FALL et al. v. THE COUNTY OF SUTTER et al.

FRANCHISES GRANTED BY POLITICAL POWER.-Franchises for erecting toll-bridges, or ferries, being sovereign prerogatives, belong to the political power of the State, and are primarily represented and granted by the Legislature as the head of the political power. IDEM-POWER WHEN DELEGATED.-Where the power of granting these franchises has been by legislative enactment delegated to subordinate tribunals, as in this State to the Courts of Sessions and Boards of Supervisors, such tribunals are only agents of the Legislature in this respect. IDEM-GRANTS MADE BY SUBORDINATE TRIBUNALS.-Grants made by these subordinate tribunals by virtue of the authority thus delegated, are equally valid as if made by the Legislature directly, and the effect of a grant by them is to give a right of property to the grantee or licensee which it is not in the power of the Legislature to divest or transfer to another, so long as the owner holds in obedience to law.

IDEM-GRANTS NOT EXCLUSIVE.-Grants of franchises of this character, not being exclusive in their terms, do not confer upon the grantees any exclusive right to the line of travel which is accommodated by them, or to its profits, and do not estop the granting power from making other grants of like character, the effect of which is to impair the value and take away the profits of the franchise first granted.

IDEM-Where the grant of such franchises is not in terms exclusive, the Gov[238] ernment *holding this power, to be exercised for the public interest and convenience, is not to be presumed to part with its right to make other grants which may impair the value of the first, and will not be held to have done so except where such an intent appears affirmatively and plainly. This intent is not shown from a mere grant of the franchise or privilege.

IDEM-BRIDGES AND FERRY FRANCHISES.-The provisions of the Acts of 1850 and

1855, concerning bridges and ferries, prohibiting the subordinate granting tribunals from licensing a second bridge or ferry within one mile of a former one, except under certain conditions, one of which is where a second grant is required by the public convenience, impose no restrictions upon the power of the Legisla ture in making other grants.

PUBLIC CONVENIENCE A POLITICAL QUESTION.-The question of what the public convenience requires, is a political not a legal one. Its decision rests with the Legislature and depends upon its discretion, the exercise of which, in the granting of a subsequent franchise, is conclusive and not reviewable in a Court of Justice. IDEM-TOLL-BRIDGES.-Under the Act of 1850 concerning public ferries, the plaintiffs, in 1852, obtained from the Court of Sessions of Yuba County, a license to construct and maintain a toll-bridge across the Feather River, at a point near the city of Marysville, and constructed and have since maintained, at the point indicated, a bridge sufficient to accommodate the line of travel, and have complied with all the provisions of the law regulating franchises of this character. In 1859 the Legislature by special act granted to the defendants the privilege of constructing another bridge within six hundred feet of that of plaintiffs, and calculated to accommodate the same line of travel, and to impair greatly the profits and value of plaintiffs' franchise. Defendants having commenced the construction of a bridge under this act, plaintiffs brought this action to enjoin its completion and its use for the purpose intended: Held, that plaintiffs were not entitled to the injunction.

Commented on and approved in Bartram v. Central T. Co.; and Same v. Ogilby, 25 Cal. 288; and State Tel. Co. v. Alla Tel. Co., 22 Cal. 423; and People v. S. F. & A. . . Co., 35 Cal. 606.

APPEAL from the Tenth Judicial District.

In 1850 the Legislature passed an act concerning public ferries, by which the Courts of Sessions of the several counties were authorized, upon proper application, to establish ferries, and to license the applicants to receive tolls fixed in amount by the Court, upon complying with the provisions of the act. Section five of the act was as follows: "No ferry shall be established within one mile immediately below or above a regular established ferry, unless it shall be deemed important for the public convenience, or where the situation of a town, or village, the crossing of a public highway, or the intervention of some creek, or ravine, shall render it necessary."

Under this act the plaintiffs, in 1852, obtained a license to build a bridge across the Feather River, near the city of Marysville, and to take tolls thereon for the period of twenty years. The bridge was constructed, and the plaintiffs have since complied with the pro-*visions of the law [239] in all respects as to its maintenance. In 1855 another act was passed giving the authority to establish toll-bridges and ferries to the Supervisors of the several counties, and regulating the mode in which licenses should be given and renewed and the tolls fixed, and prescribing the duties of the licensees the regulations applying to those already in existence under the old act as well as to those to be established under the new. Section six of this act reënacts section five of the Act of 1850, and provides further, that any application to establish a bridge or ferry within one mile of a bridge or ferry already established, shall be made to the same Board by which the first was established, and upon notice to its

owners.

The nature of this action, the character of the complaint, and the subsequent proceedings, are sufficiently set forth in the opinion of the Court. At the January Term, 1861, the Supreme Court affirmed the judgment of the lower Court, Baldwin, J. delivering the opinion, and Cope, J. concurring, which opinion is the one given below. A rehearing was subsequently granted, the argument upon which was postponed from time to time, until the present term when, after

reargument, the judgment was again affirmed, and the previous opinion adopted, by Cope, J.-Norton, J. concuring.

S. Heydenfeldt, for Appellants.

I. The remedy by injunction is preventive, and plaintiff is not required to wait until the injury is complete. (2 Story's Eq. secs. 925-928; Bonaparte v. Railroad Co., 1 Baldwin, 205, 212, 216, 230-232; Osborn v. U. S. Bank, 9 Wheat. 738-741, 754, 838-841; Gibson v. Smith, 2 Atkyns, 182; Jackson v. Cator, 5 Ves. 688; Hill v. Miller, 3 Paige, 254; Whitehuste v. Hyde, 2 Atk. 391; Coats v. Clarence Railway, 1 Rus. & Myl. 181; Sutton v. Montford, 4 Simmons, 559; Back v. Stacy, 2 Russell, 121; M. & H. R. Co. v. Artcher, 6 Paige, 83; Belknap v. Belknap, 2 Johns. Ch. 463; Bathurst v. Barden, 2 Bro. Ch. 64; Robertson v. Pittenger, 1 Green's Ch. 57; Quackenbush v. Van Riper, 2 Id. 353; Case v. Harwod, 3 Wend. 632; Cooper's Eq. 77.)

II. Standing by and seeing a party expend money would exclude title to relief. (East I. Co. v. Vincent, 2 Atk. [240] 83; Styles *v. Cooper, 3 Id. 692; The King v. Butierton, 6 Term, 554; Jackson v. Cator, 5 Ves. 688; Birmingham Coal Co. v. Lloyd, 18 Id. 515; Lynn v. Pemberton, 1 Swamt. 246.) And no damages given for violating franchise for the same reason. (Newburg Turnpike Co. v. Miller, 5 Johns. Ch. 115.)

III. The public convenience, or some one of the statute exceptions, is a condition which must be shown. (Commonwealth v. Egremont, 6 Mass. 491; Commonwealth v. Chase, 2 Id. 170; Commonwealth v. Cummings, Id.; Givens v. Pollard, 3 A. K. Marshall, 320; Casey & Finnie v. Jones, 2 Littell, 301; Nashville B. Co. v. Shelby, 10 Yerger, 280; Coffver v. Houston, 4 Munroe, 288; In re Hanson, 2 Cal. 262.)

IV. Exclusive rights are always protected. (Newburg Turnpike Co. v. Miller, 5 Johns. Ch. 111; Croton Turnpike v. Ryder, 1 Id. 611; Norris v. The F. & T. Co., 6 Cal. 590; Benson v. City of New York, 10 Barb. 223.)

Charles Lindley, for Respondents.

I. The law (Wood's Dig. 459) does not confer the power

on the Board of Supervisors to grant an exclusive right, but expressly authorizes them to multiply bridges as the public convenience may require.

II. Whoever takes a license for a bridge receives it subject to the exercise of this reserved right of sovereignty, and in this case the plaintiffs received their license subject to the rights of the defendants. The law under which the defendants construct their bridge was passed anterior to the issuance of the plaintiff's license in October, 1860.

III. The Legislature is the primary power to determine the question of public convenience, and it can delegate it to the Board of Supervisors and modify and revoke it at pleasure. In its discretion it determined that the public convenience required the construction of the defendants' bridge, and passed the special act in 1859 to authorize the same.

IV. The Legislature has no power to grant to the plaintiffs, through the Board of Supervisors or by itself, an exclusive right for one year either with or without perpetual right of renewal from *year to year. (Charles [241] River Bridge Company v. Warren Bridge Co., 11 Pet. 548; Hartford v. East Hartford, Id. 534; Ohio Life Ins. Co. v. De Bolt, 16 How. 431; State Bank of Ohio v. Knapp, Id. 369; Indian Cañon Road Co. v. Robinson, 13 Cal. 519; Bush v. Peru Bridge Co., 3 Ind. 21; 18 Conn. 451.)

I state as a legal principle that the Legislature has not power under the Constitution to vest, or cause to be vested, in an individual the exclusive right to control, provide for, and tax the public travel. The establishment and perpetual supervision of public highways, ferries, and bridges, to accommodate and facilitate the public travel, are matters of great political or public concern, and are rights and duties. incident to sovereignty. This sovereign power, so indispensable to the Government, has been delegated to the Legislature by general warrant, and like all other delegated powers is a trust which the trustee can neither sell, diminish, or abandon.

The Charles River Bridge v. Warren Bridge, 11 Pet. 420, was a cause growing out of a bridge charter claimed to be exclusive for seventy years. It involved vast rights to toll and travel, which had mostly grown up in the development of the country

after the passage of the charter. Upon this branch of legislative power, Justice Taney, delivering the opinion of the Court, held as follows:

"It may perhaps be said that in the case of the Providence Bank, the Court were speaking of the taxing power, which is of vital importance to the existence of every Government; but the object and end of all government is to promote the happiness and prosperity of the community by which it is established, and it can never be assumed that the Government intended to diminish its power of accomplishing the end for which it was created. And in a country like ours-free, active, and enterprising-continually advancing in numbers and wealth, new channels of communication are daily found necessary both for travel and trade, and are essential to the comfort, convenience, and prosperity of the people. A State ought never to be presumed to surrender this power, because, like the taxing power, the whole community have an interest in preserving it undiminished; and when a corporation alleges that a State has sur

rendered for seventy years its power of improvement [242] *and public accommodation, in a great and important

line of travel along which a vast number of its citizens must daily pass, the community have a right to insist that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon does not appear. The continued existence of a Government would be of no great value if by implications and presumptions it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform transferred to the hands of privileged corporations." The rule of construction announced by the Court was not confined to the taxing power, nor is it so limited in the opinion delivered; on the contrary, it was distinctly on the ground that the interests of the community were concerned in preserving, undiminished, the power then in question; and whenever any power of the State is said to be surrendered or diminished, whether it be the taxing power or any other affecting the public interest, the same principle applies and the rule of construction must be the same.

A series of cases arose under a general Banking Law of the State of Ohio, wherein it was claimed that the Legislature had