Ouachita Power Co. v. Donaghey

• Decision Date: 23 December 1912
• Citation: 152 S.W. 1012,106 Ark. 48
• Parties: OUACHITA POWER COMPANY v. DONAGHEY
• Court: Arkansas Supreme Court

152 S.W. 1012

106 Ark. 48

OUACHITA POWER COMPANY v. DONAGHEY

Supreme Court of Arkansas

December 23, 1912

Appeal from Pulaski Circuit Court, Second Division; F. Guy Fulk Judge; affirmed.

STATEMENT BY THE COURT.

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 Arkansas, 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 a franchise 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 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 that 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.

Judgment affirmed.

Clifton W. Gray and B. S. & J. V. Johnson, for appellant.

Is the language of the act simply permissive or mandatory? Our contention is that it is mandatory and that the board has no discretion. 26 Cyc. 139; 89 S.W. 198; 52 N.Y. 23; 33 Am. Dec. 320; 77 Ill. 271; 38 La. 923; 21 N.Y.S. 601; 83 Am. Dec. 557; 40 Md. 312; 50 Me. 256; 39 N.H. 435; 3 McCreary, 333; 4 Wall. 435, 436; Endlich, Const. Stat. 416, § 306; 40 Md. 312; 9 Ore. 253; 30 Ark. 31; 52 F. 718; 34 Ark. 390. Under the act of 1905 the duty of the board is merely ministerial. 89 S.W. 198; 76 Mich. 162; 30 Cal. 596; 36 Ala. 371.

Rose, Hemingway, Cantrell & Loughborough, for appellee.

1. The act clothed the board with discretion. 94 Ark. 422; 1 Peters 46; 22 How. 422; 24 N.E. 1011; Suth. on Const. of Stat., § 462; Endlich on Const. of Stat., §§ 306, 312, p. 427; 3 Sandf. Chy. 625, 630; 27 N. J. L. (3 Dutch.) 407, 410; 53 Me. 438; 24 N.E. 1009; 82 P. 412.

2. The subject-matter of the act does not call for a mandatory construction. 82 P. 412, 417; 3 Johns. Chy. 101; 143 S.W. 107; 73 P. 670; Suth. St. Const. p. 597; 39 Mo. 521, 524.

3. Mandamus is not a writ of right, but issues only in the exercise of a sound equitable discretion. 26 Ark. 482; 76 N.W. 482; 53 N.W. 16; 74 N.W. 387.

OPINION

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

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.

"Section 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 Company v The Board of Railroad Incorporation, 94 Ark. 422, 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 act upon the application therefor. In passing upon the question, the court said, "In order to arrive at the intent of the Legislature as to which of these boards or commissions it desired to name by this act, it is well to consider the duties imposed upon and the powers given to each by statute at the time of the passage of the act. Nor is it but reasonable to presume that the Legislature in adding this duty to the board or commission then in existence intended to place it with the board or commission having similar duties to perform. At the time of the passage of the act, the principal duty of the Railroad Commission of Arkansas was to make reasonable and just rates of freight, etc., * * * and it did not have the power * * * to grant any franchise to any corporation. It was, however, at the time of the passage of this act the principal duty of the State Board of Railroad Incorporation to grant charters to railroads and thus to issue franchises. The duty imposed by the act of May 13, 1905, to issue franchises of the character herein applied for was similar to the duties then performed by the State Board of Railroad Incorporation. It is true, that in this act it is also provided that the maximum compensation or rate per horse power, shall be fixed, and the duties of the Railroad Commission of Arkansas relates to the regulation of rates and tariffs. But we are of the opinion that the issuance of the franchise was the primary object of this act in designating the board or commission that should perform this...