Hebert v. Maillan

Martin, J., delivered the opinion of the court. The defendants are appellants from a judgment on their four several promissory7 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 Enfilé 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 [587] passengers and goods on either side of it. Afterwards, the power, theretofore vested in the county judges, was transferred to the police jury of each parish. 2 Moreau’s Digest, 242, sec. 5, No. 9. establishing fer-e^in the^poilee juries of the sev- ° The rfisbythepoiice jury in the sevsufficient for’all ^hether^of^a tow" adjacent to a stream, or Lany other, to cross holder™ tliem> so th.® town council have not this power' 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. It cannot be contended that the police jury have not the right of establishing a ferry across the Bayou Plaquemine opposite to the town, and that the license granted by them would not authorize the grantee or lessee to take in and land , . .. ' passengers and goods, on either side of the stream, even if the town was in another parish, or what is perhaps the same thing, the corporation had a right to establish ferries. But , , . » _ the town is in the parish, and the act of incorporation does not give to the council the right of establishing ferries. The 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.