dissenting. In England the test of navigable rivers is the ebb and flow of the tide. In this country, owing to essential differences in topography, the test of a navigable river (over which class of streams alone Congress has jurisdiction) is that it is wide enough and deep enough to be navigable by sea-going vessels, and below falls or other obstructions so as to be accessible to such vessels. Navigable streams are subject to regulation by State legislation provided it 'is not repugnant to any regulation thereof by Congress, Bagg v. Railroad, 109 N. C., 281; Morgan v. Louisiana, 118 U. S., 455;Smith v. Alabama, 124 U. S., 465; Railroad v. Alabama, 128 U. S., 96; Cooley Const. Lim., 595; 16 Am. and Eng. 264, and this to the extent even of imposing a reasonable toll as compensation for improving the navigation of such streams, if not in conflict with some statute passed by Congress in pursuance of its paramount right. Thames Bank v. Lovell, 46 Am. Dec., 332; Benjamin v. Manistee, 42 Mich., 628; McReynolds v. Smallhouse, 8 Bush. (Ky.), 447; Morris v. State, 62 Texas, 728; Prentice & Eagan Commerce Clause 113, and cases cited.
*754Streams not technically navigable in the above sense are exclusively within State jurisdiction and are those non-navigable and those cut off by falls in the river from access by seagoing vessels. Com. v. King, 150 Mass., 221; The Montello, 11 Wall., 411; and streams strictly non-navigable are divided into floatable and non-floatable.
The distinction between floatable and non-floatable streams is drawn in Commissioners v. Lumber Co., 116 N. C., 731, in which it is held that the Catawba River, at the location now in question is a floatable stream, and the Act of the General Assembly, Acts 1897, Oh. 388, recites that decision and provides for the regulation of the use of said stream for float-age purposes. It is the constitutionality of that statute which is called in question by this action.
In State v. Glenn, 52 N. C., 321, it is said that “When a stream (not navigable) is naturally of sufficient depth for valuable floatage, the public have an easement therein for the purpose of transportation and commercial intercourse, and in fact they are public highways by water “ this easement being explained to be as to the use of the stream for said purposes, the bed of the stream and with it the right of fishing being capable of grant to the riparian owners. To same effect Bucki v. Cone, 25 Fla., 1.
Floatable streams being “public highways by water” as said in State v. Glenn, supra, the State can in the exercise of its powers provide regulations for the unrestricted exercise thereof, and provide for the expense of doing so and of keeping the channel open, either by funds out of the public treasury or by tolls upon the commerce using said streams (i. e., logs and rafts)' and this power it can exercise through commissioners appointed directly by the State or confer the control and the power to l.ay tolls upon the Gommissioners of the Counties through which such “public highway by water” flows.
*755In many instances tbe State has devolved tbe dnty of keeping open tbe use of floatable streams upon private companies, giving in consideration thereof tbe right to exact tolls (as is also done in tbe case of turnpikes) and such acts have been sustained as a legitimate exercise of legislative power, and that these do not infringe “the right of free navigation.” Osborne v. Knife Falls Co., 32 Minn., 412; Benjamin v. Manistee, 42 Mich., 628, (opinion by Cooley, J.); Nelson v. Navigation Co., 44 Mich., 7; Morris v. State, 62 Texas, 728; Green v. Palmer, 83 Ky., 646; Duluth Lumber Co., v. Boone Co., 17 Fed. Rep., 419; Huse v. Glover, 119 U. S., 343; Sands v. Manistee, 123 U. S., 22. Nor conflict with tbe constitutional inhibition against taking private property without compensation. Q-ould on Waters, Section 143, and cases cited. A fortiori tbe State can confer tbe control of a public highway and tbe right to lay tolls upon tbe transportation thereon, upon one of its own agencies, tbe Commissioners of tbe Counties through which, or upon whose borders, the stream runs. It is difficult to understand why it is not competent for the Legislature, under its general police power, to permit the organization of a governmental agency to improve the navigation of these streams for logs in the same way and to devote any profit arising from tolls to the special purpose of improving and building such bridges as would not interfere with the passage of logs, instead of putting such profits into the coffers of the County to be used for general County purposes.
This is not a tax or an assessment (as in Peace v. Raleigh cited by plaintiffs’ counsel), but a toll which is provided for in the Act in question. It is a matter of universal knowledge that the Legislature has resorted to the plan of allowing persons or companies to charge toll for the purpose' of keeping up certain public roads in the mountain Counties *756in North Carolina. Tbe charging of these tolls has been at times allowed and at other times discontinued by the Legislature. It was always in contemplation of the State and those in charge of such roads, that a profit would be realized and pocketed by those who should keep the highways in good condition. There is no reason why the State should not embark in the same business itself or authorize one of its local agencies to engage in it and to apply its profits for the public good.
Were these charges technically taxes instead of tolls, it has been held that even a tax levied within the constitutional limits for one County purpose may be devoted to another County purpose. Long v. Commissioners, 76 N. C., p. 280.
The Legislature has the power to convert an ordinary public highway used as a carriage and wagon road into a turnpike or toll road. The Courts hold in such cases that “the change is not in the character of the servitude but in the mode of sustaining the highway, or keeping it in repair, viz: in substituting tolls instead of taxes or involuntary labor.” Carter v. Clark, 89 Ind., 238, 239; Elliot on Roads and Streets, p. 55, and authorities there cited. Especially see Walker v. Caywood, 31 N. Y., 51; Wright v. Carter, 27 N. J., 76; Douglass v. Boonesborough, 23 Md., 219; State v. Blake, 36 N. J., 442.
Has the Legislature the power to assume the same control over navigable and non-navigable streams as over the dirt roads made such by authority of law? *757the State or Federal Constitution, or by some recognized principle of right or justice found in the common law. It is unnecessary to consider at present the limits of this extensive power, since it clearly includes the right to provide for and compel the clearing out, not only of such water courses as are naturally navigable, but of all such watercourses and drains as are not and never were navigable,, but which are necessary for carrying off the surplus drain water, thereby promoting the public health, and enabling a considerable portion of territory, otherwise uninhabitable, to be brought into cultivation.” Norfleet v. Cromwell, 70 N. C., 634; Brown v. Keener, 74 N. C.,712, at pp. 716, 717; The Code Sections 3707, 3710, 3711; State v. Moore, 104 N. C., at pp 720, 721 and 722; Sands v. Manistee, 123 U. S., pp. 294, 295.
*756“It is too late to question that the police power of the State (which is part of its general legislative power) extends to providing for every object which may be reasonably considered necessary for the public safety, health, good order or prosperity, and which is not forbidden by some restriction in
*757The Boards of Commissioners of two or more Counties can be united in such work by legislative authority. Herring v. Dixon, 122 N. C., 420.
If a charter were granted to a private company to clean out the channel and in consideration of keeping it open and of building all necessary bridges over the stream, the company were authorized to levy toll on the logs and other traffic, could there be any doubt of the legality of such charter ? If not, then certainly the State can exercise the powers it could grant and can confer them upon the County Commissioners of the riparian Counties as agencies of the State.
As to the suggestions in the argument of the possible purposes in passing the Act in question it has always been held that the Courts will not inquire into the motives of legislators of any kind of grade, whether it be the Congress of the United States, the Legislature of the State, or a municipal board, except in so far as they may be disclosed by the language of *758tbe Act itself, and every intendment of law is in favor of tbe good faitb of a legislative body. State v. Moore, 104 N. C., p. 114; Soon Ming v. Growley, 113 U. S., pp. 703, 704, 710; Angle v. Railroad, 151 U. S., 18. Unless an Act is plainly unconstitutional upon its face, it is tbe duty of tbe Courts to sustain and uphold tbe exercise of tbe legislative will. Hoke v. Henderson, 15 N. C.,1; Sutton v. Phillips, 116 N. C., 502; McDonald v. Morrow, 119 N. C., 670; State v. Moore, 104 N. C., at page 719.
In granting tbe restraining order against tbe defendants’ proceeding as authorized by tbe terms of said Act, I think there was error.