Iowa territorial gazette and advertiser. [volume] (Burlington, Iowa Territory [Iowa]) 1840-1846, 1842-12-24

reign OF both Territories. Our jurisdiction is
measured by an act Of Congress which is to be
construed in accordance with the rule OF interpre.
tation applicable to all statutes. which is far less
strict than that applied to grants. Besides the
act which limits our jurisdiction TO the west
side Of the Mississippi river. con6nes Wisconsin
u the east. 1t was an act 10 divide the former
Territory Of Wisconsin declaring all that portion
which lies west Of the Mississippi. shall constitute
the Territory Of Iowa; and that which lies east Of
that river, shall remain the Territory Of wiscon-
sin. Was it the intention Of Congress to leave
the Mississippi RIVER entirely out Of both Terri.
tories 80 that offences thereon committed should
be exempt from the laws Of either. or va. il ia
tended that these Territories should respectively
extend to the middle Of the river. instead Of be.
ing limitedto the shores. certainly thlnk the
latter was the intention OF the Legislature and is
therefore the true meaning Of the law.
But even il this were not the proper construction
of the law, the consequence would think, be o t
little advantage to the defendants. The complain
ants having vested property in their charter
under the laws OF Wisconsin, would change Of
Government destroy their rights in the absence
Of any law to confirm them? think not. With.
out enqniring into the power Of Legislation TO re-
peal charter il seems TO me 1T least that
express statute is requisite tor this purpose. Be.
sides, by the erticl.s Of compart made in 1897. in
relation to the country northwest If the Ohio
and which. by subsequent act. of Congress. have
always been IN force both here and in Wisconsin
ever since the granting Of this charter. il is pro-
vded that "no man shall be deprived Of his liber-
~ or property but by the Judgment Of his peers
or The law OF the land; and should the public
exigences make il necessary Tor the common pre-.
servation to take any person.. property or to de.
mnnd his particular services, full compensation
shall he made FOR the same - This provision GER
tainly forti6es the rights Of the compliments aud
secures their charter from extngnishment by the
mere fact Of its not being confirmed upon
change Of territorial government. therefore
conclude that he compliments have valid sub
sis,ns charter-for aught that appears TO the con.
trary--to run ferry from portion Of burlington
to the opposite shore Of the Mississippi river.
But the defendants insist that even in that case
the injunction not properly granted and that
the rights of the compliments should first have
been determined by suit at law. sach is doubt
less the rule in ordinary cases but not in general
where the right Of the complainant is confe FRED
by statute. In such case the act OF legislature
prevents the necessity OF obtaining the verdict Of
u jury as the basis Of an injunction. The right s
sufficiently ascertained and determined already
II 10 true that authorities have been cited to the
effect. that where the rights. is doubtful even under
q statute an injunction will not issue until that
right has been settled at law We have only
brief re ferences to these authorities and am in
clned TO believe they relate TO cases where the
doubt as 10 the right arises from matter Of fact
and not from matter of law. Indeed it the facts
are uneispused. see necessity ofa previous
trial at law. why should jury be empanneled
i'll equence of doubt when that doubt is after
alto be solved by the Court alone? Such pro-
ceeding would be wholly unreasonable and en-
never be required BY any sound principle of aquity
law. Ii the right is doubtful in the present it
is doubt arising altegeth out Of the law. rh
facts are not disputed. II the construction Of the
law already given be correct the facts set forth
in the bill presents ease OF most undoubtod
right in the comp a,nants There was. therefore.
Think no necessity Of settling tina, right in the
| first instance atlaw.
| But the main question is yet to be met and
disposed Of The power Of the Legislature OF
Wisco nsin to grant ferry charter across the
Mississippi river 10 broadly denied. Courts
Justly manltestextrcme caution and reluctance
in declaring ar act Of legislation invalid. still
CAGES sometimes arse wherein ench q course
becomes imperative. In tho conflict Of laws
the stronger muat prevail; and where ~ act
Of the legislature comes into collision with
some paramount law SO that both cannot exist
together, the former must be declared by the
courts-what it is in reality-null aud VOID.
To show ,ha, the case under considcra-
ton 10 one Of that nature the defendants re-
~ in grea, degree upon the provision in
the Constitution Ct the United States which
ves.s Congress with the power Of regulating
the Intercourse between the States and with
foreign and tho Indian tribes, rs expounleu
by the Supreme Courl OF the United States
in the celebrated case Of Gibbons IS Ogden.
Tha, clause Of the Constitutional law il
seems TO mo finds no application here. Il
IS not intercourse Letwcen TIE States that is
sought To be regulated, but, betceen a .SI.te
and Territory. IL this be deemed an un-
satisfactory distinction The case will still he
rendered no more favorable 10 the defends
ants. Admit that this is a species Of that
.in,ercoursc'' W hi,,s IS uuler the exclusive
control Of the federal governments. The
Territories nre subject 10 the same control.
Congress has exercised its power in this par-
,icular by organizing Territories and decla-
ring ,hei. legislative power to extend to
''all rish.f"l subjects Of legis'a,ion' sub
ject to its own supervision and dissent. See
organic la NJ Of Wisconsin aud Iowa. Now
it The granting Of ferry char,er be not q
s.righlful subject Of legislation'' Congress
itself has no power over she nlat,er and could
not regulate that species Of Intercourse. II
il be a rightful subject Of legislation, il is
placed under The control Of the Territorial
Legislatures. Where either Of those Legis-
lanres pass an act within It's appropriate
sphere, aud chat &C, il no, di.npproyed by
Congress, j, is tan.amount TO law passed
by Congress itself II is bronght directly
within The rule, qui Jacit per alum ytacit per
Sc. lf.herefore Congress has the cole power
Of regulating this intercourse, Congtess
alone has regulated j. by means Of its au-
,horiscd atlorney-.hs Wisconsin Leyi'Ia-
Iure.
But more serious question still, remains
10 be disposed Of. The fourth article Of
the compact contained in the ordinance o
1857 contains the following clause. s.The
nayigable waters leading into the MississiP.
pi and ST. Lawrence, and the carrying places
between the same, shall be common high
ways, and forever tree, US we'll 10 the inhab
i,ants Of the said Territory, as TO The citizens
OF The United States, and .hoso OF any 9th
er States .hat may be admit. d into tho con
n