i£x ICtbrtfi SEYMOUR DURST When you leave, please leave this book Because it has been said "Sver'thing comes t' him who waits Except a loaned book." Avery Architectural and Fine Arts Library Gift of Seymour B. Durst Old York Library Digitized by the Internet Archive in 2014 http://archive.org/details/opinionofdanielbOOtall OPINION DANIEL B. TALLMADGE; ESQ. IN RELATION TO THE CONSTITUTIONAL POWERS OF THE LEGISLATURE, TO TAKE FROM THE CITY OF NEW YORK, THE FERRY FRANCHISE, BETWEEN NEW YORK AND BROOKLYN. PREPARED AT THE REQUEST OF THE MAYOR OF THE CITY OF NEW YORK. NEW YORK, MARCH, 1835. HE jgg AT a very la.ge and respectable meeting of the citizens of the 9th, 11th and l5ih Wards, held at Vauxhall Garden, on Thursday, the 19thinstant, Saul Alley, Esq. was appointed President, E. H. Warner and J. F. Buttrrworth, Vice Presidents, Henry f. Robert- I son, and Warren Curtis, Secretaries. Gideon Lee, Esq. tfter mak- | ingsome pert inent remarks on the subject to consider which the mee- I ting was called, offered the following resolutions, which were a- ! dopted. Resolved, That this meeting do unanimously approve of the politi- cal maxim : That the intercommunication of each portion ot a coun- try with all other portions, should be promoted by all available means. Resolved, That this maxim is peculiarly applicable to the city of New York. Resolved, That all the necessary ferries from this city to the popu- lous plaees on the surrounding shores, should and ought to be estab- lished. Resolved, That the Bill now in the Assembly, providing " That the Lieutenant-Governor, the Comptroller, the Surveyor General, the Secretary of State, the Attorney General, and the Treasurer, shall be Commissioners with power to licence and establish so many ferries, and at such places asin their opinion, the public convenience may require between the city of New York and Long Island," does, in the opinion ot this meeting, propose a most impolitic, unjust, and dangerous innovation upon the ohartered rights, property and reve- nues of the people of the city of New York. Resolved, That a copy of the proceedings of this meeting be for- warded to oar delegation in the Legislature of the Slate. Resolved, That a committee of twenty-one be aopointed to call a general meeting of the citizens at Tammany Hall, at such time as they may deem proper, to take into consideration the important sub- ject of our ferry interests now pending before the Legislature of our State, and that said committee be empowered to take all neeessary steps rel.tive thereto. Whereupon, the following persons were ap- pointed the committee :— Gideon Lee, James M'Donald, Jas. B. Murray, Anson G. Phelps, Garrit Gilbert, Wm. Paxson Hellett Riehard Ray Ward, Stephen Allen, Israel Dean, Franklin S. Kinney, Hugh Maxwell, John J. Morgan, Thomas E. Davis, John StilweTl, Resolved, That the officers of this meeting be added to the com- mittee. The meeting was addressed by Gideon Lee, Esq., Israel Dean, James Lent, John Walsh, and James B. Murray. The latter gentle- man offered the following resolution, which was also adopted. Resolved, That the system of granting long leases ot extensive districts of the shores of this Island to individuals, for the purp se of exercising exclusive ferry privileges for private emolument, creates and encourages monopolies of the worst deseription, and is in direct violation of tha clearest principles of equal rights; and that all future grants should contain a clause reserving to the authorities of this city the power of establishing additional lerrieswhenever, and where- ever the public good may require ; or, what would be preferable, that the power of establishing them should be retained, and exer- cised solely by the Common Council, to the end, that their number and position may be made commensurate to th«; public eonvenience, and an uniform an i material reduction be obtained in the high rates of ferriage which are now extorted from the eommunity. Resolved, That the proceedings of this meeting be published. SAUL ALLEY, President. w^rc R B rte: t50D i se "^»- The above committee are requested to meet at Vauxhall Garden, on Tuesday evening next, at half past seven o'clock. m24 3t Russell Stebbins, Nathan. T. Arnold, J. W. Tinsdale, Nathan H. Wolfe, Anson Blake, John L. Mason, Peter Stuyvesant. Is and r andB ofNe that £ other Be , keep f York >ration evoke to an- guage, New York and Brooklyn Ferries. — The bill to establish and regulate these ferries, which was ordered to a third reading in the House of Assembly, on Satur- day, is, according to the Albany Argus, in substance, as follows : "It allows an appeal from the decision of the Com- mon Council of IVew York, on an application for a ferry, to the commissioners of the land office, who are authorized, on certain conditions, to grant such appli- cation for a period not exceeding ten years. All fer- ries hereafter established under this act, to be subject to the laws of the state, passed or to be passed, and the ordinances of the Common Council of New York rela- tive to ferries, their wharves, &c, on the East River. Inhabitants of New York or Long Island to have the right to compound with the lessees of 9uch ferries at six dollars a year, (children under 15 at half that sum,) for the privilege of passing at pleasure. The commis- sioners to have $2 a day, while employed under the act. All owners of ferries between the two places to report annually, under oath, to the Comptroller, the amount of tolls and ferriage received during the year, and the expenditures, capital, &c., in order that the Legislature i may, from timp to time, alter and establish the rates of Or terr. ferriage. It also reserves to the Corporation of New ^rk, in York all their rights to the emoluments, &c, of ferries j relatio heretofore establisned, and their chartered powers to k York j n license and establish ferries." 1 and Jji - r . ^ j ^, i if j i uncfiise is not limited to the right to run a ferry- boat from one dock or point to another ; but it in- cludes in it also, a prohibition to any other person to run a ferry boat, within certain limits, from either of the landing places. Thus the grant to Jona. L N York than Emmons, of the right to set up and keep 1813 > P- 268> a ferry across the outlet of the Oneida Lake ? prohibits any other person from ferrying within two miles, either above or below. When a grant is made of a ferry, with a prohibitory clause to others, for any specified distance, it requires no argument to prove that another grant cannot be See patents made within the prohibited distance. in office ofSec- r < retary of State, In 1752, a ferry across the Hudson at Kingston was vol. from 1739 granted by Letters Patent to Kipp and Cantine : the 42i. 7 ° 3,p °' patent contained a clause excluding all other persons from setting up a ferry within two miles above and below. This grant, therefore, may be said to be a 4 grant of the ferry franchise to the extent of four miles, and no grant could afterwards be made within those bounds. C l ty c i i ? rter ' The first charter of the city of New York, now to be p. 1 , to 26. J ' found, was granted by Governor Dongan in 1686. A recital in this charter shews that previous to that time, the city of New York had become the grantees of a fer- p ' ry from New York to Long Island, (now Brooklyn.) In 1708, the corporation of New York petitioned for Charter of a new charter, confirmatory of all previous grants and 1708. p. 27 to charter ant j i n their petition they set forth and assert- p. 27. ea " their right to the ferry from N. Y. to Nassau Island, (Brooklyn) and recited that their " profits," &c. from the ferry "fell short, of what might reasonably be made " of the same, for the want of the bounds and limits p. 28. « to be extended and enlarged on the said Island side," (Brooklyn.) They therefore prayed a confir- mation of the Old ferry, and a grant of the lands from high water mark to low r water mark on Nassau Island, p " ' "from Wall-about to Redhook, for the better im- " provement and accommodation of the said ferry, " with full power, leave and license, to set up, esta- " blish, maintain and keep one or more ferry or fer- "n'es, &c. within the bounds aforesaid, as they should "see meet and convenient, and occasion require, &c." This petition is recited at length in the charter of 1708, by Governor Cornbury ; after which recital, p. 29. the charter proceeds as follows : " The which peti- " tion we being minded to grant, know ye," &c. p 29 Then follows the grant and confirmation of the Old ferry, " with all and singular the usual and accustom- " ed ferriage, fees, perquisites, rents, issues and pro- " fits, and other benefits and advantages, whatsoever} " to the old ferry belonging or thereout arising ; and "also all the unappropriated ground, &c. from high wa- 5 M ter mark to low water mark, contiguous, and front- u ing the said city of New York, from Wall-about to " Redhook, &c. &c. with all and singular the rents, " issues, profits, ways, waters, easements, and all oth- " er benefits, profits, advantages and appurtenances, P- 30 - " which heretofore, have now, are, and which hereof- " ter shall belong to the said ferry, vacant land and pre- " mises, &c. together with the yearly and other rents, " revenues and profits of the premises, &c. except, and " always reserved, out of this our present grant and " confirmation, liberty to all and every person, inha- " biting or having plantations near the said river, by " the water side within the limits and bounds above " mentioned (i. e. from Wall-about to RedhookJ "to " transport themselves, goods, &c. over the said river " to and 'from the city of New York, &c. without fer- M riage, &c. Habendum, &c. And P- 31 « " we do further &c. give and grant unto the " said Mayor, aldermen and commonalty, &c. full and " free leave and license, to set up, establish, keep " and maintain, one or more ferry or ferries, as " they shall from time to time think fit and conve- " nient, within the limits and bounds aforesaid, for " the ease and accommodation of transporting pas- a sengers, (a) goods, &c. between the said city of New " York, and the said Island, ( except as is herein be- p . 32. "fore excepted,) (b ) under such reasonable rates and " payments, as have been usually paid and received (a) No inference unfavorable to the absolute right of the corpora- tion, can be drawn from these words. Tt is the usual language of a ferry grant, and is employed in the Letters Patent, granting ferries to individuals. See post page 7. (b) Exception in favor of those owning plantations between Red- hook and Wall-about who are permitted to transport themselves, goods, &c. 8 " for the same 3 or which at any time hereafter shall " be by them established, by and with the consent 93. " firm unto the said mayor, &c. the ferry and ferries " on both sides of the east river, and all other ferries " now or hereafter to be erected and established all 2 10 " around the Island of Manhattan, and the manage* " mentj and rule of, and all fees, ferriages and per- " quisites, &c. also the soil or land between high and " low water mark, on the said Island of Nassau, from " the east side of Wall-about to the west side of Red- " hook, &c. and also all and singular, other, the rights, " privileges, lil erties, franchises, ferries, ferriages, " fees, &c. &c. and saving to the inhabitants, or those " that have plantations by the water side, between " Wall-about and Redhook, the right of transporting " themselves, and their own goods only, in their own " boats, from and to their respective dwellings or " plantations, without paying ferriage ; To have " and to hold, all and singular the premises afore- " said and every part and parcel thereof, (except and " saving, as is herein excepted and saved) unto the " said Mayor, aldermen and commonalty of the citj u of New York, and their successors forever, to their " only proper use and behoof forever." " And further we do grant unto, and covenant with " the said Mayor, aldermen, &c. and their successors, " that they and their successors forever hereafter " may and shall, have, hold, use, possess, and enjoy, " all the rights, privileges, liberties, franchises, ju- " risdictions, courts, powers, offices, authorities, mar- " kets, ferries, fees, fines, amerciaments, perquisites, " profits, immunities, &c: and that these our Letters, " being entered of record, &e. &c. in and through all " things, shall be construed, and taken, and expound- " ed, most benignly, and in favor, and for the most u and greatest advantage, profit , and benefit of the " said Mayor, aldermen and commonalty of the city " of New York." The present applicants to the Legislature, for a rant of a new ferry, seize upon the closing words. u in the prayer of the petition, as recited in the charter p . 34. of 1730, to shew that saving the " old ferry" from dock to dock, nothing hut Legislative powers, in re- , , See . P 31 ? 1 " t ' ° r t ' phlet "in rela- gard to ferries, is granted to the corporation. tiontuthe new It should be horn in mind, that the petition to ss^^***' P which the words in question are the concluding prayer, was a petition, asking specifically, and by enumeration, for the various political powers, usual for the " rule and government of a city." The conclusion of the prayer, therefore, for " such * c other powers, liberties, franchises, rights, free- " customs, jurisdictions, privileges, immunities and " things, as may be needful for the good rule and " government of the city" naturally refers to such political rights, powers, privileges, &c. u as are need- ful for the good rule and government of the city." With what evident impropriety the concluding words of this petition are attempted to be referred to the ferry franchise, instead of the political powers pe- titioned for, will be most apparent, when we consider, that the ferry franchise, from Wall-about to Redhook, by previous grant, made in 1708, about twenty-two years before, was already vested in the corporation, as freehold property, and not as a right or privilvge for " rule and government :" whilst the various political powers asked for, are necessarily referable to the con- cluding clause of the prayer, being strictly and only u needful for the good rule and government of the city." The ferry franchise in question, therefore, instead of being revoked, or abridged, by the charter of 1730, is, in terms, recognized and confirmed. I have, I think, succeeded in showing, that this grant, of the entire and exclusive ferry franchise, from New-York to Brooklyn, between Wall-about and Redhook, is such, that had it been a grant to an individual, in the language and terms of the several 12 city Charters, it would have vested in such individual, the entire franchise with the right " to set up, estab- lish and keep" other ferries within the limits, as ho should from time to time see fit ; and consequently, that the Legislature would not possess the power to revoke, or in any way abridge, or alter, the grant. Have the Legislature any greater power over this franchise, because it is granted to a city ? It is said, that the statute of 1813, relative to the S^i2j!^ ph to cit y of New York, " contains numerous provisions New south fer- u on the subject of ferries and ferriage, between P " New York and Long Island, which fully recognize " the general control of the Legislature over the "whole subject." Is not this proving too much? This statute embraces all the ferries, between New York and Long Island, and consequently the " Old ferry" which, it is conceded the corporation have a freehold property in," is also subject to the entire control of the Legislature ! An act of the Legislature relative to previously chartered rights or franchises, can never be resorted to, to establish a power in the Legislature, beyond that exercised by the act itself : and in all cases of legis- lation, concerning grants of franchises, as property, it will be intended that the legislation was at the re- quest, or with the assent, of the grantee. 12 J R 125 Spencer, C. J., says, "Though the act of 1S06 con- " tains no recital stating that it was passed, on the a application of the corporation of New York, yet " we must presume that it was so passed, it being al- " most the invariable course of proceeding for the " Legislature not to interfere in the internal concerns " of a corporation without its consent. But in this matter, the Legislative enactments have, thus far, been in perfect accordance with the terms of the grant. The grant is of a full and free 18 u leave and license to set up, establish, keep and " maintain, one or more ferries, within the limits and " bounds aforesaid, &c. under such reasonable rates Charter, p. .32. " and payments as have been usually paid and re- " ceived for the same ; or which, at any time hereafter " shall be by them established, by and vjith the con- " sent and approbation of our governor and council " of our said province for the time being," then the Legislative body. The Letters Patent, to the individuals before men- tioned, contain similar Legislative reservations. See ante p. 7, 8. After the Revolution, if the grantees of these sev- eral ferries desired an alteration in the rates of fer- riage, their only course was to apply to the Legisla- twe, in lieu of the "governor and council" named in their respective grants. The first Legislative enactment, in relation to the ferries between New York and Brooklyn, was in 1801, and was undoubtedly at the request of the cor- poration of New York. By the act of 1801, the ferriage or fees were in- 2 - L- N. Y. . 383. creased, and by several sections of the act, the rights of the city, to the ferries, granted and confirmed in words substantially the same as those used in the several charters. The act of 1813, which was " an act to reduce the 2 - R< L - 342 " several laws relating to the city of New York into " one act," so far as it relates to the ferries in ques- tion, was substantially a re-enactment of the act of 356. 1801. It is quite clear, that neither of these acts of the Legislature, attempts to abridge the grants by the previous Charters. For grants of ferries to individuals by the Legis- 14 lature, see sessions 1810 — 12 — 10 and almost ev- ery subsequent year. Grants by legislative enactment, as well as Letters Patent, vest the franchise in the grantee, and can- not be revoked, except upon just ground of for- feiture. The grant then, to the city of New-York, by Charter, or Letters Patent, recognized and con- firmed by Legislative enactment, must vest the fran- chise irrevocably in the corporation, unless the cir- cumstance that the corporation is of a public and po- litical character, gives to the Government powers of revocation, which it does not possess, over similar grants to individuals, or private corporations. The right and power of the Legislature do not so much depend on the kind of corporation, to which a grant is made, as upon the subject matter of the grant. The power of revocation must always depend upon the question, whether the grant be one of polit- ical power, or a grant in the nature of property. If the former, it matters not whether it be to an indi- vidual, or a private corporation, it may be revoked. If the latter, though it be to apolitical corporation, it cannot be recalled. A private corporation may be clothed with political power ; as the " Columbia Manufacturing Society," at Columbiaville, Columbia county, incorporated in 1S09. By this statute, the trustees of the Columbia L N y Manufacturing Society are made trustees of the 1812, p. 9. village of Columbiaville ; and are clothed with pow- ers to assess upon the inhabitants, highway taxes — to pass ordinances, for regulating swine, restraining and regulating the sale of ardent spirits, to impose pen- alties, &c. Here then we find a private manufactu- 15 ring corporation vested with political power. The private character of this corporation does not render inviolate this political trust, and the Legislature may at any moment revoke it. " Mere naked powers," says Judge Story, " which " are to be exercised for the exclusive benefit of _. 4 - Whea * 70(1 Dartmouth eol- " the grantor, are revocable by him for that reason." lege case. Again. " State legislatures have power to enlarge, " repeal and limit the authorities cf public officers, 694 - in their official capacities." It was upon this principle, that the Legisla- ture passed the law relative to Measurers of Grain L. N. Y. 1832 in the city of New York, and that the Supe- p " rior Court of New-York decided the case of Sutton vs. Satterlee, arising under that act. — Pamphlet 75 The case was never reported and only an oral opin- ion delivered. Chief Justice Jones, who delivered the opinion, (of which I took a note at the time) said, that the grant to the corporation, to appoint Measurer's, ( a) was a grant of political power, coupled with no interest, saving the fees to be paid as a compensation for measuring : it was, there- fore, like every political power, subject to Legisla- tive control. If, said he, I considered the grant in the light of property, intended as a source of rev- enue to the city, I should feel constrained to say, it w T ould be beyond the control of the Legislature. These authorities abundantly shew that a political (a) Charter p. 69. And we do hereby farther grant and give, unto the said mayor, aldermen and commonalty, and their successors for- ever, the office of Measurer ; of and in the said city, to measure salt, grain, and all other merchandize measurable, or to be measured in the said city, To have and to hold the office aforesaid, &c. and to ex- ercise the same, by themselves or their deputies; and to take and re- ceive to themselves all the fees, profits and perquisites, to the said office due, or to be due. 16 power, vested in a private corporation, may be revo- ked. On the other hand, a town, or city, is a public, or political , corporation ; yet, it is capable of holding property ; and a grant to it, by the government, of lands, or other property, is beyond the power of the Legislature to annul. The State of Vermont, by statute, in 1794, grant- ed to the respective towns in that State, certain glebe lands, lying within those towns, for the sole use and support of religious worship. In 1799, an act was passed to repeal the act of 1794. 9 Cranch 43 But tne U. S. court declared, that the act of 1794, 292. a g0 f ar as jf g ran teci the glebes to the towns, could " not afterwards be repealed by the Legislature, so " as to divest the rights of the towns under the grant." Dartmouth college w r as incorporated by charter 4 Wheat. 5JS. from the British crown, in 1769. In 1816, the Leg- legeTaTe 11001 " islature of New Hampshire, without the consent of the corporation, passed an act, making various mate- rial alterations in the grant. This law was resisted by the corporation, on the ground that it impaired the obligation of contracts within the meaning of the constitution of the U. S. The question was finally brought before the United States court, where the act of the Legislature was pronounced " repugnant to the constitution of the United States, and so not valid." p. 715. A very able opinion was delivered by Mr. Justice Story, from which I have made some extracts that appear to me fully to establish the rights insisted on by the city of New York, in relation to the ferries in question. Story. u It may also be admitted, that corpora- a tions, for mere public government, such as towns, " cities, and counties, may, in many respects, be C94. 17 u subject to Legislative control. But it will hardly " be contended, that even in respect to such corpor- u ations, the Legislative power is so transcendent " that it may, at its will, take away the private pro- " perty of the corporation, or change the uses of its " private funds, acquired under the public faith. " Another objection growing out of and connected P- 698 - " with that which we have been considering, is, that " no grants are within the constitutional prohibition, " except such as respect property, in the strict sense " of the term ; that is to say, beneficial interests in " lands, tenements, and hereditaments, &c. &c. which " may be sold by the grantees for their own benefit ; u And that grants of franchises, immunities and au- " thorities, not valuable to the parties as property, " are excluded from its purview. " No authority has been cited to sustain this dis- " tinction, and no reason is perceived to justify its " adoption. There are many rights, franchises and " authorities, which are. valuable in contemplation of " law, where.no beneficial interest can accrue to the " possessor. * * * " In respect to corporate franchises, they are, pro- " perly speaking, legal estates, vested in the corpo- " ration itself, as soon as it is in esse. They are not " mere naked powers granted to the corporation, but "powers coupled with an interest." But may not the Legislature, for non-user or mis- user of a franchise, granted to a City, (charges that are made against the grantees of the franchise in I think not. Courts of justice furnish the only remedy. « All franchises are granted on condition " that they be duly executed, according to the grant ; 18 Cc and if the grantees neglect to perform the terms, may be repealed by scire facias." Chittya law u A scire facias is proper," says Mr. Justice Ash- i62. Prer °° atIVe hurst, " when there is a legal existing body, capable " of acting, but who have been guilty of an abuse of " the power entrusted to them ; for, as a delinquent " cy is imputed to them, they ought not to be con- " demned unheard." 6 Barnwell Bailey, J. " In the case of an abuse of a fran- and C res well J ' 703. " chise, by negligence, the crow T n may repeal the " grant, by scire facias, or quo warranto, and may " vest it in some other person." 5 j. ch. R. Kent. " But that a corporation is to be ad- 2S0 ' " judged dissolved, for non-user, or misuser, of its " franchises, until it has been called upon to answer u for the breach offrust,\s no where assumed. The " contrary doctrine is universally taught, and it is " founded on very obvious principles of justice." Again, p. 381, says the Chancellor, " Lord Ken- " yon points out the proper remedy. It is by the ju- " dicial process of scire facias" 4 Wheat. 698. Story. " The truth is, that the government has no " power to revoke a grant, even of its own funds, when m " given to a private person, or a corporation for spe- " cial uses. It cannot recall its own endowments, " granted to any hospital, or college, or City, or " Town, for the use of such corporation. The only " authority remaining to the Government, isjudi- " cial, to ascertain the validity of the grant, to en- " force its proper uses, to suppress frauds, &c." sa* " Can the Legislature . confiscate, to its own .USfi* « the private funds which a munidipuv vuipuiutlVtt "holds under its charter, without any default, or con- « sent of the corporators ?— From the very nature of 19 " our government the public faith is pledged the oth- " er way, and that pledge constitutes a valid compact, " and that compact is subject only to judicial inqui- " ry, construction and abrogation. This court have " already had occasion, in other causes, to express " their opinion on this subject, and there is not the " slightest inclination to retract it." 9 Cranch, 43, 292. From the fullest consideration of this question, my opinion is, that the franchise, or righ't to set up, keep, and maintain ferries, between New York and Brooklyn, is vested in the city of New York, and until the corporation forfeit the franchise, and that forfeiture be ascertained by a judicial investiga- tion, the Legislature has not the power to revoke the grant, or give it to another. I regret to be obliged to present you with an opinion of such length. My apology for it is, a want of time to make it shorter. DANIEL B. TALLMADGE. To Hon. C. W. Lawrence, Mayor of the City of New- Fork. V I AVERY