Little Rock Railway & Electric Company v. North Little Rock

• Decision Date: 17 June 1905
• Citation: 88 S.W. 826,76 Ark. 48
• Parties: LITTLE ROCK RAILWAY & ELECTRIC COMPANY v. NORTH LITTLE ROCK
• Court: Arkansas Supreme Court

88 S.W. 826

76 Ark. 48

LITTLE ROCK RAILWAY & ELECTRIC COMPANY v. NORTH LITTLE ROCK

Supreme Court of Arkansas

June 17, 1905

[Copyrighted Material Omitted]

Appeal from Pulaski Chancery Court JESSE C. HART, Chancellor.

Affirmed.

STATEMENT BY THE COURT.

On the 16th day of March, 1903, the General Assembly passed an act authorizing parts of one municipal corporation to be annexed to another municipal corporation. This act is contained in section 5522, Kirby's Digest.

On the 11th of May, 1903, petitions were filed with the town council of the town of North Little Rock, signed by a majority of the citizens of that town and a majority of the citizens of the Eighth Ward of the city of Little Rock, praying for the annexation of the Eighth Ward of Little Rock to the incorporated town of North Little Rock. On the 15th of June 1903, an ordinance was passed calling for an election to be held in the affected territory on the question of annexation pursuant to the terms of the act. The election was called for July 21, 1903. On the 6th of July, 1903, the city of Little Rock, its mayor and aldermen and numerous citizens and corporations--among the latter the appellant, which will hereafter be called "the street railway company"--filed a complaint in the Pulaski Chancery Court against the town of North Little Rock.

The complaint set forth fully the relation of the Eighth Ward to the city of Little Rock, and the alleged effect upon it and the city of Little Rock, should the proposed annexation to North Little Rock be consummated. The complaint alleged that the act under which the proceedings were progressing was unconstitutional for various reasons set forth therein, and consequently the whole proceeding under it was void, and sought to arrest by injunction the election ordered for July 21. The complaint further alleged:

"Complainants further state that, unless defendants are restrained from holding such election and proceeding further under said act defendants will hold said election, will declare the result in favor of disannexation, and will then proceed to grant all kinds of franchises, privileges, licenses and contracts of public nature; that said franchises, privileges and contracts will conflict with those heretofore granted by the said city of Little Rock; that it will grant street car, lighting and water franchises to parties other than those to whom they have been granted by said city." Other probable conflicts in rights and jurisdiction were alleged to be imminent. The prayer was to restrain the holding of said election, and from taking any further steps towards annexing the Eighth Ward to North Little Rock. On July 16 a demurrer was sustained to the complaint, and the injunction refused, and the city of Little Rock and its co-plaintiffs appealed to the Supreme Court. The court was not then in session, and application was made to Hon. HENRY G. BUNN, then Chief Justice of the Supreme Court, for an injunction pending the appeal. The petition to the Chief Justice recited the status of the annexation proceedings and the litigation, and alleged: "That for the reasons and grounds set forth and referred to in said complaint, and for others hereinafter set forth, it is of the utmost importance that a temporary restraining order should be issued by your Honor in vacation of said Supreme Court, to restrain said defendants from all further proceedings in the matters set forth and referred to in said complaint and exhibits, during the vacation of said Supreme Court, and until its further order." Then other and additional reasons were alleged why the injunction should issue. This further statement appears in the petition: "Plaintiffs further state that the granting of the injunction herein prayed for will work no injury or detriment to the defendants; that it will only result, so far as the defendants are concerned, in a postponement of the election, if said act is hereafter adjudged to be constitutional; that said injunction will, in all respects, merely result in the maintenance of the status quo of the parties, property and interests herein involved."

On July 18 Chief Justice BUNN refused to enjoin the holding of the election, allowing the proceedings to go to the extent of holding the election, counting the votes, and completing the election returns, but enjoined the declaration of the result and from entering the same on the record of the proceedings of the council of North Little Rock, and enjoined North Little Rock from doing any act towards the assumption of jurisdiction or control over the property or affairs of the Eighth Ward, or the exercise of any municipal function whatever over the same, and from interfering with the existing jurisdiction of the city of Little Rock, until the further orders of the Supreme Court, or of one of the judges thereof. It was further ordered that the ballots and returns of the election were to be counted and cast up and transmitted to the council of North Little Rock, and, without opening or further action thereon, were to be kept until the further orders of the Supreme Court, or one of the judges thereof.

The act under which this proceeding was held provided that, if a majority of those voting at the election should vote in favor of annexation, the council "shall so declare, and enter (it) upon its record book of proceedings." And "thereafter the said consolidated territory, and the inhabitants thereof, shall constitute a municipal corporation of this State," etc. The declaration of the vote in favor of annexation, and the record thereof, constituted the point where the jurisdiction of the enlarged corporation began. The Chief Justice allowed the proceedings to go to this point, but arrested the changes of jurisdiction until the appeal was heard and determined. The vote at the election, July 21, resulted in 475 votes for annexation, and 44 against it. The returns were counted, cast up and delivered pursuant to the order, but the declaration and record of the results were stayed by the injunction. On February 6, 1904, the Supreme Court affirmed the decision of the chancellor, and on February 22 time for filing motion for reconsideration was waived, the injunction dissolved, and the annexation proceedings then completed. On the 25th of June, 1903, the same being after the election was ordered and before it was held, the council of the city of Little Rock granted to the street car company a franchise to build and maintain a street railway over certain streets in the Eighth Ward. The franchise, however, contained conditions, so far as material, in substance as follows: That before the rights conferred should be enjoyed the free bridge over the Arkansas River (the Eighth Ward being on the North side of the river) should be so strengthened as to bear with safety the weight of the cars. Details in regard to this were provided for in the ordinance. The next condition is: "Nor shall said rights herein granted be enjoyed until the grant hereby made of a right of way over the said free bridge has been confirmed by the county court of Pulaski County." The bridge was constructed by the county of Pulaski, and not by the city of Little Rock. It was further provided that the grant would be void unless within thirty days after said confirmation by the county court the street car company should begin the work of laying tracks and strengthening the bridge, and prosecute the work with reasonable dispatch, and complete it within eighteen months; but it was provided that, if the work was stopped by judicial proceeding, the time it was so suspended should be excluded. The ordinance provided that it should not be operative until the street car company should accept its terms and conditions in writing within five days, and deposit with the city treasurer $ 10,000 in cash, or at its option, a good bond in that sum, conditioned to comply with the terms of the ordinance, and containing, among others, this condition: "If the county court declines to confirm the right of way herein granted, then the council reserves the right to revoke this ordinance at such time as it sees fit, or wait on said confirmation at its option." In another section it is provided that such confirmation shall not be necessary if there is obtained a final judgment of the Supreme Court holding the right of way valid without such confirmation. It is conceded that no litigation has been begun or had wherein this question could be finally passed upon by the Supreme Court.

The final section is that the ordinance should be a binding contract between the city of Little Rock and the street car company upon its passage and the acceptance in writing and depositing the cash or bond. The ordinance was duly passed it was accepted in writing within the time, and the bond duly made and delivered. On the 10th of August, 1903, the city council of Little Rock materially amended this ordinance. The part important here is that the provision requiring confirmation of the grant of right of way by the county court of Pulaski County to be obtained before any rights therein conferred became operative was stricken out, and the company given an absolute franchise to construct and maintain a street car line over certain streets in the Eighth Ward. Similar provisions were made as to acceptance in writing, the giving of bond, and other matters not entering into this case. This was passed as stated, on the 10th of August, while the injunction suit was still pending in the Supreme Court, and while the temporary injunction of Chief Justice BUNN was in force. After the passage of this ordinance, and before the case was finally determined, the street car company began the construction of its line in the Eighth Ward, laid considerable track, and spent in all about $ 27,000 on the...