dissenting.
I dissent entirely from the opinion of a majority of the Court in this cause.
And the points evolved touching the public franchise as well as high constitutional rights of the citizen, I deem it proper that I express what conclusions I have arrived at.
Preliminary, however, to an examination of the case, upon its merits, I will advert to the question of jurisdiction, relied on to some extent by counsel.
Section 5, Article 6, of the Constitution, provides: that the Circuit Courts, possessing equity powers, shall exercise superintending control “ over the County Courts.” Leaving the peculiar mode, in which such superintending control was to be exercised, to be subsequently defined by the Legislature.
Sec. 15, chap. 49, Gould’s Dig., provides: “ that the Circuit Courts shall have appellate jurisdiction from all orders and judgments of the County Courts, in all cases, not exclusively restricted to the jurisdiction of County Courts, nor expressly prohibited by law.”
Conceding that the case here does not belong to that class, which is exclusively restricted to the jurisdiction of the County Courts, of which serious doubts may well be entertained, the statutory regulation, although declaratory of the constitutional power conferred upon the Circuit Courts, must be held as restrictive of the powers incident to Courts of Chancery upon their creation.
The Legislature, in the frame-work of the judicial department of the government, has, for reasons obviously promotive pf the public good, conferred upon the County Courts composed of magistrates, chosen from each and every township in the county, exclusive, original jurisdiction of all local, domestic affairs; amongst which is the power to grant the public franchise to individual proprietors for the establishment of ferries.
The Circuit Courts have not concurrent, original jurisdiction touching these local questions, but, by the constitution, “ superintending control” — powers of revision — only, and by the statute, those powers are to be invoked by appeal.
What is the case here?
The appellant and appellee, each, obtained from the County Court a license to keep a ferry. Menefee, the appellee, conceiving his rights infracted by the granting of Murray’s license files an original bill, praying the cancellation of appellant’s license, and for injunction, etc. New proof was taken in great abundance — a new case made, and heard de novo, and, in the absence of the original proceedings of the County Court, which ought to have been the foundation of the suit before the Circuit Court, and brought there by appeal or certiorari.
The Circuit Court having no original, but only appellate jurisdiction, has no power, either to grant, or annul ferry license, but, by “ superintending control,” to correct error, and remand the proceedings of the County Court, with directions.
The bill, in the form presented, ought, therefore, to have been dismissed summarily, with costs.
It was mainly, however, resisted upon other, several, grounds. And first: It is insisted by the appellant that the action of the County Court, granting license to him, is conclusive against Menefee by estoppel. And this, in the view I take of it, is correct.
The Cadron, over which these ferry rights are granted, is not, b}r the laws of the United States, a “ navigable stream.” By the plat shown in the transcript, it was not meandered, but returned by the surveyor, and sold by the government to individual proprietors, without reserve, as land, unaffected by the retention of riparian rights to the government.
The State Legislature has, however, by special enactment, declared the Cadron to be a navigable stream, that is, that the bed of the stream, derived in fee from the United States by the owners, shall be condemned to public uses, and converted from private property into a public franchise.
Has the Legislature the power to do this? and, if so, what is the process?
Certainly, individual rights must yield to public good: which is conceding quite enough. But the appropriation of private property to public uses, is only tolerated by the constitution after the citizen is fully compensated for his loss.
The act of the Legislature, therefore, as to the right of Murray or Menefee (neither having received indemnity), declaring Cadron a navigable stream, is unconstitutional and void. And the stream, with all the rights incident thereto, so far as affected by that act, remains private property — the right to ferry or transport persons, a private right, not a public franchise, subject to be granted or withheld by the county courts, nor any other department of goveimment, until full compensation for damages, if any, shall have first been made.
For there can be no “ public franchise where there is no public right,” and although it is clearly within the power of the government, if necessary for the public good, to create such like franchise, yet, if so created, the constitution rewards the citizen by damages.
But a step farther on this point of enquiry, that it may be ascertained whether the County Court, in granting the license to Murray, affected the private rights of Menefee, or granted only a public franchise, in Avhich he had no private interest.
The roads passing over both the ferries are public highways, made so by the action of the County Court.
And section 20, of the ferry law, as now codified, declares that, “ where a public road crosses any private stream, which has hot been meandered as a. navigable stream,” the bed of which belongs to any individual, the County Court may make an order declaring it to be a public ferry.
Here, then, is a case precisely in point.
The Cadron is a private stream; its bed private property. But the public highway passing over it, of itself, and without an especial order of court, appropriates it to public uses.
And thus the ferry privilege became a public right — a franchise to be disposed of annually in such wise as mostly conduced to public good. And it is to be observed, that in cases wherein it becomes necessary to project a public road over private lands, the statute, sec. 52, chap. 149, Gould’s Dig., awards indemnity to the owner.
The question now recurs, viewing the ferry privilege, granted Murray, in this case, a public franchise, wdiether or not the action of the County Court, granting the license to Murray, is conclusive against Menefee. For although the right granted, is in the nature of a public franchise, yet Menefee had the constitiitional right tobecome a party to that proceeding, as any other citizen might have done, by petition or remonstrance. And, notwithstanding, from the circumstances of the case, it must be presumed that he had notice of the proceeding of the Court granting license to Murray, yet he saw proper to forego this privilege, and suffer judgment to go without making any opposition whatever.
Section 20, Art. 2d, of the Constitution of this State, provides that the citizen shall have a right to apply to those invested with the power of the government, for redress of grievances, by address or remonstrance; and I can perceive no reason why this right may not as well be exercised before the judicial, as any other department of the government.
But the granting the license to Murray, it is held, invaded the private rights of Menefee, and, as he was not a party, is not conclusive against him. He, it is held, had, by the previous establishment of his ferry, acquired perpetual and exclusive right. So that, -no matter what the public exigencies might be, unless there was a town, the public convenience could not be conserved by the creation or establishment of another ferry within a mile of the first.
Stction 20, chap. 70, Gould’s Dig., reads as follows: “ The county courts of the several counties of the State 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,” and a misconception of the true import of which, lies at the bottom of this controversy.
Upon an inspection of the record, it will be perceived that the licenses to Murray and Menefee were granted upon the same day, to continue for the same time, and taxed at the same rate, $20, each. They were granted the 2d January, 1855. True, Menefee had obtained license for a series of years preceding, but that gave him no rights for the year 1855, and I take it, that the meaning of the above section is, that if A, by license from the proper authority, establishes a ferry for a year, the time prescribed by law, to-day, B cannot to-morrow, or at any time within the year, establish another within the mile, etc. In other words, that ferry rights are established, and evidenced, by the license or authority derived from the County Court. And upon the expiration of the license, cease to exist altogether, unless again renewed, as the law directs.
It follows, that on the 2d January, when the Court granted Murray’s license, Menefee’s having expired, that the latter had no subsisting private right affected by the judgment, which would entitle him to review it collaterally. Hence, upon that ground, also, he is concluded.
Besides this, Murray sets up that there was, or is a town near his ferry — that the public convenience is promoted by the establishment thereof, and proves, to my satisfaction, the allegations abundantly.
How many people shall be necessary to constitute a town, the statute does not undertake to say. But I regard the terms merely descriptive, and not an indispensable pre-requisite, when, in the discretion of the County Court, public convenience greatly demands a ferry.
In this case, there is a name, habitations, and a place containing more or less inhabitants — a store, warehouse, shop, etc., which are sufficient, in Arkansas, to bring it within the provision or description of a town.
The Court below, then, erred, both upon the questions of law and the facts, and imposed upon Murray restrictions which amounted to a disfranchisement of his rights, and the rights of the citizens of Conway county.