Seal v. Donnelly

60 Miss. 658 | Miss. | 1882

Chalmers, J.,

delivered the opinion of the court.

In 1866 the Board of Police of Harrison County granted to Janet Bowman “ the exclusive right and privilege to keep a ferry over Bayou Bernard at the place where the public road from Bed Creek to Mississippi City crosses said stream, with provision that no other person should be permitted to keep a public ferry over said water-course within one mile of the ferry of the said Janet.” In 1881 the'Board of Supervisors of this county granted to appellee Donnelly a license to establish ferry over Bayou Bernard at a place within less than a mile of that established bj? Janet Bowman, and this bill is brought by appellant Seal, who has, by purchase from said Janet, become the owner of her ferry, to enjoin defendant from acting on the license granted him by the Board of Supervisors.

The question, therefore, presented by the record is this: Could our former Board of Police, or can our present Board of Supervisors, in granting a ferry privilege or license, make a valid stipulation that no rival ferry shall be established within certain limits during a specified period, or during all time, and is such stipulation, if made, binding on them and their successors in office?

We consider this question virtually answered in the negative by the decision in Sullivan v. Supervisors, 58 Miss. 790. While full jurisdiction is by the Constitution given to Boards of Supervisors over roads, ferries, and bridges, it is a jurisdiction to be exercised in conformity with the laws to be enacted by the general legislative assembly of the State, and not an unlimited and illimitable power to deal with these important public interests at their pleasure. The right to deal with these subjects cannot be taken from them and confided to any other magistracy, but the mode and manner of their dealing is regulated by and must conform to the sovereign will as announced through the Legislature.

Such has been the practice as to all the powers conferred by our several Constitutions on these county boards since their creation by the Constitution of 1832, and the exercise of their powers has uniformly been governed by the regulations prescribed by the Legislature. Arrighi v. Supervisors, 54 Miss. 668.

As was shown by the decision in Sullivan v. Supervisors, supra, our statutes with regard to ferries, from the earliest period down to the present day, give no countenance to the idea of there being an indefensible property right in the ferry licenses granted by the Boards of Police or Supervisors over streams intersecting public roads in this State, and certainly they lead even less to the assumption of an authority by the boards to ■contract away the power of establishing such other ferries as the public interests may thereafter require. Ferries, as was said in Sullivan’s Case, supra, are but a part of the public highway, and it will hardly be contended that the Board of Supervisors can, by contract, stipulate that not more than one public road shall ever be established within a certain portion ■ofthe county. Nothing short of the sovereign power of the State could venture upon the assumption of such authority.

Affirmed.