge tolls for the use of the canal by tugs engaged exclusively in the business of towing vessels. If it had no such power, then the items making up the sum of $3,004.67 were properly disallowed, and the judgments of the lower courts were correct. To determine the question involved it is necessary to give a construction to a part of one of the sections of appellant's charter. The appellant is a corporation, organized under an act of the legislature of the state of Wisconsin approved April 23, 1864, and entitled ‘An act to incorporate the Sturgeon Bay and Lake Michigan Ship Canal and Harbor Company.’ This act was introduced in evidence. Section 7 and so much of section 8 of the act as it is necessary to quote here are as follows:

‘Sec. 7. The said company shall have power to locate, construct and build a canal of such width, depth and dimensions as they shall deem proper and expedient for all classes of shipping on the Lakes between the head of Sturgeon Bay in the county of Door and Lake Michigan so as to connect the waters of said bay with said lake and to construct a breakwater and harbor on the lake shore at the mouth of said canal and to dredge and improve the said bay so as to make a convenient and safe anchorage and harbor in said Sturgeon Bay.

‘Sec. 8. The directors shall have power to regulate tolls and charges upon all boats, vessels, steamboats and other craft used for the transportation of freight and passengers on and along the canal of said company and for the use of any steam tugs owned by said company, and to make such covenants, contracts and agreements with any person or persons, copartnership or corporation whatever as the execution and management of the business and the convenience and interests of the company may require, to make and establish such by-laws, rules, regulations and orders not inconsistent with the constitution and laws of the United States, or of this state, as they shall think proper for the well ordering of the affairs of the company.’

It is assigned as error by appellant that the trial court held as law in the decision of the case the following proposition: ‘That under the provisions of the act of the legislature of the state of Wisconsin under which the plaintiff is incorporated, the plaintiff was authorized to determine and fix the amount of tolls to be charged for the different classes of vessels named in the...