10 Barb. 223 | N.Y. Sup. Ct. | 1850
By an act of the legislature of this state, passed May 14th, 1845, entitled “ an act to establish and regulate ferries between the city of New-York and Long Island,” the governor was authorized to appoint three commissioners, who should have power to grant licenses for establishing and keeping so many ferries, and at such places, as in their opinion the public convenience might require, between the city of New-York and Long Island; but not to grant a license for any ferry .or ferries which “shall interfere with the rights, franchises or privileges of the mayor, aldermen and commonalty of the city of New-York, in and to any ferries already established, nor for a
The city authorities, however, denying the validity of the act, and of the plaintiffs’ license thereunder, instead of treating with them for the ferry property, commenced an action in this court, in May, 1849, to test the constitutionality of said law, in which they prayed that the present plaintiffs might be enjoined from proceeding under their said license, and that the same might be given up to be cancelled. This suit is still pending and undetermined.
On the 16th day of December, 1850, the board of aldermen of the city of New-York adopted a resolution that the lease to Jacob R. Le Roy and Henry E. Pierrepont, for the “ Fulton,”
This is a condensed statement of the material facts, and the law, upon which the plaintiffs invoke the aid of the court; and pray, as their relief, that the corporation may be perpetually enjoined from granting any lease or leases of the said ferries, or either of them, to the said Le Boy and Pierrepont, or to any other person or persons; and that said Le Boy and Pierrepont be restrained from accepting any such lease.
The application now before the court seeks, on behalf of tho plaintiffs, a temporary injunction, restraining the defendants as above mentioned, pendente lite. This application is opposed by the defendants, upon, two grounds: 1st, that it is not a proper case for an injunction; 2d, that the title to the ferries in question is vested in the city of Hew-York; and that the act of the legislature, so far as it interferes with them, is unconstitutional and void.
The first objection will be disposed of in a few words. The granting or refusing a preliminary injunction, rests in the sound discretion of the court, to be exercised according to the circumstances of each case, with a view to prevent a party, during the pendency of the litigation, from making a vexatious alienation of the thing in controversy, or doing any act in violation of the rights of the other party respecting the subject of the action, and tending to render the final judgment ineffectual. The writ is frequently allowed to restrain the transfer of property, real or personal, until a disputed title can be determined. (Story's Com. on Equity, §§ 907, 8, 9. Code, § 219.)
In the present case, if the plaintiffs are entitled to the ferry franchises in dispute, they are entitled to an injunction to restrain the corporation from alienating them to others, who might not be bound or affected by the final judgment in this cause. For otherwise, at the termination of this suit, the plaintiffs
The two learned counsel on the part of the defendants, who argued that point with so much zeal and earnestness, were entirely mistaken, in supposing that the effect of the injunction would be to turn the defendants out of the possession of the ferries, and confer the rents and profits upon the plaintiffs. So far from this being true, the very object of the "injunction, as well as its legitimate effect, would be to keep the defendants in the possession, and forbid the transfer thereof. Nor has the court, as yet, been able to discover the resemblance between this application and the unheard of case of awarding an injunction, in an action of ejectment, to turn out the defendant and give the plaintiff the usé and enjoyment of the premises, pending the controversy; to which, as well as to many other legal phenomena, this case has been compared. The court has not seen any reason to change the opinion, intimated on the argument, that, if the plaintiffs show a title to the ferries, an injunction would be proper to prevent the corporation from disposing of them, until the final hearing.
The great question to be discussed, relates to the title. And as that is strictly a legal point, depending upon an undisputed state of facts, and as it has been argued at great length, and with great ability, the court will bestow upon it the same careful examination and deliberation which would be due to so grave a matter upon the ultimate decision of the cause.
The original title of the corporation of the city of New-York, to the ferries in dispute, rests upon the ancient charters or letters patent granted by the British crown, and upon the cotemporaneous colonial legislation. So much of these as may be necessary to present the case fully, will be briefly set forth. The earliest now extant is known as “ Governor Dongan’s
The last charter, known as the “ Montgomery charter,” bears date the fifteenth day of January, in the fourth year of the reign of George II. (1730.) It recites, at length, the two former charters, and admits that the inhabitants of the city, as a corporate body, had anciently held, or claimed'to hold, sundry rights, franchises, <fcc. as well by grant as by prescription; but that doubts had arisen as to the validity of the two former charters, and that the mayor, aldermen and commonalty had petitioned
On the 14th October, 1732, the colonial legislature passed an act, entitled “An act for confirming unto the city of New-York, its rights and privileges.” The second section enacts, in formal, legal phraseology, that all the letters patent, grants, charters and gifts, sealed under the great seal of the colony of New-York, theretofore made to the mayor, aldermen and commonalty of the city of New-York, shall be deemed valid. The third section declares, in like manner, that all and singular said letters patent, &c. are hereby confirmed and ratified. The fourth section provides that the mayor, aldermen and commonalty may hold, use and enjoy, all and every the rights, privileges, &c. granted by said charters.
It is quite apparent, from a perusal of these three charters, and of their threefold legislative ratification, that, if multiflicity of words can secure the rights intended to be granted, those rights are safe beyond a peradventure. But the question recurs, what are the ferry rights given to the city, under and by virtue of these charters ? In answering this, it will be neees^ sary, carefully to analyze the operative terms of the grants, and endeavor to fix upon them a construction which shall be consistent with the general scope of the instruments, and the object of the grantors. In pursuing this investigation, the subject seems, naturally, to divide itself into three parts, and will, therefore, be considered: 1. In regard to the title of the corporation to the Old or Fulton ferry. 2. The title to the South and Hamilton Avenue ferries. 3. The right and power of the corporation to establish future ferries.
I. In respect to the old ferry, but little need be said. It was in existence long before the first charter; and was, by it, conveyed in fee to the corporation as property, in the same clause and by the same terms that conveyed the city hall, market-houses, wharves and burial place. The second charter grants
II. The other two ferries (South, and Hamilton Avenue,) not having been in existence at the time of the grants, stand upon a different footing, which renders it necessary to inquire into the precise nature of the authority conferred by the charters upon the corporation, to create ferries in futuro. Did the corporation take a private or a public right 1 Did they obtain a power to create and keep ferries, and receive the profits as a source of revenue and emolument, as well as for the public convenience; or were ’they clothed, merely, with a branch of the sovereign prerogative, by which they were authorized only to license, superintend, and govern ferries for the public good, in then* political capacity, and in the exercise of a political power, until such power should be transferred or resumed by the state or government 1 These are the real issues upon which this case turns.
The counsel for the plaintiffs contend that grants of franchises to a municipal corporation, are to be strictly construed : that they are presumed to be of an exclusively public character; that the charters, by a fair interpretation, convey only an authority to administer the ferry franchise as a political trust, and that it is held by a tenure similar to that of the power to license ferries, deposited with the courts of common pleas; and is liable to be resumed, and has been resumed by the legislative act ' of 1845.
It may be well, here, to glance at a few of the settled legal principles which lie at the foundation of th^ subject. The right to establish and keep a ferry, is, in law, termed a franchise. In England, franchises are understood to be royal privileges, in the hands of a subject. In this country, they>are deemed privileges conferred by government. They rank, as estates, among incorporeal hereditaments, and are founded on grant or prescription.
With these legal principles in view, let us consider the precise terms and language of the grants. The right in the charter of 1708, is conveyed by the words “ give and grant,” “ full and free leave and license,-to set up, establish, keep and m,aintain one or more ferry or ferries.” In regard to the operative words, “ give and grant,” it is only necessary to say, that they are the very words, do et concesso, which are most peculiarly appropriate to convey incorporeal hereditaments, according to all the authorities. (2 Black. Com. 317.) If, therefore, it had been the intention of the crown to convey the franchise to the city for its own sole and exclusive pecuniary benefit, this is exactly the language that would have been selected.
But the corporation is authorized to set up, establish, keep and maintain ferries. In what sense are these terms used ? Can they be fairly construed as referring to the bare authority to supervise and control the ferries, or do they necessarily involve the duty of keeping and running them, and the privilege of receiving the recompense 1 Is it possible to satisfy this clause by determining that it gives only the political power of ordering and licensing ferries, similar to the power since lodged with the courts of common pleas 1 This latter question will be answered by a reference to the statute under which these courts act in this respect. It is thus expressed: “ The court of common pleas in each of the counties of this state, shall grant licenses for keeping ferries in their respective counties to .as
The word “ maintain,” from maintenir, to hold in or by the hand, signifies “ to hold, preserve or keep in any particular state or condition ; not to lose or surrender ; to continue.” blow, if the corporation act in no other capacity than as representatives of the state, dispensing its franchises to others, on behalf of the sovereign power, in what respect can they be said to retain in their power or possession, and not to part with, that which they must part with, whenever it is called into exercise 7 In what sense can they be said to preserve, to continue, and not to lose or surrender that which they have no right to preserve, no . power to continue, and which is without substance or value until it is surrendered to others 7
But, independent of the philological argument, which seems to be as cogent as reasoning of that nature can be, there is an ' overwhelming flood of authority on this point, pouring in upon us, from the annual volumes of our session laws. Hardly a year has passed since the formation of our state government, without producing legislative grants of ferry franchises. In some instances, the authority is delegated to certain officers to grant ferry privileges : and in some, the grants are made directly from the state to the individuals or corporation, who are to have the beneficial ownership. Trom these, we may deduce a legis
Moreover, the legislature themselves seem to have given the construction here claimed to the grant in question. The act of 2d April, 1801, provides, that the mayor, aldermen and commonalty of the city of New-York, “may establish and keep one or more ferries between the said city and the island of Nassau and “ no person other than the said mayor, aldermen and commonalty, shall erect or keep a ferry between said city and Nassau island,” We do not suppose that this clause increased the powers possessed by the corporation, for the simple reason, that they already possessed them, given in language of at least equal import by the charters nearly a century before. This act is regarded rather as a legislative exposition and confirmation of the ferry rights conveyed by the charters. But, if it were conceded that the charters conveyed no rights in this respect, this act would have secured to the corporation the very rights in issue; and every ferry established under it would have become the property of the city, beyond the reach of legislative resumption. This act authorizes the corporation to run ferries, in language that can not be mistaken nor misunderstood. For it not only gives the corporation this privilege in express terms, but it also positively forbids any one else to erect or keep a ferry: so that, unless the corporation run the ferries, no ferries could exist.
But let us look a little further at the legislative construction of the words in this charter. It is claimed, on the part of the plaintiffs, that the commissioners appointed under the act of 1845, are clothed with the same authority as that given to the corporation by their charters, and transferred from the latter to the former by the law. It is but reasonable, then, to suppose, that the same powers will be conferred, if not in the precise lan
We Avill pursue the inquiry, and see Avhat the licenses are granted for. They are to be granted to such person or persons as the commissioners deem suitable to conduct the same, “ for establishing and keeping” so many ferries as the public convenience may require, betyveen Be at-York and Long Island. We have noAV found the Avords of the charter “ establish and keep,” and Aye discover that they are applied, not to the commissioners Avho dispense the franchise as the political poAver of the state, but to the grantees, Avho are actually to carry on the business of running the ferries, and enjoy the tolls thereof. Why not apply the same construction to the charters ?
But this point admits of another illustration. The plaintiffs claim title under a license, yyhich, upon inspection, is ascertained to be a license “ to establish and keep” four ferries. It, hoAVever, appears by the charters, that the corporation yyere long ago authorized “to set up, establish, keep, and maintain” as many ferries as they pleased. The grant to the corporation is, at least, as broad and as comprehensive as the license of the plaintiffs. If, therefore, the corporation do not take the rights in dispute, for Avant of suitable Avords in the grant, neither do the plaintiffs take any thing. If, on the other hand, the terms of the license are sufficient to convey the franchise, then are also the terms of the charter sufficient to have conveyed it to the corporation, one hundred and forty-three years ago.
In addition to all this, there are other clauses in the charter Ayhich manifest an intention to vest the franchise absolutely in the city. Thus, the same poAver is given to regulate and control the ferries to be established, as is given relative to the old
It is unnecessary to refer to the charter of 1730, further than to remark that it fully confirms and ratifies all that was done, or intended to be done, by the two previous ones. Under this authority, the two ferries in question have been established. They are run by lessees, holding on short leases, under the corporation. In judgment of law, they are “ set up, established, kept, and maintained” by the corporation, within the true intent and meaning of the charters.
We will now consider the propositions already incidentally adverted to, and now more distinctly stated, that the city of New- "York and its inhabitants, have acquired vested rights and valuable interests in these ferries which can not be taken away by the legislature. This doctrine of the inviolability of such franchise interests, rests upon two grounds : 1. The constitutional protection thrown around contracts. 2. The sacredness of vested rights.
In regard to the first, the authorities are abundant to show, that a grant of a franchise of this description, which has been accepted and acted upon, partakes of the nature of a contract, so far as to be protected by that clause of the federal constitution, which inhibits the states from passing laws “ impairing the obligation of contracts.” The leading case on this subject, is
It may be proper here to notice an argument urged upon the court, with great earnestness and ability. It was said, that this doctrine, although sound in regard to private corporations, has no application to public municipal corporations. We admit the correctness of this argument, so far as it requires a strict construction of grants under which such bodies claim rights of a private nature; and we freely concede that, in cases of ambiguous or doubtful phraseology, the presumption should be against such claim, and in favor of a public trust. But this consideration can not affect the case before us—for the reason, that here there is no doubt nor ambiguity; the grant is made in the plainest and most appropriate and most expressive language known to the law, the use of which, for such purposes, has been sanctioned by ages. In the ease last cited, the court say: “it may also be admitted, that corporations for mere public govern
The case of Charles River Bridge v. Warren Bridge, (11 Peters, 420,) has also been pressed upon the court as an illustration of legislative control over chartered rights. But that case is clearly distinguishable from this. There, the legislature of Massachusetts, having, in 1785, incorporated a company to build a bridge over Charles river, from. Charlestown to Boston, with authority to receive tolls, in 1828 incorporated another company for the erection of the Warren bridge over the same river, commencing in Charlestown, near where the Charles river bridge commenced, and terminating in Boston, about eight hundred feet from the termination of the Charles river bridge. The Warren bridge, having become a free bridge, diverted the travel from the Charles river bridge, so as to destroy the value of the franchise granted in 1785. The supreme court of the United States held that the act incorporating the Warren bridge company, was constitutional, and did not impair the contract made with the other company; because the first charter did not expressly give the exclusive right to the Charles River bridge company, to erect bridges over that river; and that no contract not to grant other similar franchises, could be implied against the government. It will be seen that that case differs from this, in these essential particulars : First. There, the legislature did not attempt to take away the identical franchise given by the charter of 1785, the injury done to it being incidental to the subsequent grant. On the contrary, it was conceded throughout that case, that the legislature could not directly repeal the first charter. Second. There was no provision in the act incorporating the Charles river bridge company, giving them
Since the foregoing was written, the opinion of the supreme court of the United States, delivered by Justice Woodbury, in the case of The Town of East Hartford v. The Hartford Bridge Co. has been received. On examination, it does not appear to affect the present case, in any essential degree. So far as they can be gathered from the opinion, the circumstances of that case are simply these: about the year 1680, the colonial legislature of Connecticut granted to Hartford certain rights in a ferry across the Connecticut river. The grant itself was not produced, and its terms could only be indistinctly ascertained by usage. In 1783, one-half of the privilege was transferred, by the legislature, to Bast Hartford, “ during the pleasure of the assembly.” In 1808, a company was incorporated to build a bridge across the river near the ferry; and in 1818, the legislature passed a law discontinuing the ferry. In 1836, the legislature passed a law, repealing that part of the act of 1818 which discontinued the ferry. In 1841 the repealing act of 1836 was repealed; and in 1842, the act of 1841 was repealed,
The other ground, upon which the title of the city in the fer:ries can be maintained, has been stated to be the sacredness of vested rights. Admitting,-therefore, that there is no contract within the constitutional meaning, and assuming that the charter is of no higher nature than a legislative act, which can be repealed at will; still, the corporation, having gone on and established the ferries under such charter, have become vested of a property right, which can not be destroyed by the law-making power. It is the settled law of this state, that vested rights in property, acquired by virtue of a statute, can not be divested nor destroyed by a repeal or modification of the statute. (The People v. The Supervisors of Westchester, 4 Barb. S. C. Rep. 64.) The inhabitants of the city of Hew-York have a vested
To prevent misconstruction, it may be proper to remark, that these conclusions do not necessarily exclude the- legislature from all control over the ferries. Franchises of this description are partly of a public, and partly of a private nature. So far as the accommodation of passengers is concerned, they are publici juris ; so far as they require capital and produce revenues, they are privati juris. Certain duties and burdens are imposed upon the grantees, who are compensated therefor by the privilege of levying ferriage, and the security from spoliation, arising from the irrevocable nature of the grant. The state may legislate touching them, so far as they are publici juris. Thus, laws may be passed to punish neglect or misconduct in conducting the ferries, to secure the safety of passengers from danger, and imposition, &c. But the state can not take away the ferries themselves, nor deprive the city of their legitimate rents and profits. The franchise, however, may be forfeited by non-user or mis-user, judicially ascertained; and the government, in the exercise of the sovereign power of eminent - domain, may resume the property for public use, on making a just compensation; but not otherwise.
It will be perceived, that the foregoing reasoning renders it unnecessary to inquire further as to the power of establishing future ferries. The only question properly before the court, relates to the existing ferries ; and we design carefully to avoid volunteering an opinion, the effect of which might be, as is too often the case, to mislead, and embarrass subsequent litigation.
The only remaining inquiry is, whether the act of 1845 interferes with vested rights, so far as to require the court to determine its unconstitutionality. It excepts the rights of the city^ of Hew-Tork to the established ferries. The plaintiffs’ counsel contend, that the only established ferry, at all events, was the
This, also, is in conformity to the rule of expounding statutes, which requires, when a law admits of two meanings, one of which conflicts with the constitution, and the other not, that the latter is to be adopted. (Quackenbbush v. Danks, 1 Denio, 128.) If, however, the act must be construed to include the existing ferries, it must also be pronounced unconstitutional and void.
The conclusions to which the foregoing reasoning leads us, are: 1. That the “ old” or Fulton ferry, having been in existence at the time of the grants, became thereby vested in the corporation of the city, as property; and is so held, at this time, by an indefeasible title. 2. That the corporation, having acted upon the grants, by establishing and maintaining the other two ferries, known as the “South ferry,” and “ Hamilton Avenue ferry,” have acquired therein vested rights, which can not be resumed by gratuitous legislation. 3. That the act of May 14th, 1845, does not, by its terms, embrace, but excepts the three existing ferries; and leaves them undisturbed, in the corporation. 4. That the questions of the right to establish future ferries, and how far the act of 1845 may interfere therewith, are not now before the court; and, therefore, not passed upon. 5. The plaintiffs not having established any title to the relief sought, the motion for an injunction must be denied.