Burlington & Henderson County Ferry Company v. Davis.

and the defendant, until he was enjoined, was doing the same thing.

If the license is not exclusive, it must, we think, be for want of power in the Legislature. The defendant insists that there is such want of power. Upon this point he says that "the Mississippi river, being a free navigable stream, vessels may land at and discharge passengers at any point between high and low water mark, for that they have the same right to touch and make fast at and between these limits, which are a part of the river, that they have to float or anchor in mid stream."

2.- -: ferry.

Grants of exclusive ferry licenses, however, are upheld. They rest upon peculiar ground. A ferry is in some sense an extension. of a public road. Whatever objection there may be to the creation of a monopoly, it is considered as overcome in the matter of a ferry by the consideration of the public necessity or advantage. In Cooley on Constitutional Limitations, 593, the author says: "The States may lawfully establish ferries over navigable waters, and grant licenses for keeping the same, and forbid unlicensed persons from running boats or ferries without such license. This also is only the establishment of a public highway, and it can make no difference whether or not the water is essentially within the State, or, on the other hand, is a highway for inter-State or foreign commerce." The author cites, in this connection, Conway v. Taylor's Executors, 1 Black, 603; Chilvers v. People, 11 Mich., 518; Fanning v. Gregoire, 16 Howard, 524. In Conway v. Taylor's Executors, above cited, it was held that the authority to establish and regulate ferries is not included in the power of the Federal Government to regulate commerce, under the Constitution of the United States. In Chilvers v. People, above cited, the court said: "Ferries are as clearly creatures of local legislation as roads and bridges; and the establishment and regulation of them are as necessary for the convenience of the traveling and business public. In Jones v. Fanning, Morris, 348, a

Burlington & Henderson County Ferry Company v. Davis.

question arose in regard to the power of the Legislature to grant an exclusive license to ferry across the Mississippi river at Dubuque. The court, after considering the objections urged against the existence of such power, said: "The conclusion to which we are brought on this subject is that the Mississippi river, so far as it affords facilities for transportation, cannot be obstructed or monopolized. It is a common highway and forever free. But, so far as it presents an obstruction to land carriage, it is left to the sound discretion of the Legislature to provide means for surmounting such obstructions by means of ferries, and for this purpose it may even give individuals exclusive privileges, within reasonable limits, when done in good faith, for the purpose of furnishing an indispensable link in the chain of transportation on dry land." Since this decision a large number of exclusive ferry licenses have been granted in this State, and we are not aware that the power of the Legislature has been questioned in this respect, from the time of that decision until it was done in this case.

The point is made, however, by the defendant, that since the decision in Jones v. Fanning, a restriction has been imposed upon the power of the Legislature in this respect. We are referred to art. I, sec. 6, of the Constitution of the State. That section provides that "the General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not belong equally to all citizens." The effect of this restriction we need not consider further than to observe that it has no application to the charter in question, unless the constitution is retroactive. charter antedates the constitution. As to the operation of a constitution it is said in Cooley on Constitutional Limitations, 63: "We shall venture to express the opinion that a constitution should operate prospectively only, unless the words. employed show a clear intention that it should have a retrospective effect." The learned author, in the same connection, after commenting upon the rule in regard to the operation of

The

Burlington & Henderson Connty Ferry Company v. Davis.

statutes, says: "We are aware of no reasons applicable to ordinary legislation, which do not, upon this point, apply equally well to constitutions." A similar view seems to have been taken in Allbyer v. State, 10 Ohio N. S., 588. We are of the opinion that the provision of the charter in question did not become void upon the adoption of the constitution. with the restriction referred to.

One question remains to be considered. The ordinance under which the license is derived provides that if the ferry company fails to run its boat for ten days, when the river is navigable, all privileges shall be forfeited. The answer avers that the plaintiff has neglected for periods of from six weeks to two months, and at various times, to operate its boat; and trade and travel have been driven from the city; and the ferry has not been run for the accommodation of the public, but at the whim of those in charge. The answer, however, does not aver that the plaintiff neglected to run a boat for ten days, when the river was navigable. It is not shown to us, then, that anything has transpired by reason of which, under the ordinance, a forfeiture could be declared.

We think that the demurrer to the defendant's answer was properly sustained.

AFFIRMED.

Ahern v. The Dubuque Lead and Level Mining Company.

AHERN V. THE DUBUQUE LEAD AND LEVEL MINING CO. ET AL.

1. Mines and Mining: DRAINAGE CONSTITUTIONAL LAW. Section 1229 of the Code, providing that any person who shall by drains or adit levels, rid lead-bearing mineral lands of water, making them productive or available for mining purposes, shall be entitled to receive one-tenth of all the lead mineral taken therefrom, is not in conflict with the constitution.

Argument 1. The statute is identical in principle with those regulating party walls and partition fences, and provides only that one should compensate another for outlays lawfully made by which he himself has been benefited.

Argument 2. The act of building the adit is lawful, because it tends to promote the public interest, and is productive of public good. ROTHROCK, Ch. J., and SEEVERS, J., dissenting.

Appeal from Dubuque District Court.

TUESDAY, APRIL 16.

THE petition alleges that plaintiff is the owner of certain mineral lands, and leased the same to the defendant, the Dubuque Lead and Level Company, on condition of receiving onefifth part of all mineral raised; that defendant has raised a large amount of lead ore, and that plaintiff is entitled under the law to recover the value of one-fifth thereof. Defendant Chamberlain intervened in the action, and answered the petition, alleging that "he is now, and previous to the time of raising the mineral claimed by plaintiff he was, the owner of an adit level running through the premises of plaintiff, made for the purpose of draining the mineral lands through which it runs, including the lands of said plaintiff; that by said level the lands of plaintiff were drained of water, and by reason thereof the mineral was obtained and raised, and the lands rendered productive and available for mining purposes, and under the laws of Iowa this defendant, as the owner of said level, is entitled to one-tenth of the mineral."

*

Ahern v. The Dubuque Lead and Level Mining Company.

A demurrer to this answer was overruled, and from the decision thereon plaintiff appeals.

Wilson & O'Donnell and Griffith & Knight, for appellant.

Shiras, Van Duzee & Henderson and Fouke & Lyon, for appellee.

BECK, J.-I. The questions raised by the demurrer involve the constitutionality of the statute under which defendant claims to recover one-tenth of the mineral as owner of the adit level. Our attention, therefore, is directed to the consideration of that statute, which is as follows, being Code, § 1229:

1. MINES and mining: drain. age: constitational law.

"Any person or corporation, who, by machinery, such as engines or pumps, or by making drains or adit levels, or in any other way, shall rid any lead bearing mineral lands or lead mines of water, thereby enabling the miners and owners of mineral interest in said lands to make them productive and available for mining purposes, shall be entitled to receive one-tenth of all the lead mineral taken from said lands, as compensation for such drainage." The three following sections prescribe the remedy that may be pursued to recover the mineral, or the value thereof, by the person or corporation draining lands as contemplated by this section. Two sections next following give the right of way for the purpose of carrying the water away from the mineral lands, and provide for the means of determining the compensation to be paid the land owner.

Plaintiff insists that this statute is unconstitutional, in that under its provisions a citizen may be deprived of his property without due process of law, and his property may be in a compulsory manner taken by another for private purposes.

Certain familiar principles applicable to the judicial interpretation of the constitution may properly be stated here. They demand, for their support, neither the citation of authorities nor argument, for they are familiar to the profession.