FALL et al. v. THE COUNTY OF SUTTER et al., 21 Cal. 237

Baldwin, J. delivered the opinion of the Court 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 for twenty years; that the corporation did construct the bridge at great cost, and fulfilled the various provisions of law prescribing the duties of owners of bridges; that the corporation obtained renewals annually of the license from the Court of Sessions until this power was taken from that Court, and afterwards obtained such renewal from the Board of Supervisors since the change of the law giving this power to such Boards—paying license fees, and conforming to the laws in this respect; that the last of these licenses was granted for one year from the sixth day of August, 1860, when the plaintiffs executed bonds, and did the other things required of them to perfect their right.

The bill further avers, that the defendants are proceeding to destroy the rights of the plaintiffs by the erection of a bridge across the Feather River, and within six hundred feet of the toll-bridge, which will prove utterly destructive of the value of the franchise of the plaintiffs.

This is done under the color of the Act of the Legislature, passed April 11th, 1859, which grants the right and privilege to the County of Sutter of constructing and keeping across Feather River a bridge for public use, extending from Fifth Street of the city of Marysville, in the county of Tuba, to the opposite bank of the river, the cost of the bridge to be paid for partly by private subscription and donations, and partly by warrants to be drawn on the County Treasurer of Sutter County, and on a fund therein styled the Bridge Fund, and “ when said warrants are paid by toll derived from said bridge, then said bridge shall be free for all crossings of persons or property.” The bill goes on to aver, that the plaintiff’s bridge is, in every respect, sufficient for the public wants and convenience, and that the new bridge is not needed for public or private accommodation.

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 divest itself, by way of grant, of the right to make any further or other grant of a ferry or bridge franchise, so as to interfere with the business or profits of the one first granted. For it is not pretended that any express grant was made to the plaintiffs here to this effect.

The Acts of 1850 and 1855, while they empower the Court of Sessions in the one case, and the Board of Supervisors in the other, to grant this franchise, do not purport to make the grant in exclusion of the right of the State, or the Board, or the Court, to grant to any one else a franchise for a bridge or ferry in the same neighborhood, or so situated as to interfere with the first.

These franchises, 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; and the subordinate bodies or tribunals making the grants are only agents of the Legislature in this respect. But the delegation of these powers to these subordinates in no way impairs the power of the Legislature to make the grant.

The effect of the grant is unquestionably to give a right of property to the grantee or licensee; and it would not be in the power of the Legislature to divest this property or transfer it to another person, so long as the owner held in obedience to the law. No attempt is made to divest this property, or to destroy or impair this franchise.

What the appellants contend for is, that not only have they this property and this franchise, but they have also the right to insist that no other franchise of like land shall be granted, the effect of which would be to impair the value and take away the profits of them own; in other words, that their grant is of the exclusive right to the profits of the travel in the neighborhood—at least within the distance of this bridge to their own. We think the rule is settled to the contrary at this day. Ever since the great case of the Charles River Bridge Company v.

Warren Bridge Company, (11 Pet. 548) these grants have been held not exclusive—as granting a right, but not as estopping the granting power from making other grants, though the effect of the last be to destroy the profits of the first. (See, also, Hartford v. East Hartford, 11 Pet. 534; Bank of Ohio v. Knapp, 16 How. 369; Bush v. Peru Bridge Co., 3 Ind. 21; Indian Cañon Road v. Robinson, 13 Cal. 510.) The question is very fully considered in the cases of the Supreme Court of the United States and in the case of 3 Indiana.

The reasoning upon which the conclusion negativing the claim of the grantee goes is, that the grant is not in terms a grant of an exclusive right; and that the Government holding this power, to be exercised for the public interest and convenience, is not to be presumed to part with it; but the intent to do so must affirmatively appear, and be plain and manifest, and that this intent is not shown from a mere grant of the franchise and privilege, this grant being effectual to show that the Legislature had given the particular right to one grantee, but not proving that the Legislature had divested itself of all power to grant in the same vicinity to any other.

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 should be suffered to be enjoyed without legislative interruption; still this seems, under the law, as it is written, to be one of those evils—if it be one—for which the Courts can furnish no corrective. Judgment affirmed.