Ft. Smith Light & Traction Co. v. Board of Improvement
| Decision Date | 19 October 1925 |
| Docket Number | (No. 185.) |
| Parties | FT. SMITH LIGHT & TRACTION CO. v. BOARD OF IMPROVEMENT OF PAVING DIST. NO. 16. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Sebastian County; John E. Tatum, Judge.
Suit by the Board of Improvement of Paving District No. 16 against the Ft. Smith Light & Traction Company. Judgment for plaintiff, and defendant appeals. Judgment affirmed.
Hill & Fitzhugh, of Ft. Smith, for appellant.
G. L. Grant, Geo. W. Dodd and Daily & Woods, all of Ft. Smith, for appellee.
This suit was instituted by appellee against appellant in the Ft. Smith district of Sebastian county, under authority of Act No. 680 of the Acts of 1923, to recover $11,272.97 for paving that portion of certain streets occupied by appellant's street railway. The act, as originally introduced, was general in its nature, applying to all street railways of a certain class in the state, but, as finally passed, was a local act, aimed at the street railway system being operated in the Fort Smith district of Sebastian county, and in a part of Crawford county. The act, as passed, imposed the duty on appellant company, and under certain conditions and upon notice, to pave the streets between its rails and to the end of its ties; and, upon failure to do so, permitted the improvement district in which the tracks were laid to pave the spaces between the rails and to the ends of the ties at the expense of the street railway company. Appellee complied with all the provisions of said act. Appellant refused to comply with the notice and to do the paving. Appellee then paved that portion occupied by the street railway of appellant at a cost of $11,272.97.
The cause was submitted to the court, sitting as a jury, upon the pleadings and testimony, from which the court made the following finding:
"That the expenditure so made by the plaintiff (appellee) was justified and necessary under the facts; that the condition of the pavement between the rails and to the end of the ties of the tracks of the defendant (appellant) on said three streets was such that it was necessary and proper for the plaintiff to do said work and to expend said sums of money."
Appellant's main defense to the action was the alleged invalidity of Act No. 680 of the Acts of 1923, which was made the basis of the suit. Appellant attacked the constitutionality of the act upon the grounds: First, that notice of the intention to apply for the act was not given in the locality to be affected 30 days prior to the introduction of the bill into the General Assembly, as required by article 5, § 26, of the Constitution of Arkansas; second, that the act offends against the Fourteenth Amendment to the federal Constitution and the state Constitution in being an arbitrary classification in operating on one company alone, while another company in the same classification is exempted from its terms; and, third, that the act was in violation of the federal and state Constitutions prohibiting the impairment of the obligations of contracts.
1. The act in question was a local bill passed at a regular session of the Legislature. It is true that it was introduced as a general bill and by amendment converted into a local bill, but this does not prove that notice was not given in apt time that application would be made for the local bill. Many general bills are converted by amendment into local bills before passage, and the presumption must be indulged that proper notice was given under the rule announced in Caraway v. State, 143 Ark. 48, 219 S. W. 736. The rule is that, where opportunity existed for giving the notice, it must be presumed that it was given.
2. The act does not offend against the clause of the Constitution inhibiting discrimination between parties similarly situated, because there is only one street railway in that particular locality. There is no other street car line in that particular locality to be classified, so the doctrine of classification has no application.
3. Prior to the passage of Act No. 571 of the Acts of the General Assembly of 1919, appellant operated its street railway system under charters from the cities of Ft. Smith and Van Buren, which were of a contractual nature, made subject, however, to article 12, § 6, in our state Constitution. Camden v. Arkansas Light & Power Co., 145 Ark. 205, 224 S. W. 444. Under the provisions of said Act 571 of 1919 appellant surrendered its charter rights, and accepted an indeterminate permit from the state to...
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