White River Bridge Company v. Hurd

• Decision Date: 02 July 1923
• Docket Number: 92
• Citation: 252 S.W. 917,159 Ark. 652
• Parties: WHITE RIVER BRIDGE COMPANY v. HURD
• Court: Arkansas Supreme Court

252 S.W. 917

159 Ark. 652

WHITE RIVER BRIDGE COMPANY v. HURD

No. 92

Supreme Court of Arkansas

July 2, 1923

Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann Judge; reversed.

Judgment reversed, and cause remanded.

Cooper Thweatt and Chas. B. Thweatt, for appellant.

The provisions in the franchise for the toll bridge that the rate of toll fixed for the first ten years shall not be reduced during that period, and that no ferry license shall be granted within one mile of the bridge during the life of the franchise, are valid. The validity of the provisions is a judicial question for determination in a suit to enforce the contract. 153 P. 28; 42 S.W. 647; Abbott on Public Securities 490; 9 C. J. 61. Seller, when buyer declines to take the property, may tender it and sue for the purchase price. 24 R C. L. 86. 51 L. R. A. (N. S.) 784; 14 C. J. 702; 90 Ark. 85; 106 Ark. 314; 60 N.E. 378. Rate of tolls. County court has power to regulate ferry rates. 152 Ark. 291. Municipal corporations fix rates in franchises granted by them. 152 Ark. 290; 194 U.S. 517, 24 S.Ct. 756; 184 U.S. 368, 22 S.Ct 410. Statute authorizing toll-bridge franchises, C. & M. Digest, §§ 10255-10258. "Full" defined. 56 So. 792; 27 C. J. 923; 44 Ala. 506; 64 A. 702; Words & Phrases (2d S.) 678; 69 Ark. 269; 43 Ark. 198; 31 Ark. 25. Ferry competition. C. & M. Digest, § 10258; 69 Ark. 269; 130 Ark. 291; 130 Ark. 291; 95 Ark. 342.

E. B. Kinsworthy and B. S. Kinsworthy, for appellee.

The rate of tolls is subject to alteration, and appellee was not bound to purchase the bonds for construction of the bridge unless the provision in the franchise that the rate of tolls as fixed at the present time shall not be subject to alteration for ten years. No county judge, under § 28, art. 7, Constitution, giving authority to regulate ferries, can fix rates that cannot be changed by his successors. Authority not given by C. & M. Digest, §§ 10255-6-7, for county court to grant franchise for toll bridge with fixed rate of tolls for ten-year period. 14 Ky. Law Rep. 836; 21 S.W. 1042; 245 Ark. 209; 144 U.S. 201; 48 L. ed. 406; 94 Ark. 27; 148 Ark. 504; 31 Ark. 24. Right to regulate tolls can not be contracted away. 164 U.S. 578, 41 L. ed. 560. Neither is the provision that no license to operate a ferry within a mile of the bridge during the life of the franchise valid. C. & M. Digest, § 10258; 31 Ark. 241.

OPINION

HART, J.

The main question raised by this appeal is whether a county court of this State, which has granted a privilege to a person to build a toll bridge in the county over a navigable river, has also the right to fix the tolls for crossing said bridge for the period of ten years.

The circuit court held that no such power was vested in the county court, and to reverse a judgment based upon that holding this appeal has been prosecuted.

Under art. 7, § 28 of the Constitution of 1874, the county courts of this State have exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries, etc. Under this provision of the Constitution the county courts have exclusive jurisdiction of the matter of building bridges over watercourses. The Legislature might authorize the county courts to build such bridges at the public expense, or it might authorize them to grant the privilege to any person or corporation to build a toll bridge in the county over any navigable stream or other watercourse, where it might be deemed necessary for the public convenience, and too burdensome to be constructed by general taxation. Wright v. Morris, 43 Ark. 193, and Gray v. Duffey, 152 Ark. 291, 238 S.W. 60.

A toll bridge is a part of the public highway, the same as a bridge built by general taxation. The only difference is that, instead of being made at the public expense in the first instance, a toll bridge is authorized and laid out by the county court and made at the expense of individuals or corporations in the first instance; and the cost of construction and maintenance is reimbursed by a toll fixed by the county court for the purpose. Every traveler has the same right to use it, paying the toll established by law, as he would have to use any other bridge.

The Legislature of 1875 passed an act granting toll-bridge and turnpike privileges, which is a part of our statute law today. Crawford & Moses' Digest, § 10255-10260 inclusive.

Sec. 10255 reads as follows: "The several county courts, through whose counties run any watercourse, lake, bay or swamp which may be too burdensome to bridge and keep in repair by the inhabitants thereof, are hereby fully and exclusively empowered to grant privileges to persons to build toll-bridges over, or turnpikes or causeways along the same, or through any overflowed or wet land, whenever the interest of the county or the traveling public shall, in their discretion, demand such improvements."

Sec. 10256 reads as follows: "The county courts shall have a general superintending control over such bridges and turnpikes, and they are hereby required to fix the rates of toll for crossing any bridge, causeway or turnpike which may be built under the provisions of this act, and to compel the same to be kept in good repair at all times."

It is conceded that the right to grant a franchise to build a toll bridge can be obtained only from the county court, and that it can be sold or transferred; and such is the law. That is to say, the legal mode of granting a franchise to construct a toll bridge is by a contract between the county court and the grantee of the franchise. It is also conceded that, under the statute, the county court is required to fix the rates of toll, but it is contended that the power thus conferred is a continuing one which the county courts may be required to exercise from year to year, and that it cannot fix the toll for ten years in advance.

It may be stated in the outset that it is a rule of construction that existing statutes become a part of contracts like the kind under consideration. Pocahontas v. Central P. & L. Co., 152 Ark. 276, 244 S.W. 712, and Camden v. Ark. Light & Power Co., 145 Ark. 205, 224 S.W. 444. Hence this court has held that municipal corporations have the continuing power to lower rates of any water company, gas, or electric light plant. Lonoke v. Bransford, 141 Ark. 18, 216 S.W. 38, and Pocahontas v. Central Power & Light Co., 152 Ark. 276, 244 S.W. 712, and cases cited. The reason is that § 5445 of Kirby's Digest, which was in force at the time of the granting of the franchise to the public utilities in the cases cited, authorized cities and towns, upon complaint filed, to examine the rates charged consumers and determine whether they are reasonable, and, if found unreasonable, makes it their duty to fix such prices as might be deemed to be a reasonable charge. The statute is read into every contract to which it relates made since its enactment. Therefore it becomes our duty to construe § 10256 of the Digest to determine whether or not it was intended that the county court should have a continuing power to fix the rates of toll.

There is no hard and fast rule on the question, and the truth is that in each case the meaning of a statute must be sought by a study of its general scope and tenor and the consideration of its purposes; for it cannot be gathered from the consideration of one word, or even many words. Elloitt on Roads and Streets, 3 ed., § 51.

It has been well said...