Opinion
(Filed 25 April, 1905.)
Ferries — Powers of Legislature Over — Franchises — Special Acts — Powers of County Commissioners.
1. Article VII, section 2 of the Constitution, giving the supervision and control of roads, bridges, etc., to the county commissioners, does not deprive the General Assembly of the power to pass an act authorizing the establishment of a public ferry at a certain point for a term of thirty years, and providing that it shall be unlawful for any person to establish any other ferry within one and one-half miles of said ferry.
2. The power to establish ferries is one of the attributes of sovereignty which is to be exercised by the Legislature itself, or by any agent whom that body may authorize to act for it.
3. An act granting a ferry franchise and making it unlawful to establish any other ferry within one and one-half miles thereof is a restriction upon the general power conferred upon county commissioners under section 2014 of The Code "to appoint and settle ferries," and the commissioners have no power to authorize a ferry within the prohibited distance.
4. Public ferries are not monopolies, but franchises granted in consideration of public services. They may be exclusive, but are simply licenses, revocable at will.
PETITION by Spease Co., heard by O. H. Allen, J., and a jury, at September Term, 1904, of FORSYTH.
This was a petition filed by Spease Co. before the Board of Commissioners of Forsyth County, asking for a license to establish a ferry across the Yadkin River near Donnaha; to which petition Poindexter Co. filed exceptions. The board of commissioners made an order granting the petition, from which Poindexter Co. appealed to the Superior Court, and from the judgment of the Superior Court (220) affirming the commissioners' order, they appealed.
By chapter 222, Laws 1895, Poindexter Co. were authorized to establish a public ferry near Donnaha station on the Yadkin River, for the term of thirty years, "subject to the general law, rules and regulations governing such ferries." By section 3 of said act it is provided: "It shall be unlawful for any person to establish any other ferry within 1 1/2 miles of said ferry." This is a petition by Spease to the county commissioners to allow him to establish a ferry within the forbidden distance, heard on appeal in the Superior Court.
There can be no question as to the power of the General Assembly to pass this statute. In Barrington v. Ferry Co., 69 N.C. at p. 173, it was held that the Legislature, under the power of eminent domain, has the power to grant the franchise of a ferry by a special act, as well as to exercise such authority by a general statute vesting the usual exercise of such power in the county commissioners, and that Article VII, section 2, of the Constitution, giving the supervision and control of schools, roads, bridges, etc., to the county commissioners, does not deprive the General Assembly of the power of special legislation over those subjects. For a stronger reason, this is so, since by the amendment to Article VII (section 14) in 1875 the Legislature is authorized to "modify, change, or abrogate any and all provisions" of that article, except sections 7, 9, and 13. "A ferry franchise may, of course, like any other franchise, be granted by a special statute." 12 A. E., (2 Ed.), 1092. The power to authorize ferries resides in the Legislature, but it may, when it chooses, exercise it through county commissioners or other subordinate boards. Carrow v. Toll Bridge Co., 61 N.C. 119; 12 A. E., (2 Ed.), 1090, and cases in the notes thereto; 2 Farnham on Waters, sec. 290. "The grant of such right to an inferior tribunal does not deprive the Legislature of the right to (221) exercise the authority itself, if it wishes to do so." 2 Farnham on Waters sec. 290; 12 A. E., (2 Ed.), 1093; Wright v. Nagle, 101 U.S. 791; Chapin v. Crusen, 31 Wis. 209; Blake v. McCarthy, 56 Miss. 654. "A very common restriction is to ordain that no ferry shall be established within a specified distance of an existing one." 2 Farnham Waters, sec. 291, and cases cited.
"Constitutional provisions against the granting of monopolies do not apply to the granting of such franchises, and the grant may be exclusive at the pleasure of the Legislature." 2 Farnham, sec. 305, citing Charles River Bridge v. Warren, 7 Pick., 344, and numerous other cases. The power to establish ferries "is one of the attributes of sovereignty which is to be exercised by the Legislature itself, or by any agent whom that body may authorize to act for it" ( Carrow v. Toll Bridge Co., 61 N.C. 119), the opinion going on to quote that under Revised Code, ch. 101, sec. 30, other ferries were forbidden within 10 miles (now 5 miles, Code, 2049), unless authorized by the county court (now county commissioners), which it can do, "no matter how near the former, when the public convenience may require, and of that the county court is the sole judge. But this power of the court is necessarily subordinate to that of the Legislature, and wherever that body prohibits the grant of the franchise of a ferry or toll bridge by the county court at any particular place, it puts an end to the court's power of granting such franchise at that place."
The only remaining question is, whether the provision of section 3 of the act making it "unlawful for any person to establish any other ferry within 1 1/2 miles" was a restriction upon the general power conferred upon the county commissioners under Code, sec. 2014, "to appoint and settle ferries." If it was not, then the provision was a vain thing, for under Code, sec. 2049, no one could establish such ferry, without (222) permission of the county commissioners, within 5 miles. The Legislative prohibition of any other ferry within a mile and a half of this ferry, established by itself, was a prohibition of any ferry by any authority, or it meant nothing. That the statute meant this is recognized in the above-cited case and in all others construing special acts, creating ferries. In Robinson v. Lamb, 126 N.C. at pp. 495, 497, where there was a similar special act, passed in 1873-4, conferring the right of a ferry upon the heirs of Samuel D. Lamb for thirty years, with a similar provision that "no other bridge, boat, or ferry shall be established within 3 miles of the one allowed by said act," the Court said: "The provision of the Legislature of 1873-4 that other ferries or bridges would not be allowed within 3 miles thereof was simply legislation restricting the general power of the county commissioners given by The Code, sec. 2014 (and previous legislation there summed up), to authorize public ferries wherever they saw fit."
That public ferries are not monopolies, but franchises granted in consideration of public services ( Smith v. Harkins, 38 N.C. 619), and that there is the correlative duty devolved upon the grantees, as common carriers, to serve the public, and under public regulations of their charges and duties, has been uniformly held from the earliest times and in all jurisdictions. 2 Farnham, supra, sec. 283; Taylor v. R. R., 49 N.C. 281, in which last the exclusive privileges of ferrymen are discussed by Pearson, J. No case has ever denied this. Such rights existed at common law. 3 Blk. Com., 219. There has been, at times, a contest whether, when the grant has been by special act and contained exclusive privileges, such grant was a contract or merely a revocable franchise. In Bridge Co. v. Comrs., 81 N.C. 491, where the special act was passed prior to the Constitution of 1868, the Court doubted that the General Assembly had the power by an irrevocable grant or contract to deprive the State in any case of the benefit of increased (223) facilities for transit over its public waters when required by an increase in trade and business, and held that an exclusive right of ferry, for 3 miles on each side of the ferry granted (which was opposite a large town), was revocable by the Legislature, else it would be a monopoly forbidden by the Constitution. To same purport, McRee v. R. R., 47 N.C. 186. In Robinson v. Lamb, 126 N.C. 497, the Court held without any restriction that all special acts establishing ferries were "simply licenses, revocable at the will of the General Assembly," and not contracts. Bridge Co. v. Bridge Co., 138 U.S. 287; Williams v. Wingo, 177 U.S. 601.
The General Assembly by the statute here in question, chapter 222, Laws 1895, conferred upon Poindexter Co. the exclusive right to operate a ferry at Donnaha for thirty years, and provided, "It shall be unlawful for any person to establish any other ferry within 1 1/2 miles" thereof. The county commissioners certainly could not make it lawful for any person to do so contrary to the statute. As to this matter, the General Assembly exercised its own judgment as to what the public interests required, and to the extent of this act abridged the general powers conferred upon the county commissioners. Such act is subject to repeal by any subsequent Legislature, but not by the board of county commissioners of Yadkin. Had the county commissioners, instead of the Legislature, granted the franchise to Poindexter Co., it would have been exclusive ( Broadax v. Baker, 94 N.C. 678) for 5 miles on each side, instead of 1 1/2 miles, and would have been for all time instead of thirty years, unless and until a subsequent board of county commissioners (or an act of the Legislature) should discontinue it or establish another at a shorter distance. Bridge Co. v. Flowers, 110 N.C. 381. The only object of taking a legislative grant limited to thirty years and restricted to 11/2 miles was protection against interference by the county commissioners, under their powers under the general statute, (224) Code, secs. 2014, 2038, 2049. While the act conferring a grant upon Poindexter Co. specifies that the ferry "shall be in all respects a public ferry, and subject to the general law, rules and regulations governing such ferries," this could not mean to negative the grant by subjecting its duration or its distance from competing ferries to the general law. Those were the sole benefits sought for and conferred by the special statute, and are subject to repeal by the power that conferred them, but by that authority alone. The county commissioners had no jurisdiction to entertain the petitioners' proceeding to establish another ferry within the distance prohibited by the act of the Legislature, within the time prescribed by it.
Action dismissed.
Cited: Reed v. R. R., 162 N.C. 360; Power Co. v. Power Co., 175 N.C. 677; Kornegay v. Goldsboro, 180 N.C. 451.