Francis B. Fay , 32 Mass. 243 ( 1834 )

Shaw C. J.

delivered the opinion of the Court. So far as this petition seeks to bring before the Court the records, orders and doings of the town and city of Boston, in relation to Winnisimmet ferry and the demise thereof to the petitioners or others, it is not a subject for judicial inquiry in tnia summary form ; they are proceedings in no respect judicial , and in regard to them, and the rights of parties under them, this Court has no jurisdiction in this form to inquire or decide.

The other proceedings, in relation to the granting of a license for a ferry, are alleged to have been had before the mayor and aldermen of the city of Boston, under a clause of general jurisdiction, as successors of the late Court of Sessions, and were in the nature of judicial proceedings ; and although that body do not proceed according to the forms of a court of law, yet so far as those proceedings are judicial, they are a proper subject of examination by this Court, by certiorari. Parks v. Boston, 8 Pick. 218.

The petitioners, as well in their petition as by their evidence and argument, have set forth and apparently relied upon their alleged title to the franchise of Winnisimmet ferry, with a right to a ferry to Noddle’s Island, as collateral and incident thereto, and the disturbance which the ferry complained of would occasion to the enjoyment of their franchise. But we consider it very clear, that it is not competent to the Court, in this form, to try the conflicting titles of these parties to this franchise, and that this claim of title by the petitioners is no otherwise relevant and material, than as it shows, that they may have a great though indirect interest in the subject matter, and may vindicate the propriety of their offering to show, if they can, that the proceedings by which a rival ferry was licensed, were erroneous, irregular, or had before a tribunal having no jurisdiction, and so were void and of no effect. But as it is now conceded, that the petitioners were heard before the mayor and aldermen, to remonstrate against this license and oppose it, and were thus recognised as parties to the proceedings, and as the respondents make no objection to the presentation of this petition on the ground that the petitioners are strangers or persons having no interest in the subject, the direct question of their title to the exclusive franchise of a ferry to Winnisimmet and Noddle’s Island is not now before the Court, and we give no opinion respecting it.

The first question therefore is, whether the mayor and aldermen of the city of Boston had jurisdiction of the subject matter, and the power to license a ferry from one place to another, both being within the territorial limits of the city. This must depend mainly upon the construction of the statutes. It must be recollected, in construing these acts, that the St. 1821, c. 109, regulating the administration of justice within the county of Suffolk and for other purposes, and the St. 1821, c. 110, for establishing the city of Boston, were passed on the same day, had reference to each other, by their terms were to go into operation together, and for all purposes of exposition may be considered as one statute. By St. 1821, c. 109, § 11, the Court of Sessions within the county of Suffolk is abolished, and its powers and duties are transferred to the mayor and aldermen, except as otherwise provided in that act, or the act establishing the city. The point of inquiry then is, whether prior to the passing of that act the power of licensing ferries was in the Court of Sessions for the county of Suffolk. In this inquiry it will be important to distinguish between the power of licensing ferries, and that of laying out highways.

At common law a ferry is deemed a franchise, which cannot be set up without the king’s license. Churchman v. Tunstal, Hardr. 163. In this commonwealth it is regulated by statute. Though a ferry be in its nature part of a highway, yet it is in many respects distinguishable ; and from the earliest times of the colonial government, in Massachusetts, the mode of establishing ferries, and that of laying out highways, have been kept distinct. Several different acts are to be found in the colony ordinances, and several among the acts of the provincial legislature, in all of which these powers are kept entirely distinct. These different provisions were revised and the most important of them embodied and reenacted by St. 1796, c. 42, by which former acts were repealed, except so far as they affected existing rights and liabilities.

By the provisions of this act, the Court of Sessions, for each county within which a ferry may be, is empowered to license ferrymen, to fix the rate of tolls, and to require bonds of the ferrymen for the faithful performance of their duties. There was a saving clause, however, in regard to all such ferries as had been already stated and settled by the court or town to whom they appertained. Such ferrymen were made subject to certain duties and obligations, designed to promote the public accommodation. The provisions of this act do in effect secure to licensed ferrymen, whilst their license continues, an exclusive benefit in the tolls to be derived . there- ’ from, by restraining all other persons from interfering to carry passengers for toll or hire, under suitable penalties. Such was the state of the general law, when the town of Boston was organized as a city.

By several acts passed in special reference to the peculiar situation of Boston, the whole power of laying out streets, ways and alleys, prior to its organization as a city, was vested in the selectmen of the town. But by the same acts it was provided, that any claim for damages, made by any person, for taking land or otherwise, arising from laying out or widening any street, lane or alley, might be prosecuted for and recovered in the manner pointed out .by an act of the commonwealth directing the method of laying out highways. St. 1799, c. 31. The act thus referred to was St. 1786, c. 67, by which damages were awarded by a jury ordered by the Court of Sessions, and acting under the direction of the sheriff. " By a more recent act vesting in the selectmen of Boston the power of laying out and widening streets, lanes and alleys, damages to parties whose land is taken, are to be recovered by application to the Court of Sessions. St. 1804 c. 73.

From these provisions it seems" clear, that previously to organizing the town of Boston as a city, the power of laying out streets &c. was in the selectmen ; but that all claims for damages not settled by agreement between the claimant and the selectmen, were to be prosecuted for in the Court of Sessions, and assessed by a jury. But by no reasonable construction could the power of laying out streets, lanes and alleys, be held to include the power of establishing ferries or licensing ferrymen. That power then, not being vested in the selectmen, by force of the general act remained in the Court of Sessions, when the act passed establishing the town as a city. It follows, therefore, that by the act already cited, St. 1821, c. 109, § 11, abolishing the Court of Sessions and vesting its powers in the mayor and aldermen, this power of licensing ferrymen was transferred to that board, unless it fell within some one of the exceptions. By f. 8, of the same act, it is provided, that the Court of Common Pleas in the county of Suffolk should have all the powers which before the passing of the act were vested in and exercised by the Court of Sessions, in regard to streets and ways, and to all ~ other suits, processes and proceedings, in which a trial by jury might be had and required.

We have already seen, that previously to this act, the power of laying out streets was in the selectmen, without any intervention of a jury ; the power of entertaining a claim for damages was in the Court of Sessions. By this distribution of powers, therefore, the former is now in the mayor and aldermen, and the latter in the Court of Common Pleas.

In like manner, as the power of licensing ferries was, before the act, in the Court of Sessions, by force of the act this power is transferred to the mayor and aldermen, unless it can be deemed a suit' or process in which a trial by jury may be had or required, and we think it quite clear that it cannot be so deemed. No statute regulating the licensing of ferries, provides for a jury for any purpose, and it is not easy to perceive that by any possibility a jury can be required in the execution of any implied power embraced in the authority to license ferries. It does not authorize or require the taking land or other property. If highways are required as incident to the use of a ferry, being on land, the power to lay out highways seems the appropriate one to be resorted to. The termini of the ferry are at the water’s edge on each side ; and if any ferry interferes with others, the remedy is at common law. But perhaps a still more decisive answer is this ; that the power to lay out highways, and the power to entertain a claim and suit for damages occasioned by such laying out, are clearly now in different bodies, the former, in the mayor and aldermen, and the latter, in the Court of Common Pleas ; tnd by a very obvious analogy, if the exercise of the power of licensing a ferry were to found a claim for damages on the part of any person, whose property might be taken or affected thereby, such claim would in like manner be within the jurisdiction of the Common Pleas.

The Court are therefore of opinion, that the power of licensing ferries within the city, is not one in the exercise of which a trial by jury can be had or required, that it was not within the exceptions of the 11th section, but was by force of t^lat section transferred to and vested in the mayor and alder- ' men, and so held by them, at the time the license in question was granted.

Supposing the mayor and aldermen had jurisdiction of the subject, several objections are ta'ken to the regularity, correctness and legal effect of the proceedings.

1. The first is, that the grant of this license was contrary to the terms or to the spirit and legal effect of the lease of Winnisimmet ferry, previously made to the petitioners, by the city of Boston, by the agency of the mayor and aldermen.

To consider this question in its full extent, would be to consider the question of the petitioners’ title, which, as a general question, is not now open ; but we think that this objection does not raise that question. Even if the city, by their authorized agents, had made a grant of a ferry or other franchise, claiming to be owners thereof, with express or implied covenants for an exclusive enjoyment of such franchise, this would not prohibit or restrain the mayor and aldermen from exercising the powers vested in them by statute, to license a ferry required by public convenience and necessity. Such authority is vested in them as trustees for the public, to be exercised for the public good, and cannot be restrained by the covenant of the city, though such covenant happens to be executed by the same agents. In such case, it is necessary to keep in view the distinction between the powers and functions of the mayor and aldermen, acting as agents for the city in its corporate capacity, capable of entering into contracts, and the same body as exercising powers vested in them by statute, in the unrestrained exercise of which the public have an interest. In the case supposed, if the city in its corporate capacity, was the legal owner and proprietor of an exclusive franchise, its grantees would hold it, notwithstanding any license to others, whether granted by the mayor and aldermen or any other tribunal; if it was not the owner of such an exclusive franchise, though the city might have granted it with a covenant for quiet enjoyment, and might be responsible on such covenant to the grantees, stil. such covenant could not restrain the mayor and aldermen from exercising their judgment, as agents and trustees for the ... public.

2. Another objection is, that the jurisdiction of the Court of Sessions did not extend to ferries over public navigable waters and arms of the sea.

The right to a ferry does not at all depend upon the right to, or property in the waters, over which it passes. It is a maxim upon this subject, that a right of ferry is a franchise consisting in the right to transport persons and carriages for hire, and therefore the property in the waters may be in one, and the right of ferry in another. This is said to be the case with ferries in the Thames, where the ferry in some places belongs to the archbishop of Canterbury, whilst the interest in the waters is in the mayor and aldermen of London.

But on general grounds, we think that this objection cannot be sustained. Whatever may be the theoretic view of the law, as to the property of public waters, it is very clear, that they are held for the use of the public, for all useful purposes. Ferrymen have the same common right to navigate these waters with their boats, as fishermen, coasters, shipmasters, with their boats and vessels, and the United States with her navies. The franchise of a ferry does not confer or enlarge, take away or impair the right of navigation. It is a franchise, conferring certain privileges, and imposing certain duties, not affecting the right of navigation, but presupposing its exis tence.

Ferries are as necessary over navigable waters as others ; the public accommodation requires them ;■ the general act on the subject, St. 1796, c. 42, is broad enough in its terms to extend to them ; and there is nothing in the nature of the power and license granted, which does not render them as well applicable to navigable waters, as to other streams, lakes, or waters wherein the convenience of travel requires such an accommodation. And in this connexion it may be proper to mark the broad distinction between the authority to license a ferry, and that to build a bridge ; inasmuch as the one does, and the other does not, obstruct navigation.

3. Some exception was made to the proceedings of the committee, to whom the subject was referred ; but whatever these proceedings were, they were merely preparatory to the action of the mayor and aldermen. It appears, that after the report was made, a hearing of the present petitioners was had before that board, after which the license was granted. We think therefore, that whether the committee agreed to the report or not, is wholly immaterial.

4. That the public convenience and necessity did not require such a ferry, that there were no inhabitants there, and no line of travel to be accommodated.

This is a question not open to the consideration of the Court, in this form of proceeding. Of the common convenience and necessity the mayor and aldermen were to judge, and the question here is as to the regularity of the proceedings. That there was no line of travel to be accommodated, depends on the same considerations. Where a new and convenient line of travel can be advantageously opened to the public, whether a ferry shall be licensed first, and highways afterwards opened to connect with it, or whether the ways on each side shall be first opened, is rather a question of expediency than of jurisdiction.

5. That a right of ferry has respect to the ownership of the soil, on both sides, and cannot exist without it.

Though there are some early dicta to this effect, it would be difficult to maintain that position in point of law. Peter v. Kendall, 6 Barn. & Cressw. 703. But the point is immaterial here, because it does not appear, that the persons licensed did not own the land on both sides.

6. That the ILense was void for its generality and uncertainty, in not defining more particularly the termini, in the old part of Boston, on one side, and Noddle’s Island on the other. We think these proceedings cannot be considered absolutely void for uncertainty, so as to be set aside on this ground, on certiorari. This question would perhaps present itself in a very different aspect, should the party licensed bring an action for a disturbance, against any one undertaking to carry persons for hire, or should any person undertake to set up another ferry between the other part of Boston and NoddJe’s Island. But the latter question is less likely to arise, because the license which is the subject of the present inquiry, does m terms reserve the right to grant licenses for other ferries, between Noddle’s Island and the other part of Boston, as the mayor and aldermen may at any time hereafter think expedient.

Petition dismissed.