Motion for rehearing argued by John H. Clark and Robertson & Williams.
Graines, Associate Justice.It is urged upon the motion for a rehearing in this case that because the plaintiffs set up in their petition that they had acquired an exclusive ferry privilege from the Commissioners Court of Maverick County they were not entitled to the relief sought unless their exclusive right was established, and it is claimed that it is therefore necessary for this court to pass upon the question presented in appellee’s brief of the power of the Commissioners Court to grant such exclusive franchise. Such is not our view of the question. It appears, it is true, that the Commissioners Court undertook to grant the appellant Tugwell *493an exclusive right to operate a ferry across the Rio Grande at Eagle Pass. It is none the less true that the court did grant a license as the statute requires upon the payment of a stipulated fee therefor. The license recited that the bond had been given, and in the absence of proof to the contrary the presumption is that this was the bond required by the statute. Conceding, therefore, that the court undertook to grant more than it had the power to grant, it does not follow that the grant was not good to the extent of its power; nor does the fact that they exacted a tax for the license greater than the limit fixed by the statute operate to defeat the grant. The overcharge worked an injury to no one but appellants. The court would not be permitted to say, we have charged you too much for your privilege and it is therefore void. We are far from saying that the action of the court was regular or in accordance with the law, but we do say that it had the power to grant a license, and that it did grant the franchise which gave the appellants the privilege of operating a ferry across the river at Eagle Pass. Thé appellee had no license.
The legal question then presents itself, is the grantee of a ferry privilege entitled to an injunction against one who having no license undertakes to operate another ferry in competition with that which is licensed? In the former opinion this question was decided in the affirmative, and that decision is sustained by authority. Smith v. Hawkins, 3 Ire. Eq., 618; Stark v. McGowan, 1 Nott & McC., 387; McRoberts v. Washburne, 10 Minn., 23; The Broadway Ferry Co. v. Hankey, 31 Md., 346; East Hartford v. Bridge Co., 10 How., 511; 3 Blacks. Com., 219.
It is not necessary that the grant should exclude the power to grant a license for another ferry. It is sufficient that no such second license has in fact been granted. The operation of an unlicensed ferry is unlawful, and a licensee is entitled to protection against a competition carried on in violation of law.
The plaintiffs alleged fully in their petition and claimed that they acquired thereby an exclusive ferry privilege. The facts alleged and proved show that they have a license to operate a ferry and that defendants have none. Whether the Commissioners Court had the right to grant an exclusive privilege or not, the plaintiffs were entitled to show and have shown under the allegations in their petition that they acquired a lawful ferry franchise, and that defendant was operating a competing ferry without authority of law. This entitled them to the injunction prayed for. Though they may not have established their right to the full extent claimed, they established a sufficient right for the purposes of their suit.
It is further insisted that the court misconceived the scope and effect of the decision in the case of The Ferry Company v. Pennsylvania, 114 United States, 196. It is claimed that properly considered it overrules the case of Conway v. Taylor, 1 Black, 603, cited by us in support of *494the conclusion that the State has the power to grant a license to operate a ferry across a stream which constitutes its boundary. Having again carefully examined the opinions in the two cases we find no ground for this assumption. In The Ferry Company v. Pennsylvania, supra, Mr. Justice Field, who delivered the opinion of the court, in speaking of ferries “over waters separating” the States, concedes “that the privilege of keeping a ferry with a right to take toll for passengers and freight is a franchise grantable by the State, to be exercised within such limits and under such regulations as may be required for the safety, comfort, and convenience of the public.” 114 U. S., 217. If the establishment of a ferry over a river separating two States is not an interference with interstate commerce the establishment of one over a boundary between the State and a foreign country is not an interference with foreign commerce, and it follows that the establishment of such ferries is a matter within the jurisdiction of the States respectively and not of the Congress of the United States. We conclude that the decision in Conway v. Taylor is not overruled, either expressly or by implication, and that it is decisive of the question in support of which it was cited.
The motion for a new hearing is overruled.
Motion overruled.
Delivered October 30, 1888.