Wiggins Ferry Co v. City of East St. Louis

ERROR to the Supreme Court of the State of Illinois.

This was an action of debt brought in the city court of East St. Louis, St. Claire county, Illinois, by the city of East St. Louis against a corporation of the State of Illinois, known as the Wiggins Ferry Company, to recover from it license money imposed by an ordinance of the city. The ferry company pleaded nil debit. By consent of parties the cause was submitted to the court on an agreed statement of facts, which was as follows:

Under and by authority of an act of the legislature of Illinois, entitled 'An act to authorize Samuel Wiggins to establish a ferry upon the waters of the Mississippi,' approved March 2, 1819, and amendatory acts, Wiggins and his associates did establish, maintain, and operate a ferry upon and over the Mississippi river, between the city of St. Louis, in the state of Missouri, and the Illinois shore of the river opposite to the city of St. Louis, now within the limits of the city of East St. Louis, from about the time of the passage of the act of 1819, until the organization of the Wiggins Ferry Company in the year 1853, under and by authority of an act of the legislature entitled 'An act to incorporate the Wiggins Ferry Company,' approved February 11, 1853. In the year 1853, under authority of said act of 1853, the successors, heirs, and assigns of Samuel Wiggins, the then owners of the ferry and ferry franchise, and of all the rights, privileges, and immunities granted to Samuel Wiggins and his successors, heirs, and assigns, by proper deeds and assignments conveyed the same to defendant, they having become the stockholders of said ferry company, and from thence hitherto defendant has remained the lawful owner of said ferry, ferry franchise, rights, privileges, and immunities, including the ferry-boats, wharf-boats, wharfs, and landings in use by said ferry, and the rights, privileges, immunities, and franchises granted by said act of 1853, and amendatory acts, and under and by authority of all said grants, franchises, rights privileges, and immunities defendant has maintained and operated said ferry from thence hitherto. The Mississippi river, at the point between the states of Illinois and Missouri, upon and over which the said ferry is established and operated, has, under the laws of the United States, and the rules and regulations established thereunder, by the duly-authorized officers of the United States, been declared to be, and is, a navigable river within the purview of such laws; and under said laws, rules, and regulations, and especially in conformity to the Revised Statutes of the United Statutes, title L, 'Regulation of vessels in domestic commerce,' the defendant for the last 20 years and more has been required to, and has had all its ferry-boats, all of which are more than 20 tons burden, regularly enrolled and annually inspected and licensed, at an annual cost of from $75 to $100 per boat, according to tonnage and number of men employed on each. The defendant over since its organization has paid to the county of St. Clair, as a ferry license, the sum of $300 per annum, under the laws of Illinois and the requirements of the county authorities; and has owned the wharfs and landing used by said ferry in the city of East St. Louis, which is graded and paved at its own expense, and it has never used or employed any wharf or landing belonging to the city of East St. Louis. Defendant ever since its organization has annually listed for taxation, and paid all taxes legally assessed upon all its property; all its personal property, including its boats and franchise, and all its real estate which is situated within the city limits, and including its wharfs and landings, having been taxed by said city of East St. Louis ever since the organization of said city.

The Illinois & St. Louis Ferry Company and the St. Louis & Cahokia Ferry Company own and operate ferries over and across the Mississippi river between the said city of St. Louis and the Illinois shore, but without the limits of the city of East St. Louis, both in active competition with the ferry of defendant, neither of which are or ever have been required to pay any sum whatever for license to either the city of East St. Louis or any other municipal corporation except the county of St. Clair, to which they both pay license fees.

The St. Louis Bridge Company, which owns and operates a bridge over the Mississippi river between said cities St. Louis and East St. Louis, which has been in active competition with defendant ever since said bridge was opened for use in July, 1874, is required to pay no license fee whatever to the city of East St. Louis. On June 1, 1868, the city council of the city of East St. Louis duly passed and published 'Ordinance No. 70,' parts of which are as follows:

'Section 1. No person, firm, company, or corporation shall be engaged in, prosecute, or carry on any trade, business, calling, or profession hereinafter mentioned without first having obtained a license therefor.

'Sec. 10. Keepers of ferries shall pay $50 license for each boat plying between this city and the opposite bank of the river for one year, or $25 for each boat for six months.'

In compliance with the above ordinance defendant paid said city a license fee $50 per annum on each of its ferry boats, its last license thereunder being from May 1, 1874, to May 1, 1875.

On October 7, 1878, said city council passed ordinance No. 317, which is substantially the same as ordinance No. 70, except that it fixes the license fee at $100 per annum for each boat. On May 1, 1875, and from thence hitherto, the defendant, in the operation of its ferry between said cities of St. Louis and East St. Louis, has employed eight ferry-boats, (including two tugs and one transfer-boat,) and since said May 1, 1875, has not taken out any license nor paid any license fee to said city of East St. Louis. Upon the facts here stated, and the laws applicable thereto, the court shall determine the right of plaintiff to demand and the liability of defendant to pay the license fee fixed by said ordinance, or either of them, and render judgment accordingly, and this without regard to the pleadings in the case. The acts of the legislature, and the laws, rules, and regulations of the United States, and the enrollments, inspections, and licenses herein mentioned or referred to, and the charter and ordinances of said city of East St. Louis, or copies thereof, may be used and referred to as a part of the record in this case.

So much of the act of 1819, referred to in the agreed statement of facts, entitled 'An act to authorize Samuel Wiggins to establish a ferry upon the waters of the Mississippi river,' as is pertinent in this case, is as follows:

'Section 1. That Samuel Wiggins, his heirs and assigns, be, and they are hereby, authorized to establish a ferry on the waters of the Mississippi, near the town of Illinois, in this state, and to run the same from lands at the said place that may belong to him.

'Sec. 4. That the ferry established shall be subject to the same taxes as are now, or hereafter may be, imposed on other ferries within this state, and under the same regulations and forfeitures.'

So much of the act of February 11, 1853, 'to incorporate the Wiggins Ferry Company,' as is material to this case, is as follows:

After a preamble, which recited the above-mentioned act of 1819 and acts amendatory thereof, it was enacted:

'Section 1. That [certain persons, naming them,] and their associates, successors, and assigns, are hereby created a body corporate and politic by the name and style of the 'Wiggins Ferry Company,' * * * and the said company shall have full power * * * to purchase, hold, use, and enjoy the ferry franchise granted to Samuel Wiggins, his heirs and assigns, by the act referred to in the preamble of this act, * * * to keep a ferry or ferries at and from any point or points on said land, across the Mississippi river to St. Louis. in the state of Missouri, and use and enjoy all the rights, privileges, franchises, and emoluments recited in the preamble of this act as having been heretofore granted to the said Samuel Wiggins, his heirs and assigns.

'Sec. 7. * * * Provided, that nothing in this act contained shall be construed to create any private right so as to interfere with the powers of any existing municipal corporation, or with the right of the legislature, at any time hereafter, to create municipal corporations within the limits herein specified, and to confer upon said corporations all such powers of police * * * as may be usually or properly confided to a city corporation under the constitution of Illinois.' The authority to pass the ordinance under which the plaintiff claimed license money from the defendant was its charter, passed in 1869, which empowered it 'to regulate, tax, and license ferry-boats.' 1 Priv. Laws Ill. 1869, p. 893.

Upon these facts the court found the issues for the plaintiff, and assessed its damages at $1,600, for which sum it rendered judgment against the defendant.

The case was taken by the appeal of defendant to the appellante court of the fourth district of Illinois, by which the judgment of the city court of East St. Louis was affirmed. The defendant then carried the case, by appeal, to the supreme court of Illinois, by which the judgment of the appellate court was affirmed.

To obtain a reversal of this judgment of the supreme court, the defendant has brought the case to this court by writ or error.



H. P. Buxton, for plaintiff in error.

M. Millard and J. M. Fuels, for defendant in error.

WOODS, J.