Shults v. Munn , 124 Ark. 415 ( 1916 )

Kirby, J.,

(after stating facts). A franchise for the operation of a ferry is a creature of the sovereign power and cannot be exercised without the consent of the State. Secs. 3555, 3558 Kirby’s Digest; Murray v. Menefee, 20 Ark. 561; Darnell v. State, 48 Ark. 321; Finley v. Shemwell, 94 Ark. 190.

Said section 3558, Kirby’s Digest, provides: “No person shall keep any ferry over or across any public navigable stream or lake, so as to charge any compensation for crossing the same, without first procuring a license from the county court of the county in which such ferry is situated.”

Section 3570 provides: “It shall be the dutyof the county courts to levy a tax on all ferry privileges in their respective counties, whether application be made by any person for the 'Same or not; provided* however, no ferry at which the public county road does not cross shall be subject to the tax herein provided.”

The penalties of section' 3582 Kirby’s Digest, are denounced against any person who shall keep a ferry over any navigable stream and charge for transportation of persons and property without complying with the provisions of law in relation to obtaining license.

Appellee contends and the trial court held that since the public road in Miller County did not cross the navigable river at his ferry or run thereto, that he was not bound by the provisions of the law to obtain license to operate a ferry nor liable to the penalties prescribed for the operation of same without, license.

(2-3) The law declares all ferries upon or over public navigable streams shall be deemed puiblic ferries, and that no person shall keep any ferry over or across any such stream or lake and charge compensation for the use thereof without procuring a license. (Sections 3555, 3558). But it is also provided in said section 3570 that “No ferry at which the public county road does not cross shall be subject to the tax” for ferry privileges. This provision is not necessarily in conflict with nor repugnant to the others. The ferries across navigable rivers are declared to be public and license is granted to persons on sites along said streams for the establishment and operation thereof when the public convenience will be promoted thereby and it was doubtless intended to be determined bjr the legislature in the making of said proviso that the public convenience would not be promoted by the establishment of a ferry across navigable streams, except at points where public roads crossed and this being true, it does not follow that appellee was not violating the law in the operation of the ferry complained about. If the public road passed his ferry at a convenient place to cross the stream to a public road on the other side thereof and the traveling public on these roads on each side the river were accustomed'to resort to his ferry for crossing thereof, it was as much a ferry at which the public county road crossed as though the road had run directly 'to the ferry and stopped there. The ferry is established for the convenience of the public traveling upon the public roads, and if a public road existed and was in use by the public on the Hempstead County side coining down to appellee’s ferry there, which transporbated persons and property from that side to the Miller County side of the river and in effect to the public road running by the ferry, it was a ferry at which the public county road crossed, .since the persons, vehicles and stock traveling same crossed at the ferry to which the public roads extended on each side of the river within the meaning of the act.

The court erred in refusing to permit the introduction of the testimony showing the establishment of a public road on the Hempstead County side of the river to appellee’s ferry and in directing the verdict and for said errors the judgment is reversed and the cause remanded for a new trial.