Timothy Fanning, Appellant v. Charles Gregoire and Charles Bogg

• Decision Date: 01 December 1853
• Citation: 16 How. 524,57 U.S. 524,14 L.Ed. 1043
• Parties: TIMOTHY FANNING, APPELLANT, v. CHARLES GREGOIRE AND CHARLES BOGG
• Court: U.S. Supreme Court

57 U.S. 524 16 How. 524 14 L.Ed. 1043 TIMOTHY FANNING, APPELLANT, v. CHARLES GREGOIRE AND CHARLES BOGG. December Term, 1853

THIS was an appeal from the District Court of the United States for the District of Iowa.

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It originated in the State Court, called the District Court of the County of Dubuque, and was transferred to the District Court of the United States, at the instance of Gregoire and Bogg, the defendants. Gregoire was a citizen and resident of Missouri, and Bogg of Illinois.

The facts in the case are stated in the opinion of the court. The District Court dismissed the petition of Fanning, with costs, upon the ground that his ferry franchise was not exclusive, whereupon he appealed to this court.

It was argued by Mr. Wilson, for the appellant, and by Mr. Platt Smith, for the appellees.

The points made by Mr. Wilson were the following.

The act of the Legislature of Iowa, entitled 'An act to authorize Timothy Fanning to establish and keep a ferry across the Mississippi river at the town of Dubuque,' approved December 14th, 1838, gave said Fanning an exclusive right as against any other ferry not established by a direct act of the legislature. See that act in vol. 1st of Iowa Statutes, pages 205 and 206.

By the word 'court,' in the first line of the 2d section of said act, is meant, Webster's definition of the word, 'any jurisdiction, civil, military, or ecclesiastical.' See Webster's Dictionary, definition of 'court.'

It did not mean a judicial tribunal. The legislature uses the word as defined by Webster. See Iowa Laws, vol. 1st, p. 208-9, where it is applied to a tribunal which could have no judicial power. See Act of Congress organizing Iowa, published in the same book, p. 34, § 9.

The authority, by virtue of which the defendants claim the right to carry on a ferry at the same place where Fanning's ferry is established, is derived from a contract between the mayor and aldermen of the city of Dubuque, of the one part, and A. L. Gregoire, of the other; the city authorities claim to derive this power from the 15th section of an act of the Legislature of Iowa, to incorporate and establish the city of Dubuque, approved February 24, 1847.

If Fanning's charter was not exclusive, as contended for, and if the city authorities could establish and license another, they can only do so in the manner prescribed by the act creating the city, to wit, by ordinance. See § 15 of said city charter.

Sec. 20 of said city charter provides that every ordinance of said city, before it shall be of any force or validity, or in any manner binding on the inhabitants thereof, or others, shall be signed by the mayor and published in one or more newspapers in said city, at least six days.

The ferry of defendants was established by contract, and not by ordinance.

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'A corporation can act only in in the manner prescribed by the act creating it.' Chief J. Marshall, in Head & Amory v. Prov. Ins. Co. 2 Cranch, 127, (1 Cond. 371); 4 Wheaton, 518, (4 Cond. 528); 12 Wheaton 64; 4 Peters, 152; 8 Wheaton, 338; 2 Scammon, 187.

The act of City Council of Dubuque establishing the ferry, which the defendants claim to carry on, was null and void, and confers upon them no ferry franchise, and the plaintiff's right to maintain this action follows, as a matter of course.

'The owner of an old established ferry has a right of action against him who, in his neighborhood, keeps a free ferry, or a ferry not authorized by the proper tribunal, whereby an injury accrues to the owner of the established ferry.' Long v. Beard 3 Murph. 57.

Mr. Smith divided his argument into the two following heads.

1. That the Legislature of Iowa had no right to grant such an exclusive right as the one contended for. The argument upon this head is omited for want of room.

2. But admit the power of the legislature to confine the travelling public to horse-boat accommodation, still the words of the act do not give an exclusive right; there are no words of exclusion expressed, and none should be implied. The act by express terms prohibits courts and boards of commissioners from granting other ferry rights, expressio unius est exclusio alterius. The legislature were not excluded from giving the city of Dubuque a right to license another ferry.

It is a well-settled principle of law that in construing government grants, the courts will construe them most strongly against the grantee, and in favor of the grantor; that if the terms of the grant are ambiguous, or admit of different meanings, that meaning which is most favorable to the government will be adopted, and no right or privilege will be deemed to be surrendered by implication. 2 Blackstone's Com. 347; 1 Kent's Com. 460.

This proposition is sustained by numerous and well-adjudged cases. In the case of Charles River Bridge v. Warren Bridge et al. 11 Peters, 420, Ch.J. Taney says: 'The rule of construction in such cases is well settled, both in England and by the decisions of our own tribunals. In 2 Barn. & Adol. 793, (22 Eng. Common Law, 185,) in the case of the Proprietors of the Stourbridge Canal v. Wheely and others, the court says, 'The canal having been made under an act of parliament, the rights of the plaintiffs are derived entirely from that act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and

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the rule of construction in all such cases is now fully established to be this: that any ambiguity in the terms of the contract must operate against the adventurers, and in favor of the public...