Garland Power & Development Co. v. State Board of Railroad Inc.

• Decision Date: 04 April 1910
• Parties: GARLAND POWER & DEVELOPMENT COMPANY v. STATE BOARD OF RAILROAD INCORPORATION
• Court: Arkansas Supreme Court

127 S.W. 454

94 Ark. 422

GARLAND POWER & DEVELOPMENT COMPANY v. STATE BOARD OF RAILROAD INCORPORATION

Supreme Court of Arkansas

April 4, 1910

Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk Judge; reversed.

Judgment reversed and cause remanded.

Moore Smith & Moore and H. M. Trieber, for appellant.

It is within the power of the court to alter the phraseology of a legislative act when such alteration is necessary to carry out the intention of the legislature. End. Int. Stat §§ 295, 319; 34 Ark. 263; 35 Ark. 56; 58 Ark. 113; 128 Pa.St. 593; 63 N.J.L. 291; 56 Wis. 425.

OPINION

FRAUENTHAL, J.

This is an appeal from a judgment of the lower court sustaining a demurrer to a petition for a writ of mandamus. The appellant alleged in its complaint "that it is a corporation organized under the general laws of the State of Arkansas providing for the incorporation of manufacturing and other business corporations, and that the chief and main business to be conducted by said corporation is the producing and manufacturing of electricity and electric current by water power for the purpose of furnishing power for manufacturing or reduction plants, for mining, milling or jigging operations, public utilities, and for furnishing light, heat and power;" that it owned a natural and principal power dam in Garland County. Arkansas, and had procured a charter for the development and operation of a water power. It further alleged that it had fully complied with the requirements of the act of the Legislature entitled "An Act to develop the Water Powers of this State," which became a law on May 13, 1905 (Acts 1905, p. 769); and in detail set forth the facts showing a compliance with the provisions of said act. It applied to the State Board of Railroad Incorporation for a franchise to erect such dam or dams in pursuance of said act of the Legislature; and it alleged that said Board of Railroad Incorporation refused to grant such franchise, basing its refusal upon the ground that it did not have the power under said act to grant such franchise. It asked in effect for a writ of mandamus directed to said Board of Railroad Incorporation requiring said board to exercise its power and jurisdiction to entertain and pass upon the application of appellant for said franchise.

By section 2 of said act of the Legislature entitled "An Act to develop the water powers of this State," it is provided that "the State Board of Railroad Commission is authorized to grant to such corporation the franchise of erecting such dam or dams, which franchise shall state the maximum compensation per horse power to be received by such corporation for the use of the power generated; such power to be furnished at its principal power house or central station." In this State it appears that there is no board or commission which is designated by the name of "The State Board of Railroad Commission," and the principal question involved in the determination of this appeal is what board or commission did the Legislature intend to designate as authorized to issue franchises of the character applied for by appellant. It is obvious that the Legislature did not intend to create some new board or commission with power to grant such franchise, for nowhere in the act is any provision made for such creation or the membership of such board or commission. It is therefore apparent that the Legislature intended to confer this power on some board or commission already in existence, and to add to it this new duty. There are and were at the time of the passage of said act only two boards or commissions in the State to which this power could have been given, towit "The State Board of Railroad Incorporation" and "The Railroad Commission of Arkansas." In order to arrive at the intent of the Legislature as to which of these boards or commissions it desired to name by this act, it is well to consider the duties imposed upon and the powers given to each of them by statute at the time of the passage of the act. For it is but reasonable to presume that the Legislature, in adding this duty to the board or commission then in existence, intended to place it with the board or commission having similar duties to perform. At the time of the passage of this act the principal duty of the "Railroad Commission of Arkansas" was to make reasonable and just rates of freight, express and passenger tariffs by persons or corporations operating railroad or express business in the State and to make rules and regulations therefor. It did not have the power nor was any duty imposed upon it to grant any franchise to any corporation. It was, however, at the time of the passage of this act the principal duty of the "State Board of Railroad Incorporation" to grant charters to railroads and thus to issue franchises. The duty imposed by the act of May 13, 1905, to issue franchises of the character herein applied for was similar to the duties that were then...