The act of the Legislature of Virginia of March 5, 1840,
providing that
"it shall not be lawful for the court of any county to grant
leave to establish a ferry over any watercourse within one-half
mile, in a direct line, of any other ferry legally established over
the same watercourse"
was one of general legislation, and subject to repeal by the
general assembly, and did not tie the hands of the legislature or
prevent it from authorizing another ferry within a half mile
whenever in its judgment it saw fit.
By the statutes of Virginia, authority was given to the county
courts of the several counties to license ferries. By an Act passed
March 5, 1840 (Acts Assembly 1839-1840, p. 58), carried, with
simply verbal changes, into c. 64 of the Code of Virginia of 1873
as sec. 23, and subsequently into c. 62 of the Code of 1887 as sec.
1386, it was provided:
"Be it enacted by the General Assembly that it shall not be
lawful for the court of any county to grant leave to establish a
ferry over any watercourse within one-half mile, in a direct line,
of any other ferry legally established over the same
watercourse."
In 1880, the County Court of Giles County gave to the plaintiff
in error a license to maintain a ferry across New River. On March
5, 1894, the General Assembly of Virginia passed the following act
(Acts Assembly 1893-1894, p. 789, c. 692):
"Be it enacted by the General Assembly of Virginia that it shall
be lawful for the County Court of Giles County to establish a ferry
at a point on New River in said county at a point around Egglestons
Springs depot and between Egglestons Springs and Egglestons depot,
on the New River branch of the Norfolk & Western Railroad,
Giles County, Virginia. Said court, in establishing said ferry,
shall be bound by sections thirteen hundred and seventy-five,
thirteen hundred and seventy-six, thirteen hundred
Page 177 U. S. 602
and seventy-seven, thirteen hundred and seventy-eight, thirteen
hundred and seventy-nine, thirteen hundred and eighty, thirteen
hundred and eighty-one, thirteen hundred and eighty-two, thirteen
hundred and eighty-three, thirteen hundred and eighty-four, and
thirteen hundred and eighty-five of the Code of Virginia; but
section thirteen hundred and eighty-six of said code, so far as the
distance of one-half a mile is concerned, shall not apply to the
establishment of said ferry at said place."
Under this act, a license was given to the defendant in error to
establish a ferry within less than half a mile of the ferry
established by the plaintiff in error under his prior license. The
rightfulness of this action was sustained by the circuit court of
Giles County, and subsequently by the Supreme Court of Appeals of
the State of Virginia, and to review such decision this writ of
error was brought.
MR. JUSTICE BREWER delivered the opinion of the Court.
The contention of the plaintiff in error is that, under the laws
of the State of Virginia in force at the time of such action, the
license granted by the county court to him to establish a ferry
created a contract between him and the state to the effect that no
ferry should be established within half a mile, and that the act of
1894 and the subsequent proceedings of the county court of Giles
county impaired the obligation of that contract, and therefore were
repugnant to Section 10 of Article I of the Constitution of the
United States.
This is an obvious error. The act of 1840 was one of general
legislation, and subject to repeal by the General Assembly. No
rights could be created under that statute beyond its terms, and by
it no restraint was placed upon legislative action. When the
General Assembly gave to the county courts power to license
ferries, it by that act in effect forbade them to establish a
second
Page 177 U. S. 603
ferry within half a mile of one already established, but that
bound only the county court. It did not tie the hands of the
legislature, or prevent it from authorizing another ferry within a
half mile whenever in its judgment it saw fit. A contract binding
the state is only created by clear language, and is not to be
extended by implication beyond the terms of the statute.
Fanning v.
Gregoire, 16 How. 524, is in point and decisive. In
that case, the plaintiff was by an act of the Iowa Territorial
Legislature given authority to establish a ferry across the
Mississippi River at the then Town of Dubuque, and the act also
provided that no court or board of county commissioners should
authorize any other person to keep a ferry within the limits of the
town. The City of Dubuque was thereafter incorporated, and under
its general corporate powers entered into a contract with the
defendant to run a steam ferryboat across the river. The plaintiff
thereupon filed a bill to restrain the defendant from so doing. It
was held that the bill could not be maintained, this Court saying
(pp.
57 U. S.
533-534-534):
"Although the county court and county commissioners were
prohibited from granting another license to Dubuque, yet this
prohibition did not apply to the legislature, and as it had the
power to authorize another ferry, the general authority to the
council to 'license and establish ferries across the Mississippi
River at the city,' enabled the corporation, in the exercise of its
discretion, to grant a license, as the legislature might have done.
. . . The restriction on the commissioners of the county does not
apply in terms to the city council, and the court think it cannot
be made to apply by implication."
This case was cited with approval in
Belmont Bridge v.
Wheeling Bridge, 138 U. S. 287, in
which this very statute of Virginia of 1840 was under
consideration, and it was said (p.
138 U. S.
292): "Here, the prohibition of the act of 1840 was only
upon the county courts, and that in no way affected the legislative
power of the state."
The case of
The Binghamton
Bridge, 3 Wall. 51, is not inconsistent. There, an
act of the legislature authorizing the one bridge contained a
proviso "that it should not be lawful for
Page 177 U. S. 604
any person or persons to erect a bridge within a distance of two
miles." That provision was held a part of the contract between the
state and the bridge company, Mr. Justice Davis, speaking for a
majority of the Court, saying (p.
70 U. S. 81):
"As there was no necessity of laying a restraint on unauthorized
persons, it is clear that such restraint was not within the meaning
of the legislature. The restraint was on the legislature itself.
The plain reading of the provision, 'that it shall not be lawful
for any person or persons to erect a bridge within a distance of
two miles,' is that the legislature will not make it lawful by
licensing any person or association of persons to do it."
In the case at bar, the only effect of the act of 1840, while in
force, was, as we have said, to tie the hands of the county court.
It operated in no manner as a restraint upon the legislature or as
a contract upon its part that the state would not act whenever in
its judgment it perceived the necessity for an additional ferry.
The fact that in this case the special authority was given to the
county court is immaterial. A general act forbidding county courts
to license additional ferries is not infringed by a subsequent act
giving special right to a single county court to establish a
particular ferry. No promise made by the legislature by the first
act is broken by the second. The judgment of the Supreme Court of
Appeals of Virginia was correct, and is
Affirmed.
