Little Rock Ry. & Electric Co. v. Dowell

• Decision Date: 11 December 1911
• Citation: 142 S.W. 165
• Parties: LITTLE ROCK RY. & ELECTRIC CO. v. DOWELL et al.
• Court: Arkansas Supreme Court

142 S.W. 165

LITTLE ROCK RY. & ELECTRIC CO. v. DOWELL et al.

Supreme Court of Arkansas.

December 11, 1911.

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

Action by Martin Dowell and others against the Little Rock Railway & Electric Company. Decree for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

Rose, Hemingway, Cantrell & Loughborough, for appellant. J. H. Harrod and Bratton & Fraser, for appellees.

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 50 years. The franchise contained a provision, among others, that the railway company should pay to the city 1 per cent. of its gross receipts during the first 10 years of the term, and increasing the percentage to be paid 1 per cent. during each successive period of 10 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 cannot 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., 20 Okl. 1, 93 Pac. 48, 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 cannot 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. 282, 25 Am. Rep. 195. This is the effect of our decision in the case of Thomas Mfg. Co. v. Prather, 65 Ark....