Hamill v. Hawks

• Decision Date: 14 April 1932
• Docket Number: No. 511.,511.
• Citation: 58 F.2d 41
• Parties: HAMILL et al. v. HAWKS et al.
• Court: U.S. Court of Appeals — Tenth Circuit

58 F.2d 41 (1932)

HAMILL et al. v. HAWKS et al.

No. 511.

Circuit Court of Appeals, Tenth Circuit.

April 14, 1932.

Charles B. Cochran, of Oklahoma City, Okl. (Ames, Cochran, Ames & Monnet, of Oklahoma City, Okl., on the brief), for appellants.

W. C. Lewis, Asst. Atty. Gen., and Purman Wilson, Co. Atty., of Purcell, Okl. (J. Barry King, Atty. Gen., and Person Woodall, Co. Atty., of Norman, Okl., on the brief), for appellees.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

LEWIS, Circuit Judge.

Appellants, citizens and residents of Illinois, brought this suit to obtain protection by writ of injunction of their claimed ownership of a bridge across the South Canadian River at Purcell, Oklahoma, and their alleged right to charge and collect tolls from the public for its use. The river is the dividing line between McClain and Cleveland counties. The bridge was constructed as a toll bridge under franchises from those counties and was operated as a toll bridge. The issue raised by motions to dismiss is one of law, — whether the franchises had expired when the order of dismissal was entered on May 29, 1931, from which this appeal was taken.

The two franchises, exhibited with the bill, were issued to Dorset Carter and Tom Halsell. The one from McClain county on April 22, 1911, and from Cleveland county on May 16, 1911. Each granted to Carter and Halsell and their assigns the right to construct, maintain, and operate the bridge as a toll bridge and collect tolls thereon. They prescribed the same schedule of tolls to be charged, followed by this paragraph:

"The tolls above enumerated shall not be increased by the Bridge Company except as is now, or may hereafter be legally provided, but may be reduced by said Bridge Company upon the posting by them of proper notices as is provided by law."

Each of the franchises also contained this:

"That the grants herein made shall be perpetual, subject only to such limitations as is by law now or may hereafter be provided."

They further stated that the grantees might transfer all their rights and privileges to any individual or corporation organized under the laws of the State of Oklahoma, and that their assigns should collect the tolls.

On May 18, 1911, Dorset Carter, appellant Walling, and one Hamill caused the Purcell-Lexington Toll Bridge Company to be incorporated as an Oklahoma corporation, and the franchises that had been granted to Carter and Halsell by the two counties were transferred to the corporation. It completed the bridge, maintained and operated it, and received tolls until April 2, 1931, when it conveyed by deed whatever rights it had in the bridge and franchises to Walling, Hamill, and Carter. Carter later conveyed his interest to Hamill and Walling. This bill was filed on May 15, 1931, three days before the corporate life of the bridge company expired. It names as defendants the three members of the state highway commission, the attorney general of Oklahoma, the county attorneys of the two counties and six individuals, three of whom reside in McClain county and three in Cleveland county. The bill of complaint alleged:

"That the defendants, and each of them, are contending that the right to operate said toll bridge and to collect tolls from persons using the same will terminate with the corporate existence of the Purcell-Lexington Toll Bridge Company on the 18th day of May, 1931, and that the said bridge will at that time become a free bridge and a part of the State Highway System of the State of Oklahoma, with the right and privilege of the citizens of the State of Oklahoma to use the same as a public highway without the payment of tolls."

It is further alleged that the franchises to operate the bridge as a toll bridge and collect tolls thereon were granted to individuals and not to the corporation; that they continue in full force and effect in accordance with their terms; that the right to continue in possession and operation of the bridge and take tolls is now in the plaintiffs; that the three members of the state highway commission will, unless restrained by the court, take charge of said bridge as a part of the highway system of the state in violation of plaintiffs' rights under said franchises and thus deprive plaintiffs of their property for the use and benefit of the traveling public without compensation, and thus deprive them of the right to continue in possession of said bridge and the collection of tolls from persons using the same; that the attorney general of the state has threatened to institute proceedings against complainants to deprive them of their claimed rights, and contends that if complainants collect tolls after May 18, 1931, they will be subject to a forfeiture of $25.00 to each person from whom toll is collected and will further be guilty of obstructing the public highway and thus be subject to a fine not exceeding $100.00 for each offence; that the county attorney of each of said counties threatened like proceedings against complainants; that citizens of the state who use and who will continue to use said bridge are so numerous that it is impossible to make all of them parties, and the six individual defendants are named as defendants as fairly representative of the entire class of citizens who travel over and across said bridge; that because of these threatened prosecutions, both civil and criminal, the invasion of plaintiffs' rights and the taking of their property without right and without compensation, they have no adequate remedy at law; that they will be subjected to a multiplicity of suits by the defendants, and by other citizens of the state who will desire to use said bridge, and because thereof they ask that the writ of injunction may issue and their claimed rights adjudicated.

The two county attorneys and the individual defendants moved to dismiss on the ground that the bill did not state facts sufficient to entitle the plaintiff to relief. The attorney general and members of the state highway commission moved to dismiss on the same ground and also on the additional ground that the suit was one against the state.

Obviously, the suit is not in terms against the state, and whether the joining of the attorney general and the members of the state highway commission as defendants has the effect of making it a suit against the state insofar as they are parties depends upon an examination of the bill on its merits, which apparently charges that those officers are threatening to commit acts without right or in excess of their powers. If so construed, when controlling principles of law are applied to the allegations of the bill, the suit would not be one against the state. Reagan v. Farmers' L. & T. Co., 154 U. S. 362, 390, 14 S. Ct. 1047, 38 L. Ed. 1014; Old Colony Trust Co. v. City of Seattle, 271 U. S. 426, 431, 46 S. Ct. 552, 70 L. Ed. 1019; Poindexter v. Greenhow, 114 U. S. 270, 285, 330, 5 S. Ct. 903, 962, 29 L. Ed. 185, 207; Weiland v. Pioneer Irr. Co. (C. C. A.) 238 F. 519; Missouri, K. & T. Ry. Co. v. Missouri Warehouse Commissioners, 183 U. S. 53, 59, 22 S. Ct. 18, 46 L. Ed. 78; Magruder v. Belle Fourche Valley Water Users' Ass'n (C. C. A.) 219 F. 72, 78; Ex parte Young, 209 U. S. 123, 28 S. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. S.) 932, 14 Ann. Cas. 764. We turn then to the other ground of the demurrer.

The bill of complaint alleged that the Purcell-Lexington Toll Bridge Company was organized on May 18, 1911, for the purpose of erecting, constructing, and maintaining, or to lease or purchase and operate the toll bridge and approaches thereto over and across the South Canadian River at or near the city of Purcell, McClain county, Oklahoma, to the east bank of said river in Cleveland county, said state, for the passage of footmen, passengers, cattle, and vehicles of all kinds, and all wires for the transmission of electric currents for speech, light or power, and for pipes and mains for water and gas, and to collect and receive tolls for such service, and to lease or sell such rights over said bridge and the approaches thereto; that said articles of incorporation provide: "That the term for which the corporation is to exist is twenty years."

Article 6 of chapter 34, Compiled Oklahoma Statutes, 1921 (section 5366 et seq.), is entitled "Bridge Corporations." The first section under that article, numbered 5366 of the compilation, reads thus:

"The term of existence of a bridge corporation shall not exceed twenty years; and in addition to the matters required by section 5304 of said statutes every corporation formed for the purpose of constructing a bridge over any stream of water must, in the articles of incorporation, specify as follows: The place where such bridge is to be built, over what stream; that the banks on both sides of the stream where such bridge is to be built are owned by such corporation, or that it has obtained in writing the consent of the owners of the banks, where the bridge is to be built, to build the bridge; or that the banks at such place are included within and part of a public highway, and in such case that the consent in writing of the board of county commissioners of the county or counties for the erection of such bridge by such corporation has been obtained, and it must file a certified copy of its articles of incorporation in the office of the register of deeds of the county or counties in which the bridge or any part thereof is situated or to be located: Provided, that nothing in this section shall be construed as regulating companies incorporated in the State of Oklahoma for the purpose of erecting and maintaining bridges across boundary streams or streams between the State of Oklahoma and any other state or territory."

The following section 5367 provides:

"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."

The Article further...