Commissioners of Broadway-Main Street Bridge District v. Quapaw Club

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Commissioners of Broadway-Main Street Bridge District v. Quapaw Club, 224 S.W. 622, 145 Ark. 279 (Ark. 1920)
• Decision Date: 11 October 1920
• Docket Number: 153
• Parties: COMMISSIONERS OF BROADWAY-MAIN STREET BRIDGE DISTRICT v. QUAPAW CLUB

224 S.W. 622

145 Ark. 279

COMMISSIONERS OF BROADWAY-MAIN STREET BRIDGE DISTRICT v. QUAPAW CLUB

No. 153

Supreme Court of Arkansas

October 11, 1920

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed and cause remanded.

George Vaughan and J. M. Moore, for appellants.

1. Act 49, Acts 1919, p. 74, is not unconstitutional or void because it provides that the bridge shall be turned over to the county when completed. 96 Ark. 410. The act is valid and operative. 100 Ark. 178; 66 Id. 477.

2. The bridge was part of the highway. The State has absolute control of it and may delegate the control to any subordinate governmental agency. 1 Elliott on Roads and Streets, pars 511-514, 540; 102 U.S. 472, 501; 1 Dillon on Mun. Corp. (5 ed.), par. 107. See 207 U.S. 161, 178-9. Bridges of the county are public bridges, parts of the public highway, and are not within the provisions of the contention which prohibit private property from being taken for public use. 18 N.J.Eq. 93; 48 L. R. A. 486-7; 140 U.S. 334-9; 196 Id. 539, 550; 199 Id. 233, 240.

3. If section 23 of the act is void and inoperative, the bridges would simply remain under the control of the commissioners of the district. The provisions of section 23 are separable from other parts of the act, and the remaining provisions of the act would not be affected.

4. The letting of the contract was not premature. 106 Ark. 39-48; 119 Id. 196. This case does not fall within the ruling in 117 Ark. 93. The use of the bridge is exclusively public and subject to the control of the State.

Ashley Cockril and H. M. Armistead, for appellee.

1. Letting the contracts for construction before assessing the benefits rendered the act void.

2. The act is unconstitutional and the provisions of section 23 are void unless the county court orders them carried out. 117 Ark. 93.

MCCULLOCH C. J. HART, J., Judge WOOD, dissenting.

OPINION

MCCULLOCH, C. J.

The General Assembly of 1919 (regular session) enacted a statute creating a local improvement district designated as "Broadway-Main Street Bridge District of Pulaski County," to provide for the construction of two bridges across the Arkansas river at Broadway and at Main streets in the city of Little Rock.

Appellee owns real estate within the boundaries of the district and instituted this action in the chancery court of Pulaski County to enjoin proceedings under the statute, which is assailed as unconstitutional. The sole point of attack on the validity of the statute is directed to section 23, which reads as follows:

"Section 23. When said bridges have been completely paid for, they shall be turned over to the county of Pulaski, and from thenceforth shall be the property of said county."

The contention is that the provision in this section is void, and that it is so inseparably connected with the scheme provided in the statute as a whole that it renders the whole invalid. It is insisted, in the first place, that this provision is void because it deprives the property owners in the district of their property rights in the bridges to be constructed. In other words, it is argued that the owners of real property in the district have rights in the property of which they can not be deprived by having the bridges turned over to the county. Counsel for plaintiff rely on the case of Augusta v. Smith, 117 Ark. 93, 174 S.W 543, as sustaining their contention that the owners of real property in a local improvement district have property rights which can not be transferred without their consent. This is an erroneous interpretation of the effect of the decision in that case. There a local improvement, a system of waterworks in the incorporated town of Augusta, was taken over by the city council pursuant to statute and subsequently the council undertook to sell and did sell the waterworks to an individual to operate for profit. We held that under the statute the incorporated town took over the waterworks, not as the private property of the town, but as trustee for the people of the district, and that there was no authority for the town to treat the property as private ownership and sell it to an individual. It is true we said in the opinion that the owners of the property in the district were the real owners of the improvement, which meant that they had rights in the property of which they could not be deprived by a sale to another for private purposes. There is nothing in that opinion to warrant the conclusion that it is beyond the power of the Legislature to authorize a transfer of the improvement to any public agency to operate for the benefit of the owners of the property in the district. In fact, we inferentially upheld the statute which provides that waterworks constructed as a local improvement in a city or town could be taken over by the municipality and operated. The statute now under consideration authorizes the turning over of the property to the county, which is a public agency and does not disturb the rights of the public or of the property owners within the boundaries of the district.

The principal attack on the validity of this provision of the statute is on the ground that it compels the county court to take over the bridges, and therefore constitutes an encroachment upon the constitutional jurisdiction of the county court over roads and bridges. Counsel rely on the case of Road Improvement District v. Glover, 89 Ark. 513, 117 S.W. 544, where we held that a statute which authorized an improvement district to establish and improve new roads and imposed them upon the county court to maintain as public roads was void as an encroachment on the jurisdiction of the court. An interpretation of this section of the statute in connection with other parts of the statute leads to the conclusion that it was not the intention of the lawmakers to make it compulsory upon the county court to accept the bridges as a part of the public highways, and to impose upon the county court, against its judgment, the maintenance of these structures.

It is true that the language of the statute constitutes an imperative command to the district to turn the bridges over to the county court, and the commissioners are not left with any discretion in that respect, but it is not compulsory on the county court to accept the bridges. That is still left to the constitutional power of the county court in its control of bridges and public highways. We ought to indulge the presumption, in the absence of positive language to the contrary, that the framers of the statute did not intend to encroach upon the constitutional jurisdiction of the county court, and it is our duty to interpret the statute, so far as is consistent with its language, to avoid a meaning which would render it unconstitutional. Sallee v. Dalton, 138 Ark. 549, 213 S.W. 762.

The fact that the statute is based on the assumption that the county court will accept the bridges and that no provision is made for maintenance in the event of non-acceptance does not evince a purpose to impose acceptance nor does it render the statute invalid. The scheme to construct the bridges is valid, even though further legislation might become necessary to provide for maintenance.

This view of the matter that the Legislature did not intend to encroach upon the jurisdiction, but, on the contrary recognized the authority of the county court, is supported by other provisions of the statute. In the first place, the preamble of the statute recites the fact that two improvement districts had already been formed for the purpose of aiding in the construction of these bridges, but that the county had not been able to raise the funds to build the bridges even with such assistance. Section 1 recites the contracts entered into by Pulaski County and concessions and grants made to the county for the construction of these...