Fanning v. Gregoire et al.

also, that assuming the deed to be capable of the construction contended for, the parties to it have construed it honestly and correctly; and that this practical construction having been acquiesced in by all parties interested for sixteen years, is conclusive. The appellant, whose deed purports to convey to him but one half the water, cannot now claim to put a new construction on the grant to the appellees which would give them nothing for the large consideration paid, and the appellant all for nothing. However plausible and astute the reasoning may be, on which such a claim is founded, it does not recommend itself on the ground of justice or equity.

The judgment of the Circuit Court is therefore affirmed, with

costs.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Western District of Pennsylvania, and was argued by counsel. consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said Circuit Court, in this cause, be, and the same is hereby affirmed.

TIMOTHY FANNING, APPELLANT, . CHARLES GREGOIRE AND CHARLES BOGG.

In 1838, the Legislature of the Territory of Iowa authorized Fanning, his heirs and assigns, to establish and keep a ferry across the Mississippi river, at the town of Dubuque, for the term of twenty years; and enacted further, that no court or board of county commissioners should authorize any person to keep a ferry within the limits of the town of Dubuque.

In 1840, Fanning was authorized to keep a horse ferry-boat instead of a steamboat. In 1847, the General Assembly of the State of Iowa passed an act to incorporate the city of Dubuque, the fifteenth section of which enacted that the "city council shall have power to license and establish ferries across the Mississippi river, from said city to the opposite shore, and to fix the rates of the same.

In 1851, the mayor of Dubuque, acting by the authority of the city council, granted a license to Gregoire (whose agent Bogg was) to keep a ferry for six years from the 1st of April, 1852, upon certain payments and conditions.

The right granted to Fanning was not exclusive of such a license as this. The prohibition to license another ferry did not extend to the legislature, nor to the city council, to whom the legislature had delegated its power.

Cor

Nor was it necessary for the city council to act by an ordinance in the case. porations can make contracts through their agents without the formalities which the old rules of law required.

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

Fanning v. Gregoire et al.

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.

Fanning v. Gregoire et al.

"A corporation can act only 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

Fanning v. Gregoire et al.

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, and the plaintiffs can claim nothing that is not clearly given them by the act.” And the doctrine thus laid down is abundantly sustained by the authorities referred to in this decision. But we are not now left to determine for the first time the rule by which public grants are to be construed in this country. The subject has already been considered in this court, and the rule of construction, above stated, fully established. In the case of the United States v. Arredondo, 6 Peters, 691, the leading cases upon this subject are collected together by the learned judge who delivered the opinion of the court, and the principle recognized, that in grants by the public nothing passes by implication."

"When a corporation alleges that a State has surrendered for seventy years its power of improvement and public accommodation, in a great and important line of travel, the community have a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear.' The continued existence

of a government would be of no great value, if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation; and the functions it was designed to perform transferred to the hands of privileged corporations. The rule of construction announced by the court in 4 Peters, 514, was not confined to the taxing power; nor is it so limited in the opinion delivered. On the contrary, it was distinctly placed on the ground that the interests of the community were concerned in preserving undiminished the power then in question; and whenever any power of the State is said to be surrendered or diminished, whether it be the taxing power other affecting the public interest, the same principle applies, and the rule of construction must be the same. No one will question that the interests of the great body of the people of the State would, in this instance, be affected by the surrender of this line of travel to a single corporation, with the right to exact toll and exclude competition for seventy years. While the rights of private property are safely guarded, we must not forget that the community also have rights, and that the happiness and well being of every citizen depend on their faithful preservation."

or any

In the case of the Mohawk Bridge Co. v. The Utica and Schenectady Railroad Co. 6 Paige's Ch. R, 554, it is held that "the grant to a corporation of the right to erect a toll bridge across a river, without any restriction as to the right of the

Fanning v. Gregoire et al.

legislature to grant a similar privilege to others, does not deprive a future legislature of the power to authorize the erection of another toll bridge across the same river so near to the first as to divert a part of the travel which would have crossed the river on the first bridge if the last had not been erected."

"Grants of exclusive privileges, being in derogation of public rights belonging to the State, or to its citizens generally, must be construed strictly, and with reference to the intent and particular objects of the grant."

In the case of Barrett v. Stockton Railway Co. 40 Eng. Com. Law, 208, the court held that, "Where the language of an act of parliament, obtained by a company for imposing a rate of toll upon the public, is ambiguous, or will admit of different meanings, that construction is to be adopted which is most favorable to the public." And the court refer to the general principle laid down by Lord Ellenborough, in his judgment in Gildart v. Gladstone, 11 East, 675, (an action for Liverpool dock dues,) who there says, "If the words would fairly admit of different meanings, it would be right to adopt that which is more favorable to the interest of the public and against that of the company; because the company, in bargaining with the public, ought to take care to express distinctly what payments they are to receive, and because the public ought not to be charged unless it be clear that it was so intended." In the case of the Leeds and Liverpool Canal v. Hustler, 1 B. & C. 424, (8 Eng. Com. Law, 118,) the court say, "Those who seek to impose a burden upon the public should take care that their claim rests upon plain and unambiguous language." All these cases are decided on the principle that government grants are construed strictly against the grantee, and in favor of the grantor.

In the case of Dyer v. Tuscaloosa Bridge Co. 2 Alab. R. 305, the court hold, that a grant of a ferry over a public watercourse, and for the convenience of the community, is not such an exclusive grant as necessarily implies that the government will not directly or indirectly interfere with it by the creation of a rival franchise or otherwise.

See also the case of the Cayuga Bridge Co. v. Magee, 2 Paige's Ch. R. 119, where it is laid down, "that acts in derogation of common right, must be construed strictly against the grantee, according to the principles of the common law."

But there is another ground on which this case might be rested with safety. It is a well-settled principle of law that statutes in pari materia are to be construed together; that the different statutes are to be construed as one; that they must be viewed together in all their parts; and if, by any fair construction, the whole can stand together, it is the duty of the court to put that