| Ala. | Jan 15, 1847
The action is brought to recover money received by the plaintiif in error, to the use of the defendant, and the true question is, whether the wharf and steamboat company, or the city authorities of Montgomery, are entitled to the wharfage or toll paid for unlading at the wharf, since the 1st January, 1845.
It appears very conclusively from the evidence, that the title to the wharf is in the city of Montgomery, and that the possessory right of the company ceased on the 1st January, 1845. This appears from the lease executed by the city au
It is however contended, that the act incorporating the Montgomery Wharf and Steamboat Company, which passed in January, 1829, secured to them the enjoyment of this franchise until 1849. The design of that act was to incorporate the individuals there named, and to authorize them, among other things, to exact certain tolls or rates of wharfage on all goods landed at the wharf at Montgomery. But it was not the design of the legislature to confer on the company proprietary rights in the soil, but only to give them the exclusive privilege of collecting wharfage on their own property. This is not left to implication, as the fifth section giving the power to collect wharfage, contains the following proviso: “Provided, always, that the said corporation shall have no right to receive wharfage, until they become possessed of the present wharf and landing in the said town, and only during their continuance in possession of the same.” It is therefore very clear, that when their right to the possession of the wharf ceased, as it did on the first January, 1845, their right also ceased to collect tolls there. <
It is further urged, that the city council has no right to collect toll at this wharf, because there is no provision in its charter authorizing it to do so. We infer from the deed found in the record leasing this wharf to those under whom the defendant claims, that the title to the wharf is in the city, and such being the fact, it had the same right as any other proprietor, to collect wharfage from those landing goods there. This right resulting from its proprietary interest, is not a franchise, but a right of property. It is true, that as this is a matter which affects the public, the legislature may regulate its exercise, by declaring what tolls or wharfage an individual shall be allowed to receive; but this does not make the right a franchise, but is merely a restraint upon the exercise of one of the rights of property.
The customary mode in England of trying the right to an office, is by bringing this action for the fees collected by one who has usurped it, and by showing himself entitled to the. office, he establishes his right to the fees collected during the usurpation. [Green v. Hewit, Peake, 182; Rex v. Bishop
It is not however necessary to inquire, whether the right to the possession of the wharf, could be tried in an action for money had and received, for it appears that the possession was yielded to the city council on the 5th May, 1845; and it is then the naked case of one receiving money, which of right belongs to another, and which the law considers as having been received to his use, and implies a promise to pay on request.
From these considerations, it follows that the action is well brought, and sustained by the proof. Let the judgment be affirmed.