# Nakdimen v. Fort Smith & Van Buren Bridge District

> Supreme Court of Arkansas · July 13, 1914 · 115 Ark. 194

URL: https://www.frixlaw.com/law-library/cases/7807346

## Case

- **Full name:** Nakdimen v. Fort Smith & Van Buren Bridge District
- **Court:** Supreme Court of Arkansas
- **Decided:** July 13, 1914
- **Citations:** 115 Ark. 194; 172 S.W. 272; 1914 Ark. LEXIS 159
- **Precedential status:** Published
- **Opinion:** Dissent by McCulloch
- **Judges:** Hast, McCulloch, Smith
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7807346

## How later opinions describe it (automated extraction)

- stating that an improvement district is not a municipality and its powers cannot be likened to those of municipal corporations, "whose powers are broader and more general within their prescribed territory and over the subjects delegated to them."

## Opinion text

DISSENTING OPINION.
McCulloch, C. J. The majority of the court are wrong, I think, in construing the lang'uage of that part of the statute which authorizes the commission to grant a right-of-way over the bridge to public utility corporations. They construe the words “upon such terms as the commission shall determine,” to mean only that there may be a letting of the privilege for a consideration payable in money. No such limitation is found in the statute. On the contrary, the lawmakers have used the broadest kind of a phrase in giving expression to the authority conferred upon the commission. The only limitation placed upon that authority is that concessions to public utility corporations “shall not interfere with-the reasonable use of such bridge as a public highway,” and the maxim expressio imius est exclusio alterius, applies to that limitation.
The majority cite not a single authority supporting the view that the language used in the statute refers, when, reasonably interpreted, merely to a renting for money. That view of the question is, I think, totally at war with the theory upon which we upheld the constitutionality of this part of the statute creating the improvement district for the purpose of constructing the bridge. Shibley v. Fort Smith & Van Buren District, 96 Ark. 410 . We said in the opinion in that case that the provision for allowing space f.or use by public utility corporations “gives an enlarged use of the bridge by the public,” and that “the enlarged use of the bridge augments the benefits to the property affected thereby — at least, the Legislature had the power so to determine, and it does not impose on the taxpayers the burden of constructing an improvement for the use of the corporations.” We had no thought at that time — at least, as far as the language of the opinion indicates — that we were upholding that provision of the statute merely as a money-making scheme, and it seems to me now .that if the decision of the majority is correct, we ought to have declared that feature of the statute to be beyond the power of the lawmakers, and void.
The only case cited on the question by the majority (Linden Land Company v. Milwaukee Electric Railway & Lighting Company, 107 Wis. 493 ), fully sustains the view that the power conferred upon the bridge commissioners is much broader than that allowed by the majority in this case, and that the contract made with the defendant is not in excess of that power. The Wisconsin statute provided that a ‘ city is empowered to grant the use of streets and bridges to street railway corporations upon such terms as the proper authority shall determine.” The language is identical with that used in our statute, except that there the power was conferred upon the city council, and here it is conferred upon the commissioners of the bridge district. The city council of Milwaukee granted a franchise to a street railway company for the use of the streets, the only consideration being a limitation upon the price of fares, and refused a grant to other corporations for money consideration. The Supreme Court of .that State, in construing the language of the statute and in upholding the franchise, used the language quoted in the opinion of the majority, and it states, I think, the principle which should control in this case. The majority say that while the decision of the Wisconsin court may be correct in construing a statute conferring power on a city council, the same rule of construction does not obtain in interpreting the will of the lawmakers with reference to power conferred upon the commissioners of an improvement district. They cite some of our decisions holding that the commissioners of an improvement district possess only such power as is given by statute expressly or by necessary implication, and that those powers “can not be likened to those of municipal corporations, whose powers are broader and' more general within their prescribed territory and over the subjects delegated to them.” It is unquestionably true that broader power is, under the statutes of this State, conferred upon municipal corporations than upon improvement districts, but that does not alter the rules of construction to be followed in intérpreting the language of the Legislature in conferring power to carry out the objects of the organization. It may be conceded that the commissioners act merely in a ministerial or an executive capacity, but that does not alter the rule of interpretation when we come to analyze and interpret the language of the statute conferring power upon those agencies. When the Legislature authorized the commissioners of the Fort Smith & Van Burén Bridge District to grant a right-of-way to any public utility corporation “upon such terms as the commission shall determine,” it seems dear to me that they meant to repose in the commission a large measure of discretion in determining what should be the consideration for the grant. The only limitation is that expressed in the statute itself, and also the one necessarily implied that the grant should be for the public benefit. The majority have reached the conclusion that there was no fraud on the part of the members of the bridge commission, nor collusion with the street ear company, for the purpose of entering’ into an unjust or improvident contract. In fact, there is no hint in ithe opinion that the court concludes that the contract is at all improvident, hut the law is laid down broadly that the contract, even though made in the utmost good faith, is void because the commission did not exact a money consideration. The opinion of the majority is unfortunate, I think, in drawing an analogy between the power conferred upon a public agency of this kind and a private agent for the purpose of handling the property of another. Conceding the soundness of the oft-repeated rule announced by this court, that officers of an improvement district are public functionaries who possess no power except that granted by the statute, it does not follow that in interpreting the language of the lawmakers in conferring that power, analogy can be drawn between the language of a contract of agency between private parties. The authority of a public agency moves in an entirely different zone from" that occupied by private contracts, and the comparison is inapt. An individual, in 'appointing an agent to manage his property, reserves the right to supervise the acts of his agent and it is necessarily implied that when authority is given to sell or lease property, or contract otherwise with reference to it, a money consideration is the thing in contemplation. Not so, however, with a public agency clothed with large powers to act for the benefit of the public, and a degree of discretion is necessarily implied unless the authority is restricted by apt language with reference to the method of doing the thing authorized.
My view of the matter is that the statute authorized the commission to grant a franchise upon the terms embraced in the contract with defendant, and that there was no fraud or misconduct that would authorize a court of equity in setting it aside. Therefore, I dissent from the conclusions announced by the majority.
Smith, J., concurs in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7807346. Public record. Not legal advice.