124 N.C. 749 | N.C. | 1899
Lead Opinion
We think tbe judgment below should be affirmed. To our minds there is too little resemblance in a public turnpike road and a navigable water course to afford analogy for argument, from which proper conclusions may be drawn. Tbe turnpike is created by legislation and can be abolished by legislation. But a navigable water course is not created by legislation and can not be abolished by legislation.
It is true that tbe Legislature may by proper enactment
It is manifest from tbe provisions of this Act that it was passed for tbe benefit of tbe Counties of Burke, McDowell and Caldwell, and not for tbe public good — the improvement of tbe navigation of tbe streams therein named, as their improvement for sucb purpose is not mentioned. Tbe duty of this “board is to remove driftwood (that may gather at shoals on said streams when tbe water is low, so as to obstruct fords used for public and private crossings, or pond back tbe water) at any point on tbe Catawba River,” etc. And this board is to provide for the ascertainment of tbe number of logs floated and to fix the charge thereon; and “after paying for keeping the shoals as aforesaid and for ascertaining tbe number of logs floated, any residue of tbe fund arising from said tolls shall be divided among said Counties.” This board is to report to tbe Commissioners of each of tbe Counties the respective part of dividends that belong to it, and the Commissioners shall “assess tbe same” and enter up judgment for said amount against tbe parties assessed, and execution shall issue thereon “as for other tax assessments.” This Act was passed in tbe Spring of 1897, and under its operation tbe plaintiff was taxed $275.50 in tbe Spring of 1898, and his property advertised for sale. But few private business enterprises in this State can stand such an assessment as this. In
But outside of this provision of the Constitution, we do not believe it can be sustained. It provides for the levy of “taxes or assessments” on private property for private benefit, and not for the public good. It is in conflict with the whole tenor and spirit of the Constitution, and of our institutions. It is an unauthorized exercise of sovereign power in the hands of this new board of Commissioners, and we think the judgment of the Court appealed from should.be affirmed.
Dissenting Opinion
dissenting. In England the test of navigable rivers is the ebb and flow of the tide. In this country, owing to essential differences in topography, the test of a navigable river (over which class of streams alone Congress has jurisdiction) is that it is wide enough and deep enough to be navigable by sea-going vessels, and below falls or other obstructions so as to be accessible to such vessels. Navigable streams are subject to regulation by State legislation provided it 'is not repugnant to any regulation thereof by Congress, Bagg v. Railroad, 109 N. C., 281; Morgan v. Louisiana, 118 U. S., 455;Smith v. Alabama, 124 U. S., 465; Railroad v. Alabama, 128 U. S., 96; Cooley Const. Lim., 595; 16 Am. and Eng. 264, and this to the extent even of imposing a reasonable toll as compensation for improving the navigation of such streams, if not in conflict with some statute passed by Congress in pursuance of its paramount right. Thames Bank v. Lovell, 46 Am. Dec., 332; Benjamin v. Manistee, 42 Mich., 628; McReynolds v. Smallhouse, 8 Bush. (Ky.), 447; Morris v. State, 62 Texas, 728; Prentice & Eagan Commerce Clause 113, and cases cited.
The distinction between floatable and non-floatable streams is drawn in Commissioners v. Lumber Co., 116 N. C., 731, in which it is held that the Catawba River, at the location now in question is a floatable stream, and the Act of the General Assembly, Acts 1897, Oh. 388, recites that decision and provides for the regulation of the use of said stream for float-age purposes. It is the constitutionality of that statute which is called in question by this action.
In State v. Glenn, 52 N. C., 321, it is said that “When a stream (not navigable) is naturally of sufficient depth for valuable floatage, the public have an easement therein for the purpose of transportation and commercial intercourse, and in fact they are public highways by water “ this easement being explained to be as to the use of the stream for said purposes, the bed of the stream and with it the right of fishing being capable of grant to the riparian owners. To same effect Bucki v. Cone, 25 Fla., 1.
Floatable streams being “public highways by water” as said in State v. Glenn, supra, the State can in the exercise of its powers provide regulations for the unrestricted exercise thereof, and provide for the expense of doing so and of keeping the channel open, either by funds out of the public treasury or by tolls upon the commerce using said streams (i. e., logs and rafts)' and this power it can exercise through commissioners appointed directly by the State or confer the control and the power to l.ay tolls upon the Gommissioners of the Counties through which such “public highway by water” flows.
This is not a tax or an assessment (as in Peace v. Raleigh cited by plaintiffs’ counsel), but a toll which is provided for in the Act in question. It is a matter of universal knowledge that the Legislature has resorted to the plan of allowing persons or companies to charge toll for the purpose' of keeping up certain public roads in the mountain Counties
Were these charges technically taxes instead of tolls, it has been held that even a tax levied within the constitutional limits for one County purpose may be devoted to another County purpose. Long v. Commissioners, 76 N. C., p. 280.
The Legislature has the power to convert an ordinary public highway used as a carriage and wagon road into a turnpike or toll road. The Courts hold in such cases that “the change is not in the character of the servitude but in the mode of sustaining the highway, or keeping it in repair, viz: in substituting tolls instead of taxes or involuntary labor.” Carter v. Clark, 89 Ind., 238, 239; Elliot on Roads and Streets, p. 55, and authorities there cited. Especially see Walker v. Caywood, 31 N. Y., 51; Wright v. Carter, 27 N. J., 76; Douglass v. Boonesborough, 23 Md., 219; State v. Blake, 36 N. J., 442.
Has the Legislature the power to assume the same control over navigable and non-navigable streams as over the dirt roads made such by authority of law?
*756 “It is too late to question that the police power of the State (which is part of its general legislative power) extends to providing for every object which may be reasonably considered necessary for the public safety, health, good order or prosperity, and which is not forbidden by some restriction in
If a charter were granted to a private company to clean out the channel and in consideration of keeping it open and of building all necessary bridges over the stream, the company were authorized to levy toll on the logs and other traffic, could there be any doubt of the legality of such charter ? If not, then certainly the State can exercise the powers it could grant and can confer them upon the County Commissioners of the riparian Counties as agencies of the State.
As to the suggestions in the argument of the possible purposes in passing the Act in question it has always been held that the Courts will not inquire into the motives of legislators of any kind of grade, whether it be the Congress of the United States, the Legislature of the State, or a municipal board, except in so far as they may be disclosed by the language of
In granting tbe restraining order against tbe defendants’ proceeding as authorized by tbe terms of said Act, I think there was error.
Concurrence Opinion
concurring in judgment. This case presents either necessarily or by possible implication many difficult and perplexing questions, rendered more so by their far reaching and perhaps unforeseen results. What is and. is not a floatable stream I am at present utterly unable to define, and my inability is not lessened by reading tbe authorities from other States. Tbe doctrine may be said to be of common law origin, and like nearly all such doctrines is tbe offspring of necessity. It seems to come to us from some of tbe Northern States where there are large bodies of timber with intersecting streams, but few local railroads and no efficient system of public roads. Tbe present value of such lands is principally in their timber and its value depends upon tbe accessibility of market. Under such circumstances the practical use of tbe smaller streams is confined almost exclusively to floatage, which being of paramount importance, came to be regarded as of paramount right. Having such an origin, the doctrine is naturally affected in different States by their different necessities and local statutes.
How small a stream may be floatable I am not prepared to
While I do not mean to attack the general constitutionality of the Act, I think it is defective in application and affords no constitutional warrant for the assessment under consideration, as no improvement whatever has been made upon the stream, and no pretence of condemnation of whatever private property may have vested therein. I do not think the State can in the utter absence of any general system of taxation, tax directly or indirectly the easement held by the plaintiff. Eor the reasons stated above, I think the judgment should be affirmed.