It is discovered, upon an examination of the bill in this cause, that there is a serious defect in the statement of the complainants’ title to the land, which materially affects the claim for the relief sought by them.
The act of the General Assembly of the State of Illinois, of the 2d of March, 1819, under which the complainants derive their title to the ferry and ferry privileges, described in the bill, as the assignees of Samuel Wiggins, the grantee named in the act, authorized the establishment of such ferry “ on the waters of the Mississippi, near the town of Illinois, in this State,” and “ the running of the same from lands at said place, that may belong to him ” (Wiggins); and the act further provided, that “ Wiggins, his heirs, or assigns, should have the ferry in actual operation within eighteen months from and after the passage of the act.”
The time within which Wiggins was to establish the ferry, and have it in actual operation, and by which the grant was to be inoperative, in case it was not established and in .operation by that period, expired on the 2d day of September, 1820. In the description of the land, and the mode and time of acquisition, the bill recites that Wiggins became the purchaser thereof, from Julie Jarrot, by deed of the 13th day of July, 1822, and that Wiggins, by deed of the first day of August, 1831, conveyed the same lands to a portion of the complainants, and to the ancestors of others of the complainants, of whom they are the legal representatives.
It is further recited in the bill, that a piece of said tract of land, lying on the Mississippi, near the centre of the tract, was claimed by one James Piggot, which claim was recognised by government, and a patent issued therefor, and that Wiggins acquired this piece several years before the date of the deed from Julie Jarrot to him; and first established his ferry on this piece, then being the owner thereof, under Piggot’s legal representatives, which piece of land is included in the large tract, and was patented by the United States to John McKnight and Thomas Brady, in 1816; and was conveyed by them to Wiggins, by deed; copies of which papers and deed are said to be exhibited with the bill. This is the entire description in the bill of the inception of title to the lands by Wiggins. With the bill, no exhibits are, however, transcribed into the record, and we are consequently uninformed as to the contents or character of the conveyance from McKnight and Brady to Wiggins, and from Pigot’s legal representatives, either in point of date, or description of land. The act of 1819 declares, that the ferry shall be run from lands at the place named in the act, “ that may belong to him” (Wiggins).
The question here, in construing the first section of the act of 1819, naturally arises, Did the grant to Wiggins require that he should be the owner of the land at the passage of the act, or of such as he might subsequently purchase, before the period of the forfeiture of the grant? If the word “ may,” as understood in legal parlance, be rendered shall, it is apparent that Wiggins, by the facts disclosed by the complainants, in their bill, had no land at the place designated in the law of 1819, at the time of the passage thereof; and consequently he had no estate in the lands upon which the grant could operate ; and the act was necessarily nugatory in its character, and was altogether inoperative in its effect.
On the other hand, if the grant be construed to operate on lands which Wiggins might acquire subsequently to the passage of the act, and before the time limited for the commencement of the ferry, it is equally clear, that the acquisition of the lands, by Wiggins, through the purchase of Julie Jarrot, was upwards of one year and ten months after the time limited for the erection of the ferry, and consequently the grant could not attach, or act on the lands thus acquired. As to the period of acquisition of the piece in the centre of the tract, represented to be a portion of the tract acquired from Jarrot, nothing is disclosed in the bill, which affords any certainty as to time; the omission to transcribe into the record, the exhibits referred to in the bill, precludes the possibility of learning when the title was acquired. The allegation in the bill, that Wiggins acquired the title to this portion of the land, several years before the date of the deed from Julie Jarrot, is so manifestly uncertain, that no evidence is afforded, by the statement, that the title was acquired before the 2d day of September, 1820.
. The vague and indefinite character of the allegations, affords, then, no evidence that Wiggins was, at any time before the 2d of September, 1820, the owner of the lands near the town of Illinois, in the State of Illinois, contemplated in the act of 1819, and from which the ferry was to be put in operation. It may be said the demurrer admits all the allegations of the bill to be true, and that, therefore, the complainant’s title to the land cannot be questioned. It is certainly true, the demurrer admits all that is well stated or pleaded, but it surely cannot supply defects in substance, or cure a defective title, nor yet establish one defectively set forth. It is too obvious to doubt that the title acquired in 1822, could not even aid the acquisition of the privileges conferred by the grant, much less be the foundation on which the grant was to operate, and vest the privileges named in the law, because of the posterior period of its inception ; and equally so, is the effect following from the want of the clear ascertainment of the title to the other portion of the land, on which it is alleged the ferry was first established.
The conclusion seems, then, very certain, that Wiggins was not the owner of any lands, within the time required by the act of 1819, to be possessed by him, upon which the grant could operate; and upon this ground alone, the injunction might have been dissolved, and the bill dismissed.
Other questions of grave import, involving the constitutional character of laws connected with the case, have been raised, and elaborately and ably discussed, upon which it does not become necessary for this Court to express an opinion, in order to the decision of the cause. It would, perhaps, he injudicious to express an opinion on these points, at this time, when it is not absolutely necessary ; but more especially so, as the questions raised, involve an enquiry into the extent and rightful exercise of legislative action by the General Assembly of this State, which it is supposed may arise, in at least another cause now pending in this Court, between the same parties.
I am of opinion, for the reasons given, that the judgment should be affirmed, with costs.
Since the delivery of the foregoing opinion, the exhibits referred to in the opinion, and exhibited with the bill in the Circuit Court, have, by the mutual consent of counsel, been filed here. On an inspection thereof, and the deed of McKnight and Brady, particularly, it does not appear that any new fact is shown to induce a change of my opinion. The title is shown, by the exhibits, to be most clearly defective, and all doubt is removed thereon.