Ouachita Power Co. v. Donaghey

• Decision Date: 23 December 1912
• Citation: 152 S.W. 1012
• Parties: OUACHITA POWER CO. v. DONAGHEY, Governor, et al.
• Court: Arkansas Supreme Court

Page 1012

152 S.W. 1012

OUACHITA POWER CO. v. DONAGHEY, Governor, et al.

Supreme Court of Arkansas.

December 23, 1912.

Appeal from Circuit Court, Pulaski County; Guy Fulk, Judge.

Mandamus by the Ouachita Power Company against G. W. Donaghey, Governor, and others. From a judgment denying the writ, plaintiff appeals. Affirmed.

Appellant brings this action to compel, by mandamus, the State Board of Railroad Incorporation to grant it a franchise to operate a water power on the Ouachita river, in Garland county, Ark., making proper allegations in its petition, showing that it has duly complied with the provisions of Act 323 of the Acts of 1905, providing for the granting of such franchises, also setting out said act and alleging that the Board, at a special meeting called for the purpose, refused to grant it the franchise, upon the sole ground that it had upon another occasion granted a franchise to the Garland Power & Development Company to erect a dam upon the same river a short distance above the site and the property of the petitioner, and fearing that if a franchise should be granted to it that it would interfere or work an injury to the Garland Power & Development Company in the exercise of its franchise. It alleged further that the Board was without discretion to refuse to grant the franchise, and prayed a mandamus to compel the granting of it in accordance with the petition.

The Board of Railroad Incorporation responded, admitting the incorporation of the petitioner company for the purpose of erecting a dam site and the generation of power; that it made its application to the Board of Railroad Incorporation, filing a copy of its plat, as required, and that it denied the application for the franchise for the reason that the Board had previously granted to the Garland Power & Development Company, a company organized under the laws of the state of Arkansas for the purpose of producing electric current, by water power, for mining, milling, lighting, heat, etc., in the state, upon its petition, a copy of which is attached to the response, and also a copy of its articles of incorporation, with a map showing the location and principal dam, etc.; that the Garland Power & Development Company filed application for the franchise, which the said Board refused; that said company then filed petition for mandamus in the Pulaski circuit court to compel said Board to grant the franchise, which was refused, and on appeal this court decided said Board had power to grant such franchises, and should be required to act upon the application; that subsequently the said Garland Power & Development Company was granted a franchise. Appellees say that, having previously granted a franchise to the said Garland Power & Development Company, said company acquired the right to use that part of the Ouachita river for its purposes, free from interference of other persons or corporations, and that the grant of a franchise to the appellant to occupy the same portion of the river, although below the dam site of the Garland Power & Development Company, would interfere with the use of the river by said company and impair and destroy the value of its franchise, and because of the priority of the grant to the Garland Power & Development Company, and the absolute physical impracticability of devoting the waters of the Ouachita river and its tributaries at approximately the same point to two different water systems, refused to grant the franchise to appellant and denied its application, as it had the right to do. Appellant interposed a demurrer to this response, and upon the court overruling its demurrer and denying its mandamus prayed and was granted an appeal to the Supreme Court.

Clifton Gray and B. S. & J. V. Johnson, all of Little Rock, for appellant. Rose, Hemingway, Cantrell & Loughborough, of Little Rock, for appellees.

KIRBY, J. (after stating the facts as above).

No question is made that the application to the Board for a franchise did not in all respects comply with the law, and the only question for decision here is whether the law requires the Board of Railroad Incorporation to grant the franchise, upon proper application, without discretion as to whether it should be done or not.

The act provides, so far as it relates to the question here, as follows:

"Section 1. Any person or any corporation authorized by its charter so to do may erect and maintain on his or its own land a water mill and dam to raise the water to obtain power, or to create a reservoir for storage for equalizing the flow of water for his or its own use, and the uses of the mills below, upon and across any nonnavigable stream, upon the terms and conditions and subject to regulations hereafter expressed.

"Sec. 2. Any corporation organized under the statutes of this state for incorporation of companies for manufacturing purposes, for the purpose of producing power for manufacturing or reduction plants, for mining, milling, jigging operations, public utilities or other lawful purposes, or who own a general or practicable principal power or dam site, and who have procured a charter for the development and operation of a water power, and who have filed with the Secretary of State and with the counties in which the lands pertaining to such power are situated a plat or survey, showing the location of its principal dam site and the lands necessary for the development of such water power, may erect auxiliary and storage dams across nonnavigable streams for the purpose of developing a water. * * * Such power to be for public use and let to parties desiring it in order of their application. And the State Board of Railroad Commissioners is authorized to grant to such corporations the franchise of erecting such dam or dams, which franchise shall state the maximum compensation per horse power to be received by such corporation for the use of the power generated."

It will be seen that the act gives to the said Board the authority to act in matters of granting the franchise for the erection of dams; and in Garland Power & Development Co. v. Board of Railroad Incorporation, 94 Ark. 423, 127 S. W. 454, this court held that the Board of Railroad Incorporation, and not the Railroad Commission of the state, was intended to be specified in such act, and granted a mandamus against the Board, requiring it to...