Arkansas Light & Power Company v. Cooley

• Decision Date: 21 April 1919
• Docket Number: 189
• Citation: 211 S.W. 664,138 Ark. 390
• Parties: ARKANSAS LIGHT & POWER COMPANY v. COOLEY
• Court: Arkansas Supreme Court

211 S.W. 664

138 Ark. 390

ARKANSAS LIGHT & POWER COMPANY v. COOLEY

No. 189

Supreme Court of Arkansas

April 21, 1919

Appeal from Clark Chancery Court; Jas. D. Shaver, Chancellor reversed in part.

STATEMENT OF FACTS.

C. F Cooley, a resident and property owner of the city of Arkadelphia, brought this suit in equity on behalf of himself and all other persons whose rights are similarly affected against the Arkansas Light & Power Company for cutting off the light and water furnished by that company. The facts are as follows: On September 10, 1914, the city council granted the Arkansas Light & Power Company a franchise to establish and operate in the city of Arkadelphia an electric light system for a period of fifty years, and in the ordinance granting the franchise, a maximum rate was established which the company was permitted to charge private consumers. The franchise was accepted by the company and it has operated under it ever since. At the same time and for the same period of years the said company was granted a franchise to provide for a water supply to the city of Arkadelphia and the inhabitants thereof. The rates which the company might charge private consumers were prescribed in the ordinance. This ordinance was accepted by the Arkansas Light & Power Company and it has operated a waterworks system under it ever since.

On August 5, 1918, the common council of the city of Arkadelphia passed an ordinance empowering the said company to make a greater charge for electric lights during the period of the war between the United States and Germany and for six months after the termination of said war. A like ordinance was passed at the same time providing for an increase of rates for the water furnished private consumers. The records of the city council do not show that the yeas and nays were called and recorded on the passage of either of the ordinances of the date of August 5, 1918, raising the rates to be charged by the company respectively to consumers of electric light and water.

C. F Cooley was a resident and property owner in the city using both electric light and water from the company. He refused to pay the increased charges provided for in the ordinance of August 5, 1918, and the company threatened to cut off his electric lights and water for his failure so to pay. Hence this lawsuit.

The chancellor was of the opinion that the ordinances of August 5, 1918, providing for an increase of water and electric light rates were not passed by the city council in the manner provided by law and were therefore void.

It was therefore decreed that the Arkansas Light & Power Company be perpetually enjoined from discontinuing the services of water and electric current to C. F. Cooley on account of his failure to pay the increased rates for water and light provided for by the ordinances of August 5, 1918.

The defendant company has appealed.

Decree affirmed.

Callaway & Huie, for appellant.

The city council in the passage of the two ordinances were exercising the "police power" of the city. Unless they were contractual they are prima facie valid. The minutes of the city show that they were duly passed and recorded. Certified copies were duly introduced in evidence. Kirby's Digest, § 5471; 116 Ark. 125; 94 U.S. 113; 143 Id. 517; 219 Id. 104; 233 Id. 389; 204 S.W. 386; Ib. 1074; 31 Cyc. 902; 28 Id. 692. The two ordinances were duly passed and constituted a contract between the citizens and the appellant. They were accepted by the grantee and bound the grantee for a term of years and gave it six months to comply with the terms of the contract, and the decree should be reversed.

T. N. Wilson and McMillan & McMillan, for appellee.

1. The ordinances were both void. Kirby's Digest, § 5473. The "ayes and nays" were not called and recorded. 40 Ark. 105; 105 Id. 506-511. The provision is mandatory and the record shows that the yeas and nays were not called and recorded. 105 Ark. 506-511.

2. The original franchises were contracts. Kirby's Digest, § 5448; 101 Ark. 223. The amendatory ordinances resulted in granting new franchises and were not passed as prescribed by law. Kirby's Digest, § 5448; 75 Ark. 340. The council had no power to increase the rates. 5 Ark. 595-599; 101 Id. 223. The ordinances should have been submitted to a referendum vote. Act March 6, 1913, Acts 1913, p. 562.

OPINION

HART, J., (after stating the facts).

The chancellor was right in holding that the ordinances of August 5, 1918, providing for a raise in water and light rates were void because upon their passage the yeas and nays were not called and recorded. A grant by a city council to a public service company of a franchise to supply water and light to a municipality and the inhabitants thereof at certain stipulated rates when accepted becomes a contract between the municipality and the grantee, and the conditions therein are binding, the same as the terms of any other contract, both on the municipality and the company. Lackey v. Fayetteville Water Co., 80 Ark. 108, 96 S.W. 622; Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S.W. 165, and McQuillin on Municipal Corporations, vol. 4, par. 1672.

Section 5473 of Kirby's Digest provides that on the passage of every law or ordinance, resolution or order, to enter into a contract by any council of any municipal corporation, the yeas and nays shall be called and recorded. This section has been held to be mandatory and its purpose has been stated to be to make the members of the council feel the responsibility of their action when important measures are before them, and to compel each member to bear his share in the responsibility by a record of his action which should not...