1. This Court follows the decision of the Supreme Court of
Georgia that authority to grant the franchise of establishing and
maintaining a toll bridge over a river where it crosses a public
highway in that state is vested solely in the legislature, and may
be exercised by it, or be committed to such agencies as it may
select.
2. The construction by the state court of a statute under which
a court made an exclusive grant of such franchise within designated
limits, upon conditions which the grantee performed, is not
conclusive here upon the question
whether a subsequent conflicting grant impairs the obligation of
a contract.
3. The statutes of Georgia confer upon certain courts the power
to establish such bridges, but not to bind the public in respect to
its future necessities. The legislature could therefore authorize
the erection and maintenance of another bridge within the limits of
the original grant.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This was a suit in equity brought by Wright and Shorter in
Page 101 U. S. 792
the Superior Court of Floyd County, Georgia, to restrain the
defendants from continuing and maintaining a toll bridge across the
Etowah River, at Rome, in that county. The facts are these:
In July, 1851, the Inferior Court of Floyd County entered into a
contract with one H. V. M. Miller, by which the court, for a good
and valuable consideration, granted to Miller and his heirs and
assigns forever, so far as it had authority for that purpose, the
exclusive right of opening ferries and building bridges across the
Oostanaula and Etowah Rivers at Rome within certain specified
limits. Miller, on his part, bound himself by certain covenants and
agreements appropriate to such a contract. He afterwards assigned
his rights under the contract, so that when this suit was
commenced, the complainants, Wright and Shorter, were the owners.
Large amounts of money were expended in building and maintaining
the required bridges, and the franchise is a valuable one. In
December, 1872, the commissioners of roads and revenue for the
county authorized the defendants to erect and maintain a toll
bridge across the Etowah, within the limits of the original grant
to Miller. The bill avers that
"The said board of commissioners in the making and conferring of
said franchise exercised legislative powers conferred upon it by
the laws of the state; that the said grant is in the nature of a
statute of the legislature; that the same is an infringement of the
said grant and contract made by the said superior [inferior] court
to and with the said H. V. M. Miller, under whom complainants hold,
and impairs the obligation and validity thereof, and is repugnant
to the Constitution of the United states, art. I, sec. 10, par. 1,
which prohibits a state from passing any law impairing the
obligation of contracts, and the complainants pray that the said
grant to said defendants be by this court annulled and declared
void and the defendants perpetually enjoined from any exercise of
the privileges thereby conveyed and granted."
There is no dispute about the facts, and in the answer it is
expressly stated that the commissioners of roads and revenue
"are vested with legislative, or
quasi-legislative,
powers and exclusive powers on this subject, and therefore . . .
the order making said bridge and streets public has all the
authority, sanction, and effect of an act of the legislature of the
state, and
Page 101 U. S. 793
cannot be interfered with by the unauthorized and void act of
any public functionary of this state."
The parties, by stipulation before the hearing, eliminated
everything from the case except so much as was necessary to
obtain
"a final and legal decision upon the main question, to-wit
whether or not the Inferior Court of Floyd County, Georgia, could
and did grant to the complainants or their assignors an exclusive
franchise such as is set up and claimed in the complainants' bill,
and whether or not, therefore, the subsequent grant of the bridge
franchise, described in the pleadings, by the said board of
commissioners to the defendants is or is not valid, and the right
of complainants to the relief prayed for."
It was also agreed that the defendants had title to the lands on
which the piers of the bridge were built.
The superior court decided that the inferior court of the county
had no power to grant Miller any such exclusive right as was
claimed, and for that reason dismissed the bill. This decision was
afterwards affirmed by the supreme court of the state on appeal,
and to reverse that judgment this writ of error was brought.
Accompanying the submission of the case on its merits is a
motion to dismiss because no federal question is involved.
Before proceeding to consider the questions presented by the
record, we are called upon to dispose of a preliminary motion. On
or before the 6th of December, 1879, the counsel for the respective
parties stipulated, in writing, to submit the case on printed
arguments under the twentieth rule. The plaintiffs in error ask
leave to withdraw their stipulation and set the cause down for oral
argument when reached. We think their showing in support of that
motion is insufficient, and that under the rule laid down in
Muller v. Dows, 94 U. S. 277, the
stipulation must be enforced.
We think also that the motion to dismiss must be overruled. It
is true the court below disposed of the case by deciding that the
state statutes did not authorize the inferior court to grant Miller
an exclusive right to maintain bridges within the designated
limits, and that in so doing it gave a construction to a state
statute. It is also true that ordinarily such a construction would
be conclusive on us. One exception,
Page 101 U. S. 794
however, exists to this rule, and that is when the state
court
"has been called upon to interpret the contracts of states,
'though they have been made in the forms of law,' or by the
instrumentality of a state's authorized functionaries in conformity
with state legislation."
Jefferson Branch Bank v.
Skelly, 1 Black 436. It has been decided in Georgia
that the right to receive tolls for the transportation of travelers
and others across a river on a public highway is a franchise which
belongs to the people collectively.
Young v. Harrison, 6
Ga. 130. A grant of this franchise from the public in some form is
therefore necessary to enable an individual to establish and
maintain a toll bridge for public travel. The legislature of the
state alone has authority to make such a grant. It may exercise
this authority by direct legislation, or through agencies duly
established, having power for that purpose. The grant, when made,
binds the public, and is, directly or indirectly, the act of the
state. The easement is a legislative grant, whether made directly
by the legislature itself or by any one of its properly constituted
instrumentalities.
Justices of Inferior Court v. Plank
Road, 14
id. 486. The complainants claim they have
such a grant through the agency of the inferior court, acting under
the authority of the legislature. This is denied because, as is
insisted, the legislature has not given the court power to make an
exclusive grant. That was the precise question decided below, and,
under the exception to the rule just stated, is reviewable
here.
If the court erred in construing the statute and in holding that
there was no contract, then the question is directly presented by
the pleadings and the stipulation as to the facts, whether the
subsequent action of the commissioners of roads and revenue is, in
its legal effect, equivalent to a law of the state impairing the
obligation of the contract as it was made. In this way, it seems to
us, a federal question is raised upon the record which gives us
jurisdiction.
We therefore proceed to consider whether the inferior court had
the power to grant Miller the exclusive right. It certainly has
done so, if the power existed. There is no doubt that the
legislature, under the constitution of the state in force at the
time, had authority to make such a grant. The only question
Page 101 U. S. 795
is whether power for that purpose had been delegated to the
inferior court.
The statutes relied on by the plaintiffs in error as conferring
that authority are:
An act of Dec. 1, 1805 (Cobb's Dig. 945), as follows:
"The inferior courts in the several counties in this state are
hereby empowered, if they shall deem it necessary, on application's
being made, to authorize the establishment of such ferries or
bridges as they may think necessary, other than where ferries and
bridges have already been established by law, and to allow such
rates for crossing thereat as are usual or customary on
watercourses of the same width,
provided, nevertheless,
that the legislature shall at all times retain the power of making
such alterations in the establishments made by the justices of the
inferior courts as to them may seem proper."
An Act of Dec. 19, 1818, Cobb's Dig. 952:
"SEC. 29. The justices of the inferior courts of each county in
this state, or a majority of them, shall have power and authority
to hear and determine all matters which may come before them
relative to roads, bridges, &c., as are authorized by law,
either in term time or while sitting for ordinary purposes or at
any special meeting held for that purpose."
"SEC. 33. The inferior courts shall have power to establish
ferries, to rate the toll to be taken, as well those already
established as any which may hereafter be established, within the
several counties within which they may severally reside, and
generally all other matters relative to ferries which may, in their
judgment, be of public utility, any law to the contrary
notwithstanding."
An Act of Dec. 26, 1845, Cobb's Dig. 958:
"That the justices of the inferior court of the several counties
in this state, or a majority of them, be and they are hereby
authorized to contract for the building and keeping in repair of
public bridges for such time and in such way as they may deem most
advisable, either by letting the same to the lowest bidder, hiring
hands for that purpose, or in any other way that to them may appear
right and proper. And should they at any time let the same to the
lowest bidder, that they be authorized to require and receive the
same bond that commissioners now do. "
Page 101 U. S. 796
It is conceded that these statutes contain all the authority the
Inferior Court of Floyd County had to make the contract in
question. Exclusive rights to public franchises are not favored. If
granted, they will be protected, but they will never be presumed.
Every statute which takes away from a legislature its power will
always be construed most strongly in favor of the state. These are
elementary principles. The question here is whether the Legislature
of Georgia conferred on the inferior courts of its several counties
the power of contracting away the right of the state to establish
such ferries and bridges in a particular locality as the ever
changing wants of the public should in the progress of time
require. In our opinion, it did not. It gave these courts the right
to establish ferries or bridges, but not to tie the hands of the
public in respect to its future necessities. The right to establish
one bridge and fix its rate of toll does not imply a power to bind
the state or its instrumentalities not to establish another in case
of necessity. In fact, the act of 1805, which remained in full
force until the contract with Miller was made, expressly retained
power for the legislature to make such alterations of what might be
done by the courts as should seem to be proper. The act of 1818
gave the courts general power over all matters relative to ferries,
and authorized them to hear and determine all matters which should
come before them in relation to roads and bridges; but there was no
express repeal of the proviso of the act of 1805, and there is no
such inconsistency between the two acts as to amount to a repeal by
implication. Such being the case, the original power retained by
the legislature over the acts of the courts in this particular
remained in full force. The act of 1845 related only to the
building and repairing of such public bridges as were not owned by
private individuals or corporations. It conferred no new powers in
respect to the bargaining away of public franchises. We see nothing
in the case of
Shorter v. Smith, 9 Ga. 517, to the
contrary of this. All the court there decided was that an exclusive
right had not been granted. The question of power in the inferior
courts to make such a grant was not involved, and certainly not
decided. The language of the court in the opinion is to be
construed with reference to the question actually under
consideration, and should not be
Page 101 U. S. 797
extended beyond for any purpose of authority in another and
different case.
Upon the whole, it seems to us that the supreme court of the
state was right in its decision, and the judgment is therefore
Affirmed.