Appellees obtained a decree, enjoining appellants from charging them toll upon a toll bridge across the Guadalupe Biver, in the city of Victoria, from which an appeal has been taken.
The questions in this case are:
*29First. Is the toll-gate kept on the bridge which prevents persons from crossing the river on it a nuisance ?
Second. Have the defendants in error (who are the plaintiffs below) sustained such special damages thereby, and have they such a common right as corporators as entitles them, for themselves and on behalf of their fellow-citizens of the city of Victoria, to maintain this suit to enjoin the defendants below (who are the plaintiffs in error) from obstructing their free passage over the bridge without paying the toll?
The first question depends upon two propositions.
First. That the bridge is in and part of a public highway.
Second. That the defendants are keeping up thereon a tollgate, and charging toll for passage over the bridge, and thereby exercising a public franchise, without any lawful authority.
Plaintiffs allege that the bridge was a part of the highway at the time the suit was brought, and ever since the iron bridge was put in operation, which was several years before the suit was brought. They allege that there was no other passage across the river within the town tract of four leagues square extending on both sides of the river ; that there was no public road on the west side of the river, or street on the east side, in the city proper, provided and kept up by the public authorities of the city or county of Victoria, to cross at any other place than at the bridge; that the ford which the road formerly led to had been obstructed by the previous proprietor of (what was'termed) the bridge franchise granted by the city, and such obstruction had been acquiesced in by the city and county j that the public road on the west side had been changed so as to come to the bridge, after it was built, and laid out and worked by the authority of the County Court; that the streets of the city led to the open levee, an open space of seventy-five varas in width out from the river bank (on both sides), dedicated by the city, and kept open, upon which the abutments of the bridge rested; that the County Court recognized this bridge as being on and part of the highway by fixing the amount of toll that *30should be charged; that the City Council procured it to be erected across the river, under a contract previously made with the original proprietor in 1865, and repeatedly confirmed to his successors, permitting all the other crossings to be obstructed, and binding the city to establish no other ferry or bridge during the continuance of the contract, which, under the extension granted, ends in 1890; that it is by virtue of this authority from the mayor and aldermen of the city alone, and by no grant from the County Court, or from the Legislature of the State, that defendants have erected and keep the toll bridge across the Guadalupe River, within the city limits of Victoria, one-fourth of the net proceeds of which are paid to the city, and three-fourths to the defendants; that said mayor and aldermen have no right to grant such a franchise to defendants, and that they have no such right from any source whatever; that the plaintiffs are corporators within the city limits, some of them residing on one side and some on the other of said river, and own land on the west side of the river, which is diminished in value by the charging of toll on said bridge, by which they sustain a special damage, and are also damaged by the payment of toll in passing to and from the city proper in the ordinary pursuit of their business, and that as corporators of said city, they have in common with all other corporators, for whom also they, sue, a right to the free use and passage over the highways, levee and streets of said city, in which they are prevented by the toll-gate and charge of toll in passing over the bridge; by which it is a nuisance, from which they are entitled to be freed by the equitable powers of the court.
Tire defendants excepted to this petition generally and specially, which exceptions were overruled by the court.
Supposing it to be a nuisance in and part of the public highway of the city, as alleged, the plaintiffs stated facts which put them in a position to entitle them to bring a suit for equitable relief.
(Green et al. v. Oakes, 17 Ill. Rep., 249; Inhabitants of M st. v. City of New Orleans, 14 An. La. R., 455; Colton et al. *31v. Hanchett, 13 Ill. E., 615 ; 2 Story’s Eq. Jur., 924a,; Story’s Pleading, 102 to 118; 13 Howard, US. S., 564.)
It may not be improper to remark that plaintiffs might not have been entitled, under their allegations, to all of the relief which they obtained by the decree of the court unconditionally.
For, if the City Council had been made parties to the bill, as it would seem most proper to be done, the injunction might have been made to cease upon the highway being opened to the ford as formerly, and a means of crossing furnished to the citizens without being compelled to pass over the bridge. That would have restored them to their original rights and obviated any complaint, or at least right of complaint, as it would now seem to us, from the view we have of the case. And another reason" why it is particularly appropriate to make the city a party in this suit, in order to do full equity to all of the parties, is, that if it be determined that the defendants have no authority to erect a toll bridge, they should have the right to claim compensation from the city for building a free bridge, or else be allowed to take away the materials of their bridge, as the law and the facts might be found to be in the premises.
The most important question, however, in this case, is, as to whether or not the court erred in sustaining the exceptions of plaintiffs to the defendants’ special answers, in which they set up the facts upon which they claimed the right to exercise the franchise of keeping the toll bridge and charging toll thereat, as they did.
This, indeed, is the great question in the case, not only as it concerns the parties litigant, but the public in general.
The defendants, in their special answers, base their right mainly on the power of the mayor and aldermen of the city to grant to them this franchise.
The answers in support of the right of the City Council to grant this franchise represent that, previous to 1836, in the foundation of the town, the commissioner of the colony was authorized by law to have a ferry established, the net proceeds of which were to be á part of the public fund. The charter *32granted to the city in 1840 invested it with the ordinary powers of municipal government and police, without any reference to a ferry franchise. ¡Notwithstanding these, the City Council, as alleged in the answer, obtained from the County Court of Victoria county a license for a ferry.
In 1859 the City Council contracted for the building of a toll bridge, and, from that time to the bringing of this suit, the City Council assumed to grant the franchise of a toll bridge, or of a ferry in the absence of a bridge, two of them having been destroyed previous to the building of the iron bridge, and said franchise was sold from one person to another, and the transfer was recognized, and the terms of the franchise changed from time to time. During all this time the County Court of Victoria county recognized the bridges built so far as to stipulate the amount of the toll to be charged, but never did directly grant, or assume to grant, the franchise. All these, with other merely incidental facts, being alleged in the special answer, the right of the City Council to grant the franchise of the toll bridge as it existed at the time this suit was brought, was sought to be deduced from them on the following grounds: ,
First. As derived from the rights conferred upon the city by the colonization.
It is sufficient to say that these laws had no application to the condition of the city or its government after the change of government in 1836, and, at most, provided for the establishment of a public ferry through the agency of the commissioner of the colony.
Second. As derived from the rights of the city as riparian owner.
The riparian owner may be given a preference in the application for the right to exercise a franchise, but his position in that respect does not of itself confer the franchise. (Prosser v. Wapello County, Justice Dillon, 18 Iowa Rep., 333; Paschal’s Digest, Article 3841.)
Third. As vested in the city by prescription.
*33A prescription presupposes a grant, which is not even alleged to have been made, otherwise than as contained in the colonization laws of Coahuila and Texas previously referred to, and as implied in the city charter of 1840 under the Eepublic of Texas. Ever since the claim of this right to grant the public franchise to build a toll bridge in 1859, and long previously, the mode of granting the franchise of a toll bridge has been by a notorious public act, such as an act of the Congress of the Eepublic, and afterward by act of the Legislature, or by the act of the County Court, which in both eases are evidenced by the public records of the country. Under such circumstances, the claim established by usage alone for twenty or thirty years would hardly be sufficient ground upon which to presume a grant, especially where there was no complaint of a loss or destruction of such records.
But then the usage itself has been qualified by continually getting the aid to the claim of the County Court in fixing the rates of toll, which is itself inconsistent with the claim' of absolute right to the franchise.
Fourth. As conferred by the city charter in 1840.
This is the substantial ground of claim set up in the answer, and is predicated upon two clauses of the charter, as follows, to wit; “ The Mayor and Aldermen shall have the power to “ enact and enforce such ordinances and regulations as they “ may deem necessary for the government of said town; pro- “ vided the same do not conflict with the Constitution and “ laws of the Eepublic,” and “ shall have entire police of said “ town.”
It is contended, that as it is alleged that the river is within the corporate limits of the city, that the power is derived by implication from the above-expressed provisions to grant a franchise in a toll bridge constructed across the river.
Those above recited are the ordinary powers granted to towns and cities for the exercise of their municipal authority. The rule of construction is stated to be, that “ a municipal cor- “ poration possesses and can exercise the following powers and *34“ none others : first, those granted in express words ; second, “ those necessarily or fairly implied in, or incident to the “ powers expressly granted; third, those essential to the objects and purposes of the corporation, not simply convenient “ but indispensable. Any fair, reasonable doubt concerning “ the existence of the power, is resolved by the courts against “ the corporation. Of every municipal corporation the charter “ or statute by which it. is created is its organic act. ¡Neither “ can the corporation do any act, or make any contract not au- “ thorized thereby. All acts beyond the scope of the powers “ granted are void.” (Dillon on Corporations, Section 55, 101, 102; Minturn v. Larue, 23 Howard,"430. See opinion of Justice Bradley in The Mayor v. Ray, 19 Wallace, United States Rep., 475 ; Citizens S. & L. Ass. of Cleveland v. City of Topeka, Supreme Court United States, October Term, 1874; Penn. R. R. Co. v. Canal Commiss., 21 Penn. State R., 22.)
The general powers of municipal government granted to a city or town cannot be delegated, nor can they be bargained away, and they are to be exercised for public and not for private purposes. (Dillon on Corp., Sections 60, 61, 108-110.) Under these well-established rules, the extent of the authority fairly to be implied from such general powers of municipal government and police as contained in the charter, may be deduced from the general purposes and objects for which towns and cities are incorporated.
Those purposes and objects being peculiar to towns and cities define generally the limits of municipal authority.
So far as it relates to the execution of the general laws of the land, there is no more necessity for an incorporation in a town or city, than in the country. ¡Nor does the incorporation exclude within its boundaries the operation of the general laws as applicable to the whole country. But when people are placed in close contact in a town, or city, the safety of property and person there, the facility of transacting their business, the preservation of their health, and the comforts and decencies of good society in their midst, require a great many minor, though *35important regulations too minute and varied for general laws, and which are peculiar to their condition. These regulations are to be made in subordination, and not contrary to the general laws, still they go far beyond the general laws in prescribing the civil conduct of persons in relation to their personal conduct and property. In order to make these additional regulations binding, the charter must be put in operation by an organization, or by the action of officers under it. An act incorporating a town or city, therefore, is a law of the State, and more than an ordinary law ; for it constitutes, when acted on, a sort of organic law, a constitution for a local self-government, within its territorial limits, extending in its scope to the extra regulations required for the good government of the city or town, to be enacted and carried into effect by its municipal officers.
Such are the peculiar powers granted to a city or town, in the general terms of government and police, as contained in the Charter of the city of Victoria; and thus is the extent of its implied municipal authority to be determined and limited.
It is none the less so because the inhabitants may be and are subject to the general laws, and some of its municipal officers may be invested by law with the authority to execute the general laws of the land, while at the same time they are executing those extra regulations that constitute the laws of the corporation, the municipal government. From this view it is obvious that the general power of government and police, granted by the State government to the city of Victoria, in its charter of incorporation, would not embrace, by fair implication, the high governmental power of granting a franchise of a toll bridge to individuals. That conclusion is strengthened by the fact, that from the terms of the charter the city limits extended both sides of the Guadalupe River, which must have been had in view by the Congress grantingit, and still they made no express grant of such power. It is further strengthened by the fact that in 1836 the Congress of the Republic passed a law authorizing the County Courts to grant and regulate the terms of *36this franchise of erecting and keeping a toll hri dge on streams within the body of their respective counties, which, while it was in force, furnished an easy mode of granting toll bridge privileges, and which provision, however, is not found in the latter acts regulating the powers of the County Court, and which has not for many years past been acted on as a subsisting law. (Paschal’s Digest, 5244-6. See also Act of 1848, as to ferries and bridges, Article 1229.)
It is strengthened also by the fact that this has been generally regarded as so high a power of government, that charters for toll bridges and turnpikes have been generally, if not universally, granted by the direct legislation of the government in each instance.
Other objections to this attempted grant of a franchise by the Mayor and Aldermen of the city of Victoria, are found in their attempt to barter away their power of municipal government, and in embracing a private in a public enterprise. For the sum and substance of the whole transaction is, that they took in a partner to make a toll bridge for profit, as well as convenience of travel; they on their part furnishing the ground as riparian owners, and protection to the use of it as a toll bridge by their municipal authority, and allowing the fords to be obstructed and allowing them to remain so, and binding themselves not to make or grant permission to any other crossing of the river; the other partners, the bridge builders, were to furnish the capital, build the bridge, keep it in repair, collect the tolls, and divide the net proceeds, one-fourth to the city, and three-fourths to themselves, until 1890, when the bridge is to belong entirely to the city. But if this were decided to he legal, it might be, as it might have been, extended to 1980, as well as to 1890.
Notwithstanding the incalculable benefits to the State of such municipal governments, the generality of- the powers granted, often from want of attention in framing their charters, and their liability to perversion to the accomplishment of private ends, admonish courts, as has been well said by a distin*37guished author, “ to require of corporations, in all cases, to show et a plain and clear grant for the authority they assume to exer- “ eise.” (Dillon on Municipal Corporations, 25.) And when a power is claimed to grant a franchise to individuals, such as a toll bridge, which is usually granted directly by the Legislature in this State, and that power is not expressed, but sought to be implied from the general powers of municipal government and police that are expressly granted, if this be conceded, it might be difficult to see what limit there is to the creation and perpetuation of private monopolies, in the hands of favored individuals. This would be certain to introduce into city governments the wiles and struggles for power and influence, to be used for private aggrandizement under pretense of advaneingthe public good.
If the building and preservation of this bridge is necessary for/the convenience, and conducive to the general interests of the inhabitants of the city, just as the opening and repair of its streets are, the city may have the right to build it as a free bridge, to be paid for in a way clearly within the scope of its municipal authority, by taxation, but not as a toll bridge, to be paid for by unequal burdens in the way of tolls, and resulting in embarking the city in a private partnership enterprise with individuals for profit, under the cover of exercising its municipal authority for the accomplishment of a public purpose.
(Mullarky, Adm., v. The Town of Cedar Falls, 19 Iowa, 23 ; Divley v. The City of Cedar Falls, 27 Iowa, 231; Dillon on Mun. Cor., Sections 580, 552, and Section 106; Colton et al. v. Hactchet et al., 13 Ill. R., 615 ; Clark v. The City of Des-Moines, 19 Iowa R., 224; Bell v. Foutch, 21 Iowa R., 130 ; Citizens, etc., v. The City of Topeka, Sup. Co. U. S., October Term, 1874.)
We are of opinion that the special answers of the defendants did not set jip any facts entitling them to exercise this important franchise of keeping a toll bridge on the Guadalupe river at Victoria, and that therefore the court did not err in sustaining plaintiffs’ exceptions to said special answers.
*38Upon this ruling being had, the defendants obtained leave to amend, and filed a general denial, and went to trial, thereby imposing on the plaintiffs the burden of proving the material facts in his petition, affirmatively alleged, to wit, that the bridge at the time of bringing the suit was in and part of the public highway, as alleged, and that plaintiffs were corporators of the city, and were so situated, with reference to their business and property, as alleged, that they sustained special damages.
Upon the trial under this issue, all the facts as to the defendants’ right were adduced before the jury in evidence, by the plaintiffs or defendants, notwithstanding the special answers had been dismissed. The statement of facts shows that there was brought before the jury, in addition to the written evidence and copies of records, witnesses who gave a full history oí the different bridges, ferries, roads, and fords upon the river, and gave evidence as to the special damage to plaintiffs, and other matters involved in the issue there presented, and in which evidence there was considerable conflict.
The court charged the jury as follows: “ It is admitted by “ the defendants that the plaintiffs’ residences and possessions “ are as stated in their petition, and that they, the defendants, “ erected, own, and charge the tolls for crossing the bridge, as “ alleged in the plaintiffs’ petition.”
“ The defendants have not shown any legal right to collect “ said tolls from plaintiffs, they not being the riparian pro- “ prietors of the banks of the river, without which proprietor- “ ship they have no right to demand or receive tolls for cross- “ ing passengers or freights over their bridge across the Gua- “ dalupe river, in the town of Victoria; nor had the corporate “ authorities of said town any authority of law to confer such “ right upon them. The jury will therefore find for the “ plaintiffs.”
There are several objections to this charge.
First. It assumes facts which, so far as they were material, it was incumbent on the plaintiffs to prove.
*39/Second. The facts assumed as a predicate for the verdict, were not sufficient, in and of themselves to shave, ustained the verdict if they had been proved.
Third. The shape of the charge is such as to dispense with the services of the jury entirely in their appropriate duty of finding the facts under the issue, according to the evidence adduced before them, in support of the material allegations of the plaintiffs’ petition : the only province left them was to write the verdict as directed by the judge.
In a ease in which there was no written evidence for the court to construe, but in which the proof was plainly in favor of the defendant, the court instructed the jury to find for the defendant. The Supreme Court of this State reversed the judgment on that account, and in the opinion say, “ He direct-a ed the jury to find a verdict for the defendant. It was “ going too far. It is doubtless what the jury ought to have “ done, from the previous part of his charge on the law of the “ case. It was his duty only to declare the law; this he had “ done, and that correctly. He had no right to tell them that “ they must find a verdict for either plaintiff or defendant.” (Reynolds v. Wiliams, 1 Texas, 313.)
Where the court, in charging the jury, must declare the legal effect of admitted facts, or of records or other written evidence, to such an extent as to substantially decide the whole case, such a direct charge would not be error. (Mitchell v. De Witt, 20 Texas, 299; Reid v. Reid, 11 Texas, 593.) To go further would be a denial of the right of trial by a jury of the country.
The case now under consideration did not admit of such a charge, however plainly the facts in evidence may be deemed to be in favor of the plaintiffs. This follows from the nature of the facts, and the evidence offered in support of them, which were necessary to support the material allegations of the petition under the issue formed by a general denial pleaded by the defendants below.
Under the issue, it was incumbent on the plaintiffs to prove *40such facts as would establish the bridge to be in and part of the public highway at the time the suit was brought; such affirmative facts as would establish, prima facie at least, that the defendants had no legal right to erect a gate and charge toll for crossing the bridge, not having a franchise therefor; and such facts as showed a common right as corporator^ and a special damage. These facts were not admitted, nor were they or could they have been established by record or written evidence, to such an extent as to have justified this direct - charge in favor of the plaintiffs below.
For this error the case should be reversed and remanded.
It is unnecessary to express any opinion as to the sufficiency of the evidence to sustain the allegations of the petition.
It is contended by the defendants that they have in good faith erected this bridge at great expense, under a contract with the mayor and aldermen, and that it is a great public benefit to the city, and that they will sustain great loss if this suit is allowed to prevail. In consideration of those facts, and in justice to them, it may not be improper to suggest.that the mayor and aldermen should be made parties to this suit, so that the defendants may have their remedy against the city for compensation if they can show themselves legally entitled to demand the same for a beneficial public work made by them at the instance and for the benefit of the city, the use of which the city continues to enjoy. Or, as said in another part of the opinion, the city may re-open and make fit for use the ford and roads to it, so as to obviate the complaint of plaintiffs, leaving defendants and the State to settle the matter of continuing the exercise of such a public franchise. Or, if not these, some other means may be lawfully found, so as to do justice to all the parties concerned. These suggestions are made, of course, without indicating any positive direction, or opinion given in advance, as to the legality of any alternative course. The great learning and ability displayed in the arguments and briefs on both sides, give promise that the real equity of the case may be *41reached, upon some such mode of proceeding, upon another trial, so that whatever wrong there may be, may be rectified with as little injury as practicable to any of the parties concerned, which should be the leading object in all courts, and especially in a court of equity.
The judgment is reversed and the cause remanded.
Reversed and remanded.