Ft Smith Light & Traction Co. v. Bourland

• Decision Date: 18 June 1923
• Docket Number: (No. 46.)
• Citation: 254 S.W. 481
• Parties: FT. SMITH LIGHT & TRACTION CO. v. BOURLAND et al., City Com'rs.
• Court: Arkansas Supreme Court

Page 481

254 S.W. 481

FT. SMITH LIGHT & TRACTION CO. v. BOURLAND et al., City Com'rs.

(No. 46.)

Supreme Court of Arkansas.

June 18, 1923.

Rehearing Denied October 8, 1923.

Appeal from Circuit Court, Sebastian County; John E. Tatum, Judge.

Petition by the Ft. Smith Light & Traction Company to Fagan Bourland and others, City Commissioners of the City of Ft. Smith. On denial of its petition, petitioner filed its petition in the circuit court, from whose judgment affirming the order of the commission, petitioner appeals. Affirmed by equally divided court.

Hill & Fitzhugh, of Ft. Smith, for appellant.

Fadjo Cravens and Daily & Woods, all of Ft. Smith, for appellees.

McCULLOCH, C. J.

Appellant is a corporation owning and operating a street car system in the city of Ft. Smith, and this case involves the right of appellant to remove and abandon a portion of its track along one of the streets of the city, contrary to the orders of the city commissioners — the city of Ft. Smith being operated under a commission form of government.

Appellant formerly operated under a franchise granted by the city government many years ago, but during the existence of the Corporation Commission, under the Act of April 1, 1919 (Crawford & Moses' Digest, § 1607 et seq.), it surrendered its charter and received what is designated as an "indeterminate permit" (Crawford & Moses' Digest, §§ 1655, 1656), and has continued to operate since that date under said permit. The Act of February 15, 1921 (Gen. Acts 1921, p. 177), abolished the Corporation Commission and restored to municipal governments the control and supervision of street railroads and certain other public service utilities operating within municipalities.

On November 7, 1922, appellant presented a petition to the city commission of Ft. Smith, pursuant to section 10 of the last statute referred to, for permission to abandon and remove its track on Greenwood avenue and discontinue service to that extent. There was a hearing before the city commission, and permission to remove and abandon the track on Greenwood avenue was denied, whereupon appellant filed its petition, or complaint, in the circuit court of Sebastian county, setting forth the grounds upon which it claimed the right to discontinue service and remove its track on Greenwood avenue, and praying that the circuit court make an order such as should have been made by the city commission, on petition of appellant granting permission to appellant to cease operating the line on that street. Appellees — the city commissioners — filed a response, denying the allegations of appellant's complaint with respect to the grounds for abandonment of the track on Greenwood avenue, and upon the issues thus framed there was a trial of the cause in the circuit court, which resulted in a judgment denying the relief prayed for by appellant and affirming the order of the commission. An appeal has been prosecuted to this court.

Section 19 of the Act of February 15, 1921, supra, provides that any person, firm, or corporation aggrieved by any order made by a municipal council or city commission pursuant to the authority conferred under that statute —

"shall have the right to have said action on the part of such municipal council or city commission reviewed as to its legality, validity, fairness and reasonableness, by the circuit court of the county in which said municipal council or city commission is located. * * * Said review, however, by said circuit court shall be made: Provided, and upon condition, that the applicant files in said court or in the office of the clerk thereof within sixty (60) days after making of such order or ordinance or rate as to which the appeal is desired, its petition or complaint as in other cases setting out the order or ordinance or rate or other matter therein complained of, therein alleging according to the usual rules of pleading facts showing that the applicant is entitled to the relief therein prayed, upon which complaint summons shall be issued and served in the manner and for the time as in other circuit [court] cases; the said appeal in the circuit court shall proceed de novo."

In the brief of counsel for appellant attention is called to the fact that the complaint filed by appellant is applicable either in an independent action to prevent unlawful restraint by the city commission, or to a complaint or petition in the nature of appeal under the statute. No point of objection is made by counsel for appellees to this method of treatment of that subject, as either in a review by the methods prescribed by the statute or by an independent action, if the statute may be ignored and an independent action for relief instituted, there is a hearing de novo, and the same facts are considered and like principles of law are applicable in either case, in determining the right of appellant to discontinue service as claimed. In the case of St. Louis-Southwestern Ry. Co. v. Stewart, 150 Ark. 586, 235 S. W. 1003, we decided that a similar provision in the act of 1919, supra, afforded a judicial review de novo of the orders of the commission.

The question presented for our decision on this appeal is whether the order of the commission refusing to grant permission to appellant to abandon the track and service in question is reasonable, or whether it is unreasonable and arbitrary, and operates as a confiscation of appellant's property. The first question to be considered in this connection is the extent of and purpose for which we may consider the testimony in the case.

Section 21 of the Act of February 15, 1921, supra, provides for appeals to the Supreme Court from judgments of the circuit courts at the instance of the party aggrieved, and further provides that:

"Any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable."

We have not heretofore interpreted the latter part of the statute, nor determined the question of its constitutionality, but, on the contrary, we have pretermitted a decision of that question in several cases which have arisen since this statute and the act of 1919, supra, were enacted. St. L. S. W. Ry. Co. v. Stewart, supra; Clear Creek Oil & Gas Co. v. Ft. Smith Spelter Co., 148 Ark. 260, 230 S. W. 897.

Counsel for appellees insist that the statute making it the duty of this court to review the evidence and determine its weight is unconstitutional. We deem it inappropriate to further postpone the decision of this important question, and we proceed to pass upon the validity and constitutionality of the statute at this time. It is argued that the imposition of this duty upon the Supreme Court offends against the provision of the Constitution which limits the jurisdiction of this court to appellate and supervisory jurisdiction. Constitution, art. 7, § 4. The Constitution in plain terms declares that the Supreme Court shall exercise only appellate jurisdiction, except in the single instance of issuing writs of quo warranto to circuit judges and chancellors and to officers and political corporations "when the question involved is the legal existence of such corporations." Constitution, art. 7, § 5.

We have often in the decision of this court declared that it was beyond the power of the Legislature to confer original jurisdiction upon this court. The question, therefore, narrows to the inquiry whether this statute is an attempt to confer original jurisdiction, and whether its observance by this court would come within the exercise of appellate jurisdiction as known and understood at the time of the adoption of the Constitution. In Harding v. State, 94 Ark. 65, 126 S. W. 90, the following statement is found:

"The Legislature cannot add to or take from the jurisdiction vested in it by the Constitution. It cannot vest it with the jurisdiction to try capital offenses on appeal or writ of error as the circuit court. It is only for errors of that court that it has been or can be vested with jurisdiction to reverse or modify the judgments of such courts. Unless it appears that the circuit court has committed errors, this court can only affirm."

That case is not, we think, decisive of the question now presented, for the point in that case was whether or not the Legislature had attempted to compel this court to hear capital cases de novo, and whether the Legislature could do so. That was a case falling within the provision of the Constitution guaranteeing the right of trial by jury, and declaring that the trial court shall not charge upon the weight of the evidence. The present case falls within that class of cases in which there is no constitutional guaranty of trial by jury, not being a case which was triable by a jury at common law. Govan v. Jackson, 32 Ark. 553; State v. Churchill, 48 Ark. 426, 3 S. W. 352, 880; Wheat v. Smith, 50 Ark. 266, 7 S. W. 161; Drew County Timber Co. v. Board of Equalization, 124 Ark. 569, 187 S. W. 942; Missouri Pacific R. R. Co. v. Conway County Bridge Dist., 134 Ark. 292, 204 S. W. 630.

The Constitution itself affords no definition of the term "appellate jurisdiction," and does not in terms prescribe its extent and limit. We find nothing which would lead to the belief that at the time of the adoption of the Constitution the term "appellate jurisdiction" excluded the idea of an inquiry as to the weight of the evidence. In all our decisions on the subject it has been held that this court may in equity cases determine the weight of the evidence, and this rule has been established upon the theory that no constitutional guaranty is impaired by a review in this court to that extent. The rule that this court should not determine the weight of the evidence in cases at law is based primarily upon the fact that there is a constitutional guaranty of trial of issues of fact by a jury, which would be encroached upon if ...