Nakdimen v. fort Smith & Van Buren Bridge District

• Decision Date: 13 July 1914
• Docket Number: 117
• Parties: NAKDIMEN v. FORT SMITH & VAN BUREN BRIDGE DISTRICT
• Court: Arkansas Supreme Court

172 S.W. 272

115 Ark. 194

NAKDIMEN v. FORT SMITH & VAN BUREN BRIDGE DISTRICT

No. 117

Supreme Court of Arkansas

July 13, 1914

Appeal from Sebastian Chancery Court; W. A. Falconer, Chancellor reversed.

STATEMENT BY THE COURT.

I. H Nakdimen instituted this action in the chancery court against the Fort Smith & Van Buren District and the Fort Smith Light & Traction Company to cancel and set aside a contract made by the commissioners of the bridge district with the Fort Smith Light & Traction Company. The record in the case is very voluminous and we do not deem it necessary to abstract it at length. Counsel for the bridge district has made a clear and consecutive statement of the case and we think that that statement is sufficient to present all the issues involved in the appeal. We, therefore, adopt it as our statement of the case, which is as follows:

The General Assembly of 1909 created the Fort Smith & Van Buren District for the purpose of building a free public bridge across the Arkansas River at Van Buren, and created the Fort Smith District of Sebastian County and all of Crawford County except three townships into an improvement district for that purpose. The act is No. 119 and found at page 325 of the Acts of 1909.

Section 2 gives the district power to construct and maintain a free public highway bridge at some convenient point on the Arkansas River between Fort Smith and Van Buren to be selected by the commission, and then follows this clause:

"The commission shall have the power to grant a right-of-way over said bridge to any public utility upon such terms as the commission shall determine; Provided, however, that the concessions which may be granted to public utilities shall not interfere with the reasonable use of such bridge as a public highway." (Acts of 1909, p. 329).

Section 3 provides that the affairs of the district shall be managed and controlled and all improvements authorized shall be made by the commission, and then creates the commission and provides for its succession by appointment of the county courts of each county. Section 39 contains this clause:

"Section 39. The bridge district herein created shall have the power to acquire and hold real and personal property, and may receive gifts, donations and bonuses for the purpose of carrying out the object and purpose of the act, and to receive rents from the concessions heretofore authorized from the public utilities, for the purpose of construction, repair or maintenance of the public improvement herein contemplated."

Section 53 confers authority upon the county courts of Crawford County and of the Fort Smith District of Sebastian County to take over and acquire the bridge after it is paid for "upon such terms as may be agreed upon as to its future maintenance by said courts and the commission herein created or their successors in office."

Then it provides that if the bridge is not taken over, the commission is authorized, after the bridge is paid for, to levy assessments for the maintenance of the bridge so as to keep it forever open to the public.

On the third of March, 1910, the defendant Fort Smith Light & Traction Company opened negotiations with the bridge commission for a franchise to use the bridge.

At the next meeting, March 19, 1910, a proposition from the traction company was submitted and a counter proposition made by the district. Propositions and counter propositions and negotiations were had intermittently between the parties from then until March 8, 1912, when the contract in question was entered into between these two defendants.

It is not necessary to review the many propositions and counter propositions. Briefly stated, they were all for a 45-year franchise for the use of the bridge. They contemplated not only crossing the bridge, but building a street car system in Van Buren and were conditioned upon obtaining a franchise from the city of Van Buren for that purpose.

Until February, 1912, all of these propositions on either side were on the basis of a maximum charge of ten cents for fare between Fort Smith and Van Buren. On February 23 the president of the traction company submitted a written proposition offering a schedule of tolls that he was willing to pay for the use of the bridge, being $ 1.800 for the first five years; $ 2,500 for the second five years; $ 3,600 for the third five years and $ 5,000 for the fourth five years and on a failure to agree for the remaining twenty-five years' compensation to be determined by arbitration.

Then he proposed that if, during the life of the franchise, the company have the option which it might exercise at any time that it should reduce the fare between Fort Smith and Van Buren to five cents for passenger with transfer privileges in both cities, then the company to have the privilege of operating its cars across the bridge in both directions without charge or compensation except for the operation of freight cars, for which it offered 35 cents per car.

On February 26, 1912, amended proposition was offered by the company, striking out the arbitration clause and making the last thirty years to run at $ 5,000 per annum.

It was further explained that five cents meant five cents for all persons over five years of age and not subject to reduced tickets of any kind unless the company elects to do so.

The commission, by a majority vote, made a counter proposition that five cents fare be charged between the cities including transfer, for free use of the bridge for forty-five years the traction company to install trolley and maintain tracks at their expense, and a second proposition, which was also carried by a majority vote (two of those opposing the first proposition voted "aye" on the second proposition, and two of those voting "yes" on the first proposition voting "no" on the second proposition).

The second proposition was this: That a 10-cent fare be charged, toll to be 12 1/2 cents per car with no minimum guarantee, but that a half-hour schedule for eighteen hours per day be maintained. This proposition was also for forty-five years.

On February 29, the traction company submitted a written proposition through its manager, which was substantially the same as the proposition which had been made to it except that it included the right to carry mail and express and package freight at a cost of 35 cents per trip and the company to have the right to use the bridge for feeder wire and trolley and the use of approaches for necessary cross-overs, switch tracks and waiting stations. The traction company to erect and maintain derailing and signal devices on the approaches to the bridge for its own use.

Counter proposition was made accepting the proposition, except as to express and freight cars, the commission to guarantee that charges for them would not exceed the basis charged any other carriers for such service and the traction company to maintain tracks and trolleys and a fare of five cents between Fort Smith and Van Buren, including transfers in both cities without charge.

On March 8, the commission met and took up the proposed contract, which was considered section by section. The contract in its entirety was agreed to by unanimous vote.

The cause was heard before the chancellor upon evidence which has been properly brought into the record. The chancellor dismissed the bill for want of equity and from the decree entered the plaintiff has appealed.

Decree reversed and cause remanded.

Read & McDonough and Winchester & Martin, for appellant.

1. The act was held constitutional in 96 Ark. 410; 67 Ark. 37.

2. The powers of the commissioners are limited. 103 Ark. 127; 37 Ark. L. R. 495; 35 Id. 499; 36 Id. 147; 106 Ark. 39; 105 Id. 65, 380; 106 Id. 517; 104 Id. 427. Even the Legislature is limited in its powers over the subject of improvement districts. 103 Ark. 127. The powers of such boards can not exceed those expressly given. 86 Ark. 1; 98 Id. 543; 94 Id. 49; 97 Id. 334; 102 Id. 306; 95 Id. 496; 97 Id. 318; 36 Ark. L. R. 147; 98 Ark. 113; 83 Id. 34, 54.

3. The commission has no rate-making power. 111 U.S. 412; 108 Id. 110; 34 S.Ct. 400; 11 Pet. 536.

4. The contract is unreasonable, unconstitutional and void. 114 Ill. 659; 62 Id. 268; 98 N.W. 681; 23 Mich. 499; 80 Ark. 108.

5. The commission has no power to accept any rental except money rental. 2 Benj. on Sales, § 1099, note 26; L. R. 1 C. P. 186; 17 C. B. 239; 16 Pa.St. 289; 123 Id. 212; 37 Oh. St. 590, 460-1; 111 U.S. 412; Kirby's Digest, § 731.

6. The contract is void because it conflicts with our Constitution. 44 L. R. A. 716; Page & Jones on Tax. §§ 308, 690-1; 172 U.S. 269; 34 Oh. St. 551; 61 Id. 16; 64 N.E. 433; 6 So. 402; 8 L. R. A. 55; 83 Ark. 275; 10 Fed. C. 1099; art. 18, § 2, Const.; 15 Ark. 43; art. 12, § 12, Const.

7. Public money is used for private gain; hence contract void. 77 Am. St. 484; 24 A. 156; 1 Cooley, Tax. 181; 21 Pa.St. 174; Cooley, Tax. 192-5; 87 U.S. 655; 60 Me. 124; 24 Wis. 350; 26 Mich. 429; 23 Id. 499; 63 Iowa 265; 69 Id. 384; 15 N.W. 375; 112 Am. St. 652-6; 87 U.S. 655; 33 Ark. 704; 108 U.S. 110; 14 Kan. 419; 6 So. 402; 106 Am. St. 931; art. 4, § 55, Const.; art. 15, § 15, Id.; 48 Ark. 370; 25 Id. 289; 32 Id. 251; 184 U.S. 115, etc.

8. It is void under the Fourteenth Amendment, Constitution U.S. Page & Jones, Tax. § 308; Id. 690-1; 172 U.S. 269; 18 Oh. C. C. 288; 64 N.E. 433; 184 U.S. 115; 230 Id. 139; 227 Id. 278; 172 Id. 269.

9. The traction company can not use bridge without compensation. 68 A. 846; 79 Id. 161; 148 U.S. 92; 79 A. 567; 26 S.E. 913; 37 N.J.L. 254; 60 Kan. 848; 91 Mass. 563; 61 L. R. A. 249; 54 N.Y. 507; 15 L. R. A. 828; 37 Wis. 400; 1 Cooley, Tax. 196; 44 L. R. A. 716.

10. The contract is without consideration and void. 3 Ell. R. R § 1096; 41 L. R....