Fall v. Cty. of Sutter

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. •

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.

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.

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.

Where the grant of such franchises is not in terms exclusive, the Government holding this power, to tie 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.

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 Legislature in making other grants.

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.

Under the Act of 1850 concerning public ferries, the plaintiffs, in 1852, obtained from the Court of Sessions of Tuba County, a license to construct and maintain a toll-bridge across the Feather Kiver, 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 lino of travel, and to impair greatly the profits and value of plaintiffs' franchise. Defendants having commenced the construction of a bridge under this act, plain tifis brought this action to enjoin its completion and its use for the purpose intended: Held, that plaintiffs were not entitled to the injunction.