Opinion
(Decided 10 May, 1899.)
Floatable Streams — Catawba and Johns Rivers Assessments Act 1897, Ch. 388 — Constitution, Art. VIII, Sec. 4.
1. The right of taxation or assessment is a grant of sovereign power and can only be exercised for the public good and not for private benefit or for corporate gain, unless such gain be incident to the public benefit.
2. While the Legislature may by proper enactments provide for the improvement of navigable and floatable waterways for the benefit of navigation, it cannot impose duties upon the commerce upon such waters for the purposes of building bridges or cleaning out fords, public and private, across such watercourses.
3. The act of 1897 (chapter 388) appointing a board of managers to provide for removing driftwood from the Catawba and Johns rivers, between points named, which may gather at the shoals on said streams at low water, so as to obstruct fords used for public and private crossings, or pond back the water, and empowering the board to ascertain the number of logs floated down said streams, and to impose an assessment upon each log, the fund derived to be apportioned among the counties of Burke, Catawba, and McDowell, and to be used for the purpose of keeping the fords clear and for building bridges, is manifestly an act passed for the benefit of these counties and not for the public good, and is in contravention of the Constitution, Art. VIII, sec. 4, inhibiting abuse in assessment, and is in conflict with the whole tenor and spirit of the Constitution and of our institutions.
ACTION for injunction relief to restrain the defendants from enforcing an assessment on the property of plaintiffs and from interfering with their floatage of logs down the Catawba and Johns rivers. (750) A temporary order of restraint was granted by Robinson, J., in this cause, pending in BURKE, and came to a hearing, by consent, before Bryan, J., at chambers at Raleigh, on 25 October, 1898, and was heard upon affidavits from both sides by his Honor.
The complaint alleged that the plaintiffs were engaged in the manufacture of lumber in this State, owning planing mills and a sawmill plant in Catawba County, also owning large quantities of standing timber in the Catawba and Johns rivers, and also owning a large quantity of cut logs, and are purchasing large quantities of logs to supply the milling plant, and that their only convenient way of getting the same to said plant is by floating them down said rivers, which are floatable streams.
That the defendant commissioners have caused an assessment of $275.50 to be made upon their logs, and have required the defendant sheriff to collect the same, and that he has levied upon 150,000 feet of their sawed lumber and has advertised it for sale.
That the defendants are professing to act under color of an act of the Legislature ratified 9 March, 1897 (Laws 1897, ch. 388), which in terms attempts to authorize the board of managers mentioned therein to exact such tolls for the purpose of removing of driftwood "that may gather at the shoals on said streams, when the water is low, so as to obstruct fords used for public and private crossings, or pond back the water at any point" on said rivers, and also for the purpose of building certain public bridges over the said streams; that the plaintiffs are advised that the said act is invalid and void, in that the Legislature has no power to authorize assessments for such purposes on the plaintiffs and others of the public engaged in the exercise of the paramount right of navigation by floating of said streams, and that the duty of (751) building such bridges and clearing-out of such fords from driftwood is imposed upon the public generally to whose benefit it inures, and not upon these plaintiffs alone and those similarly engaged in the floatage of logs in said streams who receive no peculiar benefit from the building of such bridges or the clearing out of such fords, apart from the general public, being in no wise necessary to, or in furtherance of, the floatage of logs during the seasons when said streams are floatable.
The answer sets up Laws 1897, ch. 388, as a full and complete authorization of the acts of the defendants complained of by plaintiffs. His Honor continued the injunction until the final hearing. Defendants excepted and appealed.
Shepherd Busbee for plaintiffs.
A. C. Avery and J. M. Mull for defendants.
We think the judgment below should be affirmed. To our minds there is too little resemblance in a public turnpike road and a navigable watercourse to afford analogy for argument, from which proper conclusions may be drawn. The turnpike is created by legislation and can be abolished by legislation. But a navigable watercourse is not created by legislation and cannot be abolished by legislation.
It is true that the Legislature may by proper enactment provide for the improvement of such waterways for the benefit of navigation. (752) But the Legislature cannot impose duties upon the commerce upon such waters, for the purpose of "building public bridges, and of cleaning out the fords, public and private, across" such watercourses. The right of taxation or "assessment" is a grant of sovereign power and can only be exercised for the public good. This sovereign power cannot be granted for private benefits or for corporate gain, unless such gain be incident to the public benefit, authorizing the exercise of the taxing power of government.
It is manifest from the provisions of this act that it was passed for the benefit of the counties of Burke, McDowell and Caldwell, and not for the public good — the improvement of the navigation of the streams therein named, as their improvement for such purpose is not mentioned. The duty of this "board is to remove driftwood (that may gather at shoals on said stream when the water is low, so as to obstruct fords used for public and private crossings, or pond back the water) at any point on the Catawba River," etc. And this board is to provide for the ascertainment of the number of logs floated and to fix the charge thereon; and "after paying for keeping the shoals as aforesaid and for ascertaining the number of logs floated, any residue of the fund arising from said tolls shall be divided among said counties." This board is to report to the commissioners of each of the counties the respective part of dividends that belong to it, and the commissioners shall "assess the same" and enter up judgment for said amount against the parties assessed, and execution shall issue thereon "as for other tax assessments." This act was passed in the spring of 1897, and under its operation the plaintiff was taxed $275.50 in the spring of 1898, and his property advertised for sale. But few private business enterprises in this State can stand such an assessment as this. In our opinion, it is in contravention of the provision, Article VIII, section 4, of the Constitution, there being nothing in the act limiting the power or extent of (753) taxation.
But, outside of this provision of the Constitution, we do not believe it can be sustained. It provides for the levy of "taxes or assessments" on private property for private benefit, and not for the public good. It is in conflict with the whole tenor and spirit of the Constitution, and of our institutions. It is an unauthorized exercise of sovereign power in the hands of this new board of commissioners, and we think the judgment of the court appealed from should be affirmed.
MONTGOMERY, J., dissents.
AFFIRMED.
Cited: S. c., 126 N.C. 897.
(761)