50 S.E. 625 | N.C. | 1905
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, *159
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.,
"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 RiverBridge 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.,
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 *160 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,
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,
Action dismissed.
Cited: Reed v. R. R.,