§ 112 (76). Tolls and Wharfage. If the right to impose wharfage is given to a municipality, but not limited, the question of the amount which the municipal authorities may exact is confided to their discretion, and is one with which the courts cannot interfere, unless, perhaps, in a case where the by-law imposing it is plainly unreasonable. But the amount of tolls or wharfage may, of course, be regulated by the legislature.3 § 113 (77). Duties and Liability of Municipality. The interests of commerce imperatively require that public wharves should be in a R. Co., 33 Fed. Rep. 730 (1888). Approved and distinguished, Weber v. Harbor Comm'rs (San Francisco), 18 Wall. 57 (1873). See supra, sec. 107, note. 1 Municipality v. Pease, 2 La. An. 538 (1847); Muscatine v. Hershey, 18 Iowa, 39, 42 (1864), per Wright, J.; Coal Float v. Jeffersonville, 112 Ind. 15 (1887). The erection of a wharf by a city was presumed to be for the benefit of the public, and in the absence of an ordinance fixing the wharfage dues or providing for the payment of a compensation for the use of its wharves, it was held that such compensation could not be collected by the city. Muscatine v. Keokuk, &c. Packet Co., 45 Iowa, 185 (1876). A city may prescribe by ordinance the fees which shall be paid for the use of the wharves within its limits, and this power is impliedly subject only to the limitation that such fees shall be reasonable. Keokuk v. Keokuk Northern Line Packet Co., 45 Iowa, 196 (1876). As to right of a city to charge wharfage fees when vessels or boats are moored at places where no wharves have been founded. Ib.; Dubuque v. Stout, 32 Iowa, 80; s. c. 7 Am. Rep. 171. Voluntary Payment. Where the owners of boats have paid wharfage fees under protest, which were demanded and collected in the absence of authority to make the demand, they cannot recover them back in an action against the city. Muscatine v. Keokuk, &c. Packet Co., 45 Iowa, 185 (1876). The mere danger that an action at law will be commenced to enforce payment does not make the payment of a demand unjustly and illegally made a compulsory payment. Ib. See cases on the subject of voluntary and compulsory payment, cited at large, post, chap. xxiii. Packet Co. v. St. Louis, 4 Dillon, 10 (1876); ante, secs. 94, 95. 2 See ante, sec. 94 and note, as to when and how far discretionary powers are subject to judicial cognizance. As to reasonableness of wharfage charges: supra, sec. 103 note. Coal Float v. Jeffersonville, 112 Ind. 15 (1887). As to general requirement of law that all ordinances or by-laws must be reasonable, see infra, chap. xii. Municipal Ordinances and ByLaws. 8 Baltimore v. White, 2 Gill (Md.), 444 (1845); Murphy v. City Council, 11 Ala. 586 (1847): Munn v. Illinois, 94 U. S. 113. Authority to a city "to erect, repair, and regulate wharves and the rates of wharfage," authorizes it to collect wharfage upon goods landed on the bank, the space in front of the city being dedicated to the public, although no artificial wharf was erected. Sacramento v. Steamer, 4 Cal. 41. This subject is discussed by Wright, J., in Muscatine v. Hershey, 18 Iowa, 39, but the point is not decided by the court. See Dubuque v. Stout, 32 Iowa, 47, 80 (1871); s. c. 7 Am. Rep. 171. In Kentucky, however, it is held that the owner of the land must build wharves, or improve the shore, or make some preparation for the reception or delivery of goods, or accommodation of vessels, before he is entitled to collect tolls or wharfage. Columbus v. Grey, 2 Bush (Ky.), 476. See supra, sec. 103, note. If he permits the municipal authorities so to improve the wharves, he will only be entitled to reasonable compensation for the use of the river bank. Ib. The word "quay" defined by McLean, J., in New Orleans v. United States, 10 Pet. 661, 715. safe condition; and if a municipal corporation is in possession of such a wharf and exercises control over it, and receives tolls for its use, it owes a duty to the public to keep it in proper and secure condition for use, and it is liable, without statutory enactment to that effect, to an action for any special injuries to boats and vessels caused by its failure to discharge this duty. In such a case it is not material whether the city had adopted ordinances for the regulation of the wharf, or, having such, neglected to enforce them, as in either event the responsibility is the same.1 § 114 (78). Ferries; Nature of Ferry Grant to a Municipality. It is not unusual for the legislature to make to a municipal corporation a more or less extensive grant respecting ferries and ferry franchises. Such a grant is not, unless otherwise expressed, a compact which cannot be impaired, but in the nature of a public law, subject to be repealed or changed, as the public interests may demand. If the legislature has conferred, as in some of the ancient 1 Pittsburgh v. Grier, 22 Pa. St. 54 (1853). "This case," says Perley, C. J., in Eastman v. Meredith, 36 N. H. 284, 295, "is put distinctly upon the ground that the public duty, which was the foundation of the action, arose out of the control which the city exercised over the wharf, and the income received for the use of it." That the right to collect wharfage by the city imposes the duty to keep in repair, and a correlative liability, has been often determined. City not liable for filling up slip from a sewer. Reed v. Lynn, 126 Mass. 367; Shinkle v. Covington, 1 Bush (Ky.), 617, where there was a failure to provide proper fastenings for boats. Allegheny v. Campbell, 107 Pa. St. 530; Willey v. Allegheny, 118 Pa. St. 490; supra, sec. 105, and note. People v. Albany, 11 Wend. 539, 543; Buckbee v. Brown, 21 Wend. 110; Mersey Dock Trustees v. Gibbs, Law R. 1 H. L. 93. Lessee of city is under like liability. Radway v. Briggs, 37 N. Y. 256 (1867). In form, the action in such a case against the city may be either case or assumpsit. Pittsburgh v. Grier, 22 Pa. St. 54 (1853). But it is no defence to an action by a city for wharfage that the wharf was not well built and needed further improvement or repairs. Prescott v. Duquesne, 48 Pa. St. 118; Jeffersonville v. Ferry Co., 27 Ind. 100; s. c. 35 Ind. 19 (1870); Winpenny v. Philadelphia, 65 Pa. St. 135 (1870). Where it was rendered unsafe by acts of others, notice, express or implied, is an element necessary to liability, the same as in the case of defective highways. Seaman v. New York, 3 Daly (N. Y.), 147; post, chap. xxiii., where the subject and the ground of the liability of the corporation for torts is considered at large. The duty of those having control of a harbor is, so long as it is open to the public, to have it reasonably safe for the public use, and this whether tolls are collected or not for the use of it. Parnaby v. Lancashire Canal Co., 11 A. & E. 223; Metcalfe v. Hetherington, 11 Ex. 257; s. c. 5 H. & N. 719; Gibbs v. Liverpool Docks, 3 H. & N. 164; s. c. L. R. 1 H. L. C. 93, 104, 122; Longmore v. Great Western Railway Co., 35 L. J. C. P. 135; Francis v. Cockrell, L. R. 5 Q. B. 184; Webb v. Port Bruce Harbor Co., 19 Upper Can. Q. B. 626; Coe v. Wise, L. R. 1 Q. B. 711; Winch v. Conservators of the Thames, L. R. 7 C. P. 471; see Sweeney v. Port Burwell Harbor Co., 17 Upper Can. C. P. 574; reversed, 19 Upper Can. C. P. 376; Berryman v. Port Burwell Harbor Co., 24 Upper Can. Q. B. 34. 2 East Hartford v. Hartford Bridge Co., 10 How. (U. S.) 511 (1850); Roper v. McWhorter, 77 Va. 214; ante, sec. charters in England and in this country, upon a municipal corporation its whole power to establish and regulate ferries within the corporate limits, the corporation thus representing the sovereign power may make an exclusive grant. But such a corporation has not an exclusive power over the subject, unless, by express words or necessary inference, it be plainly given to it by the legislature. Hence, power to a municipality to establish and regulate ferries within its limits does not give it an exclusive power, and consequently does not authorize it to confer an exclusive privilege upon others to establish a ferry.2 68. As to extinguishment of ferry franchise by a subsequent legislative grant to build a bridge at the site of the ferry, and take tolls, sec the famous case of Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 420 (1837). The dissenting opinion of Mr. Justice Story, on the important constitutional question involved in this case, is referred to by Mr. Webster, in a letter to Judge Story, as "the ablest and best written opinion I ever heard you deliver; it is close, searching, and scrutinizing; the opposite opinion has not a foot nor an inch of ground to stand on." 2 Story, Life and Letters, 268. Chancellor Kent expressed the same opinion. 270. Ib. But fifty years' subsequent experience has vindicated the judgment of the court and placed it upon an immovable and unquestioned foundation. Construction of special grant. Hartford Bridge Co. v. Ferry Co., 29 Conn. 210, where a ferry had been maintained by a city for a time beyond the memory of living men, it was held, in the absence of other evidence, that its franchise was established by prescription; and also, that while the State could divest the city of the franchise, its purpose and intent to do so must clearly appear, and cannot be left to implication. City of Laredo v. Martin, 52 Tex. 548 (1880). As to corporations by prescription, see ante, secs. 32, 37. 1 Costar v. Brush, 25 Wend. 628 (1841). See also Mayor, &c. of New York v. Starin, 106 N. Y. 1; Mayor, &c. of New York v. New York & N. J. S. N. Co., 106 N. Y. 28. 2 Minturn v. Larue, 23 How. (U. S.) 435 (1859); Harrison v. State, 9 Mo. 526 (1845); McEwen v. Taylor, 4 G. Greene (Iowa), 532; ante secs. 89-91, and cases in notes. While the exclusive power conferred by the legislature upon a city to grant a ferry license does not authorize it to grant an exclusive license, yet the power to grant an exclusive license is conferred when the city is authorized "to grant or refuse a license." B. & H. Ferry Co. v. Davis, 48 Iowa, 133 (1878). The power to refuse gives the power to limit the issue of licenses; if it can limit, there is no reason why it cannot bind itself to issue no other; but the power to license, or to license and regulate certain occupa tions, does not, it seems, include the power to create a monopoly. Chicago v. Rumph, 45 Ill. 90; Logan v. Pyne, 43 Iowa, 524; B. & H. Ferry Co. v. Davis, 48 Iowa, 133. But "the grant of exclusive ferry licenses rests upon peculiar grounds. It is in some sense an extension of a public road. The objection to the creation of a monopoly is overcome in the matter of a few by the consideration of the public necessity or advantage." Ib., per Adams, J. The question whether the grant of a ferry to individuals by the legislature deprives a municipal corporation possessing the usual powers to provide for the convenience and prosperity of its citizens, of the right to establish a competing ferry, discussed but not decided, in Gibbes v. Beaufort, 20 S. C. 213. A city owning a ferry must administer the public trust thus imposed as the public interest may require. Waterbury v. Laredo, 68 Tex. 565 (a contract by which a city gave to an attorney one third of the rents of a ferry, and bound itself not to make any engagement which would interfere with its terms, held void as being against pub § 115 (79). License Fee and Tax; Construction of Special Grant. By its charter a city was empowered “to license, continue, and regulate" as many ferries within its limits, to the opposite shore of a river bounding it, as the public good required, and the common council were further authorized "to direct the manner of issuing and registering the licenses, and to prescribe the sum of money to be paid therefor into the treasury of the corporation." Under this, an ordinance prohibiting all persons from ferrying, without a license from the mayor, and authorizing this officer to grant licenses to any person upon payment into the treasury of the city of the sum of fifty dollars, was sustained against the objections that there was no power to prohibit ferrying without a license, and that the license fee was a tax. The words of the charter, "To prescribe the sum of money to be paid into the treasury of the corporation," were regarded by the court as showing a clear intent to make licenses a source of revenue to the city; and the court added that the amount charged as a license fee did not appear to be unreasonable.1 § 116 (80). Power to Lease, Covenant, etc. If a municipal corporation, seized of a ferry, lease the same, through the agency of the mayor and aldermen, with a covenant for quiet enjoyment, this covenant will not restrain the mayor and aldermen from exercising the powers vested in them by statute, to license another ferry over the same waters, if in their judgment (which cannot be reviewed by the courts) the public necessity and convenience require it. On such a covenant the city may be liable to the covenantees; but the powers vested in the city officers as trustees for the public cannot be thus abrogated. If, however, the city in its corporate capacity is the legal owner of an exclusive franchise, its grantees or lessees would hold it, notwithstanding any license to others, whether granted by the mayor and aldermen or any other tribunal.2 lic policy). 1 Chilvers v. People, 11 Mich. 43 (1862). As to distinction between a license fee and a tax, see Ash v. People, 11 Mich. 347; Flanagan v. Plainfield, 44 N. J. L. 118, and the chapters on Ordinances and Taxation. Post, secs. 357, 768. Amount of license city may exact, the State law on the subject being held to affect the city. Reddick v. Amelia, 1 Mo. 5 (1821). 2 Fay, In re, 15 Pick. (Mass.) 243 (1834). The court will not try on certiorari the conflicting titles of parties to a ferry franchise. Ib.; ante, chap. v. sec. 97. Rights of municipal corporations in connection with ferries, and extent of legisla tive control. See Fanning v. Gregoire et al., 16 How. (U. S.) 524 (1853); East Hartford v. Hartford Bridge Co., 10 How. But this is a The power to § 117 (81). Borrowing Money; concerning Implied Power to borrow Money. - We shall hereafter treat of the implied power of municipal corporations to issue negotiable securities. different question from the power to borrow money. borrow may be given in express language, in which case the terms and purpose of the grant will, of course, measure its extent. But suppose the power is not expressly conferred, does it exist by impli cation? It is perhaps settled law in this country that private corporations, organized for pecuniary profit, have, in the absence of special limitation or restriction, an implied or incidental authority to borrow money for their legitimate purposes, and to give negotiable obligations for its repayment. The question of the incidental authority of municipal corporations to borrow money has not been so thoroughly considered and so often decided as to be entirely closed to controversy. In view of the legislative practice to confer, in terms, all powers so important as this, the dangerous nature of this power, by reason of the temptation it holds out to incur needless debts and to make extravagant expenditures, and the facilities it 511; affirming s. c. 16 Conn. 149; 17 Conn. 80, 96; Chilvers v. People, 11 Mich. 43; O'Neill v. Police Jury, 21 La. An. 586; Aikin v. Railroad Co., 20 N. Y. 370 (1859), relating to the ferry rights of the city of Albany; Benson v. Mayor, &c. of New York, 10 Barb. 223; Harris v. Nesbit, 24 Ala. 398; United States v. Fanning, Morris (Iowa), 348; Conner v. New Albany, 1 Blackf. (Ind.) 43; City v. Ferry Co., 27 Ind. 100; Shallcross v. Jeffersonville, 26 Ind. 193. The right of a city, given by charter, to license and tax ferries, is not, unless so expressed, exclusive of a like right in the State or county. Harrison v. State, 9 Mo. 526 (1845). "Power to regulate ferries," given to municipal corporations in general incorporation act, construed. Duckwall v. New Albany, 25 Ind. 283. When equity will annul lease. Phillips v. Bloomington, 1 G. Greene (Iowa), 498. A power conferred upon a city to establish ferries and to fix the rates, fees, and rents, authorizes it to rent the ferry, but it cannot surrender its control and supervision wholly to another. Macdonell v. International & G. N. Ry. Co., 60 Tex. 590. See supra, secs. 96, 97. In Virginia it was held that acounty and a city, being joint grantees of ferry franchises, had no power to lease the ferries to private persons, the franchise being a public trust which they could not, without legislative sanction, dispose of or delegate. Roper v. McWhorter, 77 Va. 214. Upon division of an old town owning ferry franchise, the new town owns no interest therein except so far as conferred by the legislature. Hartford Bridge Co. v. East Hartford, 16 Conn. 149; post, chaps. vii., viii. 1 Stratton v. Allen, 16 N. J. Eq. 229; see ante, sec. 50, and chapter on Contracts, post, sec. 488. Lucas v. Pitney, 3 Dutch. (N. J.) 221; Hackettstown v. Swackhamer, 8 Vroom (37 N. J. L.), 191; construction of specific grant, Mayor, &c. v. Bailey, 8 Vroom (37 N. J. L.), 519. But see observations of Byles, J., in Bateman v. Mid-Wales Railway Co., L. R. 1 C. P. 510 (1866), as to powers of common-law corporations in England in respect to drawing, accepting, or indorsing negotiable securities. The court in this case deny (in the absence of express legislative authority conferring the power) that it is competent to a company incorporated in the usual way for the formation and working of a railway to draw, accept, or indorse bills of exchange. Infra, sec. 125. |