Hot Springs Electric Light Co. v. City of Hot Springs

• Decision Date: 22 March 1902
• Citation: 67 S.W. 761
• Parties: HOT SPRINGS ELECTRIC LIGHT CO. v. CITY OF HOT SPRINGS.
• Court: Arkansas Supreme Court

67 S.W. 761

HOT SPRINGS ELECTRIC LIGHT CO. v. CITY OF HOT SPRINGS.

Supreme Court of Arkansas.

March 22, 1902.

Appeal from circuit court, Garland county; Alexander M. Duffle, Judge.

Action by the city of Hot Springs against the Hot Springs Electric Light Company to recover for the use and occupation of certain streets by defendant's poles. Judgment for plaintiff, and defendant appeals. Reversed.

On the 13th day of August, 1887, the city council of Hot Springs passed an ordinance granting to the Hot Springs Electric Light Company the right to erect poles in the streets of said city, the first section of which ordinance is as follows: "That the Hot Springs Electric Light Company shall be, and is hereby, authorized and empowered to erect and raise poles and posts and run wires upon, over, and across all the streets, avenues, alleys, and public places, and to maintain an electric light in the city of Hot Springs for the period of twenty years after the 10th day of August, 1887." Under this ordinance the Hot Springs Electric Light Company built an electric light plant for the purpose of lighting the city, placed poles in the streets, and strung wires over the poles, at an expense, altogether, of many thousand dollars. Afterwards, in January, 1894, the city of Hot Springs entered into a contract with the electric light company by which the company agreed to light the streets of the city by furnishing and keeping burning during every night a certain number of are lights, of not less than 1,600 candle power; the lights to be located at points designated by the city council; the company agreeing to forfeit and pay to the city $5 per day "for each light it failed to furnish for each day after sixty days from the date of the contract." This contract was to be in force for the term of 10 years from the 1st day of January, 1894. Under the ordinance and contract above mentioned, the electric light company had, by means of the plant, poles, and wires which it erected in pursuance of the ordinance, furnished light to the city and its inhabitants. Afterwards, in 1896, and while the electric light plant was in full operation, the city council passed another ordinance, requiring every person, firm, or corporation that "now has or may hereafter erect poles upon any of the streets or alleys of the city of Hot Springs for telegraph, telephone, electric light, street car, or other purposes to pay to the city annually therefor the sum of fifty cents for each and every pole so erected and maintained." The city afterwards brought this action to recover of the electric light company the sum of $171.25 alleged to be due for poles by virtue of the ordinance last mentioned. The company filed an answer denying its liability on the ground that its poles had been erected several years before the passage of the ordinance requiring the payment of 50 cents per pole, under a prior ordinance of the city, which it alleged the city could not change without the consent of the defendant. On the trial in the circuit court the court made the following declaration of law: "The court holds that the charge of fifty cents per year is in the nature of a rental charge for the use of the ground occupied by such poles, that there is nothing in the contract or ordinance exempting the defendant from a reasonable rental charge and that said charge is prima facie reasonable." And the court thereupon gave judgment in favor of the city, and the company appealed.

G. G. Latta and Rose, Hemingway & Rose, for appellant. A. Curl, for appellee.

RIDDICK, J. (after stating the facts).

This is an action by the city of Hot Springs against the Hot Springs Electric Light Company to recover a sum of money which the city claims of it for the use and occupation of certain portions of the public streets, upon which the company has erected its poles for electric light purposes. An ordinance of the city requires that each person, company, or corporation erecting and maintaining any pole in the streets of the city for electric light, telephone, or certain other purposes shall pay to the city 50 cents per annum for each pole so erected and maintained. We can agree with counsel for the city that it had the right to pass an ordinance of this kind, requiring persons and corporations erecting poles in the streets for purposes mentioned in the ordinance to pay for that privilege, but it does not follow that the city can in that way affect rights already vested under valid contracts. Now, the ordinance imposing the charge of 50 cents a pole was passed in 1896; but the poles of ...