In the year 1819, the Legislature of Illinois authorized Samuel
Wiggins, his heirs and assigns, to establish a ferry on the east
bank of the River Mississippi near the town of Illinois, and to run
the same from lands "that may belong to him," provided the ferry
should be put into actual operation within eighteen months.
At this time he had no land, but within the eighteen months
acquired an interest in a tract of one hundred acres.
In 1821 another act was passed authorizing him to remove the
ferry "on any land that may belong to him" on the said Mississippi
River, under the same privileges as were prescribed by the former
act.
The words of this act "on any land that may belong to him" must
be construed to apply to the land which then belonged to him, and
not to such as he obtained after the passage of the act,
viz., in 1822.
The following rules for construing statutes applied to the case,
viz.,
First, that in a grant designed by the sovereign power making it
to be a general benefit and accommodation to the public, if the
meaning of the words be doubtful, they shall be taken most strongly
against the grantee and for the government, and therefore should
not be extended by implication in favor of the grantee beyond the
natural and obvious meaning of the words employed, and if these do
not support the right claimed, it must fall.
Secondly, if the grant admits of two interpretations, one of
which is more extended and the other more restricted, so that a
choice is fairly open, and either may be adopted without any
apparent violation of the apparent objects of the grant, if in such
case one interpretation would render the grant inoperative and the
other would give it force and effect, the latter, if within a
reasonable construction of the terms employed, should be
adopted.
The jurisdiction of this Court under the twenty-fifth section of
the Judiciary Act extends to a review of the judgment of a state
court where the point involved was the alleged violation of a
contract granting a ferry right by a state to an individual, but it
does not extend to a case where the alleged violation of a contract
is that a state has taken more land than was necessary for the
easement which it wanted, and thus violated the contract under
which the owner held his land by a patent. It rests with state
legislatures and state courts exclusively to protect their citizens
from injustice and oppression of this description.
Mills and others filed their bill in chancery in the state court
of Illinois, seeking to obtain an injunction against the
defendants
Page 49 U. S. 570
in error. The bill states the case of the complainants as
follows.
The people of the western part of Illinois had from the earliest
settlement of that country maintained a constant commercial
intercourse with the Town of St. Louis, and long felt the necessity
for increased facilities in crossing the Mississippi River. For the
purpose of securing these facilities, the state made a contract
with Samuel Wiggins for the establishment of a ferry across that
stream, with boats to be propelled by steam or horse power. An act
of the general assembly was passed, which was approved on 2 March,
1819, which was as follows:
"An act to authorize Samuel Wiggins to establish a Ferry upon
the Waters of the Mississippi. Approved March 2, 1819."
"SEC. 1. Be it enacted by the people of the State of Illinois,
represented in the general assembly, 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. Provided that he shall not use any boat or
watercraft, except such as shall be propelled or urged to the water
by steam, horses, oxen, or other four-footed animals. Provided that
the said Samuel Wiggins, his heirs and assigns, shall have the said
ferry in actual operation within eighteen months from and after the
passage of this act."
"SEC. 2. And be it further enacted, that no person or persons
except those who have ferries now established at this place shall
establish any ferry of the description aforesaid within one mile of
the ferry established under this act. And if any person or persons
shall, contrary to the provisions of this act, run any boat or
boats of the description aforesaid, he, she, or they shall forfeit
every such boat, with its furniture and apparel, to the said Samuel
Wiggins, his heirs and assigns, which may be attached and recovered
before any court in this state having competent jurisdiction."
"SEC. 3. And be it further enacted that it shall and may be
lawful for the said Samuel Wiggins, his heirs or assigns, to demand
and receive the same rates of ferriage as are now of right
demandable at the ferry established nearest to the ferry authorized
to be established by this act. Provided that no more shall be
charged for a wagon, cart, or other carriage, if loaded, than could
be charged if empty."
"SEC. 4. And be it further enacted that the ferry hereby
established shall be subject to the same taxes as are now or
hereafter
Page 49 U. S. 571
may be, imposed on other ferries within this state, and under
the same regulations and forfeitures. And that if the provisions of
the second section of this act shall be made to appear to the
general assembly to be injurious to the public good, that then, and
in such case, the said second section may be repealed."
At the date of this act, Wiggins did not own any land near the
Town of Illinois; but within the time allowed by the act for the
establishment of the ferry, he purchased a tract of land of one
hundred acres and established the ferry with boats propelled by
horses, according to the terms of the act.
He increased the means of transportation as the public wants
required, and changed the boats employed from boats propelled by
horses to boats propelled by steam so as to comply with the letter
and spirit of his contract with the State of Illinois and meet all
the demands of the increasing population and commerce.
The bill claims that under this Act of 2 March, 1819, Samuel
Wiggins, his heirs and assigns, were entitled to the perpetual
franchise of maintaining a ferry across the Mississippi from any
point near the Town of Illinois, upon any land that might at any
time belong to him or them.
The bill states that the bank of the Mississippi opposite the
Town of St. Louis is an alluvial formation which is continually
falling into the stream, and that the character of the stream is
such that, by reason of the frequent changes in the channel, the
sudden formation of sandbars, and the falling of the banks, it
became necessary for Wiggins, in order to fulfill his contract with
the State of Illinois, to acquire title to a large space of land on
the bank of the river in order to change the place of landing as
the changes in the river and in its banks might require.
The Legislature of Illinois, appreciating this necessity and
recognizing the franchise as perpetual, passed an Act on 6
February, 1821, the essential parts of which were as follows:
"An act to authorize Samuel Wiggins to make a Turnpike Road, and
for other Purposes. Approved February 6, 1861."
"SEC. 1. Be it enacted by the people of the State of Illinois,
represented in the general assembly, that Samuel Wiggins, his heirs
or assigns be and hereby are authorized to make and construct a
turnpike road, of one hundred feet wide, to commerce on the
Mississippi River, opposite to St. Louis,
Page 49 U. S. 572
on lands that may belong to him, to run thence across the
American Bottom to the bluffs within two miles of George
Swaggart's, and to construct and erect all necessary bridges on
said road, and that he or they be and are hereby authorized to
build and make said turnpike road through the lands of any person
or persons whomsoever, except yards, gardens, orchards, or dwelling
houses; that when the aforesaid road is about to be carried through
any improved land, the maker of said road shall first obtain the
consent of the proprietor or proprietors of said grounds, and
should the parties not agree on the amount of said damages, then a
jury of six reputable freeholders should be summoned, and being
duly sworn before any justice of the peace of the county faithfully
and impartially to assess the damages, which damages shall be paid
before the said road shall be permitted to pass through such
grounds."
"And whereas the said Samuel Wiggins, his heirs and assigns,
were authorized to establish a ferry upon the waters of the
Mississippi River near the Town of Illinois in this state, and a
sandbar having been formed since that time opposite said ferry,
therefore:"
"SEC. 5. Be it further enacted that the said Samuel Wiggins, his
heirs and assigns, be and they are hereby authorized to remove said
ferry on any land that may belong to him or them on the said
Mississippi River under the same privileges as were prescribed by
the act entitled 'An Act to authorize Samuel Wiggins to establish a
ferry upon the waters of the Mississippi,' approved March 2,
1819."
On 13 July, 1822, Wiggins acquired title to a tract of four
hundred acres of land adjoining the tract from which he first ran
his ferry. The tract so acquired is situated on the bank of the
river below his first tract, and was necessary to the owners of the
ferry franchise in order to secure a convenient landing of the
boats as changes occurred in the channel or in the bank of the
river.
The bill states sundry conveyances and descents by which the
complainants have become invested with the title to all the land
held by said Wiggins and with the franchise granted by the State of
Illinois.
It is also averred that Wiggins, while the owner of the
franchise, fulfilled all the duties and obligations which he had
assumed under his contract with the State of Illinois, and that his
assignees, owners of said franchise, have ever since his transfer
of the franchise in like manner fully discharged those duties; that
speedy, secure, and comfortable passage has been
Page 49 U. S. 573
at all times afforded for all persons and property offered to be
crossed over the river in such vessels only as are required by the
act granting the franchise.
The bill then states an Act of the Legislature of the State of
Illinois approved on 2 March, 1839, by which commissioners were
appointed to locate a road and ferry landing between Cahokia Creek
and the Mississippi River, opposite St. Louis; the road and ferry
landing to be three hundred feet wide, upon the most eligible
ground for the purpose. This act authorized the County
Commissioners' Court of St. Clair County to cause the land on which
the road and ferry landing should be located to be condemned, and
pay the owners of the land the damages, and after such payment the
said court should have power to enter upon the land so condemned
and establish a ferry across the Mississippi River, and might
either carry on the ferry for the county itself or lease it for any
term not exceeding five years to any lessees.
The commissioners thus appointed located the road and ferry
landing, three hundred feet wide, upon the land which Wiggins
acquired in July, 1822, and which was conveyed by him with the
franchise.
The land was condemned, and its value estimated at six hundred
dollars, being less than the annual ground rent which it would
produce without any connection with any ferry privilege.
In estimating the damages to be paid, the jury was expressly
directed to confine its estimate of the damages to the value of the
land itself, and not to consider any interference with the ferry
franchise of the complainants as a subject of compensation.
The bill states that the County of St. Clair, through its
agents, entered upon and took in possession the said lands so
condemned, and has leased the same, together with the ferry
authorized by the said act of 1839, to James Harrison at a yearly
rent of $800, and that a ferry has been established from said land
to the City of St. Louis. The rates of ferriage charged by said
Harrison are fixed in his lease, exhibited with the bill, as
exhibit S. No. 18.
The complainants aver that the land so taken from them is a part
of their ferry landing, as authorized by the two acts of the
legislature under which they claim, and that the land so taken is
indispensable to the exercise of the franchise with which they are
invested. From time to time they have been compelled to change
their place of landing as the changes in the river and its banks
and sandbars required, so that the whole
Page 49 U. S. 574
front on the river has been necessary to the enjoyment of their
franchise and the performance of their duty, and that the said land
so taken from them is not only the most convenient point on their
land for their ferry landing, but is the only point where boats can
securely be landed without running far up the stream, so as to make
their trip about twelve hundred yards longer than if they still
owned and could use the land so taken from them.
The complainants allege that the Act of the Legislature of
Illinois of March 2, 1839, authorizing the taking of a part of
their ferry landing, is a violation of the first clause of the
tenth section of the first article of the Constitution of the
United States, which prohibits the states from passing laws
impairing the obligation of contracts.
The bill prays for an injunction to restrain the defendants from
maintaining a ferry from the land so taken from the
complainants.
To this bill there was a demurrer, which was sustained by the
Circuit Court of St. Clair County and the bill dismissed. An appeal
was taken to the supreme court, and the decree of the circuit court
affirmed.
From this decree of the Supreme Court of the State of Illinois a
writ of error brought the case up to this Court.
It was argued by Mr. Gamble and Mr. Webster, for the plaintiffs
in error, and Mr. Breeze, for the defendants.
Page 49 U. S. 579
MR. JUSTICE CATRON delivered the opinion of the Court.
By an Act of March 2, 1839, the Legislature of Illinois
appointed five commissioners to locate a road and ferry landing,
three hundred feet wide, on the east bank of the River Mississippi,
opposite to the City of St. Louis; the road to extend back to
Cahokia Creek. The road and landing were accordingly located, the
distance from the river to the creek being about sixty poles. The
ferry having gone into operation under the act of 1839, this bill
was filed seeking to obtain a perpetual injunction against an
exercise of a ferry privilege on the ground, among others, that
Samuel Wiggins and his assignees were entitled to the exclusive
ferry right at that place, by contract with the State of Illinois,
and that said contract was violated by
Page 49 U. S. 580
the act of 1839 and the establishment of a road and ferry under
and by force of its provisions. The Supreme Court of Illinois
having decided that the state law and the acts done pursuant
thereto did not violate the contract made with Wiggins, and that it
was not opposed to the Constitution of the United States, that
court proceeded by a final decree to dissolve an injunction granted
nisi and to dismiss the bill. To reverse this decree, on
the grounds stated, a writ of error has been prosecuted to the
Supreme Court of Illinois from this Court under the twenty-fifth
section of the Judiciary Act of 1789.
The contract relied on by the defendants was made with Wiggins
by two acts of the Legislature of Illinois. The first act, approved
March 2, 1819, authorizes Samuel Wiggins, his heirs and assigns, to
establish a ferry on the east bank of the River Mississippi near
the Town of Illinois, and to run the same from lands "that may
belong to him," provided that said ferry should be put into actual
operation within eighteen months from and after the passage of that
act. And it was also provided by the second section that no other
person should thereafter establish any ferry within one mile of
that established by Wiggins, with this reservation:
"That if the provisions of the second section of this act shall
be made to appear to the general assembly to be injurious to the
public good, that then and in such case the second section may be
repealed."
Wiggins had no land of his own on the river near the Town of
Illinois when the above act was passed, but within less than
eighteen months he acquired an interest in a tract of land of one
hundred acres, part of which lay between Illinois Town and the
river, and extended to a considerable distance above it, and on
this tract he established his ferry.
On 6 February, 1821, Samuel Wiggins had another act passed in
his favor by the Legislature of Illinois, authorizing him to make a
turnpike road, to commence on the Mississippi River opposite to St.
Louis, on lands that "may belong to him," and to run across the
American bottom to the bluffs. The act further provides:
"And whereas the said Samuel Wiggins, his heirs and assigns,
were authorized to establish a ferry upon the waters of the
Mississippi River near the Town of Illinois in this state, and a
sandbar having been formed since that time opposite said ferry,
therefore:"
"SEC. 5. Be it further enacted that the said Samuel Wiggins, his
heirs and assigns, be and they are hereby authorized to remove said
ferry on any land that may belong to him or them on the said
Mississippi River, under the same privileges as were prescribed by
the act entitled, 'An act to authorize Samuel
Page 49 U. S. 581
Wiggins to establish a ferry upon the waters of the
Mississippi,' approved March 2, 1819."
By an Act approved January 19, 1833, so much of the acts of 1819
and 1821 as prohibited another ferry from being established within
one mile of Wiggins' ferry landing was repealed. This restriction
is therefore out of the case.
On 13 July, 1822, Wiggins obtained by purchase from Julia Jarrot
a tract of one hundred acres lying below the tract first acquired,
adjoining thereto on the south, and fronting on the river, and it
is upon this tract that the new ferry and road were located under
the act of 1839. The parties respectively assume, and so the court
below held, that the establishment and regulation of ferries across
navigable streams is a subject within the control of the
government, and not matter of private right, and that the
government may exercise its powers by contracting with individuals.
We deem this general principle not open to controversy, and in
regard to so much of the controversy as involves the contract
itself no material difficulty exists as to what principles of law
shall govern; only two general principles need be invoked in
construing the acts of 1819 and 1821, which are first that in a
grant like this, designed by the sovereign power making it to be a
general benefit and accommodation to the public, the rule is that
if the meaning of the words be doubtful, they shall be taken most
strongly against the grantee and for the government, and therefore
should not be extended by implication in favor of the grantee
beyond the natural and obvious meaning of the words employed, and
if these do not support the right claimed, it must fall. Such is
the established doctrine of this Court, as was held in the case of
Charles River Bridge v.
Warren Bridge, 11 Pet. 544,
36 U. S. 547.
Secondly, if the grant admits of two interpretations, one of which
is more extended and the other more restricted, so that a choice is
fairly open and either may be adopted without any violation of the
apparent objects of the grant, if in such case one interpretation
would render the grant inoperative and the other would give it
force and effect, the latter, if within a reasonable construction
of the terms employed, should be adopted.
Testing the contract by these rules, and what are the
complainants entitled to, under the acts of 1819 and 1821? By the
first act, Wiggins was to establish the ferry near the Town of
Illinois, "and to run the same from lands at said place which may
belong to him." At the time of the act was passed, Wiggins owned no
land near the Town of Illinois, and if the grant was in the present
tense, and extended only to land
Page 49 U. S. 582
that was then the property of the grantee, the act of assembly
had no operation and was worthless. But we suppose the words
employed were not restricted to the time when the act was passed;
the grantee was allowed eighteen months to put the ferry into
operation, and he was to run his boats from his own lands -- that
is, from lands which might belong to him at the time the running
commenced -- and for this there was great reason, as the opposite
shore lay within another state, and there also a ferry landing had
to be secured. The matter was one of speculation, and lands could
not with propriety be purchased at high prices before the privilege
was secured on both banks. And this construction, as we apprehend,
is the one that the Legislature of Illinois put on the act of 1819
by that of 1821, by which it was admitted that a ferry had been
established according to the first act, and the grantee was
authorized to remove it to another point because a sandbar had been
formed in front of the landing. We therefore feel ourselves
constrained to differ from the carefully prepared and able opinion
of the Supreme Court of Illinois, found in the record, which holds
the first grant to have been inoperative.
We come next to consider the act of 1821. When it was passed,
Wiggins had land fronting on the river for nearly a mile, extending
both above and below Illinois Town and lying between it and the
river. It was all the land he then could desire for the purposes of
his ferry and the end of his road. Indeed, it is doubtful whether,
under the grant, Wiggins could have gone below his first purchased
tract and been "near the Town of Illinois," because his land
extended considerably below the town. As the act of 1821 recognized
the fact that Wiggins had complied with his contract under the act
of 1819, and had established a ferry on land that belonged to him,
and that it was established "near the Town of Illinois," it is fair
to presume that both parties to the contract, as modified and
enlarged by the act of 1821, understood what land it was that
Wiggins owned at that time, and the boundaries thereof, and also
the extent of his interest, being two-sevenths of the tract.
The act of 1821 was treated by the bill and was relied on in
argument as conferring a perpetual privilege on Wiggins, and on his
assigns, to remove the ferry to any land that might belong to him
or to them at the time of the removal, and furthermore that the
right of removal was unrestricted as respects time, and could have
been made at any time heretofore, or could be made hereafter.
That the act is somewhat obscure, in regard to the place to
which the ferry could be removed, must be admitted, and in
Page 49 U. S. 583
seeking its true construction, several considerations present
themselves. In the first place, that the act operated in the
present tense, and was a mere enlargement of the privileges
conferred by the act of 1819, and must be taken as a part of the
first contract, cannot be denied; secondly, when we take into
consideration the fact that Wiggins had a specific tract of land at
that time, at the proper place -- that is to say, lying in front of
Illinois Town and extending above and below it -- a reasonable
conclusion is that some place on such tract was referred to by the
act of 1821; and thirdly, as the act of 1819 reserved authority in
the legislature to repeal so much of the law as secured to Wiggins
an exclusive ferry right for two miles on the river front, such
reservation could only mean that rival ferries might be established
at discretion by the legislature. Nor can it be assumed with any
claim to a plausible construction that the power of removal had no
limitation of time or place, as this would confer a right to remove
to the same landing with a newly established ferry, set up as a
rival, and drive it away, and thus the public convenience would
again be reduced to a single ferry. Now in view of these facts and
consequences, and applying them to language of an ambiguous
character, and seeking assistance from a settled rule of
construction in case of doubt, and finding that rule of
construction to be that when two constructions are equally open to
the court, the one shall be adopted most favorable to the
government, the consequence must be, on this construction, that
Wiggins was confined to the tract of land partly owned by him when
the act of 1821 was passed, and that when the ferry was removed to
other land lower down the river, it was an act not within the
contract nor protected by it. This disposes of the first and
principal ground of relief sought by the bill.
Whether Wiggins or those claiming under him had the right after
he had established his new ferry, under the act of 1821, to remove
it to another place on the tract of land he then owned, and whether
the State of Illinois may not authorize another ferry on the same
tract of land, not interfering with the operations of the one
established by Wiggins, are questions which the record does not
bring before us, and upon which therefore we express no
opinion.
A second ground of relief is relied on by the bill, and was most
earnestly and ably urged in argument here, and which it is
incumbent on us to dispose of also.
The first special prayer would seem to conclude an inquiry into
any ground of interference by this Court, other than the
Page 49 U. S. 584
question arising on the acts of 1819 and 1821, standing as a
contract, claimed to have been violated by the act of 1839. But the
bill has also a general prayer, and on this, as well as upon the
special prayer, the Supreme Court of Illinois ordered
"That it be certified in this case that there was drawn in
question the validity of the statute of the State of Illinois
entitled 'An act to authorize St. Clair County to establish a ferry
across the Mississippi River,' approved March 2, 1839, on the
ground that it was repugnant to the Constitution of the United
States, and that the decision of the court was in favor of the
validity of said statute,"
from which certificate it is manifest that the act of 1839 was
upheld against each state of facts set forth by the bill; and if it
was apparently repugnant to the Constitution on either ground
assumed, this Court has jurisdiction of the cause, and having
jurisdiction, the plaintiffs in error were entitled to be heard and
are entitled to our judgment on both grounds presented and relied
on to reverse.
The bill sets forth that gross abuses were imposed on
complainants by the act of 1839 and by the commissioners and their
lessee under the act; that the said three hundred feet include a
wider space and more land than is necessary or convenient for a
road, and but a small portion of it has been used and appropriated
by the said County of St. Clair to that purpose, leaving a strip on
either side to be used by the said County of St. Clair and its
lessees, for private property, for building lots, and other private
purposes, and that that portion of the said three hundred feet
which is not included in said road, and which is now used for
private purposes or is left to be thus used, will yield an annual
ground rent larger than the whole amount of the damages assessed as
aforesaid for the whole of said three hundred feet, and furthermore
that only the condemned land was valued, and no compensation
awarded or tendered for the ferry franchise and landing taken from
complainants.
As the bill was demurred to, and the demurrer sustained in the
state courts, and in this form the case comes before us, all
charges of abuse and oppression on the part of the authorities of
Illinois are admitted to the extent alleged, and the question
presented here on these facts is whether this Court has power to
redress the injuries complained of under the twenty-fifth section
of the Judiciary Act of 1789.
The Constitution having declared that no state shall pass any
law impairing the obligation of contracts, it becomes our duty to
inquire whether the state law and the acts done under it violate a
contract. If any contract was violated under the
Page 49 U. S. 585
act of 1839, it must have been a grant to land vesting the fee
simple title, and such title complainants exhibit. To the width of
needful roads and ferry landings property can undoubtedly be taken
for the purposes of such easements, and necessarily the state
authorities must decide (as a general rule) how much land the
public convenience requires. That the power may be abused no one
can deny, and that it is abused when private property is taken not
for public use but to be leased out to private occupants to the end
of raising money is too plain for reasoning to make it more so.
Such an act is mere evasion, under pretense of an authorized
exercise of the eminent domain, and if it be an evasion, it is
void, and may be redressed by an action at law like any other
illegal trespass done under assumed authority -- as for instance a
trespass by a younger grantee on land held by an elder patent
depending for support on a state law of later date than the first
grant. But it is not an invasion and illegal seizure of private
property on pretense of exercising the right of eminent domain, and
which act is an abuse claiming the sanction of a state law, that
gives this Court jurisdiction; such law, and the acts done under
it, are not "the violation of a contract" in the sense and meaning
of the Constitution. It rests with state legislatures and state
courts to protect their citizens from injustice and oppression of
this description.
The framers of the Constitution never intended that the
legislative and judicial powers of the general government should
extend to municipal regulations necessary to the wellbeing and
existence of the states. Were this Court to assume jurisdiction and
reexamine and revise state court decisions on a doubtful
construction that an interest in land held by patent was a
contract, and the owner entitled to constitutional protection by
our decision in case of abuse and trespass by an oppressive
exercise of state authority, it would follow that all state laws,
special and general, under whose sanction roads, ferries, and
bridges are established would be subject to our supervision. A new
source of jurisdiction would be opened of endless variety and
extent, as on this assumption all such cases could be brought here
for final adjudication and settlement; of necessity, we would be
called on to adjudge of fairness and abuse to ascertain whether
jurisdiction existed, and thus to decide the law and facts -- in
short, to do that which state courts are constantly doing, in an
exercise of jurisdiction over peculiarly local matters -- by which
means a vast mass of municipal powers heretofore supposed to belong
exclusively to state cognizance would be taken from the states and
exercised by the general government
Page 49 U. S. 586
through the instrumentality of this Court. That such a doctrine
cannot be maintained here has in effect been decided in previous
cases, and especially in that of
Charles River Bridge v.
Warren Bridge, 11 Pet. 539,
36 U. S. 540,
where other cases are cited and reviewed.
For the reasons above stated, it is ordered that the judgment of
the supreme court of Illinois be
Affirmed.
MR. JUSTICE McLEAN dissented.
Order
This cause came on to be heard on the transcript of the record
from the Supreme Court of the State of Illinois and was argued by
counsel. On consideration whereof, it is now here ordered,
adjudged, and decreed by this Court, that the decree of the said
supreme court in this cause be and the same is hereby affirmed with
costs.
