Fenolio v. Sebastian Bridge District

• Decision Date: 22 December 1917
• Docket Number: 61
• Citation: 200 S.W. 501,133 Ark. 380
• Parties: FENOLIO v. SEBASTIAN BRIDGE DISTRICT
• Court: Arkansas Supreme Court

200 S.W. 501

133 Ark. 380

FENOLIO v. SEBASTIAN BRIDGE DISTRICT

No. 61

Supreme Court of Arkansas

December 22, 1917

Appeal from Sebastian Chancery Court, Fort Smith District; W. A Falconer, Chancellor; affirmed.

Decree affirmed.

Holland & Holland, for appellant.

1. The Act had no legal existence after the two years limitation had expired, by reason of the failure to exercise the powers conferred, and the attempt to revive it in 1915 was in vain and unconstitutional. It could not be amended or revived. Const. Art. 5, § 23; 26 A. & E. Enc. L. (2d Ed.) 703; 90 Am. St. 153. The Act was passed when it was approved by the Governor. 101 Ark. 473; 104 Id. 166. At the time of the passage of the Act of 1915, the original Act was not in existence nor susceptible of amendment.

2. The Bridge District was without authority to construct a bridge in Oklahoma. The Act of Oklahoma of March 7, 1913, and the consent and contract became a nullity when the Act of 1913 was not made operative within the two years.

3. The Act of Oklahoma is unconstitutional and void. Const. Okl art. 18, § 1, and art. 5, § 23; 45 Okl. 440.

4. The Bridge District had no authority to construct a bridge in Oklahoma, even if the Legislature of that State had consented. 114 Ark. 327; 81 Id. 293; 67 Id 37; 50 Id. 130; 125 Id. 330.

5. No provision in the Act to compensate owners of property abutting on Garrison Ave. for the change in grade in that street. 98 Ark. 205.

6. The plans and specifications for the bridge are in violation of the Acts of Arkansas, Oklahoma and Congress, all of which are "from the foot of Garrison Ave." Now it is planned to start the bridge 300 feet back from the foot of Garrison Avenue.

James B. McDonough, for appellees.

1. The Act (104) of 1913 was legally in existence after the two years, without any vote. 5 Ohio St. 497, 524. It was amended and revived by the Acts of 1915 in time. 61 Ark. 226; 2 Gray 84; 114 Mech. 655; 71 N.W. 941; 107 P. 71; 120 P. 555; 151 Id. 114; 87 S.E. 622; 2 Iowa 165; 84 Me. 58; 56 Kans. 81; 7 Martin (La.) 469; 2 La. 344.

2. Our Constitution does not prohibit the amendment of a suspended statute, nor even one repealed. 1 Ark. 279; 99 Id 100.

3. The amending Act relates back to and becomes a part of the original Act. 49 N.E. 370; 64 Id. 862; 59 L. R. A. 190; 68 N.E. 1019; 78 Id. 446; 108 N.W. 772; 184 S.W. 1; 117 Ark. 606; 174 S.W. 248; 149 N.W. 137.

3. The law of 1913 was not in force until 90 days after the adjournment of the Legislature. The 1915 Act was passed in time. 179 S.W. 181.

4. The District is not without authority to construct the bridge because part of it is in Oklahoma. Acts Okl. 1915 p. 43. Appellant cannot raise this question. States have power to construct bridges. 5 Cyc. 1054; 4 A. & E. Enc. L. 922. The Act of Oklahoma is constitutional. 36 Cyc. 838. But the Legislature has power to construct a bridge partly in a sister State. 96 Ark. 410; 104 Id. 425; 109 Id. 433; 125 Id. 330; 5 Cyc. 1054; 114 Ark. 324; 168 S.W. 1074; 103 Id. 1034; 29 Conn. 356; 32 F. 9; 153 U.S. 525; 21 Oh. St. 14; 83 U.S. 667; 61 N.H. 433; 6 Ga. 130; 188 S.W. 822; 125 Ark. 325, etc., etc.

5. It is unnecessary to make provision in the Act for damages to property taken. The general law makes that provision.

6. The plans, etc., do not violate the Acts of Arkansas, Oklahoma or Congress. 68 N.Y. 450; 18 S.W. 391; 1 Ark. 171. See 23 So. 532; 22 N.H. 53; 70 Ill.App. 239; 24 S.W. 950; 12 S.E. 741; 64 Ark. 627; 43 So. 131; 48 S.E. 661; 78 S.W. 522. At means near.

7. It is not necessary to have the consent of the real property owners. 120 Ark. 278; 99 Id. 100; 97 Id. 322; 118 Id. 119. See also 99 Id. 100.

H. C. Mechem, Amicus Curiae.

The Act never became "operative" or effective. It could never be amended or revived.

MCCULLOCH C. J. WOOD and HART, JJ., dissent.

OPINION

MCCULLOCH, C. J.

Appellant, who is the owner of real property within the territory designated in a special statute as the Sebastian County Bridge District, instituted this action in the court below against the district and the commissioners thereof to enjoin proceedings to-word the construction of the improvement, the levying of assessments, and issuance of bonds. The attack is upon the validity of the statute, as well as upon the regularity and legality of the proceedings thereunder.

The statute creating the improvement district was enacted by the General Assembly of 1913 (Acts of 1913, p. 380) and the purpose was to authorize the construction and maintenance of a bridge across the Arkansas River from the foot of Garrison Avenue in the City of Fort Smith to the opposite shore in Oklahoma. The whole of Upper Township in Sebastian County, including the city of Fort Smith, is embraced in the district. The creation of the district was declared in the statute, the commissioners were named therein, and authority was granted upon certain conditions to construct said improvement, to levy and enforce assessments of benefit to real property, to pay for the cost of the thing, to issue bonds and do all other things necessary to accomplish the results provided for. Section 5 of the statute provided, in substance, that within thirty days after its passage the commissioners named should organize themselves into a board by taking an oath of office and by the selection of certain officers. Section 6, the phraseology of which presents the principal point of controversy in this litigation, reads as follows:

"Immediately upon the organization of said commission, or as soon thereafter as is convenient, they shall give public notice of the passage of this Act and of their organization, and the purposes of said Act, and that the public improvement herein contemplated is conditioned upon its approval by a majority in value of the owners of real estate within said district or a majority of the electors voting in a special election which may be held upon this Act. This Act may be submitted in either or both of the following modes to determine whether it shall become operative:

"A. If, at any time within two years from the passage of this Act, a petition or petitions purporting to be signed by a majority in value of the owners of real property within said district is filed with said commission, the commission shall give public notice of said fact in at least one daily newspaper published in Fort Smith and set a day and place for the hearing not less than twenty days after the first publication of said notice; and, at said place and time so designated, the commissioners shall examine the petition or petitions filed, and examine the assessment of the real property within said district, and, for the purpose of said hearing, may adjourn from day to day or from time to time until said hearing is completed, at which hearing any land owner in the district may be heard and evidence may be taken in such manner as the commission may deem proper to determine the facts as to whether said petition or petitions are signed by a majority in value of the land owners in said district, as shown by the last county assessment of the lands within said district.

"If at said hearing the commissioners shall find that the petition or petitions are not signed by a majority in value of the land owners of said district, as shown by the last county assessment, they shall so declare, and such findings shall terminate proceedings under this Act, unless within the term herein limited another petition or petitions purporting to be signed by a majority in value of owners of real estate in the district is filed with the commission, when like proceedings shall again be had to determine whether a majority in value of the land owners of the district have signed such petition or petitions; provided, the finding that a majority in value has not petitioned for the improvement shall not bar the Act from becoming effective as provided in paragraph 'B' of this section.

"If said commission shall find that said petition or petitions are signed by a majority in value of the land owners of the district as shown by the last county assessment, they shall so declare and shall proceed to carry out the purposes of this Act. And in either event public notice shall be given in at least one daily newspaper published in Fort Smith of said fact, and a copy of their findings shall be filed with the county court of the Fort Smith District of Sebastian County.

"B. The commission may call at any time within two years an election to determine whether this Act shall become operative and may call subsequent elections after the Act has failed to carry if the commission has good reason to believe that a majority of the electors then favor the Act. The election held under this section shall be held conformable as near as possible to the laws of the State governing general elections. The commissioners shall perform the duties of county election commissioners as near as applicable. All citizens of Upper Township who possess a right to vote if said election were a general election for State officers, and no others, shall be entitled to vote in said election.

"The commission shall canvass the vote cast at such special election, and, if the commission shall find a majority of the votes cast in said election were in favor of this Act becoming operative, they shall so declare and shall proceed to carry out the purposes of this Act.

"Public notice shall be given of their findings in either event in at least one daily newspaper published in Fort Smith, and copy of their findings shall be filed with the county court of the Fort Smith District of Sebastian County.

"It is the intent of this section to permit this Act to become operative if it is approved at any time within two years in either of the foregoing methods and...