Betts v. Menard, 1 Ill. 395, 1 Breese 395 (1831)

Dec. 1831 · Illinois Supreme Court

1 Ill. 395, 1 Breese 395

Josiah T. Betts, Appellant, v. Pierre Menard, Appellee.

APPEAL FROM RANDOLPH.

The ferry law of Feb. 12, 1827, does not authorize a county commissioners’ court to grant alicense to ferry to a corporation.

The county commissioners’ court is a mere creature of the statute, and though created by the constitutution, its powers and duties are defined by the law, and in some instances are ministerial, and in others judicial.

In a legislative act where “ persons” are spoken of, none other than natural persons are meant.

The act of incorporation, creating the trustees of Kaskaskia a body corporate, no where confers the power to take a grant of a ferry license.

A corporate body can act only in the manner prescribed by the act of incorporation which gives it existence.

This suit was originally brought by Menard, before a justice of the peace of Randolph county, by motion and notice, under the eleventh section of the act of February 12, 1827, to recover certain penalties, alleged to have accrued to him as proprietor of a ferry across the Kaskaskia river, from Betts, who at the time of the notice and motion was engaged in running a ferry boat within one mile of the ferry of Menard, across the same river, under a license granted to the trustees of the town of Kaskaskia, under whom said Betts acted, by the county commissioners’ court of Randolph county, at the August term, 1830, of said court. The justice of the peace, on a hearing of the cause, gave judgment against Menard, which was taken by appeal to the circuit court of Randolph county, and there reversed, and a judgment entered in favor of Menard, for ninety dollars, the amount of the several penalties accrued and the costs. From this judgment Betts appealed, and assigned for error, among others, the decision of the circuit court, declaring that the ferry license granted by the county commissioners’ court to the board of trustees of Kaskaskia, was void, and that the circuit court erred in deciding that a party who had a license to ferry, was as much amenable to the penalties of the law, as one who had no such license, and that the court erred in deciding that the legislature of the state could grant an exclusive right to the use of any of the public highways of the state.

Breese, in support of the errors assigned, insisted upon the following points: First, the license granted by the county commissioners’ court to the trustees of the town of Kaskaskia, was valid, and conferred a right to ferry on tiie board, of trustees. The act of 1827, gives the county commissioners’ court exclusive jurisdiction and control over ferries. Rev. Laws of 1827, p. 220, et seq. That court is a court of record, though of limited jurisdiction, and when such court has decided upon any matter within their jurisdiction, that decision can not be reversed in any collateral way, or in any action indirectly bringing into review their acts. Laws of 1819, p. 175; 3d Cranch, 300; Ooxe’s Dig., 407; 3d Wheat., 246, 315. Having such jurisdiction, that court had a right to decide upon all the facts, without the existence of which no license could be granted by them. Their decision as to the right of the trustees to have a ferry license, is final and conclusive as to that right, so far as the present motion is concerned, and not void. 6 Wheat., 109 ; Coxe’s Dig.,408,409, 411.

Second. Though the county commissioners’ court may have decided erroneously in granting a license to the trustees to keep a ferry, yet, having jurisdiction of the subject matter, their decision is not void. Coxe’s Dig., 409, 410 ; 1 Dane’s Abr., 579; 3 ib., ch. 75, Art. 4.

Third. The act of 1827 authorizes the county commissioners’ court to grant a ferry license, and as many of them, without regard to distance, as the public exigencies may require. Rev. Laws of 1827, p. 220.

Fourth. The lltli section of the act of 1827 was only intended to punish those who, without any color of right, should establish a ferry within one mile of a licensed ferry. The act excepts those ferries which may hereafter be licensed. Jb., 224.

Fifth. The ferry law, or the 11th section of it, is penal ip its character, and must be construed strictly. Black. Com. and other elementary writers, passim.

Sixth. The act of 1827, (the ferry act,) so far as it designs to grant an exclusive privilege to use or navigate the public navigable waters of the state, is null and void. Ord. of 1787, art. 4.

Seventh. The act of 1829, supplemental to the act of 1827, does not embrace cases where a person has a regular license to ferry. Rev. Laws of 1829, p. 73.

Eighth. The acts of the legislature clearly refer to two kinds of ferries—the one licensed, and the other unlicensed. Rev. Laws of 1827, p. 220, &c.; Rev. Code of 1829, p. 73.

Hall, contra,

contended that the county commissioners’ court is authorized by the act of Feb. 12,1827, to grant ferries to ixidividuals, not to corporate bodies. They transcended their powers in granting a ferry license to the trustees of Kaskaskia. The trustees are not shown to have any power to accept a ferry license. They have no such power by the act of incorporation.

The county courts are forbidden by the statute of 1829, from establishing any ferries within one mile of those established before the passage of that act. Rev. Laws of 1829, p. 73; 2 Kent’s Com., 226, 239: 1 Cond. Rep., 374, 376; 2 ib., 501, were cited in support of the positions assumed.

Baker, in reply.

Smith J.,

delivered the opinion of the court ^*

Several points have been presented by the counsel for the appellant, upon which it is contended that the judgment of the circuit court ought to be reversed.

It will however be unnecessary to examine but one question presented by the record and bill of exceptions, and upon which this case must entirely depend.

The appellant justified the keeping up and maintaining his ferry in the action in the circuit court, under the license granted by the county court to the trustees of the town of Kaskaskia -as a body corporate, as their agent constituted in writing. The date of the license granted to the trustees, is the 15th of August, 1830, and that of the agency, the 30th of the same month. It appears that the appellant actually conducted the ferry, and transported the passengers on the times, and in the manner and number as alleged by the plaintiff, and it is conceded that the amount of the judgment is not the point in controversy, but the right to maintain and exercise, the ferry privileges as granted to the corporation.

The accuracy then of this decision, necessarily involves the question, whether the county court possessed the power to grant a license to a corporate body to exercise ferry privileges ? and if so, whether the corporation could legally accept a right thus offered to be conferred ?

The county commissioners’ court is the mere creature of the statute, which gave to it all the powers which it exercises; and although it is directed to be created by the constitution of the state, as a court, still its whole powers and duties are also directed by that instrument to be, and in fact are, defined by law. The fourth section of the act defining its duties, and declaratory of its powers, restricts their exercise within the county, enumerating, among other special powers, the right to grant licenses for the erection of ferries, leaving it, doubtless, to the exercise of its legal discretion, to determine in what cases it should be done, as restricted by various legislative acts.

It will not then be doubted, that although it is a court of record, still its jurisdiction is special and limited in its character ; and from the various anomalous duties it • is by law required to perform, it will be seen that those duties and powers are in some instances ministerial, and in others judicial. The several acts relative to the powers and duties of the county commissioner’s courts, which have been passed at various times by the legislature of the state, have invariably defined the manner of making the application for such license, and also prescribed the mode of granting, and to whom, and upon what conditions.

Those acts, and particularly the act of the 17th February, 1827, Rev. Laws, 1827, page 220, being the one under which the license to the trustees was granted, speaks of “ persons” only, and this act in the first section, speaks of granting licences to “ qualified persons,” and has so restricted the granting tcf such persons. The proviso to this section reserves the right of preference, however, to the proprietors of the lands adjoining to, or embracing the water course over which the ferry is proposed to be erected.

The second section requires, when such license shall be granted, the party receiving the grant shall give bond and security to be approved by the court, in a sum not less than $100, nor more than $500, payable to the county commissioners of the county, conditioned that “he, she, or they,” will keep _sucli ferry according to law. The third and fifth sections provide how such ferries shall be kept, and imposes certain duties on their owners, particularly as to the expediting the passage of public messengers, and expresses, and inflicts penalties and fines for a non-observance of such requisitions.

The ninth section declares such privileges shall be exclusive, and the twelfth section gives certain privileges to ferry keepers, and exemption from the performance of militia, jury and other duties, in consideration of giving free passage to public messengers and others. It can not then be doubted, that the legislature never intended to authorize the county commissioners’ court to grant licenses to keep ferries to any other than natural persons. It is impossible to draw from the whole context of this act, or any other existing law on the same subject, in connection with the whole or any of the several parts thereof, the inference that a grant could be authorized to be made of a ferry license to a corporation.

It will not, we apprehend, be denied that in the enactment of legislative bodies, where persons are spoken of, any other than natural persons are intended, unless it be absolutely necessary to give effect to some powers already conferred on artificial persons, and which it is necessary should be exercised by them to carry into effect the objects contemplated in their grant or charter. ⁽¹⁾ In the present case, however, the requisition of the bond, security and other acts required to be done, and penalties imposed for the non-observance of the provisions of the law, are such that they could scarcely be complied with by a corporation, and not in any way by the trustees in the present case, and evince most conclusively, that not even by implication, can it be contended, such a body could have been intended, as entitled to require the granting of a license to carry on a public ferry. Hartford Fire Ins. Co., 3 Conn. Rep., 15. It is also impossible to conceive the idea that if the county court had the general powers to determine in what instances they might issue a license, and to whom, and that such an act was legally done, that the trustees in this case were in any way capable of taking the grant.

The act of incorporation, creating the trustees a -body politic, no where confers the least semblance of such a power, much less, an authority to delegate the right to others. The right to take such a grant is entirely beyond the sphere of their action, which relates to other duties connected with the town. The corporation is a public body, for certain defined and specified objects, and must act within, and can not legally in any instance, transcend its limits. Its orbit is defined, and in its action, it can not revolve beyond it. It can not compromit its members by engaging in an act wholly unauthorized, and never in any way contemplated in its charter. To do that would be to expose the inhabitants of the town to possible onerous burdens, expenses and losses which might most seriously affect them. A corporate body can act only in the manner prescribed by the act of incorporation which gives it existence. It is the mere creature of the law, and derives all its powers from the act of incorporation, and is incapable of exerting its faculties only in the manner that act authorizes. 2 Cranch, 127, 167. ⁽²⁾

The exclusive privilege of a ferry is a monopoly, and can it be seriously contended that monopolies may be conferred by implied powers, and received in a case where no right whatever is given to take, to the direct injury of another, on whom the law has already conferred the exclusive right ?

It is too obvious to doubt that the county commissioners’ court had no direct or even implied power to make the grant in question, and it is equally certain that the trustees of the town had not the least power conferred on them by their act of incorporation, to accept it. The license, we are satisfied, was absolutely void, as granted without authority, and consequently? the justification set up under a void license, necessarily fails.

The judgment of the circuit court is therefore afíirmed; and the appellee must recover his costs in this court, and in the court below.

Judgment affirmed.

* Chief Justice Wilson did not sit in this cause.

(1) See note to Woodworth v. Paine’s admr., ante, 374,

(2) A corporation must strictly pursue the law creating it, or giving it power to act. Fitch et al. v. Pinckard et al., 4 Scam., 79.

A corporation, which is a mere creature of the law, can only exercise such powers as are conferred upon it by the act of incorporation. Trustees, &c. v. McConnel, 12 Ill., 140.

Corporations are artificial persons, created with limited powers and capacities, and subject to the general laws and legislation of the state, as natural persons are. Bank of the Republic v. Hamilton County, 21 Ill., 53.