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tioners, which it described in the order as order was void, as set up in the allegations follows:

of the complaint, and that the order imposed "Commence on the east line of East street any unreasonable burden upon the Company, between tracks of the Iron Mountain main line or that the Company would be irreparably inand tracks of the Hot Springs Western branch of the Iron Mountain Railway, with the plat. jured by the enforcement of the order. They form, run thence east with platform 340 feet further set up, as reasons why the Company and build passenger station according to plans, should be required to obey the order of the which show length of new station to be 188 Commission, the following: feet, then continue eastward with the platform 340 feet on the east or north side of the depot.” build its new depot is way off at one side of

"That the site at which plaintiff desires to The company was ordered to begin con- the city, has no streets leading to or from it; struction work on its new depot building on that it is located between the tracks of the de or before July 15, 1913.

fendant company, same being the main line of

the St. Louis, Iron Mountain & Southern RailThe appellant St. Louis, Iron Mountain & way Company on the

south, and the Little Rock Southern Railway Company (hereafter, for & Hot Springs Western Railway on the north; convenience, called Company) instituted this that said tracks are located about 100 feet suit against the appellees to enjoin them and about 200 feet apart at the point where

apart, where plaintiff has maintained its depot, from enforcing the above order, setting up said tracks are crossed by Main street; that that the Railroad Commission (hereafter from Main street to the site where plaintiff called Commission) did not have authority one-fourth of a mile; that practically all of

maintains its depot is a distance of more than under the act of May 17, 1907, (under which the travel from the city to said station is by it claimed to be acting) to make the order; way of Main and East streets, until the line of that no petition asking that the passenger way is crossed, and then between the tracks to

the Little Rock & Hot Springs Western Raildepot be located at the point designated by said station; that in going from Main and East the Commission was filed as the statute re streets to said station it is not only necessary quires; that the location designated in the to cross the railroad track of the Little Rock

& Hot Springs Western Railway, but also to petition that was filed was several hundred travel for a distance of 1,500 feet from Main feet west of the location selected by the Com- street and 1,200 feet from East street between mission; that the order was void because it the said tracks of the plaintiff company, and imposed an unnecessary and unreasonable the Little Rock & Hot Springs Western Rail.

also to cross a connecting track that connects burden and expense upon the company in re- road

track to that of the main line of the St. quiring it to remove its station from a point Louis, Iron Mountain & Southern Railway where it had acquired station grounds which tracks, and over which it is necessary for the

Company; that the land lying between the were adequate for all purposes, and which public to travel, belongs to the plaintiff

comhad been fully prepared for depot purposes pany; that the city owns no street which apat great expense, and that to place the dely 1,200 feet; that because of the location of

proaches said station nearer than approximatepot at the point designated by the Commis- said station at the place where plaintiff now sion would require the company to obtain contends that same remain located, it is very and improve other lands, to readjust and dangerous, and inconvenient for people of Ben

ton and vicinity to go to and from said depot," change its numerous tracks, to cut down the etc. grade of its line at various points at an enor

The answer then proceeds to enumerate mous expense, and thereby deprive the com- at length the causes and conditions existing pany of its property without due process of at the place where the company proposes to law and in violation of the fourteenth amend build the new depot that would make the ment to the Constitution of the United States, same dangerous and inconvenient for the peowhich provides that no state shall deprive ple of Benton. Appellees averred that for any person of life, liberty, or property with. 26 years and until about the year 1901, the out due process of law, nor deny any person plaintiff company operated its depot at a within its jurisdiction the equal protection point between Main and Market streets, on of the law; that the order was unreasonable a curve much greater than that at the point and void for the reason that it required the designated by the Commission; that it was Company to place its depot at a point where only after the building of the Little Rock & its lines passing same would be upon a curve Hot Springs Western Railway and the acand upon a grade, making it exceedingly quirement by gift from the people of Benton dangerous to operate its trains at said sta- of the 40-acre tract of land which now lies tion; that the order was in violation of sec- immediately north of the site where said detion 22 of article 2 of the Constitution of pot was burned that plaintiff moved its deArkansas, which provides that “the right of pot to the site where it now claims the same property is before and higher than any con- should be permanently located; that neither stitutional sanction; and private property the curve nor grade at the point designated shall not be taken, appropriated or damaged by the Commission for said depot is such as for public use, without just compensation to make it more dangerous or hazardous for therefor;" that the order was in violation the plaintiff company to operate its trains of section 9, article 2, of the Constitution of than it would be with the station located Arkansas, which probibits the imposition of at the point contended for by said company; cruel and unusual punishment and excessive that it is necessary for the convenience and fines.

safety of the public, who are patrons of the

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depot be moved to a point as far west as should be supplied by such railroad, railroad that designated by the Commission.

company, its lessee, or operator, and shall have An intervention was filed by various citi- train service for each and every such railroad

the power and authority to require a reasonable zens, adopting the allegations of appellant's station and depot within the state of Arkansas, complaint, protesting against the removal of and their finding shall be binding upon all such the depot to the place designated by the railroads within the state of Arkansas."

Laws 1907, p. 357. Commission, and setting up that they were engaged in business near the location of by the above statute to hear and consider pe

The power conferred upon the Commission the site selected by the Railway Company, titions for “depots, stations, spurs, sideand that the change in the location of the tracks,” etc., and “to determine the amount, depot would render their property of little degree and character of construction, equipor no value, that their property was

ment, changes, enlargement of stations and quired with the understanding that the depot depots," is sufficiently comprehensive to enwould remain where located, and that if they able the Commission to establish a depot or had not understood that the depot would remain there, they would not have invested cation of depots that have been formerly es

station in the first place, or to change the lotheir money in the property. They joined in tablished. The act, in express terms, gives the prayer for an injunction against the en

the Commission power to hear and consider forcement of the order of the Commission.

petitions for the “discontinuance" of depots, The chancery court, after hearing the evi- stations, spurs, etc., "as well as for their esdence, which was adduced ore tenus and tak- tablishment." While the word “relocate" is en down by a stenographer and afterwards not used, yet the terms employed in the act transcribed and made a part of the record of are broad enough to include the relocation of the chancery court, found that the Commis- a depot or station. A discontinuance of a desion had authority to make the order; that pot or station at one location and the estabthe petition presented by more than 15 citi- lishment of it at another is but a relocation. zens was sufficient to authorize the Commis. Therefore, the power to “discontinue" and to sion to make the order of which appellant make "changes” of stations and depots necescomplains; "that the old location where the sarily includes the power to relocate. depot was burned is a better location for the

[2] Second. Under the statute, a petition depot building than the location mentioned in for the establishment of depots, stations, etc., the order of the Railroad Commission;" but or the discontinuance of the same at one the court was of the opinion that it had no point and a relocation and establishment authority to set aside the order made by the thereof at another, is necessary to give the Commission unless there was no reason there- Commission jurisdiction of the subject-matfor, and the court was of the opinion that ter. But, while a petition "signed by at least there was a reason for the Commission to sifteen bona fide citizens residing in the termake the order, and therefore entered a de- ritory sought to be affected by said petition" cree dimissing appellant's complaint for want is essential to give the Commission jurisdie of equity. Other facts stated in the opinion. tion, the Commission, in the matter of locat

E. B. Kinsworthy, and T. D. Crawford, ing or establishing a depot or station, is not both of Little Rock, for appellant. w. R. required to order the same built or estabDonham, of Benton, for appellees.

lished upon the exact spot designated in the

petition. The statute does not require that WOOD, J. (after stating the facts as the petition shall designate the precise point above). Appellant contends:

where the depot shall be established, and if [1] First. That the statutes did not em- the petitioners do define the place for the power the Railroad Commission to relocate location of the depot, the Commission is not stations. The statute provides:

bound to establish the same upon the exact “Section 1. That the Railroad Commission spot and according to the limits set forth in of Arkansas be and the same is hereby author- the petition. The Commission is only reized, empowered, and required to hear and con- quired to consider "the territory sought to be sider all petitions for train service, depots, stations, spurs, sidetracks, platforms and the es- affected,” and, of course, would be precluded tablishment, enlargement, equipment, and dis- from establishing a depot beyond the territocontinuance of the same along and upon the ry sought to be affected. But, as we have right of way of any railroad in this state; pro: stated, there is nothing in the act requiring vided, said petition shall be signed by at least fifteen bona fide citizens residing in the terri- the exact location to be defined, nor circumtory sought to be affected by said petitioners. scribing the authority of the Commission to

"Sec. 2. The said Board of Railroad Commis- those precise limits where they have been set sioners shall, within thirty days after the fil- korth in the petition. A petition emanating ing of such said petition, proceed to make a personal inspection of the conditions complain- from at least 15 bona fide citizens residing ed of and investigate the objects sought to be in the territory sought to be affected, setting accomplished by said petitioners, and shall have forth that they desire the establishment of a the right to summon and swear witnesses, which summons shall be served by any sheriff, depot or station, or a discontinuance thereof constable, or deputy having legal jurisdiction; at one point and a relocation of same along whereupon, the said Board of Railroad Commis; and upon the right of way of any railway in sioners shall determine the amount, degree, and this state, is sufficient to give the Commissior character of construction, equipment, changes, enlargements of stations and depots which jurisdiction to act in the premises, whether

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the exact point for the location or establish- , sonable and arbitrary. This was a matter ment, or relocation, of the depot or station addressed primarily to the Commission, and is precisely designated and defined or not. i after a careful consideration of the evidence Here “the territory sought to be affected" was bearing upon this issue, we are of the opinion the city of Benton, and the petition was sign- that the order of the Commission was not ed by more than the requisite number of bona arbitrary and unreasonable. fide citizens of that territory. This was such However much we may differ from the finda petition as the statute contemplates, and ing of the Commission, upon the evidence in it gives the Commission jurisdiction of the this record, as to the wisdom and expediency subject matter, and it was then within the of its order, on account of the increased cost power of the Commission to discontinue the to the appellant in making the necessary exold station and establish the new depot along penditures to comply with its order, neverthe line of appellant's railroad at any point theless a fair consideration of all the testi"within the territory to be affected,” which mony adduced on this issue does not conwas found to be most conducive to the public vince us that the order was arbitrary and welfare, taking into consideration, of course, unreasonable. The order of the Commission, the interests of the railway company and also under the act, and the facts adduced by this the convenience of the general public that record, was not a taking of property withwas to be subserved by the granting of the out due process of law. St. L., I. M. & S. R. petition. It cannot be said that because the Co. v. State, 99 Ark, 1, 136 S. W. 938. Commission did not direct the establishment [4, 5] Fourth. It is next contended that the of the new depot at the exact point described order was unreasonable in requiring the ap. in the petition, it acted without a petition, pellant to locate its depot at a place where its and therefore had no authority to make the main line will be upon a curve and its branch order. There was a petition signed by more line upon a grade. than the prescribed number of bona fide cit- In Louisiana & Ark. Ry. Co. v. State, 85 izens, and it was requested at the hearing Ark. 12, 106 S. W. 960, we said: that if the Commission did not see fit to lo- “When the Legislature passes a special act cate the new depot at the site designated in requiring the doing of a certain thing, such as the petition, it be placed as near that site as

the establishment and maintenance of a station

at a given place by a railroad corporation, there practical. Every requirement of the law may be a judicial question presented whether or was met in the matter of the petition. not a real necessity exists for the doing of the [3] Third. Appellant contends that the or- thing in order to reasonably serve the public

convenience. It is a question primarily for der under review is unreasonable and inval- legislative determination, and that determinaid because taking 'its property without due tion should not be disturbed by the court unless process of law. Appellant, in this connection, the power has been exercised arbitrarily and

without reason. In other words, the legislasays:

tive determination should be and is conclusive "The effect of the order is to destroy the val- unless it is arbitrary and without any foundaue of the property owned by it and to compel tion in reason or justice. There may be cases it to acquire and improve other property at where the power is exercised so arbitrarily and great and unnecessary expense, without any unreasonably that the court should declare, as proportionately compensative advantage to the a matter of law, that the Legislature exceeded public.”

its power, and that the legislative determination

should be disregarded." Appellant was given an opportunity to be heard before the Commission, and was heard.

We further said: The Commission had before it the testimony lative determination of the necessity for a sta

“The utmost force must be given to the legisadduced by the appellant showing the differ- tion and the reasonableness of requiring the ence between the cost of rebuilding the new company to erect and maintain one. depot and the necessary houses and the ar- And in St. Louis Southwestern Ry. Co. v. rangement of the tracks at the place des- State, 97 Ark. 473, 134 S. W. 970, we held ignated by the Commission, and the cost of (quoting syllabus): rebuilding and rearranging the tracks, "The Legislature has primarily the right to freight-houses, etc., at the place of the old determine whether the public necessity and constation. These were questions of fact ad venience require the establishment of a railway dressed to the Commission, and it could serve disturb their determination unless it is clearly

depot at a given point, and the courts will not no useful purpose to set out in detail and dis- shown that such requirement is unreasonable cuss the evidence bearing upon these issues. and arbitrary." The difference in the expense of establishing In St. Louis, Iron Mountain & Sou. R. Co. and maintaining a station at the point desig- v. State, supra, the court had under considernated by the Commission is greater, as shown ation the power of the Railroad Commission, by the testimony of witnesses for appellant, under this statute, to order the construction than the expense of building a new depot and of a spur track, and we said: maintaining the station at its present loca- "The Legislature had the right to require the tion, but it cannot be said that this difference construction of this spur track, and, having it, is so great as to amount to a confiscation mission, as it has done by said act of 1907.

could delegate the power to the Railroad Comof appellant's property. The difference in the * *' If it had made the requirement directcost of the establishment and maintenance ly by statute instead of conferring the power between the two locations is not so great as action would have been subject to judicial re

upon the Railroad Commission to make it, its

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depot be moved to a point as far west as should be supplied by such railroad, railroad that designated by the Commission.

company, its lessee, or operator, and shall bave An intervention was filed by various citi- train service for each and every such railroad

the power and authority to require a reasonable zens, adopting the allegations of appellant's station and depot within the state of Arkansas, complaint, protesting against the removal of and their finding shall be binding upon all such the depot to the place designated by the railroads within the state of Arkansas."

Laws 1907, p. 357. Commission, and setting up that they were

The power conferred upon the Commission engaged in business near the location of the site selected by the Railway Company, titions for “depots, stations, spurs, side

by the above statute to hear and consider peand that the change in the location of the tracks,” etc., and “to determine the amount, depot would render their property of little

degree and character of construction, equip or no value, that their property was

ment, changes, enlargement of stations and quired with the understanding that the depot depots," is sufficiently comprehensive to enwould remain where located, and that if they able the Commission to establish a depot or had not understood that the depot would re, station in the first place, or to change the lomain there, they would not have invested cation of depots that have been formerly estheir money in the property. They joined in tablished. The act, in express terms, gives the prayer for an injunction against the en

the Commission power to hear and consider forcement of the order of the Commission.

petitions for the “discontinuance" of depots, The chancery court, after hearing the evi- stations, spurs, etc., "as well as for their esdence, which was adduced ore tenus and tak

tablishment." While the word "relocate" is en down by a stenographer and afterwards not used, yet the terms employed in the act transcribed and made a part of the record of are broad enough to include the relocation of the chancery court, found that the Commis- a depot or station. A discontinuance of a desion had authority to make the order; that pot or station at one location and the estabthe petition presented by more than 15 citi-lishment of it at another is but a relocation. zens was sufficient to authorize the Commis- Therefore, the power to “discontinue" and to sion to make the order of which appellant make "changes” of stations and depots necescomplains; "that the old location where the sarily includes the power to relocate. depot was burned is a better location for the

[2] Second. Under the statute, a petition depot building than the location mentioned in for the establishment of depots, stations, etc., the order of the Railroad Commission;" but

or the discontinuance of the same at one the court was of the opinion that it had no point and a relocation and establishment authority to set aside the order made by the thereof at another, is necessary to give the Commission unless there was no reason there- Commission jurisdiction of the subject-matfor, and the court was of the opinion that ter. But, while a petition "signed by at least there was a reason for the Commission to fifteen bona fide citizens residing in the termake the order, and therefore entered a de- ritory sought to be affected by said petition" cree dimissing appellant's complaint for want is essential to give the Commission jurisdicof equity. Other facts stated in the opinion. tion, the Commission, in the matter of locat

E. B. Kinsworthy, and T. D. Crawford, ing or establishing a depot or station, is not both of Little Rock, for appellant. W. R. required to order the same built or estabDonham, of Benton, for appellees.

lished upon the exact spot designated in the

petition. The statute does not require that WOOD, J. (after stating the facts as the petition shall designate the precise point above). Appellant contends:

where the depot shall be established, and if [1] First. That the statutes did not em- the petitioners do define the place for the power the Railroad Commission to relocate location of the depot, the Commission is not stations. The statute provides:

bound to establish the same upon the exact “Section 1. That the Railroad Commission spot and according to the limits set forth in of Arkansas be and the same is hereby author- the petition. The Commission is only reized, empowered, and required to hear and con- quired to consider “the territory sought to be sider all petitions for train service, depots, stations, spurs, sidetracks, platforms and the es

affected,” and, of course, would be precluded tablishment, enlargement, equipment, and dis- from establishing a depot beyond the territocontinuance of the same along and upon the ry sought to be affected. But, as we have right of way of any railroad in this state; provided, said petition shall be signed by at least stated, there is nothing in the act requiring fifteen bona fide citizens residing in the terri- the exact location to be defined, nor circumtory sought to be affected by said petitioners. scribing the authority of the Commission to

"Sec. 2. The said Board of Railroad Commis- those precise limits where they have been set sioners shall, within thirty days after the til- forth in the petition. A petition emanating ing of such said petition, proceed to make a personal inspection of the conditions complain- from at least 15 bona fide citizens residing ed of and investigate the objects sought to be in the territory sought to be affected, setting accomplished by said petitioners, and shall have forth that they desire the establishment of a the right to

and swear which summons shall be served by any sheriff, depot or station, or a discontinuance thereof constable, or deputy having legal jurisdiction ; at one point and a relocation of same along whereupon, the said Board of Railroad Commis; and upon the right of way of any railway in sioners shall determine the amount, degree, and this state, is sufficient to give the Commissior character of construction, equipment, changes, enlargements of stations and depots which jurisdiction to act in the premises, whether

summon

the exact point for the location or establish- , sonable and arbitrary. This was a matter ment, or relocation, of the depot or station addressed primarily to the Commission, and is precisely designated and defined or not. , after a careful consideration of the evidence Here "the territory sought to be affected” was bearing upon this issue, we are of the opinion the city of Benton, and the petition was sign- that the order of the Commission was not ed by more than the requisite number of bona arbitrary and unreasonable. fide citizens of that territory. This was such However much we may differ from the finda petition as the statute contemplates, and ing of the Commission, upon the evidence in it gives the Commission jurisdiction of the this record, as to the wisdom and expediency subject-matter, and it was then within the of its order, on account of the increased cost power of the Commission to discontinue the to the appellant in making the necessary exold station and establish the new depot along penditures to comply with its order, neverthe line of appellant's railroad at any point theless a fair consideration of all the testi"within the territory to be affected," which mony adduced on this issue does not conwas found to be most conducive to the public vince us that the order was arbitrary and welfare, taking into consideration, of course, unreasonable. The order of the Commission, the interests of the railway company and also under the act, and the facts adduced by this the convenience of the general public that record, was not a taking of property withwas to be subserved by the granting of the out due process of law. St. L., I. M. & S. R. petition. It cannot be said that because the Co. v. State, 99 Ark. 1, 136 S. W. 938. Commission did not direct the establishment [4, 5] Fourth. It is next contended that the of the new depot at the exact point described order was unreasonable in requiring the apin the petition, it acted without a petition, pellant to locate its depot at a place where its and therefore had no authority to make the main line will be upon a curve and its branch order. There was a petition signed by more line upon a grade. than the prescribed number of bona fide cit- In Louisiana & Ark. Ry. Co. v. State, 85 izens, and it was requested at the hearing Ark. 12, 106 S. W. 960, we said: that if the Commission did not see fit to lo- “When the Legislature passes a special act cate the new depot at the site designated in requiring the doing of a certain thing, such as

the establishment and maintenance of a station the petition, it be placed as near that site as

at a given place by a railroad corporation, there practical Every requirement of the law may be a judicial question presented whether or was met in the matter of the petition. not a real necessity exists for the doing of the [3] Third. Appellant contends that the or- thing in order to reasonably serve the public

convenience. It is a question primarily for der under review is unreasonable and inval- legislative determination, and that determinaid because taking ‘its property without due tion should not be disturbed by the court unless process of law. Appellant, in this connection, the power has been exercised arbitrarily and

without reason. In other words, the legislasays:

tive determination should be and is conclusive “The effect of the order is to destroy the val- unless it is arbitrary and without any foundaue of the property owned by it and to compel tion in reason or justice. There may be cases it to acquire and improve other property at where the power is exercised so arbitrarily and great and unnecessary expense, without any unreasonably that the court should declare, as proportionately compensative advantage to the a matter of law, that the Legislature exceeded public."

its power, and that the legislative determination Appellant was given an opportunity to be

should be disregarded." heard before the Commission, and was heard.

We further said: The Commission had before it the testimony lative determination of the necessity for a sta

"The utmost force must be given to the legisadduced by the appellant showing the differ- tion and the reasonableness of requiring the ence between the cost of rebuilding the new company to erect and maintain one. depot and the necessary houses and the ar- And in St. Louis Southwestern Ry. Co. v. rangement of the tracks at the place des- State, 97 Ark. 473, 134 S. W. 970, we held ignated by the Commission, and the cost of (quoting syllabus): rebuilding and rearranging the tracks,

"The Legislature has primarily the right to freight-houses, etc., at the place of the old determine whether the public necessity and constation. These were questions of fact ad. yenience reqạire the establishment of a railway dressed to the Commission, and it could serve disturb their determination unless it is clearly

depot at a given point, and the courts will not no useful purpose to set out in detail and dis- shown that such requirement is unreasonable cuss the evidence bearing upon these issues. and arbitrary.” The difference in the expense of establishing In St. Louis, Iron Mountain & Sou. R. Co. and maintaining a station at the point desig- v. State, supra, the court had under considernated by the Commission is greater, as shown ation the power of the Railroad Commission, by the testimony of witnesses for appellant, under this statute, to order the construction than the expense of building a new depot and of a spur track, and we said: maintaining the station at its present loca- "The Legislature had the right to require the tion, but it cannot be said that this difference construction of this spur track, and, having it, is so great as to amount to a confiscation mission, as it has done by said act of 1907.

could delegate the power to the Railroad Comof appellant's property. The difference in the

If it had made the requirement directcost of the establishment and maintenance ly by statute instead of conferring the power between the two locations is not so great as action would have been subject to judicial re

upon the Railroad Commission to make it, its

*

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