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English & Wilshire v. Chicot County.

[June

and the case of Seybert v. The City of Pittsburg, (1, Wal., 272,) is cited as an authority in point. We do not so regard it.

In that case, counties and cities were authorized to subscribe to the capital stock of a railroad company, “as fully as an individual;” and the court held, that as an individual, by agreement with the company, could have given his bond for subscription, so could the city. The language of the act, under which these bonds were issued, did not authorize the counties to subscribe "as fully as an individual;” it simply authorized counties to use the internal improvement fund, belonging to the county, in payment of the stock subscribed. In other words, the act of January, 1855, did not authorize the county court, of Chicot county, to use the credit of the county in payment of subscriptions to the capital stock of a railroad company; it simply authorized the county court to subscribe the proceeds of a specific fund. If the object of this proceeding was to obtain an order from the county court directing the commissioner of internal improvement to pay the bonds and accrued interest thereon, out of the money in his hands, it ought to have so stated. An allowance of this claim by the county court, as a just and valid claim against the county, is beyond the scope and power of that body. The county court is authorized to audit and settle claims against the county; but, in the exercise of this power, they must confine themselves to the allowance of such claims as the county had authority to contract.

The power to subscribe the internal improvement fund of a county, to the capital stock of a railroad company, does not carry with it the power to make the county responsible in her political character.

The judgment of the circuit court is affirmed.

TERM, 1871.] Chicot County 0. Tilgh man, Exrx.

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COUNTY COURT--- With what powers vested.---The county court is vested, by

law, with power to "audit, settle and direct the payment of all claims

against the county." APPEAL FROM.---Appeal from the decision of the county court, in allowing

or rejecting a demand against the county, lies only by the party or parties interested in the rejection or allowance, and not by citizens who are not interested.

Appeal from the County Court of Chicot County.

Garland & Nash, for appellant.

The Supreme Court has appellate jurisdiction over the final orders and judgments of the county court, unless in cases where the appeal is given to the circuit court. See Code, p. 23, sections 15 and 16.

The appellate jurisdiction of the circuit court, over the orders and judgments of the county courts, does not embrace a case like this. See Code, p. 25, sec. 19.

English, Gantt f English and Reynolds, for appellee.

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Neither under the Constitution of 1836, nor 1864, would an appeal lie directly from the county court, to the Supreme Court. The circuit courts had appellate jurisdiction from all orders or judgments of the county court, etc., etc. Gould's Digest, sec. 15, chap. 49, p. 318; also sec, 16. See Code Civil Practice, chap. 1, sec. 15, referring to exceptions in sec. 16. See also sec. 19, chap. 2 Code.

The mere omission of the Code to provide for an appeal to the circuit court in such cases, does not operate as a repeal of statutes in force, allowing such appeals.

MCCLURE, C. J.

It appears from the record in this case, that Mrs. Tilghman, as executrix of Lloyd Tilghman, deceased, presented an ac.

Chicot County o. Tilgh man, Ex'ri.

(JUNE

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count, for allowance, against the county of Chicot. The account was for the allowance of the principal and interest upon a certain bond that read as follows:

STATE OF ARKANSAS. Bond of the county of Chicot, issued by an order of the county court, at the April adjourned term, 1860, for $1000..

The county of Chicot acknowledges to be indebted to the Mississippi, Ouachita and Red River railroad company, in the sum of one thousand dollars, which sum the said county of Chicot promises to pay to the order of said railroad company, five years after date, with interest thereon, at the rate of eight per cent. per annum, payable annually. In witness whereof, etc. (Signed.)

A. H. DAVIS, Judge. [SE AL.] (Signed:) B. F. STEPHENSON, Clerk.

The claim was allowed and the county clerk directed to draw a warrant on the county treasurer for $1,760, it being the principal and interest due on said bond. During the pendency of the claim before the county court, the county attorney made some motions and filed a demurrer, all of which were overruled, and exceptions taken. The court then adjouried for two weeks, after the expiration of which time it met, when the county attorney, on behalf of himself and other citi. zens of the county of Chicot, prayed an appeal, which the county court rejected. Application was then made to the clerk of this court for an appeal and supersedeas, which was granted.

Section seven, of chapter 49, of Gould's Digest, (317,) in Bpeaking of the powers of the county court, says, the court

shall have the following powers: * * * "to audit, settle, · and direct the payment of all demands against the county."

The 16th section of the same chapter provides that “appeals shall be granted from all orders or judgments of the county court, making allowances; or refusing to make allowance to any individual or individuals, made in the county court.”

These provisions of the law are in force, and by them this

TERM, 1871.) Chicot County 0. Tilghman, Exrx.

case must be determined. As has been seen, the county court was vested, by law, with the power to "audit, settle, and direct the payment of all demands against the county.” From the judgment of the county court in auditing, settling and directing the payment of demands against the county, an appeal is given; but this appeal only extends to such persons as may have an interest in the claim, and who feel aggrieved by the allowance or rejection of their demand; it has no reference to the citizens of a county who are not interested in the allowance of the claim. The idea of a county appealing from the allowance of a claim made by its county court, is simply ridiculous. The county court represents the county. An individual presenting a claim against the county, if the county court should only allow a part of his demand, or should reject it altogether, has the right of appeal; but should the county court allow a larger claim than a half dozen tax payers might think politic, such an allowance does not authorize them, nor confer on them the right to use the name of the county and appeal the cause to this or any other court, especially, in a case, where the county court has shown that it did not desire the case appealed.

Inasmuch as 210 appeal would lie in this case, directly to this court, either at the instance of the county court itself or volunteer appellants, it is hereby ordered that the appeal and supersdeas, granted by the clerk of this court, be set aside, and the cause is ordered to be stricken from the docket.

Chicot County v. TILGHMAN, Ex’rx.
Appeal from the County Court of Chicot County.
Garland f Nash, for appellant.
English, Gantt f English, and Reynolds, for appellees.

The opinion of the court in the case of Chicot County v. Tilghman, ex’rx., decided at the present term, settles the question in this case.

Haynes, Adm'r.o. Wells.

[JUNE

HAYNES, ADM’r. v. Wells.

FERRY FRANCHISE-A ferry franchise is a grant from the State, and it can

not be created by parties and made transferrable and descendable in fee,

or absolutely, as individual property, separate and apart from the land. TO WHOM LIMITED—The right of a ferry license is limited, by statute, to the

owner or party rightfully in possession of the land on the river, and is

regulated by the proper authorities for the public good. JURISDICTION OF COUNTY COURT—In matters of— Whether the establish

ment of a ferry is for the public convenience, except where inhibited by statute, is a question for the proper county court, and its decision is alsolutely binding upon every one, unless exceptions be taken and the judg. ment reversed or set aside.

Appeal from Perry Circuit Court.

Hon. W. N. May, Circuit Judge.

Garland f Nash, for appellants.

It is clear that Wells' attempt to carry on the ferry, was in direct violation of law. Gould's Dig chap. 70, sec. 1, et seq., and it is perfectly evident that this ferry franchise in Haynes, or his estate, was property which the courts would protect. See Brearley v. Norris, 22 Ark. 514; 18 Ib. 19; 20 16. 561; 16. 573. But the case of Conway v. Taylor, Excrs. 1 Black (U. S.) Reps. 603, et seq., settles all questions here for Haynes; and this case, with the authorities there cited, show that an injunction was the only adequate remedy Haynes had by which to protect his rights here. 2 Elen on Injunctions, by Waterman, 271-2 and notes.

Clark f Williams, for appellee.

There is no franchise in this State separate from the ownership of lands. Cloyes v. Keatts, 18 Ark. 19. See also, Gould's Dig. chap. 70, sec. 2, as revised by the act of April 6, 1869; see Acts 1869, p. 119. A ferry right is a franchise belonging to

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