Ferrel v. Woodward

Downer, J. The evidence shows that Gleason never accepted the franchise from [the state. The grant was to Gleason and Ferrel, their heirs, executors, administrators or assigns. Could Ferrel alone accept a franchise granted to him and Gleason ? If the grant had been to more persons than two, perhaps a majority might have accepted. Still there are strong reasons that might be urged against such a construction. We know of no law, authority or doctrine for holding that a less number than a majority to whom a franchise is granted can accept it; and we have been referred to none. If one person can accept of exclusive privileges conferred jointly by the legislature on him and another, we see no reason why, when any larger number of persons are invested with exclusive corporate franchises on condition of their accepting, any one may not accept, rightly exercise, hold, own and assign all the rights and franchises conferred upon the whole. It appears to us that'the franchise [462] must bave been accepted by both. Gleason and Ferrel, or tbe grant was inoperative. But if we are mistaken in tbis, tbe evidence does not sbow a case calling for tbe exercise of tbe powers of a court of equity. If Ferrel bad exclusive rights either under tbe act of tbe legislature or tbe license of tbe county board, tbe evidence clearly discloses such inattention to tbe business and gross neglect as would warrant a court, in a proper proceeding, to declare bis rights forfeited. Woodward?s competition may bave caused this. But that is no excuse, certainly not a valid one, where tbe public interest is involved. If be would invoke tbe aid of a court by tbe extraordinary remedy of injunction and receiver, be should bave kept and operated a ferry that would at all times bave accommodated tbe public. If be bad tbe exclusive right be claims, when Woodward first infringed upon that right, be could bave enjoined him, if be bad first fulfilled tbe conditions of tbe grant to himself. But be so neglected bis own ferry that Woodward's ferry became a public necessity. Under these circumstances, be should be left to bis personal action for damages, or be required first in such action to establish bis exclusive right. By the Court. — The judgment of tbe circuit court is reversed, and tbe cause remanded with directions to dismiss tbe complaint.