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vides for an action and authorizes a recovery against any person who by selling or furnishing the intoxicating drink causes

or furnished any intoxicating liquors acts were committed or said injuries which were drank by him on the day received,” etc. As to the scope or or about the time of such intoxica- facility of redress under this legislation. Kerkow v. Bauer, 15 Neb. 150. tion, the court in the case last cited The following are the important sec- say: "We cannot apply the commontions of the Nebraska act, in chap- law rules of pleading to this case. ter 50, Revised Statutes : “Sec. 11. While the law provides for licensing All persons who shall sell or give the sale of intoxicating liquors, it reaway, upon any pretext, malt, spirit- gards the making of a person intoxiuous or vinous liquors, or any intoxi- cated, or the selling or furnishing a cating drinks, without having first person intoxicating liquors with complied with the provisions of this which he makes himself intoxicated, act, and obtained a license as herein as a tort or wrong, and holds such set forth,

shall be liable in person so selling or furnishing reall respects to the public and to in- sponsible for certain of the consedividuals the same as he would have quences of such intoxication. And been had he given bonds and obtained to provide against the difficulty, or license as herein provided.

rather impossibility of proving “Sec. 15. The person so licensed whether it was the st, middle or shall pay all damages that the com- last drink that caused the intoxicamunity or individuals may sustain in tion, the statute provides that in consequence of such traffic; he shall such cases it shall only be necessary, support all paupers, widows and or- to sustain the action, to prove that phans, and the expenses of all civil the defendant or defendants sold or and criminal prosecutions growing gave liquor to the person so intoxiout of or justly attributable to the cated or under the influence of liqtraffic in intoxicating drinks, etc. uor, whose acts or injuries are com

“Sec. 16. It shall be lawful for any plained of, on that day or about that married woman or any other person at time when said acts were committed her request to institute and maintain or said injuries received.' While in her own name a suit on any such this statute does not in terms state bond for all damages sustained by what it will be necessary to plead or herself and children on account of allege in such case, yet when we consuch traffic, etc.

sider the object and office of plead“Sec. 18. On the trial of any suit ing, we must regard the provision of under the provisions hereof, the cause the section as applying as well to the or foundation of which shall be the pleading as to the proof. If I am acts done or injuries inflicted by a correct in this view, then it made no person under the influence of liquor, difference that each of the defendants it shall only be necessary, to sustain was doing business for and by himself, the action, to prove that the defend- and sold each his separate glass of ant or defendants sold or gave liquor liquor to the deceased as his individto the person so intoxicated or under ual act in which the other two de the influence of liquor, whose acts or fendants had no interest. While the injuries are complained of, on that act of each defendant in selling the day or about that time when said liquor was his own individual act,

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“in whole or in part” the intoxication, habitual or otherwise, there is no apportionment of damages; full recovery is allowed against any one who contributed to the statutory wrong

$ 378. Public grants of titles and franchises. The words of a private grant are taken most strongly against the grantor, though if the meaning cannot be discovered the instrument is void. But this rule is reversed in cases of public grants. They are construed strictly in favor of the government on grounds of public policy. If the meaning of the words be

yet the law makes them in certain upon any scale of apportionment, contingencies jointly interested in may assign as his actual share or and responsible for the intoxication quota. And besides being a caused thereby. And it was only nec- natural interpretation, and one which essary to allege and prove the fact of accords with the apparent policy of selling or furnishing intoxicating liq- the legislation, it has the merit of uors by the defendants to the deceased relieving the remedy of much comon or about the day of his intoxica- plication and embarrassment." See tion."

Kearney v. Fitzgerald, 43 Iowa, 580. 1 Neuerberg v. Gaulter, 4 Ill. App. Co. Lit. 63a; Shep. Touch. 87. 348; Bryant v. Tidgewill, 133 Mass. 3 Taylor v. St. Helens, L. R. 6 Ch. 86; Werner v. Edmiston, 24 Kan. Div. 264. 147; O'Leary v. Frisbey, 17 Ill. App. 4 Martin v. Waddell, 16 Pet. 411; 553; Rantz v. Barnes, 40 Ohio St. 43; Mills v. St. Clair Co. 8 How. 581 ; Aldrich v. Parnell, 147 Mass. 409. In Binghamton Bridge, 3 Wall. 51; the Michigan statute this liability is Green's Estate, 4 Md. Ch. 349; United not declared in terms to attach to States v. Arredondo, 6 Pet. 738–9; any person who causes the intoxica- State v. Bentley, 23 N. J. L. 532, 538; tion "in whole or in part,” but the Bridge Co. v. Hoboken, etc. Co. 13 N. same rule is applied. Graves, J., J. Eq. 94; Commonwealth v. Roxbury, speaking for the court in Steele v. 9 Gray, 451, 492; Slidell v. Grandjean, Thompson, 42 Mich. 596, said: “The 111 U. S. 412; Hannibal, etc. R. R. question is one of construction; and Co. v. Packet Co. 125 id. 260, 271 ; whatever opinion may have been Currier v. Marietta, etc. R. R. Co. 11 formed in other states of provisions Ohio St. 228; Mayor, etc. v. Ohio, eta having some resemblance to ours, we R. R. Co, 26 Pa. St. 355 ; Miners' Bank must attend to the sense and spirit of v. United States, 1 Greene (Iowa), our own enactments and judge ac- 553; Mayor, etc. v. Macon, etc. R. R. cordingly. Now the statute we are Co. 7 Ga. 221; Talmadge v. Coal, etc. considering proceeds upon the idea Co. 3 Head, 337; Brennan v. Bradthat there has been an injury which shaw, 53 Tex. 330; Maddox the defendant by some of the means Graham, 2 Met. (Ky.) 56; Justices indicated has contributed to produce, v. Griffin, etc. Plk. R. Co. 9 Ga. 475 ; and that he shall be liable for the Bank of Louisiana v. Williams, 46 whole injury and not merely for such Miss. 618; Gainesv. Coates, 51 id. portion as a jury, if able to agree 335.


doubtful in a grant designed to be of general benefit to the public, they will be taken most strongly against the grantee and for the government, and therefore should not be extended by implication in favor of the former beyond the natural and obvious meaning of the words employed.'

Any ambiguity in the terms must operate in favor of the government. Whatever is not unequivocally granted is taken to be withheld. Whether the grant be of property, franchises or privileges, it is construed strictly in favor of the public; nothing passes but what is granted in clear and explicit terms;' but it will be construed reasonably for the purpose the act contemplates. The object and end of all government is to promote the happiness and prosperity of the people by which it is established; and it cannot be assumed that the government intended to diminish its power of accomplishing the end for which it was created. It is therefore never implied that it has surrendered, in whole or in part, any of its sovereign power of legislation for the general welfare — of police, of taxation, or of eminent domain.? In its grants of land there is implied no covenant to do or not to do any further act in relation thereto. So if it grants a public franchise to a corpo1 Mills v. St. Clair Co. supra. Co. 87 Pa. St. 34; Brocket v. Ohio &

Richmond R. R. Co. v. Louisa R. R. P. R. Co. 14 id. 241. A charter Co. 13 How. 81; Grant v. Leach, 20 granted by two states to a railroad La. Ann. 329; McLeod v. Burroughs, company is a contract with it and 9 Ga. 213.

also a compact between the states, 3 Holyoke Co. v. Lyman, 15 Wall. and is to be liberally construed. 500, 512

Cleveland & P. R. Co. v. Speer, 56 Pa. 4 Rice v. Railroad Co. 1 Black, 358, St. 325. 380; Ohio Life & Trust Co. v. Debolt, 6 Charles River Bridge v. Warren 16 How. 435; Commonwealth v. Erie, Bridge, 11 Pet. 420, 447. etc. R. R. Co. 27 Pa. St. 339; Stour- 7 Id. ; Providence Bank v. Billings, bridge Canal v. Wheeley, 2 Barn. & 4 Pet. 514; West River Bridge Co. v. Ad. 792; Parker v. Great W.R’y Co. 7 Dix, 6 How. 528; Bridge Co. v. HoM. &Gr. 253; Gaines v. Coates, 51 Miss. boken, etc. Co. 13 N. J. Eq. 81, 94; 335; Green's Estate, 4 Md. Ch. 349; Rice v. R. R. Co. 1 Black, 358, 380; La Plaisance Bay Harbor Co. v. Mon- Holyoke Co. v. Lyman, 15 Wall. 500, roe, Walk. Ch.(Mich.) 155 ; Townsend 512; Piscataqua Bridge Co. v. New v. Brown, 24 N. J. L. 80 ; Morris Canal, Hampshire Bridge Co. 7 N. H. 35; etc. Co. v. Central R. R. Co. 16 N. J. Turnpike Co. v. State, 3 Wall. 210; Eq. 419, 436; Harrison v. Young, Lehigh Water Co. v. Easton, 121 U.S. Ga. 359.

388, 391. 5 Newark Plank R. Co. v. Elmer, 9 • Jackson v. Lamphire, 3 Pet. 289. N. J. Eq. 754; Whittaker v. Canal

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ration, as to build and maintain a road or bridge, or to establish a ferry, no contract is implied that it will make no new competing grant.'

In Stourbridge Canal v. Wheeley ? the court say: “ 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 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 to them by the act.” “ And the doctrine thus laid down,” says Taney, C. J., speaking for the court in Charles River Bridge v. Warren Bridge, 3 “ is abundantly sustained by the authorities referred to in this decision. The case itself was as strong a one as could well be imagined for giving to the canal company, by implication, a right to the tolls they demanded. Their canal had been used by the defendants to a very considerable extent in transporting large quantities of coal. The rights of all persons to navigate the canal were expressly secured by the act of parliament, so that the company could not prevent them from using it, and the toll demanded was admitted to be reasonable. Yet, as they only used one of the levels of the canal, and did not pass through the locks; and the statute in giving the right to exact the toll had given it for articles which passed through any one or more of the locks,' and had said nothing as to toll for navigating one of the levels, the court held that the right to demand toll, in the latter case, could not be implied, and that the company were


1 Charles River Bridge v. Warren U. S. 791; Minturn v. Larue, 23 How. Bridge, supra; Lehigh Water Co. v. 435; Birmingham, etc. St. R’y Co. v. Easton, supra; Tuckahoe C. Co. v. T. Birmingham St. R’y Co. 79 Ala 465; R. R. Co. 11 Leigh, 42; Saginaw Gas Brenham v. Brenham Water Co. 67 Light Co. v. Saginaw, 28 Fed. Rep. Tex. 542; Grand Rapids Electric 529; State v. Cincinnati Gas Light Light, etc. Co. v. Grand Rapids, etc. Co. 18 Ohio St. 262; Davenport v. Co. 33 Fed. Rep. 659. Kleinschmidt, 6 Mont. 502; Norwich 2 2 Barn. & Ad. 793. Gas Light Co. v. Norwich City Gas 311 Pet. 545. Co. 25 Conn. 18; Wright v. Nagle, 101


not entitled to recover it. This was a fair case for an equi. table construction of the act of incorporation, and for an implied grant, if such a rule of construction could ever be permitted in a law of that description. For the canal had been made at the expense of the company; the defendants had availed themselves of the fruits of their labors and used the canal freely and extensively for their own profit. Still the right to exact toll could not be implied, because such a privilege was not found in the charter.” Under a grant to a plankroad company to lay its road on an established highway it is not authorized to take exclusive possession and deprive the public of its use. Authority to incorporate does not include the right to take lands by devise.?

$ 379. These principles have been steadily recognized in the construction of land grants made by the federal government in aid of railroads and other like enterprises. These grants are laws as well as contracts, and are to be construed to effectuate the legislative intent, and this must sometimes be deduced from complex provisions. To ascertain such intent the court may look to the condition of the country when the acts were passed as well as to the purpose declared on their face, and read all parts of them together. Grants of lands on water-courses from the state, with the appurtenances, do not convey the right of public ferry, though the right of private ferry passes with the fee. A public franchise can be created only by an act of the legislature. Acts for the incorporation of municipal

1 Justices v. Griffin, etc. Plank R. 113 U. S. 618; Jackson, etc. R. R. Co. Co. 9 Ga. 475.

v. Davison, 65 Mich. 416; Nash v. 2 Jackson v. Hammond, 2 Cai. Cas. Sullivan, 29 Minn. 206; Schulenberg 337; Corporation v. Scott, 1 Cai. 544; v. Harriman, 21 Wall. 44; Missouri, Jackson v. Cory, 8 John. 385.

etc. R. R. Co. v. K. P. R. R. Co. 97 3 Leavenworth, etc. R. R. Co. v. U. S. 491; St. Paul, etc. R. R. Co. v. United States, 92 U. S. 733; Rice v. Greenhalgh, 26 Fed. Rep. 563; WolRailroad, 1 Black, 358; Slidell v. cott v. Des Moines Co. 5 Wall. 681; Grandjean, 111 U. S. 412; Jackson, Wolsey v. Chapman, 101 U. S. 755; etc. R. R. Co. v. Davison, 65 Mich. Dubuque R. R. Co. v. Des Moines 416; St. Paul, etc. R’y Co. v. Phelps, R. R. Co. 109 U. S. 329; Kansas Pa26 Fed. Rep. 569; Swann v. Jenkins, cific Riy Co. v. Dunmeyer, 113 id. 82 Ala. 478; Dubuque, etc. R. R. Co. 629. v. Litchfield, 23 How. 66; Nash v. 5 Harrison v. Young, 9 Ga. 359. Sullivan, 29 Minn. 206.

6 Clark v. Wilkie, 4 Strob. 259. See 4 Winona, etc. R. R. Co. v. Barney, Wiswall v. Hall, 3 Paige, 313.

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