HEBERT, TREASURER, &c. vs. MAILLAN ET AL. APPEAL FROM THE COURT OF THE FOURTH DISTRICT, FOR THE PARISH OF The power of establishing ferries, is now vested in the police juries of the several parishes. The power of establishing ferries by the police jury in the several parishes, is sufficient for all the inhabitants, whether of a town adjacent to a stream, or any others, to cross the streams which border on them; so the town council have not this power. This is an action by the parish treasurer, of the Parish of Iberville, to recover from the defendants the amount of four promissory notes given for the lease of the ferry across the Bayou Plaquemine, at the town of Plaquemine, in the parish of Iberville, by the police jury of said parish, for one year from the 12th November, 1838. The defendants admitted their signatures, but averred there was a failure of consideration, inasmuch as the police jury, who sold the ferry, had no authority, having no jurisdiction over said ferry, on either side of said Bayou: But that the city council of the town of Plaquemine claimed and exercised the rights of establishing said ferry, and had, by public notice and sale, actually let said ferry to one E. Decaudine, who has been in the possession and use of the same, to the exclusion of the defendants. The defendant Maillan, avers that he has sustained damages in consequence of the acts of the police jury in selling him their pretended right to this ferry, and not putting him in possession and defending him in the enjoyment thereof. He prays that the plaintiff's demand be rejected, the notes cancelled and given up, and that he have judgment for one thousand dollars in damages. It was admitted that the notes were given for the sale of the ferry at Plaquemine, for a year, by the police jury; and 74 VOL. XVI. EASTERN DIST. that the same ferry had been sold by the corporation of the January, 1841. town of Plaquemine, to E. Decaudine, fils. HEBERT, TREA- vs. On this evidence and the law concerning ferries, and the act of incorporation of the town of Plaquemine, there was MAILLAN ET AL. a verdict and judgment for the plaintiff, for the amount of the notes sued on. The defendants appealed. Edwards, for the plaintiff, insisted that the judgment was correct, and should be affirmed. Burke, for the appellants, submitted the case on a written argument. Martin, J., delivered the opinion of the court. The defendants are appellants from a judgment on their four several promissory notes, given for the price of a ferry across the Bayou Plaquemine, for one year from the 12th of November, 1838. They admit their signatures to the notes, but aver that they were given without consideration, through error of law and fact, or if ever any existed, the consideration has failed, because the jurisdiction or authority to sell out said ferry, belonged to the town of Plaquemine, and not to the police jury. That, at about the same time, the town council of Plaquemine sold said ferry, or the side next to the town, to one Emilé Decaudine, who has remained in the undisturbed possession and use of the said ferry, to the disturbance and exclusion of the defendants. The sole question which this case presents, is the legality of the adjudication made by the police jury to the defendant Maillan, and that of the adjudication made by the city council of Plaquemine, of the same ferry, for the same period to Decaudine: both of these licenses being for ferries across the Bayou Plaquemine, and opposite to the town. By a general law of the state, the right of establishing ferries, was vested in the judges of every county, 1 Moreau's Digest, 474; and when a stream divided two counties, the license authorized the keeper of the ferry to take and land passengers and goods on either side of it. Afterwards, the EASTERN DIST. power, theretofore vested in the county judges, was transfer- January, 1841. red to the police jury of each parish. 2 Moreau's Digest, 242, HEBERT, TREAsec. 5, No. 9. The defendant contends, that the act of incorporation of the town of Plaquemine, has divested the police jury of that parish, of the right of establishing ferries within said town. That act is entirely silent in regard to ferries, but contains a clause which divests the police jury of all jurisdiction within the town limits, except as relates to parish taxes. SURER, &c. vs. MAILLAN ET AL. The power of establishing ferries is now vested in the police juries of the several parishes. The power of establishing ferries by the police the inhabitants, a stream, or any the cross streams SO the It cannot be contended that the police jury have not the jury in the several parishes, is right of establishing a ferry across the Bayou Plaquemine sufficient for all opposite to the town, and that the license granted by them whether of a would not authorize the grantee or lessee to take in and land town adjacent to passengers and goods, on either side of the stream, even if other, to the town was in another parish, or what is perhaps the same which border on thing, the corporation had a right to establish ferries. But them, town council the town is in the parish, and the act of incorporation does have not this not give to the council the right of establishing ferries. The power. council cannot claim it by implication, for the power of the police jury is sufficient to afford to the inhabitants of the town all the necessary facilities to cross the streams which border on it. It appears to us the District Court did not err in recognizing the legality of the adjudication by the police jury. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs. EASTERN DIST. CITY COUNCIL OF DECA UDINE CITY COUNCIL OF PLAQUEMINE vs. DECAUDINE ET AL. APPEAL FROM THE COURT OF THE FOURTH DISTRICT, FOR THE PARISH OF The corporation of Plaquemine, having no express or implied authority to establish a ferry across a stream bordering on it, the exercise of such act is illegal; this power under a general law, belongs exclusively to the police jury. This is an action against the defendant and his sureties, on their four promissory notes, given for the sale of a ferry across the Bayou Plaquemine, by the city council of said town. The defendants admitted their signatures, but denied that they were bound, because there was a failure of consideration. That their notes were given in error of fact and law, and are void. They expressly aver that these notes were given for the sale of the ferry across Bayou Plaquemine, by order of the city council of Plaquemine, when the same ferry had been sold out to Jean Maillan, by the police jury; that the city council had no right or authority to sell, and consequently, have no right to compel a compliance with said sale. The defendant, Desaudine, averred that he had sustained damages by the imposition, and prayed that the suit be dismissed; that his notes be cancelled and given up, and that he have judgment in reconvention for four hundred dollars. It was admitted there was a ferry over Bayou Plaquemine on both sides, which had been legally established by the police jury for a great number of years; that it is within the limits of the town of Plaquemine; that the notes sued on, were given for the sale or lease of said ferry on the town side, for one year; and that the whole ferry had been sold out and leased by the police jury to Maillan. There was judgment for the plaintiffs for the amount of the notes, and the defendants appealed. Labauve, for the plaintiffs. EASTERN DIST. January, 1841. Burke, for the appellants, submitted the case on a written CITY COUNCIL OF argument. Martin, J., delivered the opinion of the court. The defendants are appellants from a judgment on their four several promissory notes, given for the lease of a ferry across the Bayou Plaquemine for one year. They allege that said notes were given without consideration, inasmuch as the said ferry was under the control, and had actually been sold out to another person by the police jury of the parish of Iberville, within which, the town of Plaquemine and said ferry are situated. This case turns upon the legality of the adjudication of the ferry by the corporation of the town of Plaquemine, to one of the defendants, and that of the police jury to one Maillan. Both these adjudications have been under consideration, in a case just decided of the police jury against Maillan et al., wherein we concur in the opinion of the District Court, sustaining the adjudication of the police jury. The adjudication by the corporation of the town of Plaquemine, of the same ferry, was incidentally examined. were not able to discover in the act of incorporation of said town, any thing which authorized, even by necessary implication, the municipal authorities to establish ferries. PLAQUEMINE vs. DECAUDINE ET AL. The corpora mine, having no stream border Our learned brother in the District Court, has not favored us with any of the grounds on which he recognized their tion of Plaqueauthority, but has contented himself with saying the law express or imand the fact called for a judgment in favor of the plaintiffs. to establish a It appears to us the district judge erred in sustaining the ferry across a adjudication of the plaintiffs to the defendant Decaudine. ing on it, the There being no express or even implied authority in the act act is illegal; of incorporation to establish a ferry, and by the general law, this power una general this power is given to the police juries, the town of Plaque- law belongs exclusively to the mine was, consequently without authority or right to adjudi- police jury. cate this ferry to the defendant. exercise of such |