Fort Smith Light & Traction Co. v. Williams

• Decision Date: 13 June 1921
• Docket Number: 43
• Parties: FORT SMITH LIGHT & TRACTION COMPANY v. WILLIAMS
• Court: Arkansas Supreme Court

231 S.W. 890

149 Ark. 159

FORT SMITH LIGHT & TRACTION COMPANY v. WILLIAMS

No. 43

Supreme Court of Arkansas

June 13, 1921

Appeal from Sebastian Chancery Court, Fort Smith District; J. V Bourland, Chancellor; reversed.

Decree reversed and complaint dismissed.

J B. McDonough, for appellant.

1. The contract is a valid and binding contract under § 2 of act 119, Acts 1919, p. 328. See Acts 1913, pp. 1003-4. The validity of the act is settled in 115 Ark. 194-209. The traction company, as the evidence shows, complied with act 571, Acts 1919, p. 411. The contract is valid, as it provides for a money consideration and for the time and amounts of payment, and the act is valid. 140 Ark. 597. The traction company is the common carrier. The collection of fares makes the person a passenger of the traction company. Michie on Carriers, pp. 1503, 1491; Nelle's Street Railways, § 248. The bridge district is not a common carrier. Collectors of fares are agents of the traction company and of the bridge district. Legally, the traction company is compelled to collect the charge and can collect no more nor less. Act 571, Acts 1919; C. & M. Digest §§ 849, 850, 917-18-19 and 1631. It performs the service and owns the compensation. The traction company is a common carrier, and to sell at a reduced rate to one class and deny it to others is a violation of constitutional rights. 173 U.S. 684. Hence it can not sell its service to landowners at one price and to non-landowners at another. This suit is an indirect, if not a direct, attack on 115 Ark 194. A street car company is a common carrier. Beale & Wyman on Railroad Rate Regulations, § 188; 173 U.S. 684. No street car company can discriminate in its charges between passengers. 96 Ark. 410; 98 Id. 543; 119 Id. 254. The increase of value of the assessments is the sole basis for these assessments. 89 Ark. 513.

2. Sound reason supports the arrangement in the contract. A toll is a charge made against a person who walks or travels in his own conveyance over a bridge. 30 N.J.L. 447.

A common carrier has a right to refuse any ticket, detached and presented in violation of the rule that a ticket is not transferable. 77 Tenn. 180; 82 Va. 250; 51 A. 406; 3 Michie on Carriers, p. 2442.

The right of the State or district to charge a rental is well settled. 96 Ark. 410; 115 Id. 194; 79 A. 161.

3. The evidence does not support the findings of the chancellor. The act of 1919 prohibits discrimination. See Acts 1919, p. 325. The act has been construed by our court. 96 Ark. 410. The right to charge public utilities for the use of the bridge is settled. 113 Ark. 493. See 94 A. 988; 44 Id. 385; 113 Ark. 493.

4. The court erred in refusing to admit testimony to show that plaintiffs were not the real parties in interest, but the real question is whether the contract is valid.

Hill & Fitzhugh, for appellant also.

The contract is within the Nakdimen decision. 115 Ark. 194. No statute has been changed since that session.

Webb Covington, for appellees.

The chancellor properly held the contract was ultra vires and void. 79 Ark. 234; 115 Ark. 207-9.

The right to demand tolls of the public for crossing a bridge exists only by reason of statutory enactment. 76 Ga. 644. No toll can be demanded not lawfully within the franchise. 26 Me. 326; 11 Am. Dec. 170. Nothing passes in legislative grants to corporations but what is granted in clear, unequivocal and explicit terms. 15 Wallace (U. S.) 500; 101 Id. 71. See, also, 9 Howard (U. S.) 172; 20 Ark. 625.

WOOD J. Mr. Justice HUMPHREYS not participating.

OPINION

WOOD, J.

This action was brought by the appellees, residents and real property owners of the Fort Smith and Van Buren Bridge District (hereafter called bridge district), against the bridge district and the Fort Smith Light & Traction Company (hereafter called traction company). The traction company is an Arkansas corporation engaged in the operation of a street railway in and between the cities of Fort Smith and Van Buren. The cars of the traction company run upon and over the bridge of the bridge district which spans the Arkansas River between the cities of Fort Smith and Van Buren. The appellees alleged that the bridge district was requiring of them and other owners of real property in the bridge district to pay a bridge fare or toll of 1 1/4 cents for each ticket purchased or five cents per passenger cash fare if no ticket had been purchased; that the traction company permitted the agents of the bridge district to collect the fares; that no charge was made against any person for crossing the bridge except those who were passengers of the traction company; that appellees and other real property owners of the bridge district were taxed for the construction and maintenance of the bridge, and this bridge fare against them was discriminatory and illegal because other passengers of the traction company who were not owners of real property in the bridge district were allowed to cross over the bridge on the traction company's cars upon the payment of the same fare or toll as that paid by the appellees and other real property owners in the bridge district. The appellees further alleged that the bridge district was not collecting from the traction company any sum whatever for the use of the bridge; that all sums realized by the bridge district from the bridge fares collected from passengers on the cars of the traction company crossing the bridge were paid by the appellees and other passengers of the traction company, and not by the traction company; that the bridge had therefore been converted by the bridge district into a toll bridge contrary to the provisions of the act creating the bridge district.

The appellees instituted the action for the benefit of themselves and all others similarly situated, and prayed that the bridge district and the traction company be restrained from charging and collecting the bridge fares mentioned.

The bridge district and the traction company answered separately, setting up substantially that the act creating the bridge district and act 233 of the Acts of 1913 amending the same authorized the bridge district to grant a right-of-way over the bridge upon such terms as might be provided by contract between the bridge district and the public utility, which contract was required to be submitted to the electors of the bridge district through referendum; that a contract was entered into by the bridge district and the traction company which was duly submitted to the legal voters through referendum as provided by the act and was ratified and approved by them; that the bridge district and the traction company were complying with the terms of that contract, and they set up the contract as a justification for the charges of which the appellees complain and as a complete defense to their action. The contract was made an exhibit, and attached to the answers, and was proved and introduced in evidence.

The contract is too long to set forth in haec verba. It is in sections, and we will abbreviate and state in substance such of its provisions as we deem necessary.

In the first section the bridge district, for the considerations thereinafter named, grants to the traction company the right to use the free bridge and its approaches for the term thereinafter mentioned for the transportation of its passengers. This section specifically sets forth the things that the traction company is authorized to do in order to enable it to operate its passenger cars across and over the bridge and its approaches. It also specifically sets forth the things which the traction company is not authorized to do, confirming what had already been done by the traction company under a former contract and reserving in the bridge district the right to supervise and approve such improvements as the traction company should make in the future.

In the second section it is expressly agreed that, in consideration of the execution and performance of all of the terms of the present contract, any and all claims of the bridge district growing out of the use of the bridge and its approaches by the traction company prior to the execution of the present contract are waived. If the contract is not performed, then the bridge district does not relinquish its claim for rentals under former contract.

The third section contains reciprocal obligations by which the bridge district is to maintain the bridge and its approaches in good condition, and the traction company is to maintain in good condition its rails, wires, railway feeders, and ties on the approaches to the bridge.

The fourth section provides that the traction company shall not have exclusive use of the bridge, and that the trolley erected by the traction company may be used by any other public utility upon payment of just compensation, and that the use of the bridge by the traction company shall not interfere with the use of the bridge as a public highway.

By the fifth section the traction company agrees to maintain a schedule of cars, and the bridge district permits the traction company to stop its cars at both ends of the bridge to receive and discharge passengers, "but in so doing there shall be collected, as hereinafter provided, a fare for the benefit of the bridge for every passenger who rides over the bridge or any part thereof, or any part of the approaches thereto. It is expressly agreed that the traction company shall aid the bridge district to collect the fare for the benefit of the district and shall do nothing which will tend to defeat the right of the district to collect the rental by way of fare as herein provided. The fare collected for the benefit of the district is the rental to be paid by the company for the use of the bridge. The method of collecting...