The opinion
Clark, J.,
dissenting. We are saved any discussion whether this is a floatable stream or not, for it was held in *904 Commissioners v. Lumber Co., 116 N. C., 131 , that tbe Catawba River, at that part of it which is embraced in the statute now before us, is a floatable stream. This Act (1891, chap. 388), recites that decision and provides for the regulation of the use of the stream for floatage purposes.
In State v. Glenn, 52 N. C., 321 , it was held that floatable streams are “ftiblic highways by water” like navigable streams, the only difference being that in floatable streams the bed of the stream is capable of grant to the riparian' owners for such uses as will not conflict with the paramount public right to the use of the stream for floatage. The riparian owner, as such, can have no rights mot common to all others, except over the bed of the stream, to the center, within his boundaries. He can have no possible rights, as riparian owner, above or below his line, for there the riparian rights of the other owners come in. Consequently, as riparian owner, he has no right whatever* above or below his line to the use of the stream for floatage, any more than a land owner over whose land a toll road or canal or other highway runs. The riparian owner has rights of floatage but not as a riparian owner, and only as any other citizen has the right to the use of a public highway, and on the same terms as is granted to all others, whether that be free or on payment of toll. By the accident of location, a riparian owner may have greater need to use the stream for floatage or for navigation (when it is navigable) and greater ease of access. But anyone else, who can get his logs to the stream either by the use of public roads crossing the stream or by permission of some riparian owner to cross his land, when he places his logs in. the stream, has the same right to use the stream. The stream being a ;public hightuay (Slate v. Glenn) he owes no duties or tolls to any riparian owner, and no riparian owner has any superior rights to his, any more than land owner’s adjacent to' any *905 other public highway have superior rights to the use of the highway.
All public highways are alike in this, that their regulation and the terms on which they may be used rest with the people at large who express, and can express, their will only through their representatives in the Legislature, unless when some question is presented direct to them at the ballot box by what is now teamed a referendum. Whether this or any highway shall be free, or whether tolls shall be paid, and, if so, what tolls, is a matter for the Legislature, not for the courts to decide. The riparian owner loses no property rights. He has none beyond his upper and lower lines, and 1» the thread of the stream, and within those limits he has the bed of the stream for such use as he can make of it, but subject to the superior, right of the sovereign to the use and regulation of the stream for all its citizens alike.
The law-making power is confided by the Constitution to the .General Assembly, and no act of theirs can be held invalid unless it plainly and palpably violates some provision of the State or Federal Constitution. No provision of either' can be pointed out that restricts the power of the General Assembly to regulate the use of public highways or to exact tolls for the use of them. There is no requirement of either instrument that work must be done by the sovereign on public highways by water before tolls can be exacted, and that thereafter tolls can be exacted only to the precise amount of public funds so expended. Whether or not this would be a desirable restriction upon the power of the law-making body entrusted with general legislation, the people have not seen fit to place it in the Constitution, and no one else can place such restriction there.
The Supreme Court of the United States has uniformly held that the power of a State Legislature to regulate the *906 use of floatable streams and prescribe tolls upon logs, is unlimited by the United States Constitution, save wben such stream lies in two States, and even then the lower State can place tolls upon logs between any two points in it, and also as well upon log's coming from a State higher up, unless Congress has legislated on the latter subject. In a very recent decision in the United States, Lindsay v. Mullen, filed January 15, 1900, 20 Supreme Court Reporter, 325, is is said, speaking of the Manistee River: “The State can authorize any improvement which in its judgment will enhance its value as a means of transportation from one part of the State to another. The internal commerce of a State — -that is, the commerce wholly confined within its limits — is as much under its control as foreign or interstate commerce is under the control of the general government; and, to encourage the growth of this commerce, and render it safe, the States may provide for the removal of obstructions from their rivers and harbors and deepen their channels, and in other ways. * * *■ And to meet the cost of such improvements, the State may levy a general tax or lay a toll upon all who use the rivers and harbors as improved. Regulation of tolls and charges in such cases are mere matters of administration under the entire control of tire State.”
What the improvements shall be, and what the' rate of toll, whether the tolls shall be greater or less than the cost of the improvement, and whether the agency shall be directly by the State through special commissioners, or (as here) by the agency of the Boards of Commissioners of the riparian counties, or whether the agency shall be by means of chartered “navigation companies” or contractors (for all these methods have been tried), and whether the State shall raise a fund by tolls -to be applied, when raised, to making the improvements, or shall first advance the necessary funds out. *907 of money raised by general taxation, and further, if the tolls prove insufficient, whether the deficiency shall be made good out of the public treasury, or whether, if the tolls shall be more tiran- sufficient, the surplus receipts (like the receipts of the Federal Government from port dues and the like) shall go into the general treasury, or whether such surplus shall go as directed by this act to building bridges over the stream to take the place of the fords deepened for floatage — all these matters rest with the representatives of a self-governing people, who, from time to time, will change the tolls and regulations as experience may dictate. There is no hint in the Constitution (State or Federal) that the General Assembly is restricted from legislating as to the regulations and tolls upon public highways by water; still less is there any indication that the wisdom of th.e courts is so far superior to the will of the people expressed through the law-making body that the judiciary shall vvrtuke officii supervise and correct legislation, whether wise or unwise (in its estimation), when such legislation is enacted within the limits not forbidden to the General Assembly by the Constitution.
Montgomery, J.,
dissents. He doubts the power of the General Assembly to enact that part of chap. 388, of the Acts of 1897, which has given rise to this litigation, but its unconstitutionality does not clearly appear to his mind, and therefore he does not concur in the opinion of the Court.