56 Miss. 654 | Miss. | 1879
delivered the opinion of the court.
Mrs. Blake, Ross, and McCarthy were each applicants to the Board of Supervisors of Warren County for license to keep a public ferry across the Yazoo River, at a point known as Anthony’s Ferry, where the highway from Vicksburg to the country along and near the Deer Creek intersects the river. Each petitioner fortified his claim with the signatures of a large number of supporters. Mrs. Blake owned the land on the east side of the river, at the intersection of the road with it, and McCarthy owned the land similarly located on the west bank.
For one or two terms of the board the contestation was continued, at the suit of one or another of the parties, the
The board, conceiving that it had exclusive cognizance Over the subject, under the Constitution and laws, or perhaps that Mrs. Blake, after a formal submission of her claims to the license, to the board, had thereby precluded herself from applying to the Legislature, decided in favor of McCarthy, and granted him the license, who executed the bond required.
In this posture of affairs, Mrs.- Blake instituted a suit of injunction in chancery, predicating her right on the legislative grant. On the bill and answer, the interlocutory injunction was dissolved, and from that order the appeal was taken.
The main proposition of the appellee is, that the act of the Legislature relied upon is invalid, because exclusive jurisdiction over ferries is conferred by the Constitution on the boards of supervisors, whose duty, and the mode of performance, is fully provided for by the statute. The language of the Constitution is, “ full jurisdiction ” over roads, ferries, bridges, etc. Const., art.'6, sect. 20.
This section in the present Constitution, in so far as the question here raised is concerned, is copied from the twentieth section of the fourth article of the Constitution of 1832.
The research of counsel has directed us to numerous instances, since 1832, wherein the Legislature has granted ferry licenses. Such acts are to be found spread along our legislative history intervening 1832 and the present time. It may be fairly said that the Legislature has been in the habit of exercising the power. We are aware of no case among the records of this coui’t which brought it into question. No such case has been reported. Such practice, begun so early and continued so long without challenge, has the force of a practical, interpreta
There is no prohibition imposed, in terms, 'by the Constitution in the premises. The power, on well-settled rules of constitutional construction, resides in the Legislature, unless it is denied by sect. 20 of art. 6. We are so overborne by the long and unquestioned practice of the law-making department, and the general acquiescence in it, that the question does not come before us as res integra.
But is the power of the Legislature absolute and without condition? To keep a public ferry is in the nature of a public employment. In England, and in this State, the Legislature, or some delegated body, may establish the schedule of charges. The ferryman is under similar resjaonsibilities as the common carrier. Bac. Abr., title “ FerryAng. on Highw., sect. 46. He must keep a proper landing, boats, etc., for the safe entry and exit of travellers and ¡moperty committed to him. Pate v. Henry, 2 Stew. & P. 101; Richards v. Fugua, 28 Miss. 692; Powell v. Mills, 38 Miss. 691.
But, whilst this is so, a ferry is regarded in law very much in the same light as a public road. It is an easement or servitude for the public use. The owner of lands on both sides of a navigable river is the owner adfilum aquae, subject to the common right of the public to the use of the stream for navigation. A steamboat, or water craft generally, has no right to come to the bank and put out goods on the land of A. without his consent. In the nature of things, a public ferry implies access to and egress from it, at the pleasure of the public. It necessitates an easement over the land of the riparian proprietors on both sides of the stream. The grant by the Legislature of the privilege to keep a public ferry at a particular place does not, ex vi termini, subjéct the soil or the owners of the respective banks to a right in the grantee to the servitude of the land in getting to and from the ferry by the public. That would be to take private property for public use. It is because of the
The legislation proceeds on that distinct recognition, for the owner of the soil shall always have the preference to the “ license,” if he will comply with the law. Code 1871, sect. 2379. When the owner declines, the license may be granted to another. Ibid.
McCarthy owned the land on the west bank ;'Mrs. Blake, on the east. Neither of them, either under the statute or as proprietor of the land, had a superior claim to the order for the license. If the Legislature had not conferred the privilege on Mrs. Blake, and the decision had been with the board, an election between them by that body would have disposed of the privilege.
We do not think the act of the Legislature under which Mrs. Blake claims is void; and, having conferred the license on her before the board decided in favor of McCarthy, she has the better title. Of course, Mrs. Blake is subject to the orders of the board as to the execution of a bond, and the schedule of charges.
The order appealed from is reversed, and held for naught, and the injunction reinstated and cause remanded.