Kitchens v. City of Paragould

• Decision Date: 02 December 1935
• Docket Number: No. 4-4108.,4-4108.
• Citation: 88 S.W.2d 843
• Parties: KITCHENS v. CITY OF PARAGOULD.
• Court: Arkansas Supreme Court

88 S.W.2d 843

KITCHENS v. CITY OF PARAGOULD.

No. 4-4108.

Supreme Court of Arkansas.

December 2, 1935.

Rehearing Denied January 13, 1936.

Appeal from Greene Chancery Court; J. F. Gautney, Chancellor.

Suit by B. M. Kitchens against the City of Paragould and others. From an adverse decree, the plaintiff appeals.

Decree affirmed.

W. J. Stone, Maurice Cathey, and Wm. F. Kirsch, all of Paragould, for appellant.

W. W. Bandy and Jeff Bratton, both of Paragould, for appellee.

Ed I. McKinley, Jr., of Little Rock, Joe Morrison, of Stuttgart, W. S. Atkins, of Hope, Russell Elrod, of Siloam Springs, and C. L. Polk, Jr., G. D. Walker, Leo J. Mundt, and Edwin Bevens, all of Helena, amicus curiæ.

BAKER, Justice.

B. M. Kitchens, as a taxpayer, filed this suit against the city of Paragould in the chancery court of Greene county. He sought an injunction against the city and its officers to prevent the issuance of bonds, the selling or pledging of the same for the purpose of constructing a light plant and distribution system within the city, without first having procured from the department of public utilities a certificate to the effect that public necessity and convenience required the construction and operation of such plant.

The complaint, the effect of which will be stated below, was met by a demurrer which was sustained, and the complaint was dismissed; plaintiff declining to plead further after demurrer was sustained.

To save time and space, the city of Paragould and its officers, the department of utilities, Amendment No. 13 to the Constitution of the state of Arkansas, and Act No. 324, p. 895, of the Acts of 1935, will be hereinafter designated, respectively, as "city" or "Paragould," "department," "amendment," and "Act No. 324."

Proceeding under the amendment, Paragould, in 1932, by ordinance and election held thereunder, voted to issue bonds of the par value of $100,000 to construct a light plant and distribution system. Before the bonds were issued a suit was filed by Arkansas Utilities Company against the city. That company was already in the field supplying the requirements of the city, and it challenged the right of the city to construct its own plant and system and to operate same.

Some of the problems in that litigation are akin to those here presented. The Arkansas Utilities Company was operating under an indeterminate permit issued in 1921, under Act No. 571, p. 411, of the Acts of 1919. This indeterminate permit was issued just a few days prior to repeal of said Act No. 571. The repeal, however, did not destroy the permit which was alleged by the Utilities Company to be perpetual and exclusive. Upon appeal of this case, the issues were decided in favor of Paragould in April, 1934. City of Paragould v. Arkansas Utilities Co. (C.C.A.) 70 F.(2d) 530.

This bit of legal history and citation are given in explanation of the fact that only one matter appears on this appeal for our consideration. After the decision above cited, Paragould was free for a time to proceed with her enterprise of acquiring and operating a municipally-owned light plant.

A careful and extended study of the several briefs filed here by attorneys of the interested parties and by friends of the court convinces us that it is impracticable and perhaps unnecessary to attempt a discussion and detailed analysis of Act No. 324. If that course were pursued, this opinion would be unduly prolonged and extended. We shall content ourselves with an announcement of our conclusions omitting practically all of the mentioned details and provisions of said act.

Before any substantial progress was made after the decision above cited, the General Assembly of 1935 passed Act No. 324. Certain provisions of that act became impediments to progress in the development of the city's local lighting system.

It is conceded, or, at least, not disputed that Paragould was proceeding under the amendment adopted in 1926. The regularity and sufficiency of these proceedings were not questioned in the former litigation, nor here. During all the intervals wherein all these things have occurred, Paragould was a city of the first class, with the right to act under the amendment.

Said amendment is self-executing, complete, needs no statute or legislation in aid thereof. It grants the power and right to cities of the first and second classes to construct certain improvements and to issue interest-bearing bonds to pay therefor. It authorized the imposition of a limited tax of 5 mills to repay bonds issued for all these improvements. For water plants and light plants, however, the tax may be doubled, when necessary, under the conditions therein stated.

The right to invoke or use this grant of power is, or may be, exercised only by a majority vote of the qualified electors in such cities of the first and second classes.

Without setting forth more specifically the details of the amendment, let it suffice to state that under this amendment to the organic law, the scheme and machinery, including power and methods of procedure, are apparently complete in all details. Without the aid of statutory law, but under the amendment, exclusively, municipal plants may be established and put into operation.

But it is urged in this suit that Act No. 324 makes it necessary that Paragould obtain from the department a certificate of necessity and convenience before further proceedings may be had. In other terms, license must be procured before any new construction may begin. Section 41, Act No. 324, p. 933.

For the purpose of the consideration of matters here involved, we are going to assume, as appellant probably has, that the department would not issue the certificate.

The effect of this contention must be said to result in a conclusion that the General Assembly has power to make of no effect provisions of the Constitution by endowing some bureau or commission, with discretion to determine the expediency of obedience to that part of organic law. To state such a proposition is a refutation of its soundness.

The result of the election in Paragould, on the question of constructing a light plant and distributing system when declared, supplied and furnished the only certificate of convenience and necessity that could be required.

However, we do not agree with learned counsel for appellant in all particulars upon their interpretation of Act No. 324. Said Act No. 324 is not free from ambiguity. Its definitions are not clear; they do not define. "Public Utilities," mentioned therein, mean and include all privately-owned organizations supplying or furnishing water or electricity or other service usually so supplied by agencies and organizations possessing a monopoly of the commodity; but exclusive of municipally-owned utilities engaged in similar...