Hughes v. Arkansas & O. Ry. Co.

• Decision Date: 11 February 1905
• Docket Number: (Nos. 5,058, 5,469.)
• Parties: HUGHES, Mayor, v. ARKANSAS & O. RY. CO. INCORPORATED TOWN OF GRAVETTE v. SAME.
• Court: Arkansas Supreme Court

85 S.W. 773

HUGHES, Mayor, v. ARKANSAS & O. RY. CO.

INCORPORATED TOWN OF GRAVETTE v. SAME.

(Nos. 5,058, 5,469.)

Supreme Court of Arkansas.

February 11, 1905.

Appeals from Circuit Court, Benton County, in Chancery, and from Circuit Court, Benton County; John N. Tillman, Judge.

Consolidated suits by the Arkansas & Oklahoma Railway Company against G. A. Hughes, mayor of Gravette, and by the town of Gravette against the plaintiff in the first suit. From a decree for plaintiff in the first suit, defendant therein appeals; and, from a decree granting insufficient relief in the second suit, plaintiff therein appeals. Reversed.

The ordinance referred to in the opinion is as follows:

"Ordinance No. 41.

"An ordinance to require railroads within the limits of the incorporated town of Gravette, Arkansas, to construct and maintain crossings, where the railroad crosses the public streets or alleys within the limits of said town.

"Be it ordained by the council of the incorporated town of Gravette, Arkansas:

"Section 1. That wherever any railroad corporation has constructed or shall hereafter construct a railroad across any public street or alley within the limits of said town, now established or hereafter to be established, such railroad corporation shall be required to so construct such railroad crossing, or so alter the roadbed of such public street or alley, that the approaches to said railroad bed, on either side, shall be made and kept at no greater elevation or depression than one perpendicular foot for every five feet of horizontal distance, such elevation or depression being caused by reason of the construction of said railroad: provided, that wherever there may be a cut of sufficient depth in the roadbed of any railroad at the crossing of any public street or alley, such railroad may be crossed by a good and safe bridge, to be maintained in good repair by the railroad company or corporation owning or operating such railroad.

"Sec. 2. That the crossings at all of the public streets in said town shall not be less than twenty feet in width at the surface or crown of said approaches: provided, that the crossing of Main street at the Kansas, Pittsburg and Gulf Railroad, where said railroad crosses said street, and where the Arkansas & Oklahoma Railroad crosses said street at the railroad crossing of the Kansas City, Pittsburg and Gulf by the Arkansas & Oklahoma, shall be of the width of (40 ft.) forty feet at the crown or surface of said crossing: provided, that the crossings and approaches at the alley shall be not less than (10 ft.) ten feet in width at the surface or crown of the approaches.

"Sec. 3. That whenever any railroad company or corporation shall neglect or refuse to construct or keep in good repair such crossing in the manner as prescribed in sections one and two of this ordinance, it shall be the duty of the marshal or street commissioner of said town to give written notice to the section foreman or boss of that part of the railroad within the limits of said town or to the station agent of said railroad company or corporation in the following form: `Gravette, Benton County, Ark., _____, 19__. To the _____ of the ____ Railroad: You are hereby notified that the crossing of the public street named ____ or alley between lots ____ and ____ in Block ____ in said Town of Gravette, Arkansas, is not constructed or maintained as required by Ordinance No. ____ of said Town. And you are hereby requested to so construct or change the construction of said Crossing within the next sixty days that it shall conform to the terms and requirements of said Ordinance. ____, Marshal of the Town of Gravette, Ark. ____, Street Commissioner of the Town of Gravette, Ark.'

"Sec. 4. The marshal or street commissioner of said town shall serve notice as required by the ordinance by copy, and, on the neglect or refusal of the railroad company or corporation upon which notice has been served to comply with the terms and requirements of the ordinance within the time specified in the said notice, the said marshal or street commissioner shall file the original notice with the recorder of said town, with his return duly made thereon.

"Sec. 5. Any railroad company or corporation refusing or neglecting to comply with the provisions of the ordinance within sixty days after notice has been served in the manner herein specified, shall forfeit and pay to the incorporated town of Gravette, Arkansas, a sum not less than one hundred dollars ($100.00) nor more than two thousand dollars ($2,000.00), and not less than five dollars ($5.00) per day nor exceeding fifteen dollars ($15.00) per day for each and every day such refusal or neglect shall continue after the expiration of the sixty days' notice served on such railroad company or corporation as herein specified.

"Sec. 6. That this ordinance take effect and be in force from and after its passage and publication.

"Adopted June 21, 1900. G. A. Hughes, Mayor of the Incorporated Town of Gravette, Ark. E. M. Gravett, Recorder."

C. M. Rice and W. S. Floyd, for appellants. J. A. Rice and McGill & Lindsey, for appellees.

HILL, C. J.

These cases are consolidated in this court by consent; No. 5,058 being an appeal from a decree perpetually enjoining Hughes, as mayor of Gravette, and his successors in...