DAWKINS, District Judge.
The issues of this case have already been stated in the memorandum opinion filed on December 5, 1924 (6 F.2d 19), in which the preliminary injunction was granted. Subsequently, on application of the respondent, a preliminary writ was likewise granted in its favor and the parties assigned to certain localities for the operation of their respective ferries, and the order as modified reads as follows:
"It is therefore ordered and decreed that all writs heretofore issued in this matter be and they are hereby modified and reformed so as to operate as follows: The plaintiff, the said S. B. McNeely, shall be confined in his operations to the area south of Trinity street on the water's edge in the town of Vidalia, and in pursuing the operations of the said ferry, the docks and boats at all times shall be kept at a distance of ten feet south of the south line of said Trinity street, provided that he and his patrons for the purpose of reaching the said ferry boat and docks, shall have rights of ingress and egress over and across the intervening space so as to reach the outlet through Trinity street and the opening in the levee to the town of Vidalia.
"It is further ordered that the defendants, the town of Vidalia and its assignees, shall be and they are hereby confined to the area on the north side of said Trinity street, and in conducting their operations their docks and boats shall be at all times kept at a minimum distance of ten feet from the north line of said Trinity street, with the rights of ingress and egress to them and their patrons across the intervening space in such manner as may be necessary for the proper operation of their said ferry.
"It is further ordered and decreed that the said plaintiff, his agents and employees, and defendants, their agents and employees, be and they are hereby each enjoined and restrained from encroaching upon the area assigned to the other or in any manner interfering with each other in the operation of their respective ferries until the further orders of this court. All bonds and securities heretofore given in this proceeding on behalf of either side to continue and remain in full force and effect until modified or set aside by this court."
Under this decree both ferries are being operated at this time, and except as to the claim that the landing places are so close together as to cause the waves from the boats of respondent's assignee to interfere with the safe landing of those of complainant, the two systems appear to be running satisfactorily and with equal opportunity to compete for the business of the public.
The main questions involved in this case, that is, as to the right of the respondent to grant a franchise or exclusive privilege to operate a ferry across the Mississippi river, and their effect upon interstate commerce, have already been determined by the Court of Appeals for the Fifth Circuit in the case of the same complainant against the City of Natchez, Miss., 4 F.(2d) 899, dealing with the other end of the ferry on the Mississippi side, and as the opinion is short, I quote it in full, as follows:
"Appellant, S. B. McNeely, filed his bill, seeking interlocutory and final injunctions to prevent interference by the mayor and board of aldermen of the city of Natchez with his operation of a ferry on the Mississippi river between Natchez, Miss., and Vidalia, La. The case was heard on the application for the interlocutory injunction, and from an adverse ruling this appeal is prosecuted.
"There is no dispute as to the material facts, which are these: McNeely is the owner of three ferryboats, and for something over twenty years has been operating a ferry between Natchez and Vidalia, for which privilege he paid a license fee to each town. He also owns real property suitable for ferry landings on the river front, both at Vidalia and Natchez, and the necessary floating landing stages. His contract with Natchez has expired, and there is some question as to whether his license from Vidalia has been forfeited; but that is immaterial, as the same argument applies to both towns.
"In June, 1924, the city of Natchez adopted an ordinance providing for public ferries between the said two towns. The ordinance is rather lengthy, but may be thus epitomized: It prohibits the operation of a ferry from any other landing than that fixed in the ordinance, prescribes rates to be charged, schedules to be maintained, the size and character of boats to be employed, contemplates the granting of an exclusive privilege to operate the ferry for the term of ten years, on payment of an annual fee of $2,000, and imposes a penalty of $30 a day on any one else operating a public ferry from the city of Natchez without a franchise from the mayor and the board of aldermen.
"Appellant alleges that his property, used in the operation of his ferry, is worth over $100,000, and it is admitted that it is worth $60,000. It is also admitted that his annual revenue exceeds $5,000, and that he will be totally deprived of it if the ordinance is made effective. It is the contention of appellant that it is beyond the power of the city of Natchez to exact a license fee for the operation of a ferry, as it would be a direct and unreasonable burden upon interstate commerce, and, furthermore, that the ordinance, if made effective, would deprive him of his property without due process of law. Appellees concede that the operation of a ferry across the boundary stream between two states is interstate commerce, but contend that an exception is made in the case of ferries, and that the states have the right to grant exclusive franchises for ferries operating from their own shores, as Congress has...
