20 Ark. 573 | Ark. | 1859
Lead Opinion
delivered the opinion of the Court.
Lindsay, the appellant, established a ferry across Black river, at the town of Powhatan, in Lawrence county, under a license from the County Court for that purpose.
After his ferry had been in operation for a number of years, Lindley, the appellee, applied to the County Court, at January term, 1852, for a license to establish a ferry across the same stream, near Powhatan, and within one mile of the ferry of the appellant.
The appellant voluntarily appeared in the County Court, made himself a party to the proceedings, and contested the grant of license to the appellee. The court, however, granted the license, and the ferry was established. The appellant then exhibited his bill in chancery, allegiug that the establishment of the rival ferry was an illegal interference with his exclusive vested rights, as the owner of the previously established ferry, for the reason that the public convenience did not require its establishment.
On the final hearing, the court below dismissed the bill, and the cause was brought here by appeal.
The 20th section of the statute provides, that the County Court " shall not permit any ferry to be established within one mile above or below any ferry previously established, except at or near cities and towns, where the public convenience may require it, and satisfactory proof of the same shall be first adduced.” Gould’s Dig. chap. 70 Now, whether the public convenience required the establishment of the rival ferry, was a question necessarily passed upon and determined by the County Court. The appellant, though under no legal obligation to appear before that tribunal, (vide Murray vs. Menefee, decided at present term,) nevertheless voluntarily did so, and made himself a party to the proceedings.
If the proceedings were erroneous, he should have pursued his legal remedy for their quashal, which was to put on the record by bill of exceptions, the evidence adduced on the trial, or so much thereof as was necessary to show the errors complained of, and then invoke the appellate jurisdiction of the Circuit Court by writ of certiorari, according to the doctrine laid down by this court in Couch Ex parte, 14 Ark. 337; Carnall vs. Crawford county, 6 Eng. 604.
Having failed to do this, the judgment of the County Court is conclusive, and the appellant cannot now be heard in a court of equity. True, the appellee, subsequent to the establishment of his ferry, and prior to the commencement of the proceedings in equity, by the appellant, to restrain him, obtained his annual license for the years 1853-4, when the appellant was not a party to the proceeding, nor present in the County Court, by voluntary appearance; but this can have no material bearing on the point under consideration — because, after the appellee’s ferry was once established, the question of public convenience was no longer an open one between him and the appellant, subject to investigation on the occasion of each annual grant of license thereafter; nor, in such case, does the statute require the owner of a ferry privilege to make, a further application. It is made the duty of the court to levy a tax on the privilege, annually, whether the owner makes application or not; the Clerk is required to issue the license, deliver it to the sheriff, and the owner is bound to pay for it, vide see 15, et seq. Whether the County Court, from, considerations affecting the general good alone, has the power under the statute to discontinue one or both of the ferries, is a question not before us, and one which we do not decide. We mean to decide merely, that the question of public convenience, for the purposes of this controversy, was put forever at rest by the decision of the court, establishing the appellee’s ferry. When his ferry was once established, and its establishment became binding on the appellant, the ferries were not only rivals, but also equals. The one owner could not afterwards insist that the ferry of the other should be discontinued, because the public convenience did not require both.
On a careful examination of the testimony in the cause, we have not been able to reach the conclusion that the license under which the appellee’s ferry was established, was procured by fraud.
The decree of the court below must be affirmed with costs.
Dissenting Opinion
dissenting.
I dissent from so much of the opinion in this cause as decides that the establishment of a ferry vests private rights ina party, extending beyond the period limited in his license.
I hold that the question of public convenience recurs to the County Court annually. The public franchise reverting to that tribunal to be enlarged, abridged, or modified in any way whatever, that the convenience and accommodation of the public may require.
One having a ferry has no investitute of right to the public franchise; but is only upon certain conditions permitted to use it exclusively for a given time, and by our statute, only for one year.
