Little Rock Railway & Electric Co. v. Dowell

• Court: Arkansas Supreme Court
• Writing for the Court: MCCULLOCH, C. J.
• Citation: Little Rock Railway & Electric Co. v. Dowell, 101 Ark. 223, 142 S.W. 165 (Ark. 1911)
• Decision Date: 11 December 1911
• Parties: LITTLE ROCK RAILWAY & ELECTRIC COMPANY. v. DOWELL

142 S.W. 165

101 Ark. 223

LITTLE ROCK RAILWAY & ELECTRIC COMPANY. v. DOWELL

Supreme Court of Arkansas

December 11, 1911

Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor reversed.

Decree reversed and cause remanded.

Rose Hemingway, Cantrell & Loughborough, for appellant.

1. Appellee as a mail carrier was divested of no vested right by the passage of the amendment to the original ordinance. Cooley, Const. Lim. 437, 471; Black, Const. Law, 429; 8 Cyc 895; Id. 904; Id. 938; 68 Ark. 368; 65 Ark 30; 69 N.Y. 282; 135 N.Y. 222; 76 F. 130. The Legislature may delegate to municipal corporations the power to grant franchises, and an ordinance which grants a franchise has the force and effect of a statute. 81 N.W. 1046; 164 U.S. 471; 44 Ia. 505; 7 So. 8; 64 Ark. 152; 95 N.W. 952; 105 Wis. 672; 107 Wis. 493. The power thus vested in the council is a discretionary power, and a court of chancery will not undertake to control it. 88 Ark. 266; 85 Ark. 470; 142 U.S. 510; 151 U.S. 3; 53 W.Va. 465; 44 S.E. 271; 84 Hun 261; 34 N.Y.S. 1073; 55 Wash. 229; 104 P. 259; 52 Ga. 211; 43 Ga. 67; 142 Ind. 551; 42 N.E. 39; 132 Ind. 114; 31 N.E. 573; 79 Mich. 384; 44 N.W. 622; 66 N.J.L. 533; 49 A. 587; 122 Ga. 231; 50 S.E. 122; 41 La.Ann. 910; 7 So. 8; 165 Pa. 479; 30 A. 959. The conductor can not know when the mail carriers are on duty. 80 Ark. 158; 52 F. 197. The courts will not interfere unless it appears that the council has acted beyond its authority. 76 F. 281; 104 Md. 423; 166 U.S. 557.

J. H. Harrod and Bratton & Fraser, for appellee.

The franchise was a contract. 5 Ark. 595. The corporation was the agent of the people in making the contract. 46 L. R. A. 513. The right of the mail carrier to free transportation is a property right that can be enforced. 16 L. R. A. (N. S.) 651. The act was ultra vires and may be enjoined. Dillon, Municipal Corp. (3 ed.) vol. 2, §§ 914-915; 196 U.S. 539. The city had no power to abrogate the contract the mail carriers had for free transportation. 27 N.Y. 611; 84 Am. Dec. 314; 71 N.Y.S. 1102; 74 Id. 1149; 174 N.Y. 507; 66 N.E. 1117; 33 N.W. 35; 5 Ark. 217; 67 Ill. 540.

MCCULLOCH C. J. KIRBY, J., dissents.

OPINION

MCCULLOCH, C. J.

On September 27, 1901, the council of the city of Little Rock granted to the Little Rock Traction & Electric Company, appellant's assignor, a franchise to construct a street railway in the city and to operate the same for a term of fifty years. The franchise contained a provision, among others, that the railway company should pay to the city one per cent. of its gross receipts during the first ten years of the term, and increasing the percentage to be paid one per cent. during each successive period of ten years thereafter. It also contained a provision that "policemen, firemen and United States mail carriers in uniform shall be allowed to ride free." This franchise was accepted by said company, and was afterwards assigned to appellant, and the street railway was operated thereunder. On December 5, 1910, the council passed an ordinance amending said franchise by striking therefrom the provision for the free transportation of mail carriers. Whereupon appellee, Martin Dowell, who is a mail carrier, instituted this action against appellant in the chancery court of Pulaski County to restrain the enforcement of said ordinance amending the franchise. He shows that he is a citizen and taxpayer of the city, as well as a mail carrier, and seeks relief on the ground that, as a mail carrier, he has a vested right to ride free under the original franchise, and that also, as a citizen and taxpayer, he has a right to prevent the relinquishment by the city of the provision for free transportation of mail carriers. Other mail carriers were subsequently joined as plaintiffs in the action.

The case was heard by the chancellor upon testimony tending to show, on the part of the appellees, that the free transportation of mail carriers was conducive to better mail service in the city, and, on the part of the appellant, that the original provision was considered by many citizens as an unfair and unnecessary discrimination in favor of mail carriers, and that the amendment would augment the revenues of the city by reason of the increased receipts of the railway company. A final decree was rendered declaring the amendment void, and restraining the railway company from failing and refusing to transport mail carriers free of charge upon its cars "while engaged on duty as mail carriers in the city of Little Rock and while going to work in the morning and returning from work in the evening, and while going to and returning from luncheon in the noon hour."

The first question argued is, whether a mail carrier has a vested right under the provision of the franchise as originally granted, giving him the right to free transportation. The answer to that question involves an inquiry as to the purpose of the provision and who were intended to be the beneficiaries. The city council derives its powers to grant such franchises from a statute authorizing it to do so for the benefit and convenience of the public. Kirby's Digest, §§ 5442 and 5448. The council does not act for individuals as such, but for the citizens of the municipality collectively. Therefore, when the provision was made in the franchise for the free transportation of mail carriers, it was not intended as a benefit or a gratuity to the individuals who were or who might from time to time become mail carriers, but for some anticipated benefit to accrue to the public. The fact that those individuals incidentally derived a personal benefit from the provisions, apart from the general public, while acting as mail carriers, did not vest in them a right which they could insist on being continued during the life of the franchise. So far as the provision for free transportation operated in favor of mail carriers as such, it was merely a gratuity which could be recalled at any time, and the continuance of which they can not demand. The provision constituted a contract between the railway company and the municipality acting for the public, and no individual rights were involved. It did not constitute a contract between the railway company and the mail carriers, for they were not parties to the contract, and, as before stated, the provision was for the benefit of the public and not for the individuals. So far as it constituted a gratuitous benefit to the mail carriers, it came from the city and not from the railway company. Oklahoma City v. Oklahoma Ry. Co., (Okla.) 16 L.R.A. (N.S.) 651.

As said by the New York Court of Appeals in a case which has been cited with approval by this court:

"A mere stranger can not intervene and claim by action the benefit of a contract between other parties. There must either be a new consideration or some prior right or claim against one of the contracting parties by which he has a legal interest in the performance of the agreement." Vrooman v. Turner, 69 N.Y. 280. This is the effect of our decision in the case of Thomas Mfg. Co. v. Prather, 65 Ark. 27, 44 S.W. 218.

It is said by a learned author on constitutional law that "the term 'vested right' relates to property rights only, and does not apply to personal rights." Black on Constitutional Law, p. 429.

Judge RIDDICK, speaking for this court and quoting in part from Mr. Black, said:

"Now, a vested right must be something more than a mere expectation based upon the anticipated continuance of existing laws. It must have become a title, legal or equitable, to the present or future enjoyment of property in some way or another." Steers v. Kinsey, 68 Ark. 360, 58 S.W. 1050.

We hold that no individual rights are involved in the franchise, and that appellees must derive their rights, if any they have, to restrain the attempted relinquishment of the provision for free transportation of mail carriers from their status as citizens, and as members of the general public, for whose benefit and convenience the franchise was granted.

A city council acts in a legislative capacity in exercising the powers conferred upon it to grant franchises for the public benefit. The power thus conferred upon a city council by the lawmakers is co-equal with the power in this respect of the Legislature itself, and in the exercise of this power a discretion is vested which can not be taken away by the courts. It is only an arbitrary abuse of the power which the courts should control; and when the exercise of that power and discretion is attacked in the courts, a presumption must be indulged that the council has not abused its discretion, but has acted with reason and in good faith for the benefit of the public. To proceed upon any other theory would be to substitute the judgment and discretion of the courts for the judgment of the members of the council with whom the lawmakers have seen fit to lodge this power. In Hot Springs v. Curry, 64 Ark. 152, 41 S.W. 55, this court approved the following quotation from Horr & Bemis on Municipal Police Ordinances, § 128:

"If an express power is given...