Hamill v. Hawks

• Citation: 50 F.2d 628
• Decision Date: 29 May 1931
• Docket Number: No. 1224.,1224.
• Parties: HAMILL et al. v. HAWKS et al.
• Court: United States District Courts. 10th Circuit. Western District of Oklahoma

50 F.2d 628 (1931)

HAMILL et al. v. HAWKS et al.

No. 1224.

District Court, W. D. Oklahoma.

May 29, 1931.

C. B. Cochran, of Oklahoma City, Okl. (Ames, Cochran, Ames & Monnet, of Oklahoma City, Okl., of counsel), for complainants.

J. Berry King, Atty. Gen. and W. C. Lewis, Asst. Atty. Gen., for defendants.

KENNAMER, District Judge.

The exhibits to the petition show that Carter et al. filed applications with the boards of county commissioners of Cleveland and McClain counties for permission to construct a bridge over the South Canadian river and to collect tolls. The board of county commissioners of McClain county on the 22d day of April, 1911, passed a resolution making the grants as prayed for; and the board of county commissioners of Cleveland county on the 16th day of May, 1911, did likewise. The grants in both resolutions are perpetual, subject to such limitations as are by law now or may hereafter be provided. Both resolutions further provide that the grants are assignable to any individual or corporation.

The McClain county resolution also provides that the bridge shall be erected within the time provided by law or else the authority granted shall lapse. The Cleveland county grant authorizes the grantees to use so much of the public highway as may be necessary. It is expressly provided that neither grant shall be exclusive. In both grants, reference is made to the "Bridge Company."

There is also attached to the complainants' petition an assignment to a bridge company of all the rights acquired by Carter et al., by virtue of the grants from the counties, together with that portion of the bridge which it is recited was then in process of construction and which was later completed by the corporation.

I am unable to find in the statutes any section expressly authorizing the construction of bridges within the state by individuals, but article 6 of chapter 34, C. O. S. 1921, provides for the incorporation of bridge companies.

Section 5366, C. O. S. 1921, limits the term of existence of such corporations to twenty years and provides further that the articles of incorporation shall give the location of the bridge and shall state if the corporation owns the banks on both sides of the stream; and if it does not own such banks, that it has obtained the consent of the owners thereof to the erection of the bridge; or if the banks at such places are included within and are a part of a public highway, that the consent of the board of county commissioners has been obtained.

Section 5367, C. O. S. 1921, is as follows: "No such corporation shall construct or take tolls on a bridge until authority is granted therefor by the board of county commissioners of the county or counties in which it is to be located."

Section 5368, C. O. S. 1921, provides that the corporate existence of a bridge company shall terminate unless it has obtained from the board of county commissioners the authority mentioned in section 5367, and unless it has within one year commenced the construction of its bridge. The second paragraph of this section provides that its corporate existence shall terminate if the bridge is not completed within three years from the issuance of the corporation's charter.

It is clear from a consideration of sections 5366 and 5367 that the latter section is a limitation upon the power of the corporation created under the authority of section 5366. Such corporation is not authorized after the construction of such bridge to collect tolls unless it obtains authority from the county commissioners of the county where such bridge is located, and it is quite plain the authority to collect tolls cannot be extended by the county commissioners granting such authority beyond the life of the corporation. This, for the reason it is only corporations chartered for a period of twenty years that have authority from the sovereign to build and construct and operate toll bridges over the streams of the state, and the authority is limited in time to twenty years to such corporation, and it is beyond the power of the county commissioners to authorize the collection of tolls by such corporations beyond the period of limitation fixed by the Legislature.

Article 18, chapter 34, C. O. S. 1921 (§§ 5625-5636) provides for the incorporation of wagon road corporations.

Section 5625, C. O. S. 1921, states that the road must be laid out as follows: Three commissioners appointed as specified must lay out the proposed road and report their proceedings, accompanied by a map, to the board of county commissioners.

Section 5626, C. O. S. 1921, provides that the report must give the road's general course, the principal points thereon, its width, and the same must then be either approved or rejected by the board of county commissioners.

Section 5627, C. O. S. 1921, provides that wagon road corporations may keep ferries or establish bridges on the line of their road, and that they may take only such tolls on their roads, ferries, or bridges as are fixed by the board of county commissioners of the county through which the road passes, or in which the ferry or bridge is situated.

Section 5636, C. O. S. 1921, reads as follows: "When a wagon, turnpike or plank road is constructed, owned or operated by any natural person, this article is applicable to such person in like manner as it is applicable to corporations."

It is obvious from the grants that the grantees were not endeavoring to proceed under the wagon road incorporation article. Nothing is said therein with reference to the commissioners, the survey, or anything about a road. This article clearly contemplates that bridges and ferries which may be established are for the purpose of connecting two sections of the road or are for the purpose of providing access to the road.

It would seem to be quite clear from the grants that an effort was made to comply with the bridge corporation article. No reference is made in either grant to any permission to construct a road. A bridge alone is referred to, and the grants from the commissioners contain express authority to collect tolls as is provided in section 5367, C. O. S. 1921.

It is set forth in the bill of complaint that this right to take tolls was granted to individuals who in turn assigned the same to a corporation, which constructed the bridge and which prior to the expiration of its charter conveyed the bridge together with the right to take tolls to complainants. The grant...