Chapin v. Crusen

31 Wis. 209 | Wis. | 1872

Lyoít, J.

The view which we have taken of this case renders it quite unnecessary to review in detail the instructions which were given to the jury. Assuming, for the purposes of the action, that the plaintiff Ghapin made a valid assignment to Edmond Grusen of the franchise granted by the law of 1865, by virtue of which Grusen became the sole owner thereof; and assuming also that tbe defendants, in operating the ferry, nnnaged and conducted it properly, and at all times faithfully performed all of their obligations to the public in that behalf; still we are of the opinion that the plaintiffs are entitled to recover.

I. We think that the act of 1869 repeals that of 1865, so far as it gran ed a ferry franchise to Chapin. The former statute is entirely repugnant to the latter, in that another grantee of the franchise is named therein. It is perfectly well settled that, in such case, the former law is repealed, pro tanto, by implication. Sedgwick on Stat. and Con. Law, 125, and cases cited; State v. Ingersoll, 17 Wis., 631.

The act of 1865 being repealed in so far as it granted a franchise, the defendants can have no rights under it, and the plain-tif s are the owners of the franchise in controversy under the act of 1869, unless the latter act is invalid.

II. Had the legislature power to repeal the grant contained in the law of 1865, before the expiration of ten years from the passage of the act, and confer the franchise upon the plaintiffs ? It certainly had that power unless the law amounted to a contract. Laws of this character are to be construed strictly, and no contract is to be inferred from them against the state and in behalf óf the grantees. To give to them the force of contracts, they must, by their terms, show that such was the intention of the legislature. The Proprietors of the Charles River Bridge v. The Proprietors of the Warren Bridge, 11 Peters, 420. No such intent appears in the law of 1865. Had it provided that the grant was upon condition that the grantee or his assigns would conduct the ferry in a certain manner and at certain rates of ferriage for the ten years ; or, perhaps, had the operating of the ferry involved a large expenditure of money in permanent improvements, which would be of little or no value without the franchise; or had it expressly provided that it should have the force of a contract — there would be some ground for saying that the franchise rests in compact, and is irre-pealable. But this law has none of these features. There was no obligation upon Chapin or Ms assigns to accept tbe franchise, or, if accepted, to retain it. He or they might abandon it at any time without incurring any liability whatever. No large expenditure was required, and none whatever for permanent fixtures or improvements, or at most but very little. The boat and cable used in operating the ferry cost comparatively but a small sum, and were available for other purposes after the franchise was taken away. Under these circumstances, we can see no valid ground for a claim that the law of 1865 operates-as a contract between Chapin and the state. On the contrary, it seems to us that it was merely the grant of a public privilege, or a license to exercise a public franchise, which the legislature might revoke at pleasure, and that the defendant Edmond Crusen took the assignment from Chapin subject to that incident.

These views may perhaps be strengthened by the provision of the constitution, art. XL, sec. 1, which gives the legislature power to alter or repeal the charters of corporations created by it. Had this franchise been conferred on such a corporation, there can be no doubt that the legislature might take it away. Does the fact that it was conferred upon a natural person alter the case?

III. But it is claimed by the learned counsel for the defendants, that the legislature had no power to grant the franchise to any person. Two grounds are urged in support of this proposition: First, That the exercise of such power is prohibited by art. IX, sec 1, of the constitution, which ordains that the Mississippi river, and the navigable waters leading into it, shall be common highways and forever free, as well to the inhabitants of this state, as to the citizens of the United States, without any tax, duty or impost therefor. Secondly, Because the legislature, having, by the revised statutes, chap. 20, conferred upon the respective boards of county supervisors the power to grant licenses to keep ferries, pursuant to sec. 22 of art. IY, of tbe constitution, is thereby disqualified to grant such franchises directly.

The answer to the first ground is, that the granting of a ferry franchise does not interfere with the free navigation of the Wisconsin river; and to the second, that the constitution does not prohibit the legislature from granting such franchises after it has conferred such power upon the boards of supervisors. Indeed, this power is one that has been constantly exercised by state and colonial legislatures from the first settlement of the country. In this state, however, the power is now taken from the legislature in all cases where the ferry is wholly within the state, by the late constitutional amendment, art. IV.,sec. 31.

IY. It is further objected that the plaintiffs never accepted the franchise granted to them by the law of 1869, and can therefore claim no rights under that law. But it seems to us that, by stretching their cable across the river twice, and taking their boat to the place where the law located the ferry, for the purpose of operating the same under the law, the plaintiffs did accept the franchise, and are entitled to enjoy it without interference from the defendants or others.

Y. Prior to the adoption of the amendment above referred to, there was no constitutional provision which deprived the legislature of the power to grant an- exclusive right to the use of a franchise of this kind for a limited time. It was so held by this court at the present term in the case of The State of Wisconsin v. The Milwaukee Gas Light Co., 29 Wis., 454. See also the treatise of Mr. Sedgwick before cited, p. 625.

If these views are correct, it necessarily follows that the learned circuit judge erred when he instructed the jury, as he did in substance, that if they found a valid assignment of the franchise was made by Ghapin to Edmond Crusen, such assignment would be a protection to the defendants against the action, unless they had forfeited such protection by neglect of their obligations to the public.

Our conclusion is, that if the defendants have interfered with the plaintiffs’ enjoyment of the franchise granted to them by the law of 1869, to the damage of the plaintiffs, the latter are entitled in this action to recover for such damage.

By the Court.— The judgment of the circuit court is reversed and the cause remanded for a new trial.