Vallejo Ferry Co. v. Lang & McPherson

HENSHAW, J.

Plaintiff was operating a ferry between the city of Vallejo and Mare Island by authority of a franchise granted to it by the city of Vallejo. Defendants began to operate an opposition ferry without any permit or franchise from any person whatsoever, and in violation of the terms of the franchise granted by the city of Vallejo to the plaintiff. Thereupon the plaintiff sued and obtained an injunction against defendants, and from this judgment defendants appeal.

Their varying contentions upon appeal all revolve about the central proposition, that the city of Vallejo had no power to grant a franchise. Without regard to the question whether this defense may he asserted by defendants, who do not pretend to be operating under any franchise, license, or permit whatsoever, and who for aught that appears are violating the penal laws of the state in collecting ferry fares and tolls (Pen. Code, sec. 386), upon the merits appellants’ contention is unsound.

The city of Vallejo was incorporated in 1872 by a charter

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which (sec. 10, subd. 13) conferred upon its board of trustees the power “to grant licenses and franchises, in the manner provided by law for boards of supervisors of counties for constructing, keeping and taking tolls on roads, bridges, ferries, wharves, chutes, and piers within the limits of said city of Vallejo.” Appellants’ argument is that by the general law then upon the statute books, this power to grant ferry franchises was vested in the board of supervisors (Pol. Code, secs. 2892, 2893); that these sections of the Political Code are, in effect, but re-enactments of the statute of 1855 (Stats. 1855, p. 183)' which was a general law conferring .authority upon the supervisors to establish ferries; that therefore there could be no valid special law authorizing the city of Vallejo to establish ferries even under the constitution of 1849, and that the attempt so to do in the charter provision of the city of Vallejo is therefore void. The position is unsound. Under the constitution of 1849 special legislation was not forbidden, nor was the conferring of special powers upon municipalities by their charters, even when a general law upon the same subject-matter stood upon the statute books.

(Smith