Mower County transcript. [volume] (Lansing, Minn.) 1868-1915, 1873-06-05

UVoSuSo VI epcCAuI COuITAct, VUuAu III
ply promise to pay what such service
was reasonably worth.
The contract tho District Court had
in mind was a supposed implied con
tract between defendant and tho plain
tiffs, for instance, or any other individ
ual for whom it carries freight, that, in
consideration of such carriage, the
consignor will pay quant""s n.erui'
therefor.
But it takes toll by virtue Of such
implied contract. The title of the
defendant to its right to demand com.
pensation for this service is not de.
viscd to it on common law principles,
and it Is not to be measured BY tue
rules Of the common law, and whether
it may lawfully demand compensation
from a person who uses its highway
for the carriage Of goods in the only
way in which it can be used, depends
upon the language Of its charter, and
not upon the rule Of common law.
Perrine vs.. Canal Co., 9 Howard, 172:
The right to exact tolls or charge
freights is granted for service to the
public The defendant is compellable
to permit tho public to use this high
way in tho way in which it can be
used. Olcott vs.. Supervisors, Supra.
Being public highway, the de.
PENDANTS road under this charter, is as
free to the public paying toll as any
other highway, and it would certainly
have been none the less public high
way, if the legislature, contrary to
what we have ASSUMED to be the case,
had not granted to defendants the
right to take toll.
If it had accepted q charter which
denied to it the right to take toll, it
is impossible to see upon what princi-
pie it could contend that it was not
compellable to permit the public to use
it without paying toll.
Iii certain that the defendant's
right to toll does not rest upon any
implied promise on the part Of tho
plaintiffs for instance, or any other
eonsignor, to pay what the Transports
ton Of their property was reasonably
worth. Perrine vs.. Canal Co., supra.
The defendant owns the right to
levy a toll, it was an attribute Of SOW
ereignty and the sovereign has granted
it to the defendant.
The contracts between individuals
to which : the District Court refers,
have no analogy therefore to the con-
tract before US. They furnish no basis
for conclusion that in the present
case the sovereign has agreed with the
defendant that it may demand and re-
ceive from those who use its road what
such use is reasonably worth.
The state granted to defendant this
right to levy some toll. The contract
does not fix the rate of toll which it
might levy.
The only logical conclusion is that
the defendant may fix them itself, sub.
jeet to legislative superintendent.
What was said of Mr.. Justice Nor
ton in the Charles river bridge case,
is applicable here except a. to any
agreement from usage. ..... -
Il is apparent from the examina-
ton of. the several acts, and the usage.
under them, that College took and'hel
the (ferry) franchise subject to the
general superintendent and regula.
ton Of the legislature Of the common
wealth, neither, the management Of
the ferry, nor the number Of boats to
be employed, nor the rate of toll is
established in either Of these acts.
y" Was the: power to regulate these
subjects granted to the college or re.
served to the legislature ? If the
former, the public convenience, in 50
far As related 70 transportation across
the river by this ferry, was made to
depend upon the pleasure of an inter
ested corporation instead Of the sover-
eign power Of the State. It cannot
be supposed that the college had the
exclusive right to the transportation
across the river and also the intimated
power to FIX the rate of toll for such
transportation. The college in accept
ing the right granted assumed the cor
responding obligations. If they were
to receive the profits of the ferry, they
we're bound to furnish reasonable ac-
oommodations for. the public to submit
to the general regulations Of ferries
throughout the State, and to take such
Just and reasonable toll al from time to
time the Legislature should establish :
p. 448. .:,s.rs ~. .ss@sss It z&.5
It. may be asked if this is the only
limit if the defendant can cypress the
public with impunity BY exaotiog ex-
oessive tolls 20 long ~ the legislature
does not see ft to interfere. It Is not
necessary to consider how upon an A.
sumption aforesaid, it might have been
under the defendants original act Of
incorporation, and other acts relating
to it prior to the act Of February %,
1866. That act, which the defendant
accepted, extended the time for it's per.
Torrance of the conditions upon which
any right on it's part to the franchises
which it now owns was contingent,
but upon the express condition that it
should be bound to carry freight and
passengers upon reasonable terms.
There was, therefore, prior to the act
Of 1871, that express limitation upon
any discretionary right to fix the rate
Of toll and fare. -. ,,s.y.. -. Isl.
i Nor does the act. Of 1866 imply any
surrender by the State Of its power to
regulate tolls. There can be no plain
:er non sequit,.r than to say that, be-
cause the defendant cannot rightfally
levy excessive tolls, therefor the State
has parted with its right to regulate its
rate of toll. $780,.
=. Al these considerations dispose Of
tho present case, it is unnecessary to
consider whether tupposing the con-
clusion Of the District Court last above
noticed to be the correct one, It's con
clusion that the act Of 1871, aforesaid,
was unconstitutional would necessarily
follow and As to that We give no opin-
ion. 81
In conformity with the argument Of
the parties the judgment appealed
from must be reversed, and judgment
entered for the plaintiff. .~.... +
nRODATE NOTICE.-STATE OF
MINNESOTA, MOWER COUNTY, Is.
In Brobate Court.
In tho matter Of the estate of Clement Ford,
deceased.