21 Cal. 237 | Cal. | 1862
Cope, J. concurring.
This bill was filed to restrain the defendants from building and setting up a free bridge over the Feather River, at or near Marysville. The ground of complaint is, that the plaintiffs are the owners and possessors of a licensed toll-bridge near by. The plaintiffs aver that the franchise was acquired in 1852 by the plaintiff Hanson ; that since the acquiring of the franchise the holders thereof, assigns, etc., have done everything required of them by law; that all the franchises, property, etc., in connection with the bridge, have been held by the present plaintiffs since 1855 ; that in 1852 plaintiff Hanson and cocorporators, under the name of the Yuba City and Marysville Bridge Company (having been previously organized as a corporation in this name) made due application to the Court of Sessions of the county of Yuba for authority to construct their bridge, and duly observed and fulfilled all the terms and requirements of the law; and on the fifth of October, 1852, that Court, by order, granted to the corporation authority to construct and a license to keep the same and collect the tolls thereon
The Judge of the County Court of Sutter having denied an injunction upon this bill, the plaintiffs below appeal from this order; and counsel, waiving technical objections, have desired that the case thus made be decided upon its legal merits.
We do not consider it necessary to criticise very closely the provisions of the Act of 1850 or 1855 in reference to bridges, ferries, etc., to determine whether the rights of the plaintiffs are governed by the first or last of these statutes, or both together; nor is it necessary to decide the question of the power of the Legislature to
It is not necessary to criticise the particular language of the Act of 1850 ; for supposing that the limitations and provisions applicable to the Court of Sessions apply to or control the Legislature, and supposing further, that the rights of the appellants rest under and are protected by that act—suppositions which we make only for the argument—still, by the Act of 1850, there is no grant of an exclusive right. It is true, the Court of Sessions could by that act only grant another bridge or ferry franchise—after the first had been granted—in certain contingencies, the public convenience being one; but the question is, who is to judge of the public convenience, or whether a given thing is for that convenience. The answer is, that body or power to whom the public welfare is committed with the general power to provide for and promote it. Public convenience, in this sense, is not a fact so much as it is a conclusion, or matter of judgment, or of expediency, and it is the same thing as if the word interest or policy were used, the effect of which would be to make the action of the granting power to depend upon its discretion, which probably could not be reviewed in a Court of Justice. It would be peculiarly a matter of political regulation, not a fact for legal ascertainment.
While it may shock our notions of a true conservatism that the Legislature should, as the facts represent them to have done here, be allowed to deal harshly with individual rights, after having authorized and encouraged an enterprise, leading necessarily to the expenditure of a large sum of money upon the faith that the profits