State v. Arkadelphia Lumber Co.

• Decision Date: 12 April 1902
• Citation: 67 S.W. 1011
• Parties: STATE, to Use of PUBLIC SCHOOL FUND, v. ARKADELPHIA LUMBER CO.
• Court: Arkansas Supreme Court

Page 1011

67 S.W. 1011

STATE, to Use of PUBLIC SCHOOL FUND, v. ARKADELPHIA LUMBER CO.

Supreme Court of Arkansas.

April 12, 1902.

Appeal from circuit court, Clark county; Joel D. Conway, Judge.

Action by the state, to use of the public school fund, against the Arkadelphia Lumber Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Wm. Greene, for appellant. J. E. Bradley and J. M. Crawford, for appellee.

WOOD, J.

This suit was to recover the penalty under section 3395, Sand. & H. Dig., which is as follows: "Every keeper of such ferry shall keep constantly posted up in some conspicuous place at such ferry the rates of tell allowed to be charged. If any ferryman fail or neglect so to do, he shall forfeit and pay the sum of four dollars for every such neglect; each day that such ferry rates are not so posted up shall constitute a separate offense, which sum may be recovered in a civil action, one half for the use of the informer and the other half to the school fund." Sections 3379 and 3380 are as follows: "The toll of ferries that are now, or hereafter may be established, shall at all times be subject to regulation by the county court." "The court shall state, on its record, the rates of toll which may be demanded for ferrying passengers, carriages, wagons, carts, beasts, and such other property as is usually transported by ferries. The clerk shall make out a copy of such ferriage rates, under his official signature, and give to the person procuring such license."

The only question we need consider was raised by the following instruction, given by the court at the request of the defendant, appellee, to wit: "The jury is instructed that it is the duty of the clerk of the county court of Clark county to make out annually a copy of the rates of ferriage fixed by the county court for such ferry, under his official signature, and give to the person procuring such license such copy; and if you find from the evidence in this case that such copy was not furnished by the clerk to the defendant, or to some person for it authorized to receive the same, then the defendant was under no legal obligation to post the same, and therefore is not liable to the penalty, or any part thereof, sued for in this action, and you will find for the defendant." Under this instruction the jury returned a verdict for the defendant, appellee. The evidence supported the verdict, and the instruction of the court was correct. The county court, for the protection of the public, fixes the rates of ferriage; and, that the ferryman may have at all times convenient, as well as authentic and official, information of what the rates are, so as to prevent the possibility of mistake on his part as to the legal toll, the clerk is required to...