The note has never been paid, Bond being unable and the defendant unwilling to pay it.

H. C. Warinner, for plaintiff.

L. Lehman, for defendant.

HAMMOND, J. On the facts of this case, and very much against my own opinion, and with a sense of its injustice, I feel constrained by authority to pronounce judgment for the plaintiffs. Outside the statute of frauds the defendant would, under the ordinary law of contracts, be held liable only to the extent of his agreement, or else the contract would wholly fail for want of that consent of the two minds necessary to make a contract effective as between the parties to it. I am unable to see any sound and unsatisfactory reason why this transaction is not within the statute of frauds, which enacts that "no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unles the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writ ing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized." Code Tenn. (T. & S. ed.), § 1758.

If the defendant had taken the precaution to write his actual contract above his signature he could not be held beyond it, whatever may have been the plaintiffs' intentions or expectations; and why should he now be so held? If he had thus written it, and the plaintiff accepted it, both would have been bound by it; if it were not in accordance with the agreement or understanding with Bond, they could have refused acceptauce and been in no worse situation that they already were, or could have insisted on a compliance with that agreement. Here were creditors anxious to secure an autecedent debt on an insolvent man; any thing they could get in the way of security was better than nothing. The defendant was in no sense, legal or moral, bound to become liable for it; nor was be, in becoming surety, limited to any particular form, but could prescribe his own terms. He sought to fix those terms, and signed the note in the confident belief that he had done so. And yet, in aid of these creditors, we find the courts ignoring the statute of frauds - ignoring the actual intention of the surety, and by a system of judicial legislation binding him to an arbitrary contract he never made, and that the creditors never supposed he had made, until advised perhaps by their lawyers to that effect; for the plaintiffs always treated it as an "indorsement," as no doubt the defendant thought it was. It is just the case that falls withiu the letter and policy of the statute of frauds, and illustrates its wisdom.

In my judgment there is nothing in the commercial law of negotiable instruments demanding that this case shall not be governed by the statute of frauds. Such is the law of England, whence we derive our own, and where the defendant could not be held as maker or indorser, for the obvious reason that he was in fact neither, but only as a guarantor-no matter what the terms of the guaranty may have been, whether of absolute payment at maturity as plaintiffs insist, or conditionally as defendant Intended to be bound-which liability could not be enforced because the contract was not expressed in writing. "He is not liable at common law as a surety, because of the statute of frauds; and he is not liable by the law-merchant, because he has not followed the law-merchant." 1 Dan. Neg. Inst. (3d ed.), § 714a; 1 Ames Bills & Notes, 243; 2 id. 839; Steele v. McKinlay, L. R., 5 App. Cas. 754, 772, 783; McDonald v. Whitfield, L. R., 8 App. Cas. 733, 748.

In Steele v. McKinlay, supra, is a very instructive

statement showing how the English commercial law has modified the old foreign law-merchant as to the liability called an aval, which held any stranger who lent his name to the paper bound as an underwriter in the capacity in which he so lent it, whether he placed his name on the paper itself or on a separate paper; and he incurred his liability by writing his name under that of the drawer, acceptor or indorser, and was held according to the place where he put it; owing however to the statute of frauds, this never operated in English law between the original parties to the paper, but "solely for the benefit of those who take subsequently;" and the cases holding otherwise are pronounced unsound. Hence under the English law the defendant here could be held only as a second indorser to one who took the note from the plaintiffs with their name written above it, and he could not rely upon the statute of frauds, for the reason that his indorsement would then appear to be regular, and he could be justly held according to its import. But the English law goes no further than this; and if our American courts, in their struggles with this question, had so confined themselves, there would not now exist the pitiable confusion exhibited in having neither the old law-merchant nor the English modification of it, but a nondescript law-merchant, which differs so materially in the several States that there are almost as many rules of decision as there are States, that no two writers agree upon a classification of them, and that scarcely any State court of last resort has uniformly adhered to any given rule of decision. Mr. Daniel has boldly suggested a new way out of these bogs of the commercial law, which is interesting because new. 1 Dan. Neg. Inst. (3d ed.), §§ 707-716, 714; 4 South. Law Rev. (N. S.) 539; 20 Am. Law Reg. (N. S.) 331; 16 id. 649.

Those "who do not follow the law-merchant" should not expect any aid from it, and these irregular indorsements are not in accordance with it until they have assumed the regular form of the well-defined contracts of the law-merchant. Any attempt to assimilate them to the regular forms of contract leads to confusion, as our American authorities abundantly illustrate. The regular contract, whether in blank or not, is as well understood as if it were written out word for word, and though blank as to form, is in legal effect written in full. It is not therefore within the statute of frauds, and is protected against parol evidence as other written contracts are. But the same treatment cannot be applied to these irregular blank indorsements, unless the Legislature or the courts can write a uniform and well understood contract above them; the former might, but certainly the latter have not been able to agree on such a contract, and we have the remarkable exhibition of a variety of artificial and wholly arbitrary rules of decision as perplexing as it is possible to make them. If parol testimony is to be at all admitted to show a contract, I cannot comprehend why it shall not be admitted at large to prove the real contract, or that there was in fact no agreement of the minds; nor why it should not be enforced or fail according to the proof. But this is not what the courts do; they admit parol proof only for the limited purpose of enabling them to make a choice as to the form of the liability. If they chose to hold him as indorser he may defend by showing that there was no demand and notice; if they conclude to hold him as a guarantor he is not permitted to show the actual terms of his guaranty, but held to an absolute one, except perhaps in some States he may show that he was only a guarantor of solvency; and if they decide to hold him as maker, there is no escape for him, although he had no more intention of becoming a maker of the note than he had of becoming the architect of a new system of commercial law.

Where the object is to prevent one from escaping his contract, who actually intended to become a first indorser or a maker, but by a blunder did not sign a proper paper in the proper place, there may be some excuse for a wish "to baffle such a defense," though Lord Blackburn, in the opinion before cited, thinks it better, even in such cases, to adhere to the law. But this desire to impose some liability upon the irregular indorser has led the courts to an exaggeration of that doctrine. For example: In this case it may be true, as stated by Mr. Justice Cooper in one of the Tennessee cases, that the defendant intended to be bound in some form, and that he should be held to

some

liability; but it does not follow from this that he should be held bound to one of the three, or at most four, forms of contract, namely, as maker, as second indorser, as guarantor of payment at maturity, or as guarantor of payment when the holder fails to collect of the maker. Why may he not be held to the contract he made, namely, that he would pay if the maker should die without payment, or according to any other condition he might attach? If it be said that this was not the plaintiff's contract, the reply is that if he accepted the indorsement, such was his contract;. for the indorser's consent is as necessary as his own, which will be implied from his acceptance, or else there was in fact no contract, because the parties did not in fact agree to any thing.

As I understand the class of cases to which Boyer v. Boogher, 11 Mo. App. 130, belongs, this may be done if the indorser can prove that the payee of the note had knowledge of the particular conditions attached by him to the indorsement, but not otherwise; but I am unable to see why the payee should be more under the protection of the law than the other party to the contract, or why he may fill the blank space above the signature with a more absolute and a different agreement than that which the party signing intended to write therein. No man should be bound beyond his actual intention, upon au arbitrary implication or some other intention, unless the law, as in the case of regular indorsements, fixes an invariable contract to be always implied from a blank signature. Confessedly it does not do this; and while it opens the case to parol proof of intention it illogically denies to him the privilege of proving any intention different from that of the other party, and often implies one wholly foreign to himself. In the effort to make efficacious that which in itself expresses nothing in particular, the cases build, upon facts and circumstances surrounding the transaction, some contract which does not express the actual intention of the surety, but that of the court

be enforced as an acceptance by the payee of the terms attached to his contract by the guarantor, and that efect could not be given to any guaranty not expressed in writing, because the statute of frauds has forbidden it; and that until the payee had indorsed this note and transferred it to some stranger to the original contract, the blank indorsement of the defendant would not fall within the law-merchant. This was originally the law of Tennessee, but it has been changed by later decisions which would now hold the defendant as a guarantor. Cahal v. Frierson, 3 Humph. 411; Comparree v. Brockway, 11 id. 355; Clouston v. Barbiere, 4 Sneed, 338; Newell v. Williams, 5id. 212; Talley v. Courtney, 1 Heisk. 718; Brinkley v. Boyd, 9 id. 152; Iser v. Cohen, 1 Baxt. 423; Rivers v. Thomas, 1 Lea, 649; Taylor v. French, 2 id. 257; Harding v. Waters, 6 id. 324. So would he be held in Texas, as I understand the cases there. Cook v. Southwick, 9 Tex. 615; Carr v. Rowland, 14 id. 275; Chandler v. Westfall, 30 id. 477.

But according to the rulings of the Supreme Court of the United States, which follow the Massachusetts rule, somewhat regretted in Essex Co. v. Edmands, 12 Gray, 273, the defendant is to be held as a joint maker of the note, the case falling within the first category enumerated by Mr. Justice Clifford in the two cases cited from that court. Rey v. Simpson, 22 How. 341; S. C., Law Pub. Co. Ed. 260, and note; Good v. Martin, 95 U. S. 90.

Judgment for plaintiffs. [See 28 Am. Rep. 624; 29 id. 745; 34 id. 638.-ED.]

CONSTITUTIONAL LAW-PROHIBITION AGAINST

PRIVILEGES-FERRIES.

NEW YORK COURT OF APPEALS, FEB. 3, 1885.

MATTER OF UNION FERRY CO.*

The delegation to a corporation of the power to acquire title to land for public purposes is not a grant of an "exclusive" privilege, for the same power may be conferred upon any corporation. Should the Legislature see fit to intrust it therewith, there is nothing in the Constitution to prevent its so doing.

The use being public, the legislature has the power to determine the necessity of the exercise of the right of eminent domain, and its determination is conclusive in the courts.

Act of 1882, ch. 259, in relation of ferries on New York city, is not unconstitutional.

PPEAL from order General Term, 1st Department. The opinion states the facts.

John Develine, for appellant.

George D. Delbitt, Jr., Elbridge T. Gerry, A. Van Santwood and John H. Martin, for respondent.

RAPALLO, J. The order denying the application was sustained by the court at General Term on the ground that the act of 1882, ch. 259, contravened section 18 of article 3 of the Constitution of this State, which provides that the Legislature shall not pass a private or local bill "granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever."

Passing for the moment the question whether the act of 1882 granted an exclusive privilege, immunity or franchise within the meaning of the constitutional prohibition, the question arises whether the grant in question was to a private corporation. It was certainly not made to the Union Ferry Company by

*To appear in 98 N. Y.

name, nor does the object of the act purport to be to add to the privileges or franchises of that company. In case the company should, under the authority of the act, procure the condemnation of the property in question, it would not acquire the property as its own, but would hold it merely temporarily and could use it only under its lease from the city of New York of the ferry franchise. The newly acquired property would become simply an addition to the ferry described in the act, which ferry is under the control of the city, and by it leased to the ferry company. On the expiration of its present lease this property would have to be surrendered to the city or to any subsequent lessee of the ferry. The company would have no power of disposition over it, but only the right to be paid for it by the subsequent lessee of the city, as other property appertaining to the ferry has to be paid for on a change of lessees of the ferry.

All this appears from the act itself, and the general system upon which the ferries of the city of New York are established and conducted.

By the Montgomeri Charter, section 37, Valentine's Laws, 243, the ferries on both sides of the East river, and all other ferries then or thereafter to be erected and established all around Manhattan island, and the management and the rule of the same, were granted to the mayor, aldermen and commonalty of the city of New York.

In Costar v. Brush, 25 Wend. 628, it was held that under this provision of the charter, the corporation of the city possessed the same power in respect to the establishment of ferries across the East river, that before belonged to the crown or the Legislature, and that the grant by the city to the lessees of the Fulton ferry of an exclusive privilege by covenanting that the city would not, during the existence of the lease, permit any other ferry between New York and Brooklyn to the southward of the then ferry at Catharine slip, was fully within the municipal authority and biuding upon the city and the public.

The charter of 1857 provided (§ 41) that all ferries should be leased by the city, that all leases should be made to the highest bidder who would give adequate security; that no lease should be for a longer period than ten years; that all ferry leases should be revocable by the common council for mismanagement or neglect to provide adequate accommodations, and that all persons acquiring any ferry lease or franchise should be required to purchase at a fair appraised valuation, the boats, buildings and other property of the former lessees or grantees actually necessary for the purpose of such ferry grant or franchise.

The charter of 1857 was repealed by the charter of 1873, and we are not informed by the briefs of counsel whether the provisions of section 41 have been reenacted in any form, but this is perhaps not very material to the present discussion, for by the provisions of the act of 1882 the property sought to be acquired is devoted, after its acquisition, exclusively to the purposes of additional ferry slip accommodations for the ferry in question. It cannot be used for any other purpose and is inseparably united to that ferry, and must pass with it to any subsequent lessee after the expiration or termination of the lease to the Union Ferry Company. All the rights of that company, except its right to compensation, terminate with their lease, and if the property should ever cease to be used for the accommodation of the ferry, it would on general principles revert to the original owners. But 80 long as it continues to be used for the purposes for which it is condemned, it remains under the control of the corporation of the city of New York.

The title of the act of 1882 is, "An act to provide additional ferry-slips and facilities in New York city for

the ferries running between Whitehall street in the city of New York and the city of Brooklyn." The power to acquire title to the additional slip is granted, not to the Union Ferry Company, but to "the lessees" of the designated ferry, whoever they may be. The name of the Union Ferry Company does not appear in the act, except as identifying the ferry as the one which was at the time being operated by the company named, and in a declaration that that company is not authorized to acquire the fee of any property owned by the city of New York. If the Union Ferry Company should not acquire the title during the term of its lease, any subsequent lessee of the ferry, whether a corporation or an individual, would become entitled to proceed under the act. Whoever might become lessee after the acquisition of the title would, under section 3 of the act, be entitled and required to take the property and bound to pay his predecessor for it. And section 3 further provides that after the title to the property is acquired according to the provisions of the act, it shall be devoted to and used exclusively for the ferry-slip accommodations mentioned.

The whole frame and context of the act are consist. ent with the view that its object was not to grant any privilege or franchise to the Union Ferry Company as a corporation, but as stated in the title of the act, to add to the ferry slips and facilities of the particular ferry which the company named was at the time operating. Such additional facilities would increase the capacity not only of that company, but of all future lessees of the ferry, to meet the wants of the public, but those increased facilities would be enjoyed by the Union Ferry Company only under its lease from the city. They would terminate with that lease and pass to the succeeding lessee. The property could not be used for any purpose except the exercise of the ferry franchise granted by the city in whosesoever hands that franchise might, from time to time, be placed.

The authority to institute the proceedings might well have been conferred directly upon the corporation of the city of New York, but that would have involved the necessity of an advance by the city of the cost of obtaining the increased facilities. This necessity was obviated by selecting the lessees of the ferry, for the time being, as the agents through whom the power of eminent domain should be exercised, and they were not only empowered but required to perform that duty and incur the necessary outlay, being indemnified by the incidental advantage they would obtain in the increase of their facilities while their occupation should continue, and the reimbursement of their expenditure by being compensated for the property by the lessees who should succeed them.

It cannot be that the constitutional prohibition should be so construed as to deprive the city of New York of the power of increasing its ferry accommodations by the means provided in this act. Its ferries are under the control of the corporation of the city, in whom is vested the power of granting ferry franchises, and are operated under leases from the city. To hold that the accommodations of a particular ferry cannot be enlarged except by the acquisition by the city in a direct proceeding by it of the required addition, and that this duty cannot be devolved upon the lessee, or what would be still worse, that such an authority could not be conferred upon the lessee of one ferry without conferring like authority upon every ferry company in the State, would be giving to the constitutional provision an effect which never could have been intended. The General Ferry Act, under which the Union Ferry Company is stated to be incorporated, has for good reasons, withheld from ferry companies formed under the act the power of eminent domain. Special legislation was therefore indispensable to ac

complish the end sought to be obtained by the act of 1882 of enlarging the accommodations of the ferry in question. The constitutional provision could

not have been intended to prohibit an act of this character.

For the reasons stated we do not regard the act as a grant to a private corporation, but even if it should be so considered, is it a grant of an "exclusive privilege, immunity or franchise?" It is not a grant of an immunity, and if it comes under either head, it must be that of a "privilege or a franchise." It is disputed by the appellants that the authority conferred by the act is even a "privilege," and it is claimed that it is merely an appointment of an agency to exercise the right of eminent domain for the benefit of the public. But assuming that it is a privilege or a frauchise granted to the Union Ferry Company as a private corporation, is it an "" "exclusive privilege or franchise within the meaning of the Constitution? The constitutional prohibition was evidently aimed at monopolies. At granting to corporations or individals not merely privileges and franchises not possessed by others, but the right to exclude others from the exercise or enjoyment of like privileges or franchises.

A special privilege or franchise is not necessarily "exclusive." The right of the patentee of an invention is "exclusive." So would be an act of the Legislature which should attempt to confer upon a private corporation or individual the exclusive right to manufacture or vend any article of trade, and prohibit all other persons from competing in such business, or the exclusive franchise of operating a ferry or of maintaining a toll-bridge across a particular river, or of running stages on a highway, and prohibiting all others from competing, and the like.

But the grant of a particular power to a private corporation is not "exclusive" simply because the same power is not possessed by other corporations, so long as there is nothing to prevent the granting of such power to any other corporation. The Constitution itself makes this distinction manifest. Article 8, section 1, provides for the formation of corporations under general laws, but prohibits their being created by special act, except for municipal purposes, "and in cases where, in the judgment of the Legislature, the objects of the corporation cannot be attained under general laws." The Legislature is thus left at liberty to determine in what cases special charters shall be granted, and the object of such a special charter must necessarily be to confer upon the corporation powers or franchises not possessed by other corporations, otherwise there would be no need of creating them. But such special powers are not necessarily "exclusive." Special charters are still subject to the prohibition against granting "exclusive" franchises, aud neither under a special character nor a general law could a corporation or class of corporations be vested with any privilege, immunity or franchise which is "exclusive" in the proper sense of the term.

The word "exclusive" is derived from "ex," out, and "claudere," to shut. An act does not grant an exclusive privilege or franchise unless it shuts out or excludes others from enjoying a similar privilege or franchise.

The most familiar instances of grants of exclusive privileges or franchises are to be found in acts authorizing the establishment of ferries, toll bridges, turnpikes, telegraph companies, and the like, as in case of the charter of the Cayuga Bridge Company, which provided that it should not be lawful to erect any bridge or establish any ferry within three miles of the place where the bridge of the company should be erected, or to cross the river within three miles of the bridge without paying toll. Sprague v. Birdsall, 2

Cow. 419; 2 Paige, 116; 5 Wend. 85. The charter of the Mohawk Bridge Company, which prohibited ferries across the river one mile above and one mile below the bridge. 6 Paige, 554. The lease by the corporation of the city of New York in 1814 of the Fulton ferry, in which the corporation covenanted that it would not grant or permit any other ferry to the southward of the ferry at Catharine slip. Costar v. Brush, 25 Wend. 628. The charter of the Delaware Bridge Company, which prohibited the erection of any other bridge, or the establishment of any ferry, within two miles above or below. Chenango Bridge Co. v. Binghamton Bridge Co., 27 N. Y. 87, and S. C., 3 Wall. 51. The charter of the West River Bridge Bridge Company, which granted the exclusive privilege of maintaining a bridge across West river. 16 Vt. 446. The charter of the Boston and Lowell Railroad Company, which provided that no other railroad should within thirty years be authorized between Boston and Lowell, and was held to be a contract protected by the Constitution, as in the Binghamton Bridge case, 3 Wall. 51. The grant of an exclusive right to a line of telegraph between Sacramento and San Francisco, all other persons being prohibited from running a line one-half a mile or doing business between those cities. California State Telegraph Co. v. Alta Telegraph Co., 22 Cal. 398.

These references illustrate the character of the privilege or franchises at which the constitutional prohibition was aimed. The delegation to a corporation of the power to acquire title to land for public purposes is not a grant of an exclusive" privilege, for the same delegated power may be conferred upon any corporation to whom the Legislature may see.fit to intrust it, and where a corporation is organized under a general law which does not delegate that power, there is nothing in the Constitution which prevents the Legislature from conferring it in that particular case if the needs of the public require it; and if the use is public, the Legislature is the competent authority to determine whether the property is needed for such use. The Legislature, as has been seen, has the power to grant special charters where, in its judgment, the objects cannot be accomplished under general laws. It might therefore grant a special charter to a ferry company where it was necessary to delegate to such company the right of eminent domain, which it was not deemed expedient to delegate to all ferry companies. Having this power it cannot be said that it contravenes the Constitution, in accomplishing the same end, by delegating the right of eminent domain to an existing corporation organized under the general law.

It is urged, as a further objection to the constitutionality of the act of 1882, that it does not require the ferry company to establish the fact that the property proposed to be taken is necessary for the purposes of the ferry.

That objection is clearly untenable. Where the taking of private property, for a use claimed to be public, is authorized by the Legislature, its determination of the public character of the use is not conclusive.

The existence of the public use in any class of cases is a question reviewable by the courts. If however the use is certainly a public one, the Legislature is the proper body to determine the necessity of the exercise of the right of eminent domain and the extent to which it shall be carried, and there is no restraint on the power save that of requiring that compensation be made. Mills Em. Dom., ch. 2, § 11; Brooklyn Park v. Armstrong, 45 N. Y. 234; Lecombe v. Milwaukee Railroad, 23 Wall. 108. The particular property needed may be pointed out by the Legislature, and the courts cannot review their determination in this respect. Mills Em. Dom., § 11; Gresey v. Cincinnati Railroad,

4 Ohio St. 308. The public character of the use in the case before us is indisputable, and the determination of the Legislature as to the necessity of the particular property is conclusive.

But it is contended that this designation of the particular piece of property to be condemned for the purposes of the ferry renders the grant of the privilege or authority exclusive, inasmuch as no one but the grantee of the property can take the same property. That however is not in our judgment the nature of the exclusiveness contemplated by the Constitution. The exclusiveness prohibited is one which is created by the terms of the grant, not that which results from the nature of the property or right granted.

Where from the nature of the case it is impossible that the right or power should be possessed or employed by more than one party, and it is important to the public interest that it should exist and be exercised by some one, the State must necessarily have authority to select the grantee. In such a case the exclusiveness is not produced by the grant, but results from the nature of the thing granted, and to this extent every grant to a corporation or an individual of the right to acquire real estate is exclusive. Where a toll bridge is authorized to be erected at a particular locality the right to that particular bridge is necessarily exclusive. So of all lands acquired by a railroad company for depots, car-yards, etc., their right to enjoy those lands is exclusive. The right of the owner of upland to fill out into waters of the State in front of his land is exclusive in respect to the particular property involved, though a similar right may be conferred upon every person owning lands similarly situated. There may be cases where a railroad could not be extended without passing through lauds situated at its terminus, which were already devoted to a public use, and could not therefore be acquired for railroad purposes under the general law, or without express authority from the Legislature. Can it be contended that however great the necessity for the extension, the Legislature would have no power to grant such authority? And yet the grant of power in such a case would be exclusive in the same sense as is the power to extend the facilities of the ferry in the case before us. We think that in all these cases the exclusion of others from the enjoyment of rights or privileges similar to those bestowed upon the particular grantee must, in order to come within the constitutional prohibition, result from the provisions of the grant, and not from the inherent nature of the right granted.

The act of June 1, 1882, is further assailed on the ground that its first section declares that the pier in question shall after the 15th of June, 1882, be devoted and set apart for the purpose of additional ferry accommodations for the ferry in question. And it is contended that although the title may not have been acquired by that time from the owners, yet they would by the terms of the act be precluded from the enjoyment of their property, and its use for ordinary purposes without having been in any manner compensated.

If this section stood alone there would be some foundation for this argument, but we think that taking the whole act together, it will not bear the construction claimed. The second section provides that before using the pier the lessees shall purchase the right to its use if they can agree with the owners. If unable to agree within sixty days from the passage of the act the lessee may acquire title by proceedings in invitum. And the third section declares that when the title is thus acquired, the property shall thereafter be devoted exclusively to the purpose of ferry-slip accommodations for said ferry.

The meaning of the act is, as we understand it, that after the 15th of June, 1882, it shall be lawful to use the pier for ferry purposes, but before the lessees can so use it they must acquire title by purchase or otherwise. Until they do acquire title the owners are not to be disturbed in their enjoyment or use of the property, but after the title is acquired it is to be exclusively devoted to and used for the purposes of the ferry. Before that time there is nothing in the first section, when read in connection with the others, which precludes the owners from using the pier for purposes other than the ferry. The pier is prospectively devoted and set apart for ferry purposes from the 15th of June, but not exclusively for those purposes until after the title shall have been acquired, and then the owners are to be compensated for the property as it stands at the time of instituting the proceeding to acquire it.

This prospective devotion of the property to ferry purposes by the first section would seem to be meaningless were it not for the character of the property. The wharves and piers in the city of New York are in many respects public, and even when owned by individuals are subject to regulations as to their use by leg. islative enactments. These regulations are very frequent and are changed from time to time as the interests of commerce require. For instance, in respect to the very pier in question, by chapter 367 of the Laws of 1857, all the waters adjacent to the wharves, from the east side of pier No. 2, East river, to and including the east side of peir No. 9, were from the 20th of March to the 20th of December in each year set apart and reserved for the use of canal boats and barges, and the harbor-masters were empowered to prevent other vessels from entering the slips or lying at the wharves designated, when required for the boats and barges specified. By chapter 261 of the Laws of 1858, whenever the owners of wharves or slips on the East river or North river lease them to the proprietors of certain regular steamboat lines, such wharves and slips are directed to be kept for the exclusive accommodation of the steamboats of the lessees, as far as necessary for their business. But that act is declared not to give any owners of the wharves or slips mentioned in the act of 1857, above cited, power to lease their wharves to steamboat lines. By the law of 1867, chapter 945, the act of 1857 is substantially re-enacted as to the waters from the east side of pier No. 2 to the west side of pier No. 10, East river, and further power is given to the proprietors of the lines of canal boats and barges to erect derricks on the piers.

The right of the Legislature thus to control the management and occupation of wharves in navigable rivers even in the hands of private owners, is fully recognized in the case of Vanderbilt v. Adams, 7 Cow. 349, and is held not to be an unconstitutional interference with private property. In that case Vanderbilt was subjected to a fine for stationing his own steamboats at a wharf owned by him in violation of the orders of one of the harbor masters of New York. It was considered that by the old charters of the city the royal prerogative of government over the subjectmatter was granted to the mayor, aldermen and commonalty, and that when they conveyed a water-lot their sovereignty, as to the subject-matter, was not gone.

By an act of 1882, chapter 176, passed June 3, 1882, two days after the act in controversy, the area of the waters devoted to the use of canal boats was reduced so as to extend only from the west side of pier No. 3 to the east side of pier No. 8, thus liberating the premises now in question from its devotion to the use of canal boats. But at the time the act in controversy was passed it would not have been lawful for the ferry