Munn v. Shults ( 1917 )

WOOD, J.,

(after stating the facts). Appellant objected to the introduction of a book kept by T. 0. Douglas, showing the names, dates and amounts collected from various persons and articles while he was operating the ferry for Munn; and >also objected to the testimony of the appellee J. B. Shults based upon the entries in the book kept by Douglas which was introduced in evidence. It does not appear that these objections were carried into the motion for a new trial. They were therefore waived in the court below and can not be.considered here. Choctaw & Memphis R. Co. v. Goset, 70 Ark. 429; Mitchell v. State, 86 Ark. 486; King v. Blade, 92 Ark. 598; Railways Ice Co. v. Howell, 117 Ark. 198, 208.

Appellant concedes that the “facts are practically undisputed.” It will be seen from the above findings of fact by the court that the county court of Miller County, in October, 1912, granted Munn the privilege of operating a ferry across Red river at the point designated, which privilege, under the order granting the same, expired on the 31st of December, 1912; that the license which Munn was required to pay for exercising the privilege during that time was paid. But the court also found that Munn did not own and operate a ferry during the year 1912 and up to the first week in February, 1913, did not use his ferry privilege; that up until the latter part of January, 1913, there was no public road leading from the county road down to the point of the landing of the ferry; nor until said time was there any public road crossing the river at said point in Miller County, Arkansas. The court further found that Munn did not, after October, 1912, in any way apply for the privilege of operating a ferry, nor was he after that time granted the privilege of operating the ferry at the designated point.

These findings of fact by the court are sustained by the evidence. It thus appears that the ferry was never established under any order of the county court granting the privilege to establish the ferry at the point designated. Appellant allowed the privilége and the license to expire without establishing the ferry in accordance with such order of the county court granting same and never thereafter sought, nor was he granted by the county court, the privilege of operating a public ferry at Buzzard’s Bluff, in Miller County, Arkansas.

(1) Ferry privileges are granted because of the public convenience subserved thereby. A ferry is not established merely by applying for and obtaining a license for operating the .same. To establish a ferry one must go further and provide the facilities and operate the same for the public before it can be said that the ferry is established. So here, although the findings of the court show that Munn had applied for and had been granted the privilge and had obtained his license for operating a ferry for the year 1912, the findings of the court nevertheless show that he did not establish the ferry by providing the necessary facilities and operating the same until the period had expired for which his license was granted. Therefore, the order of the county court levying a tax on the 6th of January, 1913, of $25.00 for the privilege of operating ferries in the county of Miller did not apply to Munn and he was not at that time, under the law, subject to the payment of the tax, for the law expressly declares that “no ferry at which the public county road does not cross shall be subject to the taxherein provided. ’ ’ And the findings of the court show that on January 6,1913, when the tax was levied there was no public road leading from the county road down to the point of the landing of said ferry, nor was there a public road crossing the river at that point.

If a ferry could be established simply by obtaining the order of the county court granting the privilege and by obtaining the license, but without actually providing the facilities and putting them in operation for the use of the public, then the purpose of the law, which is to promote the public convenience, would be wholly frustrated, for after the privilege is granted and the ferry established the county court is expressly prohibited from permitting any ferry to be established within one mile above or below any ferry previously established.

In Murray v. Menefee, 20 Ark. 561, 563, it is said: “When the license has been so granted, and the ferry once established, it is made the duty of the county court to levy a tax on the privilege annually thereafter, whether application for renewal of the license be made or not; and the duty of the clerk to issue, annually, a license, and deliver it to the sheriff for the person to whom the privilege was granted, who, on presentation of the license, is bound to pay for it.” And in Lindsay v. Lindley, Id. 573, 581, it is said: “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. ’ ’

Now since no ferry was established by appellant under the order of the county court granting him the privilege and under the license obtained for exercising such privilege, he cannot invoke in his defense the statute, and the above decisions based thereon, requiring the county court to levy a tax, and the clerk to issue the license, and the sheriff to present the same to him, regardless of whether or not he renewed his application for the ferry privilege and license. These duties are exacted of the county officials named only when the license has been so granted and the ferry once established. Independence County v. Duffey, 95 Ark. 354.

Here, as we have seen, while the license was granted in 1912, the ferry was never established under it, and it was not being maintained and operated as a ferry when the county court, on the 6th of January, 1913, made a general order levying a tax of $25.00 for ferry privileges.

(2-3) It seems to be the doctrine of our cases that when a ferry franchise is once granted and the ferry is established under it, the privilege continues subject to the power of the county court to discontinue the same when the public interests demand it. Before one can exercise the privilege the right must be extended to him by the proper authority—the county court. See Murray v. Menefee, supra; Bell v. Clegg, 25 Ark. 26. Therefore, even though appellant had established the ferry under the franchise granted by the county court, he could not after his annual license expired continue to exercise the privilege “without complying with the' provisions of law in relation to obtaining license. ’ ’ The derelictions of county officials in failing to issue the annual license and to levy and collect the tax therefor, can not exonerate the holder of a ferry franchise for a failure to pay the annual license fee or tax, nor exempt him from the penalties denounced by section 3582, supra, for such failure.

(4) Although the franchise may be granted and the provisions of the law in regard to obtaining license complied with, the privilege is one that may thereafter be lost by a failure to establish the ferry and exercise the privilege, or it may be abandoned by failure to procure the license prescribed by the statute. In Finley v. Shemwell, 94 Ark. 190, we announced the law as follows:

“It is settled by the decisions of this court that, while ownership of lands on one or both sides of a navigable stream entitles the owner to the privilege of keeping a public ferry, the right can not be exercised without procuring a license from the county court. It has also been decided by this court that when the county court has once granted the privilege of keeping a public ferry the privilege is exclusive within the distance, so long as it is exercised under the annual grant of license provided for. There may, however, be an abandonment of the ferry privilege by failure to procure the license prescribed by statute; or the county court may, by proper order, discontinue a ferry once established.” Citing all former cases.

Now, under the doctrine of these cases, and the facts of this record as found by the trial court, which are sustained by the evidence and is practically undisputed, the' court was correct in his conclusion of law that Munn, by reason of his failure to procure a ferry boat and use the ferry privilege granted him in 1912, and by failing to obtain the annual license prescribed by the statute for the years 1913 and 1914, had abandoned his ferry privilege, and that the license issued in October, 1914, for the years 1913 and 1914 could not avail him as a defense to this action.

Appellant, by keeping the ferry and charging persons for same without complying with the provisions of the law relating to obtaining license, incurred the penalties denounced by tbe section supra, upon which, this suit was grounded.

The judgment is therefore correct, and it is in all things affirmed.