plainly unreasonable.' But the amount of tolls or wharfage may, of course, be regulated by the legislature.2 § 274 (113). Duties and Liability of Municipality. The interests of commerce imperatively require that public wharves should be in a 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.3 manded and collected in the absence of Budd v. New York, 143 U. S. 517 1 See ante, § 241 and note, as to when and how far discretionary powers are subject to judicial cognizance. As to reasonableness of wharfage charges: supra, § 261, note; Coal Float v. Jeffersonville, 112 Ind. 15. As to general requirement of law that all ordinances or by-laws must be reasonable, see infra, chapter on Municipal Ordinances and By-Laws. Baltimore v. White, 2 Gill (Md.), 444; Murphy v. Montgomery, 11 Ala. 586; Munn v. Illinois, 94 U. S. 113, 131; Sacra mento v. Steamer, 4 Cal. 41. This subject is discussed by Wright, J., in Muscatine v. Hershey, 10 Iowa, 39, but the point is not decided by the court. See Dubuque v. Stout, 32 Iowa, 80, 85. 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, § 261, 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. 662, 715. 3 Heissenbuttel v. Mayor, &c. of New York, 30 Fed Rep. 456; Philadelphia & R. R. Co. v. Mayor, &c. of New York, 38 Fed. Rep. 159; Jeffersonville v. Louisville & J. Ferry Co., 27 Ind. 100; Jeffersonville v. Gray, 165 Ind. 26; Fennimore v. New Orleans, 20 La. An. 124; Eastman v. Meredith, 36 N. H. 284; Buckbee v. Brown, 21 Wend. (N. Y.) 110; Macauley . Mayor, &c. of New York, 67 N. Y. 602; § 275 (114). Ferries; Nature of Ferry Grants 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 Kennedy v. Mayor, &c. of New York, 73 N. Y. 365; Pittsburgh v. Grier, 22 Pa. St. 54 (commented on in Eastman v. Meredith, 36 N. H. 284, 295); Winpenny v. Philadelphia, 65 Pa. St. 135; Allegheny v. Campbell, 107 Pa. St. 530; Willey v. Allegheny, 118 Pa. St. 490; Memphis v. Kimbrough, 12 Heisk. (Tenn.) 133; Petersburg v. Applegarth's Admr., 28 Gratt. (Va.) 321; Mersey Dock Trustees v. Gibbs, L. R. 1 H. L. 93. As to duty and liability of public wharfinger, see ante, § 263. A city, being the proprietor of a public wharf, is liable in damages for the loss of a boat occasioned by the want of reasonable care and skill in providing proper fastenings for boats when lying at the wharf. Shinkle v. Covington, 1 Bush (Ky.), 617. Lessee of a city is liable for damages caused by defective wharves. Radway v. Briggs, 37 N. Y. 256. A city which has leased a wharf or wharf boat is not liable for injuries resulting from the negligence of the lessee. Carrolton Furniture Mfg. Co. v. Carrolton, 104 Ky. 525. Where a wharf is rendered unsafe by the acts of others, notice of the defect express or implied is an element necessary to liability, the same as in the case of a defective highway. Seaman v. New York, 3 Daly (N. Y.), 147. Those in control of a public pier are bound to exercise the same care for the safety of the public and all having occasion to use the pier as is required of those in control of the public streets. Oceanic Steam Nav. Co. v. Campania Transatlantica Espaniola, 134 N. Y. 461. 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. Jeffersonville v. Louisville & J. Ferry Co., 27 Ind. 100; s. c. 35 Ind. 19; Prescott v. Duquesne, 48 Pa. St. 118. But see Buckbee v. Brown, 21 Wend. (N. Y.) 110, where it was held that in an action for wharfage, the defendant may, by way of recoupment, show that the wharves, during the accruing of the toll, were out of repair, whereby he sustained damage, &c. The Board of State Harbor Commissioners of California, although agent of the State, is liable as in an action for breach of contract, where it per mits a wharf within its control to become unsafe in consequence of which it falls, whereby a large quantity of coal placed thereon is lost. Chapman v. State, 104 Cal. 690. But in the exercise of the powers of the board to control the harbor and the vessels using it by opening passage ways for ferry boats; controlling the anchorage of vessels; removing vessels from the wharves and piers when unloaded, and the general care of all the property belonging to the State and connected with the wharves and piers or used, the board exercises duties of a police character and purely governmental in their nature. Hence it is not liable to an employee on a tug boat owned and controlled by it for injuries caused by their negligence when he is employed for the protection against or extinguishment of fires, such employment being in a governmental or police duty. Denning v. State, 123 Cal. 316. As to powers and jurisdiction of harbor commissioners in protecting navigation and removing obstacles, see Quigg v. Evans, 121 Cal. 546. See post, chapter on Actions and Liabilities, 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. City not liable for filling up slip by discharge from sewer. Reed v. Lynn, 126 Mass. 367. 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.1 If the legislature has conferred, as in some of the ancient 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.3 The transportation by a transfer company of 548. As to corporations by prescription, see ante, §§ 50, 55. In Louisiana, the authority of towns situated on navigable streams to establish and operate public ferries rests upon special grants. Hoggard v. Monroe, 51 La. Añ. 683. Under the Constitution of Tennessee, as construed, there is no power to grant to municipalities in that State the right to regulate and license ferries. Malone v. Williams, 118 Tenn. 390; 103 S. W. Rep. 798. The court admits that it is customary to make such grants "in England and some of the States" (quoting text, §§ 275, 276, 277), but in this State it is different. Ib. 2 Costar 2. Brush, 25 Wend. (N. Y.) 628. See also Mayor, &c. of New York v. Starin, 106 N. Y. 1; Mayor, &c. of New York v. New Jersey S. N. Co., 106 N. Y. 28; Laredo v. International Bridge and Tramway Co., 30 U. S. 1 East Hartford v. Hartford Bridge Co., 10 How. (U. S.) 511; Roper v. McWhorter, 77 Va. 214; ante, 111. As to extinguishment of ferry franchise by a subsequent legislative grant to build a bridge at the site of the ferry, and take tolls, see the famous case of Charles River Bridge v. Warren Bridge, 11 Pet. (U. S.) 420. 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. Ib. 270. But fifty years' subsequent experience has vindicated the judgment of the court and placed it upon an immovable and unquestioned foundation. Claim App. 110. of exclusive privilege of transporting 3 Minturn v. Larue, 23 How. (U. S.) persons, animals, and vehicles across 435; Harrison v. State, 9 Mo. 526; a river within half a mile of location McEwen v. Taylor, 4 G. Greene (Iowa), of ferry denied in Wheeling & Belmont 532; ante, §§ 237-239, and cases in Bridge Co. v. Wheeling Bridge Co., 138 notes. There may possibly be an exU. S. 287. Construction of special grant. ception to the rule stated in the text Hartford Bridge Co. v. Ferry Co., 29 where an investment of capital is Conn. 210. Where a ferry had been needed and is made in consideration of maintained by a city for a time beyond an exclusive right for a limited and the memory of living men, it was held, reasonable period. See chapters on in the absence of other evidence, that Contracts and Public Utilities, post. its franchise was established by prescrip- While the exclusive power conferred tion; and also, that while the State by the legislature upon a city to grant could divest the city of the franchise, a ferry license does not authorize it its purpose and intent to do so must to grant an exclusive license, yet the clearly appear, and cannot be left to power to grant an exclusive license is implication. Laredo v. Martin, 52 Tex. conferred when the city is authorized railroad cars loaded or unloaded over the Mississippi River between Missouri and Illinois is interstate commerce within the meaning of the Federal Constitution, and is not the business of "ferrying" in its strict technical or proper sense, and a State or its municipalities cannot impose a license tax upon such transportation as a condition of carrying it on.1 § 276 (115). 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 "to grant or refuse a license." Burlington & H. Ferry Co. v. Davis, 48 Iowa, 133. 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 occupations, does not, it seems, include the power to create a monopoly. Chicago v. Rumpff, 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. Car. 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 public policy). Whether the dedication of land for a highway or street terminating on a river will authorize the use of the same for a ferry landing, that is, for fastening boats and receiving and discharging freights and passengers, without the consent of the abutting owner, see Prosser v. Wappello County, 18 Iowa, 327, and cases cited; also 4 Am. Law Reg. (N. s.) 519; supra, § 261, note, § 268, note. In Combs v. Hogg, 101 Ky. 178, it was held that the court has no power, after granting a ferry privilege to one person in a city or town, to grant such a privilege to another unless public convenience requires it. 1 St. Clair County v. Interstate Transfer Co., 192 U. S. 454. The previous "ferry cases" in the Supreme Court of the United States are analyzed, critically reviewed, and explained by Mr. Justice White. The court did not decide but left open the question whether the police power of the State extended to the establishment, regulation, or licensing of ferries on navigable streams which are boundaries between States, but the court held that if such power in a State be conceded to exist, it did not extend to transportation of railroad cars by a transfer company, as such transportation is not ferriage in its true sense, but is interstate commerce which cannot be taxed or otherwise subjected to direct burdens by a State. 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 § 277 (116). Power to lease, covenant, &c. - 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 Chilvers v. People, 11 Mich. 43. 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, §§ 661, 1408. Amount of license city may exact, the State law on the subject being held to affect the city; Reddick v. Amelia, 1 Mo. 5. Fay, In re, 15 Pick. (Mass.) 243. The court will not try on certiorari the conflicting titles of parties to a ferry franchise. Ib.; ante, chap. vii. § 245. Rights of municipal corporations in connection with ferries, and extent of legislative control. See Fanning v. Gregoire et al., 16 How. (U. S.) 524; East Hartford v. Hartford Bridge Co., 10 How. 511; aff'g s. c. 16 Conn. 149; 17 Conn. 80, 96; supra, § 275; Chilvers v. People, 11 Mich. 43; O'Neill v. Police Jury, 21 La. An. 586; Aikin v. Railroad Co., 20 N. Y. 370, 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, 348; Conner v. New Albany, 1 Blackf. (Ind.) 43; City v. Ferry Co., 27 Ind. 100; Shallv. Jeffersonville, 27 Ind. 193. cross 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. "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. McDonell v. International & G. N. Ry. Co., 60 Tex. 590. See supra, §§ 244, 245. In Virginia, it was held that a county 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. |