USA > California > Alameda County > History of Alameda County, California : including its geology, topography, soil, and productions > Part 77
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"But when an exclusive privilege under a statute is claimed, and the Court is asked to forbid the commission of an act, otherwise lawful, because it interferes with the exclusive privilege claimed, the legal right of the complainant must be clear. It is said that in this case the Court should interfere because the tresspass on the com- plainant is continuous, and cannot be estimated in damages.
"But the damages to the defendants, if they are prevented from running their boat until their cause is heard, are equally unsusceptible of calculation, and may be greater than the complainant can sustain by the competition. The Court should therefore be fully satisfied that the right exists, before, by its injunction, it will cause to the defendants an injury quite as irreparable and perhaps more extensive than that appre- hended by the complainant.
"The supposed authority of the Trustees to make the ordinance and contract relied on by the complainant, is contained in the third section of the Act to incorpo- rate the town of Oakland, passed May 4, 1854 .* This section provides 'that the Board of Trustees shall have power to make such by-laws and ordinances as they may deem fit, proper, and necessary; to regulate, improve, sell, or otherwise dispose of the common property; to prevent and extinguish fires; to lay out, make, open, widen, regulate, and keep in repair all streets, roads, bridges, ferries, public places and grounds, wharves, docks, piers, slips, sewers, wells, and alleys, and to authorize the construction of the same; and with a view to facilitate the construction of wharves and other improvements, the lands lying within the limits aforesaid, between high-tide and ship channel, are hereby granted and released to said town.'
"It is not claimed that the foregoing provisions constitute a grant to the town of Oakland, of all ferries from that town, as property.
"It is urged, however, that they amount to a delegation to the Trustees of all the legislative and sovereign power possessed by the State, over the subject of ferries from that town. That, in the exercise of that power, the trustees could make any contract and confer any rights, with regard to ferries, they might deem proper, and that, hav- ing done so, the rights thereby conferred rested and remain indefcasible, either by the Trustees or the State, except in the exercise of the right of eminent domain.
"The first question to be considered is, what were the nature and extent of the authority conferred upon the Trustees by the Act above cited?
Should be May 4, 1852.
547
OAKLAND TOWNSHIP-CITY OF OAKLAND.
"The only words in the clause which can be construed to confer the powers sup- posed, are the words 'make' and 'authorize the construction of.'
"It is evident that most of the empowering words in the phrase do not apply to all the objects in reference to which the powers are to be exercised. For instance: The word 'open' cannot refer to 'ferries,' nor the word 'widen' to. 'wells.' The words 'lay out' evidently refer to 'streets,' 'roads,' 'public places' and 'grounds;' and the words 'authorize the construction' have obviously a more specific reference to the docks, wharves, bridges, and sewers mentioned, or to the ferries.
" It is clear, therefore, that the various empowering words in the phrase must be construed distributively 'reddendo singula singulis;' and they must be distributed among the objects mentioned, in such a way as to give, with respect to each, only those powers which would naturally be conferred upon a municipal corporation, with reference to such objects.
"To apply the word 'make' to 'ferries' and to construe it as conferring the absolute right of leasing indefinitely, or granting the franchise for all ferries from the town to any individual, would seem a forced interpretation, suggested rather by the desire to find in the Act the authority sought for, than by the natural construction of the phrase itself. If 'make' were the only word which could apply to ferries, or if ' ferries' was the only word which would satisfy and give effect to the word 'make,' the construction contended for would be more plausible.
" But the word 'regulate' not only can be applied to the ferries, but is sufficient to confer all the authority with respect to them which would naturally and appropri- ately be given to a municipal corporation from whom a grant of the franchise in prop- erty is withheld; while the word 'make' has a similar operation if applied to the bridges, wharves, piers, docks, sewers, wells, etc.
" ' To make ferries' is certainly an unusual and awkward expression. The more appropriate phrase would obviously be 'to establish ferries;' and had the extensive powers with regard to them which are now claimed, been intended to be conferred, it is hardly possible that the Legislature would have omitted in specific terms to grant and enumerate them. The construction contended for assumes that while the Legis- lature withheld the grant of the franchise from the corporation as property, it never- theless intended to give them full power to grant the exclusive franchise as property to any individual; to be assigned or sold by him at pleasure, and capable of being owned by a foreigner or a citizen of another State; and all this by the force of the word 'make' which is wrested from its natural application to other objects and made to refer to ferries by an ingenious and forced construction.
" The words 'authorize the construction of' cannot be appealed to as conferring the powers attempted to be exercised in this case. Whatever propriety there might be in the phrase 'construct a ferry,' the power to do so can hardly be deemed a power to grant or lease an exclusive franchise and privilege of establishing it, especially when such franchise is not conferred upon the donee of the power to construct; and in this case the power is not given to 'construct,' but to 'authorize the construction of' ferries, if, indeed, it refers to ferries at all. It is, therefore, merely a power to permit, or to allow them to be constructed. It would surely be an unwarrantable latitude of con- struction, to hold that a power to permit the construction of a ferry unaccompanied
548
HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
by a grant of the franchise, authorized the absolute grant of an exclusive franchise to any one the party empowered to permit might see fit to give it. But for the reasons before assigned, I think the words 'authorize the construction of' apply to wharves, docks, piers, bridges, etc., and not to ferries; with reference to which they are obviously inappropriate. But assuming that the words 'make' and 'authorize the construction of' apply to ferries, the question recurs, whether the trustees were authorized by the power thus given, to confer the right now claimed.
"The ordinance under which the contract with Edward R. Carpentier was made, provides that 'the Trustees, etc., do hereby make, open, widen, lay out, grant, create, ordain, establish, and regulate a public ferry between said town of Oakland and the city of San Francisco, to be called the Oakland Ferry; and they do hereby bargain and contract with Edward R. Carpentier, his heirs, agents, and assigns, to run said ferry for the period of twenty years, according to the terms of this ordinance, either as a separate ferry, or in connection with, or continuance of the one already estab- lished and used between said town and said city, hereby granting, selling, and releasing, and conveying to his successors in interest and assigns, exclusively, for the period of twenty years, the right to keep and run a publie ferry, or public ferries so as to demand and receive compensation therefor, between the said town of Oakland and the city of San Francisco, or between the said town of Oakland and any other place; together with all and singular the ferry rights, privileges, and franchises which now are or may hereafter be owned by said town.' The contract made in pursuance of this ordinance is in substantially the same language.
" Admitting that so much of this ordinance as purports to establish, create, and make a public ferry between Oakland and San Francisco is a valid exercise of the power conferred on the Trustees, we are next to inquire whether the grant and the subsequent contract was also within the power of the Trustees.
" It will be seen that the Trustees in express terms convey and grant for twenty years to Carpentier and his successors, exclusively, the right of running and keeping a ferry or ferries between Oakland and San Francisco, and between Oakland and any other places, and they undertake to convey to him 'all the ferry rights, privileges, and franchises which now are, or may hereafter be, owned by said town.'
It is not contended that the town of Oakland was the owner of any exclusive ferry franchise whatever. The grant, therefore, of the ferry franchises owned by the town would, of course, pass for nothing. As to the grant of all ferry franchises which might thereafter be owned by it, no observations are necessary; but it is said that the Trustees, in the exercise of their power to establish ferries, had incidentally and as the appropriate means of establishing them, the right to lease them to individuals. It is not necessary to inquire into the authority of the corporation to establish a par- ticular ferry, and to lease it to an individual.
" The right they have attempted to convey to Carpentier was not a lease of a particular ferry between a certain point in the town of Oakland and the city of San Francisco, but the exclusive right to keep and run a ferry or ferries between Oakland or any other place. Thus they abdicated and renounced the exercise of all the powers with respect to ferries with which they were intrusted, except that of 'regulating.' For the power to establish other ferries could be of no avail, so long as Carpentier retained the exclusive right to run and keep them.
549
OAKLAND TOWNSHIP-CITY OF OAKLAND.
"It would perhaps be difficult to find in the history of municipal corporations another instance of so extraordinary a grant. It was not only not an exercise of any power they may have possessed to establish ferries, but it was, in effect, the surrender of the whole power to establish them, and it amounted to an agreement that no ferry should be established from Oakland to any place whatever, unless by the permission of the person to whom they had given the exclusive right to run them. It seems to me that the legality of the grant cannot, for a moment, be supported.
" The authority vested in the Board was conferred upon them as Trustees for the public, to be exercised for the public good. They had not only the right, but it was their duty, and that of their successors, to exercise the power of establishing ferries as agents and trustees of the public, whenever the public good might require.
" The power to establish ferries, if it existed at all, was a continuing power and duty, which existed in every Board of Trustees for the time being; and no contract by one Board not to exercise it, or for the exclusive enjoyment of the franchise by an individual, could prohibit or restrain their successors from exercising the powers vested in them by the statute to establish and license other ferries required by public convenience and necessity. (Fay, Petitioner, etc., 15 Pick. 243.)
" But to ascertain more certainly the intention of the law, and the nature and extent of the powers conferred upon the Trustees, the Legislature of the State with regard to ferries must be considered.
" By the Act of March, 1850, all persons were forbidden to keep ferries without a license, except for their own use, or of that of their families. The Courts of Sessions were empowered to establish ferries across bays, creeks, or sloughs bounding or within their respective counties, as they might deem necessary, and were authorized to issue a license to keep a public ferry to any suitable person applying therefor, for a term not to exceed one year, on the fulfillment by the applicant of certain prerequisites. They could also license and establish additional ferries within less than two miles from a regularly established ferry, when necessary for public convenience, and on notice to the proprietor of such previously established ferry. The Act further provides for the establishment of ferries on private property, for the occupation of ground at either end of the ferry, and for the publication of a notice of the application of a ferry. It also prescribes the duties and privileges of ferry-men, and provides for the rates of ferriage, revoking licenses, and for the penalties to be imposed for a refusal to transfer persons or property.
" All those provisions werc of a general character, and applied to all the counties of the State. They were evidently designed to provide by general law for the estab- lishment of ferries, for conferring the franchise in suitable cases, with proper checks and securities, and with the express reservation of the right to confer a similar fran- chise upon persons other than the proprietor of the first established ferry, wherever it might be deemed necessary or advantageous to the public.
" The same provisions, in substance, remain as part of the general law of this State, to the present day, except that it having been determined that under the Con- stitution of this State, the Courts of Sessions could not exercise the functions assigned to them by the Act, the same powers, in substance, were by the Act of 1855, veste in the Boards of Supervisors.
550
HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
"On the 14th of April, 1853, an Act was passed, declaring that the second sec- tion of the Act creating and regulating public ferries should not be construed to apply to the bays of San Pablo, Suisun, San Francisco, or Monterey; and the naviga- tion of said bays, and the transportation of freight or passengers over, across, or through the same was declared to be free and exempt from the restriction of any ferry laws then in force in the State. These provisions have been repealed, in substance, in all the succeeding ferry laws passed on the subject.
"It will not be disputed that these laws indicate and establish the settled policy of the State, with regard to public ferries; that it was intended to confer the franchise, for a limited time, on persons found to be suitable, and with certain privileges, checks, securities, and penalties provided by law; that such privileges were not to be exclu- sive, but other ferries could be established contiguous to any established ferry, when- ever deemed necessary; and that the State was to derive a revenue from the issuing of the licenses.
"The law of 1853, and subsequent enactments to the same effect, show that the great arms of the sea therein mentioned were not regarded as fit for the establish- ment of any ferries whatever, but that the navigation and transportation of freight and passengers across, through, and over them were to be left free and exempt from the restriction of any ferry laws in force in this State. Such being the settled policy and law of this State with regard to public ferries, and with reference to the bays men- tioned, it is not to be presumed, without the clearest evidence of a contrary intention, that the Legislature intended to confer upon the trustees of a small town on the bay of San Francisco, the power to grant an exclusive privilege to establish ferries. across the most important of these bodies of water, the navigation of which was, the next year, declared free and exempt from all ferry laws.
"If the general ferry law, under which no exclusive rights could be acquired, nor license granted for more than a year, was deemed unfit to be applied to the bay of San Francisco, the inference is irresistible, that it could not have been the inten- tion, only one year previously, to confer upon the trustees of a town an unlimited power to grant exclusive privileges, for any period, with reference to the same waters, to any individual they might choose.
"It is admitted that the law by which the power claimed was conferred, might at any time have been repealed. Had the Legislature, when, in 1853, it declared the bays mentioned to be exempt from the operation of all ferry laws, and the naviga- tion over and across them to be free, supposed that the Trustees of Oakland were empowered to grant an exclusive right to an individual to establish ferries to the most important city of the State, they would surely not have omitted to revoke the powers and repeal the law by which they were conferred.
"The question we have been considering is purely one of construction, and even if the language of the Act were more doubtful, yet, when read by the light of the previous and immediately subsequent legislation of the State, its true interpretation would seem to be unmistakable.
"But, it is said that the power to establish a ferry imparts 'ex vi termini,' a power to confer exclusive rights in the ferry so established; that without such rights it would not be a ferry in the legal sense of the term. But on this point the case of
551
OAKLAND TOWNSHIP-CITY OF OAKLAND.
Fanning vs. Gregoire (16 Howard, 524) is decisive. In that case Fanning claimed under a direct grant from the Legislature, authorizing him to keep a ferry at the town of Dubuque, across the Mississippi River, for the term of twenty years. This he accordingly established. Subsequently, the State conferred upon the City Council of Dubuque power to license and establish public ferries across the Mississippi; and under the power a license was granted. On a suit by Fanning against the license, it was held that his franchise was not exclusive, but that the Legislature had a right to license other ferries.
"It is clear that if a direct grant, to an individual, of authority to establish and keep a ferry at a particular place does not vest in him an exclusive franchise, the grant to a municipal corporation power to establish ferries, does not authorize them to bestow exclusive privileges. If the term 'ferry' in the grant to Fanning did not impart any exclusive franchise, it cannot have that meaning in the Act incorporating Oakland. It can surely make no difference whether the State is supposed to have duly surrendered to an individual its power of improvement and accommodation in a great and important line of public travel, or whether it is supposed to have author- ized a municipal corporation'to surrender it; in either case 'its abandonment ought to be presumed, when the deliberate purpose of the State to abandon it does not appear.' (I Peters, 514.)
"It is urged that, even if the town of Oakland or the State had power to license other ferries, yet the right of complainant to the exclusive enjoyment of the ferry on the particular ferry-ways established by him ought to be protected. But in the case above referred to no such distinction appears to have been taken. The right claimed was like this-an exclusive right to run a ferry from a certain town across the Mississippi for twenty years. The infringement complained of was the licensing and establishment of another from the same town, across the same river. The Court decided that the franchise claimed was not exclusive, and that the establishment of the second ferry was legal. It is nowhere suggested that the second licensee could not run his boat from any part of the town of Dubuque, and even from the same wharf as that used by the first licensee.
"The privilege attempted to be granted in this case was not the privilege of keeping and running a ferry from any specified dock or wharf in the town of Oakland to any other point across the bay. It was the right to keep and run a ferry or ferries from the town of Oakland generally to any place whatever. Whether, if the trustees had established a ferry from a certain wharf, and leased the same to an individual, his rights in such ferry would have been exclusive, it is not necessary to inquire, for the right granted was the exclusive right to run 'a ferry or ferries' from the town of Oakland to any place, with all the ferry rights, privileges, and franchises then owned or thereafter to be owned by the town.
"But admitting, for the sake of argument, not only that the trustees were empow- ered to establish ferries, but that the Legislature intended to confer upon them powers to grant to an individual the exclusive franchise for any period of running and keep- ing the ferries so established, such a construction affords an argument almost irre- sistible: that those powers could only have been conferred with regard to ferries wholly within the corporate limits.
552
HISTORY OF ALAMEDA COUNTY, CALIFORNIA.
"Within those limits is the creek San Antonio, which can only be crossed by bridges or boats. If, then, the power to grant a franchise in property was intended to be conferred, it is surely more reasonable, and more in accordance with every rule relating to the construction of grants of this description, to construe it as referring to ferries across waters wholly within the corporate limits, than to suppose it to extend to ferries across a bay, the navigation of which was, in less than a year afterwards, declared free and open to all.
"With reference to the streets, docks, wharves, and sewers this limitation is necessarily understood. Why not with regard to ferries, if the power to grant the franchise was intended to be given? The ferry from Oakland to this city affords the principal, if not the only means of convenient access to the commercial center and chief seaport of the State, not only to the citizens of Oakland, but to the inhabitants of a considerable district, and the possession of an exclusive franchise of running and keeping all ferries between Oakland and this city, gives to the possessor the prac- tical control of the means of communication. Can it be supposed that the Legisla- ture intended to give the power to grant such a right to the corporate authorities of a town situated at one terminus of the ferry, and to take away or render nugatory the rights of the county at the other terminus to license ferries across the water forming their common boundary? That this right existed in both counties, under the law of 1851, is clear. But the privileges conferred by the license under the ferry laws are limited, and not exclusive in the person obtaining the license. To suppose, then, that the power contended for was conferred upon the Trustees of Oakland, we must suppose that the power given to every county on the bay of San Francisco, between which and Oakland a ferry might be established, were revoked, and the gen- eral ferry laws on that subject repealed by implication. And this by force of the worl 'make,' which we are asked first to apply to ferries, and then to construe as has been explained. It may be said that the question is not now as to the right of other counties to license ferries under the general ferry laws. This is true. But the question is, as to the exclusive right of the complainant to a ferry between Oakland and this city-as against defendants; and in construing the law under which this his alleged rights are claimed, it is of importance to show that the power to confer such rights was incompatible with the then existing laws, conferring powers over ferries to other counties, and could only have been given by repealing pro tanto these laws; as also that it was incompatible with subsequent laws, by which all power to establish ferries over the waters in question was taken away.
" It has not seemed to me necessary to refer on this point to the general rules relating to the construction of grants of this kind.
" It is not denied that grants of privileges, franchises, etc., are to be strictly con- strued, and that nothing is to be taken by intendment.
" It is claimed, however, that this is a delegation of legislative authority, and not a grant of a franchise, and that therefore a different rule must be applied. I confess myself unable to see the propriety of this distinction in the present case.
" The State is the sovereign from whom the power is derived, whether it is sup- posed to have granted directly to a corporation the exclusive franchise as property, as was done in the case of the city of New York, or to have granted to the corpora-
Grai
Charles Trask
553
OAKLAND TOWNSHIP-CITY OF OAKLAND.
tion power to make an exclusive grant of the franchise to an individual; in either case the rules of construction must be the same. It can surely make no difference whether the corporation is the direct grantee of the franchise or the donee of a power to make a grant of it and receive the consideration.
" Many other questions were raised and argued at the hearing, which it is unnec- essary to discuss.
"On the whole, I think:
" First .- That it is at least doubtful whether the Act incorporating the town of Oakland gave to the Trustees any other power with regard to ferries than that of regulating them.
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