
    Augustus R. Wright et al., plaintiffs in error, vs. G. W. Nagle, et al., defendants in error.
    (Atlanta,
    January Term, 1873.)
    Bridges and Ferries — Exclusive Privilege — Jurisdiction of Court-Injunction. — Under the Act of December 5th, 1805, granting to the Inferior Courts of the several counties of this State, jurisdiction to authorize the establishment of bridges and ferries, etc., it was not within the powers of the Inferior Court of Floyd county to grant to any person the exclusive right to build and establish bridges upon the Coosa and Etowah rivers for three miles from the junction of said rivers in said county, nor had the said Court or its successor, the Ordinary,- under any law passed since 1805, any such authority, and the order of the Inferior Court granting the exclusive privilege contended for, is without authority and void.
    Injunction. Inferior Court. Contract. Roads and bridges. Before Judge Harvey. Floyd county. At Chambers. December 11th, 1872.
    Augustus R. Wright and Alfred Shorter filed their bill against G. W. Nagle, Daniel Adams, Hines Smith, as trustee for his wife, and Hugh D. Cothran, containing the following allegations: Some time in the latter part of the year 1850, or the beginning of the year 1851, Alfred Shorter, H. V. M. Miller and Lewis Tumlin, supposing that they *were the owners and proprietors, exclusively, both by the right of prescription and also by contract with the Inferior Court of Floyd county, to all ferry and bridge privileges on the rivers Etowah and Oostanaula and Coosa in and about the city of Rome, and the charging of toll for transportation on the same, and the Inferior Court of the county aforesaid, essaying to build and have constructed certain other bridges in and about said city, materially damaging said privileges, franchises and contracts, filed their bill of injunction to restrain the building of the same. The said case came on for a hearing before Judge John H. Lumpkin, on the 12th day of April, 1851, and the injunction was refused by him. From this decision an appeal was had by the complainants to the Supreme Court of said State, and the- decision below was affirmed, the Supreme Court deciding and holding that said complainants had a good and valid title to said ferry and bridge franchises and privileges, but that the same was not exclusive, and the Inferior Court did have the right to build other bridges and establish other ferries. In the meantime the said Inferior Court had involved itself in contracts for the building of other bridges. These complainants beg leave to refer to the said case and the decision as often as may be necessary for either party, and have not attached a copy of the same because it would greatly increase the record. It is found in 9th Georgia Reports, page 517. They further decided, and it thereby became the law as expounded by the highest tribunal of the State, that if an exclusive grant was intended by the Inferior Court, it ought to have been and must be contained in their contract.
    The Inferior Court having involved itself in liabilities upon contracts for the building, as aforesaid, of other bridges, and especially with one William R. Smith, to be built at Smith’s ferry, on a bluff of lime rock at the upper end of town, across the Etowah, amounting to several thousand dollars, and one at the foot of bridge street in front of the Courthouse; a large part of the funds which had been subscribed failing to be paid, and in view of said decision, and with express *reference to the same, made certain propositions to Dr. H. V. M. Miller as one of said bridge company, and representative of the same, offering, on certain conditions, to grant power to said company, and their heirs and assigns, all bridge and ferry privileges about the city on said rivers for three miles from the junction at the head of Coosa river, and to give to them the exclusive use and control of the same forever, and forever debarred themselves and their successors from establishing any other bridges, or roads, in anywise affecting .or injuring their privileges, a copy of which said agreement is hereto appended marked exhibit, Number 1, and which with the order extending the time for the execution, is also recorded on the minutes of said Inferior Court. It is as follows:
    Exhibit No. 1.
    “EEOYD INFERIOR COURT AT A CALLED TERM, JULY, 1851.
    “By an order of the Inferior Court heretofore passed, subscribing the sum of $500 00, to be appropriated to the erecting of free bridges across the two rivers, to-wit: the Etowah and Oostanaula; and in order more effectually to carry out said object, said Court appointed a committee of five to take up private subscriptions, and to contract for the building of said free bridges upon the faith of the said several sums subscribed; and in conformity with said order, said committee proceeded to take up subscriptions for the aforesaid purpose, and thereupon entered into a contract for building a bridge across the Etowah river; .and after every effort being made on the part of said committee, which has been made known to said Inferior Court, by the petition of said committee for relief, setting forth in said petition that they could not raise money, that those having subscribed for said purpose, on being called on, have refused or failed to pay, and which failure or refusal is likely to inure to the great damage of said committee m the erection of said bridge, therefore they ask of said Court to make some arrangement by which they, the said committee, may be released from heavy expense now thrown upon them by reason of the failure of the citizens of Floyd county to subscribe and pay to said committee. Upon the aforesaid *facts being made known, in order more effectually to relieve said committee, it is ordered by the Court that the following contract be offered to H. V. M. Miller, one of the original bridge company; that for and in consideration of the large' reduction in tolls to said county, and the j'emoval of the new bridge across the Oostanaula up to the foot of Courthouse street, it being the place at which the original bridge on said river was located, or the erection of a new bridge at said place, to be built or removed during the present summer or fall, and then the present bridge to be closed up; and the further consideration of the relief of the first aforesaid committee and Court from all the expenses they have in anywise incurred in erecting the half part of the new bridge now being built at the rock bluff on the Etowah river by one William R. Smith and the committee as aforesaid, and that said bridge shall be completed, provided nothing is hereby done to destroy the remaining half interest of said bridge belonging to said William R. Smith, according to the contract as entered into between the said Smith and Inferior Court, as changed and altered on the 27th day of May, 1851; and for and in consideration of said several causes moving, it is agreed and ordered by said Inferior Court, that franchises and privileges of opening ferries and building bridges, receiving and collecting tolls on the Oostanaula at or near the city of Rome, county of Floyd, be, and the same is hereby vested in and secured to the said H. V. M. Miller, his heirs and assigns forever', and that the franchise and privileges of opening ferries and building bridges, receiving and Collecting tolls on the Etowah rivef at or near the city of Rome, be, and the same is hereby vested in, and secured to said Miller, his heirs and assigns forever, and that the said franchises and privileges on the aforesaid fivers and the Coosa extend three miles from said junction every way, provided the same does not interfere With rights heretofore vested; and the half interest in said bridge, as first aforesaid, is hereby secured to the said FI. Y. M. Miller, his heirs and assigns in as full and complete a manner as by law can be transferred by said Court to said *Miller, so far ap the same is not vested in the said William R. Smith, his heirs and assigns, as set forth in said mentioned contract, with said Smith, bearing date the 27th day of May, 1851. And the said H. V. M. Miller binds'himself, his heirs and assigns, to' keep in good repair the bridges, to-wit: the one at the point designated, as aforesaid, across the Oostanaula, and one across the Etowah at the foot of Broad street, at the city of Rome, county of Floyd, in good repair for the trading public generally; and the tolls and privileges to be equally -extended to the citizens of said county of Floyd, at each of the lespective bridges, according to the basis of tolls agreed upon by said Court.
    “The franchises and privileges heretofore and at present being in an unsettled state, causing much litigation and trouble to all parties, for the relief of which, and the aforementioned •considerations, this charter or contract is set forth to more fully define and secure to all parties their rights; and any omission in detail shall not preclude the aforesaid Miller the full and exclusive privilege within the aforesaid contract to the full and complete franchise, both public and private, against themselves and their successors and others, so far as they are by law empowered, hereby debarring themselves from the privilege of conferring any further privilege and franchise in anywise to individuals, or otherwise, by means of which the aforesaid franchises may be impaired; also, revoking all orders or decrees of said Court in anywise conflicting with privileges and franchises hereby granted, provided the same is not now in use by others.
    “And the said Miller further binds himself, his heirs and assigns, not to erect a bridge or bridges across the Coosa river from the junction to the extent secured in the foregoing charter, nor confer the privilege to any one else whereby it may injure the interests of the city of Rome.
    “Four-horse wagon, cotton or other produce for market, thirty-five cents; four-horse wagon, cotton or corn, fifty cents; two-horse wagon, cotton or corn, twenty-five cents; two-horse carriage and barouche, forty cents; buggy and horse, twenty cents; man and horse, ten cents; footmen, five cents.
    *“And the tolls imposed on the citizens of the county of Floyd shall be as follows, viz: Four-horse wagons, twenty-five cents; two-horse wagons, fifteen cents; close carriages, twenty-five cents; barouche, twenty cents; buggies and ■one-horse wagons, ten cents; wood, fodder, shucks, oats, bricks, market provisions, not to exceed five per cent, on the value of the load; four-horse wagon load of lumber, to and from, twenty •cents; two-horse wagon load of lumber, to and from, ten cents; going to and from church on Sunday, free upon all the bridges.
    “It is therefore agreed by the said Inferior Court and the said H. V. M. Miller, that the foregoing contract for the more faithful and full compliance of the same, be signed by said Inferior Court and said FI. V. M. Miller, and the same be entered upon the minutes of said Court.
    (Signed) “J. M. Spullock, j. i. c.
    “Dennis Hills, j. i. c.
    “Wm. T. Price, j. i. c.
    “F. I. Sullivan, j. i. c.
    "H. V. M. Miller, [l.s.]”
    “Whereas the Inferior Court of Floyd county, having heretofore granted a charter to H. V. M. Miller, his heirs and assigns, for the purpose of' erecting bridges across the Etowah and Oostanaula rivers near the city of Rome, and application being made for an extension of one of the stipulations of the charter, by the terms of the aforesaid charter the bridge across the Oostanaula was to have been completed during the summer and fall of 1851: Ordered by the Court, that the time for the completion of the bridge be extended until the first day of January, 1853, nothing in this order to be construed so as to alter or change any other stipulation or requirement of the aforesaid charter, this October 14, 1851.
    (Signed) “J. M. Spullock, j. i. c.
    “Wm, T. Price, j. i. c.
    “F. I. Sullivan, j. i. c.
    “Dennis Hills, j. i. c.”
    *These complainants show that the aforesaid agreement, thus signed and executed, together with the modifying order, constituted a valid contract between the said Miller and said Court, and under the Constitution of the United States could not be impaired, even by legislative action without just compensation. Shortly after said contract was made, to-wit: September 24th, 1851, and on May 5th, 1853, Alfred Shorter then, and at the time of the contract, one of the company with said Miller, purchased for a valuable consideration, the entire interest in said franchises and privileges, and proceeded in the-utmost good faith to carry out his part of the contract. One of the considerations was, that the new bridge built across the Oostanaula at the junction of that river with the Etowah, and like the bridge across that river, at or near the foot of Broad street, should be removed some half mile up said river Oostanaula, at the foot of Bridge street, fronting the Court-house, or that it should be closed up, or a new one built. The said bridge-had just been completed, was covered in and set on excellent and double stone pillars, and was of the value of $12,000 00 or $15,00000, or some such sum. This, by the contract, became a loss to said Shorter, except a few hundred dollars for which the lumber sold when pulled down, as it shortly afterwards was. The said Shorter built a new and substantial bridge in front of the Court-house, as he had contracted to do, on double stone pillars, of the like value. So that what he contracted. to lose, and what he contracted to do in this matter alone, cost him some $25,000 00 or $30,00000, or some such sum.
    In addition to this, the said Miller had assumed to take the place of the Court in a most improvident contract with William R. Smith, which said Court had made, and this the said Shorter, by his purchase of the entire interest, did assume. Said bridge was partly constructed, but was situated at a narrow place in the river, with one end on a steep bank where the water swept with great force, and before it was ready for use, the said bridge was washed away by a flpod and came well nigh taking the bridge at the foot of Broad street along with *it, and another effort being made at the same place, fell down. The said William R. Smith was satisfied with his experiments and never proposed to renew said building. His contract with the Court was only for twenty years and has expired. The contractor, Shorter, by assuming this improvident contract for the Inferior Court, lost several thousand dollars more, thereby saving the people of the county harmless.
    In addition to these circumstances, the said Shorter, or those under whom he claimed, contracted to keep for the use of the people of Floyd county and the city of Rome, at his and their own expense, free bridges for all on foot and horse at all times, and all carriages going to and from the church on Sabbath, and for but small tolls at other times, and did reduce the tolls greatly in accordance, with said contract, thus making a most judicious contract for the people. And further consented to a reduction of tolls on their former contract with the Inferior Court, amounting, in a few years, to -thousands of dollars, which was done in pursuance of their contract,, which by an appeal to the Supreme Court of the United States from the decision of the Supreme Court of the State of Georgia, they had reason to believe they might have avoided, as also, the other disadvantages of the contract.
    These complainants show that at great labor, trouble and expense, the obligations of said parties contracting with said Court ■were fully and faithfully performed by them, and have since been by their assigns, and that those under whom they claim and themselves, have been in the peaceful and quiet enjoyment of exclusive privileges under said contract for over twenty years.
    Your orators show that on the 14th day of May, 1862, Augustus R. Wright purchased of Alfred Shorter, then sole owner of said franchises, the one-half interest in the same at and for the sum of $25,000 00, and as such joint owners, the said parties, the present complainants, have discharged their obligations, keeping bridges good and safe, for the use of the public and people of Floyd, on the terms aforesaid, except as hereinafter specified. ■ During the late war between the States *of the South and the Federal Government, the Confederate troops, upon evacuating Rome, burnt both bridges, to-wit: on or about the .... day of ...., and they so remained to the close of the war. Nevertheless, immediately upon the evacuation of the city by the Federal forces, at great hazard and some considerable expense, complainants put in good ferry boats and passed the people over, the same being almost a total loss to complainants for, down to the surrender, they continued to take the Confederate currency, which was of little more value than the paper upon which it was printed or stamped.
    These complainants show that after peace was declared and when the country was almost wholly exhausted of means, they •were informed that unless they proceeded to rebuild, and that at once, the Inferior Court would proceed to let out the franchise to other parties, and this, too, notwithstanding complainants had put two boats on one river for the transportation of the people, because, even at this, persons and wagons were blocked upon the bank and compelled to wait for hours. Complainants, at heavy cost, proceeded at cnee to rebuild both bridges; and, whereas, before there had been single tracks, they proceeded now to make them wide enough for carriages and wagons to pass each other on the bridges, and this at considerable increase in cost, and when there was no legal obligation to do so; the said bridges put upon their previous stone pillars, costing complainants somewhere between $12,000 00 and $15,000 00.
    And complainants charge further, that said Inferior Court, and their successors, and the present road commissioners have again and again, in various ways, recognized the franchises and privileges of complainants under said contract.
    Complainants show that, some time ago, in the beginning of the present year, a company, designating itself as the South Rome .Company, purchased a farm of about three hundred acres, lying on the Etowah river, opposite and against the city of Rome, and some three or four hundred yards above the bridge across the Etowah, owned by complainants, with the avowed intention of speculating on the same, by laying it off *into a town and selling lots, and in order to do this successfully, gave out that they would build a bridge at the end of Howard street, in the city of Rome, across to the opposite bank owned by them. Alfred Shorter was one of this company at its formation, expecting and believing that some satisfactory arrangement would be made by purchase or otherwise, of himself and his joint owner, Augustus R. Wright, of the privilege to build a bridge, but no arrangement was made, and the said company resolved to build a bridge at all hazards, which, when the said Shorter "understood, he sold out his interest in said farm, determined that his franchise should not be' interfered with.
    Said company, as complainants are informed, is now composed of G. W. Nagle, Daniel Adams, Hines Smith, as trustee for his wife, and Hugh Dickson Cothran, the present Mayor of the-city of Rome, all of the county of Floyd and city of Rome. Complainants show that the company declare they will build said bridge, either as a free bridge for the public or as a toll bridge, and have proceeded to erect, on wooden pillars, two spans of wood across the said Etowah, at the foot of Howard street, and on said street, as complainants are informed; by whose permission complainants know not. Complainants suppose, that in pursuance of.their declarations and plans, they will go on to finish the same for the use of the public, either as a toll or free bridge, the same being less than three miles from the junction of the Etowah and Oostanaula, and therefore within the franchise of complainants and which, if permitted to be done,, would greatly injure and impair the rights and franchises- of complainants. And though complainants might sue them at law, they are not sure they could respond in damages, as complainants consider said damages must necessarily be heavy, and if capable of responding now, complainants have no certainty they will continue so, and even if they did, it would require a great multiplicity of suits at law continuing for an indefinite number of years.
    In tender consideration whereof, and inasmuch as complainants *are remediless at law, and can only have complete and full remedy in a Court of equity, where matters of this sort are properly cognizable and relievable, to the end, therefore, that justice may be done in the premises, and such decree be had as is just and equitable, and particularly that said defendants, their agents, confederates and servants, be perpetually and forever enjoined from opening said bridge to the use of the public, either as a free bridge or a toll bridge, or doing any other act in or about the matter whereby the franchise and privileges conferred by said contract may be injured or impaired. And if the road commissioners of the county of Floyd, who, by law, now represent the Inferior Court, (abolished,) should at any time be applied to, to open and establish roads thereto, they may be perpetually a,nd forever enjoined, according to the terms of their contract.
    May it please your Honor to grant unto. complainants the State’s most gracious writ of injunction, restraining the defendants, under a penalty to be therein inserted, from opening or using said bridge for the public as a free bridge or toll bridge, till the further ordér of this Court and the final hearing, and also the State’s most gracious writ of subpoena directed to each of said defendants, Nagle, Smith, Adams, Cothran, to be and appear at the next Superior Court to be held in and for said county, then and there to stand to and abide by the order and decree of the Court.
    Complainants do not ask for defendants’ answers, because they are fully able to prove the facts alleged.
    The only portion of the defendants’ answer material to an understanding of the decision, is as follows:
    Respondents say, that before the completion of said bridge, and before said bill was filed, they had prepared a petition to the commissioners of roads and 'revenue of Floyd county, who are now by law vested with the exclusive jurisdiction over the subject, for the opening of said bridge to the public, and the establishment of the same as a public bridge, and with the prayer that said commissioners adopt certain streets on respondents’ property as a highway, and hereafter lay out, *as prescribed by law, other highways leading to the same, for the benefit and advantage of the public, fixing, such rates of toll as will simply pay the interest on the investment, or cost of the bridge, and as will keep the same in repair. And that said application was made to said commissioners at the December term, 1872, and the prayer of respondents was granted.
    Respondents further show that on the 16th day of April, 1872, while said Shorter was a member of said company, then known as the South Rome Town Company, now as the East Rome Town Company, respondents gave to said complainant, A. R. Wright, written notice of .their intention and purpose to erect said bridge, and requested him to make known his objections to the same, if any he had. To which said notice said Wright made no reply, either verbal or written, and suffered respondents to proceed with the work until said bridge was near completion before he filed his said bill. Respondents submit, that it is now too late for him to enjoin its use, either as a public or private bridge, he having allowed the building thereof, and having waived his suit until respondents had expended about $7,000 00 on said bridge, and until the same was within a • few days of completion, the same having been completed within five days after said bill was filed. And the said Shorter cannot enjoin the use of said bridge for either of said purposes, he being one of said company when said notice was given, and acting with it, in the giving thereof. The said bridge does not consist of two wooden spans alone, but is a first-class truss bridge, built in the best manner, and with the best of material, wood and iron, and cost, with the approaches, between $8,000 00 and $9,000 00, and is really worth more to-day, than either of complainants’ bridges, with their stone piers. No member of said company, while said Shorter was one thereof, ever expected, understood or agreed, nor did they, or either of them, ever have any notice that they were, or would be enjoined, or expected to pay said complainants, or either of them for the privilege of building said bridge. On the contrary, it was understood that they would be allowed, so far as said Shorter was concerned, to proceed to execute their purpose, *in this respect, without let or hindrance. It is admitted that the bridge built by respondents is within three miles of the junction of the Etowah and Oostanaula rivers. Respondents deny that they are not responsible for any damages complainants may sustain. Collectively, they are worth over $100,000 00, and are amply able to pay any damage complainants may sustain, but they submit to the jurisdiction of the Court, without demurrer to complainants’ bill, that their rights and the right of the public may be adjudicated and determined. Respondents deny that said complainants have any exclusive rights whatever, to erect a bridge or bridges, as claimed, and to charge and collect toll thereon. Because they say that said Inferior Court, if they granted any such right, had no authority'to do so, and such grant is void, and if they did have such authority by law it was limited to fourteen years, by the statutes of Georgia, and now by the Code of Georgia to twenty years; and such franchise or contract as claimed, if ever valid and binding, has expired by law and is now extinct. And if said complainants claim under a contract with said Inferior Court, said Court exceeded its authority in making such a contract, and if any one is liable, said Justices, as individuals of the county of Floyd, are liable for the breach thereof^ and no remedy c? be had against respondents by injunction or otherwise. And that when said alleged charter was granted or said to have been granted, to-wit: in 1851, said Justices of the Inferior Court, sitting for county purposes, had no authority to incorporate any company for any purpose whatever, and ■ that said Justices had authority to incorporate only when sitting as a civil Court for the trial of civil causes, as provided by the Constitution of the State. That as a quasi corporation, sitting for county purposes, they were only authorized to license and open to public use, and to discontinue bridges, ferries and roads, and not to incorporate, or grant exclusive privileges to any company; and while sitting as a civil Court, under the Constitution, they were bound to incorporate any company that complied with the law authorizing incorporation, and could not therefore exercise any *authority,' or grant any exclusive privilege to any company or person that would abridge their power, or the powers of succeeding Courts. That said Court was invested with no legislative or quasi legislative authority or power whatever. But that since the Constitution of this State was amended in 1856, so that the General Assembly of Georgia debarred themselves from incorporating bridges and certain other companies, said Court and its successors, and now the commissioners of roads and revenue of Floyd county, are vested with legislative or quasi legislative and exclusive powers on this subject, and therefore, the incorporation of respondents’ company or the order making said bridge and streets public has all the authority, sanction and effect of an Act of the Legislature of this State, and cannot be interfered with by the unauthorized and void act of any public functionary of this State.
    Respondents further show that the building of their bridge, and its use, either as a private or public bridge, in no way interferes with the actual or physical use of complainants’ bridge by them, or with their collection of tolls over the same, and that the public good, and the interest of the people of the city of Rome is greatly subserved and accommodated by the act of the commissioners in making the respondent’s bridge a public bridge, and in opening suitable highways to the same.
    Respondents further answering say, and so do said, commissioners, by their attorneys, that said injunction cannot issue against said commissioners, or operate on them, for that injunctions can only issue against the parties, and not against a Court having jurisdiction over the subject matter. •
    Respondents further say that they are authorized by law, without any action or order from said commissioners, to use said bridge for themselves, and so are their assigns who may become joint owners in said lands and bridges and streets, or in any part thereof, and of this they ask the judgment of the Court.
    The injunction was refused by the Chancellor, and complainants excepted.
    *Underwood & Roweee; Wrigi-it & Featherston, for plaintiffs in error.
    Smith & Branham, for defendants.
    
      The right to establish a public bridge is a franchise which can only be granted by the State: 6 Ga., 130 (1;) 7 Ga. 352; Greer vs. Haugabook, 47 Ga., 282. The Justices granted the charter, so far as they had authority to do so: See exhibit No. 1. They seem to doubt their power in the premises. The complainants made no. application for license, according to their statement, in the bill; but defendants say they procured the charter, and it was not the voluntary offering of the. Court. They gave no bond for the performance of their duties and obligations. They cannot-be compelled to execute their part of their alleged contract, which they claim endureth forever. The contract is nudum pactum unless the Justices had the power to grant exclusive privileges, not only in fact, but in law: 1 Par. on Con., 383 and note 3. The proprietors may discontinue, and therefore the Justices cannot enforce the contract: Code, 729; 25 Ga., 459. The commissioners of roads and revenue of Floyd county have licensed the defendant’s bridge as a public bridge, but not as an exclusive one, as far as they have authority to do so, and have declared it a public necessity in the strongest terms. It was in their discretion to do so. They were clothed with “exclusive jurisdiction” “in establishing, altering and abolishing all roads, bridges and ferries in conformity to lawSee Act 1871-2, page 226 and 41 Ga., 222. And therefore no injunction can issue against them: See 18 Ga., 475; 20 Ga., 134; Story’s Eq., 875. The Justices of the Inferior Court exercised the powers of three distinct institutions. A Court sitting semiannually for civil business, under the Constitution, with certain powers: Cobb’s Dig., 1122. A Court of Ordinary. A body sitting for county purposes and as a quasi corporation. And while sitting for one purpose they could not exercise the powers of the other Courts: 9 Ga., 485; 3 Kelly, 40, (3.) While sitting as a civil Court they had power *to grant charters: Cobb’s Dig., 542; Act 1843. But they could not charter for a longer period than fourteen years, until the adoption of the Code, when the time was extended to twenty years: Act 1843, sec. 285. While sitting for county purposes, they only had power to license and not to charter. Authority to establish a bridge, means only authority to license. The Code uniformly uses this term: Code, sec. 710, par. 3, 720; 6 Ga., 144. The word license means permission: 11 Mich., 45; 6 Wheat, 190; 5 Hill, 211; 5 Cowen, 462. “Highway,” or “road,” includes bridges upon the same: Code, sec. 5. They had express power to open roads. To discontinue such roads, etc., as may be found useless, and to alter roads, so as to make them more useful and convenient, as often as occasion shall require: 20 Ga., 129-30; 9 Ga., 478. And they and their successors have the same power over bridges: 20 Ga., 364; Code, 733; Acts 1871-2, 226, (51.) For bridges erected under an Act of the Legislature, or under order of the Inferior Court, are public bridges: Cobb’s Dig., 944, (5;) Code, 707. The same is true of roads: Cobb’s Dig., 943, (1;) Code, 638. Both may be discontinued as public bridges or roads by the Court. And the owner of a public bridge may discontinue it: Code, 729. Before tbe adoption of the Code, the Court or the licensee might have discontinued at any time, at their option. For the license was not granted for any definite period. But by the Code the license is limited to ten years: Code, 710.
    The Justices had no power to grant exclusive privileges unless that power is “found in and derived from the laws of the land, and exercised in the mode and manner that the law prescribes:” 12 Ga., 424 ; 6 Peters, 729, U. S., vs. Arredondo; 9 Cranch, 87; 10 Ga., 206; 41 Ga., 376, Dart vs. Orme; 8 Conn., 254, Willard vs. Killingworth; 10 Conn., 442, Higley vs. Bruce, affirms Willard vs. Killingworth; 2 Kansas, 127-8, 134, Commissioners of Shawnee Company vs. Carter; 31 Vermont, 153, State of Vermont vs. Towns of Williston and others; 30 Md., 218, Horn vs. Mayor and City of Baltimore; 8 Greenl., 365, Day vs. Stetson; U. S. An. Dig., 2 vol., *423, (1;) 11 Ohio, (N. S.) 183, Blanchard vs. Bissell; U. S. An. Dig.; 1861, 147; 7 Cranch, 366, Lee vs. Munroe & Thornton; Story on Agency, 307 (a.) In some cases public agents and officers, who exceed their authority, make themselves individually liable: 1 Par. on Con., page 106.
    The powers of the Justices to establish bridges is contained in the following statutes: Act 1799, Cobb’s Dig., 944, section 11. This section makes bridges so established public bridges, and gives to the Court “full power and authority to appoint the places for erecting public bridges:” Act 1805, page, 945, section 1. It is under this section that complainants claim their franchise. By .it the Justices are empowered if they should deem it necessary, on application 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, etc.: “Provided, that the Begislature shall at all times retain the power of making such alterations in the establishments made by the Justices of the Inferior Court as to them may seem proper:” Act 1818, page 952, section 29, authorized the Court to act “in term time while sitting for ordinary purposes, or at any special meeting held for that purpose.” These acts embrace the whole law on the subject, and from it the following conclusions are made: 1st. The Justices were only authorized to Act “on application being made.” 2d. The word used is established. 3d. The establishment of bridges was discretionary with them. 4th. They were authorized to establish as many bridges as thgy thought necessary, other than those already established by law. 5th. There is no express authority to establish one bridge only, with exclusive privileges within any given limits. Such authority cannot be found in the words of the Act, nor can it be reasonably implied from them. On the contrary, the authority to establish such other bridges as they may think necessary expressly negatives such a construction. 6th. By the proviso, it is clear that their powers were limited, and that the-power to make exclusive grants remained in the Legislature. It was not until the 12th of December, 1855, when *the Constitution was amended, that the Legislature divested themselves of the power to establish bridges: Acts 1855-6, page 106, section, 2. The only authority the Justices had to make contracts in reference to bridges, related to the building of county bridges. And the mode in which that power should be exercised and money raised to pay for the bridge is specifically prescribed: Cobb's Dig., 958, section 65; Code, 709, 711.
    Public grants are construed most strongly against the grantee. The grantee takes nothing by implication, and can claim nothing not expressly set forth in the Act under which the grant is made: 13 How., 81; The Rich. R. R. Co. vs. The Louisa R. R. Co.; Code, 2331, 2208; 11 Peters, 544, Charles R. B. Co. vs. Warren B. Co.; 8 Iiow., 579; 1 Kelly, 533; 3 Kelly, 31, (3) ; 5 Ga., 561, powers of corporation; 7 Ga., 221; 9 Ga., 517, (3,) (4,) 524, 213, 221, 475; 8 Bush., 31; 9 N. Y., 451, 452, 453, Auburn & Cato Plank R. Co. vs. Douglas, and authorities quoted. In this case, it was held that the grantees take nothing by implication, either against the power making the grants, or against other corporations or individuals: See headnote, 444 ; 6 Wend., 85; 25 Ga., 445, 457, McLeod et al. vs. The Sav. & Albany R. R. Co.; 27 N. Y., 92-3; 21 Penn., 22, The Penn. R. R. Co. vs. The Canal Com’rs; 30 N. Y., 44, 53, 62, Fort Plain Bridge Co. vs. Smith; 4 Green, (Iowa) 532; Dillon on Municipal Cor., 124, 102, 3, 4; Cooley on Const. Lim., 196-7, and note. In the case in 13 Howard, 71, The Richmond, Fredericksburg & Petersburg Railroad Company vs. The Louisa Railroad Company, the Legislature of Virginia had pledged itself, in the charter of the Richmond Railroad Company, for a consideration which had been performed, not to allow any other railroad to be constructed within certain limits, the probable effect of which would be to diminish the number of passengers on that road., or compel the company, in order to retain such passengers, to reduce the passage money: 16 Plow., 524, head-note, Fanning vs. Gregoire & Bogg. Unless exclusive privileges are granted, no reservation of the power of repeal is necessary to be made in the grant: Ibid. 11 Leigh, 70, 1, 2, 3, 4, Tuckahoe Canal *Co. vs. Tuckahoe R. R. Co.; 35 Miss., 189; 4 Iowa, 532, McEwen vs. Taylor; 1 Black, 436, 446, Jefferson Branch Bank vs. Skelly; 6 Paige, 554, 564-5, The Mohawk Bridge Co. vs. The Utica & Schenectady R. R. Co.; 12 La., 649, Curtis & Phelps vs. The Parish of Morehouse; 31 Miss., 679, 699, Collins et al. vs. Sherman; 3 Wall, 210, Turnpike Co. vs. The State. Unless the whole legislative power was delegated to the Justices, and unless the Justices had exclusive powers and authority, they had no power to grant exclusive privileges to others. Authority to establish bridges and ferries does not convey the power to grant exclusive rights. And especially is this true, if the Justices were authorized to establish as many bridges, other than those already established by law, whenever and wherever they may deem such bridges necessary: 25 Wend., 628, Costar vs. Brush; Charter N. W. 1730, sec. 15; 8 How., 579, Mills vs. Co. of St Clair; 7 Ga., 352,Williams vs. Turner; 6 Ga., 130, (3) 144; 15 Pick., 243. “An Act incorporating a town and vesting the authority of a town with certain powers does not divest the State or County Courts of powers vested in them by the general law, unless the Act of incorporation declares the powers in the corporation to be exclusive :” Baldwin vs. Green, 10 Miss., 410; Harrison vs. State, 9 Miss., 530; U. S. An. Dig., 1848, 75, 195; 10 How., 511, East Hartford vs. Plartford Bridge Co.; 13 111., 413, 424, 428-9, 430; 9 Mo., 530, Plarrison vs. The State of Missouri. The power is denied in this case, .because the word exclusive was omitted from the Act of the Legislature: 21 Cal., 238, 252-3, Fall vs. County of Sutter; 25 Conn., 31, The Norwich Gas Light Cq. vs. The Norwich City Gas Co.; 4 Cold., 406, Memphis City R. R. Co. vs. Memphis; U. S. An. Dig., 1868, 128, (175.) Held in this case, “A municipal corporation cannot, by contract, confer upon individuals the exclusive right of constructing and operating street railroads on the public streets for their own benefit and use:” 2 Porter, 296, Dyer vs. The Tuscaloosa Bridge Co.; 10 Ala., 38, The Mayor and Council of Columbus vs. Rogers et al.
    
    In this case, the legislative grants of Georgia to Columbus, and of * Alabama to McDougal, who conveyed to the city of Columbus, were exclusive.
    The Inferior Court held a public trust, a limited legislative power, and could not, by any exclusive grant it might make, impair its exercise, by themselves or their successors, restrict its use or part with its power: 10 Plow., 535-6, East Hartford vs. Hartford Bridge Co.; 6 Wheat., 596-8; Goszler vs. the Corporation of Georgetown; Dillon, 110, 124-5, 541-2, 305, 322-7; 5 Cowan, 538, Presbyterian Church vs. The City of New York; 12 Illinois, 1, County of Richmond vs. the County of Laurence. It was held in the case in 10 How'., 535, that towns and counties possess only public, political or legislative power, to be exercised solely for the public good, subject at all times to legislative control: 17 Barb. Sup. Ct. Rep., 435, Millian vs. Sharpe; 27 N. Y., 611, 622, same case; 20 N. Y., 370, Aiken vs. the Western R. R. Co.; 32 Maine, 431,'Green vs. the City of Portland, head-note. “A corporation has no powers except those expressly conferred and such as are necessary for the exercise. A municipal corporation holds its powers in trust and cannot delegate them. The trustees of the town of Oakland had, by stat., 1852, power to make and maintain wharves, etc. They granted to A B the exclusive right to maintain wharves for a term of years. Held, that the grant was a transfer of their corporate power, and therefore void. That the city of O., which succeeded to the town of O., could have the grant canceled and the wharves surrendered by A B:” 13 Cal., 540, Oakland vs. Carpentier; U. S. Dig., 1860, 225. To same effect is the case of the State of N. Y. vs. the Mayor and Aldermen of the City of N. Y., 3 Duer, (N. Y.,) 119; U. S. An. Dig., 1856, 158, (194.) This was an exclusive grant to a railroad company over Broadway: 2 T. R., 169; 25 Conn., 19; 1 Strange, 299; 2 Strange, 1161; 7 Cowan,' 585, 606-7, Stuyvesant vs. The Mayor of N. Y.; 6 Dana, (Ky.,) 43, 47, head-note; Carter & Arnold vs. Kalfus and Watts. In this case the ferry was, by statute of Kentucky, exclusive with one and one-half miles, except when the public interest required others. A second *grant was sustained: 18 Ohio, 262; the State ex rel. vs. the Cincinnati Gas Light and Coke Company. This case is conclusive on the points made in complainant’s bill. See the whole, case: 23 Howard, 435, Dillon on Municipal Cor., 78-9 and 80; Cooley on Const. Lim., 206-7 and note. In the case in 6 Ga., 130, the prayer in the bill is similar to the prayer in the case at bar: See page 134.
    The case in 9 Georgia Reports, page 517, Shorter et al. vs. Smith, contained most of the points made in this case. Three grounds of relief were set forth in that case, viz: 1. A prescriptive ferry right across both rivers. 2. By virtue of a solemn contract between the complainants and County Court, it was claimed the Court was bound for a valuable consideration to continue to complainants the sole and exclusive use of their franchise. 3. The right was claimed because the contract had been recognized by all preceding Courts: See page 521. These questions were decided adversely to complainants in that bill: See page 530. Section 5, 9 Ga., 517, does not hold that the Inferior Court may grant exclusive privileges. It is not so set forth in the head-note or in the body of the decision. This question was not in that case. In every case in which private persons or corporations have maintained exclusive rights against the public, the grants were issued by the Legislature of the State or by the Crown, or by some officer or corporation vested with the whole legislative authority and power of the Legislature or of the Crown. ' And it is extremely seldom that such authority is'ever delegated by the State. In such cases the Legislature cannot resume the franchise without compensation, and in such cases only is this the rule. The provision for the admeasurement of distances, by the meanderings 'of the stream, in cases where persons hold exclusive bridge or ferry privileges, contained in Cobb’s Dig., page 957, sec. 63, and in the Code, sec. 722, was originally a provision of a local act, and referred only to grants by the Legislature: See Act 1841, Pam. 187. It was made in view of such grants only. It is safe to say, with the exception of the case at bar, there has never been an exclusive *grant made by any Inferior Court of this State. That portion of the decision in 9 Ga., 517, bearing on this question, was made solely with reference to Legislative grants: See pages 526-7, and head-note 5. Can the Inferior Court resume a franchise and make compensation? The statute does not seem to give airy such authority. The franchise of the West River Bjudge Company, which was granted by the Legislature, and which was exclusive, and the bridge itself was taken and made a free bridge by the County Court of Windham county, Vermont. But the statute of that State gave the Court express authority to do so: See 6 Howard, 507. Only a land owner can move for compensation in Georgia. The Court cannot move, nor can any adverse party: Code, 676. Such a grant as complainants claim is against the policy of the law. It is to them, their heirs and assigns forever. We have seen the Act of 1843 limit charters to fourteen years,- the Code to twenty years, and that the Code limits such licenses to ten years. All patents and copy rights are limited. In the case in 11 Peters, the charter was limited to seventy years, and that was held against the policy of the law. How stands; then, the case of a perpetual grant made by the Justices, without authority of law, and clearly beyond their powers P The use of defendant’s bridge interposes no physical obstruction to the enjoyment of complainants’ bridge by them, or by the public, or the collection of tolls over the same. Bridges are not authorized for remunerative purposes to the owners, but for the benefit of the public, whose interest is their first and paramount object: American Haw Review, October, 1872, page 238; 8 Bush, Piatt vs. C. & C.. Bridge Co., 31; 2 Cowen, Sprague vs. Birdsall, 419; 2 Porter, 226, Dyer vs. Tuscaloosa Bridge Company; 7 Pick; 11 Peters, 420, Charles R. B. Co. vs. Warren B. Co.; 1 Duval, 135, Richmond & Hex. Turnpike Road vs. Rogers; 16 Conn., 149, Plartford Bridge Co. vs. East Hartford; 17 Conn., 79, Hartford Bridge Co. vs. East Hartford; 10 How., 51, Hartford Bridge Co. vs. East Hartford; 17 Conn., 454, Enfield Bridge Co.; 29 Conn., 210, Hartford
    Bridge Co. vs. Union Ferry Co.
    
      
      Public Ferry — Exclusive Franchise — Power of Legislature and County Authorities. — The grant to establish a public ferry does not carry with it an exclusive right to a ferry franchise; and a ferry having been established for public convenience, it is entirely within the power, originally of the legislature, now of the county authorities, to authorize the establishment and maintenance of such other and additional public ferries on the same stream as may be considered necessary to subserve the public interests. Hudspeth v. Hall, 111 Ga. 515, 36 S. E. Rep. 770, citing principal case. See principal case in Ency. Dig. Ga. Rep., vol. 3, p. 544.
      Injunction. — On this question, see the principal case cited in Wright v. Nagle, 58 Ga. 606; Shorter v. Nagle, 63 Ga. 162.
    
   *McCay, Judge.

Whilst we are very clear that our judgment in this case is right, we cannot forbear expressing our regret, that the enforcement of a stern rule of law operates hardly upon the plaintiffs in error. We feel satisfied that the plaintiffs have, at any rate, in their action since the war, supposed they had this exclusive right, and that they have expended money under that impression, which, perhaps, they would not have expended had they been aware that their contract with the. Inferior Court for this exclusive right was invalid. And were it possible for us, without violating the law, to sustain their grant, we would cheerfully do so. But, in our judgment, the Inferior Court of Floyd county had no authority to make such a grant, and to recognize it would be to establish a dangerous precedent — both because it would be the making of a law by this Court, and because such a law would be in itself a bad one, contrary to good policy and against the public interest. The Act of 1805, section 1, is as follows: “The Inferior Courts of the several counties of this State are hereby empowered, if they should deem it necessary, on application 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,” etc. Provided that the Legislature shall at all times retain the power of making such alterations in such establishments made by the Justices of the Inferior Courts, as to them shall seem proper. The plaintiffs in error claim that they have the exclusive right to build bridges over the Coosa and Etowah rivers, for three miles in each direction, from the point of their junction in Floyd county, and they claim this by virtue of a contract made with them by the Inferior Court of Floyd county, in June, 1851. Upon this contract they say they have acted from that day till this, expending their money and doing other acts which they would not have done except for that contract.

As we have said, we think the abstract equity of the matter *is with the plaintiffs, and it is only because we think the Inferior Court had no power to make such a rontract, or to bind the public by their action in it, that we feel constrained to affirm the judgment of Judge Plarvey refusing the injunction.

The Inferior Court (now the Ordinary) is not and never was the public. It is the mere agent of the public, clothed by law with authority to do for it certain specified acts. It is a settled rule, not only in this State but in all the States, and in England, that such public agents have only such powers as are granted them; that they take nothing by implication, and that the law granting their powers is to be strictly construed: 13 Howard, 81; 1 Kelly, 533; 3 Kelly, 31; Kelly, 561; 6 Wend., 85; 27 N. Y., 92; 21 Penn., 22; Cooly’s Con. Lim., 196-7, and note.

The Act of 1805 simply confers upon the Inferior Court the power to authorize the establishment of bridges and ferries, and to fix the rate of toll. The power to grant to any one an exclusive right, if it exist, must be derivable from this power to establish. Can such a power be so derived, under any rule, con-, sistent with the authorities? When this grant was made, (1851) there existed, by the laws of this State, (Act of 1850, Cobb’s Digest, 958,) a right in the owners of the land above and below this bridge to build, at their pleasure, bridges over it, on their own land. Could the Inferior Court, under this general power, quietly, at their office, convey to these plaintiffs this right, then belonging to other people? We think not. The right to grant an exclusive privilege to build a bridge does not, either m its words or by any fair construction, arise from a mere right “to authorize the establishment of bridges.” It is not a necessary incident, since it is only in few cases that such exclusive privilege is granted. It may be true that there are cases where parties would be unwilling to erect bridges unless they could get a guarantee that no one else should build within two, or perhaps ten miles. But to infer the power from this would open a very wide scope to the powers of the county officials, since it is just as true that there *are cases where a bridge could, perhaps, be'put up if the builders could be exempt from tax — have a right to issue bank bills, etc., and thus, under the power to establish a bridge, the Inferior Court would draw to itself the power to do almost anything.

The right to have a franchise is one thing; the right to deny to any others, for all time, to have another franchise is another and quite a different thing. The one is a grant, the other is a contract that the public will not grant to others. They are such rights, different in nature and character, and it may well be that the Inferior Court had full power to grant the one and no power to do the other. The Inferior Court was a public agent; it had a duty cast upon it' to authorize such bridges as it then thought necessary. The duty was a continuing one. It existed after this bridge was authorized, it continues still, and it was not, and is not, in the power of the Court to abrogate it.

We have looked into the authorities on this subject and find them uniform. In 6 Wheaton, 597, Chief Justice Marsharr, in discussing the right of a city to regrade streets after it had done acts from which a contract not to regrade was implied, says: “The power tg graduate was a continuing one, given by the Legislature, and was not exhausted by its first exercise.” And Judge Lumpicin, in 23 Georgia, 404, after repeating this same thought, adds, “and any agreement to fetter or clog this power would be void.” Dillon, in his work on municipal corporations, lays down the doctrine broadly, thus: “Powers are conferred on municipal corporations for public purposes, and, as their legislative powers cannot, as we have seen, so cannot they be bargained or bartered away:” Dillon on Mun. Cor., 110, and cases cited. That the power to grant an exclusive right is not derivable from the power to establish, is settled by a very numerous body of authorities. Boroughs and towns (much more mere quasi corporations, like county boards and overseers,) have only authority to bind the public when the authority is expressly given: 12 Ga., 424 ; 6 Peters, 729; 9 Cranch, 87; 10 Ga., 206 ; 8 Conn., 254; 10 Conn., 254; 30 *Maryland, 218; 7 Cranch, 366. In 9 Georgia, 525, this Court, quoting Judge Taney, says: “When a corporation alleges that a State has surrendered for seventy years its power of improvement and public accommodation in a great and important line of travel, along which a vast number of its citizens must daily pass, the community have a right to insist that the abandonment ought not to be presumed, unless the deliberate purpose of the State to do so does clearly appear.”

That the power to grant exclusive rights does not in such cases exist is settled by the following cases: 10 Mississippi, 530; 10 Howard, 511; 13 Illinois, 413-424 ; 9 Mississippi, ....; 21 California, 238. In 25 Connecticut, 31, a city had granted to a company an exclusive right to lay gas pipes, and the grant was held void; 2 Porter, 296; see, also, 18 Ohio, 262; 23 Howard, 435. This case in 23 Ploward is very like the case at bar, and contains the authority of the Supreme Court of the United States upon the very exact question made in this record! There the Legislature had authorized a municipal corporation, as it has here doiie the Inferior Court, to establish ferries. The corporation, in establishing a ferry, granted to the grantees an exclusive right. The Supreme Court of the United States held the grant void, as beyond the power of the corporation. The Act of 1845, Cobb’s Digest, 957, which has been claimed as conferring some additional power on the Court, does not apply to public bridges owned by private parties, and was simply authority to the Court to take any method it saw fit to have its own bridges built and kept in repair instead of the mode -hitherto provided, of a board of commissioners and a bond to keep the bridge up for five years. Nor do we think the change in the Constitution, divesting the Legislature of the power to establish ferries and bridges, and providing that the General Assembly shall confer it upon the Courts, affects the question. The Legislature has not, under this clause, yet provided any authority to a Court to grant an exclusive right and we doubt if it can do so. The truth is,. the existence of such a power is a dangerous one at any rate. One that ought not to pass out of the Legislature, and is greatly *liable to abuse there. By our laws now, the Ordinary may charter a hotel company, a manufacturing company, etc. Can it be that as the Constitution clothes the Ordinary, as an incident to this, with the right to contract that no other company shall be chartered? It seems absurd to say so, and yet this is the inevitable result of the logic insisted upon.

We sympathize, as we.have said, with the plaintiffs in error. It may be that this bridge will hurt their enterprise. But if they have no legal grant, they have no legal redress; it is damnum absque injuria — hurt without wrong — disadvantage without illegality. The public is under no legal duty to them, and has violated no legal right in them. When this is the case, however much may be the hurt, there is no redress. The party hurt took the risk; acted with his eyes open to the probable consequences. Nor was there any thing, either in the case itself, or in the language of Judge Lumpkin in his opinion in Shorter vs. Smith, 9 Georgia, 517, to justify the action of the Inferior Court in making this contract. .The question there was, had such a contract been made? This Court decided not. There was no call for an investigation of the power of. the Court to make it. Nor does the language of Judge Lumpkin intimate that any such power existed. True, he says the Legislature may grant to a local agent the authority to exercise the right' of eminent domain, and adds that such a power in local bodies had always been exercised. And this is very true. The authority to lay out roads is such an authority, and from our earliest history it has been exercised by local bodies. But we doubt if the power to contract away the right of the public to have a bridge over a stream, can be classed under the right of eminent domain at all. At any rate, it is clear that Judge Lumpkin in his remark, was alluding to the right of establishing bridges, which it was contended could not be delegated, and not the right to abrogate the duty, conferred by the Act of 1805. So, too, when he speaks of the Inferior Court as the agent of the Legislature. He is treating of the right of the Court to authorize the laying out of roads and establishing ferries and bridges, and not of any ^authority in the Court to contract that no bridge shall be established within certain limits, beyond the immediate vicinage of the bridge authorized, so as to obstruct the franchise.

Altogether, as we have said, we think the want of power in the Court to make this contract is clear; that the plaintiffs got no exclusive right under it; that their expenditure was at their own risk, and if they have been mistaken it is their misfortune.

Judgment affirmed.  